' Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4905 OF 2012
(Arising out of S.L.P. (Civil) No. 16528 of 2007)
Vishwanath S/o Sitaram Agrawal .............Appellant
Versus
Sau. Sarla Vishwanath Agrawal .........Respondent
JUDGMENT
DIPAK MISRA, J.
Leave granted.
2. The marriage between the appellant and the respondent was
solemnized on the 30th of April, 1979 as per the Hindu rites at
Akola. In the wedlock, two sons, namely, Vishal and Rahul, were
born on 23.9.1982 and 1.11.1984 respectively. As the appellant-
husband felt that there was total discord in their marital life and
compatibility looked like a mirage, he filed a petition for divorce
2
under Section 13(1) (ia) of The Hindu Marriage Act, 1955 (for
brevity `the Act').
3. It was the case of the appellant before the court of first
instance that the respondent-wife did not know how to conduct
herself as a wife and daughter-in-law and despite persuasion, her
behavioural pattern remained unchanged. The birth of the
children had no impact on her conduct and everything worsened
with the efflux of time. The behaviour of the respondent with the
relatives and guests who used to come to their house was far
from being desirable and, in fact, it exhibited arrogance and lack
of culture and, in a way, endangered the social reputation of the
family. That apart, she did not have the slightest respect for her
mother-in-law. Despite the old lady being a patient of diabetes
and hyper tension, it could not invoke any sympathy from the
respondent and hence, there was total absence of care or
concern.
4. As pleaded, in the month of March, 1990, there was a
dacoity in the house where the appellant was staying and,
therefore, they shifted to the ginning factory and eventually, on
17.3.1991, shifted to their own three storeyed building situate in
3
Gandhi Chowk. Even with the passage of time, instead of
bringing maturity in the attitude of the respondent, it brought a
sense of established selfishness and non-concern for the
children. Whim and irrationality reigned in her day-to-day
behaviour and frequent quarrels became a daily affair. As
misfortune would have it, on 23.1.1994, the mother of the
appellant died and the freer atmosphere at home gave immense
independence to the respondent to make the life of the appellant
more troublesome. The appellant and his father were compelled
to do their personal work as the entire attention of the servants
was diverted in a compulsive manner towards her. Her immature
perception of life reached its zenith when on certain occasions
she used to hide the keys of the motorcycle and close the gate so
that the appellant could not go to the office of the factory to look
after the business. Frequent phone calls were made to the
factory solely for the purpose of abusing and causing mental
agony to the appellant. As asserted, the appellant and his sons
used to sleep on the second floor whereas the respondent used to
sleep in the bedroom on the third floor and their relationship
slowly but constantly got estranged. As the cruelty became
intolerable, the appellant visited his in-laws and disclosed the
4
same but it had no effect on her behaviour. Eventually, on
1.5.1995, the respondent was left at the house of her parents at
Akola and the appellant stayed in his house with the two sons.
As the factual matrix would unveil, on 24.7.1995, a notice issued
by her advocate was published in the daily "Lokmat" stating,
inter alia, that the appellant is a womaniser and addicted to
liquor. On 11.10.1995, at 4.00 p.m., the respondent came to the
house of the appellant at Gandhi Chowk and abused the father,
the children and the appellant. She, in fact, created a violent
atmosphere in the house as well as in the office by damaging the
property and causing mental torture to the appellant and also to
the family members which compelled the appellant to lodge a
complaint at the Police Station, Chopda. It was alleged that she
had brought gundas and certain women to cause that incident.
The said untoward incident brought the A.S.P., Jalgaon, to the
spot. The publication in the newspaper and the later incident
both occurred during the pendency of the divorce petition and
they were incorporated by way of amendment. On the aforesaid
basis, it was contended that the respondent had treated the
appellant with cruelty and hence, he was entitled to a decree for
divorce.
5
5. The asseverations made in the petition were controverted by
the respondent stating that she was always respectful and cordial
to her in-laws, relatives and the guests as was expected from a
cultured daughter-in-law. They led a happy married life for 16
years and at no point of time she showed any arrogance or any
behaviour which could remotely suggest any kind of cruelty. She
attended to her mother-in-law all the time with a sense of
committed service and at no point of time there was any
dissatisfaction on her part. She disputed the allegation that she
had hidden the keys of the motorcycle or closed the gate or
repeatedly called the appellant on phone at the office to abuse
him or to disturb him in his work. It is her stand that the
appellant owns an oil mill, ginning factory and a petrol pump at
Chopda and had sold certain non-agricultural land by
demarcating it into small plots. The appellant, as alleged, joined
the computer classes which were run by one Neeta Gujarathi in
the name and style of "Om Computer Services" and gradually the
appellant started spending much of his time at the computer
centre instead of attending to his own business in the factory.
When the respondent became aware of the intimacy, she took
6
serious objection to the same and therefrom their relationship
became bitter.
6. It was alleged by the respondent that she was disturbed
after knowing about the involvement of the appellant with
another lady despite having an established family life and two
adolescent sons and, therefore, she was compelled to make
phone calls to make enquiries about his whereabouts. As the
interference by the respondent was not appreciated by the
appellant, he took the respondent on 1.5.1995 to Akola and left
her at her parental house and never cared to bring her back to
her matrimonial home. Her willingness to come back and stay
with the husband and children could not get fructified because of
the totally indifferent attitude shown by the appellant. Her
attempts to see the children in the school became an exercise in
futility, as the husband, who is a trustee of the school, managed
to ensure that the boys did not meet her. It was further alleged
that the said Neeta lived with him as his mistress and when the
respondent came to know about it, she went to Chopda to
ascertain the same and coming to know that Neeta was in the
house of the appellant, she made an effort to enter into the house
but she was assaulted. This resulted in gathering of people of
7
the locality and the appellant-husband, as a counter-blast,
lodged a complaint at the police station. The Deputy
Superintendent of Police arrived at the scene and found that
Neeta was inside the house and thereafter she was taken back to
her house by the police. Because of the involvement of the
appellant with the said Neeta, he had concocted the story of
cruelty and filed the petition for divorce.
7. The learned trial Judge framed as many as four issues. The
two vital issues were whether the appellant had been able to
prove the alleged cruelty and whether he was entitled to take
disadvantage of his own wrong. The appellant, in order to prove
the allegation of cruelty, examined ten witnesses and on behalf of
the respondent, eight witnesses were examined. The learned trial
Judge, analysing the evidence on record, came to hold that there
was conjugal relationship till 1.5.1995; that there was no
substantial material on record to demonstrate that the
respondent had behaved with immaturity immediately after
marriage; that in the absence of cogent evidence, it was difficult
to hold that the respondent had troubled the husband and his
parents; that the evidence of PW-3, Ramesh, was not worthy of
acceptance as he is close and an interested witness; that the
8
allegation that whenever she used to go to her parental home,
she was granting leave to the servants was not acceptable; that
the appellant should have examined some of the servants
including the maid servant but for some reason or other had
withheld the best evidence; that the plea that the respondent was
not looking after her mother-in-law who was suffering from
paralysis from 1984 has not been proven; that the allegation that
the respondent was hiding the uniforms of the children and not
treating them well had not been proven because the version of
Vishal could not be accepted as he was staying with the father
and, therefore, it was natural for him to speak in favour of the
father; that the stand that the respondent was hiding the keys of
the motorcycle and crumpling the ironed clothes of the appellant
did not constitute mental cruelty as the said acts, being childish,
were enjoyed by the appellant-husband; that the factum of abuse
by the respondent on telephone had not been established by
adducing reliable evidence; that the respondent and the appellant
were sleeping on the third floor of the house and hence, she was
sleeping with him in the bedroom and the allegation that he was
deprived of sexual satisfaction from 1991 was unacceptable; that
from the witnesses cited on behalf of the respondent, it was
9
demonstrable that her behaviour towards her sons and in-laws
was extremely good; that even if the allegations made by the
appellant were accepted to have been established to some extent,
it could only be considered as normal wear and tear of the
marital life; that the plea of mental cruelty had not been proven
as none of the allegations had been established by adducing
acceptable, consistent and cogent evidence; that the notice
published in the daily "Lokmat" on 28.7.1995 and the later
incident dated 11.10.1995 being incidents subsequent to the
filing of the petition for divorce, the same were not to be taken
into consideration.
8. The learned trial Judge further returned the finding that the
appellant was going to learn computer and taking instructions
from Neeta Gujarathi and the plea that she was engaged as a
Computer Operator in his office was not believable as no
appointment letter was produced; that the stand that she was
paid Rs.1200/- per month was not worthy of any credence as she
was operating a computer centre; that from the evidence of the
witnesses of the respondent, namely, RW-3 to RW-5, it was clear
that Neeta Gujarathi was living with the appellant in his house
and he had developed intimacy with her and, therefore, the
10
subsequent events, even if analysed, were to be so done on the
said backdrop; that the allegation that there was a gathering and
they were violent and broke the windows was really not proven by
adducing credible evidence; that the testimony of the witnesses of
the respondent clearly reveal that Neeta was inside the house of
the appellant and effort was made to bring her out from the
house and no damage was caused to the property; that on that
day, the police had come in the mid night hours and taken out
Neeta from the house of the appellant and left her at her house;
that the notice which was published in "Lokmat" was to protect
the interest of the sons in the property and basically pertained to
the appellant's alienating the property; that the public notice was
not unfounded or baseless and the question of defaming him and
thereby causing any mental cruelty did not arise; that the
allegations made in the application for grant of interim alimony
that the appellant is a womaniser and is addicted to liquor
cannot be considered for the purpose of arriving at the
conclusion that the husband was meted with cruelty; that the
allegations made in the written statement having been found to
be truthful, the same could not be said to have caused any
mental cruelty; that the cumulative effect of the evidence brought
11
on record was that no mental cruelty was ever caused by the
respondent; and that the husband could not take advantage of
his own wrong. Being of this view, the learned trial Judge
dismissed the application with costs and also dismissed the
application of the respondent-wife for grant of permanent
alimony.
