Kameswara Rao Vs. G. Jabilli  Insc 16 (10 January 2002)
Mohapatra & K.G. Balakrishnan K.G. Balakrishnan, J.
husband who had been unsuccessfully fighting litigation for the past more than
15 years for snapping his marital ties with the respondent wife is the
appellant before us. The appellant is double doctorate holder -- one in
Mathematics from Andhra University and another from U.S.A., and had been working in United States during the relevant period. The respondent is a post-
graduate in Home Science and was working as a lecturer in the year 1979. The
appellant came to India in 1979 and gave advertisement in
the newspaper seeking matrimonial alliance from a suitable bride. The relatives
of the respondent responded to the advertisement and there was mutual
consultation between the parties, which led to the marriage of the appellant
with the respondent on 30.7.1979. After the marriage, the appellant and
respondent stayed together for some period and thereafter, the appellant left India for United States. The respondent was asked to join him after having obtained
the visa and completing other formalities. The respondent, after a period of
six months, joined the appellant in United States. It appears that the marital life of the appellant and the
respondent ran into rough weather from the very beginning of their stay in United States. There used to be occasional
quarrel between the parties. A daughter, Sandhya, was born to them on
10.6.1981. In 1982, the appellant, respondent and their daughter Sandhya came
to India, but the appellant returned to United States in November 1982 itself and the
respondent joined him only in April 1983. In January 1985, the respondent along
with her daughter returned to India and it
seems that the misunderstandings between the parties deepened and ultimately
the appellant filed application for divorce under Section 13 of the Hindu
Marriage Act, 1955 alleging that after the solemnization of their marriage, the
respondent treated the appellant with cruelty.
respondent contested the proceedings and denied all the allegations made by the
appellant in the petition and also made counter-allegations alleging that the
appellant was responsible for wrecking the marriage. Parties on either side
examined witnesses to substantiate their allegations. The learned Family Court
Judge after assessing the rival contentions and the evidence adduced by the parties,
came to the conclusion that the respondent had treated the appellant with
mental cruelty and, therefore, the appellant was entitled to get a decree for
dissolution of marriage. This was challenged by the respondent before the Hon'ble
High Court of Andhra Pradesh and the Division Bench of the High Court reversed
the decision of the Family Court holding that the appellant was at fault and he
had been trying to take advantage of his own wrongs; hence, he was not entitled
to get a decree in his favour in view of Section 23(1)(a) of the Hindu Marriage
Act. The Judgment of the Division Bench is challenged before us.
heard learned Senior Counsel for the appellant, Mr. L. Nageswara Rao and Mr.
M.N. Rao, learned Counsel on behalf of the respondent. The learned senior
Counsel for the appellant contended that there was complete breakdown of the
marriage due to the attitude of the respondent and the appellant was under
severe mental agony and that the various acts committed by the respondent
amounted to mental cruelty and the High Court was not justified in reversing
the finding of the Family Court. The learned Counsel for the respondent, on the
other hand, contended that there were differences of opinion between the
appellant and the respondent on many matters, but the respondent had not done
anything to cause mental pain or agony to the appellant. It was argued that the
Family Court Judge passed his decision based on a solitary incident and,
therefore, the same had been rightly reversed by the High court.
proper appreciation of the disputes between the parties, it is necessary to
consider the various allegations made by the appellant in his petition and also
the counter-allegations made by the respondent in her reply.
appellant alleged that respondent entered into marriage with the appellant
because of the persuasion of her sisters and brother and that the respondent
was not taking any interest or co-operating to have a happy married life. The
appellant alleged that the respondent joined him in the United States after a period of six months
unwillingly, and right from the beginning of her life in United States, she picked up quarrel with the
appellant and created scenes on many occasions. The appellant alleged that it
was known to the Indian community, mainly to the people of Andhra Pradesh, who
had settled down in and around the area where the appellant was residing, that
the respondent was not having a good relationship with the appellant. He also
alleged that the respondent was not doing any household work and the appellant
had to do all the work himself and his brother Ravi, who was staying with him, was helping him. The appellant alleged that
the respondent used to insult the appellant in the presence of his friends and
guests and that the respondent was taking no interest in sharing bed with the
appellant and this caused mental and physical agony to the appellant.
