Tyagi Vs. Deepak Kumar  INSC 99 (10 February 2010)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.5387 OF
2007 MANISHA TYAGI .....APPELLANT VERSUS
SINGH NIJJAR, J.
In this appeal the wife has challenged the judgment of High Court
of Punjab and Haryana in LPA No.1625/01 dated 25.8.2006 whereby the High Court
set aside the judgment of the Trial Court and the Judgment of Ld. Single Judge
and granted a decree of divorce to the husband.
Marriage between the parties was celebrated according to Hindu
rites at New Delhi on 17.11.1991. For a short period after the marriage, the
couple stayed at Meerut where the husband was posted as a Captain in the Indian
Army. Mutual cohabitation of the parties seems to have come to an end on
30.12.1992. They have been living separately since 31.12.1992. They have a
daughter who was born on 2.6.1993.
On 24.11.1993 the husband filed a petition under Section 13 of the
Hindu Marriage Act being Matrimonial Case No.644 of 1993 for dissolution of the
marriage. Later on the petition was amended and filed in the Court of District
Judge of Gurgaon on 28.11.1995 pursuant to the order issued by this Court in a
The husband has mentioned numerous instances of cruelty in
paragraph 7 of the divorce petition. He has described the wife as quarrelsome,
rude and ill-mannered. He had gone to the extent of terming his wife to be
schizophrenic, making his life a living hell. He goes on to narrate that all
efforts at conciliation even by his parents did not yield any result. He then
proceeds to state that his wife is misusing her position as a practising
advocate. According to him she has been constantly threatening him as well as
his family that since she and her two uncles are advocates they would make the
lives of the husband and his family miserable. The husband then complains that
the wife has been making baseless complaints to his superiors. This has
affected his career prospects in the Army. He makes a special reference to a
statutory complaint dated 10.12.1993 in which according to him the wife had
made numerous false allegations about the behaviour of the husband and his
family even prior to the marriage ceremony.
We may notice here the contents of the statutory complaint. She
complained about the exorbitant demands made by the husband's family for dowry.
She complained that within days of the marriage the husband started behaving in
a strange manner; throwing household articles and clothes all around in the
room and also mimicking the sound of different animals and sometimes barking
like a dog. She had also claimed that she had never seen a human being behaving
that way even if very heavily drunk, as he was most of the times she remained
in his company. She has stated that the husband and in-laws had willfully and
cruelly treated her and had spared no effort to cause her mental harm and
inflicted grave injuries. She also complains that there is danger to her life,
limb and health. They had pressurised her to meet not only their unlawful
demands of money but also for spurious reasons. She ends the complaint with the
comment that she has a child to support. She requested that an enquiry be held
into the conduct of the husband which is not only rude, indiscreet, disgraceful
and unbecoming of an Army officer but he has committed the offences under the
The husband further complains that even during this short period
of cohabitation the behaviour of the wife was erratic, inhuman and unbearable.
In order to cause mental agony to the husband the wife would deliberately
indulge in erratic sexual behaviour. She would intentionally interrupt the
coitus. On many occasions she even refused to share the bed with him.
The husband then makes a grievance that the wife had made a
complaint to the Women Cell, Nanakpura, New Delhi where notice was received by
the husband for appearance on 28.1.1994. She had also registered FIR No.10 on
19.1.1994 with Police Station, Keshavpuram, Delhi under Section 406, 498-A,
IPC. The police raided the flat of the parents of the husband at Noida on
22.1.1994 along with the wife. She even took away all her belongings including
the Maruti car. The husband in fact goes on further to allege that she even
took the ornaments belonging to the husband and his parents. It is further
alleged that the husband and the parents had to approach the court for
anticipatory bail. She then filed a petition for maintenance before the Family
Court, Meerut. She also lodged an FIR on 18.8.1999 under Section 354/506/34.
She made false allegations against his father, advocate and the son of the
advocate. With these allegations the husband had gone to court seeking divorce.
