Smt. Kusum Vishwakarma vs Ashok Vishwakarma on 26 September, 2017

1 F.A. No. 1043 of 2015

F.A. No. 1043 of 2015

26/09/2017
Shri R.S. Patel, learned counsel for the
appellant.
Ms. Sneh Mishra, learned counsel for the
respondent.

This appeal has been filed against the judgment
dated 15 t h October 2015 passed in Civil Suit No. 5-A of

15.
In view of the facts of the case that the
respondent – husband has been held guilty for
commission of offence punishable under Sections 364-
A, 302, 302/34, 302/120, 201, 404/34 of IPC and he is
awarded a sentence of life. He is in jail, the appeal
is heard finally.

1. The plaintiff filed a suit for decree of divorce
on the ground that the respondent – husband
was prosecuted for commission of offence
punishable under Sections 364-A, 302, 302/34,
302/120, 201, 404/34 of IPC. The trial court
awarded the jail sentence of Death to the
respondent – husband. Thereafter, an appeal was
filed by the respondent – husband before this
court against the judgment of the trial court.
That appeal was allowed partially. This court
2 F.A. No. 1043 of 2015

upheld the conviction of the appellant.
However, modified the sentence and awarded
a sentence of Life. The respondent filed SLP
against the judgment, which was also dismissed.
The appellant pleaded that she has been living
separately with the respondent since July 2002
because the respondent was prosecuted and
punished for commission of heinous offence,
hence, the act of the respondent amounts to
mental cruelty.

2. The appellant also levelled allegations of
demand of dowry was made and she was
subjected to cruelty. She also lodged a report
against the respondent and the respondent was
prosecuted for commission of offence punishable
under Section 498-A of IPC. The trial court
convicted the appellant. However, on appeal he
was acquitted.

3. The trial court held that the appellant has not
proved the fact that the respondent had
committed cruelty and dismissed the suit. It is
an admitted fact that the respondent was
prosecuted alongwith other accused persons for
commission of offence punishable under Sections
364-A, 302, 302/34, 302/120, 201, 404/34 of IPC.

3 F.A. No. 1043 of 2015

4. The trial court held the respondent guilty for
commission of offence and awarded sentence
of death. He filed an appeal before this court.
This court upheld the conviction of the
respondent. However, sentence awarded by the
trial court was modified as Life Sentence.
Thereafter, the respondent filed SLP before
the Supreme Court. That was also dismissed.
The respondent is in jail since 2002.

5. Apex Court in the case of Samar Ghosh Vs.

Jaya Ghosh (2007) 4 SCC 511 has held as

under in regard to mental cruelty which is a

ground of divorce under Section 13(1)(i)(i-a)

of the Hindu Marriage Act:-

“No uniform standard can ever be laid
down for guidance, yet we deem it
appropriate to enumerate some instances of
human behaviour which may be relevant in
dealing with the cases of ‘mental cruelty’.
The instances indicated in the succeeding
paragraphs are only illustrative and not
exhaustive.

(i) On consideration of complete
matrimonial life of the parties, acute mental
pain, agony and suffering as would not
make possible for the parties to live with
4 F.A. No. 1043 of 2015

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
5 F.A. No. 1043 of 2015

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 sterilization 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.

6 F.A. No. 1043 of 2015

(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.”

“Under the breakdown theory,
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. 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
7 F.A. No. 1043 of 2015

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. ”

6. The Apex Court further in the case of Suman

Kapur Vs. Sudhir Kapur (2009) 1 SCC 422

has held as under in regard to mental cruelty:-

“30. The concept of cruelty has been dealt
with in Halsbury’s Laws of England [Vol.13,
4th Edition Para 1269] as under;

