F.A.T 638 of 2015
Samar Bijoy Roy
Mr. Kushal Paul
…..for the appellant
Mr. Partha Sarathi Bhattacharyya
Mr. Raju Bhattacharyya
Mr. Tanweer Mondal
Mr. Arunava Maiti
….for the respondent
The parties were married on 19th November, 1992.
The cause of action in the plaint is framed principally on the ground of
cruelty. On making a search of the facts pleaded in support of the cause of
action, the major part of it, if not the whole, relates to refusal of sex by the
wife. They had physical relationship for a few days only. This pleading in the
plaint is not controverted in the written statement. The trouble seems to have
taken firm root by 2001. According to the respondent/husband the wife
completely refused to have physical relationship with him from that time.
Admittedly, the appellant/wife a junior school teacher is staying in a
house in Raiganj, Uttar Dinajpur built with a contribution from the husband.
The suit was filed in 2008 by the husband in the Court of the Additional
District Judge, 1st Court, Raijanj, Uttar Dinajpur and was decreed in his
favour on 11th December, 2015, on the ground of irretrievable breakdown of
The wife preferred an appeal before us against the said judgement and
The judgement analyses the relationship of the parties from the very
beginning, the absence of physical relationship between them from 2001,
their separated lives and so on and came to the conclusion that the marriage
between the parties had broken down irretrievably. On that ground divorce
The Supreme Court has specifically opined in (Vishnu Dutta Sharma –
versus- Manju Sharma reported in (2009) 6 Supreme Court Cases 379)
and (Darshan Gupta -versus-Radhika Gupta reported in (2013) 9 Supreme
Court Cases 1) that irretrievable break down is not a ground to grant divorce
in a contested action. So, the legal premises for granting divorce was incorrect
The learned Judge of the Court below upon analysis of the evidence has
also come to the conclusion that no mental cruelty was reached by the
respondent/husband to the wife.
In my opinion, here he was in complete error. The Supreme Court in
(Satish Sitole -versus-Smt. Ganga reported in AIR 2008 SC3093)
remarked that out of sixteen years of marriage in that case the parties had
been living separately for fourteen years. The marriage had broken down
irretrievably. Since the marriage between the parties was dead for all practical
purposes and there was no chance of it being retrieved, “the continuance of
such marriage would amount to cruelty”.
In (V. Bhagat-versus-Mrs. D. Bhagat reported in A.I.R 1994 SC 710
paragraph 17), the Supreme Court has defined mental cruelty as the pain or
suffering which a party to a marriage suffers internally.
In my opinion, when the psychological feeling of pain becomes
unbearable, the Court takes note of it as mental agony or cruelty and relieves
the parties of the relationship, which is causing this pain and suffering.
Obviously the assessment of the Court has to be made in a subjective
manner. What would amount to mental cruelty is not a closed category and
would depend from case to case on the subjective satisfaction of the learned
“What is cruelty in one case may not amount to cruelty in another case.
It is a matter to be determined in each case having regard to the facts and
circumstances of that case” as per Justice B. P. Jcevan Reddy in the above
In this case the marriage between the parties is dead and there is no
chance of reviving it. A lot of distance has been created between the parties
which cannot be bridged and there is total lack of any mental or physical
relationship. There is evidence to suggest that from 2001 the
respondent/husband had been requesting his wife to be physically proximate
with him, which she repeatedly denied to him. This more than anything was
sufficient mental torture which entitled the husband to obtain divorce. The
learned Judge failed to appreciate these factual and legal premises.
In those circumstances, there is no point in dragging the relationship
The learned Judge came to the right conclusion on facts that there
should be dissolution of marriage but has given the wrong legal reason in
support of it.
I affirm the judgement of the Court below.
The appellant does not claim alimony as submitted by learned Counsel.
The appeal is dismissed.
( I. P. Mukerji,J.)
Judgment on : 05.02.2019
Amrita Sinha, J.:-
I have heard the judgment delivered by brother Mukerji, J. in Court. As
I have a different view I am delivering this judgment separately.