9. Grieved by the aforesaid decision, the appellant-husband
preferred Civil Appeal No. 23 of 1999. The first appellate court
appreciated the evidence, dealt with the findings returned by the
trial court and eventually came to hold that the cumulative effect
of the evidence and the material brought on record would go a
long way to show that the appellant had failed to make out a case
of mental cruelty to entitle him to obtain a decree for divorce.
The aforesaid conclusion by the appellate court entailed
dismissal of the appeal.
10. Being dissatisfied with the judgment and decree passed by
the learned appellate Judge, the husband preferred Second
Appeal No. 683 of 2006 before the High Court. The learned
single Judge of the High Court came to hold that there were
concurrent findings of fact and no substantial question of law
12
was involved. However, the learned single Judge observed that
the sons of the parties had grown up and have been married; that
the parties had no intention to patch up the matrimonial discord;
and that the marriage had been irretrievably broken but that
could not be considered by the High Court but only by the Apex
Court under Article 142 of the Constitution. Expressing the
aforesaid view, he did not admit the appeal and dismissed the
same.
11. We have heard Mr. Arvind V. Sawant, learned senior
counsel for the appellant-husband, and Mr. Vivek C. Solshe,
learned counsel for the respondent-wife.
12. At the very outset, we would like to make it clear that
though the learned single Judge of the High Court has expressed
the view that the parties are at logger heads and have shown no
inclination to patch the matrimonial rupture and the sons have
grown up and got married and with the efflux of time, the
relationship has been further shattered and hence, the marriage
is irretrievably broken and only this Court can grant divorce in
exercise of power under Article 142 of the Constitution, yet we
13
are not going to take recourse to the same and only address
ourselves whether a case for divorce has really been made out.
13. At this juncture, we may note with profit that the learned
senior counsel for the appellant exclusively rested his case on the
foundation of mental cruelty. It is his submission that if the
evidence of the husband and other witnesses are scrutinized in
an apposite manner along with the stand and stance taken in the
written statement, it will clearly reveal a case of mental cruelty
regard being had to the social status of the appellant. It is urged
by him that the trial court as well as the appellate court have not
given any credence to the evidence of some of the witnesses on
the ground that they are interested witnesses though they are the
most natural witnesses who had witnessed the cruel behaviour
meted to the appellant.
14. It is the submission of the learned senior counsel for the
appellant that the court of first instance as well as the appellate
court have failed to take into consideration certain material
aspects of the evidence and the appreciation of evidence being
absolutely perverse, the High Court would have been well advised
to scan and scrutinize the same but it declined to admit the
14
appeal on the ground that there are concurrent findings of fact.
It is canvassed by him that this Court, in exercise of power under
Article 136 of the Constitution, can dislodge such concurrent
findings of facts which are perverse, baseless, unreasonable and
contrary to the material on record.
15. The learned counsel for the respondent, resisting the
aforesaid submissions, contended that the view expressed by the
High Court cannot be found fault with as the courts below have,
at great length, discussed the evidence and appreciated the same
with utmost prudence and objectivity and there is nothing on
record to show that any material part of the evidence has been
ignored or something extraneous to the record has been taken
into consideration. It is highlighted by him that the stand put
forth by the wife in her written statement having been
established, the same cannot be construed to have constituted
mental cruelty. Lastly, it is put forth that the appellant has
created a dent in the institution of marriage and made a
maladroit effort to take advantage of his own wrong which should
not be allowed.
15
16. First, we shall advert to what actually constitutes `mental
cruelty' and whether in the case at hand, the plea of mental
cruelty has been established and thereafter proceed to address
whether the courts below have adopted an approach which is
perverse, unreasonable and unsupported by the evidence on
record and totally unacceptable to invite the discretion of this
Court in exercise of power under Article 136 of the Constitution
to dislodge the same.
17. The expression `cruelty' has an 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, temperaments and emotions that
have been conditioned by their social status. In
Sirajmohamedkhan Janmohamadkhan v. Hafizunnisa
Yasinkhan and another1, a two-Judge Bench approved the
concept of legal cruelty as expounded in Sm. Pancho v. Ram
Prasad2 wherein it was stated thus: -
"Conception of legal cruelty undergoes
changes according to the changes and
advancement of social concept and standards
of living. With the advancement of our social
conceptions, this feature has obtained
1
(1981) 4 SCC 250
2
AIR 1956 All 41
16
legislative recognition that a second marriage
is a sufficient ground for separate residence
and separate maintenance. Moreover, to
establish legal cruelty, it is not necessary that
physical violence should be used.
Continuous ill-treatment, cessation of
marital intercourse, studied neglect,
indifference on the part of the husband, and
an assertion on the part of the husband that
the wife is unchaste are all factors which may
undermine the health of a wife."
It is apt to note here that the said observations were made
while dealing with the Hindu Married Women's Right to Separate
Residence and Maintenance Act (19 of 1946). This Court, after
reproducing the passage, has observed that the learned Judge
has put his finger on the correct aspect and object of mental
cruelty.
18. In Shobha Rani v. Madhukar Reddi3, while dealing with
`cruelty' under Section 13(1)(ia) of the Act, this Court observed
that the said provision does not define `cruelty' and the same
could not be defined. The `cruelty' may be mental or physical,
intentional or unintentional. If it is physical, the court will have
no problem to determine it. It is a question of fact and degree. If
it is mental, the problem presents difficulty. Thereafter, the
Bench proceeded to state as follows: -
3
(1988) 1 SCC 105
17
"First, the enquiry must begin as to the nature
of the cruel treatment. Second, 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, it 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."
19. After so stating, this Court observed about the marked
change in life in modern times and the sea change in matrimonial
duties and responsibilities. It has been observed that when a
spouse makes a complaint about treatment of cruelty by the
partner in life or relations, the court should not search for
standard in life. A set of facts stigmatized as cruelty in one case
may not be so in another case. The cruelty alleged may largely
depend upon the type of life the parties are accustomed to or
their economic and social conditions. It may also depend upon
their culture and human values to which they attach importance.
Their Lordships referred to the observations made in Sheldon v.
18
Sheldon4 wherein Lord Denning stated, "the categories of cruelty
are not closed". Thereafter, the Bench proceeded to state thus: -
"Each case may be different. We deal with the
conduct of human beings who are not
generally similar. Among the human beings
there is no limit to the kind of conduct which
may constitute cruelty. New type of cruelty
may crop up in any case depending upon the
human behaviour, capacity or incapability to
tolerate the conduct complained of. Such is
the wonderful (sic) realm of cruelty.
These preliminary observations are intended to
emphasise that the court in matrimonial cases
is not concerned with ideals in family life. The
court has only to understand the spouses
concerned as nature made them, and consider
their particular grievance. As Lord Ried
5
observed in Gollins v. Gollins :
In matrimonial affairs we are not
dealing with objective standards, it is not
a matrimonial offence to fall below the
standard of the reasonable man (or the
reasonable woman). We are dealing with
this man or this woman."
20. In V. Bhagat v. D. Bhagat (Mrs.)6, a two-Judge Bench
referred to the amendment that had taken place in Sections 10
and 13(1)(ia) after the Hindu Marriage Laws (Amendment) Act,
1976 and proceeded to hold that the earlier requirement that
such cruelty has caused a reasonable apprehension in the mind
4
(1966) 2 All ER 257
5
(1963) 2 All ER 966
6
(1994) 1 SCC 337
19
of a spouse that it would be harmful or injurious for him/her to
live with the other one is no longer the requirement. Thereafter,
this Court proceeded to deal with what constitutes mental cruelty
as contemplated in Section 13(1)(ia) and observed that mental
cruelty in the said provision 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. To put it differently, the mental cruelty must be
of such a nature that the parties cannot reasonably be expected
to live together. The situation must be such that the wronged
party cannot reasonably be asked to put up with such conduct
and continue to live with the other party. It was further
observed, while arriving at such conclusion, that 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. What is cruelty in one
case may not amount to cruelty in another case and it has to be
determined in each case keeping in view the facts and
circumstances of that case. That apart, the accusations and
allegations have to be scrutinized in the context in which they are
20
made. Be it noted, in the said case, this Court quoted extensively
from the allegations made in the written statement and the
evidence brought on record and came to hold that the said
allegations and counter allegations were not in the realm of
ordinary plea of defence and did amount to mental cruelty.
21. In Praveen Mehta v. Inderjit Mehta7, it has been held that
mental cruelty is a state of mind and feeling with one of the
spouses due to behaviour or behavioural pattern by the other.
Mental cruelty cannot be established by direct evidence and 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 facts and circumstances are to be assessed
emerging from the evidence on record and thereafter, a fair
inference has to be drawn whether the petitioner in the divorce
petition has been subjected to mental cruelty due to the conduct
of the other.
7
AIR 2002 SC 2582
21
22. In Vijaykumar Ramchandra Bhate v. Neela Vijaykumar
Bhate8, it has been opined that a conscious and deliberate
statement levelled with pungency and that too placed on record,
through the written statement, cannot be so lightly ignored or
brushed aside.
23. In A. Jayachandra v. Aneel Kaur9, it has been ruled that
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 and environment in
which they live. If from the conduct of the spouse, it is
established and/or an inference can legitimately be 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 the same would amount to cruelty. While
dealing with the concept of mental cruelty, enquiry must begin as
to the nature of cruel treatment and the impact of such
treatment in the mind of the spouse. It has to be seen whether
the conduct is such that no reasonable person would tolerate it.
8
AIR 2003 SC 2462
9
(2005) 2 SCC 22
22
24. In Vinita Saxena v. Pankaj Pandit10, it has been ruled
that as to what constitutes mental cruelty for the purposes of
Section 13(1)(ia) will not depend upon the numerical count of
such incident or only on the continuous course of such conduct
but one has to really go by the intensity, gravity and stigmatic
impact of it when meted out even once and the deleterious effect
of it on the mental attitude necessary for maintaining a
conducive matrimonial home.
