wear and tear is not valid ground for divorce

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5010 OF 2007

Gurbux Singh …. Appellant (s)

Versus

Harminder Kaur …. Respondent(s)

J U D G M E N T

P. Sathasivam, J.

1) The appellant, a Principal in ITI College, Sirhali, Amritsar, has approached this Court against the judgment  and final order dated 11.05.2007 of the High Court of  Punjab & Haryana at Chandigarh in FAO No. 252-M of  2006 whereby the learned single Judge dismissed the  appeal filed by him against the judgment and order dated  11.10.2006 of the Additional District Judge (Ad hoc), Amritsar, dismissing the petition filed under Section 13 of  the Hindu Marriage Act, 1955 (hereinafter referred to as  "the Act") for a decree of divorce against the respondent- wife, who is working as a Librarian in Government  Institute DIET at Verka, Amritsar on the ground of  `cruelty’. Both the courts have rejected the claim of the  appellant herein on the ground that he has failed to prove  `cruelty’ sufficient for grant of a decree of divorce.

The case of the Appellant

2) (a) On 23.11.1997, the appellant got married with the

respondent at Amritsar according to Sikh rites and

customs. Even on the date of marriage, the respondent

had been working as a Librarian in a Government

Institute DIET at Verka, Amristar. From the very

beginning, the respondent expressed her dislike towards

the appellant and his family and gradually started

misbehaving with them. She started exhibiting short-

tempered behaviour and treated the parents of the

appellant with cruelty and disrespect. The father of the

appellant is aged about 80 years and his mother is more

than 75 years. In the month of January 1998, on the first

Lohri festival after their marriage, the respondent being

annoyed with the appellant on a trivial issue, abused his

mother in filthy language in the presence of their relatives

and neighbours causing immense pain to the entire

family. Since then, the respondent started insisting that

she cannot live with the parents of the appellant who are

mental and nuisance in her life and pressed upon the

appellant to have a separate abode from his parents.

(b) On 15.05.1999, a male child was born out of the

wedlock. Even after the birth of the child, there was no

improvement in the behaviour of the respondent. She

always insisted that she being financially independent is

not in need of the appellant and his family.

(c) Just five days before the third birthday of their child

i.e. on 10.05.2002, the respondent, without any justifiable

reason left the matrimonial home leaving the child

unattended and went to her parents house and staying

there since then. The appellant having failed in his efforts

to bring back the respondent to the matrimonial home

and in view of the consistent cruelty filed HMA Case No.

19 of 2003 before the Addl. District Judge, Amritsar,

praying for a decree of divorce under Section 13 of the Act.

The stand of the Respondent

3) In reply to the divorce petition, while denying all the

averments made by the appellant, the respondent has

stated that the appellant is a greedy person and not

satisfied with the dowry articles received in marriage. He

always misbehaved and maltreated her and abused on

several occasions. She alleged that the appellant is a

habitual drinker and used to threaten her to kill with

poison. She also alleged that the appellant pulled her hair

and gave merciless beatings in the presence of his

parents.

Decision of the District Court and High Court

4) By judgment dated 11.10.2006, the Additional District

Judge, Amritsar, after analyzing the plea of both the

parties, oral and documentary evidence concluded that

the appellant-husband failed to substantiate the

allegations of `cruelty’ and dismissed his divorce petition.

Aggrieved by the same, the appellant approached the High

Court by filing FAO No. 252-M of 2006. The learned single

Judge of the High Court, by the impugned order dated

11.05.2007, while agreeing with the conclusion of the

Additional District Judge dismissed the appeal filed by

the appellant. Questioning the above said orders, the

appellant has filed the present appeal by way of special

leave petition.

5) Heard Mr. Vinay Kumar Garg, learned counsel for the

appellant and Mr. Seeraj Bagga, learned counsel for the

respondent.

6) The only question for consideration in this appeal is

whether the appellant-husband has made out a case for

divorce on the ground of `cruelty’ by the respondent-wife.

7) Section 13 of the Act specifies the grounds on which a

decree for divorce may be obtained by either party to the

marriage. Though in the divorce petition filed before the

Additional District Judge, Amritsar in HMA No. 19 of

2003, the appellant had sought divorce merely mentioning

Section 13 of the Act for dissolution of marriage by decree

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of divorce, and did not specify the grounds on which he is

entitled to decree of divorce. In the petition, the appellant

has highlighted only one aspect, namely, that after the

marriage, in the month of January 1998, on first festival

of Lohri, when they were enjoying the festival, the

respondent-wife abused his mother and the father in the

presence of relatives and neighbours. In para 6 of the

petition, the appellant has alleged that:

"…..She called nuisance, idiot and mental to the parents of

the petitioner and the respondent openly said that she did

not want to live with the petitioner if he live with his old

parents."

