Suman Kapur Vs.
Sudhir Kapur  INSC 1910 (7 November 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6582 OF 2008 ARISING OUT
OF SPECIAL LEAVE PETITION (CIVIL) NO. 10907 OF 2007 SUMAN KAPUR ... APPELLANT
C.K. THAKKER, J.
present appeal is filed by the appellant-wife being aggrieved and dissatisfied
with the decree of divorce dated August 07, 2004 passed by the Additional
District Judge, Delhi in HMA No. 322/2001/96 and confirmed by the High Court of
Delhi on January 29, 2007 in Matrimonial Appeal No. 62 of 2004.
facts in nutshell are that the appellant Suman Kapur is the wife and respondent
Sudhir Kapur is the husband. The matrimonial alliance was entered into between
the parties as per Hindu rites and rituals in Delhi on March 04, 1984. It was
the case of the appellant that both the parties were friends from childhood and
were knowing each other since 1966. They had also studied together in the same
school. They were very close since 1974 and after a friendship of more than a
decade, they decided to marry. The marriage was inter-caste marriage. Though
initially parents of both the parties were opposed to the marriage,
subsequently, they consented. The parties have no issue from the said wedlock.
appellant has a brilliant academic record and has been the recipient of the
prestigious Lalor Foundation Fellowship of United States of America (USA),
offered to young scientists for outstanding performance in 3 the area of
research. According to her, at the time of her marriage, she was in employment
with the Department of Bio-chemistry in the All India Institute of Medical
Sciences (AIIMS) and was also pursuing her Ph.D.
is the case of the appellant that she conceived for the first time in 1984,
within a period of about one month of the marriage, but on account of being
exposed to harmful radiations as a part of lab work of her Ph.D. thesis, she
decided to terminate the pregnancy. The appellant asserted that it was done
with the knowledge and consent of the respondent-husband.
in 1985, she conceived. But even that pregnancy was required to be terminated
on the ground of an acute kidney infection for which she had to undergo an IVP,
which entailed six abdominal X-rays and radiometric urinary reflect test with
radioactive drinking dye. She claimed that even the second pregnancy was
terminated with 4 the knowledge and consent of the respondent- husband.
to the appellant, third time she became pregnant in 1989, but she suffered
natural abortion on account of having a congenitally small uterus and thus
prone to recurrent miscarriages.
is the case of the appellant that though she was well-placed and having good
job in AIIMS in Delhi, only with a view to accompany her husband who was
serving in Bombay, she left the job. In 1988, the parties together left for
USA. The appellant was awarded Lalor Foundation Fellowship in USA for which she
had to move to Kansas city and could not join the respondent-husband at the
place of his work.
case of the respondent-husband, on the other hand was that since solemnization
of marriage between the parties, the attitude, conduct and behaviour of the
appellant-wife towards the respondent as well as his family 5 members was
indignant and rude. It was alleged by him that first pregnancy was terminated in
1984 by the appellant-wife without consent and even without knowledge of the
respondent. Same thing was repeated at the time of termination of second
pregnancy in 1985. He was kept in complete dark about the so-called miscarriage
by the appellant-wife in 1989. The respondent was thus very much aggrieved
since he was denied the joy of feeling of fatherhood and the parents of the
respondent were also deprived of grand-parenthood of a new arrival. It was also
contended by the respondent that the attitude of the appellant-wife towards her
in-laws was humiliating. Several instances were cited in support of the said
conduct and behaviour by the husband.
respondent-husband, therefore, filed HMA No. 322/2001/96 in the Court of
Additional District Judge, Delhi under Section 13(1)(ia) and (ib) of the Hindu
Marriage Act, 1955 (hereinafter referred to as `the Act') for 6 getting
divorce from the appellant-wife. Two grounds were taken by the
respondent-husband in the said petition, i.e. (i) cruelty and (ii) desertion.
It was alleged by the husband that the wife was all throughout conscious,
mindful and worried of one thing and that was her career. In view of her
thinking only in one direction, she deprived the respondent-husband of conjugal
rights and matrimonial obligations.
