Irretrievable Breakdown Grounds For Divorce

Supreme Court of India

Bench: B Agrawal, A Mathur, D Bhandari
CASE NO.:Appeal (civil) 812 of 2004

PETITIONER:Naveen Kohli

RESPONDENT:Neelu Kohli

DATE OF JUDGMENT: 21/03/2006

BENCH:B.N. AGRAWAL,A.K. MATHUR & DALVEER BHANDARI

JUDGMENT:J U D G M E N T

Dalveer Bhandari, J

This appeal is directed against the judgment of the Allahabad High Court dated 07.07.2003 passed by the Division Bench in First Appeal No.323 of 2003.

The appellant and the respondent are husband and wife. The appellant has filed a petition under the Hindu Marriage Act, 1955 for divorce. The Family Court after comprehensively dealing with the matter ordered cancellation of marriage between the parties under Section 13 of the Hindu Marriage Act which was solemnized on 20.11.1975 and directed the appellant to pay Rs.5 lacs as her
livelihood allowance. The appellant deposited the amount as directed.

The respondent aggrieved by the said judgment preferred First Appeal before the Division Bench of the Allahabad High Court. After hearing the parties the appeal was allowed and the decree passed by the Family Court, Kanpur City seeking divorce and annulment of the marriage was dismissed.

The appellant aggrieved by the said judgment of the High Court had preferred special leave petition under Article 136 of the Constitution of India. This Court granted special leave to appeal to the appellant.

Brief facts which are necessary to dispose of this appeal are recapitulated.

The appellant, Naveen Kohli got married to Neelu Kohli on 20.11.1975. Three sons were born out of the wedlock of the parties. The appellant constructed three factories with the intention of providing a separate factory for his three sons. He also constructed bungalow no.7/36 A for their residence. The parties got all their three sons admitted and educated in a public school in Nanital.
According to the appellant, the respondent is bad tempered and a woman of rude behaviour. After marriage, she started quarrelling and misbehaving with the appellant and his parents and ultimately, the appellant was compelled to leave the parental residence and started to reside in a rented premises from May 1994.
According to the version of the appellant, the respondent in collusion with her parents got sufficient business and property transferred in her name.

The appellant alleged that in the month of May 1994, when he along with the respondent and their children visited Bombay to attend the golden jubilee marriage anniversary of his father-in-law, he noticed that the respondent was indulging in an indecent manner and found her in a compromising position with one Biswas Rout. Immediately thereafter, the appellant started living separately from the respondent since May 1994. The appellant suffered intense physical and
mental torture.

According to the appellant, the respondent had withdrawn Rs.9,50,000/- from the Bank Account of the appellant and deposited the same in her account.

The appellant alleged that the respondent got a false first information report registered against him under Sections 420/467/468 and 471 IPC which was registered as Case No.156 of 1995. According to him, the respondent again got a case under Sections 323/324 I.P.C. registered in the police station Panki,
Kanpur City and efforts were made to get the appellant arrested.

The appellant filed a Civil Suit No. 1158/1996 against the respondent. It was
also reported that the appellant was manhandled at the behest of the respondent
and an FIR No.156 of 1996 was filed by the eldest son at the behest of the
respondent against the appellant in police station, Panki complaining that the
appellant had physically beaten her son, Nitin Kohli.

The respondent in her statement before the Trial Court had mentioned that she
had filed an FIR against the appellant under Section 420/468 IPC at the Police
Station, Kotwali and the respondent had gone to the extent of filing a caveat in
the High Court in respect of the said criminal case so that the appellant may
not obtain an order from the High Court against her filing the said FIR.

In the same statement, the respondent had admitted that she had filed an FIR
No.100/96 at the Police Station, Kohna under Section 379/323 IPC against the
appellant.

The respondent had also filed a complaint against the appellant and his mother
under Sections 498A/323/504/506 IPC at Police Station, Kohna.

The respondent in her statement had admitted that she had opposed the bail of
the appellant in the criminal case filed at the Police Station, Kotwali on the
basis of legal advice. In that very statement she further admitted that after
the police had filed final report in both the criminal cases relating to Police
Station, Kotwali and Police Station, Kohna, she had filed protest petition in
those cases.

This clearly demonstrates the respondent’s deep and intense feeling of revenge.
The respondent in her statement had also admitted that she had filed a complaint
in the Women Cell, Delhi in September 1997. According to the appellant, the
respondent had filed a complaint no.125 of 1998 against the appellant’s lawyer
and friend alleging criminal intimidation which was found to be false.

According to the appellant, the respondent filed a forged complaint under
sections 397/398 of the Companies Act before the Company Law Board, New Delhi
and in the affidavit of the respondent she stated that the appellant was
immoral, alcoholic, and was having affairs with numerous girls since marriage.
She also called him a criminal, infidel, forger and her manager to denigrate his
position from the proprietor to an employee of her company.

The appellant also mentioned that the respondent filed a false complaint in
Case No.1365 0f 1988 using all kinds of abuses against the appellant.

On 8.7.1999, the respondent filed a complaint in the Parliament Street Police
Station, New Delhi and made all efforts to ensure the appellant’s arrest with
the object of sending him to jail. The appellant was called to the police
station repeatedly and was interrogated by the police and only after he gave a
written reply and the matter on scrutiny was found to be false, the appellant
with great difficulty was able to save himself from imprisonment.

On 31.3.1999 the respondent had sent notice for breaking the Nucleus of the
HUF, expressly stating that the Family Nucleus had been broken with immediate
effect and asking for partition of all the properties and assets of the HUF and
stating that her share should be given to her within 15 days. According to the
appellant, this act of the respondent clearly broke all relations between the
appellant and the respondent on 31.3.1999.

The respondent had filed a complaint against the appellant under Section 24 of
the Hindu Marriage Act directing payment of maintenance during the pendency of
the case. This was rejected by the Trial Court and she later filed an appeal in
the High Court.