respondent had denied all these allegations made by the appellant in the
petition and she also made counter-allegations. But it is pertinent to note
that the respondent has no case that they were having a happy married life and
the attempt of the respondent was to put the blame at the doorstep of the
stated that the appellant had no interest to live with the respondent and was
all the time attending parties, watching TV and playing cards and the
respondent was completely neglected by the appellant. The respondent alleged
that the appellant used to treat her as an intruder. The respondent also stated
that she was not given proper medical aid when she was in labour pain and had
to give pre-mature birth to the baby without any medical assistance.
true that the Family Court rightly found that all the allegations made by the
appellant in the petition were not satisfactorily substantiated by him. But
nevertheless, some glaring facts are to be noted in this case. The married life
of the appellant and respondent started in 1979 and right from the very
beginning, the parties were under severe mental stress. Both the parties
mutually tried to put the blame on each other. In 1982, the appellant, the
respondent and their daughter returned to India. The respondent, however,
refused to accompany the appellant back to the United States, and according to
the appellant, she threw up the visa and other papers at him and joined him in
United States only in 1983 and the subsequent evidence shows that the
respondent had not willingly joined the appellant. She came back to India with
her daughter in 1985. Though the appellant stated that the appellant's nephew, Ramu
received her, she refused to talk to him and left with her own relatives.
respondent has denied these facts. However, it is important to note that the
appellant has alleged that he did not know the whereabouts of the respondent
and his child, at least for some period, after they returned to India. This is evident from the fact that
the appellant wrote two letters to his daughter and these letters had to be
re-directed to the address of the appellant. She was staying at Araku Valley, which was evidently not known to the appellant. The
appellant stated that he suffered severe mental torture and, only after some
searching inquiry, he could come to know that she was staying with her sister
at Araku Valley. The appellant along with his two relatives went to Araku Valley to persuade the respondent to join the society of the
appellant, but the very entry of the appellant and his relatives to the house
was prevented by the respondent and later, only at the intervention of her
sister, Suryakantham, they were permitted to enter the house. It may be noticed
that the respondent and her child left United States in January 1985. The nature of the treatment meted out to
the appellant by the respondent, even when he was meeting her after an interval
of one year, is satisfactorily proved by the evidence of PW4 and his evidence
was completely accepted by the Family Court Judge. The appellant being highly
educated person having a position in life must have felt serious humiliation.
The incident also shows that the respondent did not extend courteous behaviour
to the appellant even in the presence of others. The conduct of the respondent
assumes importance as this incident happened when they both were meeting each
other after a long lapse of time.
important incident, which found favour with the Family Court is that the
respondent had filed a criminal complaint before the police alleging that she
was beaten by the appellant and his mother. The appellant and his mother were
called to the police station and they had to be there for more than 10 hours.
explanation offered by the respondent for this incident is far from
satisfactory. According to the respondent, she was being ill-treated by the
appellant and his mother, and on one day, while preparing the breakfast when
she used the blender for grinding the pulses, her mother-in-law got angry and
scolded her saying that she had not brought any article from her house, so she
should not have used the blender. Further, the respondent alleged that the
appellant and his mother threw away all her bags and clothes and the
appellant's mother asked her son to get the respondent out and the appellant
became wild and gave a blow to the respondent with a sharp-edged weapon and it
was under those circumstances that with bleeding injuries, she had gone to the
police station and filed a complaint before the police. It is important to note
that police did not register any case evidently as it was a domestic quarrel
and not of a serious nature, and the incident shows the innate lack of
self-control which had driven the respondent to this exorable conduct.
the humiliation and agony suffered by the appellant and his mother, considering
their status in life and the social circumstances, was too much.