She also treated the
family members of the respondent-husband with cruelty. She, without consent or
even knowledge of the respondent- husband, got her pregnancy terminated twice
in 1984 as well as in 1985 and falsely stated that there was natural
miscarriage at the time of third pregnancy in 1989. At no point of time, she
had taken consent of the husband nor even she had informed about the
termination of pregnancy or about miscarriage to the respondent. At several
occasions, she had stated that she was not interested at all in living with the
respondent-husband and to 7 perform marital obligations. She had made it
explicitly clear to the respondent-husband that she was not willing to be a
mother at the cost of her career. She had specifically told the
respondent-husband that if he was very much interested and eager to be a father
and his mother (respondent's mother) wanted to be a grand-mother, he could
enter into marriage tie with any other woman, but the appellant-wife would not
give up her career. She had also stated that she had no objection if the
respondent adopts a child which action would not adversely affect her career.
She had issued a notice to the respondent-husband that it would be better that
they would peacefully separate from each other so that the respondent-husband
may be able to fulfil the wishes of his parents and the appellant-wife may
pursue her future career. The respondent- husband, therefore, submitted that
the case attracted both the provisions, viz. (i) cruelty on the part of the
wife under clause (ia) of 8 sub-section (1) of Section 13 and (ii) desertion
of matrimonial home and refusal to perform marital obligations falling under
clause (ib) of sub-section (1) of Section 13 of the Act. On both the grounds,
the respondent- husband was entitled to a decree of divorce.
appellant-wife in her objections denied the allegations of the husband.
According to her, she
was doing her best to please her husband as well as her in-laws.
Precisely for that
purpose, she had left her service in Delhi and joined the husband. It was
admitted that she was in service and was also interested in career as she was
well- educated lady and wanted to contribute to the society. But that did not
mean that she was not performing her marital obligations. It was an admitted
fact that immediately after her marriage, she conceived and she was very happy
about it. Unfortunately, however, for the circumstances beyond her control, she
was compelled to get the pregnancy terminated with the knowledge and consent
of her husband. The same thing was repeated in 1985. In 1989, there was natural
miscarriage. She also contended that she had to go to USA for receiving
prestigious award of Lalor Foundation Fellowship. According to her, instead of
being happy about the progress of the wife, the husband had initiated the
present proceedings with jealousy and hence, he was not entitled to a decree of
divorce. Even otherwise, there was no cruelty on her part. According to the
wife, during regular intervals, the parties used to stay together and the
appellant had never refused to perform her matrimonial obligations or even had
shown her intention to deprive the husband of conjugal rights. It was,
therefore, submitted that the husband was not entitled to the relief sought by
him and the petition was liable to be dismissed.
trial Court after hearing the parties held that the husband was not entitled to
a decree of divorce on the ground that the 1 wife had deserted the husband for
a continuous period of not less than two years immediately preceding the
presentation of the petition.
He, however, held
that it was fully established by the husband that there was cruelty on the part
of the wife. The wife without the knowledge and consent of the husband got her
pregnancy terminated twice - firstly in 1984 and secondly in 1985. The husband
was also not informed about natural miscarriage in 1989. A finding was also
recorded by the trial Court that the wife was not ready and willing to perform
matrimonial obligations and she always attempted to stay away from her husband
by depriving conjugal rights of the husband. It was, therefore, a case of
mental cruelty. The trial Court also referred to several letters written by
wife to the husband, and notice issued by the wife through an advocate which
went to show that she was not interested in performing marital obligations and
continuing marital relations with the husband. The Court 1 also relied upon
various entries made by the appellant-wife in her diary which suggested that
all throughout she was worrying about her future and her career. For wife,
according to the trial Court, her career was the most important factor and not
matrimonial obligations. The trial Court, therefore, held that the case was
covered by mental cruelty which was shown by the wife towards the husband and
the husband was entitled to a decree of divorce on that ground.
aggrieved by the decree passed by the trial Court, the wife preferred an appeal
in the High Court of Delhi. The High Court again appreciated the evidence on
record and confirmed the decree of divorce passed by the trial Court. The High
Court, however, held that it was not necessary for the Court to consider mental
cruelty so far as termination of pregnancy was concerned, since in the opinion
of the High Court, even otherwise from the letters and entries in diary, it was
proved that there was mental cruelty on the part of the wife. Accordingly, the
decree of divorce passed by the trial Court was confirmed by the High Court.
said order has been challenged in the present proceedings. On July 16, 2007,
notice was issued by this Court. The respondent appeared and affidavit-in-reply
and affidavit-in-rejoinder were thereafter filed.
nature of controversy, the Registry was directed to place the matter for final
hearing and accordingly, the matter has been placed before us.
