Important Leading Judgements

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Naveen Kohli v. Neelu Kohli - DATE OF JUDGMENT: 21/03/2006

Head Note

 Irretrievable breakdown of marriage is a ground for the grant of divorce-  Supreme Court of India in its landmark judgment held  that -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.

Supreme Court of India : Upload Date - 3/21/2006

Judgement

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.

 

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 

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:

"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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