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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1794 OF 2013
(Arising out of Special Leave Petition (Civil) No. 4782 of
2007)
K. SRINIVAS RAO … APPELLANT
Versus
D.A. DEEPA … RESPONDENT
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. This appeal, by special leave, has been filed by the
appellant-husband, being aggrieved by the judgment and
order dated 8/11/2006 passed by the Andhra Pradesh High
Court in Civil Miscellaneous Appeal No.797/03, setting aside
the decree of divorce granted in his favour.
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3. The appellant-husband is working as Assistant Registrar
in the Andhra Pradesh High Court. The marriage between the
appellant-husband and the respondent-wife was solemnized
on 25/4/1999 as per Hindu rites and customs. Unfortunately,
on the very next day disputes arose between the elders on
both sides which resulted in their abusing each other and
hurling chappals at each other. As a consequence, on
27/4/1999, the newly married couple got separated without
consummation of the marriage and started living separately.
On 4/10/1999, the respondent-wife lodged a criminal
complaint against the appellant-husband before the Women
Protection Cell alleging inter alia that the appellant-husband
is harassing her for more dowry. This complaint is very
crucial to this case. We shall advert to it more in detail a
little later. Escalated acrimony led to complaints and
counter complaints. The respondent-wife filed a petition
under Section 9 of the Hindu Marriage Act, 1955 for
restitution of conjugal rights before the Family Court,
Secunderabad. The appellant-husband filed a counter-claim
seeking dissolution of marriage on the ground of cruelty and
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desertion under Section 13(1)(i-a) and (b) of the Hindu
Marriage Act, 1955.
4. The Family Court while dismissing the petition for
restitution of conjugal rights and granting decree of divorce
inter alia held that the respondent-wife stayed in the
appellant-husband’s house only for a day, she admitted that
she did not have any conversation with anyone and hence
any amount of oral evidence adduced by her will not support
her plea that she was harassed and driven out of the house;
that the story that the appellant-husband made a demand of
dowry of Rs.10,00,000/- is false; that by filing false complaint
against the appellant-husband and his family, alleging
offence under Section 498-A of the IPC in the Metropolitan
Magistrate Court, Hyderabad and by filing complaints
against the appellant-husband in the High Court where he is
working, the respondent-wife caused mental cruelty to the
appellant-husband and that reunion was not possible. The
Family Court directed the appellant-husband to repay
Rs.80,000/- given by the respondent-wife’s father to him
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with interest at 8% per annum from the date of the marriage
till payment.
5. By the impugned judgment the High Court allowed the
appeal carried by the respondent-wife against the said
judgment and set aside the decree of divorce granted in
favour of the appellant-husband. The High Court inter alia
observed that the finding of the Family Court that lodging a
complaint with the police against the appellant-husband
amounts to cruelty is perverse because it is not a ground for
divorce under the Hindu Marriage Act, 1955. The High Court
further held that the appellant-husband and the respondent wife
did not live together for a long time and, therefore, the
question of their treating each other with cruelty does not
arise. According to the High Court, the conclusion that the
respondent-wife caused mental cruelty to the appellant
husband is based on presumptions and assumptions.
6. Mr. Jayanth Muth Raj, learned counsel for the appellant
husband assailed the conduct of the respondent-wife and
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submitted that it disentitles her from getting any relief from
this Court. Counsel took us through the complaint lodged
by the respondent-wife with the Superintendent of Police,
Women Protection Cell, Hyderabad, making defamatory
allegations against the mother of the appellant-husband and
drew our attention to the various legal proceedings initiated
by her against the appellant-husband and his family.
Counsel submitted that she also lodged complaints with the
High Court asking for the removal of the appellant-husband
from his job. Counsel submitted that by lodging such false
complaints the respondent-wife caused extreme mental
cruelty to the appellant-husband. Counsel submitted that
the High Court fell into a grave error in observing that
because the respondent-wife did not live with the appellant
husband for long she could not have caused mental cruelty
to him. Counsel submitted that this observation is erroneous
and is contrary to the law laid down by this Court. False and
defamatory allegations made in the pleadings can also cause
mental cruelty. Counsel submitted that the marriage has
irretrievably broken down and, therefore, it is necessary to
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dissolve it by a decree of divorce. In support of his
submissions counsel placed reliance on G.V.N. Kameswara
Rao vs. G. Jabilli
1
, Parveen Mehta vs. Inderjit Mehta
2
,
Vijayakumar R. Bhate vs. Neela Vijayakumar Bhate
3
,
Durga Prasanna Tripathy vs. Arundhati Tripathy
4
,
Naveen Kohli vs. Neelu Kohli
5
and Samar Ghosh vs.