have heard the learned counsel for the parties.
learned counsel for the appellant contended that both the courts had committed
an error of law in granting a decree of divorce against the appellant-wife. It
was submitted that the courts below ought not to have held that there was
mental cruelty on the part of the appellant-wife and the respondent-husband 1
was entitled to a decree of divorce on that ground. It was also submitted that
once the High Court has not considered the allegation as to termination of
pregnancy without the consent of the husband, no decree for divorce on the
ground of mental cruelty could have been passed by it. Even if all the
allegations leveled against the wife had been accepted, they were in the nature
of `normal wear and tear' in a matrimonial life of a couple which would not
fall within the mischief of clause (ia) of sub- section (1) of Section 13 of
the Act and the orders passed by the courts below are liable to be set aside.
It was further submitted that even otherwise, the wife is entitled to an
appropriate relief from this Court inasmuch as from the evidence, it is clearly
established that the High Court confirmed the decree passed by the trial Court
on January 29, 2007 and before the period of filing Special Leave to Appeal to
this Court expires, the respondent- husband entered into re-marriage with a
third 1 party and from the said wedlock, he is having an issue. It was,
therefore, submitted that the husband has created a situation which had
seriously prejudiced the appellant and the Court may not allow the
respondent-husband to take undue advantage of the situation created by him.
learned counsel for the respondent-husband, on the other hand, supported the
decree passed by the trial Court and confirmed by the High Court. It was urged
that the trial Court on the basis of evidence adduced by the parties recorded a
finding of fact that the conduct and behaviour of the wife was in the nature of
mental cruelty and accordingly allowed the petition filed by the husband. The
High Court, though convinced on all grounds, did not think it fit to enter into
correctness or otherwise of the finding recorded with regard to illegal
termination of pregnancy by wife without the knowledge and consent of the
husband since it was convinced 1 that even otherwise on the basis of evidence
on record, mental cruelty of the wife was established. It was not necessary for
the High Court to consider and to record a finding as to illegal termination of
pregnancy by wife since the decree passed by the trial Court could be
confirmed. As far as mental cruelty is concerned, on the basis of other
evidence and material on record, a finding had been recorded by the trial
Court. The said finding was a finding of fact which was confirmed by the High
Court. In exercise of jurisdiction under Article 136 of the Constitution, this
Court will not interfere with the said finding and hence the appeal deserves to
re-marriage by the husband, it was stated that after the decree of divorce
passed by the trial Court, the husband did not re-marry. But the decree of
divorce was confirmed by the High Court. The husband thereafter had taken the
action which cannot be said to be illegal or otherwise unlawful. The wife,
therefore, cannot take a technical contention that the husband should have
waited till the period of filing Special Leave to Appeal to this Court would
expire. It was, therefore, submitted that the appeal deserves to be dismissed.
heard the learned counsel for the parties, on the facts and in the
circumstances of the case, in our opinion, it cannot be said that by recording
a finding as to mental cruelty by the wife against the husband, the Courts
below had committed any illegality.
13 of the Hindu Marriage Act provides for grant of divorce in certain cases.
It enacts that any
marriage solemnized whether before or after the commencement of the Act may be
dissolved on a petition presented either by the husband or by the wife on any
of the grounds specified therein. Clause (ia) of sub- section (1) of Section 13
declares that a decree of divorce may be passed by a Court on 1 the ground
that after the solemnization of marriage, the opposite party has treated the
petitioner with cruelty.
it is well-settled that the expression `cruelty' includes both (i) physical
cruelty; and (ii) mental cruelty. The parties in this connection, invited our
attention to English as well as Indian authorities. We will refer to some of
concept of cruelty has been dealt with in Halsbury's Laws of England [Vol.13,
4th Edition Para 1269] as under;
rule in all cases of cruelty is that the entire matrimonial relationship must
be considered, and that rule is of special value when the cruelty consists not
of violent acts but of injurious reproaches, complaints, accusations or taunts.
In cases where no violence is averred, it is undesirable to consider judicial
pronouncements with a view to creating certain categories of acts 1 or conduct
as having or lacking the nature or quality which renders them capable or
incapable in all circumstances of amounting to cruelty; for it is the effect of
the conduct rather than its nature which is of paramount importance in
assessing a complaint of cruelty.