Section 13(1) (ia) of the Hindu Marriage Act, on a petition presented either by
the husband or wife, the marriage could be dissolved by a decree of divorce on
the ground that the other party has, after the solemnization of the marriage,
treated the petitioner with cruelty.
is not defined in the Act. Some of the provisions of the Hindu Marriage Act
were amended by Hindu Marriage Laws (Amendment) Act, 1976.
to the amendment, 'cruelty' was one of the grounds for judicial separation
under Section 10 of the Act. Under that Section, "cruelty" was given
an extended meaning by using an adjectival phrase, viz. "as to cause
reasonable apprehension in the mind of the petitioner that it will be harmful
or injurious for the petitioner to live with the other party". By the
Amendment Act of 1976, "cruelty" was made one of the grounds for
divorce under Section 13 and relevant provision reads as follows:-
"Divorce (1) Any marriage solemnized, whether before or after the
commencement of the Act, may, on a petition presented by either the husband or
the wife, be dissolved by a decree of divorce on the ground that the other
party (i) .
has, after the solemnization of the marriage, treated the petitioner with
cruelty, or (ib) ..
" The omission of the words, which described 'cruelty' in the unamended
Section 10 of the Hindu Marriage Act, has some significance in the sense that
it is not necessary to prove that the nature of the cruelty is such as to cause
reasonable apprehension in the mind of the petitioner that it would be harmful
for the petitioner to live with the other party. English Courts in some of the
earlier decisions had attempted to define "cruelty" as an act which
involves conduct of such a nature as to have caused damage to life, limb or
health or to give rise to reasonable apprehension of such danger. But we do not
think that such a degree of cruelty is required to be proved by the petitioner
for obtaining a decree for divorce. Cruelty can be said to be an act committed
with the intention to cause sufferings to the opposite party. Austerity of
temper, rudeness of language, occasional outburst of anger, may not amount to
cruelty, though it may amount to misconduct.
Court, in Dr. N. G. Dastane vs. Mrs. S. Dastane AIR 1975 SC 1534 held at page
154, paragraph 34 as follows:- "We do not propose to spend time on the
trifles of their married life. Numerous incidents have been cited by the
appellant as constituting cruelty but the simple trivialities which can truly
be described as the reasonable wear and tear of married life have to be
ignored. It is in the context of such trivialities that one says that spouses take
each other for better or worse. In many marriages each party can, if it so
wills, discover many a cause for complaint but such grievances arise mostly
from temperamental disharmony.
disharmony or incompatibility is not cruelty and will not furnish a cause for
the dissolution of marriage. We will therefore have regard only to grave and
weighty incidents and consider these to find what place they occupy on the
marriage canvas." The Court has to come to a conclusion whether the acts
committed by the counter-petitioner amount to cruelty, and it is to be assessed
having regard to the status of the parties in social life, their customs,
traditions and other similar circumstances. Having regard to the sanctity and
importance of marriages in a community life, the Court should consider whether
the conduct of the counter- petitioner is such that it has become intolerable
for the petitioner to suffer any longer and to live together is impossible, and
then only the Court can find that there is cruelty on the part of the
counter-petitioner. This is to be judged not from a solitary incident, but on
an overall consideration of all relevant circumstances.
Court had an occasion to consider this question in some cases.
In S. Hanumantha
Rao vs. S. Ramani 1999 (3) SCC 620, the husband alleged that the respondent
wife had no interest in the marriage life and within a period of two months of
the marriage, she went back to her parents house and stayed there for two and a
half months. After about six months, she took off her mangalsutra and threw it
at the appellant. The respondent wife explained that she removed the mangalsutra
in privacy and handed over the same to the appellant on his own request. This
Court held that removal of mangalsutra would not constitute cruelty within the
meaning of Section 13(1)(ia).