The appellant had deposited Rs.5 lacs on Court’s directions but that amount was
not withdrawn by the respondent. On 22.1.2001 the respondent gave an affidavit
before the High Court and got non-bailable warrants issued against the
appellant. Consequently, the appellant was harassed by the police and ultimately
he got the arrest order stayed by the High Court. The respondent admitted in her
statement that she got the advertisement published in the English National
Newspaper ‘Pioneer’. The advertisement reads as under :

PUBLIC NOTICE

Be it known to all that Mr. Naveen

Kohli S/o Mr. Prem Kumar Kohli was

working with my Proprietorship firm

as Manager. He has abandoned his

job since May 1996 and has not

resumed duties.

He is no more in the employment of

the firm. Any Body dealing with him shall be doing so at his own risk, his
authority to represent the firm has

been revoked and none should deliver him orders, cash cheques or drafts

payable to the firm.

NEELU KOHLI

Sole Proprietor

M/s NITIN RUBBERS

152-B, Udyog Nagar,

Kanpur

The respondent in her statement before the Court did not deny the contents of
the affidavit but merely mentioned that she did not remember whether she called
the appellant a criminal, infidel and a forger in the affidavit filed before the
Company Law Board.

The respondent did not deny her using choicest abuses against the appellant but
merely stated that she did not remember.

The respondent also filed a contempt petition in the Company Law Board against
its order of the Company Law Board dated 25.9.2000 in order to try and get the
appellant thrown out of the little apartment and urged that the appellant be
sent to jail.

Before the Family Court, the respondent stated about solemnization of the
marriage with the appellant on 20.11.1975. In her written statement she had
denied the fact that she was either a rude or a quarrelsome lady. The respondent
also denied that she had mentally, physically and financially harassed and
tortured the appellant. She also stated that she never refused cohabitation with
the appellant. She also denied indulging in any immoral conduct. She averred in
the written statement that the appellant has been immorally living with a lady
named ‘Shivanagi’.

The appellant and the respondent filed a number of documents in support of
their respective cases. On the basis of the pleadings and the documents, the
Additional Principal Judge of Family Court framed the following issues :-

“1. Whether the respondent treated the plaintiff with cruelty by registering
various criminal cases, getting the news published and initiating civil

proceedings?

2. Whether the defendant treated the plaintiff with cruelty by her objectionable
behaviour as stated in the plaint?

3. Whether respondent has made false allegation against the plaintiff? If yes,
its impact?

Whether in the presence of plaintiff, the defendant displayed her behaviour
with Dr. Viswas Rout which comes in the

category of immorality as has been stated in para 11 of the plaint? If yes, its
impact?

4. Whether the petition is not maintainable on the basis of preliminary
objections 1 to 3 of the written statement?

5. Whether plaintiff has kept Smt. Shivanagi with him as his concubine? If yes,
its impact?

6. Whether suit of the plaintiff is barred by the provisions of Section 11,
C.P.C.?

7. Whether plaintiff is entitled to get the decree of dissolution of marriage
against defendant?

8. Whether plaintiff is entitled to get any other relief?”

Issues number 1 & 2
relate to the term ‘Cruelty’ and Issue no. 3 is regarding impact of false
allegations levelled by the respondent against the appellant. All these three
issues were decided in favour of the appellant and against the respondent. The
learned Trial Court came to a definite conclusion that the respondent had filed
a very large number of cases against the appellant and got him harassed and
tortured by the police. It also declared him an employee of the factory of which
the respondent is a proprietor by getting an advertisement issued in the
newspaper. According to findings of the Trial Court, the appellant was mentally,
physically and financially harassed and tortured by the respondent.

The Trial Court framed specific issue whether the appellant had kept Smt.
Shivangi with him as his concubine. This allegation has been denied by the
appellant. The respondent had failed to produce any witness in respect of the
aforesaid allegation and was consequently not able to prove the same. The Trial
Court stated that both parties have levelled allegations of character
assassination against each other but failed to prove them.

The Trial Court stated that many a times efforts have been made for an amicable
settlement, but on the basis of allegations which have been levelled by both the
parties against each other, there is no cordiality left between the parties and
there is no possibility of their living together. According to the Trial court,
there was no possibility to reconnect the chain of marital life between the
parties. Hence, the Trial Court found that there is no alternative but to
dissolve the marriage between the parties. The Trial Court also stated that the
respondent had not filed any application for allowing permanent maintenance and
Stridhan but, in the interest of justice, the Trial Court directed the appellant
to deposit Rs.5,00,000/- toward permanent maintenance of the respondent. The
Trial Court also ordered that a decree of dissolution of marriage shall be
effective after depositing the payment of Rs.5,00,000/- by the appellant.
Admittedly, the appellant had immediately deposited the said amount.

The respondent, aggrieved by the judgment of the Principal Judge, Family
Court, Kanpur City, preferred the first appeal before the High Court, which was
disposed of by a Division Bench of the Allahabad High Court.

According to the High Court, the Trial Court had not properly appreciated and
evaluated the evidence on record. According to the High Court, the appellant had
been living with one Shivangi. As per the High Court, the fact that on Trial
Court’s directions the appellant deposited the sum of Rs.5,00,000/- within two
days after the judgment which demonstrated that the appellant was financially
well off. The Division Bench of the High Court held that actions of the
appellant amounted to misconduct, un-condonable for the purpose of Section
13(1)(a) of the Hindu Marriage Act. The appeal was allowed and the Trial Court
judgment has been set aside. The suit filed by the appellant seeking a decree of
divorce was also dismissed.

The appellant preferred a Special Leave Petition before this Court. We have
carefully perused the pleadings and documents on record and heard the learned
counsel appearing for the parties at length.

