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Smt. Yashi Jain vs Parag Jain on 22 November, 2017

F.A. No. 541 of 2016


(Division Bench: Hon’ble Shri Justice S.K. Gangele
Hon’ble Shri Justice Anurag Shrivastava)

First Appeal No. 541 of 2016

Smt. Yashi Jain
Parag Jain.

Shri T.S. Ruprah, Senior Advocate assisted by Shri A.K.
Pandey, Advocate for the appellant.
Shri Atulanand Awasthy, Smt. Archana Nagaria and Shri
Rupesh Singh Thakur, Advocates for the respondent.




(Pronounced on 22/11/2017)

Per S.K. Gangele J

Appellant has filed this appeal against the judgment

dated 27/06/2016 passed in Civil Suit No. 200-A/2016. On

earlier date learned senior counsel for the appellant and

counsel for the respondent informed the court that there is

a possibility of compromise between the parties. On the

date of hearing learned senior counsel for the appellant

informed the court that the appellant is agree for divorce

subject to condition that respondent shall pay a total

amount of Rs. 50,00,000/-. Learned counsel for the

respondent has submitted that the respondent is willing to

pay an amount of Rs. 30,00,000/-. Learned senior counsel
F.A. No. 541 of 2016

for the appellant further agreed for an amount of Rs.

45,00,000/-. Thereafter, both the counsel agreed for

hearing the matter on merits. It appears from the

statements made by the counsel of both the parties in the

proceedings that parties are agree for divorce with mutual

consent, however, there is dispute in regard to payment of

amount of final maintenance.

2. Respondent filed a suit for divorce under Section 13

of the Hindu Marriage Act. He pleaded that the marriage of

respondent with appellant was solemnized on 20/02/2011.

Appellant was living with the respondent at his residence.

From the date of marriage attitude of the appellant was

not proper. Within fifteen days of marriage the family

members of the respondent did not feel happy with the

attitude of the appellant.

3. After four months of pregnancy, the appellant left

the house of the respondent. She had gone at the

residence of her parents and she did not return back. The

appellant was not happy with physical relationship, she

always shows her reluctance towards physical relationship.

Mental condition of the appellant was not proper, she had

taken treatment. Father and mother of the appellant did

not inform the respondent and his family members about

ailment of the appellant. Before marriage the family
F.A. No. 541 of 2016

members informed that appellant is B.Sc., however, after

marriage it came to knowledge that the appellant passed

only B.Sc. Ist year. Mother of the respondent was died in

an accident and his father injured seriously, he was on bed

for a period of two months. The behaviour of the appellant

was improper. She abused all the family members.

Appellant left the house on 28/08/2012 and since then she

was living with her parents. Respondent had taken

separate rented house with the hope that appellant will

live with him, inspite of that, she did not come back.

4. on 30/10/2012 respondent made written complaint

to the Superintendent of Police about the behaviour of the

appellant, thereafter the matter was referred to Family

Counseling Centre. Mr. Amitabh Jain, appointed as

mediator. He tried his best to patch-up the differences but

no result came out.

5. Appellant in her reply denied the pleadings of the

complaint, she specifically denied that she abused family

members of the respondent or her behaviour was cruel.

She pleaded that at the time of pregnancy, family

members of the respondent did not come to visit her, even

at the hospital. Hence, the behaviour of family members of

the respondent was cruel. She denied the fact that she has

made any suppression and pleaded that she is willing to
F.A. No. 541 of 2016

live with the respondent.

6. The trial court framed two issues that whether the

behaviour of the appellant was cruel with the respondent

and she practiced cruelty and whether the respondent

himself deserted the appellant after torture.

7. Respondent examined himself, neighbour Mr.

Abhishek Tiwari and relative Amitabh Jain. The appellant

examined herself, Mr. Ashiwarya Jain, brother of the

appellant, Mr. Dilip Kumar Jain, father of the appellant and

Mr. Naresh Jain.