Whether one spouse
has been guilty of cruelty to the other is essentially a question of fact and
previously decided cases have little, if any, value. The court should bear in
mind the physical and mental condition of the parties as well as their social
status, and should consider the impact of the personality and conduct of one
spouse on the mind of the other, weighing all incidents and quarrels between
the spouses from that point of view; further, the conduct alleged must be
examined in the light of the complainant's capacity for endurance and the
extent to which that capacity is known to the other spouse".
Gollins V. Gollins 1964 AC 644:
(1963)2 All ER 966,
Lord Reid stated:
"No one has ever
attempted to give a comprehensive definition of cruelty and I do not intend to
try to do so.
Much must depend on
the knowledge and intention of the respondent, on the nature of his (or her)
conduct, and on the character and physical or mental weakness of the spouses,
and 1 probably no general statement is equally applicable in all cases except
the requirement that the party seeking relief must show actual or probable
injury to life, limb or health".
Pearce also made similar observations;
impossible to give a comprehensive definition of cruelty, but when
reprehensible conduct or departure from normal standards of conjugal kindness
causes injury to health or an apprehension of it, is, I think, cruelty if a
reasonable person, after taking due account of the temperament and all the
other particular circumstances would considered that the conduct complained of
is such that this spouse should not be called on to endure it".
[see also Russell v.
Russell, (1897) AC 395 : (1895-99) All ER Rep 1].
test of cruelty has been laid down by this court in the leading case of N.G.
Dastane v. S. Dastane, (1975)2 SCC 326 thus:
therefore has to be whether the conduct charges as cruelty is of such a
character as to cause in the mind of the petitioner a reasonable apprehension
that it will be harmful or injurious for him to live with the
Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr., (1981) 4 SCC
250, this Court stated that the concept of legal cruelty changes according to
the changes and advancement of social concept and standards of living. It was
further stated that to establish legal cruelty, it is not necessary that
physical violence should be used. Continuous cessation of marital intercourse
or total indifference on the part of the husband towards marital obligations
would lead to legal cruelty.
Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105, this Court examined the
concept of cruelty. It was observed that the term `cruelty' has not been
defined in the Hindu Marriage Act. It has been used in Section 13(1)(ia) of the
Act in the context of human conduct and behavior in relation to or in respect
of matrimonial duties or obligations.
It is a course of
conduct of one spouse which adversely affects the other spouse. The cruelty may
be mental or physical, intentional or unintentional. If it is physical, it is a
question of degree which is relevant. If it is 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 other 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 2 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.
Mens rea is not a necessary element in cruelty. The relief to the party cannot
be denied on the ground that there has been no deliberate or wilful
V. Bhagat v. D. Bhagat (Mrs.), (1994) 1 SCC 337, the Court observed;
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. The situation must be such that the wronged party cannot reasonably
be asked to put up with such unintentional. If it is physical, it is a question
of fact and degree.
If it is 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
be denied on the ground that there has been no deliberate or wilful
ill-treatment or 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 2 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 made".
Court in Chetan Dass v. Kamla Devi, (2001) 4 SCC 250, stated;
matters are matters of delicate human and emotional relationship. It demands
mutual trust, regard, respect, love and affection with sufficient play for
reasonable adjustments with the spouse. The relationship has to conform to the
social norms as well. The matrimonial conduct has now come to be governed by statute
framed, keeping in view such norms and changed social order. It is sought to be
controlled in the interest of the individuals as well as in broader
perspective, for regulating matrimonial norms for making of a well-knit,
healthy and not a disturbed and porous society. The institution of marriage
occupies an important place and role to play in the society, in general.
Therefore, it would not be appropriate to apply any submission of
"irretrievably broken marriage" as a straitjacket formula for grant of
relief of divorce. This aspect has to be considered in the background of the
other facts and circumstances of the case".
cruelty has also been examined by this Court in Parveen Mehta v. Inderjit Mehta
(2002) 5 SCC 706 thus;
"Cruelty for the
purpose of Section 13 (1)(ia) is to be taken as a behavior by one spouse
towards the other, which causes reasonable apprehension in the mind of the
latter that it is not safe for him or her to continue the matrimonial
relationship with the other. Mental Cruelty is a state of mind and feeling with
one of the spouses due to the behavior or behavioral pattern by the other.
Unlike the case of
physical cruelty, mental cruelty is difficult to establish by direct evidence.