Both the parties have levelled allegations against each other for not
maintaining the sanctity of marriage and involvement with another person.
According to the respondent, the appellant is separately living with another
woman, ‘Shivanagi’. According to the appellant, the respondent was seen
indulging in an indecent manner and was found in compromising position with one
Biswas Rout. According to the findings of the Trial Court both the parties
failed to prove the allegations against each other. The High Court has of course
reached the conclusion that the appellant was living with one ‘Shivanagi’ for a
considerable number of years. The fact of the matter is that both the parties
have been living separately for more than 10 years. Number of cases including
criminal complaints have been filed by the respondent against the appellant and
every effort has been made to harass and torture him and even to put the
appellant behind the bars by the respondent. The appellant has also filed cases
against the respondent.

We would like to examine the facts of the case in the light of the settled
position of law which has been crystallized by a series of judgments.

In the light of facts and circumstances of this case we would also like to
examine the concept of Irretrievable Breakdown of Marriage particularly with
reference to recently decided cases.

Impact of Physical and Mental Cruelty in Matrimonial Matters.

The petition for divorce was filed primarily on the ground of cruelty. It may
be pertinent to note that, prior to the 1976 amendment in the Hindu Marriage
Act, 1955 cruelty was not a ground for claiming divorce under the Hindu Marriage
Act. It was only a ground for claiming judicial separation under Section 10 of
the Act. By 1976 Amendment, the Cruelty was made ground for divorce. The words
which have been incorporated are “as to cause a reasonable apprehension in the
mind of the petitioner that it will be harmful or injurious for the petitioner
to live with the other party”. Therefore, it is not necessary for a party
claiming divorce to prove that the cruelty treatment is of such a nature as to
cause an apprehension  reasonable apprehension that it will be harmful or
injurious for him or her to live with the other party.

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The Court had an occasion to examine the 1976 amendment in the case of N.G.
Dastane v. S. Dastane [(1975) 2 SCC 326: AIR 1975 SC 1534], The Court noted that
“….whether the conduct charges as cruelty is of such a character as to cause
in the mind of the petitioner a reasonable apprehension that it will be harmful
or injurious for him to live with the respondent”.

We deem it appropriate to examine the concept of ‘Cruelty’ both in English and
Indian Law, in order to evaluate whether the appellant’s petition based on the
ground of cruelty deserves to be allowed or not.

D. Tolstoy in his celebrate book “The Law and Practice of Divorce and
Matrimonial Causes” (Sixth Edition, p. 61) defined cruelty in these words:
“Cruelty which is a ground for

dissolution of marriage may be

defined as willful and unjustifiable conduct of such a character as to

cause danger to life, limb or health, bodily or mental, or as to give rise to a
reasonable apprehension of such a

danger.”

The concept of cruelty in matrimonial matters was aptly discussed in the
English case in Bertram v. Bertram [(1944) 59, 60] per Scott, L.J. observed:
“Very slight fresh evidence is needed to show a resumption of the cruelty, for
cruelty of character is bound to show itself in conduct and

behaviour. Day in and day out,

night in and night out.”

In Cooper vs. Cooper [(1950) WN 200 (HL)], it was observed as under:

“It is true that the more serious the original offence, the less grave need be
the subsequent acts to constitute a revival.”

Lord Denning, L.J. in Kaslefsky v. Kaslefsky [(1950) 2 All ER 398, 403]
observed as under: “If the door of cruelty were opened

too wide, we should soon find

ourselves granting divorce for

incompatibility of temperament.

This is an easy path to tread,

especially in undefended cases. The temptation must be resisted lest we

slip into a state of affairs where the institution of marriage itself is

imperiled.”

“In England, a view was at one time taken that the petitioner in a matrimonial
petition must establish his case beyond a reasonable doubt but in Blyth v. Blyth
[(1966) 1 All ER 524, 536], the House of Lords held by a majority that so far as
the grounds of divorce or the bars to divorce like connivance or condonation are
concerned, “the case like any civil case, may be proved by a preponderance of
probability”.

The High Court of Australia in Wright v. Wright [(1948) 77 CLR 191, 210], has
also taken the view that “the civil and not the criminal standard of persuasion
applies to matrimonial causes, including issues of adultery”. The High Court was
therefore in error in holding that the petitioner must establish the charge of
cruelty “beyond reasonable doubt”. The High Court adds that “This must be in
accordance with the law of evidence”, but we are not clear as to the
implications of this observation.”

Lord Pearce observed:

“It is impossible to give a

comprehensive definition of cruelty, but when reprehensible conduct or

departure from the normal

standards of conjugal kindness

causes injury to health or an

apprehension of it, it is, I think,

cruelty if a reasonable person, after taking due account of the

temperament and all the other

particular circumstances would

consider that the conduct

complained of is such that this

spouse should not be called on to

endure it.

* * *

I agree with Lord Merriman

whose practice in cases of mental

cruelty was always to make up his

mind first whether there was injury

or apprehended injury to health. In the light of that vital fact the court has
then to decide whether the sum

total of the reprehensible conduct

was cruel. That depends on

whether the cumulative conduct

was sufficiently weighty to say that from a reasonable person’s point of

view, after a consideration of any

excuse which this respondent might

have in the circumstances, the

conduct is such that this petitioner ought not to be called on to endure

it.

* * *

The particular circumstances

of the home, the temperaments and

emotions of both the parties and

their status and their way of life,

their past relationship and almost

every circumstance that attends the

act or conduct complained of may

all be relevant.”

Lord Reid in Gollins v. Gollins [1964 AC 644 : (1963) 2 All ER 966]:

“No one has ever attempted to give a comprehensive definition of cruelty

and I do not intend to try to do so. Much must depend on the

knowledge and intention of the

respondent, on the nature of his (or her) conduct, and on the character

and physical or mental weaknesses

of the spouses, and probably no

general statement is equally

applicable in all cases except the

requirement that the party seeking

relief must show actual or probable

injury to life, limb or health.

The principles of law which have been crystallized by a series of judgments of
this Court are recapitulated as under :-

In the case of Sirajmohmedkhan

Janmohamadkhan vs. Harizunnisa Yasinkhan reported in (1981) 4 SCC 250, this
Court stated that the concept of legal cruelty 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
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 lead to mental or legal cruelty.