25. In Samar Ghosh v. Jaya Ghosh11, this Court, after
surveying the previous decisions and referring to the concept of
cruelty, which includes mental cruelty, in English, American,
Canadian and Australian cases, has observed that 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
10
(2006) 3 SCC 778
11
(2007) 4 SCC 511
23
belief, human values and their value system. 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 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.
26. In Suman Kapur v. Sudhir Kapur12, after referring to
various decisions in the field, this Court took note of the fact that
the wife had neglected to carry out the matrimonial obligations
and further, during the pendency of the mediation proceeding,
had sent a notice to the husband through her advocate alleging
that he had another wife in USA whose identity was concealed.
The said allegation was based on the fact that in his income-tax
return, the husband mentioned the "Social Security Number" of
his wife which did not belong to the wife, but to an American
lady. The husband offered an explanation that it was merely a
12
AIR 2009 SC 589
24
typographical error and nothing else. The High Court had
observed that taking undue advantage of the error in the "Social
Security Number", the wife had gone to the extent of making
serious allegation that the husband had married an American
woman whose "Social Security Number" was wrongly typed in the
income-tax return of the husband. This fact also weighed with
this Court and was treated that the entire conduct of the wife did
tantamount to mental cruelty.
27. Keeping in view the aforesaid enunciation of law pertaining
to mental cruelty, it is to be scrutinized whether in the case at
hand, there has been real mental cruelty or not, but, a significant
one, the said scrutiny can only be done if the findings are
perverse, unreasonable, against the material record or based on
non-consideration of relevant materials. We may note here that
the High Court has, in a singular line, declined to interfere with
the judgment and decree of the courts below stating that they are
based on concurrent findings of fact. The plea of perversity of
approach though raised was not adverted to.
28. It is worth noting that this Court, in Kulwant Kaur v.
Gurdial Singh Mann (dead) by L.Rs. and others13, has held
13
AIR 2001 SC 1273
25
that while it is true that in a second appeal, a finding of fact,
even if erroneous, will generally not be disturbed but where it is
found that the findings stand vitiated on wrong test and on the
basis of assumptions and conjectures and resultantly there is an
element of perversity involved therein, the High Court will be
within its jurisdiction to deal with the issue. An issue pertaining
to perversity comes within the ambit of substantial question of
law. Similar view has been stated in Govindaraju v.
Mariamman14.
29. In Major Singh v. Rattan Singh (Dead) by LRs and
others15, it has been observed that when the courts below had
rejected and disbelieved the evidence on unacceptable grounds, it
is the duty of the High Court to consider whether the reasons
given by the courts below are sustainable in law while hearing an
appeal under Section 100 of the Code of Civil Procedure.
30. In Vidhyadhar v. Manikrao and another16, it has been
ruled that the High Court in a second appeal should not disturb
the concurrent findings of fact unless it is shown that the
findings recorded by the courts below are perverse being based
14
(2005) 2 SCC 500
15
AIR 1997 SC 1906
16
(1999) 3 SCC 573
26
on no evidence or that on the evidence on record, no reasonable
person could have come to that conclusion. We may note here
that solely because another view is possible on the basis of the
evidence, the High Court would not be entitled to exercise the
jurisdiction under Section 100 of the Code of Civil Procedure.
This view of ours has been fortified by the decision of this Court
17
in Abdul Raheem v. Karnataka Electricity Board & Ors. .
31. Having stated the law relating to mental cruelty and the
dictum of this Court in respect of the jurisdiction of the High
Court where concurrent findings of fact are assailed, as advised
at present, we will scan the evidence whether the High Court has
failed to exercise the jurisdiction conferred on it despite the plea
of perversity being raised. Any finding which is not supported by
evidence or inferences is drawn in a stretched and unacceptable
manner can be said to be perverse. This Court in exercise of
power under Article 136 of the Constitution can interfere with
concurrent findings of fact, if the conclusions recorded by the
High Court are manifestly perverse and unsupported by the
evidence on record. It has been so held in Alamelu and
17
AIR 2008 SC 956
27
another v. State, Represented by Inspector of Police 18 and
Heinz India Pvt. Ltd. & Anr. v. State of U.P. & Ors.19
32. Presently, to the core issue, viz, whether the appellant-
husband had made out a case for mental cruelty to entitle him to
get a decree for divorce. At this juncture, we may unhesitantly
state that the trial court as well as the first appellate court have
disbelieved the evidence of most of the witnesses cited on behalf
of the husband on the ground that they are interested witnesses.
In a matrimonial dispute, it would be inappropriate to expect
outsiders to come and depose. The family members and
sometimes the relatives, friends and neighbours are the most
natural witnesses. The veracity of the testimony is to be tested
on objective parameters and not to be thrown overboard on the
ground that the witnesses are related to either of the spouse.
Exception has been taken by the courts below that the servants
of the house should have been examined and that amounts to
suppression of the best possible evidence. That apart, the
allegations made in the written statement, the dismissal of the
case instituted by the wife under Section 494 of the Indian Penal
Code, the non-judging of the material regard being had to the
18
AIR 2011 SC 715
19
(2012) 3 SCALE 607 = (2012) 2 KLT (SN) 64
28
social status, the mental make-up, the milieu and the rejection of
subsequent events on the count that they are subsequent to the
filing of the petition for divorce and also giving flimsy reasons not
to place reliance on the same, we are disposed to think, deserve
to be tested on the anvil of "perversity of approach". Quite apart
from the above, a significant question that emerges is whether
the reasons ascribed by the courts below that the allegations
made in the written statement alleging extra marital affair of the
appellant-husband with Neeta Gujarathi has been established
and, therefore, it would not constitute mental cruelty are
perverse and unacceptable or justified on the basis of the
evidence brought on record. These are the aspects which need to
be scrutinized and appositely delved into.
33. The appellant-husband, examining himself as PW-1, has
categorically stated that the wife used to hide the pressed clothes
while he was getting ready to go to the factory. Sometimes she
used to crumple the ironed clothes and hide the keys of the
motorcycle or close the main gate. In the cross-examination, it is
clearly stated that the wife was crumpling the ironed clothes,
hiding the keys of the motorcycle and locking the gate to trouble
him and the said incidents were taking place for a long time.
29
This being the evidence on record, we are at a loss to find that
the courts below could record a finding that the appellant used to
enjoy the childish and fanciful behaviour of the wife pertaining to
the aforesaid aspect. This finding is definitely based on no
evidence. Such a conclusion cannot be reached even by
inference. If we allow ourselves to say so, even surmises and
conjectures would not permit such a finding to be recorded. It is
apt to note here that it does not require Solomon's wisdom to
understand the embarrassment and harassment that might have
been felt by the husband. The level of disappointment on his
part can be well visualised like a moon in a cloudless sky.
34. Now we shall advert to the allegation made in the written
statement. The respondent-wife had made the allegation that the
husband had an illicit relationship with Neeta Gujarathi. The
learned trial Judge has opined that the said allegation having
been proved cannot be treated to have caused mental cruelty. He
has referred to various authorities of many High Courts. The
heart of the matter is whether such an allegation has actually
been proven by adducing acceptable evidence. It is worth noting
that the respondent had filed a complaint, RCC No. 91/95, under
Section 494 of the Indian Penal Code against the husband. He
30
was discharged in the said case. The said order has gone
unassailed. The learned trial Judge has expressed the view that
Neeta Gujarathi was having a relationship with the husband on
the basis that though the husband had admitted that she was
working in his office yet he had not produced any appointment
letter to show that she was appointed as a computer operator.
The trial Judge has relied on the evidence of the wife. The wife in
her evidence has stated in an extremely bald manner that
whenever she had telephoned to the office in the factory, the
husband was not there and further that the presence of Neeta
Gujarathi was not liked by her in-laws and the elder son Vishal.
On a careful reading of the judgment of the trial court, it is
demonstrable that it has been persuaded to return such a finding
on the basis of the incident that took place on 11.10.1995. It is
worth noting that the wife, who examined herself as RW-1, stated
in her evidence that Vishal was deposing against her as the
appellant had given him a scooter. The learned trial Judge has
given immense credence to the version of the social worker who,
on the date of the incident, had come to the house of the
appellant where a large crowd had gathered and has deposed
that she had seen Neeta going and coming out of the house. The
31
evidence of the wife, when studiedly scrutinized, would show that
there was more of suspicion than any kind of truth in it. As has
been stated earlier, the respondent had made an allegation that
her son was influenced by the appellant-husband. The learned
trial Judge as well as the appellate court have accepted the same.
It is germane to note that Vishal, the elder son, was
approximately 16 years of age at the time of examination in
court. There is remotely no suggestion to the said witness that
when Neeta Gujarati used to go to the house, his grandfather
expressed any kind of disapproval. Thus, the whole thing seems
to have rested on the incident of 11.10.1995. On that day, as the
material on record would show, at 4.00 p.m., the wife arrived at
the house of the husband. She has admitted that she wanted to
see her father-in-law who was not keeping well. After she went
in, her father-in-law got up from the chair and went upstairs.
She was not permitted to go upstairs. It is testified by her that
her father-in-law came down and slapped her. She has deposed
about the gathering of people and publication in the newspapers
about the incident. Vishal, PW-5, has stated that the mother had
pushed the grandfather from the chair. The truthfulness of the
said aspect need not be dwelled upon. The fact remains that the
32
testimony of the wife that the father-in-law did not like the visit of
Neeta does not appear to be true. Had it been so, he would not
have behaved in the manner as deposed by the wife. That apart,
common sense does not give consent to the theory that both, the
father of the husband and his son, Vishal, abandoned normal
perception of life and acceded to the illicit intimacy with Neeta. It
is interesting to note that she has deposed that it was published
in the papers that the daughter-in-law was slapped by the father-
in-law and Neeta Gujarathi was recovered from the house but
eventually the police lodged a case against the husband, the
father-in-law and other relatives under Section 498A of the
Indian Penal Code. We really fail to fathom how from this
incident and some cryptic evidence on record, it can be
concluded that the respondent-wife had established that the
husband had an extra marital relationship with Neeta Gujarathi.