The Trial Court also took notice of the counter allegations made
by the wife. She claimed that the husband and his family had started treating
her with cruelty when the unwarranted demands for dowry were not met by her
parents. She also claimed that the husband is deliberately disrupting the
marriage as he wants to get married to someone else. She however admitted that
the couple had separated on 31.12.1992. She complains about the deliberate
neglect by the husband of his matrimonial as well as parental duties towards
the new born daughter. She denied all the allegations made by the husband with
regard to her erratic behaviour. She dwells on the illegal demands made by the
in-laws for cash, jeweler and electronic items. She states that the marriage
was celebrated under shadow of extortion. She was harassed by the in-laws and
rudely informed that they were expecting a sum of more than 30-lakh rupees to
be spent in the marriage as her father was working abroad. On the very first
day when she went to the matrimonial home she was informed by the mother-in-law
that her son was destined to marry twice as per the horoscope. She reiterates
the allegations about the erratic behaviour of the husband. She states that in
his show of temper he threw household things at her. She was constantly beaten
on one pretext or the other. Denying the allegations with regard to sexual
misbehaviour she stated that in fact the respondent tried to have sexual
intercourse during menstruation period or after conception. She had asked him
to desist from acting in such an unnatural manner but to no effect. She further
admitted having made the complaint but she denied that these are made as a
counter blast to the divorce petition filed by the husband.
On the basis of the pleadings of the parties the Trial Court
framed the following issues:
Whether respondent has been exercising such cruelty towards the petitioner so
as to entitle the petitioner to the dissolution of the marriage? OPP
Whether the petitioner has been ill- treating the respondent and as such,
cannot take benefit of his own cruel and tortuous acts, if so, to what effect?
Whether the petitioner is bad as premature? OPP
Whether the petition is malafide? OPR 5. Relief."
The Trial Court on evaluation of the entire evidence however held
the circumstances mentioned above clearly reveal that it is a case of broken
marriage, however, there is no ground given in Section 13 of the Hindu Marriage
Act, where a decree of divorce can be founded on the proof of irretrievably
broken marriage. In this regard, I may cite a recent judgment of our own
Hon'ble Singh Sandhu (1997-3) P.L.R. 553. It is laid down in this decision that
even if the marriage is assumed to have (illegible) for irretrievably, it is
not ground to dissolve the marriage.
the situation reached between the parties is of the doing of the petitioner and
it is well cherished principle laid down in Section 11 of the Hindu Marriage
Act that a party cannot be permitted to take benefit of his own wrongs.
discussion made above and the conclusions reached thereon, I hold that the
petitioner has been unsuccessful in proving the respondent to have treated him
with cruelty of the nature as to entitle him to a decree of divorce. It is
however, proved on the other side that the petitioner had harassed the respondent
for getting his demand and the demands of his parents fulfilled. However, the
respondent has prayed for no relief on that ground. Issue No.1 is, therefore,
decided against the petitioner while Issue No.2 is decided in favour of the
Aggrieved by the aforesaid findings the respondent filed F.A.O.No.16-M
of 2000 in the Punjab and Haryana High Court. The Learned Single Judge
independently examines the entire evidence and the material on the record. Upon
evaluation of the entire evidence the Learned Single Judge observed that both
the parties are at fault.
to the Learned Single Judge the wife had crossed "Lakshman Rekha".
Apart from what was stated by the Trial Court, the Learned Single Judge notices
that the wife had not only made allegations about the unnatural demands of the
husband for sexual intercourse when she was pregnant but she had also made an
allegation that he had wanted to commit the act of sodomy with her which she
resisted. The Learned Single Judge concludes that the evidence led by the
husband with regard to cruelty of the wife is not such that he can be granted a
decree of divorce under Section 13 of the Hindu Marriage Act. At the same time,
adverting to the behaviour of wife the Learned Single Judge observed as
have considered the contentions of the parties with reference to the documents
and first of all I must say here that respondent had crossed "Lakshman
Rekha". I do not deny that a woman has no rights after the lawful
expects love and affection, financial and physical security, equal respect and
lots more but at the same time, the wife must remain within the limits. She
should not perform her acts in such a manner that it may bring incalculable
miseries for the husband and his family members She should not go to hat extent
that it may be difficult for her to return from that point."