This is an appeal challenging the judgment and decree dated 11th
December, 2015 passed by the learned Additional District Judge, First Court,
Raiganj, Uttar Dinajpur in MAT Suit No. 205/2008 granting divorce on the
ground of irretrievable break down of marriage between the parties.
The husband filed the matrimonial suit under Section 13 of The Hindu
Marriage Act (herein after referred to as the HMA). The primary allegation of
the husband was that though the marriage was solemnized on 19th November,
1992 the parties did not have any physical or mental relationship for about
last six years. They resided in the same house in two separate bed rooms. The
wife had purchased a flat at Raiganj approximately 20 kms. away from the
matrimonial house at Kaliaganj without intimating him. The wife is a teacher
of a government school and leaves home at 8 o’ clock in the morning and
returns back around 8 o’ clock in the evening. The wife was not interested in
cohabitation and due to her physical structure she was unable to conceive. It
was also alleged that the wife tried to kill him by mixing medicines with
sweets. She has failed to discharge her matrimonial obligations and deserted
the petitioner husband in the year 2001. The husband prayed for divorce on
the grounds of cheating, cruelty and desertion.
The wife filed a written statement denying all the allegations made in
the plaint. She specifically mentioned that after marriage the parties had a
cordial relationship. They enjoyed several vacations together. She mentioned
that she performed all her matrimonial obligations. She looked after and took
care of her mother-in-law till her death. She also accompanied her husband
to Vellore where he was undergoing treatment. Both of them attended several
social functions together. As there was a dispute between her husband and
her brother-in-law her husband proposed to shift from their matrimonial
home to a rented accommodation. She was not willing to stay separately from
her mother-in-law in the rented accommodation. Accordingly she proposed to
her husband for purchasing a separate flat. With the permission of her
husband she obtained loan and constructed her own flat at Raiganj. Her
husband provided money for constructing the said flat and also stood as a
guarantor in respect of the loan taken by her. She claimed that her husband
and her in-laws attended the Griha Prabesh function in the year 2007. She
mentioned that the allegations made against her are absolutely false and
baseless. There was absolutely not dispute in between the parties. She prayed
for dismissal of the suit.
The learned Court below after appreciation of the evidence arrived at
the conclusion that the wife had not treated the husband with cruelty and on
the other hand the wife is under desertion on account of the conduct of the
petitioner husband. The Court opined that a different approach should have
been taken as the petitioner husband has been unable to prove his case of
cruelty and desertion as grounds for seeking dissolution of the marriage.
The Court records that the wife was ready and willing to go back to the
husband on any terms and conditions but the husband was not inclined to
take her back. It was further recorded that the Court failed to pacify the
dispute even after taking extra effort apart from the Court hours and all
attempts ended in failure on account of the rigid stance taken on behalf of the
The Court below observed that having regard to the irretrievable break
down of the marriage keeping the dead relation in continuity without having
any fruitful purpose would not be justice suited to the parties. It is beneficial
in the interest of both the parties that the decree of divorce should be granted
as the parties have lived under desertion, most of which has been spend in
acrimonious allegations against each other. There was no possibility of
retrieving the marriage and an order should be passed to end the agony of
both the parties.
Relying upon the decision of the Hon’ble Supreme Court passed in the
case of Satish Sitole vs. Ganga in Civil Appeal no. 7567 of 2004 dated 10th
July, 2008 the Court ordered that since the marriage between the parties is
dead for all practical purposes and there is no chance of it being retrieved the
continuance of such marriage could itself amount to cruelty and thus directed
that the marriage of the parties should be dissolved subject to the payment of
Rs.5,00,000/- by way of permanent alimony.
