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Divorce : Marriage has damaged down irretrievably

SUPREME COURT OF INDIA

Bench: Ruma Pal, Arijit Pasayat, C.K.Thakker
CASE NO.:Appeal (civil) 7763-7764 of 2004

PETITIONER:A. Jayachandra

RESPONDENT:Aneel Kaur

DATE OF JUDGMENT: 02/12/2004

BENCH:
RUMA PAL, ARIJIT PASAYAT & C.K.THAKKER

JUDGMENT:J U D G M E N T (Arising out of S.L.P (C) Nos. 8655-8656 of 2003)

Leave granted.

Parties to a wedlock restraining nuptial tangle aro ostensible to move about a kinship of souls. It creates a new attribute of love, affection, caring and regard between a father and wife. According to Hindu Vedic truth it is Sanskar — a sacrament; one of a sixteen critical sacraments essential to be taken during one’s life-time. There might be earthy kinship as a outcome of wedlock for procreation to continue a hereditary children for ensuring devout shelter and opening of eremite rites, nonetheless what is radically contemplated is kinship of dual souls. Marriage is care to be a connection of 3 critical duties i.e. social, eremite and spiritual.

2. This box presents a really upsetting story of dual rarely prepared professionals (doctors by profession) fighting a sour matrimonial battle.

3. Background contribution sans nonessential sum are as follows:

The appellants (hereinafter referred to as a ‘husband’) and a respondent (hereinafter referred to as a ‘wife’) tied nuptial tangle on 10.10.1978. They were sanctified with dual children. Both are majors by now. The wedlock was what is ordinarily famous as “love marriage”. Appellant and a respondent were co-students in a medical college. They go to opposite tools of a country; a appellant-husband is a Telugu Brahmin while a respondent-wife belongs to Sikh religion. They were both operative in a sanatorium that was determined by a appellant’s father Dr. A. Ram Murthy. Allegedly anticipating a poise of a respondent-wife obnoxious, degrading and amounting to mental cruelty, a notice was given by a appellant-husband on 5.3.1997 seeking divorce by mutual agree to equivocate nonessential complications. It was settled therein that they had not common a bed and there was no earthy hit between them for over dual years. It was indicted in a notice that a respondent had treated appellant with cruelty and her control amounted to abandonment for dual years and was, therefore, conjunction safe, fascinating nor advisable to continue marital relationship. A response was given by respondent on 21.3.1997 denying a allegations. It was suggested that there should be a giveaway and heart to heart contention to arrange out a problems for a agreeable married life. The aforesaid charge that admittedly took place did not move any outcome and eventually a petition underneath Section 13 of a Hindu Marriage Act, 1955 (in brief a ‘Act’) was filed before Family Courts, Hyderabad. It was definitely settled therein that a poise and control of a respondent was causing measureless romantic stress, mental agony, and there being no pity of a bed and cohabitation for some-more than dual years, request was finished to extend ensue of divorce for dissolving a wedlock between a parties. It was privately settled that a respondent has ill-treated her husband, abused him in coarse denunciation in a home and during a sanatorium and during other places thereby causing mental agony, repairs and detriment privately and professionally and also in a amicable circle; allegations were finished about his character. Caveats were filed during opposite places with a perspective to hinder authorised action, and emanate an sense of innocence. Caveats were admittedly lodged during a wrong residence of a appellant. Counter confirmation was filed by a respondent denying a allegations. It was settled that her bona fide act in advising her father to act scrupulously and to be decent in his poise was misconstrued and was being projected as whinging and scornful behaviour. The petition for divorce was filed on ungrounded allegations.

4. At this connection it would be applicable to note that after a petition was filed by a appellant-husband, a fit for claim temperament OA No. 89/97 in honour of right to rehearse in a sanatorium was filed by a respondent. The pronounced fit was not objected to by a appellant and a fit was dictated on 20.11.1997. Subsequently, an execution petition was filed praying for connection of sanatorium equipments belonging to a appellant, and also for polite confinement of a appellant for purported insubordination of a sequence of injunction. It was definitely settled by a respondent during hearing that she was not peaceful to repel a focus until divorce box was finalized. An focus for upkeep was also filed before a Family Court, Hyderabad, where a matter was tentative claiming a sum of Rs. 13,000/- p.m., nonetheless admittedly a respondent is a veteran doctor. Subsequently, another fit was filed for incessant and imperative claim temperament O.S. No. 43/1999 opposite a appellant for permitting respondent and a staff allocated by her, use of certain apportionment of a sanatorium and use of a medical instruments.