The final conclusion reached by the Learned Single Judge is as
have made an independent assessment of the oral evidence and am of the opinion
that both the parties are at fault. The respondent exceeded the limits of
decency when she went to the extent of lodging a false FIR and when she tried
to humiliate the appellant in the eye of his superiors by writing a very damaging
letter Ex.PW2/1 without knowing its consequences."
In view of the aforesaid conclusions the Learned Single Judge
granted the alternative relief to the husband by passing a decree for judicial
separation under Section 10 of the Hindu Marriage Act. This decree was passed
with the hope that the parties would ponder upon the situation and may be able
to re-unite for the welfare of the child. If, on the other hand, the parties do
not reconcile within the statutory period of one year it will be open to either
of them to seek a decree of divorce.
Aggrieved by the aforesaid judgment the wife went in appeal before
the Division Bench in LPA No.1625/01. The Division Bench noticed the extensive
pleadings as well as the evidence led by the parties. On a re- evaluation of
the evidence the Division Bench concluded that all efforts of reconciliation
between parties have failed. They have been living separately since 31.12.1992.
According to the Division Bench the marriage has irretrievably broken down. The
Division Bench sums up the entire matrimonial scene of the parties in the
allegations and counter allegations had flown thick and proper in this case. To
an extent these did receive support by the evidence led by the respective
parties. The learned Single Judge chose a middle-path by holding that both the
parties were at fault and accordingly granted decree of judicial separation
instead of divorce.
effect and what difference it has made to the lives of parties cannot really be
parties are living separately since 31.12.1992. Though not revealed from the
record but we can assume that efforts must have been made for reconciliation
between the parties at the trial and at the first appellate stage. Both the
parties continue to differ and have refused to patch up. As noticed earlier, we
also failed in our efforts to bring this matrimonial dispute to some agreed
left of this marriage? Both the parties though educated but are still standing
firm on their respective stands. They both seem to be totally unconcerned about
their young child and have continued with their combatant attitude without any
remorse. This marriage, if we may say, has irretrievably broken down. That of
course cannot be a ground for granting divorce between this fighting couple. No
wonder, the Hon'ble Supreme Court in a latest decision in Naveen Kohli vs.
Neelu Kohli, 2006 (3) Scale 252 has made a recommendation to the executive to
provide this as a legal ground for divorce. Till the law is amended, we will
remain handicapped to act even in those cases where one finds that a marriage
just cannot work and existence thereof is nothing but an agony for both the
such, are required to decide if the allegations of cruelty made by the
respondent were proved or not."
While reappreciating evidence the Division Bench notices the
averments made by the wife in paragraphs 13 and 31 of the Statutory Complaint
dated 10.12.1993 wherein she had stated as follows:
On 2.12.1991, my husband started behaving in a strange manner throwing the
household articles and clothes all around in the room and also mimicking the
sound different animals and some times barking like a dog. I was not only
stunned but also shocked because I had never seen a human being behaving that
way even if very heavily drunk as he was most of the time I remained in his
company. I was not allowed to touch anything which belong to him.
told my mother-in-law, she warned me to ensure that I obeyed all orders given
to me, either my husband or in laws."
My health started deteriorating. My mind was disturbed to the extreme. Now
another form of torture, unnatural sex. He would thrust on me at odd hours. I
was no longer a human being but a slave to his wild passions."
It is also observed that the wife has not denied the aforesaid
averments while giving her evidence. She had in fact further elaborated the
allegation of sodomy made by her in the complaint. The conclusion recorded by
the Division Bench is as follows:
have given our thoughtful consideration to the while issue. It cannot be
disputed that the appellant had made the averments in paras 13 and 31 of the
complaints, which have been reproduced above. She has also not denied the same,
rather while giving her evidence, she had further elaborated the allegations of
sodomy made by her in the complaint. Wife cannot deny that she had compared her
husband to a barking dog that she also made allegations against him for having
behaved in a strange manner. She had also referred to him as heavy drunkard.
