advocatemmmohan

My Photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

YOU ARE MOST WELCOMED TO MY LEGAL WORLD TO HAVE CLEAR YOUR CLOUDS OF DOUBTS AND TO HAVE A GOOD NIGHT WITH COMFORT -WAITING FOR A NEW SUNRISE WITH CONFIDENT. FOR FREE LEGAL OPINION ALSO, YOU CAN POST YOUR PROBLEMS TO THIS BLOG. IT WILL BE ANSWERED AS EARLY AS POSSIBLE.

Thursday, December 13, 2012

“In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty. while dealing with Section 65 of the Evidence Act, this Court opined though the said provision permits the parties to adduce secondary evidence, yet such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It has been further held that mere admission of a document in evidence does not amount to its proof. Therefore, it is the obligation of the Court to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.As a decree is passed, the wife is entitled to permanent alimony for her sustenance. Be it stated, while granting permanent alimony, no arithmetic formula can be adopted as there cannot be mathematical exactitude. It shall depend upon the status of the parties, their respective social needs, the financial capacity of the husband and other obligations. The respondent himself has asserted that he has earned name and fame in the world of music and has been performing concerts in various parts of India and abroad. He had agreed to buy a flat in Hyderabad though it did not materialise because of the demand of the wife to have a flat in a different locality where the price of the flat is extremely high. Be that as it may, it is the duty of the Court to see that the wife lives with dignity and comfort and not in penury. The living need not be luxurious but simultaneously she should not be left to live in discomfort. The Court has to act with pragmatic sensibility to such an issue so that the wife does not meet any kind of man-made misfortune. Regard being had to the status of the husband, the social strata to which the parties belong and further taking note of the orders of this Court on earlier occasions, we think it appropriate to fix the permanent alimony at Rs 50 lacs which shall be deposited before the learned Family Judge within a period of four months out of which Rs.20 lacs shall be kept in a fixed deposit in the name of the son in a nationalized bank which would be utilised for his benefit. The deposit shall be made in such a manner so that the respondent wife would be in a position to draw maximum quarterly interest. We may want to clarify that any amount deposited earlier shall stand excluded. On the basis of the forgoing discussion, the decree for dissolution of marriage is affirmed only on the ground of mental cruelty which eventually leads to dismissal of the appeals. The parties shall bear their respective costs.


                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                     CIVIL APPEAL NOS. 8927-8928 OF 2012
 [Arising out of S.L.P. (Civil) Nos. 37449-37450 of  2012 ( CC.5877-5878 of
                                   2012)]


U. Sree                                           ... Appellant

                                   Versus
U. Srinivas                                      ... Respondent

                               J U D G M E N T

Dipak Misra, J.

      Leave granted.
   2. The appellant-wife instituted F.C.O.P. No. 568 of 1997 under Section 9
      of the Hindu Marriage  Act,  1955  (for  brevity  ‘the  Act’)  in  the
      Principal Family Court, Chennai for restitution  of  conjugal  rights.
     
The respondent-husband filed F.C.O.P. No. 805 of 1998  under  Sections
      13(1)(i-a), 26 and 27 of the Act read with Section  7  of  the  Family
      Courts Act, 1984 praying for dissolution of marriage, custody  of  the
      child and return of jewellery and other  items.   
The  learned  Family
      Judge jointly tried both the cases and, on the basis of  the  evidence
      brought on  record,  dismissed  the  application  for  restitution  of
      conjugal rights preferred by the wife and allowed the petition of  the
      husband for dissolution of marriage and  held  that  the  child  would
      remain in the custody of the mother on the principle that  welfare  of
      the child is paramount, and further the husband was  not  entitled  to
      return of jewels or any other item from the wife in the absence of any
      cogent evidence in that  regard.  
The  learned  Family  Judge,  while
      passing the decree  for  dissolution  of  marriage,  directed  to  pay
      permanent alimony of Rs. 5 lacs each to the wife  and  her  minor  son
      within a month.

   3. Being dissatisfied by the common order, the  appellant-wife  preferred
      C.M.A. No. 1656 of 2010 and C.M.A. No. 1657 of 2010 in the High  Court
      of Judicature at Madras and the  Division  Bench  concurred  with  the
      conclusion as regards the decree  of  dissolution  of  marriage  as  a
      consequence of which  both  the  appeals  had  to  meet  the  fate  of
      dismissal.
However, the Bench, apart from concurring with  the  grant
      of permanent alimony, directed the respondent-husband to pay a sum  of
      maintenance amounting to Rs.12,500/- to the appellant-wife and her son
      from the date of order passed by the Chief Metropolitan Magistrate  at
      Hyderabad till the date of the order passed by the High Court.  
Hence,
      the present two appeals have been preferred by special leave assailing
      the common judgment passed by the High Court in both the appeals.