In the case of Sbhoba Rani vs. Madhukar Reddi reported in (1988) 1 SCC 105,
this Court had an occasion to examine the concept of cruelty. The word ‘cruelty’
has not been defined in the Hindu Marriage Act. It has been used in Section
13(1)(i)(a) of the Act in the context of human conduct or behaviour in relation
to or in respect of matrimonial duties or obligations. It is a course of conduct
of one which is adversely affecting the other. The cruelty may be mental or
physical, intentional or unintentional. If it is physical, it is a question of
fact and degree. If it is mental, the enquiry must begin as to the nature of the
cruel treatment and then as to 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, 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. The absence of intention should not make any difference in the case,
if by ordinary sense in human affairs, the act complained of could otherwise be
regarded as cruelty. Intention is not a necessary element in cruelty. The relief
to the party cannot be denied on the ground that there has been no deliberate or
wilful ill-treatment.

The cruelty alleged may largely depend upon the type of life the parties are
accustomed to or their economic and social conditions and their culture and
human values to which they attach importance. Each case has to be decided on its
own merits.

The Court went on to observe as under : “It will be necessary to bear in mind
that there has been marked

changed in the life around us. In

matrimonial duties and

responsibilities in particular, we find a sea change. They are of varying

degrees from house to house or

person to person. Therefore, when a spouse makes complaint about the

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. We, the judges

and lawyers, therefore, should not

import our own notions of life. We

may not go in parallel with them.

There may be a generation gap

between us and the parties. It

would be better if we keep aside our customs and manners. It would be

also better if we less depend upon

precedents.

Lord Denning said in Sheldon

v. Sheldon, [1966] 2 All E.R. 257

(CA) ‘the categories of cruelty are not closed’. Each case may be different. We
deal with the conduct of human

beings who are no 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.”

In the case of V. Bhagat vs. D. Bhagat reported in (1994) 1 SCC 337, this Court
had occasion to examine the concept of ‘mental cruelty’. This Court observed as
under:

“16. Mental cruelty in Section

13(1)(i-a) 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. In other words, 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 is not necessary to prove that the mental cruelty is such as to cause
injury to the health of the

petitioner. While arriving at such

conclusion, 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 which it is neither

possible nor desirable to set out

exhaustively. What is cruelty in one case may not amount to cruelty in

another case. It is a matter to be

decided in each case having regard

to the facts and circumstances of

that case. If it is a case of

accusations and allegations, regard

must also be had to the context in

which they were made.”

The word ‘cruelty’ has to be understood in the ordinary sense of the term in
matrimonial affairs. If the intention to harm, harass or hurt could be inferred
by the nature of the conduct or brutal act complained of, cruelty could be
easily established. But the absence of intention should not make any difference
in the case. There may be instances of cruelty by unintentional but inexcusable
conduct of any party. The cruel treatment may also result from the cultural
conflict between the parties. Mental cruelty can be caused by a party when the
other spouse levels an allegation that the petitioner is a mental patient, or
that he requires expert psychological treatment to restore his mental health,
that he is suffering from paranoid disorder and mental hallucinations, and to
crown it all, to allege that he and all the members of his family are a bunch of
lunatics. The allegation that members of the petitioner’s family are lunatics
and that a streak of insanity runs though his entire family is also an act of
mental cruelty. This Court in the case of Savitri Pandey vs. Prem Chandra Pandey
reported in (2002) 2 SCC 73, stated that mental cruelty is the conduct of other
spouse which causes mental suffering or fear to the matrimonial life of the
other. “Cruelty”, therefore, postulates a treatment of the petitioner with such
cruelty as to cause a reasonable apprehension in his or her mind that it would
be harmful or injurious for the petitioner to live with the other party.
Cruelty, however, has to be distinguished from the ordinary wear and tear of
family life. It cannot be decided on the basis of the sensitivity of the
petitioner and has to be adjudged on the basis of the course of conduct which
would, in general, be dangerous for a spouse to live with the other.

In this case, this Court further stated as under: “9. Following the decision in

Bipinchandra case [AIR 1957 SC

176] this Court again reiterated the legal position in Lachman

Utamchand Kirpalani v. Meena [AIR

1964 SC 40] by holding that in its

essence desertion means the

intentional permanent forsaking and

abandonment of one spouse by the

other without that other’s consent,

and without reasonable cause. For

the offence of desertion so far as the deserting spouse is concerned, two

essential conditions must be there

(1) the factum of separation, and (2) the intention to bring cohabitation

permanently to an end (animus

deserendi). Similarly two elements

are essential so far as the deserted spouse is concerned: (1) the absence of
consent, and (2) absence of

conduct giving reasonable cause to

the spouse leaving the matrimonial

home to form the necessary

intention aforesaid. For holding

desertion as proved the inference

may be drawn from certain facts

which may not in another case be

capable of leading to the same

inference; that is to say the facts

have to be viewed as to the purpose

which is revealed by those acts or by conduct and expression of intention, both
anterior and subsequent to the

actual acts of separation.”

In this case, this Court further stated that cruelty can be said to be an act
committed with the intention to cause suffering to the opposite party. This
Court in the case of Gananth Pattnaik vs. State of Orissa reported in (2002) 2
SCC 619 observed as under:

“The concept of cruelty and its effect varies from individual to individual,
also depending upon the social and

economic status to which such

person belongs. “Cruelty” for the

purposes of constituting the offence under the aforesaid section need not be
physical. Even mental torture or abnormal behaviour may amount to

cruelty and harassment in a given

case.”

This Court, in the case of Parveen Mehta vs. Inderjit Mehta reported in (2002)
5 SCC 706, defined cruelty as under:

“Cruelty for the purpose of Section

13(1)(i-a) is to be taken as a

behaviour by one spouse towards

the other, which causes reasonable

apprehension in the mind of the

latter that it is not safe for him or her to continue the matrimonial

relationship with the other. Mental cruelty is a state of mind and feeling with
one of the spouses due to the

behaviour or behavioural pattern by

the other. Unlike the case of

physical cruelty, mental cruelty is

difficult to establish by direct

evidence. 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

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assessing the attending facts and

circumstances in which the two

partners of matrimonial life have

been living. The inference has to be drawn from the attending facts and

circumstances taken cumulatively.