That apart, in the application for grant of interim maintenance,
she had pleaded that the husband was a womaniser and
drunkard. This pleading was wholly unwarranted and, in fact,
amounts to a deliberate assault on the character. Thus, we have
no scintilla of doubt that the uncalled for allegations are bound
to create mental agony and anguish in the mind of the husband.
33
35. Another aspect needs to be taken note of. She had made
allegation about the demand of dowry. RCC No. 133/95 was
instituted under Section 498A of the Indian Penal Code against
the husband, father-in-law and other relatives. They have been
acquitted in that case. The said decision of acquittal has not
been assailed before the higher forum. Hence, the allegation on
this count was incorrect and untruthful and it can unhesitatingly
be stated that such an act creates mental trauma in the mind of
the husband as no one would like to face a criminal proceeding of
this nature on baseless and untruthful allegations.
36. Presently to the subsequent events. The courts below have
opined that the publication of notice in the daily "Lokmat" and
the occurrence that took place on 11.10.1995 could not be
considered as the said events occurred after filing of the petition
for divorce. Thereafter, the courts below have proceeded to deal
with the effect of the said events on the assumption that they can
be taken into consideration. As far as the first incident is
concerned, a view has been expressed that the notice was
published by the wife to safeguard the interests of the children,
and the second one was a reaction on the part of the wife relating
to the relationship of the husband with Neeta Gujrathi. We have
34
already referred to the second incident and expressed the view
that the said incident does not establish that there was an extra
marital relationship between Neeta and the appellant. We have
referred to the said incident as we are of the considered opinion
that the subsequent events can be taken into consideration. In
this context, we may profitably refer to the observations made by
a three-Judge Bench in the case of A. Jayachandra (supra) :-
"The matter can be looked at from
another angle. If acts subsequent to the filing
of the divorce petition can be looked into to
infer condonation of the aberrations, acts
subsequent to the filing of the petition can be
taken note of to show a pattern in the
behaviour and conduct."
37. We may also usefully refer to the observations made in
Suman Kapur (supra) wherein the wife had made a maladroit
effort to take advantage of a typographical error in the written
statement and issued a notice to the husband alleging that he
had another wife in USA. Thus, this Court has expressed the
opinion that the subsequent events can be considered.
38. Keeping in view the aforesaid pronouncement of law, we
shall first appreciate the impact of the notice published in the
35
"Lokmat". The relevant part of the said notice, as published in
the newspaper, reads as follows: -
"Shri Vishwanath Sitaram Agrawal is having
vices of womanizing, drinking liquor and other
bad habits. He is having monthly income of
Rs.10 lacs, but due to several vices, he is short
of fund. Therefore, he has started selling the
property. He has sold some properties. My
client has tried to make him understand which
is of no use and on the contrary, he has beaten
my client very badly and has driven her away
and dropped her to Akola at her parent's
house.
In the property of Shri Vishwanath
Sitaram Agrawal my client and her two sons
are having shares in the capacity of members
of joint family and Shri Vishwanath Sitaram
Agrawal has no right to dispose of the property
on any ground."
Immense emphasis has been given on the fact that after
publication of the notice, the husband had filed a caveat in the
court. The factual matrix would reveal that the husband comes
from a respectable family engaged in business. At the time of
publication of the notice, the sons were quite grown up. The
respondent-wife did not bother to think what impact it would
have on the reputation of the husband and what mental
discomfort it would cause. It is manifest from the material on
record that the children were staying with the father. They were
36
studying in the school and the father was taking care of
everything. Such a publication in the newspaper having good
circulation can cause trauma, agony and anguish in the mind of
any reasonable man. The explanation given by the wife to the
effect that she wanted to protect the interests of the children, as
we perceive, is absolutely incredible and implausible. The filing
of a caveat is wholly inconsequential. In fact, it can decidedly be
said that it was mala fide and the motive was to demolish the
reputation of the husband in the society by naming him as a
womaniser, drunkard and a man of bad habits.
39. At this stage, we may fruitfully reminisce a poignant
passage from N.G. Dastane v. S. Dastane20 wherein
Chandrachud, J. (as his Lordship then was) observed thus: -
"The court has to deal, not with an ideal
husband and an ideal wife (assuming any
such exist) but with the particular man
and woman before it. The ideal couple or
a near-ideal one will probably have no
occasion to go to a matrimonial court for,
even if they may not be able to drown
their differences, their ideal attitudes may
help them overlook or gloss over mutual
faults and failures."
20
(1975) 3 SCR 967
37
40. Regard being had to the aforesaid, we have to evaluate the
instances. In our considered opinion, a normal reasonable man
is bound to feel the sting and the pungency. The conduct and
circumstances make it graphically clear that the respondent-wife
had really humiliated him and caused mental cruelty. Her
conduct clearly exposits that it has resulted in causing agony
and anguish in the mind of the husband. She had publicised in
the newspapers that he was a womaniser and a drunkard. She
had made wild allegations about his character. She had made an
effort to prosecute him in criminal litigations which she had
failed to prove. The feeling of deep anguish, disappointment,
agony and frustration of the husband is obvious. It can be stated
with certitude that the cumulative effect of 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. The husband felt humiliated
both in private and public life. Indubitably, it created a dent in
his reputation which is not only the salt of life, but also the
purest treasure and the most precious perfume of life. It is
extremely delicate and a cherished value this side of the grave. It
is a revenue generator for the present as well as for the posterity.
38
Thus analysed, it would not be out of place to state that his brain
and the bones must have felt the chill of humiliation. The
dreams sweetly grafted with sanguine fondness with the passage
of time reached the Everstine disaster, possibly, with a vow not to
melt. The cathartic effect looked like a distant mirage. The cruel
behaviour of the wife has frozen the emotions and snuffed out the
bright candle of feeling of the husband because he has been
treated as an unperson. Thus, analysed, it is abundantly clear
that with this mental pain, agony and suffering, the husband
cannot be asked to put up with the conduct of the wife and to
continue to live with her. Therefore, he is entitled to a decree for
divorce.
41. Presently, we shall deal with the aspect pertaining to the
grant of permanent alimony. The court of first instance has
rejected the application filed by the respondent-wife as no decree
for divorce was granted and there was no severance of marital
status. We refrain from commenting on the said view as we have
opined that the husband is entitled to a decree for divorce.
Permanent alimony is to be granted taking into consideration the
social status, the conduct of the parties, the way of living of the
spouse and such other ancillary aspects. During the course of
39
hearing of the matter, we have heard the learned counsel for the
parties on this aspect. After taking instructions from the
respective parties, they have addressed us. The learned senior
counsel for the appellant has submitted that till 21.2.2012, an
amount of Rs.17,60,000/- has been paid towards maintenance to
the wife as directed by the courts below and hence, that should
be deducted from the amount to be fixed. He has further
submitted that the permanent alimony should be fixed at Rs.25
lacs. The learned counsel for the respondent, while insisting for
affirmance of the decisions of the High Court as well as by the
courts below, has submitted that the amount that has already
been paid should not be taken into consideration as the same
has been paid within a span of number of years and the
deduction would affect the future sustenance. He has
emphasised on the income of the husband, the progress in the
business, the inflation in the cost of living and the way of life the
respondent is expected to lead. He has also canvassed that the
age factor and the medical aid and assistance that are likely to be
needed should be considered and the permanent alimony should
be fixed at Rs.75 lacs.
40
42. In our considered opinion, the amount that has already
been paid to the respondent-wife towards alimony is to be
ignored as the same had been paid by virtue of the interim orders
passed by the courts. It is not expected that the respondent-wife
has sustained herself without spending the said money. Keeping
in view the totality of the circumstances and the social strata
from which the parties come from and regard being had to the
business prospects of the appellant, permanent alimony of Rs.50
lacs (rupees fifty lacs only) should be fixed and, accordingly, we
so do. The said amount of Rs.50 lacs (rupees fifty lacs only) shall
be deposited by way of bank draft before the trial court within a
period of four months and the same shall be handed over to the
respondent-wife on proper identification.
43. Consequently, the appeal is allowed, the judgments and
decrees of the courts below are set aside and a decree for divorce
in favour of the appellant is granted. Further, the husband shall
pay Rs.50 lacs (rupees fifty lacs only) towards permanent alimony
to the wife in the manner as directed hereinabove. The parties
shall bear their respective costs.
41
............................................J.
[Deepak Verma]
............................................J.
[Dipak Misra]
New Delhi;
July 04, 2012
42
ITEM NO.1A COURT NO.12 SECTION IX
(FOR JUDGMENT)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL NO.........../2012 arising out of
Petition(s) for Special Leave to Appeal (Civil)
No(s).16528/2007
VISHWANATH S/O SITARAM AGRAWAL Appellant(s)
VERSUS
SAU. SARLA VISHWANATH AGRAWAL Respondent(s)
Date: 04/07/2012 This appeal was called on for
pronouncement of judgment today.
For Petitioner(s) Ms. Chandan Ramamurthi,Adv.
For Respondent(s) Mr. C.G. Solshe,Adv.
Hon'ble Mr. Justice Dipak Misra pronounced the judgment
of the Bench comprising Hon'ble Mr. Justice Deepak Verma and
Hon'ble Mr. Justice Dipak Misra.
Leave granted.
The appeal is allowed in terms of the signed reportable
judgment.