   4. The facts requisite to be stated for adjudication of the  appeals  are
      that
the  marriage  between  the  appellant  and  the  respondent  was
      solemnized on 19.11.1994 at Tirupathi according  to  Hindu  rites  and
      customs.  
After  entering  into  wedlock,  they  lived  together   at
      Vadapalani, Chennai.  
As tradition would  warrant,  she  went  to  her
      parental home for delivery where a male child was born on 30th of May,
      1995.  
The respondent celebrated the child’s  birth  in  his  in-law’s
      house and thereafter, the wife stayed with her parents  for  sometime.
      She returned to Chennai on 4.10.1995 and  there  she  lived  with  her
      husband till 3.1.1996.  
The case of the wife in  her  application  for
      restitution of  marriage  is  that  on  3.1.1996,  her  father-in-law,
      without her consent, took her to her parental  home  and,  thereafter,
      the husband without any justifiable reason withdrew from her  society.
      All efforts made by her as well as by her parents to discuss with  her
      husband and his family members to find out a solution  went  in  vain.
      In this backdrop, a  prayer  was  made  for  restitution  of  conjugal
      rights.

   5. The husband resisted the aforesaid stand contending, inter alia,  that
     
there was total incompatibility in the marital  relationship  inasmuch
      as she found fault with his life style, his daily routine,  his  likes
      and dislikes and picked up quarrels  on  trivial  issues.   
She  threw
      tantrums only with the exclusive purpose that she should dominate  the
      relationship and have her own way.  
At  the  time  of  practising  and
      learning music in the presence of his father, who was also his “Guru”,
      she  hurled  abuses  and  screamed  which  invariably  followed   with
      arguments and quarrels.  
Though she was expected, as per the  customs,
      to show respect  towards  elders  and  to  the  senior  artists,  yet,
      throwing all traditional values to the wind, she would  walk  away  by
      creating a scene to his utter embarrassment.   
His  public  image  was
      totally ruined and reputation was mutilated.    
It  was  also  alleged
      that she called her parents and  threatened  to  initiate  proceedings
      under the Indian Penal Code, 1860 with the help of her father, who was
      an I.A.S. officer in the Vigilance Department  in  the  Government  of
      Andhra Pradesh.  
With the efflux of time, the discord  aggravated  and
      the wife became more aggressive and did not allow her  husband  to  go
      near her or the child.  
On  3.1.1996,  when  the  wife  expressed  her
      desire to go to her parental home, he could not dare to object and she
      went with costly  gifts  received  by  him  in  India  and  abroad  in
      recognition of his performance in music.   
Regard  being  had  to  the
      physical safety of the wife and the child, he requested his father  to
      escort them to Hyderabad.  While she  was  at  Hyderabad,  she  spread
      rumours among the relatives and friends pertaining  to  his  fidelity,
      character and habits.  
It was further asserted by the husband that she
      had filed the petition only to harass him and, in fact, the manner  in
      which he had  been  treated  clearly  exhibited  mental  cruelty  and,
      therefore, the said relief should not be granted.
It was averred that
      in view of the treatment meted out  to  the  husband,  dissolution  of
      marriage was the only solution and not restitution of conjugal rights.

   6. The respondent, in  his  petition  for  divorce,  pleaded  that  after
      abandoning formal education, he pursued his career in  music  treating
      it as a concept of ‘bhakti’ or devotion.  
 He  had  to  continue  his
      ‘sadhana’ as a daily routine under the guidance of his  father  as  it
      was necessary to understand the nuances and the  subtleties  of  music
      which  could  only  be  gathered  by  experience  and  acquisition  of
      knowledge at the feet of a “guru” and also to keep  alive  “the  Guru-
      Sishya Parampara”.
The aforesaid aspect of his life was not liked  by
      his wife and she always interrupted hurling abuses  at  him.   Despite
      his best efforts to make his wife understand the family tradition  and
      show reverence to the seniors in the sphere  of  music,  she  remained
      obstinate in her attitude and chose to walk away causing him not  only
      embarrassment in  public  but  also  humiliation  which  affected  his
      reputation and self respect.
That apart, whenever the husband visited
      her at the parental home, he  was  deprived  of  conjugal  rights  and
      physically prevented from playing with the child.  
In  spite  of  his
      sacrifice and efforts to adjust with her mental attitude, she remained
      adamant and her behavioural  pattern  remained  painfully  consistent.
      Gradually, her behaviour became very cruel  and,  eventually,
he  was
      compelled to file a case  for  judicial  separation  to  which,  as  a
      counterblast, she filed a case for  restitution  of  conjugal  rights.
      She had communicated with her friends that she would like to  see  her
      husband behind bars on the ground of dowry harassment.  She  had  also
      threatened that if he took part in any musical concert  at  Hyderabad,
      his life shall be endangered.  Put in such a situation, left  with  no
      other alternative, he was compelled to file a petition for dissolution
      of marriage.