Even if we leave aside the other allegations as made by the husband, we think
that describing husband as dog and mimicking as animals and making allegations
of sodomy would be enough to say that these amounted to cruelty on her part
towards her husband. It cannot be denied that the wife had lodged various
complaints and criminal proceedings against the respondent- husband. FIR under
sections 498-A and 406 IPC was got registered by the wife. Respondent- husband,
however, earned acquittal in this case.
complaint filed before the Police Station Civil Lines, Meerut ended in dropping
of the proceedings. Yet in another FIR got registered under Sections 417, 419
and 420 IPC, the respondent-husband was discharged. The record also reveals
that still another FIR was got registered under Sections 354 and 506 read with
Section 34 IPC on 18.8.1999 against the father- in-law, an Advocate and son of
an Advocate by the appellant-wife. We think that this conduct would exceed all
bounds of moderation. A daughter-in-law making an allegation against her old
and infirm father-in-law for molesting her would certainly be an intolerable
behaviour, which can be termed nothing but an act of immense cruelty for a son,
who was none else than the husband of such complaint-wife. This FIR was quashed
on 20.3.2002. Seeing the cumulative effect of all these allegations, we would
not have any hesitation to hold that the allegations of cruelty made by the
respondent- husband stand established."
Since the allegation of cruelty made by the husband had been
accepted, the Division Bench further observed as follows:
would, accordingly, hold that the finding of the learned Single Judge in
grating partial relief and that of the trial Judge in declining the relief of
divorce cannot be sustained. We would, accordingly, set aside both the
judgments and hold that the cruelty alleged by the respondent husband stands
proved. As a result, we will dismiss the appeal and modify the judgment of the
learned Single Judge to hold that the decree of divorce prayed by the
respondent-husband is granted."
aforesaid judgment has been challenged by the wife in the present appeal.
We have heard the counsel for the parties. Ms. Kamini Jaiswal, appearing
for the appellant, submitted that order passed by the High Court could not have
been passed in an appeal filed by the wife. The husband had not filed any
appeal. Both the courts below had given concurrent findings that that the
allegations of the husband about cruelty of the wife have not been proved.
These findings were based on a thorough evaluation of the evidence by the Trial
Court as well as the learned Single Judge of the High Court. The Division Bench
reversed the findings without any recording any independent reasons. Learned
Counsel made a reference to the observations of the Trial Court wherein it has
been observed that averments made in paragraph 13 would not amount to calling
her husband a dog. The District Judge had observed "to say that a person
started barking like a dog and that that person is a dog are two different
things. In Para 13 of exh. PW2/1, the respondent only speaks about unhuman
behaviour of her husband and she cannot be taken as addressing her husband as
dog in this paragraph".
The Trial Court also observed that the allegations made in
paragraph 31 of the Statutory Complaint about unnatural sex cannot be equated
with sodomy. The Trial Court also came to the conclusion that it is a case of
broken marriage. However, in the absence of a ground under Section 13 of the
Hindu Marriage Act where a decree of divorce can be founded on the proof of
irretrievable broken marriage, it would not be a ground to dissolve the
marriage. It is also pointed out that these findings were not rejected by the
Appellate Court. According to the learned counsel on this short ground the
judgment of the Division Bench is liable to be set aside.