“The general rule in all cases of cruelty is
that the entire matrimonial relationship must
be considered, and that rule is of special value
when the cruelty consists not of violent acts
but of injurious reproaches, complaints,
accusations or taunts. In cases where no
violence is averred, it is undesirable to
consider judicial pronouncements with a view
to creating certain categories of acts or
conduct as having or lacking the nature or
quality which renders them capable or
incapable in all circumstances of amounting to
cruelty; for it is the effect of the conduct
rather than its nature which is of paramount
importance in assessing a complaint of cruelty.
Whether one spouse has been guilty of cruelty
to the other is essentially a question of fact
and previously decided cases have little, if
any, value. The court should bear in mind the
physical and mental condition of the parties as
well as their social status, and should consider
the impact of the personality and conduct of
8 F.A. No. 1043 of 2015

one spouse on the mind of the other, weighing
all incidents and quarrels between the spouses
from that point of view; further, the conduct
alleged must be examined in the light of the
complainant’s capacity for endurance and the
extent to which that capacity is known to the
other spouse”.

31. In Gollins V. Gollins 1964 AC 644:
(1963)2 All ER 966, Lord Reid stated:
“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 weakness 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”.

32. Lord Pearce also made similar
observations;

“It is impossible to give a comprehensive
definition of cruelty, but when reprehensible
conduct or departure from normal standards of
conjugal kindness causes injury to health or an
apprehension of it, is, I think, cruelty if a
reasonable person, after taking due account of
the temperament and all the other particular
circumstances would considered that the
conduct complained of is such that this spouse
should not be called on to endure it”. [see also
Russell v. Russell, (1897) AC 395 : (1895-99)
All ER Rep 1].

9 F.A. No. 1043 of 2015

33. The test of cruelty has been laid down by
this court in the leading case of N.G. Dastane
v. S. Dastane , (1975)2 SCC 326 thus:
“The enquiry therefore has to be 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….”

34. In Sirajmohmedkhan Janmohamadkhan v.
Haizunnisa Yasinkhan Anr ., (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. It was further stated that to establish
legal cruelty, it is not necessary that physical
violence should be used. Continuous cessation
of marital intercourse or total indifference on
the part of the husband towards marital
obligations would lead to legal cruelty.

35. In Shobha Rani v. Madhukar Reddi , (1988)
1 SCC 105, this Court examined the concept of
cruelty. It was observed that the term `cruelty’
has not been defined in the Hindu Marriage
Act . It has been used in Section 13(1)(ia) of
the Act in the context of human conduct and
behavior in relation to or in respect of
matrimonial duties or obligations. It is a
course of conduct of one spouse which
adversely affects the other spouse. The cruelty
may be mental or physical, intentional or
unintentional. If it is physical, it is a question
of degree which is relevant. If it is mental, the
enquiry must begin as to the nature of the
cruel treatment and then as to the impact of
10 F.A. No. 1043 of 2015

such treatment on the mind of the other
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.

36. 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. Mens rea 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.

37. In V. Bhagat v. D. Bhagat (Mrs .), (1994) 1
SCC 337, the Court observed;

“Mental Cruelty in Section 13(1)(ia) 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 unintentional. If it is
physical, it is a question of fact and degree. If
11 F.A. No. 1043 of 2015

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 or 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
12 F.A. No. 1043 of 2015

determined 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”.

38. This Court in Chetan Dass v. Kamla Devi ,
(2001) 4 SCC 250, stated;

“14. 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”.

39. Mental cruelty has also been examined by
this Court in Parveen Mehta v. Inderjit Mehta
(2002) 5 SCC 706 thus;

“Cruelty for the purpose of Section 13 (1)(ia)
is to be taken as a behavior by one spouse
13 F.A. No. 1043 of 2015

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 behavior or
behavioral 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 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 misbehavior in
isolation and then pose the question whether
such behavior 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
subjected to mental cruelty due to conduct of
the other.”

40. In A. Jayachandra v. Aneel Kaur , (2005) 2
SCC 22, the Court observed as under:
“10. The expression “cruelty” has not been
defined in the Act. Cruelty can be physical or
mental. Cruelty which is a ground for
14 F.A. No. 1043 of 2015

dissolution of marriage may be defined as
wilful 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 the 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 a
delicate human relationship like matrimony,
one has to see the probabilities of the case.
The concept 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
15 F.A. No. 1043 of 2015

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.”