   7. As the factual  narration  would  unfurl,  the  wife  in  the  written
      statement asserted that she was aware of the importance of music,  its
      traditional values and clearly understood the devotion and  dedication
      as she herself was a `Veena’ player and because of her sacrifice,  her
      husband had gained reputation and popularity which also  enhanced  his
      financial status, but, with the rise, he failed to perform his  duties
      as a husband.
She denied the interruption in  the  practice  sessions
      and controverted the factum of maltreatment.  It was averred  that  as
      the husband had gained reputation, his  parents  and  other  relatives
      thought of a second marriage so that he could get enormous dowry.
She
      denied the scandalous allegations and stated that she was proud of her
      husband’s accomplishments.  
She  justified  her  filing  of  petition
      before the Chief Metropolitan Magistrate for grant of  maintenance  as
      he was absolutely careless and negligent to look  after  her  and  the
      child.  It was further pleaded  that  the  grounds  mentioned  in  the
      petition were vexatious and frivolous and,  therefore,  there  was  no
      justification for grant of a decree of divorce.

   8. The learned Family Judge framed seven issues and, considering the oral
      and documentary evidence brought on record, came to hold that the wife
      had treated the husband with cruelty;
that she had not taken any steps
      for re-union and had deserted him for thirteen years without any valid
      reason and, hence, the husband was entitled for a  decree  of  divorce
      and she was not entitled to have a decree for restitution of  conjugal
      rights.
The learned Family Judge directed that  the  custody  of  the
      child should remain with the mother  and  
the  husband  had  miserably
      failed to make out a case for return of jewels and other  items.    
He  granted permanent alimony as stated earlier.

   9. Being grieved by the aforesaid decision of the learned  Family  Judge,
      the wife preferred two appeals.    On behalf of the appellant-wife, it
      was urged before the High court  that the judgment and  decree  passed
      by  the  Family  Court  regarding  grant  of  divorce  was  passed  on
      assumptions  and  presumptions;   that  she   had   suffered   immense
      humiliation and hardship at the hands of the  family  members  of  the
      husband but the Family Court did not  appreciate  the  said  facet  in
      proper perspective;  that the finding relating  to  desertion  by  the
      wife was contrary to the evidence on record and, in fact, it  was  the
      case that the husband had left the wife in the  lurch at her  parental
      home and did not think for a  moment  to  bring  her  back;  that  the
      allegation with regard to  the  interruption  in  the  music  learning
      sessions and her dislike of  her husband had been deliberately  stated
      to make out a case of mental cruelty;  that certain documents had been
      placed reliance upon by the learned Family Judge though they were  not
      admissible in evidence and further the documents produced by the  wife
      had not been properly appreciated and dealt with; and that  the  court
      below would have been well advised, in the obtaining  factual  matrix,
      to direct restitution of conjugal rights.  It  is  worth  noting  that
      alternatively it was urged that the trial Court had committed an error
      in granting permanent alimony of Rs. 10 lacs in toto, regard being had
      to the income of the husband.

  10. In appeal, the High Court, after  noting  the  respective  contentions
      advanced  by  the  learned  counsel  for  the  parties,  proceeded  to
      appreciate  the  essential  ingredients  which  are  necessary  to  be
      established to sustain a petition under Section 9 of the  Act.   After
      referring to certain decisions in the field and the concept of  mental
      cruelty as stated in Halsbury’s Laws of England, 4th  Edn.,  Vol.  13,
      para 623 and American Jurisprudence and the dictum laid down  in  N.G.
      Dastane v. S. Dastane[1], Rajani v. Subramaniam[2], Parveen  Mehta  v.
      Inderjit Mehta[3], Gananath Pattnaik v.  State  of  Orissa[4],  Shobha
      Rani v. Madhukar Reddi[5], Manisha Tyagi v.  Deepak  Kumar[6],  Sujata
      Uday Patil v. Uday Madhukar Patil[7], Chanderkala Trivedi v. Dr.  S.P.
      Trivedi[8] and Pranay Majumdar v. Bina  Majumdar[9],  the  High  Court
      came to hold that the material brought on record showed that the  wife
      had gone to the parental home on 3.1.1996 and made no efforts  to  get
      reunited with the husband and, as per the evidence on record, she  had
      admitted in the testimony recorded in O.P. No. 568 of  1995  that  the
      relations between her and her husband were cordial till she  left  the
      matrimonial home.
The High Court  found  that  her  depositions  were
      contradictory inasmuch as on one hand she had stated that she had been
      ill-treated and on the other that there was cordial relationship.  
As
      is noticeable, the High Court referred to the xerox copy of the letter
      Exhibit R-8 dated 18.10.1995 written in her handwriting to her parents
      and observed that when the said letter was summoned  from  her  father
      she stated that there was no  such  letter  and  on  that  ground  the
      admissibility was called in question.  The High Court opined that when
      the efforts were made to get the primary evidence and it could not  be
      obtained, the secondary evidence could be adduced and  that  would  be
      admissible under Section 65 of the Evidence Act.   Be  it  noted,  the
      English translation of the said letter was marked as Exhibit R-9 which
      indicated that the wife had clearly stated that she had spoken ill  of
      her mother-in-law and others and had  expressed  her  desire  to  seek
      divorce as she could not stay any longer in the matrimonial home.   It
      was observed by the  Bench  that  the  conduct  of  the  wife  clearly
      established desertion and her behaviourial  pattern  exhibited  mental
      cruelty meted out to the husband.  The High Court also  took  note  of
      the fact that a stage had  reached  where  it  had  become  well  nigh
      impossible for the couple to live together.  Regard being had  to  the
      totality of the circumstances,  the  High  Court  gave  the  stamp  of
      approval to the common judgment  and  decree  passed  by  the  learned
      Family Court.