5. Evidence was led by a parties. The respondent settled in her justification that she had finish faith and trust in her father and no doubt about his firmness and character. But during a same time, she settled that she had suggested him on 5 depends to be watchful and decent in his behaviour. By visualisation antiquated 18.6.2001 Family Court, Hyderabad, upheld ensue for authorised subdivision with outcome from a date of a decree. Though a Family Court found that ungrounded allegations that caused mental anguish were finished by a respondent, and her purported acts clearly caused mental anguish and mental cruelty, nonetheless gripping in perspective a gratification of a children instead of ensue for divorce a ensue for authorised subdivision was felt to be some-more appropriate. Both a appellant and respondent challenged a visualisation before a High Court. While a appellant-husband took a mount that a ensue for divorce should have been passed, a respondent-wife questioned legality of a ensue for authorised separation. By a impugned visualisation a Division Bench of a High Court discharged a husband’s interest while permitting a wife’s appeal. It was hold that a materials on annals were not sufficient to infer any mental cruelty. The whole justification led by a appellant did not even evacuate smell of cruelty. It was remarkable that even if it was a fact that a respondent was regulating aroused denunciation and creation allegations of adultery with nursing staff, a father ought to have examined some witnesses from a sanatorium and given it was not done, cruelty was not established.

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6. Learned Counsel for a appellant submitted that a ensue of a High Court is clearly erroneous. It did not inspect a justification led in fact and dissapoint a commentary accessible by a Trial Court after examining a justification in good detail. It was not even forked out as to how a justification led by a appellant was in any ensue deficient to infer cruelty. Mere non-examination of staff of a sanatorium can't be a belligerent to drop a reasoning and convincing justification led by a appellant. It was serve submitted that mental cruelty was clearly determined and in any eventuality a wedlock has damaged down irretrievably and on that measure alone a ensue of divorce should have been passed.

7. Learned Counsel for a respondent-wife submitted that no details of purported cruelty were indicated. Making deceptive allegations about a mis-behaviour was not sufficient for usurpation a request for divorce. The justification was poor and in no ensue determined mental cruelty. What amounts to cruelty has been dealt with by this Court in S. Hanumantha Rao v. S. Ramani, we (1999) DMC 628 (SC)=III (1999) SLT 318=1999 (3) SCC 620. The supposed significant position shows that compartment 1993 a attribute was well-spoken solely some wandering incidents of conflict that are normal in any wedlock and such normal wear and rip in attribute can't be a belligerent for seeking divorce. It was submitted that even if it is accepted, for a consequence of argument, that wedlock has damaged down that can't be a belligerent to extend a ensue for divorce. Reference was finished to a decisions of this Court in Chetan Dass v. Kamla Devi, we (2001) DMC 714 (SC)=III (2001) SLT 420=AIR 2001 SC 1709; G.V.N. Kameswara Rao v. G. Jabilli, we (2002) DMC 266 (SC)=I (2002) SLT 153=2002 (2) SCC 296; and Shyam Sunder Kohli v. Sushma Kohli @ Satya Devi, II (2004) DMC 586 (SC)=VI (2004) SLT 1=114 (2004) DLT 1 (SC)=JT 2004 (8) SC 166.

8. Further acquiescence was that in a box during palm it can't be pronounced that a claim mixture for forming cruelty have been satisfied.

9. The countenance “cruelty” has not been discernible in a Act. Cruelty can be earthy or mental. Cruelty that is a belligerent for retraction of wedlock might be discernible as determined and unworthy control of such sense as to means risk to life, prong or health, fleshly or mental, or as to give arise to a reasonable confinement of such a danger. The doubt of mental cruelty has to be deliberate in a light of a norms of marital ties of a sold multitude to that a parties belong, their amicable values, status, sourroundings in that they live. Cruelty, as remarkable above, includes mental cruelty, that falls within a strech of a matrimonial wrong. Cruelty need not be physical. If from a control of his associate same is determined and/or an deduction can be legitimately drawn that a diagnosis of a associate is such that it causes an confinement in a mind of a other spouse, about his or her mental gratification afterwards this control amounts to cruelty. In ethereal tellurian attribute like matrimony, one has to see a probabilities of a case. The concept, a explanation over a shade of doubt, is to be practical to rapist trials and not to polite matters and positively not to matters of such ethereal personal attribute as those of father and wife. Therefore, one has to see what are a probabilities in a box and authorised cruelty has to be found out, not merely as a matter of fact, nonetheless as a outcome on a mind of a complainant associate since of a acts or omissions of a other. Cruelty might be earthy or fleshly or might be mental. In earthy cruelty, there can be discernible and ensue evidence, nonetheless in a box of mental cruelty there might not during a same time be ensue evidence. In cases where there is no ensue evidence, Courts are compulsory to examine into a mental routine and mental outcome of incidents that are brought out in evidence. It is in this perspective that one has to cruise a justification in matrimonial disputes.