It appears from records that in the Court below the wife has
categorically deposed that she lived in her matrimonial home with her
husband and in laws and took care of her mother-in-law till she expired on
6th. December 2010. Apart from serving in the school she regularly performed
her obligations as wife as well as daughter-in-law. She entrusted her family
members to take care of her husband when he was undergoing treatment at
Kolkata as she was duty bound to take care of her ailing mother in law at
Kaliaganj. The wife has further deposed that when the petitioner husband
underwent an operation in the year 2008 she took care and nursed the ailing
husband during that time. Only after recovery the husband turned around
and filed the suit for divorce.
The husband in his deposition admitted that he has partly financed the
flat of his wife. He has also mentioned that the distance of the matrimonial
home and the school where the wife was serving as a teacher was quite far off
and the wife had to take a lot of strain to reach the school and perform her
duties there. He further deposed that the newly constructed flat of the wife
was close to her place of work. It implies that the husband never objected to
the wife residing at a separate place to attend her duties in the school. It
further implies that the wife resided at a different place with the consent of
the husband only for the convenience of her job. Apart from a bald statement
the husband failed to prove that the wife refused to cohabit with her. The
parties never intended to put an end to the marriage. The animus decirendi or
the intention to desert was absent. The conduct of the wife does not amount
From the depositions made by the parties the learned Court below
rightly came to the conclusion that there was no cruelty or desertion by the
wife on the husband. The learned Court below also rightly disbelieved the
allegation of the husband that the wife mixed poison with sweets with the
intention to kill him. The specific finding of the Court was that none of the
grounds viz; cruelty and desertion taken by the petitioner has been proved.
The Court being aware of the fact that since none of the grounds for divorce
was proved opined that the husband ought to have taken a different approach
for putting the relationship to an end.
Though cruelty has not been defined in the Act but the dictionary
meanings as well as the decisions in this regard postulates that cruelty
involves a conduct of such character as to have cause danger to life, limb or
health, bodily or mentally or as to give rise to a reasonable apprehension of
such danger. Normally it means any conduct which may be dangerous to
health or give rise to a reasonable apprehension of such danger.
The husband intended to highlight that there was mental cruelty on the
part of his wife. She wilfully refused to cohabit with the husband. He tried to
highlight that the behaviour of his wife towards him as well as his family
members was such that amounts to mental cruelty and he presses on the
ground of cruelty for obtaining the order of divorce.
He relies upon the following decisions to contend that the conduct of
the wife amounts to cruelty and the decree of divorce has been rightly passed
in the facts and circumstances of the instant case. Sabitri Pandey vs. Prem
Chandra Pandey (2002) 2 SCC 73 (paragraph 6), Jyotish Chandra Guha vs.
Mira Guha AIR 1970 Cal 266 (paragraphs 24-26, 35, 41-43) and V. Bhagat
vs. D. Bhagat AIR 1994 SC 710.
The learned Trial judge passed the impugned order erroneously relying
upon the judgment of the Hon’ble Supreme Court in the case of Satish Sitole
(supra), without being apprised of the fact that the said judgment was taken
into consideration by the Hon’ble Supreme Court in a subsequent judgment of
Vishnu Dutt Sharma vs. Manju Sharma (2009) 6 SCC 379 wherein the Court
specifically held that as the ground of irretrievable break down of marriage is
not a ground for obtaining divorce under Section 13 of the Act the Court
cannot add such a ground as that would be amending the Act which is a
function of the legislature. The Court further held that a mere direction of the
Court without considering the legal position is not a precedent. The Court by
judicial verdict cannot add grounds for divorce which are not mentioned in
the Act. It is for the Parliament to enact or amend the law and not for the
Court. The Court went on to add that had the parties been willing then
divorce by mutual consent could have been granted.
In Darshan Gupta vs. Radhika Gupta (2013) 9 SCC 1 the Hon’ble
Supreme Court was not agreeable with the contention of the appellant to
grant divorce on the plea of irretrievable break down of marriage by invoking
jurisdiction under Article 142 of the Constitution of India for doing complete
justice between the parties. Suggestion was advanced that the appellant will
be ready and willing to pay the respondent whatever was considered
appropriate by the Court. Even then the Court did not accept the plea of the
appellant. The Court held that to constitute justice the picture should appear
to be same irrespective of the angle from which it is viewed. If the same
sequence of fact cannot be viewed as doing justice to the husband, they have
to be likewise viewed for the wife as well.