  11. We have heard Mrs. K. Sarada Devi, learned counsel for the  appellant,
      and Mr. K. Ramamoorthy, learned senior counsel for the respondent.  It
      is contended by Mrs. Sarada Devi that the learned Family Judge as well
      as the High Court had failed to appreciate that neither mental cruelty
      nor desertion had been established as per the law.
It is contended by
      her that Exh. R-8 and R-9 were not admissible in evidence inasmuch  as
      they could not be treated as secondary  evidence  as  envisaged  under
      Section 65 of the Evidence Act.  It is further urged  that  the  whole
      decision for granting divorce  and  denying  restitution  of  conjugal
      rights has been based regard being had to  the  total  break  down  of
      marriage but the said ground is not a legally permissible one to grant
      divorce.

  12.  Mr.  K.  Ramamoorthy,  learned  senior  counsel  appearing  for   the
      respondent, per contra, would submit that the said observation is  one
      of the facets, but  the  High  Court  has,  after  due  deliberations,
      returned findings relating to cruelty and desertion and the same being
      founded on proper appreciation of the material on record,  this  Court
      should not interfere in exercise of appeal  entertained  by  grant  of
      leave under Section 136 of the Constitution of India.

  13. At this juncture, we may note with profit that as a  matter  of  fact,
      the High Court has observed that it has become  well  nigh  impossible
      for the husband and the wife to live together and the  emotional  bond
      between the parties is dead for all  purposes.   We  have  noted  this
      aspect for completeness, but we will not address the  said  facet  and
      will restrict our delineation only towards the justifiability  of  the
      conclusions pertaining to mental cruelty and desertion.

14.   Before we dwell upon the tenability of the  conclusions  of  desertion
and mental cruelty, we think it condign to deal with the submission
whether
the photostat copy of the letter alleged to have been written  by  the  wife
to her father could  have  been  admitted  as  secondary  evidence.  As  the
evidence on record would show, the said letter was summoned from the  father
who had disputed its existence.
The learned Family Court Judge as  well  as
the High Court has opined that when the  person  is  in  possession  of  the
document but has not produced the same, it  can  be  regarded  as  a  proper
foundation to lead secondary evidence.  
In this context,  we  may  usefully
refer to the decision in Ashok Dulichand v. Madahavlal Dube[10]
wherein  it
has been held that according to clause (a)  of  Section  65  of  the  Indian
Evidence Act, secondary evidence may be given of  the  existence,  condition
or contents of a document when the original is shown or  appears  to  be  in
the possession or power of the person against whom the  document  is  sought
to be proved, or of any person out of reach  of,  or  not  subject  to,  the
process of the court, or of any person legally  bound  to  produce  it,  and
when, after the notice  mentioned  in  Section  66,  such  person  does  not
produce it. Thereafter, the Court addressed to the facts  of  the  case  and
opined thus: -
        “In order to bring his case within the  purview  of  clause  (a)  of
        Section 65, the appellant filed applications on July 4, 1973, before
        Respondent 1 was examined  as  a  witness,  praying  that  the  said
        respondent be ordered to produce the original manuscript  of  which,
        according to the appellant, he had filed photostat copy. Prayer  was
        also made by the appellant that in case Respondent 1 denied that the
        said manuscript had been written by him, the photostat copy might be
        got examined from a handwriting expert.  The  appellant  also  filed
        affidavit in support of his applications. It was,  however,  nowhere
        stated in the affidavit that the  original  document  of  which  the
        photostat copy had been filed by the appellant was in the possession
        of Respondent 1. There was also no other material on the  record  to
        indicate that  the  original  document  was  in  the  possession  of Respondent 1. 
The appellant further failed to  explain  as  to  what
        were the circumstances under which the photostat copy  was  prepared
        and who was in possession of the original document at the  time  its
        photograph was taken. Respondent 1 in his affidavit denied being  in
        possession of or having anything to do with such a document.”

Be it noted, in this backdrop, the High  Court  had  recorded  a  conclusion
that no foundation had been laid by  the  appellant  for  leading  secondary
evidence in the shape of the photostat copy and this Court did not  perceive
any error in the said analysis.
15.   In  J. Yashoda v. K. Shobha Rani[11],  after  analyzing  the  language
employed in Sections 63 and 65 (a), a two-Judge Bench held as follows:-

      “Section 65, however permits secondary evidence to  be  given  of  the
      existence, condition or contents of documents under the  circumstances
      mentioned. The conditions laid  down  in  the  said  section  must  be
      fulfilled  before  secondary  evidence  can  be  admitted.   Secondary
      evidence of the contents of a document cannot be admitted without non-
      production of the original being first accounted for in such a  manner
      as to bring it within one or other of the cases provided  for  in  the
      section.”