In para 10, the appellant has stated:

"That on 10th May of 2002, the respondent left her

matrimonial home without giving any information to any

member and she also left her child in the matrimonial home

this shows that the respondent did not have any love and

affections towards petitioner and his family members. She is

living in her parental house for the last more than one year.

Hence, the necessity has been arisen to file the present

petition….."

Except the above allegations, the appellant has not

highlighted any other instance(s) about cruelty by the

respondent. Though learned counsel for the appellant

attempted to argue "desertion", in the absence of any

plea/evidence and material, we disallowed him to pursue

the said point.

8) In the reply to the petition under Section 13 of the Act,

the respondent has highlighted her stand and in fact

denied all the allegations against her. She also projected

her case that the custody of the child was forcibly taken

by the appellant when she returned from her matrimonial

home. She also highlighted that the appellant used to

force her to bring cash from her parents as he wanted to

purchase a car in the month of February 2000. When she

refused to bring cash, she was mercilessly beaten by the

appellant. She also stated that in February 4, 2000, her

parents gave Rs. 50,000/- to the appellant and thereafter

the appellant agreed to keep the respondent in her

matrimonial home. She also alleged that the appellant is

habitual of taking liquor and under influence of liquor, he

used to beat her. She further alleged that the appellant’s

maternal uncle’s daughter used to interfere in their family

affairs.

9) Apart from the above pleadings, both parties filed

statement in the form of an affidavit/petition and also let

in evidence reiterating their respective pleas. As

discussed earlier, the only instance highlighted by the

appellant for divorce was that the respondent-wife abused

his parents on the day of festival of Lohri in the presence

of relatives and neighbours.

10) In Samar Ghosh vs. Jaya Ghosh, (2007) 4 SCC 511,

a three-Judge Bench of this Court while considering

Section 13(1)(i-a) of the Act laid down certain guidelines.

The analysis and ultimate conclusion are relevant which

reads as under:-

"98. On proper analysis and scrutiny of the judgments of

this Court and other courts, we have come to the definite

conclusion that there cannot be any comprehensive

definition of the concept of "mental cruelty" within which all

kinds of cases of mental cruelty can be covered. No court in

our considered view should even attempt to give a

comprehensive definition of mental cruelty.

99. 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 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 while taking aforementioned factors

in consideration.

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

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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 wronged party cannot reasonably be asked to

put up with such conduct and continue to live with other

party.

(iii) Mere coldness or lack of affection cannot amount to

cruelty, frequent rudeness of language, petulance of manner,

indifference and neglect may reach such a degree that it

makes the married life for the other spouse absolutely

intolerable.

(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) Sustained reprehensible conduct, studied neglect,

indifference or total departure from the normal standard of

conjugal kindness causing injury to mental health or

deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy,

selfishness, possessiveness, which causes unhappiness and

dissatisfaction and emotional upset may not be a ground for

grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of

the married life which happens in day-to-day life would not

be adequate for grant of divorce on the ground of mental

cruelty.

(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.

(xi) If a husband submits himself for an operation of

sterilisation without medical reasons and without the

consent or knowledge of his wife and similarly, if the wife

undergoes vasectomy or abortion without medical reason or

without the consent or knowledge of her husband, such an

act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for

considerable period without there being any physical

incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after

marriage not to have child from the marriage may amount to

cruelty.

(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."