In case of mental cruelty it will not be a correct approach to take an

instance of misbehaviour in

isolation and then pose the question whether such behaviour is sufficient by
itself to cause mental cruelty.

The approach should be to take the

cumulative effect of the facts and

circumstances emerging from the

evidence on record and then draw a

fair inference whether the petitioner in the divorce petition has been

subject to mental cruelty due to

conduct of the other.”

In this case the Court also stated that so many years have elapsed since the
spouses parted company. In these circumstances it can be reasonably inferred
that the marriage between the parties has broken down irretrievably.

In Chetan Dass vs. Kamla Devi reported in (2001) 4 SCC 250 , this Court
observed that the matrimonial matters have to be basically decided on its facts.
In the words of the Court:

“Matrimonial matters are matters of

delicate human and emotional

relationship. It demands mutual

trust, regard, respect, love and

affection with sufficient play for

reasonable adjustments with the

spouse. The relationship has to

conform to the social norms as well. The matrimonial conduct has now

come to be governed by statute

framed, keeping in view such norms

and changed social order. It is

sought to be controlled in the

interest of the individuals as well as in broader perspective, for

regulating matrimonial norms for

making of a well-knit, healthy and

not a disturbed and porous society.

The institution of marriage occupies an important place and role to play

in the society, in general. Therefore, it would not be appropriate to apply any
submission of “irretrievably

broken marriage” as a straitjacket

formula for grant of relief of divorce. This aspect has to be considered in

the background of the other facts

and circumstances of the case.”

In Sandhya Rani vs. Kalyanram Narayanan reported in (1994) Supp. 2 SCC 588,
this Court reiterated and took the view that since the parties are living
separately for the last more than three years, we have no doubt in our mind that
the marriage between the parties has irretrievably broken down. There is no
chance whatsoever of their coming together. Therefore, the Court granted the
decree of divorce.

In the case of Chandrakala Menon vs. Vipin Menon reported in (1993) 2 SCC 6,
the parties had been living separately for so many years. This Court came to the
conclusion that there is no scope of settlement between them because, according
to the observation of this Court, the marriage has irretrievably broken down and
there is no chance of their coming together. This Court granted decree of
divorce.

In the case of Kanchan Devi vs. Promod Kumar Mittal reported in (1996) 8 SCC
90, the parties were living separately for more than 10 years and the Court came
to the conclusion that the marriage between the parties had to be irretrievably
broken down and there was no possibility of reconciliation and therefore the
Court directed that the marriage between the parties stands dissolved by a
decree of divorce.

In Swati Verma vs. Rajan Verma reported in (2004) 1 SCC 123, a large number of
criminal cases had been filed by the petitioner against the respondent. This
Court observed that the marriage between the parties had broken down
irretrievably with a view to restore good relationship and to put a quietus to
all litigations between the parties and not to leave any room for future
litigation, so that they may live peacefully hereafter, and on the request of
the parties, in exercise of the power vested in this Court under Article 142 of
the Constitution of India, the Court allowed the application for divorce by
mutual consent filed before it under Section 13-B of the Hindu Marriage Act and
declared the marriage dissolved and granted decree of divorce by mutual consent.
In Prakash Chand Sharma vs. Vimlesh [1995 Supp (4) SCC 642], the wife expressed
her will to go and live with the husband notwithstanding the presence of the
other woman but the husband was not in a position to agree presumably because he
has changed his position by remarriage. Be that as it may, a reconciliation was
not possible.

In V. Bhagat v. D. Bhagat (supra), this Court while allowing the marriage to
dissolve on ground of mental cruelty and in view of the irretrievable breakdown
of marriage and the peculiar circumstances of the case, held that the
allegations of adultery against the wife were not proved thereby vindicating her
honour and character. This Court while exploring the other alternative observed
that the divorce petition has been pending for more than 8 years and a good part
of the lives of both the parties has been consumed in this litigation and yet,
the end is not in sight and that the allegations made against each other in the
petition and the counter by the parties will go to show that living together is
out of question and rapprochement is not in the realm of possibility. This Court
also observed in the concluding part of the judgment that:

“Before parting with this case, we

think it necessary to append a

clarification. Merely because there

are allegations and counter

allegations, a decree of divorce

cannot follow. Nor is mere delay in

disposal of the divorce proceedings

by itself a ground. There must be

really some extra- ordinary features to warrant grant of divorce on the

basis of pleading (and other

admitted material) without a full

trial. Irretrievable breakdown of the marriage is not a ground by itself.

But while scrutinising the evidence

on record to determine whether the

ground(s) alleged is/are made out

and in determining the relief to be

granted, the said circumstance can

certainly be borne in mind. The

unusual step as the one taken by us

herein can be resorted to only to

clear up an insoluable mess, when

the Court finds it in the interest of both parties.”