Jaya Ghosh
6
.
7. Mr. D. Rama Krishna Reddy, learned counsel for the
respondent-wife, on the other hand, submitted that the
father of the respondent-wife had given Rs.80,000/- and 15
tolas of gold as dowry to the appellant-husband’s family.
However, they demanded additional cash of Rs.10,00,000/-.
Because this demand could not be met, the respondent-wife
and her family was humiliated and ill-treated. Therefore, the
parents of the respondent-wife had to return to their house
along with her immediately after marriage. The father of the
respondent-wife made efforts to talk to the appellant-
1
(2002) 2 SCC 296
2
(2002) 5 SCC 706
3
(2003) 6 SCC 334
4
(2005) 7 SCC 353
5
(2006) 4 SCC 558
6
(2007) 4 SCC 511
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husband’s family, but, they did not respond to his efforts.
They persisted with their demands and, therefore, the
respondent-wife had no alternative but to lodge complaint
against them under Section 498-A of the IPC before the
Metropolitan Magistrate, Hyderabad. The appellant-husband
thereafter gave a false assurance that he will not harass her
and, therefore, she withdrew the complaint and went to the
matrimonial house. However, the approach of the appellant
husband and his family did not change. She had to therefore
renew her complaint. Counsel submitted that only because
of the obstinate and uncompromising attitude of the
appellant-husband and his family that the respondent-wife
had to take recourse to court proceedings. Counsel
submitted that the respondent-wife values the matrimonial
tie. She wants to lead a happy married life with the
appellant-husband. She had, therefore, filed a petition for
restitution of conjugal rights which should have been allowed
by the Family Court. Counsel submitted that after properly
evaluating all the circumstances the High Court has rightly
set aside the decree of divorce and granted a decree of
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restitution of conjugal rights. The High Court’s judgment,
therefore, merits no interference.
8. The matrimonial dispute started with a quarrel between
the elders of both sides in which initially the appellant
husband and the respondent-wife were not involved. The
ego battle of the elders took an ugly turn. Parties were
dragged to the court and the inevitable happened. The
relations between the two families got strained. With a fond
hope that we could bring about a settlement we requested
the counsel to talk to the parties and convey our wishes that
they should bury the hatchet and start living together. We
also tried to counsel them in the court. The respondent-wife
appears to be very keen to go back to the matrimonial home
and start life afresh, but the appellant-husband is adamant.
He conveyed to us through his counsel that by filing
repeated false complaints against him and his family the
respondent-wife has caused extreme cruelty to them and
therefore it will not be possible to take her back. In view of
this we have no option but to proceed with the case.
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9. The High Court has taken a view that since the
appellant-husband and the respondent-wife did not stay
together, there is no question of their causing cruelty to
each other. The High Court concluded that the conclusion
drawn by the Family Court that the respondent-wife caused
mental cruelty to the appellant-husband is erroneous. We
are unable to agree with the High Court.
10. Under Section 13(1)(i-a) of the Hindu Marriage Act,
1955, a marriage can be dissolved by a decree of divorce on
a petition presented either by the husband or the wife on the
ground that the other party has, after solemnization of the
marriage, treated the petitioner with cruelty. In a series of
judgments this Court has repeatedly stated the meaning and
outlined the scope of the term ‘cruelty’. Cruelty is evident
where one spouse has so treated the other and manifested
such feelings towards her or him as to cause in her or his
mind reasonable apprehension that it will be harmful or
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injurious to live with the other spouse. Cruelty may be
physical or mental.
11. In Samar Ghosh this Court set out illustrative cases
where inference of ‘mental cruelty’ can be drawn. This list is
obviously not exhaustive because each case presents it’s
own peculiar factual matrix and existence or otherwise of
mental cruelty will have to be judged after applying mind to
it. We must quote the relevant paragraph of Samar Ghosh.
We have reproduced only the instances which are relevant
to the present case.