It is necessarily a matter of inference to be drawn from the facts and
circumstances of the case. A feeling of anguish, disappointment and frustration
in one spouse caused by the conduct of the other can only be appreciated on
assessing the attending facts and circumstances in which the two partners of
matrimonial life have been living. The inference has to be drawn from the
attending facts and circumstances taken cumulatively. In case of mental cruelty
it will not be a correct approach to take an instance of misbehavior in
isolation and then pose the question whether such behavior is sufficient by
itself to cause mental cruelty. The approach should be to take the cumulative
effect of the facts and circumstances emerging from the evidence on record 2
and then draw a fair inference whether the petitioner in the divorce petition
has been subjected to mental cruelty due to conduct of the other."
A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22, the Court observed as under:
"cruelty" has not been defined in the Act. Cruelty can be physical or
mental. Cruelty which is a ground for dissolution of marriage may be defined as
wilful and unjustifiable conduct of such character as to cause danger to life,
limb or health, bodily or mental, or as to give rise to a reasonable
apprehension of such a danger. The question of mental cruelty has to be
considered in the light of the norms of marital ties of the particular society
to which the parties belong, their social values, status, environment in which
they live. Cruelty, as noted above, includes mental cruelty, which falls within
the purview of a matrimonial wrong. Cruelty need not be physical.
If from the conduct
of the spouse, same is established and/or an inference can be legitimately
drawn that the treatment of the spouse is such that it causes an apprehension
in the mind of the other spouse, about his or her mental welfare then this
conduct amounts to cruelty. In a delicate human relationship like matrimony,
one has to see the probabilities of the case. The concept 2 proof beyond the
shadow of doubt, is to be applied to criminal trials and not to civil matters
and certainly not to matters of such delicate personal relationship as those of
husband and wife. Therefore, one has to see what are the probabilities in a
case and legal cruelty has to be found out, not merely as a matter of fact, but
as the effect on the mind of the complainant spouse because of the acts or
omissions of the other. Cruelty may be physical or corporeal or may be mental.
In physical cruelty, there can be tangible and direct evidence, but in the case
of mental cruelty there may not at the same time be direct evidence. In cases
where there is no direct evidence, Courts are required to probe into the mental
process and mental effect of incidents that are brought out in evidence. It is
in this view that one has to consider the evidence in matrimonial
Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778, the Court said;
"It is settled
by a catena of decisions that mental cruelty can cause even more serious injury
than the physical harm and create in the mind of the injured appellant such
apprehension as is contemplated in the section. It is to be determined on whole
facts of the case and the matrimonial relations between the spouses. To amount
to cruelty, there 2 must be such willful treatment of the party which caused
suffering in body or mind either as an actual fact or by way of apprehension in
such a manner as to render the continued living together of spouses harmful or
injurious having regard to the circumstances of the case.
"cruelty" has not been defined and it has been used in relation to
human conduct or human behaviour. It is the conduct in relation to or in
respect of matrimonial duties and obligations.
It is a course of
conduct and one which is adversely affecting the other. The cruelty may be
mental or physical, intentional or unintentional. There may 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".
was further stated:
depends on its own facts and must be judged on these facts.
The concept of cruelty
has varied from time to time, from place to place and from individual to
individual in its application according to social status of the persons
involved and their economic conditions and other matters.
The question whether
the act complained of was a cruel act is to be determined from the whole facts
and the matrimonial relations between the parties. In this connection, the
culture, temperament and status in life and many other things are the factors
which have to be considered.
The legal concept of
cruelty which is not defined by the statute is generally described as conduct
of such character as to have caused danger to life, limb or health (bodily and
mental) or to give rise to reasonable apprehension of such danger. The general
rule in all questions of cruelty is that the whole matrimonial relations must
be considered, that rule is of a special value when the cruelty consists not of
violent act but of injurious reproaches, complaints, accusations or taunts. It
may be mental such as indifference and frigidity towards the wife, denial of a
company to her, hatred and abhorrence for wife, or physical, like acts of
violence and abstinence from sexual intercourse without reasonable cause. It
must be proved that one partner in the marriage however mindless of the
consequences has behaved in a way which the other spouse could not in the
circumstances be called upon to endure, and that misconduct has caused injury
to health or a reasonable apprehension of such injury. There are two sides to
be considered in case of apprehension of such injury. There are two sides to be
considered in case of cruelty.
