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
J U D G M E N T
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 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 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 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. 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 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 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
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 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 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 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 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 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 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.
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
another[1], a two-Judge Bench approved the concept of legal cruelty as
expounded in Sm. Pancho v. Ram Prasad[2] 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 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 Reddi[3], 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: -
“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. Sheldon[4]
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 observed in Gollins v. Gollins[5] :
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 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 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 Mehta[7], 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.
22. In Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate[8], 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 Kaur[9], 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.
24. In Vinita Saxena v. Pankaj Pandit[10], 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 Ghosh[11], 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 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 Kapur[12], 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 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 others[13], has held 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. Mariamman[14].
29. In Major Singh v. Rattan Singh (Dead) by LRs and others[15], 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 another[16], 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 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 in Abdul Raheem v. Karnataka
Electricity Board & Ors. [17].
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 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 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. 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 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 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 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.
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 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 “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 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. Dastane[20] 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.”
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. 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 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.
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.
............................................J.
[Deepak Verma]
............................................J.
[Dipak Misra]
New Delhi;
July 04, 2012
-----------------------
[1] (1981) 4 SCC 250
[2] AIR 1956 All 41
[3] (1988) 1 SCC 105
[4] (1966) 2 All ER 257
[5] (1963) 2 All ER 966
[6] (1994) 1 SCC 337
[7] AIR 2002 SC 2582
[8] AIR 2003 SC 2462
[9] (2005) 2 SCC 22
[10] (2006) 3 SCC 778
[11] (2007) 4 SCC 511
[12] AIR 2009 SC 589
[13] AIR 2001 SC 1273
[14] (2005) 2 SCC 500
[15] AIR 1997 SC 1906
[16] (1999) 3 SCC 573
[17] AIR 2008 SC 956
[18] AIR 2011 SC 715
[19] (2012) 3 SCALE 607 = (2012) 2 KLT (SN) 64
[20] (1975) 3 SCR 967