“101. No uniform standard can ever be laid down
for guidance, yet we deem it appropriate to
enumerate some instances of human behaviour
which may be relevant in dealing with the cases of
“mental cruelty”. The instances indicated in the
succeeding paragraphs are only illustrative and
not exhaustive:
(i) On consideration of complete matrimonial life
of the parties, acute mental pain, agony and
suffering as would not make possible for the
parties to live with each other could come within
the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire
matrimonial life of the parties, it becomes
abundantly clear that situation is such that the
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wronged party cannot reasonably be asked to put
up with such conduct and continue to live with
other party.
(iii) xxx xxx xxx
(iv) Mental cruelty is a state of mind. The feeling
of deep anguish, disappointment, frustration in
one spouse caused by the conduct of other for a
long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating
treatment calculated to torture, discommode or
render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour
of one spouse actually affecting physical and
mental health of the other spouse. The treatment
complained of and the resultant danger or
apprehension must be very grave, substantial and
weighty.
(vii) xxx xxx xxx
(viii) xxx xxx xxx
(ix) xxx xxx xxx
(x) The married life should be reviewed as a whole
and a few isolated instances over a period of years
will not amount to cruelty. The ill conduct must be
persistent for a fairly lengthy period, where the
relationship has deteriorated to an extent that
because of the acts and behaviour of a spouse,
the wronged party finds it extremely difficult to
live with the other party any longer, may amount
to mental cruelty.
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(xi) xxx xxx xxx
(xii) xxx xxx xxx
(xiii) xxx xxx xxx
(xiv) Where there has been a long period of
continuous separation, it may fairly be concluded
that the matrimonial bond is beyond repair. The
marriage becomes a fiction though supported by a
legal tie. By refusing to sever that tie, the law in
such cases, does not serve the sanctity of
marriage; on the contrary, it shows scant regard
for the feelings and emotions of the parties. In
such like situations, it may lead to mental
cruelty.”
It is pertinent to note that in this case the husband and
wife had lived separately for more than sixteen and a half
years. This fact was taken into consideration along with
other facts as leading to the conclusion that matrimonial
bond had been ruptured beyond repair because of the
mental cruelty caused by the wife. Similar view was taken in
Naveen Kohli.
12. In V. Bhagat v. D. Bhagat
7
in the divorce petition
filed by the husband the wife filed written statement stating
7
(1994) 1 SCC 337
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that the husband was suffering from mental hallucination,
that his was a morbid mind for which he needs expert
psychiatric treatment and that he was suffering from
‘paranoid disorder’. In cross-examination her counsel put
several questions to the husband suggesting that several
members of his family including his grandfather were
lunatics. This court held that these assertions cannot but
constitute mental cruelty of such a nature that the husband
cannot be asked to live with the wife thereafter. Such
pleadings and questions it was held, are bound to cause
immense mental pain and anguish to the husband. In
Vijaykumar Bhate disgusting accusations of unchastity and
indecent familiarity with a neighbour were made in the
written statement. This Court held that the allegations are
of such quality, magnitude and consequence as to cause
mental pain, agony and suffering amounting to the
reformulated concept of cruelty in matrimonial law causing
profound and lasting disruption and driving the wife to feel
deeply hurt and reasonably apprehend that it would be
dangerous to live with her husband. In Naveen Kohli the
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respondent-wife got an advertisement issued in a national
newspaper that her husband was her employee. She got
another news item issued cautioning his business associates
to avoid dealing with him. This was treated as causing
mental cruelty to the husband.
13. In Naveen Kohli the wife had filed several complaints
and cases against the husband. This Court viewed her
conduct as a conduct causing mental cruelty and observed
that the finding of the High Court that these proceedings
could not be taken to be such which may warrant annulment
of marriage is wholly unsustainable.
14. Thus, to the instances illustrative of mental cruelty
noted in Samar Ghosh, we could add a few more. Making
unfounded indecent defamatory allegations against the
spouse or his or her relatives in the pleadings, filing of
complaints or issuing notices or news items which may have
adverse impact on the business prospect or the job of the
spouse and filing repeated false complaints and cases in the
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court against the spouse would, in the facts of a case,
amount to causing mental cruelty to the other spouse.