On the other hand, Mr. Rajender Kumar, appearing for the husband
submitted that the High Court possibly could not have granted the decree on the
basis of irretrievable break down of marriage.
the High Court has granted the decree of divorce upon re- appreciation of the
evidence and recording an independent finding that the conduct of the wife amounts
to cruelty which would entitle the husband to a decree of divorce. According to
the learned counsel substantial justice has been done between the parties and
the judgment does not call for any interference. It has also been pointed out
by the learned counsel that, a petition was filed for divorce on the basis of
the decree of judicial separation which had been granted by the learned Single
Judge. However proceedings in the aforesaid case have been kept in abeyance due
to the pendency of the appeals in the High Court and this Court. Learned
counsel submitted that there is absolutely no room for reconciliation between
the parties. Therefore, the judgment of the High Court need not be reversed at
We have considered the submissions made by the learned counsel.
Court as well as the Appellate Court have both concluded that the behaviour of
the husband as well as the wife falls short of the standard required to
establish mental cruelty in terms of Section 13(1) (i-a).
At this stage we may notice the observations made by this Court in
the case of Naveen Kohli vs. Neelu Kohli (2006) 4 SCC 558. In this case the
Court examined the development and evolution of the concept of mental cruelty
in matrimonial causes. In paragraph 35 it is observed as follows:
The petition for divorce was filed primarily on the ground of cruelty. It may
be pertinent to note that, prior to 1976 amendment in the Hindu Marriage Act,
1955 cruelly was not a ground for claiming
divorce under the Hindu Marriage Act. It was only a ground for claiming
judicial separation under Section 10 of the Act.
1976 amendment, cruelty was made a ground for divorce and the words which have
been omitted from Section 10 are "as to cause a reasonable apprehension in
the mind of the petitioner that it will be harmful or injurious for the
petitioner to live with the other party".
it is not necessary for a party claiming divorce to prove that the cruel
treatment is of such a nature as to cause an apprehension-reasonable
apprehension - that it will be harmful or injurious for him or her to live with
the other party."
The classic example of the definition of cruelty in the pre-1976
era is given in the well known decision of this Court in the case of N.G.Dastane
vs. S. Dastane (1975) 2 SCC 326, wherein it is observed as follows:
enquiry has to be whether the conduct charged as cruelty is of such a character
as to cause in the mind of the petitioner as reasonable apprehension that it
would be harmful or injurious for him to live with the respondent".
This is no longer the required standard. Now it would be
sufficient to show that the conduct of one of the spouses is so abnormal and
below the accepted norm that the other spouse could not reasonably be expected
to put up with it. The conduct is no longer required to be so atrociously
abominable which would cause a reasonable apprehension that it would be harmful
or injurious to continue the cohabitation with the other spouse. Therefore to
establish cruelty it is not necessary that physical violence should be used.
However continued ill-treatment cessation of marital intercourse, studied
neglect, indifference of one spouse to the other may lead to an inference of
cruelty. However in this case even with aforesaid standard both the Trial Court
and the Appellate Court had accepted that the conduct of the wife did not
amount to cruelty of such a nature to enable the husband to obtain a decree of
We may notice here the observations made by this Court in the case
of Shobha Rani vs. Madhukar Reddi (1988) 1 SCC 105 wherein the concept of
cruelty has been stated as under:
word "cruelty" has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i-a) of the Act in the
context of human conduct or behaviour in relation to or in respect of
matrimonial duties or obligations. It is a course of conduct of one which is
adversely affecting the other. The cruelty may be mental or physical,
intentional or unintentional. If it is physical, it is a question of fact and
degree. It if it mental, the enquiry must begin as to the nature of the cruel
treatment and then as to the impact of such treatment on the mind of the
spouse. Whether it caused reasonable apprehension that it would be harmful or
injurious to live with the other, ultimately, is a matter of inference to be
drawn by taking into account the nature of the conduct and its effect on the
complaining spouse. There may, however, be cases where the conduct complained
of itself is bad enough and per se unlawful or illegal. Then the impact or the
injurious effect on the other spouse need not be enquired into or considered.
In such cases, the cruelty will be established if the conduct itself is proved
or admitted. The absence of intention should not make any difference in the
case, if by ordinary sense in human affairs, the act complained of could otherwise
be regarded as cruelty. Intention is not a necessary element in cruelty. The
relief to the party cannot b e denied on the ground that there has been no
deliberate or willful ill-treatment."
