Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 8927-8928 OF 2012
[Arising out of S.L.P. (Civil) Nos. 37449-37450 of 2012 ( CC.5877-5878 of
2012)]
U. Sree ... Appellant
Versus
U. Srinivas ... Respondent
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. The appellant-wife instituted F.C.O.P. No. 568 of 1997 under Section 9
of the Hindu Marriage Act, 1955 (for brevity ‘the Act’) in the
Principal Family Court, Chennai for restitution of conjugal rights.
The respondent-husband filed F.C.O.P. No. 805 of 1998 under Sections
13(1)(i-a), 26 and 27 of the Act read with Section 7 of the Family
Courts Act, 1984 praying for dissolution of marriage, custody of the
child and return of jewellery and other items.
The learned Family
Judge jointly tried both the cases and, on the basis of the evidence
brought on record, dismissed the application for restitution of
conjugal rights preferred by the wife and allowed the petition of the
husband for dissolution of marriage and held that the child would
remain in the custody of the mother on the principle that welfare of
the child is paramount, and further the husband was not entitled to
return of jewels or any other item from the wife in the absence of any
cogent evidence in that regard.
The learned Family Judge, while
passing the decree for dissolution of marriage, directed to pay
permanent alimony of Rs. 5 lacs each to the wife and her minor son
within a month.
3. Being dissatisfied by the common order, the appellant-wife preferred
C.M.A. No. 1656 of 2010 and C.M.A. No. 1657 of 2010 in the High Court
of Judicature at Madras and the Division Bench concurred with the
conclusion as regards the decree of dissolution of marriage as a
consequence of which both the appeals had to meet the fate of
dismissal.
However, the Bench, apart from concurring with the grant
of permanent alimony, directed the respondent-husband to pay a sum of
maintenance amounting to Rs.12,500/- to the appellant-wife and her son
from the date of order passed by the Chief Metropolitan Magistrate at
Hyderabad till the date of the order passed by the High Court.
Hence,
the present two appeals have been preferred by special leave assailing
the common judgment passed by the High Court in both the appeals.
4. The facts requisite to be stated for adjudication of the appeals are
that
the marriage between the appellant and the respondent was
solemnized on 19.11.1994 at Tirupathi according to Hindu rites and
customs.
After entering into wedlock, they lived together at
Vadapalani, Chennai.
As tradition would warrant, she went to her
parental home for delivery where a male child was born on 30th of May,
1995.
The respondent celebrated the child’s birth in his in-law’s
house and thereafter, the wife stayed with her parents for sometime.
She returned to Chennai on 4.10.1995 and there she lived with her
husband till 3.1.1996.
The case of the wife in her application for
restitution of marriage is that on 3.1.1996, her father-in-law,
without her consent, took her to her parental home and, thereafter,
the husband without any justifiable reason withdrew from her society.
All efforts made by her as well as by her parents to discuss with her
husband and his family members to find out a solution went in vain.
In this backdrop, a prayer was made for restitution of conjugal
rights.
5. The husband resisted the aforesaid stand contending, inter alia, that
there was total incompatibility in the marital relationship inasmuch
as she found fault with his life style, his daily routine, his likes
and dislikes and picked up quarrels on trivial issues.
She threw
tantrums only with the exclusive purpose that she should dominate the
relationship and have her own way.
At the time of practising and
learning music in the presence of his father, who was also his “Guru”,
she hurled abuses and screamed which invariably followed with
arguments and quarrels.
Though she was expected, as per the customs,
to show respect towards elders and to the senior artists, yet,
throwing all traditional values to the wind, she would walk away by
creating a scene to his utter embarrassment.
His public image was
totally ruined and reputation was mutilated.
It was also alleged
that she called her parents and threatened to initiate proceedings
under the Indian Penal Code, 1860 with the help of her father, who was
an I.A.S. officer in the Vigilance Department in the Government of
Andhra Pradesh.
With the efflux of time, the discord aggravated and
the wife became more aggressive and did not allow her husband to go
near her or the child.