15. We shall apply the above principles to the present case.
Firstly, it is necessary to have a look at the legal proceedings
initiated by both sides against each other. The facts on
record disclose that after the marriage, due to some dispute
which arose between the elders, both sides abused and
virtually attacked each other. The respondent-wife was
taken by her parents to their house. According to the
respondent-wife, her father made efforts to bring about an
amicable settlement but the other side did not respond
favourably and, therefore, on 4/10/1999 she lodged a
complaint with the Superintendent of Police, Women
Protection Cell against the appellant-husband and members
of his family. In our opinion, this complaint is, to a large
extent, responsible for widening the rift between the parties.
In this complaint, after alleging ill-treatment and harassment
for dowry, it is alleged that mother of the appellant-husband
asked the respondent-wife to sleep with the father of the
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appellant-husband. When she was cross-examined in the
Family Court during the hearing of her petition for restitution
of conjugal rights the respondent-wife admitted that she had
lodged the complaint. PW-2 her mother, in her cross examination
stated that though they had asked her not to
lodge the complaint, the respondent-wife lodged it. She told
them that she had lodged the complaint because the
appellant-husband was not listening to her. Thus, it appears
that this complaint was lodged out of frustration and anger
and was a reaction to the appellant-husband’s refusal to live
with her. It was, perhaps, felt by her that because of the
pressure of such a complaint the appellant-husband would
take her back to his house. Far from helping the
respondent-wife, the complaint appears to have caused
irreparable harm to her. It increased the bitterness.
Perhaps, the respondent-wife was misguided by someone.
But, such evidence is not on record. Even in this court, this
complaint appears to us to be a major factor amongst others
impeding settlement. Pursuant to the said complaint, Crime
No.8/2000 was registered by C.I.D., Hyderabad, in the
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Metropolitan Magistrate (Mahila Court), Hyderabad against
the appellant-husband and his family under Section 498-A of
the IPC. It is the respondent-wife’s case that the appellant
husband gave an assurance before the police that he will not
harass her. She, therefore, withdrew the complaint. The
police then filed a closure report. According to the
respondent-wife, the appellant-husband did not abide by the
promise made by him and, therefore, she filed a protest
petition. The Magistrate Court, Hyderabad, then, took
cognizance of the case and renumbered the case as
C.C.No.62/2002.
16. In the meantime, the respondent-wife filed
O.P.No.88/2001 in the Family Court, Secunderabad, for
restitution of conjugal rights. The appellant-husband filed a
counter claim for divorce on 27/12/2002. The Family Court
dismissed the petition for restitution of conjugal rights and
allowed the counter claim for divorce filed by the appellant
husband. The respondent-wife challenged the Family Court
judgment in the High Court. On 8/12/2006 the High Court
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reversed the Family Court’s order and allowed the petition
for restitution of conjugal rights. The present appeal is filed
by the appellant-husband against the said judgment.
17. According to the respondent-wife, on 17/9/2007 when
she, along with her mother, came out of the court after a
case filed by her against the appellant-husband was
adjourned, the appellant-husband beat her mother and
kicked her on her stomach. Both of them received injuries.
She, therefore, filed complaint for the offence punishable
under Section 324 of the IPC against the appellant-husband
(C.C.No. 79/2009). It may be stated here that on 19/10/2009
the appellant-husband was acquitted in this case.
18. On 24/6/2008 the judgment was delivered by Additional
Chief Metropolitan Magistrate, Hyderabad in C.C.No.
62/2002. The appellant-husband was convicted under
Section 498-A of the IPC and was sentenced to undergo six
months simple imprisonment. He and his parents were
acquitted of the offences under the Dowry Prohibition Act.
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His parents were acquitted of the offence under Section 498-
A of the IPC. After this judgment the respondent-wife and
her parents filed a complaint in the High Court saying that
since the appellant-husband was convicted he should be
dismissed from service. Similar letters were sent to the High
Court by the maternal uncle of the respondent-wife.
19. On 14/7/2008 the appellant-husband filed Criminal
Appeal No.186/2008 challenging his conviction under Section
498-A of the IPC before the Metropolitan Sessions Judge. It is
pertinent to note that the respondent-wife filed Criminal
Appeal No.1219/2008 in the High Court questioning the
acquittal of the appellant-husband and his parents of the
offences under the Dowry Prohibition Act and also the
acquittal of his parents of the offence punishable under
Section 498-A of the IPC. This appeal is pending in the High
Court. Not being content with this, the respondent-wife filed
Criminal Revision Case No.1560/2008 in the High Court
seeking enhancement of punishment awarded to the
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appellant-husband for offence under Section 498-A of the
IPC.