In the case of V. Bhagat vs. D. Bhagat (1994) 1 SCC 337, this
Court while examining the concept of mental cruelty observed as follows:
Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct
which inflicts upon the other party such mental pain and suffering as would
make it not possible for that party to live with the other. In other words,
mental cruelty must be of such a nature that the parties cannot reasonably be
expected to live together. The situation must be such that the wronged party
cannot reasonably be asked to put up with such conduct and continue to live
with the other party. It is not necessary to prove that the mental cruelty is
such as to cause injury to the health of the petitioner. While arriving at such
conclusion, regard must be had to the social status, educational level of the
parties, the society they move in, the possibility or otherwise of the parties
ever living together in case they are already living apart and all other
relevant facts and circumstances which it is neither possible nor desirable to
set out exhaustively. What is cruelty in one case may not amount to cruelty in
another case. It is a matter to be determined in each case having regard to the
facts and circumstances of that case. If it is a case of accusations and
allegations, regard must also be had to the context in which they were
Taking into consideration the conduct of the parties over a period
of time, the Trial Court as well as the Appellate Court concluded that the
husband had failed to establish cruelty on the part of the wife which will be
sufficient to grant a decree of divorce.
The Appellate Court further came to the conclusion that since both
the parties made extremely serious allegations, it would be appropriate as the
parties were not compelled to live together. The Appellate Court came to the
conclusion that it would be more appropriate to give the couple some time to
ponder over the issue especially keeping in view the welfare of their daughter.
If in due course they manage to reconcile their differences the decree of judicial
separation would be of no consequence.
other hand, if the parties continued with their adamant attitudes it would be
possible for either party to seek dissolution of the marriage on the basis of
the aforesaid decree of judicial separation.
As noticed earlier the husband did not challenge the aforesaid
decree of the Appellate Court, he was content to wait for one year and there
after seeking decree of divorce. In fact upon the expiry of one year he has
actually filed the necessary proceedings seeking decree of divorce in the Court
of District Judge, Gurgaon on 9.5.2002. These proceedings are still pending.
On the other hand the wife had filed the Latest Patent Appeal
challenging the grant of decree of judicial separation to the husband by the
Appellate Court. We are of the opinion that the High Court erred in granting a
decree of divorce to the husband. She had come in appeal before the Division
Bench complaining that the Appellate Court had wrongly granted the decree of
judicial separation even after concurring with the findings of the Trial Court
that the husband had failed to establish cruelty by the wife. Therefore even if
the appeal had been dismissed, the findings recorded by the Trial Court in her
favour would have remained intact. The effect of the order passed by the
Division Bench is as if an appeal of the husband against the decree of judicial
separation has been allowed. Both the parties had failed to make out a case of
divorce against each other. The husband had accepted these findings. Therefore
he was quite content to wait for the statutory period to lapse before filing
the petition for divorce, which he actually did on 9.5.2002. On the basis of
the proven facts the Trial Court was more inclined to believe the wife, whereas
the learned Single Judge of the High court found both the parties to be at
fault. Hence the middle path of judicial separation had been accepted.
Therefore, it was not a case where it was necessary for the Division Bench to
correct any glaring and serious errors committed by the court below which had
resulted in miscarriage of justice. In our opinion there was no compelling
necessity, independently placed before the Division Bench to justify reversal,
of the decree of judicial separation. In such circumstances it was wholly
inappropriate for the Division of High Court to have granted a decree of
divorce to the husband.
For the aforesaid reasons, we are unable to uphold the judgment
and the decree of the Division Bench. Consequently, we allow the appeal. We set
aside the Judgment and the Order passed by the Division Bench and restore the
Order passed by the learned Single Judge in FAO No. 16-M of 2000.
There shall be no order as to costs.
..........................................J ( V.S. SIRPURKAR )
..........................................J ( SURINDER SINGH
FEBRUARY 10, 2010.