In V. Bhagat
vs. D. Bhagat(Mrs.) 1994(1) SCC 337, the husband was a practicing lawyer and
the respondent wife was working in a television company at the time of
marriage. They had a grown up son and a daughter.
alleged adultery on the part of the respondent. Respondent wife denied the
allegations and she also suggested that the appellant was suffering from some
mental hallucination. This Court, in paragraph 16 at page 347, observed as
under:- "The mental cruelty in Section 13(1)(ia) 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.
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.
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 be had to the context in which they
were made." The case of the appellant that he had been subjected to cruelty
by the wife is not put as such solely on the basis of one or two incidents.
Their marriage life started in 1979 with so many ups and downs. Both of them
did not live together for a longer period as happily married couple. The
appellant has succeeded in proving that the attitude of the respondent was not
cordial and cooperative. The respondent also alleged that their marriage life
was not happy and cheerful.
way in which the appellant was treated by the respondent when he visited her
sister's house at Araku Valley and the subsequent filing of the criminal
complaint whereby the appellant was subjected to severe humiliation would go to
show that the respondent was not prepared to extend any kind of cooperation to
the appellant. The respondent's allegation that she was physically assaulted by
the appellant and his mother is not very convincing. The fact that there was a
bleeding injury on her hand was taken note of seriously by the High Court but
the question is, in those circumstances, would an ordinary prudent person rush
to the police station and file a complaint to see that her husband and his
mother be kept in police custody for unduly long hours. These incidents throw
an insight into her past conduct when she was staying with the appellant. The mental
cruelty faced by the appellant is to be assessed having regard to his status in
his life, educational background, the environment in which he lived. The
appellant could have suffered traumatic experience because of the police
complaint and the consequent loss of reputation and prestige in the society.
Married life of the appellant with the respondent had never been happy.
appellant would say that from 1985 onwards, he has not been having conjugal
relationship with the respondent and even prior thereto the respondent was not
properly discharging her marital obligations.
High Court has held in the impugned judgment that the appellant himself was
responsible for many of the unhappy incidents and therefore, he shall not be
allowed to take advantage of his own fault and the decree for dissolution of
marriage shall be denied to him in view of Section 23(1)(a) of the Hindu
Marriage Act. We do not think that the High Court was justified in holding this
view. The decision was based on the fact that the appellant had executed a
power of attorney in favour of his brother-in-law, Rama Rao, authorizing him to
take steps for seeking divorce in the year 1982.
appellant admitted having executed that power of attorney. According to the
appellant, the respondent, after she came to India in 1982, refused to come back to United States even after much persuasion and
under those circumstances, he executed the power of attorney, but later on came
to know that power of attorney holder could not file an application. That would
only show that right from 1982, the relationship between the appellant and the
respondent was not good and the parties thought of divorce. But the appellant
did not file any application in 1982. As regards the incident relating to
police complaint also, in his statement the appellant had admitted that the
respondent had a scratch injury. But there is nothing in the evidence to show
that either the appellant or his mother caused any serious injury to the
not think that this is a case, where the appellant could be denied relief by
invoking Section 23(1)(a) of the Hindu Marriage Act.
other hand, various incidents brought out in the evidence would show that the
relationship between the parties was irretrievably broken, and because of the
non-cooperation and the hostile attitude of the respondent, the appellant was
subjected to serious traumatic experience which can safely be termed as
'cruelty' coming within the purview of Section 13(1)(ia) of the Hindu Marriage
we hold that the appellant is entitled to the decree for dissolution of
marriage under Section 13(1)(ia) of the Hindu Marriage Act. However, we make it
clear that any order of maintenance passed in favour of the respondent will
stand unaffected by this decree for dissolution of the marriage. We also make
it clear that if any rights have been accrued to the respondent in the joint
assets of both, she would be at liberty to take appropriate action to enforce
appeal is allowed. Parties to bear their respective costs.