20. According to the appellant-husband on 6/12/2009 the
brother of the respondent-wife came to their house and
attacked his mother. His mother filed a complaint and the
police registered a complaint under Section 354 of the IPC.
The brother of the respondent-wife also lodged a complaint
and an offence came to be registered. Both the cases are
pending.
21. On 29/6/2010 Criminal Appeal No. 186/2010 filed by the
appellant-husband challenging his conviction for the offence
under Section 498-A of the IPC was allowed by the
Metropolitan Sessions Judge and he was acquitted. The
respondent-wife has filed criminal appeal in the High Court
challenging the said acquittal which is pending.
22. We need to now see the effect of the above events. In
our opinion, the first instance of mental cruelty is seen in the
scurrilous, vulgar and defamatory statement made by the
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respondent-wife in her complaint dated 4/10/1999 addressed
to the Superintendent of Police, Women Protection Cell. The
statement that the mother of the appellant-husband asked
her to sleep with his father is bound to anger him. It is his
case that this humiliation of his parents caused great
anguish to him. He and his family were traumatized by the
false and indecent statement made in the complaint. His
grievance appears to us to be justified. This complaint is a
part of the record. It is a part of the pleadings. That this
statement is false is evident from the evidence of the mother
of the respondent-wife, which we have already quoted. This
statement cannot be explained away by stating that it was
made because the respondent-wife was anxious to go back
to the appellant-husband. This is not the way to win the
husband back. It is well settled that such statements cause
mental cruelty. By sending this complaint the respondent
wife has caused mental cruelty to the appellant-husband.
23. Pursuant to this complaint, the police registered a
case under Section 498-A of the IPC. The appellant-husband
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and his parents had to apply for anticipatory bail, which was
granted to them. Later, the respondent-wife withdrew the
complaint. Pursuant to the withdrawal, the police filed a
closure report. Thereafter, the respondent-wife filed a
protest petition. The trial court took cognizance of the case
against the appellant-husband and his parents (CC No.
62/2002). What is pertinent to note is that the respondent
wife filed criminal appeal in the High Court challenging the
acquittal of the appellant-husband and his parents of the
offences under the Dowry Prohibition Act and also the
acquittal of his parents of the offence punishable under
Section 498-A of the IPC. She filed criminal revision seeking
enhancement of the punishment awarded to the appellant
husband for the offence under Section 498-A of the IPC in
the High Court which is still pending. When the criminal
appeal filed by the appellant-husband challenging his
conviction for the offence under Section 498-A of the IPC was
allowed and he was acquitted, the respondent-wife filed
criminal appeal in the High Court challenging the said
acquittal. During this period respondent-wife and members
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of her family have also filed complaints in the High Court
complaining about the appellant-husband so that he would
be removed from the job. The conduct of the respondent
wife in filing a complaint making unfounded, indecent and
defamatory allegation against her mother-in-law, in filing
revision seeking enhancement of the sentence awarded to
the appellant-husband, in filing appeal questioning the
acquittal of the appellant-husband and acquittal of his
parents indicates that she made all attempts to ensure that
he and his parents are put in jail and he is removed from his
job. We have no manner of doubt that this conduct has
caused mental cruelty to the appellant-husband.
24. In our opinion, the High Court wrongly held that
because the appellant-husband and the respondent-wife did
not stay together there is no question of the parties causing
cruelty to each other.
Staying together under the same roof
is not a pre-condition for mental cruelty. Spouse can cause
mental cruelty by his or her conduct even while he or she is
not staying under the same roof.
In a given case, while
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staying away, a spouse can cause mental cruelty to the
other spouse by sending vulgar and defamatory letters or
notices or filing complaints containing indecent allegations
or by initiating number of judicial proceedings making the
other spouse’s life miserable. This is what has happened in
this case.
25. It is also to be noted that the appellant-husband and
the respondent-wife are staying apart from 27/4/1999. Thus,
they are living separately for more than ten years. This
separation has created an unbridgeable distance between
the two. As held in Samar Ghosh, if we refuse to sever the
tie, it may lead to mental cruelty.