8. The trial court after appreciation of evidence has held

that the behaviour of the appellant was cruel and awarded

a decree of divorce. In recording the finding of cruelty, the

trial court relied on the evidence of appellant, Mr. Amitabh

Tiwari and Abhishek Jain. All the witnesses have deposed

that the appellant was not willing to live with the

respondent. She used to cry in anger and use to abuse

family members. The appellant was living with her parents

without any reason. She had no interest in physical

relationship and unnecessarily left the house of the

respondent. The trial court did not believe the version of

the appellant that she was forced to leave the house of the


9. The Apex Court in the case of Samar Ghosh Vs. Jaya
F.A. No. 541 of 2016

Ghosh (2007) 4 SCC 511 has held as under regard to


“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
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

(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

(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,
F.A. No. 541 of 2016

studied neglect, indifference or total
departure from the normal standard of
conjugal kindness causing injury to mental
health or deriving sadistic pleasure can also
amount to mental cruelty.

(viii) The conduct must be much more than
jealousy, selfishness, possessiveness, which
causes unhappiness and dissatisfaction and
emotional upset may not be a ground for
grant of divorce on the ground of mental

(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

(xii) Unilateral decision of refusal to have
intercourse for considerable period without
there being any physical incapacity or valid
reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband
or wife after marriage not to have child
from the marriage may amount to cruelty.

(xiv) Where there has been a long period of
continuous separation, it may fairly be
concluded that the matrimonial bond is
beyond repair. The marriage becomes a
F.A. No. 541 of 2016

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.”

10. The matter was referred for mediation by this Court

and mediation has failed. From the proposal given by the

learned senior counsel for the appellant in regard to

permanent maintenance, it appears that it is not possible

that the appellant is willing to live with the respondent.

There is a child born from the wedlock of the appellant and

respondent. He has been living with the mother- appellant.

Looking to the subsequent development and the findings

recorded by the trial court, in the change circumstances, in

our opinion, it would be just and proper to affirm the

decree of divorce awarded by the trial court.

11. In regard to grant of permanent maintenance, it is a

fact that child has been living with the appellant. He is

getting education in a convent school. The trial court

awarded maintenance of Rs. 10,00,000/- in favour of the

child and Rs. 10,00,000/- in favour of the appellant.

Learned Senior counsel for the appellant has submitted

that the appellant agreed for maintenance of Rs.

45,00,000/- to the appellant and for the education of child.

It is submitted that the respondent has good business. In
F.A. No. 541 of 2016

an advertisement he had shown his annual income near

about Rs. 30,00,000/-. This fact has been denied by the


12. The Apex Court in the case of Vishwanath Agrawal

Vs. Sarla Vishwanath Agrawal (2012) 7 SCC 288 has held

as under:-

“28. In Praveen Mehta v. Inderjit Mehta[7], it has
been held that mental cruelty is a state of mind and
feeling with one of the spouses due to behaviour or
behavioural pattern by the other. Mental cruelty
cannot be established by direct evidence and 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 facts and
circumstances are to be assessed emerging from the
evidence on record and thereafter, a fair inference
has to be drawn whether the petitioner in the
divorce petition has been subjected to mental cruelty
due to the conduct of the other.

29. In Vijaykumar Ramchandra Bhate v. Neela
Vijaykumar Bhate[8], it has been opined that a
conscious and deliberate statement levelled with
pungency and that too placed on record, through
the written statement, cannot be so lightly ignored
or brushed aside.

30. In A. Jayachandra v. Aneel Kaur[9], it has been
ruled that 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 and environment in which
they live. If from the conduct of the spouse, it is
established and/or an inference can legitimately be
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 the
same would amount to cruelty. While dealing with
the concept of mental cruelty, enquiry must begin as
to the nature of cruel treatment and the impact of
F.A. No. 541 of 2016

such treatment in the mind of the spouse. It has to
be seen whether the conduct is such that no
reasonable person would tolerate it.

31. In Vinita Saxena v. Pankaj Pandit[10], it has
been ruled that as to what constitutes mental
cruelty for the purposes of Section 13(1)(ia) will not
depend upon the numerical count of such incident or
only on the continuous course of such conduct but
one has to really go by the intensity, gravity and
stigmatic impact of it when meted out even once
and the deleterious effect of it on the mental
attitude necessary for maintaining a conducive
matrimonial home.