From the appellants,
ought this appellant to be called on to endure 3 the conduct? From the
respondent's side, was this conduct excusable? The Court has then to decide
whether the sum total of the reprehensible conduct was cruel. That depends on
whether the cumulative conduct was sufficiently serious to say that from a
reasonable person's point of view after a consideration of any excuse which the
respondent might have in the circumstances, the conduct is such that the
petitioner ought not be called upon to endure."
in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, this Court held;
standard can ever be laid down for guidance, yet we deem it appropriate to
enumerate some instances of human behavior which may be relevant in dealing
with the cases of `mental cruelty'. The instances indicated in the succeeding
paragraphs are only illustrative and not exhaustive.
(i) On consideration
of complete matrimonial life of the parties, acute mental pain, agony and
suffering as would not make possible for the parties to live with each other
could come within the broad parameters of mental cruelty.
3 (ii) On
comprehensive appraisal of the entire matrimonial life of the parties, it
becomes abundantly clear that situation is such that the wronged party cannot
reasonably be asked to put up with such conduct and continue to live with other
(iii) Mere coldness
or lack of affection cannot amount to cruelty, frequent rudeness of language,
petulance of manner, indifference and neglect may reach such a degree that it
makes the married life for the other spouse absolutely intolerable.
(iv) Mental Cruelty
is a state of mind. The feeling of deep anguish, disappointment, frustration in
one spouse caused by the conduct of other for a long time may lead to mental
(v) A sustained
course of abusive and humiliating treatment calculated to torture, discommode
or render miserable life of the spouse.
3 (vi) Sustained
unjustifiable conduct and behavior of one spouse actually affecting physical
and mental health of the other spouse.
complained of and the resultant danger or apprehension must be very grave,
substantial and weighty.
reprehensible conduct, studied neglect, indifference or total departure from
the normal standard of conjugal kindness causing injury to mental health or
deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct
must be much more than jealousy, selfishness, possessiveness, which causes
unhappiness and dissatisfaction and emotional upset may not be a ground for
grant of divorce on the ground of mental cruelty.
(ix) Mere trivial
irritations, quarrels, normal wear and tear of the married life which happens
in day to day life would not be adequate for grant of 3 divorce on the ground
of mental cruelty.
(x) The married life
should be reviewed as a whole and a few isolated instances over a period of
years will not amount to cruelty. The ill-conduct must be persistent for a
fairly lengthy period, where the relationship has deteriorated to an extent
that because of the acts and behavior of a spouse, the wronged party finds it
extremely difficult to live with the other party any longer, may amount to
(xi) If a husband
submits himself for an operation of sterilization without medical reasons and
without the consent or knowledge of his wife and similarly if the wife
undergoes vasectomy or abortion without medical reason or without the consent
or knowledge of her husband, such an act of the spouse may lead to mental
decision of refusal to have intercourse for considerable period without there
being any physical 3 incapacity or valid reason may amount to mental cruelty.
decision of either husband or wife after marriage not to have child from the
marriage may amount to cruelty.
(xiv) Where there has
been a long period of continuous separation, it may fairly be concluded that
the matrimonial bond is beyond repair. The marriage becomes a fiction though
supported by a legal tie. By refusing to sever that tie, the law in such cases,
does not serve the sanctity of marriage; on the contrary, it shows scant regard
for the feelings and emotions of the parties. In such like situations, it may
lead to mental cruelty".
coming to the facts of the case, from the evidence of Smt. Vimal Kapur (mother-
in-law of appellant-wife and mother of respondent-husband) who is examined as
PW 1 and Sudhir Kapur, husband-PW 2, the trial Court held that the wife was
interested in her career 3 only and she had neglected towards matrimonial
obligations and exercise of conjugal rights by the husband. The trial Court
also held that termination of pregnancy by wife was without consent or even
knowledge of the husband which was in the nature of mental cruelty. But keeping
the said element of mental cruelty aside, the High Court was convinced that the
allegation of mental cruelty towards the husband by the wife was clearly
established from the evidence on record adduced by the respondent-husband. The
High Court noted that the appellant-wife was constantly and continuously
avoiding staying with the husband and preventing him to have matrimonial
relations. From the letters of the appellant- wife also, the High Court held
that it was the wife who had stated that she had completely lost interest in
the marriage and she was willing to get divorce. The High Court further noted
that the appellant-wife sent a notice through her advocate to the
respondent-husband during the pendency of mediation proceedings in the High
Court wherein she alleged that the respondent was having another wife in USA
whose identity was concealed. This was based on the fact that in his income-tax
return, the husband mentioned the Social Security Number of his wife as
476-15-6010, a number which did not belong to the appellant-wife, but to some
American lady (Sarah Awegtalewis). The High Court, however, recorded a finding
of fact accepting the explanation of the husband that there was merely a
typographical error in giving Social Security Number allotted to the appellant
which was 476-15-6030. According to the High Court, taking undue advantage of
the error in Social Security Number, the appellant wife had gone to the extent
of making serious allegation that the respondent had married to an American
woman whose Social Security Number was wrongly typed in the income tax return
of the respondent-husband.