On 3.1.1996, when the wife expressed her
desire to go to her parental home, he could not dare to object and she
went with costly gifts received by him in India and abroad in
recognition of his performance in music.
Regard being had to the
physical safety of the wife and the child, he requested his father to
escort them to Hyderabad. While she was at Hyderabad, she spread
rumours among the relatives and friends pertaining to his fidelity,
character and habits.
It was further asserted by the husband that she
had filed the petition only to harass him and, in fact, the manner in
which he had been treated clearly exhibited mental cruelty and,
therefore, the said relief should not be granted.
It was averred that
in view of the treatment meted out to the husband, dissolution of
marriage was the only solution and not restitution of conjugal rights.
6. The respondent, in his petition for divorce, pleaded that after
abandoning formal education, he pursued his career in music treating
it as a concept of ‘bhakti’ or devotion.
He had to continue his
‘sadhana’ as a daily routine under the guidance of his father as it
was necessary to understand the nuances and the subtleties of music
which could only be gathered by experience and acquisition of
knowledge at the feet of a “guru” and also to keep alive “the Guru-
Sishya Parampara”.
The aforesaid aspect of his life was not liked by
his wife and she always interrupted hurling abuses at him. Despite
his best efforts to make his wife understand the family tradition and
show reverence to the seniors in the sphere of music, she remained
obstinate in her attitude and chose to walk away causing him not only
embarrassment in public but also humiliation which affected his
reputation and self respect.
That apart, whenever the husband visited
her at the parental home, he was deprived of conjugal rights and
physically prevented from playing with the child.
In spite of his
sacrifice and efforts to adjust with her mental attitude, she remained
adamant and her behavioural pattern remained painfully consistent.
Gradually, her behaviour became very cruel and, eventually,
he was
compelled to file a case for judicial separation to which, as a
counterblast, she filed a case for restitution of conjugal rights.
She had communicated with her friends that she would like to see her
husband behind bars on the ground of dowry harassment. She had also
threatened that if he took part in any musical concert at Hyderabad,
his life shall be endangered. Put in such a situation, left with no
other alternative, he was compelled to file a petition for dissolution
of marriage.
7. As the factual narration would unfurl, the wife in the written
statement asserted that she was aware of the importance of music, its
traditional values and clearly understood the devotion and dedication
as she herself was a `Veena’ player and because of her sacrifice, her
husband had gained reputation and popularity which also enhanced his
financial status, but, with the rise, he failed to perform his duties
as a husband.
She denied the interruption in the practice sessions
and controverted the factum of maltreatment. It was averred that as
the husband had gained reputation, his parents and other relatives
thought of a second marriage so that he could get enormous dowry.
She
denied the scandalous allegations and stated that she was proud of her
husband’s accomplishments.
She justified her filing of petition
before the Chief Metropolitan Magistrate for grant of maintenance as
he was absolutely careless and negligent to look after her and the
child. It was further pleaded that the grounds mentioned in the
petition were vexatious and frivolous and, therefore, there was no
justification for grant of a decree of divorce.
8. The learned Family Judge framed seven issues and, considering the oral
and documentary evidence brought on record, came to hold that the wife
had treated the husband with cruelty;
that she had not taken any steps
for re-union and had deserted him for thirteen years without any valid
reason and, hence, the husband was entitled for a decree of divorce
and she was not entitled to have a decree for restitution of conjugal
rights.
The learned Family Judge directed that the custody of the
child should remain with the mother and
the husband had miserably
failed to make out a case for return of jewels and other items.
He granted permanent alimony as stated earlier.