(NARENDRA PRASAD) (RENUKA SADANA)
COURT MASTER COURT MASTER
(Signed reportable judgment is placed on the file)
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4905 OF 2012
(Arising out of S.L.P. (Civil) No. 16528 of 2007)
Vishwanath S/o Sitaram Agrawal .............Appellant
Versus
Sau. Sarla Vishwanath Agrawal .........Respondent
JUDGMENT
DIPAK MISRA, J.
Leave granted.
2. The marriage between the appellant and the respondent was
solemnized on the 30th of April, 1979 as per the Hindu rites at
Akola. In the wedlock, two sons, namely, Vishal and Rahul, were
born on 23.9.1982 and 1.11.1984 respectively. As the appellant-
husband felt that there was total discord in their marital life and
compatibility looked like a mirage, he filed a petition for divorce
2
under Section 13(1) (ia) of The Hindu Marriage Act, 1955 (for
brevity `the Act').
3. It was the case of the appellant before the court of first
instance that the respondent-wife did not know how to conduct
herself as a wife and daughter-in-law and despite persuasion, her
behavioural pattern remained unchanged. The birth of the
children had no impact on her conduct and everything worsened
with the efflux of time. The behaviour of the respondent with the
relatives and guests who used to come to their house was far
from being desirable and, in fact, it exhibited arrogance and lack
of culture and, in a way, endangered the social reputation of the
family. That apart, she did not have the slightest respect for her
mother-in-law. Despite the old lady being a patient of diabetes
and hyper tension, it could not invoke any sympathy from the
respondent and hence, there was total absence of care or
concern.
4. As pleaded, in the month of March, 1990, there was a
dacoity in the house where the appellant was staying and,
therefore, they shifted to the ginning factory and eventually, on
17.3.1991, shifted to their own three storeyed building situate in
3
Gandhi Chowk. Even with the passage of time, instead of
bringing maturity in the attitude of the respondent, it brought a
sense of established selfishness and non-concern for the
children. Whim and irrationality reigned in her day-to-day
behaviour and frequent quarrels became a daily affair. As
misfortune would have it, on 23.1.1994, the mother of the
appellant died and the freer atmosphere at home gave immense
independence to the respondent to make the life of the appellant
more troublesome. The appellant and his father were compelled
to do their personal work as the entire attention of the servants
was diverted in a compulsive manner towards her. Her immature
perception of life reached its zenith when on certain occasions
she used to hide the keys of the motorcycle and close the gate so
that the appellant could not go to the office of the factory to look
after the business. Frequent phone calls were made to the
factory solely for the purpose of abusing and causing mental
agony to the appellant. As asserted, the appellant and his sons
used to sleep on the second floor whereas the respondent used to
sleep in the bedroom on the third floor and their relationship
slowly but constantly got estranged. As the cruelty became
intolerable, the appellant visited his in-laws and disclosed the
4
same but it had no effect on her behaviour. Eventually, on
1.5.1995, the respondent was left at the house of her parents at
Akola and the appellant stayed in his house with the two sons.
As the factual matrix would unveil, on 24.7.1995, a notice issued
by her advocate was published in the daily "Lokmat" stating,
inter alia, that the appellant is a womaniser and addicted to
liquor. On 11.10.1995, at 4.00 p.m., the respondent came to the
house of the appellant at Gandhi Chowk and abused the father,
the children and the appellant. She, in fact, created a violent
atmosphere in the house as well as in the office by damaging the
property and causing mental torture to the appellant and also to
the family members which compelled the appellant to lodge a
complaint at the Police Station, Chopda. It was alleged that she
had brought gundas and certain women to cause that incident.
The said untoward incident brought the A.S.P., Jalgaon, to the
spot. The publication in the newspaper and the later incident
both occurred during the pendency of the divorce petition and
they were incorporated by way of amendment. On the aforesaid
basis, it was contended that the respondent had treated the
appellant with cruelty and hence, he was entitled to a decree for
divorce.
5
5. The asseverations made in the petition were controverted by
the respondent stating that she was always respectful and cordial
to her in-laws, relatives and the guests as was expected from a
cultured daughter-in-law. They led a happy married life for 16
years and at no point of time she showed any arrogance or any
behaviour which could remotely suggest any kind of cruelty. She
attended to her mother-in-law all the time with a sense of
committed service and at no point of time there was any
dissatisfaction on her part. She disputed the allegation that she
had hidden the keys of the motorcycle or closed the gate or
repeatedly called the appellant on phone at the office to abuse
him or to disturb him in his work. It is her stand that the
appellant owns an oil mill, ginning factory and a petrol pump at
Chopda and had sold certain non-agricultural land by
demarcating it into small plots. The appellant, as alleged, joined
the computer classes which were run by one Neeta Gujarathi in
the name and style of "Om Computer Services" and gradually the
appellant started spending much of his time at the computer
centre instead of attending to his own business in the factory.
When the respondent became aware of the intimacy, she took
6
serious objection to the same and therefrom their relationship
became bitter.
6. It was alleged by the respondent that she was disturbed
after knowing about the involvement of the appellant with
another lady despite having an established family life and two
adolescent sons and, therefore, she was compelled to make
phone calls to make enquiries about his whereabouts. As the
interference by the respondent was not appreciated by the
appellant, he took the respondent on 1.5.1995 to Akola and left
her at her parental house and never cared to bring her back to
her matrimonial home. Her willingness to come back and stay
with the husband and children could not get fructified because of
the totally indifferent attitude shown by the appellant. Her
attempts to see the children in the school became an exercise in
futility, as the husband, who is a trustee of the school, managed
to ensure that the boys did not meet her. It was further alleged
that the said Neeta lived with him as his mistress and when the
respondent came to know about it, she went to Chopda to
ascertain the same and coming to know that Neeta was in the
house of the appellant, she made an effort to enter into the house
but she was assaulted. This resulted in gathering of people of
7
the locality and the appellant-husband, as a counter-blast,
lodged a complaint at the police station. The Deputy
Superintendent of Police arrived at the scene and found that
Neeta was inside the house and thereafter she was taken back to
her house by the police. Because of the involvement of the
appellant with the said Neeta, he had concocted the story of
cruelty and filed the petition for divorce.
7. The learned trial Judge framed as many as four issues. The
two vital issues were whether the appellant had been able to
prove the alleged cruelty and whether he was entitled to take
disadvantage of his own wrong. The appellant, in order to prove
the allegation of cruelty, examined ten witnesses and on behalf of
the respondent, eight witnesses were examined. The learned trial
Judge, analysing the evidence on record, came to hold that there
was conjugal relationship till 1.5.1995; that there was no
substantial material on record to demonstrate that the
respondent had behaved with immaturity immediately after
marriage; that in the absence of cogent evidence, it was difficult
to hold that the respondent had troubled the husband and his
parents; that the evidence of PW-3, Ramesh, was not worthy of
acceptance as he is close and an interested witness; that the
8
allegation that whenever she used to go to her parental home,
she was granting leave to the servants was not acceptable; that
the appellant should have examined some of the servants
including the maid servant but for some reason or other had
withheld the best evidence; that the plea that the respondent was
not looking after her mother-in-law who was suffering from
paralysis from 1984 has not been proven; that the allegation that
the respondent was hiding the uniforms of the children and not
treating them well had not been proven because the version of
Vishal could not be accepted as he was staying with the father
and, therefore, it was natural for him to speak in favour of the
father; that the stand that the respondent was hiding the keys of
the motorcycle and crumpling the ironed clothes of the appellant
did not constitute mental cruelty as the said acts, being childish,
were enjoyed by the appellant-husband; that the factum of abuse
by the respondent on telephone had not been established by
adducing reliable evidence; that the respondent and the appellant
were sleeping on the third floor of the house and hence, she was
sleeping with him in the bedroom and the allegation that he was
deprived of sexual satisfaction from 1991 was unacceptable; that
from the witnesses cited on behalf of the respondent, it was
9
demonstrable that her behaviour towards her sons and in-laws
was extremely good; that even if the allegations made by the
appellant were accepted to have been established to some extent,
it could only be considered as normal wear and tear of the
marital life; that the plea of mental cruelty had not been proven
as none of the allegations had been established by adducing
acceptable, consistent and cogent evidence; that the notice
published in the daily "Lokmat" on 28.7.1995 and the later
incident dated 11.10.1995 being incidents subsequent to the
filing of the petition for divorce, the same were not to be taken
into consideration.
8. The learned trial Judge further returned the finding that the
appellant was going to learn computer and taking instructions
from Neeta Gujarathi and the plea that she was engaged as a
Computer Operator in his office was not believable as no
appointment letter was produced; that the stand that she was
paid Rs.1200/- per month was not worthy of any credence as she
was operating a computer centre; that from the evidence of the
witnesses of the respondent, namely, RW-3 to RW-5, it was clear
that Neeta Gujarathi was living with the appellant in his house
and he had developed intimacy with her and, therefore, the
10
subsequent events, even if analysed, were to be so done on the
said backdrop; that the allegation that there was a gathering and
they were violent and broke the windows was really not proven by
adducing credible evidence; that the testimony of the witnesses of
the respondent clearly reveal that Neeta was inside the house of
the appellant and effort was made to bring her out from the
house and no damage was caused to the property; that on that
day, the police had come in the mid night hours and taken out
Neeta from the house of the appellant and left her at her house;
that the notice which was published in "Lokmat" was to protect
the interest of the sons in the property and basically pertained to
the appellant's alienating the property; that the public notice was
not unfounded or baseless and the question of defaming him and
thereby causing any mental cruelty did not arise; that the
allegations made in the application for grant of interim alimony
that the appellant is a womaniser and is addicted to liquor
cannot be considered for the purpose of arriving at the
conclusion that the husband was meted with cruelty; that the
allegations made in the written statement having been found to
be truthful, the same could not be said to have caused any
mental cruelty; that the cumulative effect of the evidence brought
11
on record was that no mental cruelty was ever caused by the
respondent; and that the husband could not take advantage of
his own wrong. Being of this view, the learned trial Judge
dismissed the application with costs and also dismissed the
application of the respondent-wife for grant of permanent
alimony.