High Court also observed that the appellant wanted to pursue her professional
career to achieve success. In her written statement itself, she had admitted
that she was very much interested in her career; that she was independent since
1979 and she was keen to live independent life.
High Court also took a serious note of an entry in the personal diary of the
appellant-wife dated September 14, 1986 wherein she stated;
"we started this journey as two individuals and if you can do so fine
otherwise forget and don't bring the ghost of parents in between the two of us.
He did not like the use of words ghosts and first cursed my vocabulary and then
he said "you do not have any, but I have better ties".
At this I told him
you are given these 15 days and you can find another wife for yourself. He has
this notion that he will go to USA (NY) and I will stay with his parents and I
told him I will not and he says this was the deal in July and when I refuted he
said "no you had promised". I told him you have just now paid the
fine and you are again using the same tricks again.
Naturally, he did not
like and said to me "I am not and have never with you played tricks".
I said sorry- I do not trust you any further and he said it is your fault. It
may now be my fault but I think it is just quits. I don't think I will write to
anybody back in Delhi now for 15 days and if I can find myself work here any
the above letter, it is clear that the appellant-wife had described the parents
of the husband as `ghost'.
the letter dated June 21, 1988, she stated;
"I really wish
you would understand my urge in pursuing my freedom away from the hawk eyes of
your mother, sister and all other relatives. But, as I am not ready to share
the economic gains of this job with you and other family members. I don't expect
either you or them to understand my need and commitment for this job, or any
job. I am bound to cause friction with so many people around me- I was at war
with just you around me in Bombay."
another letter, she stated that the respondent-husband should not make a
condition for the wife of living together. She stated;
"I am not a good
person to waste all your potential, emotion on. I do not deserve it.
... ... ... ...
Please do not make
living together a condition for the coming few months.
And do not read from
these lines that I do not miss you- I do so individually and circumstantially-
but as is my way of working I am not ready to stop myself for bonds and I
believe the same for you. I wish the best and topmost for you-the most perfect,
one can hope to be and wish that nothing becomes a barrier between you and you
and your achievements. Even me. It will be best if we could help each other
constructively; I also believe that we can do so- it is just that we believe in
... ... ... ...
If possible, stand
out of all this mess and try to work the best possible solution for us and your
family. I do want you to remember that you are only one son and your family
I would honour- but
not at the cost of my spiritual search in life."
further said that the respondent- husband should not bring her marital status
preventing her from pursuing her career in the name of marriage. She stated
that when she was unable to give even a child to the respondent- husband, up to
what stage, they should live together. She clarified that she did not want 4
to close her avenues in life at least at that stage. She also did not want to
forego her chances whatever she would believe about her chances. She did not
believe in love any more.
She expressly stated
that she did not believe in Indian social value system and she was very happy
in the foreign country.
"Mujhe is vivah
ke naam per apne raste se mat roke. Ho sakta he mein he galat hoon-per mujhe
nahin lagta. Dampati ke tarah hum saath ji liye hein- purani quality of life se
kuch neechey hi star per jiye hein- ye aur koin jaane ya na jaane- Cambridge
school se ek dosre ko bada hota dekh suman- sudhir achhey se jaante hein. Es
vivah mein aapko santan bhi na de saki- phir kahan tak jaruri hai ki hum saath
rahe? Aap mere vicharo se to kabhi sahmat nahin honge per auron ki rai kar
lein-jis kisiki bhi- apni jindgi suljha lein. Mujh se ye ummid karma chod de ke
kisi vyaktigat (per mujh se unrelated) ya samajik karan se abhi mein apna rehne
sochne ka tarika badloon. Jaisa maine pehle likha- jindagi ji kar jaise bhi,
job hi, jab bhi samajh aayega tabhi aayega, jaise main apne liye chhot chahti
hoon vaise he apni oar se jitna mujhe adhikar hein aapko bhi mukt karti hoon.