9. Being grieved by the aforesaid decision of the learned Family Judge,
the wife preferred two appeals. On behalf of the appellant-wife, it
was urged before the High court that the judgment and decree passed
by the Family Court regarding grant of divorce was passed on
assumptions and presumptions; that she had suffered immense
humiliation and hardship at the hands of the family members of the
husband but the Family Court did not appreciate the said facet in
proper perspective; that the finding relating to desertion by the
wife was contrary to the evidence on record and, in fact, it was the
case that the husband had left the wife in the lurch at her parental
home and did not think for a moment to bring her back; that the
allegation with regard to the interruption in the music learning
sessions and her dislike of her husband had been deliberately stated
to make out a case of mental cruelty; that certain documents had been
placed reliance upon by the learned Family Judge though they were not
admissible in evidence and further the documents produced by the wife
had not been properly appreciated and dealt with; and that the court
below would have been well advised, in the obtaining factual matrix,
to direct restitution of conjugal rights. It is worth noting that
alternatively it was urged that the trial Court had committed an error
in granting permanent alimony of Rs. 10 lacs in toto, regard being had
to the income of the husband.
10. In appeal, the High Court, after noting the respective contentions
advanced by the learned counsel for the parties, proceeded to
appreciate the essential ingredients which are necessary to be
established to sustain a petition under Section 9 of the Act. After
referring to certain decisions in the field and the concept of mental
cruelty as stated in Halsbury’s Laws of England, 4th Edn., Vol. 13,
para 623 and American Jurisprudence and the dictum laid down in N.G.
Dastane v. S. Dastane[1], Rajani v. Subramaniam[2], Parveen Mehta v.
Inderjit Mehta[3], Gananath Pattnaik v. State of Orissa[4], Shobha
Rani v. Madhukar Reddi[5], Manisha Tyagi v. Deepak Kumar[6], Sujata
Uday Patil v. Uday Madhukar Patil[7], Chanderkala Trivedi v. Dr. S.P.
Trivedi[8] and Pranay Majumdar v. Bina Majumdar[9], the High Court
came to hold that the material brought on record showed that the wife
had gone to the parental home on 3.1.1996 and made no efforts to get
reunited with the husband and, as per the evidence on record, she had
admitted in the testimony recorded in O.P. No. 568 of 1995 that the
relations between her and her husband were cordial till she left the
matrimonial home.
The High Court found that her depositions were
contradictory inasmuch as on one hand she had stated that she had been
ill-treated and on the other that there was cordial relationship.
As
is noticeable, the High Court referred to the xerox copy of the letter
Exhibit R-8 dated 18.10.1995 written in her handwriting to her parents
and observed that when the said letter was summoned from her father
she stated that there was no such letter and on that ground the
admissibility was called in question. The High Court opined that when
the efforts were made to get the primary evidence and it could not be
obtained, the secondary evidence could be adduced and that would be
admissible under Section 65 of the Evidence Act. Be it noted, the
English translation of the said letter was marked as Exhibit R-9 which
indicated that the wife had clearly stated that she had spoken ill of
her mother-in-law and others and had expressed her desire to seek
divorce as she could not stay any longer in the matrimonial home. It
was observed by the Bench that the conduct of the wife clearly
established desertion and her behaviourial pattern exhibited mental
cruelty meted out to the husband. The High Court also took note of
the fact that a stage had reached where it had become well nigh
impossible for the couple to live together. Regard being had to the
totality of the circumstances, the High Court gave the stamp of
approval to the common judgment and decree passed by the learned
Family Court.
11. We have heard Mrs. K. Sarada Devi, learned counsel for the appellant,
and Mr. K. Ramamoorthy, learned senior counsel for the respondent. It
is contended by Mrs. Sarada Devi that the learned Family Judge as well
as the High Court had failed to appreciate that neither mental cruelty
nor desertion had been established as per the law.
It is contended by
her that Exh. R-8 and R-9 were not admissible in evidence inasmuch as
they could not be treated as secondary evidence as envisaged under
Section 65 of the Evidence Act. It is further urged that the whole
decision for granting divorce and denying restitution of conjugal
rights has been based regard being had to the total break down of
marriage but the said ground is not a legally permissible one to grant
divorce.
12. Mr. K. Ramamoorthy, learned senior counsel appearing for the
respondent, per contra, would submit that the said observation is one
of the facets, but the High Court has, after due deliberations,
returned findings relating to cruelty and desertion and the same being
founded on proper appreciation of the material on record, this Court
should not interfere in exercise of appeal entertained by grant of
leave under Section 136 of the Constitution of India.