16.   In M. Chandra v. M. Thangamuthu and Other[12], It  has  been  held  as
follows:-
      ”It is true that a party who wishes to rely upon  the  contents  of  a
      document must adduce primary evidence of the contents, and only in the
      exceptional cases will secondary evidence be admissible.  However,  if
      secondary evidence is admissible, it may be adduced  in  any  form  in
      which it may be available, whether by production of a copy,  duplicate
      copy of a copy, by oral evidence of the contents or in  another  form.
      The secondary evidence must be authenticated by foundational  evidence
      that the alleged copy is in fact a  true  copy  of  the  original.  It
      should be emphasised that the exceptions to the rule requiring primary
      evidence are designed to provide relief in a case  where  a  party  is
      genuinely unable to produce the original  through  no  fault  of  that
      party.”

17.  Recently, in H. Siddiqui (Dead) by Lrs.  v.  A.  Ramalingam[13],
while
dealing with Section 65 of the Evidence Act, this Court  opined  though  the
said provision permits the parties to adduce secondary evidence, yet such  a
course is subject to a large number of limitations.  
In  a  case  where  the
original documents are not  produced  at  any  time,  nor  has  any  factual
foundation been laid for giving secondary evidence, it  is  not  permissible
for the court  to  allow  a  party  to  adduce  secondary  evidence.   
Thus,
secondary evidence relating to the contents of a document  is  inadmissible,
until the non-production of the original is accounted for, so  as  to  bring
it within one or other of the  cases  provided  for  in  the  section.   
The
secondary evidence must be authenticated by foundational evidence  that  the
alleged copy is in fact a true copy of the original.  
It  has  been  further
held that mere admission of a document in evidence does not  amount  to  its
proof.  
Therefore, it is the obligation of the Court to decide the  question
of  admissibility  of  a  document  in  secondary  evidence  before   making
endorsement thereon.

18.   In the  case  at  hand,  the  learned  Family  Judge  has  really  not
discussed anything relating to foundational evidence.  The  High  Court  has
only mentioned that when the letter was summoned and  there  was  a  denial,
the secondary evidence is admissible.  In our  considered  opinion,  such  a
view is neither legally sound nor in consonance with the  pronouncements  of
this Court and,  accordingly,  we  have  no  hesitation  in  dislodging  the
finding on that score.
19.   The next facet which is to be dwelled upon is  whether  the  appellant
had treated her husband with mental cruelty.  The  legal  sustainability  of
the said conclusion has to be tested  keeping  the  photostat  copy  of  the
letter out of consideration.  At the very outset, we may  state  that  there
is no cavil over the proposition as to what cruelty includes.  Regard  being
had to the same, we shall refer to certain authorities.

20.   In Samar Ghosh v. Jaya Ghosh[14], a three-Judge Bench,  after  dealing
with the concept of mental cruelty, has observed thus:-

       “99. … The human mind is extremely complex  and  human  behaviour  is
      equally  complicated.  Similarly  human  ingenuity   has   no   bound,
      therefore, to assimilate the entire human behaviour in one  definition
      is almost impossible. What is cruelty in one case may  not  amount  to
      cruelty in the other case. The concept of cruelty differs from  person
      to  person  depending  upon  his  upbringing,  level  of  sensitivity,
      educational,  family  and  cultural  background,  financial  position,
      social status, customs, traditions, religious  beliefs,  human  values
      and their value system.


      100. Apart from this, the concept  of  mental  cruelty  cannot  remain
      static; it is bound to change with the  passage  of  time,  impact  of
      modern culture through print and electronic media  and  value  system,
      etc. etc. What may be mental cruelty  now  may  not  remain  a  mental
      cruelty after a passage of time or vice versa. There can never be  any
      straitjacket  formula  or  fixed  parameters  for  determining  mental
      cruelty in matrimonial matters. The prudent  and  appropriate  way  to
      adjudicate the case would be to evaluate it on its peculiar facts  and
      circumstances….”


21.   In Ravi Kumar v. Julmidevi[15], this Court has expressed thus: -

        “In matrimonial relationship, cruelty would obviously  mean  absence
        of mutual  respect  and  understanding  between  the  spouses  which
        embitters the relationship and often leads to various  outbursts  of
        behaviour which can be termed as  cruelty.  Sometime  cruelty  in  a
        matrimonial relationship may take the form of violence, sometime  it
        may take a different form. At times, it may be just an  attitude  or
        an approach. Silence in some situations may amount to cruelty.


        20.  Therefore,  cruelty  in  matrimonial   behaviour   defies   any
        definition and its categories  can  never  be  closed.  Whether  the
        husband is cruel to his wife or the wife is cruel to her husband has
        to be ascertained and judged by taking into account the entire facts
        and circumstances of the given case and  not  by  any  predetermined
        rigid formula. Cruelty in  matrimonial  cases  can  be  of  infinite
        variety—it may be subtle or even brutal and may be by  gestures  and
        words.”