Meine to kareeb chheh page par hi ye patr samapt kar diya-except for some help
that I needed for car, etc-buy your 4 fax today was quite unsettling. I don't
like to close my avenues in life- at lease not yet. I was naove to believe
whatever I did for marriage as a constitution and marriage to you.
I am not ready to
forgo my chances- whatever I believe to be chances for what I have experienced
as being married. I think the best alternative will be you stay in India for
some more time. Chances are that even if you get an assignment outside Kansas
we would be living separately. So decide for yourself cause when time comes I
am going to do so for myself.
I will this time not
make a compromise and regret it a few months later and make both our lives
miserable. I have done that several times in the past-at least you should have
enough of it to stop trying to push me against my belief.
My way of loving is
not like that.
I do not even believe
in love any more. There is no bigger lie that any one could tell another
person. I do not even believe in the Indian social value system. So I am better
off being here away from every person and every thing that I grew up with.
Whenever I have
understood things to be a different shade I will decide whether I want to be
here or there."
43. The High Court,
in contrast, referred to the letters written by the respondent- husband. It
noted that those letters were full of love and affection. According to the
High 4 Court, the husband tried his level best to keep the marriage tie to
subsist and made all attempts to persuade the wife explaining and convincing
her about the sacred relations of husband and wife, the need and necessity of
child in their life and also feelings of his parents who wanted to become grand
According to the High
Court, however, nothing could persuade the wife who was only after her career.
In the light of the above facts and circumstances, the Court held that the
trial Court did not commit any error of fact or of law in passing the decree
for divorce on the ground of mental cruelty.
High Court in paragraph 28 of the judgment stated;
above principles to the facts of the present case, I feel the respondent has
been able to establish and prove `cruelty' under Section 13(1) (ia) of the Act.
The conduct of the appellant has been examined above. I have referred to the
letters exchanged between the parties during the period 1986 onwards till 1994.
Some of the letters have been written by the 4 appellant herself. These
letters reveal the conflict and difference between the parties. The present
case also reveals that the respondent was bending over his heels to placate and
woo the appellant till 1994 but thereafter gave up. The respondent was deeply
in love and was emotionally attached to her. He has however over the passage of
time developed a hatred and ill-will for the appellant.
There is no apparent
ground and reason for the same except the conduct of the appellant."
find no infirmity in the approach of the High Court. The finding relating to
mental cruelty recorded by the trial Court and confirmed by the High Court
suffers from no infirmity and we see no reason to interfere with the said
fact, however, remains and it has been brought to the notice of this Court that
the respondent got re-married on March 05, 2007 before the expiry of period of
filing Special Leave to Appeal to this Court under Article 136 of the
Constitution. It was also stated that a child was born from the said wedlock on
4 December 20, 2007. Thus, the marriage had been performed within a period of
ninety days of the order impugned in the present appeal.
we are confirming the decree of divorce on the ground of mental cruelty as held
by both the courts, i.e. the trial Court as well as by the High Court, no
relief can be granted so far as the reversal of decree of the courts below is
concerned. At the same time, however, in our opinion, the respondent-husband
should not have re-married before the expiry of period stipulated for filling
Special Leave to Appeal in this Court by the wife.
is true that filing of appeal under Article 136 of the Constitution is not a
right of the party. It is the discretion conferred on this Court to grant leave
to the applicant to file appeal in appropriate cases. But, since the
Constitution allows a party to approach this Court within a period of ninety
days from an order passed by the High Court, we are of the view that no
precipitate action 4 could have been taken by the respondent-husband by
creating the situation of fait accompli.
matter in its entirety, though we are neither allowing the appeal nor setting
aside the decree of divorce granted by the trial Court and confirmed by the
appellate Court in favour of respondent-husband, on the facts and in the
circumstances of the case, in our opinion, ends of justice would be met if we
direct the respondent-husband to pay an amount of Rs. Five lakhs to the
appellant-wife. The said payment will be made on or before 31st December, 2008.
appeal is disposed of accordingly.
The parties will bear
their own costs all throughout.
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