13. At this juncture, we may note with profit that as a matter of fact,
the High Court has observed that it has become well nigh impossible
for the husband and the wife to live together and the emotional bond
between the parties is dead for all purposes. We have noted this
aspect for completeness, but we will not address the said facet and
will restrict our delineation only towards the justifiability of the
conclusions pertaining to mental cruelty and desertion.
14. Before we dwell upon the tenability of the conclusions of desertion
and mental cruelty, we think it condign to deal with the submission
whether
the photostat copy of the letter alleged to have been written by the wife
to her father could have been admitted as secondary evidence. As the
evidence on record would show, the said letter was summoned from the father
who had disputed its existence.
The learned Family Court Judge as well as
the High Court has opined that when the person is in possession of the
document but has not produced the same, it can be regarded as a proper
foundation to lead secondary evidence.
In this context, we may usefully
refer to the decision in Ashok Dulichand v. Madahavlal Dube[10]
wherein it
has been held that according to clause (a) of Section 65 of the Indian
Evidence Act, secondary evidence may be given of the existence, condition
or contents of a document when the original is shown or appears to be in
the possession or power of the person against whom the document is sought
to be proved, or of any person out of reach of, or not subject to, the
process of the court, or of any person legally bound to produce it, and
when, after the notice mentioned in Section 66, such person does not
produce it. Thereafter, the Court addressed to the facts of the case and
opined thus: -
“In order to bring his case within the purview of clause (a) of
Section 65, the appellant filed applications on July 4, 1973, before
Respondent 1 was examined as a witness, praying that the said
respondent be ordered to produce the original manuscript of which,
according to the appellant, he had filed photostat copy. Prayer was
also made by the appellant that in case Respondent 1 denied that the
said manuscript had been written by him, the photostat copy might be
got examined from a handwriting expert. The appellant also filed
affidavit in support of his applications. It was, however, nowhere
stated in the affidavit that the original document of which the
photostat copy had been filed by the appellant was in the possession
of Respondent 1. There was also no other material on the record to
indicate that the original document was in the possession of Respondent 1.
The appellant further failed to explain as to what
were the circumstances under which the photostat copy was prepared
and who was in possession of the original document at the time its
photograph was taken. Respondent 1 in his affidavit denied being in
possession of or having anything to do with such a document.”
Be it noted, in this backdrop, the High Court had recorded a conclusion
that no foundation had been laid by the appellant for leading secondary
evidence in the shape of the photostat copy and this Court did not perceive
any error in the said analysis.
15. In J. Yashoda v. K. Shobha Rani[11], after analyzing the language
employed in Sections 63 and 65 (a), a two-Judge Bench held as follows:-
“Section 65, however permits secondary evidence to be given of the
existence, condition or contents of documents under the circumstances
mentioned. The conditions laid down in the said section must be
fulfilled before secondary evidence can be admitted. Secondary
evidence of the contents of a document cannot be admitted without non-
production of the original being first accounted for in such a manner
as to bring it within one or other of the cases provided for in the
section.”
16. In M. Chandra v. M. Thangamuthu and Other[12], It has been held as
follows:-
”It is true that a party who wishes to rely upon the contents of a
document must adduce primary evidence of the contents, and only in the
exceptional cases will secondary evidence be admissible. However, if
secondary evidence is admissible, it may be adduced in any form in
which it may be available, whether by production of a copy, duplicate
copy of a copy, by oral evidence of the contents or in another form.
The secondary evidence must be authenticated by foundational evidence
that the alleged copy is in fact a true copy of the original. It
should be emphasised that the exceptions to the rule requiring primary
evidence are designed to provide relief in a case where a party is
genuinely unable to produce the original through no fault of that
party.”
17. Recently, in H. Siddiqui (Dead) by Lrs. v. A. Ramalingam[13],
while
dealing with Section 65 of the Evidence Act, this Court opined though the
said provision permits the parties to adduce secondary evidence, yet such a
course is subject to a large number of limitations.