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10. The countenance ‘cruelty’ has been used in propinquity to tellurian control or tellurian behaviour. It is a control in propinquity to or in honour of matrimonial duties and obligations. Cruelty is a march or control of one, that is adversely inspiring a other. The cruelty might be mental or physical, conscious or unintentional. If it is physical, a Court will have no problem in last it. It is a doubt of fact and degree. If it is mental, a problem presents difficulties. First, a exploration contingency start as to a inlet of vicious treatment, second a impact of such diagnosis in a mind of a spouse, either it causes reasonable apprehesion that it would be damaging or damaging to live with a other. Ultimately, it is a matter of deduction to be drawn by holding into comment a inlet of a control and a outcome on a angry spouse. However, there might be a box where a control complained of itself is bad adequate and per se wrong or illegal. Then a impact or damaging outcome on a other associate need not be enquired into or considered. In such cases, a cruelty will be determined if a control itself is valid or certified (See Sobha Rani v. Madhukar Reddi, we (1988) DMC 12 (SC)=AIR 1988 SC 121.

11. To consecrate cruelty, a control complained of should be “grave and weighty” so as to come to a end that a postulant associate can't be pretty approaching to live with a other spouse. It contingency be something some-more critical than “ordinary wear and rip of married life”. The conduct, holding into care a resources and credentials has to be examined to strech a end either a control complained of amounts to cruelty in a matrimonial law. Conduct has to be considered, as remarkable above, in a credentials of several factors such as amicable standing of parties, their education, earthy and mental conditions, etiquette and traditions. It is formidable to lay down a accurate clarification or to give downright outline of a circumstances, that would consecrate cruelty. It contingency be of a form as to prove a demur of a Court that a attribute between a parties had run-down to such an border due to control of a other associate that it would be unfit for them to live together though mental agony, woe or distrees, to grant a angry associate to secure divorce. Physical assault is not positively essential to consecrate cruelty and a unchanging march of control inflicting immeasuable mental anguish and woe might good consecrate cruelty within a definition of Section 10 of a Act. Mental cruelty might include of written abuses and insults by regulating dirty and aroused denunciation heading to consistent reeling of mental assent of a other party.

12. The Court traffic with a petition for divorce on a belligerent of cruelty has to bear in mind that a problems before it are those of tellurian beings and a psychological changes in a spouse’s control have to be borne in mind before disposing of a petition for divorce. However considerate or trifling, such control might means pain in a mind of another. But before a control can be called cruelty, it contingency hold a certain representation of severity. It is for a Court to import a gravity. It has to be seen either a control was such that no reasonable chairman would continue it. It has to be deliberate either a complainant should be called on to continue as a partial of normal tellurian life. Every matrimonial conduct, that might means distrurbance to a other, might not volume to cruelty. Mere pardonable irritations, quarrels between spouses, that occur in day-to-day married life, might also not volume to cruelty. Cruelty in matrimonial life might be of ungrounded variety, that can be pointed or brutal. It might be words, gestures or by small silence, aroused or non-violent.

13. The substructure of a sound wedlock is tolerance, composition and respecting one another. Tolerance to any other’s error to a certain acceptable border has to be fundamental in any marriage. Petty quibbles, few differences should not be farfetched and magnified to destroy what is pronounced to have been finished in heaven. All quarrels contingency be weighed from that indicate of perspective in last what constitutes cruelty in any sold box and as remarkable above, always gripping in perspective a earthy and mental conditions of a parties, their sense and amicable status. A too technical and hyper-sensitive ensue would be counter-productive to a institutions of marriage. The Courts do not have to understanding with ideal husbands and ideal wives. It has to understanding with sold male and lady before it. The ideal integrate or a small ideal one will substantially have no arise to go to Matrimonial Court. See Dastane v. Dastane, we (1981) DMC 293 (SC)=AIR 1975 SC 1534.