32. In Samar Ghosh v. Jaya Ghosh[11], this Court,
after surveying the previous decisions and referring
to the concept of cruelty, which includes mental
cruelty, in English, American, Canadian and
Australian cases, has observed that

99. The human mind is extremely complex
and human behaviour is equally complicated.
Similarly, human ingenuity has no bound,
therefore, to assimilate the entire human
behaviour in one definition is almost
impossible. What is cruelty in one case may
not amount to cruelty in the other case. The
concept of cruelty differs from person to
person depending upon his upbringing, level of
sensitivity, educational, family and cultural
background, financial position, social status,
customs, traditions, religious belief, human
values and their value system.

100. Apart from this, the concept of mental
cruelty cannot remain static; it is bound to
change with the passage of time, impact of
modern culture through print and electronic
media and value system, etc. etc. What may
be mental cruelty now may not remain mental
cruelty after a passage of time or vice versa.
There can never be any straitjacket formula or
fixed parameters for determining mental
cruelty in matrimonial matters. The prudent
and appropriate way to adjudicate the case
would be to evaluate it on its peculiar facts
and circumstances.

33. In Suman Kapur v. Sudhir Kapur[12], after
referring to various decisions in the field, this Court
F.A. No. 541 of 2016

took note of the fact that the wife had neglected to
carry out the matrimonial obligations and further,
during the pendency of the mediation proceeding,
had sent a notice to the husband through her
advocate alleging that he had another wife in USA
whose identity was concealed. The said allegation
was based on the fact that in his income-tax return,
the husband mentioned the “Social Security
Number” of his wife which did not belong to the
wife, but to an American lady. The husband offered
an explanation that it was merely a typographical
error and nothing else. The High Court had observed
that taking undue advantage of the error in the
“Social Security Number”, the wife had gone to the
extent of making serious allegation that the husband
had married an American woman whose “Social
Security Number” was wrongly typed in the income-
tax return of the husband. This fact also weighed
with this Court and was treated that the entire
conduct of the wife did tantamount to mental

58. In our considered opinion, the amount that has
already been paid to the respondent-wife towards
alimony is to be ignored as the same had been paid
by virtue of the interim orders passed by the courts.
It is not expected that the respondent-wife has
sustained herself without spending the said money.
Keeping in view the totality of the circumstances and
the social strata from which the parties come from
and regard being had to the business prospects of
the appellant, permanent alimony of Rs.50 lacs
(rupees fifty lacs only) should be fixed and,
accordingly, we so do. The said amount of Rs.50
lacs (rupees fifty lacs only) shall be deposited by
way of bank draft before the trial court within a
period of four months and the same shall be handed
over to the respondent-wife on proper

13. Looking to the evidence on record and looking to the

judgment of the Apex Court, it would be just and proper to

award total maintenance of Rs. 40,00,000/- to the

appellant and her child in place of Rs. 20,00,000/- else
F.A. No. 541 of 2016

awarded by the trial court. Learned counsel for the

respondent made a prayer that some time be granted to

the respondent to pay the maintenance. This prayer is

reasonable, the respondent shall pay Rs. 20,00,000/- as

awarded by the trial court and thereafter Rs. 10,00,000/-

within a period of three months and another Rs.

10,00,000/-within a period of six months thereafter. Hence

the appeal is disposed of with the following directions:-

14. The decree of divorce passed by the trial court is

hereby maintained. It is further ordered that the

respondent shall pay a total maintenance of Rs.

40,00,000/-. The respondent shall pay Rs. 20,00,000/- to

the son and Rs. 20,00,000/- to the wife. Rs. 20,00,000/-

be paid immediately and rest of Rs. 10,00,000/- shall be

paid within a period of three months from the date of

judgment and another Rs. 10,00,000/-within a period of

six months from the date of judgment. The amount of Rs.

20,00,000/- be deposited in fixed deposit in the name of

son. The appellant would be guardian and would be

entitled to receive interest out of the aforesaid amount and

after majority the child would be eligible to get the

aforesaid amount.

15. The respondent husband shall be entitled to meet

with the child on first Sunday of every month for a period
F.A. No. 541 of 2016

of two hours.

No order as to costs.



Digitally signed by ARVIND KUMAR MISHRA
Date: 2017.11.25 12:44:41 +05’30’

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