In a case where the
original documents are not produced at any time, nor has any factual
foundation been laid for giving secondary evidence, it is not permissible
for the court to allow a party to adduce secondary evidence.
Thus,
secondary evidence relating to the contents of a document is inadmissible,
until the non-production of the original is accounted for, so as to bring
it within one or other of the cases provided for in the section.
The
secondary evidence must be authenticated by foundational evidence that the
alleged copy is in fact a true copy of the original.
It has been further
held that mere admission of a document in evidence does not amount to its
proof.
Therefore, it is the obligation of the Court to decide the question
of admissibility of a document in secondary evidence before making
endorsement thereon.
18. In the case at hand, the learned Family Judge has really not
discussed anything relating to foundational evidence. The High Court has
only mentioned that when the letter was summoned and there was a denial,
the secondary evidence is admissible. In our considered opinion, such a
view is neither legally sound nor in consonance with the pronouncements of
this Court and, accordingly, we have no hesitation in dislodging the
finding on that score.
19. The next facet which is to be dwelled upon is whether the appellant
had treated her husband with mental cruelty. The legal sustainability of
the said conclusion has to be tested keeping the photostat copy of the
letter out of consideration. At the very outset, we may state that there
is no cavil over the proposition as to what cruelty includes. Regard being
had to the same, we shall refer to certain authorities.
20. In Samar Ghosh v. Jaya Ghosh[14], a three-Judge Bench, after dealing
with the concept of mental cruelty, has observed thus:-
“99. … The human mind is extremely complex and human behaviour is
equally complicated. Similarly human ingenuity has no bound,
therefore, to assimilate the entire human behaviour in one definition
is almost impossible. What is cruelty in one case may not amount to
cruelty in the other case. The concept of cruelty differs from person
to person depending upon his upbringing, level of sensitivity,
educational, family and cultural background, financial position,
social status, customs, traditions, religious beliefs, human values
and their value system.
100. Apart from this, the concept of mental cruelty cannot remain
static; it is bound to change with the passage of time, impact of
modern culture through print and electronic media and value system,
etc. etc. What may be mental cruelty now may not remain a mental
cruelty after a passage of time or vice versa. There can never be any
straitjacket formula or fixed parameters for determining mental
cruelty in matrimonial matters. The prudent and appropriate way to
adjudicate the case would be to evaluate it on its peculiar facts and
circumstances….”
21. In Ravi Kumar v. Julmidevi[15], this Court has expressed thus: -
“In matrimonial relationship, cruelty would obviously mean absence
of mutual respect and understanding between the spouses which
embitters the relationship and often leads to various outbursts of
behaviour which can be termed as cruelty. Sometime cruelty in a
matrimonial relationship may take the form of violence, sometime it
may take a different form. At times, it may be just an attitude or
an approach. Silence in some situations may amount to cruelty.
20. Therefore, cruelty in matrimonial behaviour defies any
definition and its categories can never be closed. Whether the
husband is cruel to his wife or the wife is cruel to her husband has
to be ascertained and judged by taking into account the entire facts
and circumstances of the given case and not by any predetermined
rigid formula. Cruelty in matrimonial cases can be of infinite
variety—it may be subtle or even brutal and may be by gestures and
words.”
22. Recently, this Court, in Vishwanath Agrawal, s/o Sitaram Agrawal v.
Sarla Vishwanath Agrawal[16], while dealing with the conception of cruelty,
has stated that it has inseparable nexus with human conduct or human
behaviour. It is always dependent upon the social strata or the milieu to
which the parties belong, their ways of life, relationship, temperament and
emotions that have been conditioned by the social status. The two-Judge
Bench referred to the decisions in Sirajmohmedkhan Janmohamadkhan v.
Hafizunnisa Yasikhan[17], Shobha Rani (supra), Sheldon v. Sheldon[18], V.