14. On reading of judgments of a Trial Court and a High Court one thing is clear. While a Trial Court analysed a justification in good fact and found that a supposed mount of a respondent-wife per her poise and control caused mental anguish and amounted to mental cruelty, a High Court did not plead a justification during all. On a presumable belligerent that witnesses from a sanatorium were not examined and, therefore, inauspicious deduction was to be drawn. There was not even any contention as to how a justification led was deficient to settle mental cruelty. The High Court’s perspective that if during all it was a fact that respondent was regulating aroused denunciation and creation allegations of adultery with nursing staff, some witnesses from a sanatorium were required to be examined is clearly indefensible. That alone should not have been finished a pliant cause to drop justification on record. On that belligerent alone a visualisation of a High Court is vulnerable. The justification as led and that is many undisputed is that a respondent had asked a father to do certain things that can't be termed to be a elementary recommendation for correct behaviour. For instance in her justification respondent clearly supposed that she had pronounced 5 things to be followed by him. Surprisingly, many of them associated to ladies operative in a hospital. Though respondent attempted to uncover that they were elementary and submissive advice, nonetheless on a unclothed reading thereof it is transparent that there were transparent manifestations of her suspecting a husband’s fidelity, sense and reputation. By ensue of illustration, it might be indicated that a initial so called recommendation was not to ask certain womanlike staff members to come and work on off-duty hours when nobody else was accessible in a hospital. Second was not to work behind a sealed doors with certain members of a staff. Contrary to what she had settled about carrying full faith in her husband, a so called advices were zero nonetheless casting doubt on a reputation, sense and fealty of her husband. Constant whinging on those aspects, positively amounted to causing memorable mental anguish and amounts to cruelty. The respondent was not an typical woman. She was a alloy in a sanatorium and knew a significance of a inlet of avocation and a prerequisite of members of a staff operative even during off hours and a operative conditions. There was another instance that was privately dealt with by a Trial Court. Same associated to a purported additional marital relations of a appellant with another married lady who was mother of his friend. Though a respondent attempted to explain that she was not obliged for creation any such aspersions, a unavoidable end is to a contrary.

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15. The matter can be looked during from another angle. If acts successive to a filing of a divorce petition can be looked into to infer condonation of a aberrations, acts successive to a filing of a petition can be taken note of to uncover a settlement in a poise and conduct. In a present case, after filing of a divorce petition a fit for claim was filed, and a respondent went to a border of seeking confinement of appellant. She filed a petition for upkeep that was also dismissed. Several premonition petitions were lodged and as remarkable above, with wrong address. The respondent in her justification clearly supposed that she dictated to ensue with a execution proceedings, and request for detain compartment a divorce box was finalized. When a respondent gives priority to her contention over her husband’s leisure it points unerringly during disharmony, freeing and destruction of marital unity, from that a Court can ascertain about unrecoverable violation of marriage.

16. Several decisions, as remarkable above, cited by schooled Counsel for a respondent to contend even if wedlock has damaged down irretrievably ensue of divorce can't be passed. In all these cases it has been definitely hold that in impassioned cases a Court can ensue retraction of wedlock on a belligerent that a wedlock damaged down irretrievably as is transparent from divide 9 of Shiv Sunder’s box (supra). The significant position in any of a other cases is also distinguishable. It was hold that prolonged deficiency of earthy association can't be a belligerent for divorce if a same was on comment of husband’s conduct. In Shiv Sunder’s box (supra) it was remarkable that a father was heading unfaithful life and he can't take advantage of his mother shunning his company. Though a High Court hold by a impugned visualisation that a pronounced box was similar, it unfortunately unsuccessful to notice a applicable significant disproportion in a dual cases. It is loyal that unrecoverable violation of wedlock is not one of a orthodox drift on that Court can ensue retraction of marriage, this Court has with a perspective to do finish probity and digest a anguish of a parties intent in prolonged drawn authorised battle, destined in those cases retraction of marriage. But as remarkable in a pronounced cases themselves those were well-developed cases.

17. In a aforesaid authorised and significant credentials a unavoidable end is that a appellant is entitled to a ensue of divorce and we ensue accordingly.

The appeals are authorised with no sequence as to costs.

 

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