11) A Hindu marriage solemnized under the Act can only

be dissolved on any of the grounds specified therein. We

have already pointed out that in the petition for

dissolution of marriage, the appellant has merely

mentioned Section 13 of the Act and in the body of the

petition he highlighted certain instances amounting to

cruelty by the respondent-wife. Cruelty has not been

defined under the Act. It is quite possible that a

particular conduct may amount to cruelty in one case but

the same conduct necessarily may not amount to cruelty

due to change of various factors, in different set of

circumstances. Therefore, it is essential for the appellant,

who claims relief, to prove that a particular/part of

conduct or behaviour resulted in cruelty to him. No prior

assumptions can be made in such matters. Meaning

thereby that it cannot be assumed that a particular

conduct will, under all circumstances, amount to cruelty,

vis-`-vis the other party. The aggrieved party has to make

a specific case that the conduct of which exception is

taken amounts to cruelty. It is true that even a single act

of violence which is of grievous and inexcusable nature

satisfies the test of cruelty. Persistence in inordinate

sexual demands or malpractices by either spouse can be

cruelty if it injures the other spouse. There is no such

complaint by the appellant. In the case on hand, as stated

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earlier, the appellant has projected few instances in

which, according to him, the respondent abused his

parents. We have verified all the averments in the

petitions, reply statement, written submissions as well as

the evidence of both parties. We are satisfied that on the

basis of such instances, marriage cannot be dissolved.

12) The married life should be assessed as a whole and a

few isolated instances over certain period will not amount

to cruelty. The ill-conduct must be precedent for a fairly

lengthy period where the relationship has deteriorated to

an extent that because of the acts and behaviour of a

spouse, one party finds it extremely difficult to live with

the other party no longer may amount to mental cruelty.

Making certain statements on the spur of the moment and

expressing certain displeasure about the behaviour of

elders may not be characterized as cruelty. Mere trivial

irritations, quarrels, normal wear and tear of married life

which happens in day to day life in all families would not

be adequate for grant of divorce on the ground of cruelty.

Sustained unjustifiable and reprehensible conduct

affecting physical and mental health of the other spouse

may lead to mental cruelty. Both the appellant and

respondent being highly qualified persons, the appellant

being Principal in ITI College, the respondent working as a

Librarian in a Government Institute, an isolated friction

on some occasion like festival of Lohri even in the presence

of others cannot be a valid ground for dissolving the

marriage.

13) Learned counsel appearing for the appellant by

drawing our attention to certain allegations made by the

respondent-wife in the reply to the petition under Section

13 of the Act before the Addl. District Judge submitted

that by considering all these aspects it is just and

reasonable to consider and grant divorce on the ground of

cruelty. In support of the same, he relied on the decision

of this Court in Vijaykumar Ramchandra Bhate vs.

Neela Vijaykumar Bhate, (2003) 6 SCC 334. No doubt,

in that decision, this Court has held that allegations made

in the written statement or suggested in the course of

examination and by way of cross-examination satisfying

the requirement of law has also to be taken note of while

considering the claim of either party. In the case on hand,

it is true that the respondent-wife has made certain

allegations against her husband-appellant. However,

admittedly based on the same, the trial Court has not

framed any issue and no evidence let in in support of the

same. In such circumstances, the said decision is not

helpful to our case. Admittedly, no such issue was framed

by the trial Court or any point determined by the High

Court based on such averments in the reply/written

statement. Accordingly, we reject the said contention.

14) As regards the allegations about beating her child

and not feeding him, the High Court, after analyzing the

entire materials, disbelieved the same. It is also brought

to our notice that the appellant condoned the alleged act

of cruelty as he wanted to bring back the respondent to

his house. As such, the allegations of cruelty do not

appear to be truthful. It is also proved that the appellant

is not interested to keep the respondent as his wife and he

wants divorce by any means. As observed earlier, except

the grounds enumerated in Section 13, a Hindu marriage

solemnized under the Act cannot be dissolved on any other grounds.

15) Finally, a feeble argument was made that both the

appellant and respondent were living separately from 2002

and it would be impossible for their re-union, hence this

Court exercising its jurisdiction under Article 142 of the

Constitution their marriage may be dissolved in the

interest of both parties. Though, on a rare occasion, this

Court has granted the extraordinary relief de hors to the

grounds mentioned in Section 13 in view of the fact that

the issue has been referred to a larger Bench about

permissibility of such course at present, we are not

inclined to accede to the request of the appellant. If there

is any change of law or additional ground included in

Section 13 by the act of Parliament, the appellant is free to

avail the same at the appropriate time.

16) In the light of the above discussion, we are unable to

accept the claim of the appellant, on the other hand, we

are in entire agreement with the conclusion arrived at by

the Addl. District Judge as well as the High Court.

Consequently, the appeal fails and the same is dismissed

with no order as to costs.

……………………………………J.

(P. SATHASIVAM)

……………………………………J.

(DR. B.S. CHAUHAN)

NEW DELHI;

OCTOBER 8, 2010.

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