Bhagat v. D. Bhagat[19], Parveen Mehta (supra), Vijaykumar Ramchandra Bhate
v. Neela Vijaykumar Bhate[20], A. Jayachandra v. Aneel Kaur[21], Vinita
Saxena v. Pankaj Pandit[22], Samar Ghosh (supra) and Suman Kapur v. Sudhir
Kapur[23], and opined that when the evidence brought on record clearly
establish a sustained attitude of causing humiliation and calculated
torture on the part of the wife to make the life of the husband miserable,
it would amount to mental cruelty. Emphasis was laid on the behavioral
pattern of the wife whereby a dent is created in the reputation of the
husband, regard being had to the fact that reputation is the salt of life.
23. In the case at hand, the husband has clearly deposed about the
constant and consistent ill-treatment meted out to him by the wife inasmuch
as she had shown her immense dislike to his “sadhna” in music and had
exhibited total indifference and, in a way, contempt to the tradition of
teacher and disciple. It has graphically been demonstrated that she had
not shown the slightest concern for the public image of her husband on many
an occasion by putting him in a situation of embarrassment leading to
humiliation. She has made wild allegations about the conspiracy in the
family of her husband to get him re-married for the greed of dowry and
there is no iota of evidence on record to substantiate the same. This, in
fact, is an aspersion not only on the character of the husband but also a
maladroit effort to malign the reputation of the family. The learned
Family Judge as well as the High Court has clearly analysed the evidence
and recorded a finding that the wife had treated the husband with mental
cruelty. True it is, there is some reference in that regard to the
photostat copy of the letter which we have not accepted as admissible in
evidence but the other evidence brought on record clearly support the
findings recorded by the learned Family Judge and the High Court and the
said finding remains in the realm of fact.
24. This Court, in State of U. P. v. Babul Nath[24], while considering
the scope of Article 136 as to when this Court is entitled to upset a
finding of fact, has observed thus: -
“5. At the very outset we may mention that in an appeal under Article
136 of the Constitution this Court does not normally reappraise the
evidence by itself and go into the question of credibility of the
witnesses and the assessment of the evidence by the High Court is
accepted by the Supreme Court as final unless, of course, the
appreciation of evidence and finding is vitiated by any error of law
of procedure or found contrary to the principles of natural justice,
errors of record and misreading of the evidence, or where the
conclusions of the High Court are manifestly perverse and
unsupportable from the evidence on record.”
25. In Bharat Coking Coal Ltd. v. Karam Chand Thapar & Bros. Pvt.
Ltd.[25], this Court opined that the jurisprudence under Article 136 stands
out to be extremely wide but that does not, however, warrant intervention
in a situation having concurrent set of facts and an appeal therefrom on
the factual issue. The article has been engrafted by the founding fathers
of the Constitution for the purposes of avoiding mischief and injustice on
the wrong assumption of law. The justice delivery system of the country
prompts this Court to interfere under Article 136 of the Constitution when
the need of the society stands established and the judgment, if left
outstanding, would not only create prejudice but would also have an
otherwise adverse effect on the society. Further elaborating, the Bench
ruled thus:-
“The jurisdiction under Article 136 stands out to be extremely wide
but that does not, however, warrant intervention having concurrent
set of facts and an appeal therefrom on the factual issue. The
article has been engrafted by the founding fathers of the
Constitution for the purposes of avoiding mischief of injustice on
the wrong assumption of law. The justice delivery system of the
country prompts this Court to interfere under Article 136 of the
Constitution when the need of the society stands established and the
judgment, if left outstanding, would not only create prejudice but
would have an otherwise adverse effect on to the society — it is
this solemn objective of administration of justice with which the
Constitution-makers thought it prudent to confer such a power on to
the Apex Court of the country. It is the final arbiter but only when
the dispute needs to be settled by the Apex Court so as to avoid
injustice and infraction of law.”
26. In Ganga Kumar Srivastava v. State of Bihar[26], after referring to
the earlier authorities, this Court culled out certain principles which
would invite exercise of power of this Court under Article 136 of the
Constitution:-
(i) The powers of this Court under Article 136 of the
Constitution are very wide but in criminal appeals this Court does
not interfere with the concurrent findings of fact save in
exceptional circumstances.