9. Grieved by the aforesaid decision, the appellant-husband
preferred Civil Appeal No. 23 of 1999. The first appellate court
appreciated the evidence, dealt with the findings returned by the
trial court and eventually came to hold that the cumulative effect
of the evidence and the material brought on record would go a
long way to show that the appellant had failed to make out a case
of mental cruelty to entitle him to obtain a decree for divorce.
The aforesaid conclusion by the appellate court entailed
dismissal of the appeal.
10. Being dissatisfied with the judgment and decree passed by
the learned appellate Judge, the husband preferred Second
Appeal No. 683 of 2006 before the High Court. The learned
single Judge of the High Court came to hold that there were
concurrent findings of fact and no substantial question of law
12
was involved. However, the learned single Judge observed that
the sons of the parties had grown up and have been married; that
the parties had no intention to patch up the matrimonial discord;
and that the marriage had been irretrievably broken but that
could not be considered by the High Court but only by the Apex
Court under Article 142 of the Constitution. Expressing the
aforesaid view, he did not admit the appeal and dismissed the
same.
11. We have heard Mr. Arvind V. Sawant, learned senior
counsel for the appellant-husband, and Mr. Vivek C. Solshe,
learned counsel for the respondent-wife.
12. At the very outset, we would like to make it clear that
though the learned single Judge of the High Court has expressed
the view that the parties are at logger heads and have shown no
inclination to patch the matrimonial rupture and the sons have
grown up and got married and with the efflux of time, the
relationship has been further shattered and hence, the marriage
is irretrievably broken and only this Court can grant divorce in
exercise of power under Article 142 of the Constitution, yet we
13
are not going to take recourse to the same and only address
ourselves whether a case for divorce has really been made out.
13. At this juncture, we may note with profit that the learned
senior counsel for the appellant exclusively rested his case on the
foundation of mental cruelty. It is his submission that if the
evidence of the husband and other witnesses are scrutinized in
an apposite manner along with the stand and stance taken in the
written statement, it will clearly reveal a case of mental cruelty
regard being had to the social status of the appellant. It is urged
by him that the trial court as well as the appellate court have not
given any credence to the evidence of some of the witnesses on
the ground that they are interested witnesses though they are the
most natural witnesses who had witnessed the cruel behaviour
meted to the appellant.
14. It is the submission of the learned senior counsel for the
appellant that the court of first instance as well as the appellate
court have failed to take into consideration certain material
aspects of the evidence and the appreciation of evidence being
absolutely perverse, the High Court would have been well advised
to scan and scrutinize the same but it declined to admit the
14
appeal on the ground that there are concurrent findings of fact.
It is canvassed by him that this Court, in exercise of power under
Article 136 of the Constitution, can dislodge such concurrent
findings of facts which are perverse, baseless, unreasonable and
contrary to the material on record.
15. The learned counsel for the respondent, resisting the
aforesaid submissions, contended that the view expressed by the
High Court cannot be found fault with as the courts below have,
at great length, discussed the evidence and appreciated the same
with utmost prudence and objectivity and there is nothing on
record to show that any material part of the evidence has been
ignored or something extraneous to the record has been taken
into consideration. It is highlighted by him that the stand put
forth by the wife in her written statement having been
established, the same cannot be construed to have constituted
mental cruelty. Lastly, it is put forth that the appellant has
created a dent in the institution of marriage and made a
maladroit effort to take advantage of his own wrong which should
not be allowed.
15
16. First, we shall advert to what actually constitutes `mental
cruelty' and whether in the case at hand, the plea of mental
cruelty has been established and thereafter proceed to address
whether the courts below have adopted an approach which is
perverse, unreasonable and unsupported by the evidence on
record and totally unacceptable to invite the discretion of this
Court in exercise of power under Article 136 of the Constitution
to dislodge the same.
17. The expression `cruelty' has an 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, temperaments and emotions that
have been conditioned by their social status. In
Sirajmohamedkhan Janmohamadkhan v. Hafizunnisa
Yasinkhan and another1, a two-Judge Bench approved the
concept of legal cruelty as expounded in Sm. Pancho v. Ram
Prasad2 wherein it was stated thus: -
"Conception of legal cruelty undergoes
changes according to the changes and
advancement of social concept and standards
of living. With the advancement of our social
conceptions, this feature has obtained
1
(1981) 4 SCC 250
2
AIR 1956 All 41
16
legislative recognition that a second marriage
is a sufficient ground for separate residence
and separate maintenance. Moreover, to
establish legal cruelty, it is not necessary that
physical violence should be used.
Continuous ill-treatment, cessation of
marital intercourse, studied neglect,
indifference on the part of the husband, and
an assertion on the part of the husband that
the wife is unchaste are all factors which may
undermine the health of a wife."
It is apt to note here that the said observations were made
while dealing with the Hindu Married Women's Right to Separate
Residence and Maintenance Act (19 of 1946). This Court, after
reproducing the passage, has observed that the learned Judge
has put his finger on the correct aspect and object of mental
cruelty.
18. In Shobha Rani v. Madhukar Reddi3, while dealing with
`cruelty' under Section 13(1)(ia) of the Act, this Court observed
that the said provision does not define `cruelty' and the same
could not be defined. The `cruelty' may be mental or physical,
intentional or unintentional. If it is physical, the court will have
no problem to determine it. It is a question of fact and degree. If
it is mental, the problem presents difficulty. Thereafter, the
Bench proceeded to state as follows: -
3
(1988) 1 SCC 105
17
"First, the enquiry must begin as to the nature
of the cruel treatment. Second, 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, it 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."
19. After so stating, this Court observed about the marked
change in life in modern times and the sea change in matrimonial
duties and responsibilities. It has been observed that when a
spouse makes a complaint about treatment of cruelty by the
partner in life or relations, the court should not search for
standard in life. A set of facts stigmatized as cruelty in one case
may not be so in another case. The cruelty alleged may largely
depend upon the type of life the parties are accustomed to or
their economic and social conditions. It may also depend upon
their culture and human values to which they attach importance.
Their Lordships referred to the observations made in Sheldon v.
18
Sheldon4 wherein Lord Denning stated, "the categories of cruelty
are not closed". Thereafter, the Bench proceeded to state thus: -
"Each case may be different. We deal with the
conduct of human beings who are not
generally similar. Among the human beings
there is no limit to the kind of conduct which
may constitute cruelty. New type of cruelty
may crop up in any case depending upon the
human behaviour, capacity or incapability to
tolerate the conduct complained of. Such is
the wonderful (sic) realm of cruelty.
These preliminary observations are intended to
emphasise that the court in matrimonial cases
is not concerned with ideals in family life. The
court has only to understand the spouses
concerned as nature made them, and consider
their particular grievance. As Lord Ried
5
observed in Gollins v. Gollins :
In matrimonial affairs we are not
dealing with objective standards, it is not
a matrimonial offence to fall below the
standard of the reasonable man (or the
reasonable woman). We are dealing with
this man or this woman."
20. In V. Bhagat v. D. Bhagat (Mrs.)6, a two-Judge Bench
referred to the amendment that had taken place in Sections 10
and 13(1)(ia) after the Hindu Marriage Laws (Amendment) Act,
1976 and proceeded to hold that the earlier requirement that
such cruelty has caused a reasonable apprehension in the mind
4
(1966) 2 All ER 257
5
(1963) 2 All ER 966
6
(1994) 1 SCC 337
19
of a spouse that it would be harmful or injurious for him/her to
live with the other one is no longer the requirement. Thereafter,
this Court proceeded to deal with what constitutes mental cruelty
as contemplated in Section 13(1)(ia) and observed that mental
cruelty in the said provision 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. To put it differently, the mental cruelty must be
of such a nature that the parties cannot reasonably be expected
to live together. The situation must be such that the wronged
party cannot reasonably be asked to put up with such conduct
and continue to live with the other party. It was further
observed, while arriving at such conclusion, that 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. What is cruelty in one
case may not amount to cruelty in another case and it has to be
determined in each case keeping in view the facts and
circumstances of that case. That apart, the accusations and
allegations have to be scrutinized in the context in which they are
20
made. Be it noted, in the said case, this Court quoted extensively
from the allegations made in the written statement and the
evidence brought on record and came to hold that the said
allegations and counter allegations were not in the realm of
ordinary plea of defence and did amount to mental cruelty.
21. In Praveen Mehta v. Inderjit Mehta7, it has been held that
mental cruelty is a state of mind and feeling with one of the
spouses due to behaviour or behavioural pattern by the other.
Mental cruelty cannot be established by direct evidence and 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 facts and circumstances are to be assessed
emerging from the evidence on record and thereafter, a fair
inference has to be drawn whether the petitioner in the divorce
petition has been subjected to mental cruelty due to the conduct
of the other.
7
AIR 2002 SC 2582
21
22. In Vijaykumar Ramchandra Bhate v. Neela Vijaykumar
Bhate8, it has been opined that a conscious and deliberate
statement levelled with pungency and that too placed on record,
through the written statement, cannot be so lightly ignored or
brushed aside.
23. In A. Jayachandra v. Aneel Kaur9, it has been ruled that
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 and environment in
which they live. If from the conduct of the spouse, it is
established and/or an inference can legitimately be 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 the same would amount to cruelty. While
dealing with the concept of mental cruelty, enquiry must begin as
to the nature of cruel treatment and the impact of such
treatment in the mind of the spouse. It has to be seen whether
the conduct is such that no reasonable person would tolerate it.
8
AIR 2003 SC 2462
9
(2005) 2 SCC 22
22
24. In Vinita Saxena v. Pankaj Pandit10, it has been ruled
that as to what constitutes mental cruelty for the purposes of
Section 13(1)(ia) will not depend upon the numerical count of
such incident or only on the continuous course of such conduct
but one has to really go by the intensity, gravity and stigmatic
impact of it when meted out even once and the deleterious effect
of it on the mental attitude necessary for maintaining a
conducive matrimonial home.