Again in A. Jaychandra v. Aneel Kumar, (2005) 2 SCC 22, a 3 judge Bench of
this Court observed that the expression “cruelty” has not been defined in the
Act. Cruelty can be physical or mental cruelty which is a ground for dissolution
of marriage may be defined as willful and unjustifiable conduct of such
character as to cause danger to life, limb or health, bodily or mental, or as to
give rise to a reasonable apprehension of such a danger. 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,
environment in which they live. Cruelty, as noted above, includes mental
cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not
be physical. If from the conduct of his spouse same is established and/or an
inference can be legitimately 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 this conduct amounts to cruelty. In delicate human
relationship like matrimony, one has to see the probabilities of the case. The
concept, a proof beyond the shadow of doubt, is to be applied to criminal trials
and not to civil matters and certainly not to matters of such delicate personal
relationship as those of husband and wife. Therefore, one has to see what are
the probabilities in a case and legal cruelty has to be found out, not merely as
a matter of fact, but as the effect on the mind of the complainant spouse
because of the acts or omissions of the other. Cruelty may be physical or
corporeal or may be mental. In physical cruelty, there can be tangible and
direct evidence, but in the case of mental cruelty there may not at the same
time be direct evidence. In cases where there is no direct evidence, Courts are
required to probe into the mental process and mental effect of incidents that
are brought out in evidence. It is in this view that one has to consider the
evidence in matrimonial disputes. The expression ‘cruelty’ has been used in
relation to human conduct or human behaviour. It is the conduct in relation to
or in respect of matrimonial duties and obligations. Cruelty is a course or
conduct of one, which is adversely affecting the other. The cruelty may be
mental or physical, intentional or unintentional. If it is physical, the Court
will have no problem in determining it. It is a question of fact and degree. If
it is mental, the problem presents difficulties. First, the enquiry must begin
as to the nature of cruel treatment, second the impact of such treatment in 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. However, there may be a case where the conduct
complained of itself is bad enough and per se unlawful or illegal. Then the
impact or 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 (See Sobha Rani v. Madhukar Reddi (1988) 1 SCC 105). To
constitute cruelty, the conduct complained of should be “grave and weighty” so
as to come to the conclusion that the petitioner spouse cannot be reasonably
expected to live with the other spouse. It must be something more serious than
“ordinary wear and tear of married life”. The conduct taking into consideration
the circumstances and background has to be examined to reach the conclusion
whether the conduct complained of amounts to cruelty in the matrimonial law.
Conduct has to be considered, as noted above, in the background of several
factors such as social status of parties, their education, physical and mental
conditions, customs and traditions. It is difficult to lay down a precise
definition or to give exhaustive description of the circumstances, which would
constitute cruelty. It must be of the type as to satisfy the conscience of the
Court that the relationship between the parties had deteriorated to such extent
due to the conduct of the other spouse that it would be impossible for them to
live together without mental agony, torture or distress, to entitle the
complaining spouse to secure divorce. Physical violence is not absolutely
essential to constitute cruelty and a consistent course of conduct inflicting
immeasurable mental agony and torture may well constitute cruelty within the
meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses
and insults by using filthy and abusive language leading to constant disturbance
of mental peace of the other party. The Court dealing with the petition for
divorce on the ground of cruelty has to bear in mind that the problems before it
are those of human beings and the psychological changes in a spouse’s conduct
have to be borne in mind before disposing of the petition for divorce. However,
insignificant or trifling, such conduct may cause pain in the mind of another.
But before the conduct can be called cruelty, it must touch a certain pitch of
severity. It is for the Court to weigh the gravity. It has to be seen whether
the conduct was such that no reasonable person would tolerate it. It has to be
considered whether the complainant should be called upon to endure as a part of
normal human life. Every matrimonial conduct, which may cause annoyance to the
other, may not amount to cruelty. Mere trivial irritations, quarrels between
spouses, which happen in day-to-day married life, may also not amount to
cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be
subtle or brutal. It may be words, gestures or by mere silence, violent or non-
violent.

The foundation of a sound marriage is tolerance, adjustment and respecting
one another. Tolerance to each other’s fault to a certain bearable extent has to
be inherent in every marriage. Petty quibbles, trifling differences should not
be exaggerated and magnified to destroy what is said to have been made in
heaven. All quarrels must be weighed from that point of view in determining what
constitutes cruelty in each particular case and as noted above, always keeping
in view the physical and mental conditions of the parties, their character and
social status. A too technical and hyper- sensitive approach would be counter-
productive to the institution of marriage. The Courts do not have to deal with
ideal husbands and ideal wives. It has to deal with particular man and woman
before it. The ideal couple or a mere ideal one will probably have no occasion
to go to Matrimonial Court.

In Durga P.Tripathy v. Arundhati Tripathy, (2005) 7 SCC 353, this Court
further observed that Marriages are made in heaven. Both parties have crossed
the point of no return. A workable solution is certainly not possible. Parties
cannot at this stage reconcile themselves and live together forgetting their
past as a bad dream. We, therefore, have no other option except to allow the
appeal and set aside the judgment of the High Court and affirming the order of
the Family Court granting decree for divorce.

In Lalitha v. Manickswamy, I (2001) DMC 679 SC that the had cautioned in that
case that unusual step of granting the divorce was being taken only to clear up
the insoluble mess when the Court finds it in the interests of both the parties.

Irretrievable Breakdown of Marriage

Irretrievable breakdown of marriage is not a ground for divorce under the
Hindu Marriage Act, 1955. Because of the change of circumstances and for
covering a large number of cases where the marriages are virtually dead and
unless this concept is pressed into services, the divorce cannot be granted.
Ultimately, it is for the Legislature whether to include irretrievable breakdown
of marriage as a ground of divorce or not but in our considered opinion the
Legislature must consider irretrievable breakdown of marriage as a ground for
grant of divorce under the Hindu Marriage Act, 1955. The 71st Report of the Law
Commission of India briefly dealt with the concept of Irretrievable breakdown of
marriage. This Report was submitted to the Government on 7th April, 1978. We
deem it appropriate to recapitulate the recommendation extensively. In this
Report, it is mentioned that during last 20 years or so, and now it would around
50 years, a very important question has engaged the attention of lawyers, social
scientists and men of affairs, namely, should the grant of divorce be based on
the fault of the party, or should it be based on the breakdown of the marriage?
The former is known as the matrimonial offence theory or fault theory. The
latter has come to be known as the breakdown theory.

In the Report, it is mentioned that the germ of the breakdown theory, so far as
Commonwealth countries are concerned, may be found in the legislative and
judicial developments during a much earlier period. The (New Zealand) Divorce
and Matrimonial Causes Amendment Act, 1920, included for the first time the
provision that a separation agreement for three years or more was a ground for
making a petition to the court for divorce and the court was given a discretion
(without guidelines) whether to grant the divorce or not. The discretion
conferred by this statute was exercised in a case in New Zealand reported in
1921. Salmond J., in a passage which has now become classic, enunciated the
breakdown principle in these word:

READ  Cruel wife, Divorce and limited alimony

“The Legislature must, I think, be

taken to have intended that

separation for three years is to be

accepted by this court, as prima

facie a good ground for divorce.