(ii) It is open to this Court to interfere with the findings of
fact given by the High Court, if the High Court has acted perversely
or otherwise improperly.
(iii) It is open to this Court to invoke the power under Article
136 only in very exceptional circumstances as and when a question of
law of general public importance arises or a decision shocks the
conscience of the Court.
(iv) When the evidence adduced by the prosecution fell short of
the test of reliability and acceptability and as such it is highly
unsafe to act upon it.
(v) Where the appreciation of evidence and finding is vitiated by
any error of law of procedure or found contrary to the principles of
natural justice, errors of record and misreading of the evidence, or
where the conclusions of the High Court are manifestly perverse and
unsupportable from the evidence on record.
27. In Dubaria v. Har Prasad and Another[27], it has been held that when
there is infirmity in the decision because of excluding, ignoring and
overlooking the abundant materials and the evidence, if considered in
proper perspective, would have led to conclusion contrary to the one taken
by both the High Court as well as the fora below, it would be open to this
Court to interfere with the concurrent findings of fact.
28. Tested on the touchstone of the aforesaid principles, we have no
trace of doubt that the finding returned by the Family Judge which has been
given the stamp of approval by the High Court relating to mental cruelty
cannot be said to be in ignorance of material evidence or exclusion of
pertaining materials or based on perverse reasoning. In our view, the
conclusion on that score clearly rests on proper appreciation of facts and,
hence, we concur with the same.
29. Presently, we shall advert to the finding recorded by the learned
Family Judge and the High Court relating to desertion by the wife. As the
factual matrix would reveal, both the Courts have proceeded on the base
that the wife had not endeavored to reunite herself with the husband and
there had long lapse of time since they had lived together as husband and
wife. On the aforesaid foundation, the conclusion has been drawn that
there is an animus descerendi on the part of the wife. To test the
tenability of the said conclusion, we have perused the petition for divorce
from which it is evident that there is no pleading with regard to
desertion. It needs no special emphasis to state that a specific case for
desertion has to be pleaded. It is also interesting to note that the
petition was not filed seeking divorce on the ground of desertion but
singularly on cruelty. In the absence of a prayer in that regard, we are
constrained to hold that the conclusion arrived at as regards desertion by
the learned Family Judge which has been concurred with by the High Court is
absolutely erroneous and, accordingly, we overturn the same.
30. From the foregoing analysis, it is established that the husband has
proved his case of mental cruelty which was the foundation for seeking
divorce. Therefore, despite dislodging the finding of desertion, we
conclude and hold that the respondent husband has rightly been granted a
decree of divorce.
31. The next issue that emerges for consideration pertains to the grant
of permanent alimony. It is noticeable that the wife had filed a case for
grant of maintenance and residence under the Hindu Adoptions and
Maintenance Act, 1956 at Hyderabad. The High Court has granted Rs. 12,500/-
per month from the date of filing of the petition for maintenance and Rs.5
Lacs each to the wife and son towards permanent alimony. Whether the High
Court should have granted Rs.12500/- as maintenance need not be addressed
by us inasmuch as we are inclined to deal with this issue of grant of
permanent alimony in a different backdrop. As is evincible from the orders
of this Court when the matters were listed on 9.4.2012, the Court had taken
note of the fact that the wife and son have been living separately at
Hyderabad for about 16 years and, in that context, the following order was
passed :-
“Looking to the financial and social status of the parties, we
request the learned senior counsel appearing for the respondent
to ask his client to arrange for one flat for the petitioner and
their so that they can live in the said flat comfortably.
On this suggestion, being given by the Court, learned senior
counsel appearing for the respondent prayed for time to seek
instructions.”
32. On 30.4.2012, the following order came to be passed:-
“As per the Order passed by this Court on 09.04.2012, learned
senior counsel appearing for the respondent-husband informed
that respondent is ready and willing to buy a flat for the
petitioner in Hyderabad, so that she will have a roof over her
head for all the times to come.
However, the details of the same are required to be worked
out.