26. We are also satisfied that this marriage has
irretrievably broken down. Irretrievable breakdown of
marriage is not a ground for divorce under the Hindu
Marriage Act, 1955. But, where marriage is beyond repair on
account of bitterness created by the acts of the husband or
the wife or of both, the courts have always taken
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irretrievable breakdown of marriage as a very weighty
circumstance amongst others necessitating severance of
marital tie. A marriage which is dead for all purposes cannot
be revived by the court’s verdict, if the parties are not
willing. This is because marriage involves human sentiments
and emotions and if they are dried-up there is hardly any
chance of their springing back to life on account of artificial
reunion created by the court’s decree.
27. In V. Bhagat this Court noted that divorce petition was
pending for eight years and a good part of the lives of both
the parties had been consumed in litigation, yet the end was
not in sight. The facts were such that there was no question
of reunion, the marriage having irretrievably broken down.
While dissolving the marriage on the ground of mental
cruelty this Court observed that irretrievable breakdown of
marriage is not a ground by itself, but, while scrutinizing the
evidence on record to determine whether the grounds
alleged are made out and in determining the relief to be
granted the said circumstance can certainly be borne in
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mind. In Naveen Kohli, where husband and wife had been
living separately for more than 10 years and a large number
of criminal proceedings had been initiated by the wife
against the husband, this Court observed that the marriage
had been wrecked beyond the hope of salvage and public
interest and interest of all concerned lies in the recognition
of the fact and to declare defunct de jure what is already
defunct de facto. It is important to note that in this case this
Court made a recommendation to the Union of India that the
Hindu Marriage Act, 1955 be amended to incorporate
irretrievable breakdown of marriage as a ground for the
grant of divorce.
28. In the ultimate analysis, we hold that the respondent
wife has caused by her conduct mental cruelty to the
appellant-husband and the marriage has irretrievably broken
down. Dissolution of marriage will relieve both sides of pain
and anguish. In this Court the respondent-wife expressed
that she wants to go back to the appellant-husband, but,
that is not possible now. The appellant-husband is not
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willing to take her back. Even if we refuse decree of divorce
to the appellant-husband, there are hardly any chances of
the respondent-wife leading a happy life with the appellant
husband because a lot of bitterness is created by the
conduct of the respondent-wife.
29. In Vijay Kumar, it was submitted that if the decree of
divorce is set aside, there may be fresh avenues and scope
for reconciliation between parties. This court observed that
judged in the background of all surrounding circumstances,
the claim appeared to be too desolate, merely born out of
despair rather than based upon any real, concrete or
genuine purpose or aim. In the facts of this case we feel the
same.
30. While we are of the opinion that decree of divorce must
be granted, we are alive to the plight of the respondent-wife.
The appellant-husband is working as an Assistant Registrar
in the Andhra Pradesh High Court. He is getting a good
salary. The respondent-wife fought the litigation for more
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than 10 years. She appears to be entirely dependent on her
parents and on her brother, therefore, her future must be
secured by directing the appellant-husband to give her
permanent alimony. In the facts and circumstance of this
case, we are of the opinion that the appellant-husband
should be directed to pay a sum of Rs.15,00,000/- (Rupees
Fifteen Lakhs only) to the respondent-wife as and by way of
permanent alimony. In the result, the impugned judgment is
quashed and set aside. The marriage between the
appellant-husband - K. Srinivas Rao and the respondent-wife
- D.A. Deepa is dissolved by a decree of divorce. The
appellant-husband shall pay to the respondent-wife
permanent alimony in the sum of Rs.15,00,000/-, in three
instalments. The first instalment of Rs.5,00,000/- (Rupees
Five Lakhs only) should be paid on 15/03/2013 and the
remaining amount of Rs.10,00,000/- (Rupees Ten Lakhs only)
should be paid in instalments of Rs.5,00,000/- each after a
gap of two months i.e. on 15/05/2013 and 15/07/2013
respectively. Each instalment of Rs.5,00,000/- be paid by a
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demand draft drawn in favour of the respondent-wife “D.A.
Deepa”.