22.   Recently, this Court, in Vishwanath Agrawal, s/o  Sitaram Agrawal   v.
Sarla Vishwanath Agrawal[16], while dealing with the conception of  cruelty,
has stated that it  has  inseparable  nexus  with  human  conduct  or  human
behaviour.   It is always dependent upon the social strata or the milieu  to
which the parties belong, their ways of life, relationship, temperament  and
emotions that have been conditioned by the  social  status.   The  two-Judge
Bench  referred  to  the  decisions  in  Sirajmohmedkhan  Janmohamadkhan  v.
Hafizunnisa Yasikhan[17], Shobha Rani (supra), Sheldon  v.  Sheldon[18],  V.
Bhagat v. D. Bhagat[19], Parveen Mehta (supra), Vijaykumar Ramchandra  Bhate
v. Neela Vijaykumar Bhate[20], A.  Jayachandra  v.  Aneel  Kaur[21],  Vinita
Saxena v. Pankaj Pandit[22], Samar Ghosh (supra) and  Suman Kapur v.  Sudhir
Kapur[23], and opined that when  the  evidence  brought  on  record  clearly
establish  a  sustained  attitude  of  causing  humiliation  and  calculated
torture on the part of the wife to make the life of the  husband  miserable,
it would amount to mental cruelty.  Emphasis  was  laid  on  the  behavioral
pattern of the wife whereby a dent is  created  in  the  reputation  of  the
husband, regard being had to the fact that reputation is the salt  of  life.


23.   In the case at  hand,  the  husband  has  clearly  deposed  about  the
constant and consistent ill-treatment meted out to him by the wife  inasmuch
as she had shown her immense dislike  to  his  “sadhna”  in  music  and  had
exhibited total indifference and, in a way, contempt  to  the  tradition  of
teacher and disciple.  It has graphically been  demonstrated  that  she  had
not shown the slightest concern for the public image of her husband on  many
an occasion by putting him  in  a  situation  of  embarrassment  leading  to
humiliation.  She has made wild allegations  about  the  conspiracy  in  the
family of her husband to get him re-married  for  the  greed  of  dowry  and
there is no iota of evidence on record to substantiate the same.   This,  in
fact, is an aspersion not only on the character of the husband  but  also  a
maladroit effort to malign  the  reputation  of  the  family.   The  learned
Family Judge as well as the High Court has  clearly  analysed  the  evidence
and recorded a finding that the wife had treated  the  husband  with  mental
cruelty.  True it is,  there  is  some  reference  in  that  regard  to  the
photostat copy of the letter which we have not  accepted  as  admissible  in
evidence but the other  evidence  brought  on  record  clearly  support  the
findings recorded by the learned Family Judge and the  High  Court  and  the
said finding remains in the realm of fact.

24.   This Court, in State of U. P. v.  Babul  Nath[24],  while  considering
the scope of Article 136 as to when  this  Court  is  entitled  to  upset  a
finding of fact, has observed thus: -

       “5. At the very outset we may mention that in an appeal under Article
       136 of the Constitution this Court does not normally  reappraise  the
       evidence by itself and go into the question  of  credibility  of  the
       witnesses and the assessment of the evidence by  the  High  Court  is
       accepted by the  Supreme  Court  as  final  unless,  of  course,  the
       appreciation of evidence and finding is vitiated by any error of  law
       of procedure or found contrary to the principles of natural  justice,
       errors of record  and  misreading  of  the  evidence,  or  where  the
       conclusions  of  the  High  Court   are   manifestly   perverse   and
       unsupportable from the evidence on record.”

25.   In Bharat Coking  Coal  Ltd.  v.  Karam  Chand  Thapar  &  Bros.  Pvt.
Ltd.[25], this Court opined that the jurisprudence under Article 136  stands
out to be extremely wide but that does not,  however,  warrant  intervention
in a situation having concurrent set of facts and  an  appeal  therefrom  on
the factual issue.  The article has been engrafted by the  founding  fathers
of the Constitution for the purposes of avoiding mischief and  injustice  on
the wrong assumption of law.  The justice delivery  system  of  the  country
prompts this Court to interfere under Article 136 of the  Constitution  when
the need of the  society  stands  established  and  the  judgment,  if  left
outstanding, would  not  only  create  prejudice  but  would  also  have  an
otherwise adverse effect on the society.   Further  elaborating,  the  Bench
ruled thus:-
        “The jurisdiction under Article 136 stands out to be extremely  wide
        but that does not, however, warrant intervention  having  concurrent
        set of facts and an appeal  therefrom  on  the  factual  issue.  The
        article  has  been  engrafted  by  the  founding  fathers   of   the
        Constitution for the purposes of avoiding mischief of  injustice  on
        the wrong assumption of law. The  justice  delivery  system  of  the
        country prompts this Court to interfere under  Article  136  of  the
        Constitution when the need of the society stands established and the
        judgment, if left outstanding, would not only create  prejudice  but
        would have an otherwise adverse effect on to the  society  —  it  is
        this solemn objective of administration of justice  with  which  the
        Constitution-makers thought it prudent to confer such a power on  to
        the Apex Court of the country. It is the final arbiter but only when
        the dispute needs to be settled by the Apex Court  so  as  to  avoid
        injustice and infraction of law.”