When the matrimonial relation has

for that period ceased to exist de

facto, it should, unless there are

special reasons to the contrary,

cease to exist de jure also. In

general, it is not in the interests of the parties or in the interest of the
public that a man and woman

should remain bound together as

husband and wife in law when for a

lengthy period they have ceased to

be such in fact. In the case of such a separation the essential purposes

of marriage have been frustrated,

and its further continuance is in

general not merely useless but

mischievous.”

In the Report it is mentioned that restricting the ground of divorce to a
particular offence or matrimonial disability, causes injustice in those cases
where the situation is such that although none of the parties is at fault, or
the fault is of such a nature that the parties to the marriage do not want to
divulge it, yet there has arisen a situation in which the marriage cannot be
worked. The marriage has all the external appearances of marriage, but none of
the reality. As is often put pithily, the marriage is merely a shell out of
which the substance is gone. In such circumstances, it is stated, there is
hardly any utility in maintaining the marriage as a fagade, when the emotional
and other bounds which are of the essence of marriage have disappeared.

It is also mentioned in the Report that in case the marriage has ceased to
exist in substance and in reality, there is no reason for denying divorce, then
the parties alone can decide whether their mutual relationship provides the
fulfillment which they seek. Divorce should be seen as a solution and an escape
route out of a difficult situation. Such divorce is unconcerned with the wrongs
of the past, but is concerned with bringing the parties and the children to
terms with the new situation and developments by working out the most
satisfactory basis upon which they may regulate their relationship in the
changed circumstances.

On May 22, 1969, the General Assembly of the Church of Scotland accepted the
Report of their Moral and Social Welfare Board, which suggested the substitution
of breakdown in place of matrimonial offences. It would be of interest to quote
what they said in their basis proposals:

“Matrimonial offences are often the

outcome rather than the cause of

the deteriorating marriage. An

accusatorial principle of divorce

tends to encourage matrimonial

offences, increase bitterness and

widen the rift that is already there. Separation for a continuous period

of at least two years consequent

upon a decision of at least one of the parties not to live with the other

should act as the sole evidence of

marriage breakdown.”

Once the parties have separated and the separation has continued for a
sufficient length of time and one of them has presented a petition for divorce,
it can well be presumed that the marriage has broken down. The court, no doubt,
should seriously make an endeavour to reconcile the parties; yet, if it is found
that the breakdown is irreparable, then divorce should not be withheld. The
consequences of preservation in law of the unworkable marriage which has long
ceased to be effective are bound to be a source of greater misery for the
parties.

A law of divorce based mainly on fault is inadequate to deal with a broken
marriage. Under the fault theory, guilt has to be proved; divorce courts are
presented concrete instances of human behaviour as bring the institution of
marriage into disrepute.

We have been principally impressed by the consideration that once the marriage
has broken down beyond repair, it would be unrealistic for the law not to take
notice of that fact, and it would be harmful to society and injurious to the
interests of the parties. Where there has been a long period of continuous
separation, it may fairly be surmised 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 do not serve the sanctity of
marriage; on the contrary, it shows scant regard for the feelings and emotions
of the parties. Public interest demands not only that the married status
should, as far as possible, as long as possible, and whenever possible, be
maintained, but where a marriage has been wrecked beyond the hope of salvage,
public interest lies in the recognition of that fact.

Since there is no acceptable way in which a spouse can be compelled to resume
life with the consort, nothing is gained by trying to keep the parties tied for
ever to a marriage that in fact has ceased to exist.

Some jurists have also expressed their apprehension for introduction of
irretrievable breakdown of marriage as a ground for grant of the decree of
divorce. In their opinion, such an amendment in the Act would put human
ingenuity at a premium and throw wide open the doors to litigation, and will
create more problems then are sought to be solved.

The other majority view, which is shared by most jurists, according to the Law
Commission Report, is that human life has a short span and situations causing
misery cannot be allowed to continue indefinitely. A halt has to be called at
some stage. Law cannot turn a blind eye to such situations, nor can it decline
to give adequate response to the necessities arising therefrom.

When we carefully evaluate the judgment of the High Court and scrutinize its
findings in the background of the facts and circumstances of this case, then it
becomes obvious that the approach adopted by the High Court in deciding this
matter is far from satisfactory.

The High Court ought to have considered the repercussions, consequences, impact
and ramifications of all the criminal and other proceedings initiated by the
parties against each other in proper perspective. For illustration, the High
Court has mentioned that so far as the publication of the news item is
concerned, the status of husband in a registered company was only that of an
employee and if any news item is published, in such a situation, it could not,
by any stretch of imagination be taken to have lowered the prestige of the
husband. In the next para 69 of the judgment that in one of the news item what
has been indicated was that in the company, Nikhil Rubber (P) Ltd., the
appellant was only a Director along with Mrs. Neelu Kohli whom held 94.5% share
of Rs.100/- each in the company. The news item further indicated that Naveen
Kohli was acting against the spirit of the Article of the Association of Nikhil
Rubber (P) Ltd., had caused immense loss of business and goodwill. He has
stealthily removed produce of the company, besides diverted orders of foreign
buyers to his proprietorship firm M/s Navneet Elastomers. He had opened bank
account with forged signatures of Mrs. Neelu Kohli and fabricated resolution of
the Board of Directors of the company. Statutory authority-Companies Act had
refused to register documents filed by Mr. Naveen Kolhi and had issued show
cause notice. All business associates were cautioned to avoid dealing with him
alone. Neither the company nor Mrs. Neelu Kohli shall be liable for the acts of
Mr. Naveen Kohli. Despite the aforementioned finding that the news item was
intended to caution business associates to avoid dealing with the appellant then
to come to this finding in the next para that it will by no stretch of
imagination result in mental cruelty is wholly untenable.