31. Before parting, we wish to touch upon an issue which
needs to be discussed in the interest of victims of
matrimonial disputes. Though in this case, we have
recorded a finding that by her conduct, the respondent-wife
has caused mental cruelty to the appellant-husband, we may
not be understood, however, to have said that the fault lies
only with the respondent-wife. In matrimonial disputes
there is hardly any case where one spouse is entirely at
fault. But, then, before the dispute assumes alarming
proportions, someone must make efforts to make parties see
reason. In this case, if at the earliest stage, before the
respondent-wife filed the complaint making indecent
allegation against her mother-in-law, she were to be
counselled by an independent and sensible elder or if the
parties were sent to a mediation centre or if they had access
to a pre-litigation clinic, perhaps the bitterness would not
have escalated. Things would not have come to such a pass
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if, at the earliest, somebody had mediated between the two.
It is possible that the respondent-wife was desperate to save
the marriage. Perhaps, in desperation, she lost balance and
went on filing complaints. It is possible that she was
misguided. Perhaps, the appellant-husband should have
forgiven her indiscretion in filing complaints in the larger
interest of matrimony. But, the way the respondent-wife
approached the problem was wrong. It portrays a vindictive
mind. She caused extreme mental cruelty to the appellant
husband. Now the marriage is beyond repair.
32. Quite often, the cause of the misunderstanding in a
matrimonial dispute is trivial and can be sorted. Mediation as
a method of alternative dispute resolution has got legal
recognition now. We have referred several matrimonial
disputes to mediation centres. Our experience shows that
about 10 to 15% of matrimonial disputes get settled in this
Court through various mediation centres. We, therefore, feel
that at the earliest stage i.e. when the dispute is taken up by
the Family Court or by the court of first instance for hearing,
30Page 31
it must be referred to mediation centres. Matrimonial
disputes particularly those relating to custody of child,
maintenance, etc. are preeminently fit for mediation. Section
9 of the Family Courts Act enjoins upon the Family Court to
make efforts to settle the matrimonial disputes and in these
efforts, Family Courts are assisted by Counsellors. Even if
the Counsellors fail in their efforts, the Family Courts should
direct the parties to mediation centres, where trained
mediators are appointed to mediate between the parties.
Being trained in the skill of mediation, they produce good
results.
33. The idea of pre-litigation mediation is also catching up.
Some mediation centres have, after giving wide publicity, set
up “Help Desks” at prominent places including facilitation
centres at court complexes to conduct pre-litigation
mediation. We are informed that in Delhi Government
Mediation and Conciliation Centres, and in Delhi High Court
Mediation Centre, several matrimonial disputes are settled.
These centres have a good success rate in pre-litigation
31Page 32
mediation. If all mediation centres set up pre-litigation
desks/clinics by giving sufficient publicity and matrimonial
disputes are taken up for pre-litigation settlement, many
families will be saved of hardship if, at least, some of them
are settled.
34. While purely a civil matrimonial dispute can be
amicably settled by a Family Court either by itself or by
directing the parties to explore the possibility of settlement
through mediation,
a complaint under Section 498-A of the
IPC presents difficulty because the said offence is not
compoundable except in the State of Andhra Pradesh where
by a State amendment, it has been made compoundable.
Though in Ramgopal & Anr. v. State of Madhya
Pradesh & Anr.
8
, this Court requested the Law Commission
and the Government of India to examine whether offence
punishable under Section 498-A of the IPC could be made
compoundable, it has not been made compoundable as yet.
The courts direct parties to approach mediation centres
8
(2010) 13 SCC 540
32Page 33
where offences are compoundable. Offence punishable
under Section 498-A being a non-compoundable offence,
such a course is not followed in respect thereof. This Court
has always adopted a positive approach and encouraged
settlement of matrimonial disputes and discouraged their
escalation.
In this connection, we must refer to the relevant
paragraph from G.V. Rao v. L.H.V. Prasad & Ors.
9
, where
the complaint appeared to be the result of matrimonial
dispute, while refusing to interfere with the High Court’s
order quashing the complaint, this court made very pertinent
observations, which read thus:
“12. There has been an outburst of matrimonial disputes in
recent times. Marriage is a sacred ceremony, the main
purpose of which is to enable the young couple to settle
down in life and live peacefully. But little matrimonial
skirmishes suddenly erupt which often assume serious
proportions resulting in commission of heinous crimes in
which elders of the family are also involved with the result
that those who could have counselled and brought about
rapprochement are rendered helpless on their being
arrayed as accused in the criminal case. There are many
other reasons which need not be mentioned here for not
encouraging matrimonial litigation so that the parties may
ponder over their defaults and terminate their disputes
amicably by mutual agreement instead of fighting it out in
a court of law where it takes years and years to conclude
and in that process the parties lose their “young” days in
chasing their “cases” in different courts.”