26.   In Ganga Kumar Srivastava v. State of Bihar[26],  after  referring  to
the earlier authorities, this Court  culled  out  certain  principles  which
would invite exercise of power of  this  Court  under  Article  136  of  the
Constitution:-
            (i)  The  powers  of  this  Court  under  Article  136  of  the
        Constitution are very wide but in criminal appeals this  Court  does
        not  interfere  with  the  concurrent  findings  of  fact  save   in
        exceptional circumstances.


          (ii) It is open to this Court to interfere with the  findings  of
        fact given by the High Court, if the High Court has acted perversely
        or otherwise improperly.


          (iii) It is open to this Court to invoke the power under  Article
        136 only in very exceptional circumstances as and when a question of
        law of general public importance arises or  a  decision  shocks  the
        conscience of the Court.


          (iv) When the evidence adduced by the prosecution fell  short  of
        the test of reliability and acceptability and as such it  is  highly
        unsafe to act upon it.


          (v) Where the appreciation of evidence and finding is vitiated by
        any error of law of procedure or found contrary to the principles of
        natural justice, errors of record and misreading of the evidence, or
        where the conclusions of the High Court are manifestly perverse  and
        unsupportable from the evidence on record.


27.   In Dubaria v. Har Prasad and Another[27], it has been held  that  when
there is infirmity in  the  decision  because  of  excluding,  ignoring  and
overlooking the abundant  materials  and  the  evidence,  if  considered  in
proper perspective, would have led to conclusion contrary to the  one  taken
by both the High Court as well as the fora below, it would be open  to  this
Court to interfere with the concurrent findings of fact.

28.   Tested on the touchstone of  the  aforesaid  principles,  we  have  no
trace of doubt that the finding returned by the Family Judge which has  been
given the stamp of approval by the High Court  relating  to  mental  cruelty
cannot be said to be in ignorance  of  material  evidence  or  exclusion  of
pertaining materials or based on  perverse  reasoning.   In  our  view,  the
conclusion on that score clearly rests on proper appreciation of facts  and,
hence, we concur with the same.

29.   Presently, we shall advert to the  finding  recorded  by  the  learned
Family Judge and the High Court relating to desertion by the wife.   As  the
factual matrix would reveal, both the Courts  have  proceeded  on  the  base
that the wife had not endeavored to reunite herself  with  the  husband  and
there had long lapse of time since they had lived together  as  husband  and
wife.  On the aforesaid foundation,  the  conclusion  has  been  drawn  that
there is an animus descerendi  on  the  part  of  the  wife.   To  test  the
tenability of the said conclusion, we have perused the petition for  divorce
from which  it  is  evident  that  there  is  no  pleading  with  regard  to
desertion.  It needs no special emphasis to state that a specific  case  for
desertion has to be pleaded.  It  is  also  interesting  to  note  that  the
petition was not filed seeking  divorce  on  the  ground  of  desertion  but
singularly on cruelty.  In the absence of a prayer in that  regard,  we  are
constrained to hold that the conclusion arrived at as regards  desertion  by
the learned Family Judge which has been concurred with by the High Court  is
absolutely erroneous and, accordingly, we overturn the same.

30.   From the foregoing analysis, it is established that  the  husband  has
proved his case of mental cruelty  which  was  the  foundation  for  seeking
divorce.   Therefore,  despite  dislodging  the  finding  of  desertion,  we
conclude and hold that the respondent husband has  rightly  been  granted  a
decree of divorce.

31.   The next issue that emerges for consideration pertains  to  the  grant
of permanent alimony.  It is noticeable that the wife had filed a  case  for
grant  of  maintenance  and  residence  under  the   Hindu   Adoptions   and
Maintenance Act, 1956 at Hyderabad.  The High Court has granted Rs. 12,500/-
 per month from the date of filing of the petition for maintenance and  Rs.5
Lacs each to the wife and son towards permanent alimony.  Whether  the  High
Court should have granted Rs.12500/- as maintenance need  not  be  addressed
by us inasmuch as we are inclined to  deal  with  this  issue  of  grant  of
permanent alimony in a different backdrop.  As is evincible from the  orders
of this Court when the matters were listed on 9.4.2012, the Court had  taken
note of the fact that the wife  and  son  have  been  living  separately  at
Hyderabad for about 16 years and, in that context, the following  order  was
passed :-

           “Looking to the financial and social status of the  parties,  we
           request the learned senior counsel appearing for the  respondent
           to ask his client to arrange for one flat for the petitioner and
           their so that they can live in the said flat comfortably.

           On this suggestion, being given by  the  Court,  learned  senior
           counsel appearing for the respondent prayed  for  time  to  seek
           instructions.”