It is, therefore, desirable that both the parties should
remain present in this Court on 10.07.2012.
Without prejudice, a sum of Rs. 10 lakhs by way of Demand
Draft is being paid by the respondent- husband to petitioner-
wife. Other Rs. 10 lakhs is in deposit with the Family Court at
Chennai. Petitioner will be at liberty to withdraw this
amount.”
33. We have reproduced the aforesaid orders to highlight that the husband
had agreed to buy a flat at Hyderabad. However, when the matter was
listed thereafter, there was disagreement with regard to the locality of
the flat arranged by the husband and, therefore, the matter was heard on
merits. We have already opined that the husband has made out a case for
divorce by proving mental cruelty.
As a decree is passed, the wife is
entitled to permanent alimony for her sustenance. Be it stated, while
granting permanent alimony, no arithmetic formula can be adopted as there
cannot be mathematical exactitude. It shall depend upon the status of the
parties, their respective social needs, the financial capacity of the
husband and other obligations.
In Vinny Parmvir Parmar v. Parmvir
Parmar[28],
while dealing with the concept of permanent alimony, this Court
has observed that while granting permanent alimony, the Court is required
to take note of the fact that the amount of maintenance fixed for the wife
should be such as she can live in reasonable comfort considering her status
and the mode of life she was used to when she lived with her husband. At
the same time, the amount so fixed cannot be excessive or affect the living
condition of the other party.
34. Keeping in mind the aforesaid broad principles, we may proceed to
address the issue.
The respondent himself has asserted that he has earned
name and fame in the world of music and has been performing concerts in
various parts of India and abroad. He had agreed to buy a flat in
Hyderabad though it did not materialise because of the demand of the wife
to have a flat in a different locality where the price of the flat is
extremely high.
Be that as it may, it is the duty of the Court to see
that the wife lives with dignity and comfort and not in penury. The living
need not be luxurious but simultaneously she should not be left to live in
discomfort. The Court has to act with pragmatic sensibility to such an
issue so that the wife does not meet any kind of man-made misfortune.
Regard being had to the status of the husband, the social strata to which
the parties belong and further taking note of the orders of this Court on
earlier occasions,
we think it appropriate to fix the permanent alimony at
Rs 50 lacs which shall be deposited before the learned Family Judge within
a period of four months out of which Rs.20 lacs shall be kept in a fixed
deposit in the name of the son in a nationalized bank which would be
utilised for his benefit. The deposit shall be made in such a manner so
that the respondent wife would be in a position to draw maximum quarterly
interest. We may want to clarify that any amount deposited earlier shall
stand excluded.
35. On the basis of the forgoing discussion, the decree for dissolution
of marriage is affirmed only on the ground of mental cruelty which
eventually leads to dismissal of the appeals. The parties shall bear their
respective costs.
……………………………….J.
[K. S. Radhakrishnan]
New Delhi; ……………………………….J.
December 11, 2012 [Dipak Misra]
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[1] (1975) 2 SCC 326
[2] AIR 1990 Kerala 1
[3] (2002) 5 SCC 706
[4] (2002) 2 SCC 619
[5] (1988) 1 SCC 105
[6] (2010) 4 SCC 339
[7] (2006) 13 SCC 272
[8] (1993) 4 SCC 232
[9] (2007) 9 SCC 217
[10] (1975) 4 SCC 664
[11] (2007) 5 SCC 730
[12] (2010) 9 SCC 712
[13] (2011) 4 SCC 240
[14] (2007) 4 SCC 511
[15] (2010) 4 SCC 476
[16] (2012) 7 SCC 288
[17] (1981) 4 SCC 250
[18] (1966) 2 WLR 993
[19] (1994) 1 SCC 337
[20] (2003) 6 SCC 334
[21] (2005) 2 SCC 22
[22] (2009) 1 SCC 422
[23] (2009) 1 SCC 422
[24] (1994) 6 SCC 29
[25] (2003) 1 SCC 6
[26] (2005) 6 SCC 211
[27] (2009) 9 SCC 346
[28] (2011) 13 SCC 112
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