In Chetan Dass vs. Kamla Devi (2001) 4 SCC 250 the Hon’ble Supreme
Court held that the institution of marriage occupies an important place and
plays an important role in the society in general and therefore it would not be
appropriate to apply any submission of irretrievable break down of marriage
as a straight jacket formula for grant of divorce.
In Sabitri Pandey vs. Prem Chandra Pandey (supra) (paragraph 17) the
Court held that the sanctity of marriage cannot be left at the whims of one of
the annoying spouses. Irretrievable break down of marriage is not a ground by
itself to dissolve it. It further held that the foundation of the family rests on
the institution of a legal and valid marriage. Approach of the court should be
to preserve the matrimonial home and be reluctant to dissolve the marriage
on the asking of one of the parties.
In Debjani Sinha vs. Bikash Sinha 2006(2) CHN 235 this Court held
that mere finding by the Trial Court that the marriage had broken down
irretrievably cannot confer upon the Court the authority to grant a decree for
divorce as the husband has failed to prove cruelty alleged in his petition for
In the instant case the wife was all along ready and willing to stay with
the husband and continue with the marital tie. The learned Court below did
not find any fault on the part of the appellant wife. On the contrary the
learned judge observed that it was the husband who took a rigid stance to
break the marriage. The husband himself is at fault by deserting the appellant
wife and has claimed relief of divorce. It is he who inflicted mental cruelty to
the appellant wife by leaving her alone and making all sorts of filthy
allegations against her. The Court below disbelieved the evidences given
against the appellant wife. It is very gracious on the part of the wife who
inspite of all the allegations made against her is ready and willing to perform
her marital duties. Law does not entitle a person to take advantage of his own
The learned Court below misdirected itself by coming to the conclusion
that in the interest of both the parties the marital tie to be severed since the
marriage has broken down irretrievably. The Court ought to have appreciated
that the divorce was not in the interest of the wife. The wife was not interested
in divorce. She was also not interested with the alimony that has been
directed to be paid to her. It has been submitted that she never claimed
alimony but the husband has directly transferred the alimony amount in her
bank account. If directed she will return the same. She is eager to be united
with her husband.
The parties are at ripe age. The husband is above 60 years and the wife
is nearing 60. She submits that even though there was no fault on her part
she has to bear the social stigma of being divorced by her husband. She has
very cordial relationship with her in-laws even today. She submits that the
husband is continuing with the matrimonial suit only at the instigation of
some third party.
In the absence of legislation irretrievable break down of marriage cannot
be held to be a valid ground for dissolution of the marital tie. The same will
set a very bad precedent and will give rise to a dangerous trend in the society.
Unwilling or erring partners without any fault of the other partner will proceed
before the Court for obtaining divorce on the said ground. It is true that in
modern time difference of opinion, culture, taste etc. often leads to
acrimonious relationship in between the parties. Obtaining divorce by paying
a price has become a common phenomenon but the same is possible only if
both the parties mutually agree to the same. In the absence of mutual
consent divorce can be granted only on the grounds as mentioned in the Act
and not otherwise.
In view of the discussions made herein above the impugned judgment
and decree of divorce cannot be sustained. The same is set aside. The petition
for divorce is rejected. The appeal is allowed.
The appellant wife will refund the alimony transferred to her bank
account as and when the same will be demanded by the husband.
Urgent certified photo copy of this judgment, if applied for, be supplied
to the parties expeditiously on compliance of usual legal formalities.
(Amrita Sinha, J.)
As there is difference between us as reflected in the separate
judgements delivered by us in this appeal, we refer the matter to the Hon’ble
Acting Chief Justice for taking an appropriate administrative decision in the
(I. P. Mukerji, J)
(Amrita Sinha, J)