The findings of the High Court that the respondent wife’s cautioning the entire
world not to deal with the appellant (her husband) would not lead to mental
cruelty is also wholly unsustainable.

The High Court ought to have examined the facts of the case and its impact. In
the instant case, the following cases were filed by the respondent against the
appellant.

1. The respondent filed FIR No. 100/96 at Police Station, Kohna under Sections
379/323 IPC

2. The respondent got a case registered under Sections 323/324 registered in the
police station Panki, Kanpur City.

3. At the behest of the respondent FIR No.156 of 1996 was also filed in the
police station, Panki.

4. The respondent filed FIR under Section 420/468 IPC at the Police Station,
Kotwali.

5. The respondent got a case registered under Section under Sections 420/467/468
and 471 IPC.

6. The respondent filed a complaint against the appellant under Sections
498A/323/504/506 IPC at Police Station, Kohna.

7. The respondent had even gone to the extent of opposing the bail application
of the appellant in criminal case filed at the police station, Kotwali

8. When police filed final report in two criminal cases at police station,
Kotwali and police station, Kohna, the respondent filed protest petition in
these cases.

9. The respondent filed complaint no.125 of 1998 in the Women Cell, Delhi in
September 1997 against the appellant’s lawyer and friend alleging criminal
intimidation.

10. The respondent filed a complaint under sections 397/398 before the Company
Law Board, New Delhi.

11. The respondent filed a complaint in Case No.1365 0f 1988 against the
appellant.

12. Again on 8.7.1999, the respondent filed a complaint in the Parliament Street
Police Station, New Delhi and made all efforts to get the appellant arrested.

13. On 31.3.1999, the respondent have sent a notice for breaking the Nucleus of
the HUF.

14. The respondent filed a complaint against the appellant under Section 24 of
the Hindu Marriage Act.

15. The respondent had withdrawn Rs.9,50,000/- from the bank account of the
appellant in a clandestine manner.

16. On 22.1.01 the respondent gave affidavit before the High Court and got non-
bailable warrants issued against the appellant.

17. The respondent got an advertisement issued in a national newspaper that the
appellant was only her employee. She got another news item issued cautioning the
business associates to avoid dealing with the appellant.

The findings of the High Court that these proceedings could not be taken to be
such which may warrant annulment of marriage is wholly unsustainable.

Even at this stage, the respondent does not want divorce by mutual consent. From
the analysis and evaluation of the entire evidence, it is clear that the
respondent has resolved to live in agony only to make life a miserable hell for
the appellant as well. This type of adamant and callous attitude, in the context
of the facts of this case, leaves no manner of doubt in our mind that the
respondent is bent upon treating the appellant with mental cruelty. It is
abundantly clear that the marriage between the parties had broken down
irretrievably and there is no chance of their coming together, or living
together again.

The High Court ought to have appreciated that there is no acceptable way in
which the parties can be compelled to resume life with the consort, nothing is
gained by trying to keep the parties tied forever to a marriage that in fact has
ceased to exist.

Undoubtedly, it is the obligation of the Court and all concerned that the
marriage status should, as far as possible, as long as possible and whenever
possible, be maintained, but when the marriage is totally dead, in that event,
nothing is gained by trying to keep the parties tied forever to a marriage which
in fact has ceased to exist. In the instant case, there has been total
disappearance of emotional substratum in the marriage. The course which has been
adopted by the High Court would encourage continuous bickering, perpetual
bitterness and may lead to immorality.

In view of the fact that the parties have been living separately for more than
10 years and a very large number of aforementioned criminal and civil
proceedings have been initiated by the respondent against the appellant and some
proceedings have been initiated by the appellant against the respondent, the
matrimonial bond between the parties is beyond repair. A marriage between the
parties is only in name. The marriage has been wrecked beyond the hope of
salvage, 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. To
keep the sham is obviously conducive to immorality and potentially more
prejudicial to the public interest than a dissolution of the marriage bond.

The High Court ought to have visualized that preservation of such a marriage is
totally unworkable which has ceased to be effective and would be greater source
of misery for the parties.

The High Court ought to have considered that a human problem can be properly
resolved by adopting a human approach. In the instant case, not to grant a
decree of divorce would be disastrous for the parties. Otherwise, there may be a
ray of hope for the parties that after a passage of time (after obtaining a
decree of divorce) the parties may psychologically and emotionally settle down
and start a new chapter in life.

In our considered view, looking to the peculiar facts of the case, the High
Court was not justified in setting aside the order of the Trial Court. In our
opinion, wisdom lies in accepting the pragmatic reality of life and take a
decision which would ultimately be conducive in the interest of both the
parties.

Consequently, we set aside the impugned judgment of the High Court and direct
that the marriage between the parties should be dissolved according to the
provisions of the Hindu Marriage Act, 1955. In the extra-ordinary facts and
circumstances of the case, to resolve the problem in the interest of all
concerned, while dissolving the marriage between the parties, we direct the
appellant to pay Rs.25,00,000/- (Rupees Twenty five lacs) to the respondent
towards permanent maintenance to be paid within eight weeks. This amount would
include Rs.5,00,000/- (Rupees five lacs with interest) deposited by the
appellant on the direction of the Trial Court. The respondent would be at
liberty to withdraw this amount with interest. Therefore, now the appellant
would pay only Rs.20,00,000/- (Rupees Twenty lacs) to the respondent within the
stipulated period. In case the appellant fails to pay the amount as indicated
above within the stipulated period, the direction given by us would be of no avail and the appeal shall stand dismissed. In awarding permanent maintenance we have taken into consideration the financial standing of the appellant.

Before we part with this case, on the consideration of the totality of facts,this Court would like to recommend the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce. A copy of this judgment be sent to the Secretary, Ministry of Law & Justice, Department of Legal Affairs, Government of India for taking appropriate steps.

The appeal is accordingly disposed of. In the facts and circumstances of the case we direct the parties to bear their own costs.

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