25. In Samar Ghosh v. Jaya Ghosh11, this Court, after
surveying the previous decisions and referring to the concept of
cruelty, which includes mental cruelty, in English, American,
Canadian and Australian cases, has observed that 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
10
(2006) 3 SCC 778
11
(2007) 4 SCC 511
23
belief, human values and their value system. 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 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.
26. In Suman Kapur v. Sudhir Kapur12, after referring to
various decisions in the field, this Court took note of the fact that
the wife had neglected to carry out the matrimonial obligations
and further, during the pendency of the mediation proceeding,
had sent a notice to the husband through her advocate alleging
that he had another wife in USA whose identity was concealed.
The said allegation was based on the fact that in his income-tax
return, the husband mentioned the "Social Security Number" of
his wife which did not belong to the wife, but to an American
lady. The husband offered an explanation that it was merely a
12
AIR 2009 SC 589
24
typographical error and nothing else. The High Court had
observed that taking undue advantage of the error in the "Social
Security Number", the wife had gone to the extent of making
serious allegation that the husband had married an American
woman whose "Social Security Number" was wrongly typed in the
income-tax return of the husband. This fact also weighed with
this Court and was treated that the entire conduct of the wife did
tantamount to mental cruelty.
27. Keeping in view the aforesaid enunciation of law pertaining
to mental cruelty, it is to be scrutinized whether in the case at
hand, there has been real mental cruelty or not, but, a significant
one, the said scrutiny can only be done if the findings are
perverse, unreasonable, against the material record or based on
non-consideration of relevant materials. We may note here that
the High Court has, in a singular line, declined to interfere with
the judgment and decree of the courts below stating that they are
based on concurrent findings of fact. The plea of perversity of
approach though raised was not adverted to.
28. It is worth noting that this Court, in Kulwant Kaur v.
Gurdial Singh Mann (dead) by L.Rs. and others13, has held
13
AIR 2001 SC 1273
25
that while it is true that in a second appeal, a finding of fact,
even if erroneous, will generally not be disturbed but where it is
found that the findings stand vitiated on wrong test and on the
basis of assumptions and conjectures and resultantly there is an
element of perversity involved therein, the High Court will be
within its jurisdiction to deal with the issue. An issue pertaining
to perversity comes within the ambit of substantial question of
law. Similar view has been stated in Govindaraju v.
Mariamman14.
29. In Major Singh v. Rattan Singh (Dead) by LRs and
others15, it has been observed that when the courts below had
rejected and disbelieved the evidence on unacceptable grounds, it
is the duty of the High Court to consider whether the reasons
given by the courts below are sustainable in law while hearing an
appeal under Section 100 of the Code of Civil Procedure.
30. In Vidhyadhar v. Manikrao and another16, it has been
ruled that the High Court in a second appeal should not disturb
the concurrent findings of fact unless it is shown that the
findings recorded by the courts below are perverse being based
14
(2005) 2 SCC 500
15
AIR 1997 SC 1906
16
(1999) 3 SCC 573
26
on no evidence or that on the evidence on record, no reasonable
person could have come to that conclusion. We may note here
that solely because another view is possible on the basis of the
evidence, the High Court would not be entitled to exercise the
jurisdiction under Section 100 of the Code of Civil Procedure.
This view of ours has been fortified by the decision of this Court
17
in Abdul Raheem v. Karnataka Electricity Board & Ors. .
31. Having stated the law relating to mental cruelty and the
dictum of this Court in respect of the jurisdiction of the High
Court where concurrent findings of fact are assailed, as advised
at present, we will scan the evidence whether the High Court has
failed to exercise the jurisdiction conferred on it despite the plea
of perversity being raised. Any finding which is not supported by
evidence or inferences is drawn in a stretched and unacceptable
manner can be said to be perverse. This Court in exercise of
power under Article 136 of the Constitution can interfere with
concurrent findings of fact, if the conclusions recorded by the
High Court are manifestly perverse and unsupported by the
evidence on record. It has been so held in Alamelu and
17
AIR 2008 SC 956
27
another v. State, Represented by Inspector of Police 18 and
Heinz India Pvt. Ltd. & Anr. v. State of U.P. & Ors.19
32. Presently, to the core issue, viz, whether the appellant-
husband had made out a case for mental cruelty to entitle him to
get a decree for divorce. At this juncture, we may unhesitantly
state that the trial court as well as the first appellate court have
disbelieved the evidence of most of the witnesses cited on behalf
of the husband on the ground that they are interested witnesses.
In a matrimonial dispute, it would be inappropriate to expect
outsiders to come and depose. The family members and
sometimes the relatives, friends and neighbours are the most
natural witnesses. The veracity of the testimony is to be tested
on objective parameters and not to be thrown overboard on the
ground that the witnesses are related to either of the spouse.
Exception has been taken by the courts below that the servants
of the house should have been examined and that amounts to
suppression of the best possible evidence. That apart, the
allegations made in the written statement, the dismissal of the
case instituted by the wife under Section 494 of the Indian Penal
Code, the non-judging of the material regard being had to the
18
AIR 2011 SC 715
19
(2012) 3 SCALE 607 = (2012) 2 KLT (SN) 64
28
social status, the mental make-up, the milieu and the rejection of
subsequent events on the count that they are subsequent to the
filing of the petition for divorce and also giving flimsy reasons not
to place reliance on the same, we are disposed to think, deserve
to be tested on the anvil of "perversity of approach". Quite apart
from the above, a significant question that emerges is whether
the reasons ascribed by the courts below that the allegations
made in the written statement alleging extra marital affair of the
appellant-husband with Neeta Gujarathi has been established
and, therefore, it would not constitute mental cruelty are
perverse and unacceptable or justified on the basis of the
evidence brought on record. These are the aspects which need to
be scrutinized and appositely delved into.
33. The appellant-husband, examining himself as PW-1, has
categorically stated that the wife used to hide the pressed clothes
while he was getting ready to go to the factory. Sometimes she
used to crumple the ironed clothes and hide the keys of the
motorcycle or close the main gate. In the cross-examination, it is
clearly stated that the wife was crumpling the ironed clothes,
hiding the keys of the motorcycle and locking the gate to trouble
him and the said incidents were taking place for a long time.
29
This being the evidence on record, we are at a loss to find that
the courts below could record a finding that the appellant used to
enjoy the childish and fanciful behaviour of the wife pertaining to
the aforesaid aspect. This finding is definitely based on no
evidence. Such a conclusion cannot be reached even by
inference. If we allow ourselves to say so, even surmises and
conjectures would not permit such a finding to be recorded. It is
apt to note here that it does not require Solomon's wisdom to
understand the embarrassment and harassment that might have
been felt by the husband. The level of disappointment on his
part can be well visualised like a moon in a cloudless sky.
34. Now we shall advert to the allegation made in the written
statement. The respondent-wife had made the allegation that the
husband had an illicit relationship with Neeta Gujarathi. The
learned trial Judge has opined that the said allegation having
been proved cannot be treated to have caused mental cruelty. He
has referred to various authorities of many High Courts. The
heart of the matter is whether such an allegation has actually
been proven by adducing acceptable evidence. It is worth noting
that the respondent had filed a complaint, RCC No. 91/95, under
Section 494 of the Indian Penal Code against the husband. He
30
was discharged in the said case. The said order has gone
unassailed. The learned trial Judge has expressed the view that
Neeta Gujarathi was having a relationship with the husband on
the basis that though the husband had admitted that she was
working in his office yet he had not produced any appointment
letter to show that she was appointed as a computer operator.
The trial Judge has relied on the evidence of the wife. The wife in
her evidence has stated in an extremely bald manner that
whenever she had telephoned to the office in the factory, the
husband was not there and further that the presence of Neeta
Gujarathi was not liked by her in-laws and the elder son Vishal.
On a careful reading of the judgment of the trial court, it is
demonstrable that it has been persuaded to return such a finding
on the basis of the incident that took place on 11.10.1995. It is
worth noting that the wife, who examined herself as RW-1, stated
in her evidence that Vishal was deposing against her as the
appellant had given him a scooter. The learned trial Judge has
given immense credence to the version of the social worker who,
on the date of the incident, had come to the house of the
appellant where a large crowd had gathered and has deposed
that she had seen Neeta going and coming out of the house. The
31
evidence of the wife, when studiedly scrutinized, would show that
there was more of suspicion than any kind of truth in it. As has
been stated earlier, the respondent had made an allegation that
her son was influenced by the appellant-husband. The learned
trial Judge as well as the appellate court have accepted the same.
It is germane to note that Vishal, the elder son, was
approximately 16 years of age at the time of examination in
court. There is remotely no suggestion to the said witness that
when Neeta Gujarati used to go to the house, his grandfather
expressed any kind of disapproval. Thus, the whole thing seems
to have rested on the incident of 11.10.1995. On that day, as the
material on record would show, at 4.00 p.m., the wife arrived at
the house of the husband. She has admitted that she wanted to
see her father-in-law who was not keeping well. After she went
in, her father-in-law got up from the chair and went upstairs.
She was not permitted to go upstairs. It is testified by her that
her father-in-law came down and slapped her. She has deposed
about the gathering of people and publication in the newspapers
about the incident. Vishal, PW-5, has stated that the mother had
pushed the grandfather from the chair. The truthfulness of the
said aspect need not be dwelled upon. The fact remains that the
32
testimony of the wife that the father-in-law did not like the visit of
Neeta does not appear to be true. Had it been so, he would not
have behaved in the manner as deposed by the wife. That apart,
common sense does not give consent to the theory that both, the
father of the husband and his son, Vishal, abandoned normal
perception of life and acceded to the illicit intimacy with Neeta. It
is interesting to note that she has deposed that it was published
in the papers that the daughter-in-law was slapped by the father-
in-law and Neeta Gujarathi was recovered from the house but
eventually the police lodged a case against the husband, the
father-in-law and other relatives under Section 498A of the
Indian Penal Code. We really fail to fathom how from this
incident and some cryptic evidence on record, it can be
concluded that the respondent-wife had established that the
husband had an extra marital relationship with Neeta Gujarathi.