9
(2000) 3 SCC 693
33Page 34
In B.S. Joshi & Ors. v. State of Haryana & Anr.
10
,
after referring to the above observations, this Court stated
that the said observations are required to be kept in view by
courts while dealing with matrimonial disputes and held that
complaint involving offence under Section 498-A of the IPC
can be quashed by the High Court in exercise of its powers
under Section 482 of the Code if the parties settle their
dispute. Even in Gian Singh v. State of Punjab &
Anr.
11
, this Court expressed that certain offences which
overwhelmingly and predominantly bear civil flavour like
those arising out of matrimony, particularly relating to
dowry, etc. or the family dispute and where the offender and
the victim had settled all disputes between them amicably,
irrespective of the fact that such offences have not been
made compoundable, the High Court may quash the criminal
proceedings if it feels that by not quashing the same, the
ends of justice shall be defeated.
10
AIR 2003 SC 1386
11
(2012) 10 SCC 303
34Page 35
35. We, therefore, feel that though offence punishable
under Section 498-A of the IPC is not compoundable, in
appropriate cases if the parties are willing and if it appears
to the criminal court that there exist elements of settlement,
it should direct the parties to explore the possibility of
settlement through mediation. This is, obviously, not to
dilute the rigour, efficacy and purport of Section 498-A of the
IPC, but to locate cases where the matrimonial dispute can
be nipped in bud in an equitable manner. The judges, with
their expertise, must ensure that this exercise does not lead
to the erring spouse using mediation process to get out of
clutches of the law. During mediation, the parties can either
decide to part company on mutually agreed terms or they
may decide to patch up and stay together. In either case for
the settlement to come through, the complaint will have to
be quashed. In that event, they can approach the High
Court and get the complaint quashed. If however they chose
not to settle, they can proceed with the complaint. In this
exercise, there is no loss to anyone. If there is settlement,
the parties will be saved from the trials and tribulations of a
35Page 36
criminal case and that will reduce the burden on the courts
which will be in the larger public interest. Obviously, the
High Court will quash the complaint only if after considering
all circumstances it finds the settlement to be equitable and
genuine. Such a course, in our opinion, will be beneficial to
those who genuinely want to accord a quietus to their
matrimonial disputes. We would, however, like to clarify that
reduction of burden of cases on the courts will, however, be
merely an incidental benefit and not the reason for sending
the parties for mediation. We recognize ‘mediation’ as an
effective method of alternative dispute resolution in
matrimonial matters and that is the reason why we want the
parties to explore the possibility of settlement through
mediation in matrimonial disputes.
36. We, therefore, issue
directions, which the courts
dealing with the matrimonial matters shall follow:
(a) In terms of Section 9 of the Family Courts Act, the
Family Courts shall make all efforts to settle the
matrimonial disputes through mediation. Even if the
36Page 37
Counsellors submit a failure report, the Family Courts
shall, with the consent of the parties, refer the
matter to the mediation centre. In such a case,
however, the Family Courts shall set a reasonable
time limit for mediation centres to complete the
process of mediation because otherwise the
resolution of the disputes by the Family Court may
get delayed. In a given case, if there is good chance
of settlement, the Family Court in its discretion, can
always extend the time limit.
(b) The criminal courts dealing with the complaint under
Section 498-A of the IPC should, at any stage and
particularly, before they take up the complaint for
hearing, refer the parties to mediation centre if they
feel that there exist elements of settlement and both
the parties are willing. However, they should take
care to see that in this exercise, rigour, purport and
efficacy of Section 498-A of the IPC is not diluted.
Needless to say that the discretion to grant or not to
37Page 38
grant bail is not in any way curtailed by this
direction. It will be for the concerned court to work
out the modalities taking into consideration the facts
of each case.
(c) All mediation centres shall set up pre-litigation
desks/clinics; give them wide publicity and make
efforts to settle matrimonial disputes at pre-litigation
stage.
37. The appeal is disposed of in the aforestated terms.
……………………………………………..J.
(AFTAB ALAM)
……………………………………………..J.
(RANJANA PRAKASH DESAI)
NEW DELHI,
FEBRUARY 22, 2013.
38