32.   On 30.4.2012, the following order came to be passed:-

           “As per the Order passed by this Court  on  09.04.2012,  learned
           senior counsel appearing  for  the  respondent-husband  informed
           that respondent is ready and willing  to  buy  a  flat  for  the
           petitioner in Hyderabad, so that she will have a roof  over  her
           head for all the times to come.

                 However, the details of the same are required to be  worked
           out.

                 It is, therefore, desirable that both  the  parties  should
           remain present in this Court on 10.07.2012.

                 Without prejudice, a sum of Rs. 10 lakhs by way  of  Demand
           Draft is being paid by the respondent-  husband  to  petitioner-
           wife.  Other Rs. 10 lakhs is in deposit with the Family Court at
           Chennai.   Petitioner  will  be  at  liberty  to  withdraw  this
           amount.”

33.   We have reproduced the aforesaid orders to highlight that the  husband
had agreed to buy a flat  at  Hyderabad.    However,  when  the  matter  was
listed thereafter, there was disagreement with regard  to  the  locality  of
the flat arranged by the husband and, therefore, the  matter  was  heard  on
merits.   We have already opined that the husband has made out  a  case  for
divorce by proving mental cruelty.   
As a decree  is  passed,  the  wife  is
entitled to permanent alimony for  her  sustenance.   Be  it  stated,  while
granting permanent alimony, no arithmetic formula can be  adopted  as  there
cannot be mathematical exactitude.  It shall depend upon the status  of  the
parties, their respective  social  needs,  the  financial  capacity  of  the
husband  and  other  obligations.   
In  Vinny  Parmvir  Parmar  v.   Parmvir
Parmar[28],
while dealing with the concept of permanent alimony, this  Court
has observed that while granting permanent alimony, the  Court  is  required
to take note of the fact that the amount of maintenance fixed for  the  wife
should be such as she can live in reasonable comfort considering her  status
and the mode of life she was used to when she lived with  her  husband.   At
the same time, the amount so fixed cannot be excessive or affect the  living
condition of the other party.

34.  Keeping in mind the aforesaid  broad  principles,  we  may  proceed  to
address the issue.
The respondent himself has asserted that he  has  earned
name and fame in the world of music and  has  been  performing  concerts  in
various parts of India  and  abroad.   He  had  agreed  to  buy  a  flat  in
Hyderabad though it did not materialise because of the demand  of  the  wife
to have a flat in a different locality  where  the  price  of  the  flat  is
extremely high.  
 Be that as it may, it is the duty  of  the  Court  to  see
that the wife lives with dignity and comfort and not in penury.  The  living
need not be luxurious but simultaneously she should not be left to  live  in
discomfort.  The Court has to act with  pragmatic  sensibility  to  such  an
issue so that the wife does  not  meet  any  kind  of  man-made  misfortune.
Regard being had to the status of the husband, the social  strata  to  which
the parties belong and further taking note of the orders of  this  Court  on
earlier occasions, 
we think it appropriate to fix the permanent  alimony  at
Rs 50 lacs which shall be deposited before the learned Family  Judge  within
a period of four months out of which Rs.20 lacs shall be  kept  in  a  fixed
deposit in the name of the  son  in  a  nationalized  bank  which  would  be
utilised for his benefit.  The deposit shall be made in  such  a  manner  so
that the respondent wife would be in a position to  draw  maximum  quarterly
interest.  We may want to clarify that any amount  deposited  earlier  shall
stand excluded.

35.   On the basis of the forgoing discussion, the  decree  for  dissolution
of marriage  is  affirmed  only  on  the  ground  of  mental  cruelty  which
eventually leads to dismissal of the appeals.  The parties shall bear  their
respective costs.



                                                             ……………………………….J.
                                                       [K. S. Radhakrishnan]



New Delhi;                      ……………………………….J.
December 11, 2012                      [Dipak Misra]


-----------------------
[1]    (1975) 2 SCC 326
[2]    AIR 1990 Kerala 1
[3]    (2002) 5 SCC 706
[4]    (2002) 2 SCC 619
[5]    (1988) 1 SCC 105
[6]    (2010) 4 SCC 339
[7]    (2006) 13 SCC 272
[8]    (1993) 4 SCC 232
[9]    (2007) 9 SCC 217
[10]   (1975) 4 SCC 664

[11]   (2007) 5 SCC 730

[12]   (2010) 9 SCC 712

[13]   (2011) 4 SCC 240

[14]   (2007) 4 SCC 511

[15]   (2010) 4 SCC 476

[16]   (2012) 7 SCC 288

[17]   (1981) 4 SCC 250
[18]   (1966) 2 WLR 993
[19]   (1994) 1 SCC 337

[20]   (2003) 6 SCC 334
[21]   (2005) 2 SCC 22
[22]    (2009) 1 SCC 422
[23]   (2009) 1 SCC 422
[24]   (1994) 6 SCC 29

[25]   (2003) 1 SCC 6

[26]   (2005) 6 SCC 211

[27]   (2009) 9 SCC 346

[28]   (2011) 13 SCC 112



-----------------------
30





No comments:

Post a Comment

Note: Only a member of this blog may post a comment.