That apart, in the application for grant of interim maintenance,
she had pleaded that the husband was a womaniser and
drunkard. This pleading was wholly unwarranted and, in fact,
amounts to a deliberate assault on the character. Thus, we have
no scintilla of doubt that the uncalled for allegations are bound
to create mental agony and anguish in the mind of the husband.
33
35. Another aspect needs to be taken note of. She had made
allegation about the demand of dowry. RCC No. 133/95 was
instituted under Section 498A of the Indian Penal Code against
the husband, father-in-law and other relatives. They have been
acquitted in that case. The said decision of acquittal has not
been assailed before the higher forum. Hence, the allegation on
this count was incorrect and untruthful and it can unhesitatingly
be stated that such an act creates mental trauma in the mind of
the husband as no one would like to face a criminal proceeding of
this nature on baseless and untruthful allegations.
36. Presently to the subsequent events. The courts below have
opined that the publication of notice in the daily "Lokmat" and
the occurrence that took place on 11.10.1995 could not be
considered as the said events occurred after filing of the petition
for divorce. Thereafter, the courts below have proceeded to deal
with the effect of the said events on the assumption that they can
be taken into consideration. As far as the first incident is
concerned, a view has been expressed that the notice was
published by the wife to safeguard the interests of the children,
and the second one was a reaction on the part of the wife relating
to the relationship of the husband with Neeta Gujrathi. We have
34
already referred to the second incident and expressed the view
that the said incident does not establish that there was an extra
marital relationship between Neeta and the appellant. We have
referred to the said incident as we are of the considered opinion
that the subsequent events can be taken into consideration. In
this context, we may profitably refer to the observations made by
a three-Judge Bench in the case of A. Jayachandra (supra) :-
"The matter can be looked at from
another angle. If acts subsequent to the filing
of the divorce petition can be looked into to
infer condonation of the aberrations, acts
subsequent to the filing of the petition can be
taken note of to show a pattern in the
behaviour and conduct."
37. We may also usefully refer to the observations made in
Suman Kapur (supra) wherein the wife had made a maladroit
effort to take advantage of a typographical error in the written
statement and issued a notice to the husband alleging that he
had another wife in USA. Thus, this Court has expressed the
opinion that the subsequent events can be considered.
38. Keeping in view the aforesaid pronouncement of law, we
shall first appreciate the impact of the notice published in the
35
"Lokmat". The relevant part of the said notice, as published in
the newspaper, reads as follows: -
"Shri Vishwanath Sitaram Agrawal is having
vices of womanizing, drinking liquor and other
bad habits. He is having monthly income of
Rs.10 lacs, but due to several vices, he is short
of fund. Therefore, he has started selling the
property. He has sold some properties. My
client has tried to make him understand which
is of no use and on the contrary, he has beaten
my client very badly and has driven her away
and dropped her to Akola at her parent's
house.
In the property of Shri Vishwanath
Sitaram Agrawal my client and her two sons
are having shares in the capacity of members
of joint family and Shri Vishwanath Sitaram
Agrawal has no right to dispose of the property
on any ground."
Immense emphasis has been given on the fact that after
publication of the notice, the husband had filed a caveat in the
court. The factual matrix would reveal that the husband comes
from a respectable family engaged in business. At the time of
publication of the notice, the sons were quite grown up. The
respondent-wife did not bother to think what impact it would
have on the reputation of the husband and what mental
discomfort it would cause. It is manifest from the material on
record that the children were staying with the father. They were
36
studying in the school and the father was taking care of
everything. Such a publication in the newspaper having good
circulation can cause trauma, agony and anguish in the mind of
any reasonable man. The explanation given by the wife to the
effect that she wanted to protect the interests of the children, as
we perceive, is absolutely incredible and implausible. The filing
of a caveat is wholly inconsequential. In fact, it can decidedly be
said that it was mala fide and the motive was to demolish the
reputation of the husband in the society by naming him as a
womaniser, drunkard and a man of bad habits.
39. At this stage, we may fruitfully reminisce a poignant
passage from N.G. Dastane v. S. Dastane20 wherein
Chandrachud, J. (as his Lordship then was) observed thus: -
"The court has to deal, not with an ideal
husband and an ideal wife (assuming any
such exist) but with the particular man
and woman before it. The ideal couple or
a near-ideal one will probably have no
occasion to go to a matrimonial court for,
even if they may not be able to drown
their differences, their ideal attitudes may
help them overlook or gloss over mutual
faults and failures."
20
(1975) 3 SCR 967
37
40. Regard being had to the aforesaid, we have to evaluate the
instances. In our considered opinion, a normal reasonable man
is bound to feel the sting and the pungency. The conduct and
circumstances make it graphically clear that the respondent-wife
had really humiliated him and caused mental cruelty. Her
conduct clearly exposits that it has resulted in causing agony
and anguish in the mind of the husband. She had publicised in
the newspapers that he was a womaniser and a drunkard. She
had made wild allegations about his character. She had made an
effort to prosecute him in criminal litigations which she had
failed to prove. The feeling of deep anguish, disappointment,
agony and frustration of the husband is obvious. It can be stated
with certitude that the cumulative effect of 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. The husband felt humiliated
both in private and public life. Indubitably, it created a dent in
his reputation which is not only the salt of life, but also the
purest treasure and the most precious perfume of life. It is
extremely delicate and a cherished value this side of the grave. It
is a revenue generator for the present as well as for the posterity.
38
Thus analysed, it would not be out of place to state that his brain
and the bones must have felt the chill of humiliation. The
dreams sweetly grafted with sanguine fondness with the passage
of time reached the Everstine disaster, possibly, with a vow not to
melt. The cathartic effect looked like a distant mirage. The cruel
behaviour of the wife has frozen the emotions and snuffed out the
bright candle of feeling of the husband because he has been
treated as an unperson. Thus, analysed, it is abundantly clear
that with this mental pain, agony and suffering, the husband
cannot be asked to put up with the conduct of the wife and to
continue to live with her. Therefore, he is entitled to a decree for
divorce.
41. Presently, we shall deal with the aspect pertaining to the
grant of permanent alimony. The court of first instance has
rejected the application filed by the respondent-wife as no decree
for divorce was granted and there was no severance of marital
status. We refrain from commenting on the said view as we have
opined that the husband is entitled to a decree for divorce.
Permanent alimony is to be granted taking into consideration the
social status, the conduct of the parties, the way of living of the
spouse and such other ancillary aspects. During the course of
39
hearing of the matter, we have heard the learned counsel for the
parties on this aspect. After taking instructions from the
respective parties, they have addressed us. The learned senior
counsel for the appellant has submitted that till 21.2.2012, an
amount of Rs.17,60,000/- has been paid towards maintenance to
the wife as directed by the courts below and hence, that should
be deducted from the amount to be fixed. He has further
submitted that the permanent alimony should be fixed at Rs.25
lacs. The learned counsel for the respondent, while insisting for
affirmance of the decisions of the High Court as well as by the
courts below, has submitted that the amount that has already
been paid should not be taken into consideration as the same
has been paid within a span of number of years and the
deduction would affect the future sustenance. He has
emphasised on the income of the husband, the progress in the
business, the inflation in the cost of living and the way of life the
respondent is expected to lead. He has also canvassed that the
age factor and the medical aid and assistance that are likely to be
needed should be considered and the permanent alimony should
be fixed at Rs.75 lacs.
40
42. In our considered opinion, the amount that has already
been paid to the respondent-wife towards alimony is to be
ignored as the same had been paid by virtue of the interim orders
passed by the courts. It is not expected that the respondent-wife
has sustained herself without spending the said money. Keeping
in view the totality of the circumstances and the social strata
from which the parties come from and regard being had to the
business prospects of the appellant, permanent alimony of Rs.50
lacs (rupees fifty lacs only) should be fixed and, accordingly, we
so do. The said amount of Rs.50 lacs (rupees fifty lacs only) shall
be deposited by way of bank draft before the trial court within a
period of four months and the same shall be handed over to the
respondent-wife on proper identification.
43. Consequently, the appeal is allowed, the judgments and
decrees of the courts below are set aside and a decree for divorce
in favour of the appellant is granted. Further, the husband shall
pay Rs.50 lacs (rupees fifty lacs only) towards permanent alimony
to the wife in the manner as directed hereinabove. The parties
shall bear their respective costs.
41
............................................J.
[Deepak Verma]
............................................J.
[Dipak Misra]
New Delhi;
July 04, 2012
42
ITEM NO.1A COURT NO.12 SECTION IX
(FOR JUDGMENT)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL NO.........../2012 arising out of
Petition(s) for Special Leave to Appeal (Civil)
No(s).16528/2007
VISHWANATH S/O SITARAM AGRAWAL Appellant(s)
VERSUS
SAU. SARLA VISHWANATH AGRAWAL Respondent(s)
Date: 04/07/2012 This appeal was called on for
pronouncement of judgment today.
For Petitioner(s) Ms. Chandan Ramamurthi,Adv.
For Respondent(s) Mr. C.G. Solshe,Adv.
Hon'ble Mr. Justice Dipak Misra pronounced the judgment
of the Bench comprising Hon'ble Mr. Justice Deepak Verma and
Hon'ble Mr. Justice Dipak Misra.
Leave granted.
The appeal is allowed in terms of the signed reportable
judgment.
(NARENDRA PRASAD) (RENUKA SADANA)
COURT MASTER COURT MASTER
(Signed reportable judgment is placed on the file)