41. In Vinita Saxena v. Pankaj Pandit , (2006)
3 SCC 778, the Court said;

“31. It is settled by a catena of decisions that
mental cruelty can cause even more serious
injury than the physical harm and create in the
mind of the injured appellant such
apprehension as is contemplated in the
section. It is to be determined on whole facts
of the case and the matrimonial relations
between the spouses. To amount to cruelty,
there must be such willful treatment of the
party which caused suffering in body or mind
either as an actual fact or by way of
apprehension in such a manner as to render
the continued living together of spouses
harmful or injurious having regard to the
circumstances of the case.

32. The word “cruelty” has not been defined
and it 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. It is a course of
conduct and one which is adversely affecting
the other. The cruelty may be mental or
physical, intentional or unintentional. There
may 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
16 F.A. No. 1043 of 2015

be established if the conduct itself is proved or
admitted”.

42. It was further stated:

“35. Each case depends on its own facts and
must be judged on these facts. The concept of
cruelty has varied from time to time, from
place to place and from individual to
individual in its application according to
social status of the persons involved and their
economic conditions and other matters. The
question whether the act complained of was a
cruel act is to be determined from the whole
facts and the matrimonial relations between
the parties. In this connection, the culture,
temperament and status in life and many other
things are the factors which have to be
considered.

36. The legal concept of cruelty which is not
defined by the statute is generally described as
conduct of such character as to have caused
danger to life, limb or health (bodily and
mental) or to give rise to reasonable
apprehension of such danger. The general rule
in all questions of cruelty is that the whole
matrimonial relations must be considered, that
rule is of a special value when the cruelty
consists not of violent act but of injurious
reproaches, complaints, accusations or taunts.
It may be mental such as indifference and
frigidity towards the wife, denial of a company
to her, hatred and abhorrence for wife, or
physical, like acts of violence and abstinence
from sexual intercourse without reasonable
cause. It must be proved that one partner in
the marriage however mindless of the
17 F.A. No. 1043 of 2015

consequences has behaved in a way which the
other spouse could not in the circumstances be
called upon to endure, and that misconduct
has caused injury to health or a reasonable
apprehension of such injury. There are two
sides to be considered in case of apprehension
of such injury. There are two sides to be
considered in case of cruelty. From the
appellants, ought this appellant to be called on
to endure the conduct? From the respondent’s
side, was this conduct excusable? 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 serious to say that from a
reasonable person’s point of view after a
consideration of any excuse which the
respondent might have in the circumstances,
the conduct is such that the petitioner ought
not be called upon to endure.”

7. As per decision of the Apex Court u nilateral
decision of refusal to have intercourse for
considerable period without there being any
physical incapacity or valid reason may
amount to mental cruelty and w here there has
been a long period of continuous separation, it
may be concluded that matrimonial bond is
beyond repair. In the present case, the
respondent has committed a heinous offence.
He is responsible for the aforesaid act. He
18 F.A. No. 1043 of 2015

was convicted by the trial court. The
aforesaid act of the respondent amounts to
decision of refusal to have intercourse. The
appellant has been living separately since
2002. The image of the appellant in the
society has also lowered down because the
respondent has committed heinous offence.
In such circumstances, in our opinion, the
respondent has committed mental cruelty
with the appellant and on this ground within
the meaning of Section 13(1)(i)(i-a) of the
Hindu Marriage Act, the appellant is entitled
to get the decree of divorce. Hence, the
appeal filed by the appellant is allowed. The
impugned judgment passed by the trial court
is hereby set aside. The decree of divorce
is granted in favour of the appellant .

8. The parties shall bear their own costs.

(S.K.Gangele) (Rajeev Kumar Dubey)
Judge Judge

bks

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