advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Thursday, June 15, 2017

“mental cruelty”= as admittedly both lived together till 2006 and the appellant gave birth to their second daughter in 2006. Third, most of the incidents of alleged cruelty pertained to the period prior to 2006 and some were alleged to have occurred after 2006. Those pertained to period after 2006 were founded on general allegations with no details pleaded such as when such incident occurred (year, month, date etc.), what was its background, who witnessed, what the appellant actually said etc.- In our view, the incidents which occurred prior to 2006 could not be relied on to prove the instances of cruelty because they were deemed to have been condoned by the acts of the parties. So far as the instances alleged after 2006 were concerned, they being isolated instances, did not constitute an act of cruelty. A petition seeking divorce on some isolated incidents alleged to have occurred 8-10 years prior to filing of the date of petition cannot furnish a subsisting cause of action to seek divorce after 10 years or so of occurrence of such incidents. The incidents alleged should be of recurring nature or continuing one and they should be in near proximity with the filing of the petition. Few isolated incidents of long past and that too found to have been condoned due to compromising behavior of the parties cannot constitute an act of cruelty within the meaning of Section 13 (1)(ia)of the Act.

           REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL Nos.7114-7115 OF 2014


Suman Singh                        ….Appellant(s)

                                   VERSUS

Sanjay Singh                             …Respondent(s)


                               J U D G M E N T
Abhay Manohar Sapre, J.
1)    These appeals are filed by the  appellant  (wife)  against  the  final
judgment and order dated 23.05.2013 passed by the High  Court  of  Delhi  at
New Delhi in F.A.O. No.108 of 2013 and F.A.O. No.109 of 2013  by  which  the
High Court dismissed the appeals filed by the appellant  and  confirmed  the
judgment dated 14.12.2010 of the  Principal  Judge,  Family  Courts,  Rohini
which had granted decree for  dissolution  of  marriage  in  favour  of  the
respondent  (husband)  and,  in  consequence,  also   affirmed   the   order
dismissing the petition filed by the appellant  (wife)  for  restitution  of
conjugal rights.
2)    Facts, in  brief,  to  appreciate  the  controversy  involved  in  the
appeals need mention infra.
3)    The marriage between the appellant and the respondent  was  solemnized
on 26.02.1999 at Delhi as per the Hindu rites.   The  respondent-husband  is
working as "Caretaker" in  the  Government  of  NCT  of  Delhi  whereas  the
appellant is a housewife. Out of this wedlock,  one  daughter  was  born  on
15.06.2002 and the second daughter was born on  10.02.2006.  Both  daughters
are living with the appellant.
4)     On  11.07.2010,  the  respondent  (husband)  filed  a  petition   for
dissolution of marriage under Section 13 of the  Hindu  Marriage  Act,  1955
(hereinafter referred to as "The Act”) in the Family Courts,  Rohini,  Delhi
against the appellant (wife). The respondent sought decree  for  dissolution
of marriage essentially on the ground of "cruelty”.
5)    In substance, the respondent, in his  petition,  pleaded  9  instances
which, according  to  him,  constituted  "cruelty”  within  the  meaning  of
Section 13(1)(i-a)  of  the  Act  entitling  him  to  claim  dissolution  of
marriage against the appellant.
6)    The first ground of cruelty was related  to  wife's  behavior  on  the
next day of marriage, i.e., 27.02.1999. It was alleged  that  the  appellant
came out of the bedroom in night dress and that  too  late  when  the  close
relatives of the respondent were sitting in the house. It was  alleged  that
she did not pay respect and wishes to the elders. (Para 9 of the plaint)
7)    The second ground of cruelty was again about the appellant's  behavior
with the respondent on the eve of  New  Year.  However,  the  year  was  not
mentioned.  According to the respondent, he  agreed  to  celebrate  the  new
year with the appellant  on  her  parental  house  as  the  parents  of  the
appellant gave repeated calls. After reaching her parental  house,  most  of
the time the appellant was busy with her family members and left  him  alone
in the drawing room.  Even at the time of dinner, the family members of  the
appellant did not behave properly. (Para 10).
8)    The third ground of cruelty was that the appellant did  not  show  any
inclination or  enthusiasm  to  attend  any  important  family  function  or
festivals at the respondent’s house whenever held. However, no details  were
given about the date and the function held.  The allegations are general  in
nature (Para 11).
9)    The fourth ground of cruelty was again about the indecent behavior  of
the appellant towards the respondent’s family members. However,  no  details
were pleaded except making general averments (Para 12).
10)   The fifth ground of cruelty was in  relation  to  an  incident  which,
according to the respondent, occurred in July 1999. It was alleged that  the
appellant, on that day, insisted that  the  couple  should  live  separately
from the respondent's parents (Para 13).
11)   The sixth ground of cruelty was again general with no details. It  was
alleged that the appellant was not interested in doing  any  household  work
nor was interested in preparing meals and used to insist the  respondent  to
have his lunch from outside. (Para 14).
12)   The seventh ground of cruelty was in relation to one  incident  which,
according to the respondent, occurred on Diwali day in the  year  2000.   It
was again about the behavior of the appellant with  the  family  members  of
the respondent which, according to the respondent, was rude (Para 16).
13)   The eighth ground of cruelty was in relation to one isolated  incident
which, according to the respondent, occurred on  15.04.2001.  It  was  again
about the behavior of the appellant with the friends of the  respondent  who
had come to the respondent's house. According to the respondent, the  family
members did not like it (Para 17).
14)   The ninth ground of cruelty  was  that  one  day  in  year  2010,  the
appellant  visited  the  respondent's  office  and   misbehaved   with   the
respondent in the presence of other officials (Para 27).
15)   The respondent also alleged some  instances  in  the  petition.  They,
however, again essentially relate to  the  appellant’s  behaviour  with  the
respondent and his family members.
16)    The  appellant  filed  her  written  statement   and   denied   these
allegations. The appellant also applied for restitution of  conjugal  rights
against the respondent in the same  proceedings  by  filing  petition  under
Section 9 of the Act and inter alia alleged in her petition that it was  the
respondent who  has  withdrawn  from  her  company  without  there  being  a
reasonable cause. She also while denying the case set up by  the  respondent
justified her case for restitution of conjugal rights.
17)   The Trial Court framed the following issues on the basis of  pleadings
in the case:
Whether  after  solemnization  of            marriage,  the  Respondent  has
treated the Petitioner with cruelty? OPP
Whether the Petitioner is entitled to                        the  decree  of
divorce as prayed? OPP
   3. Relief

The following issues were framed based on  the  pleadings  in  the  petition
under Section 9 of the Act:

Whether the Petitioner is entitled to the restitution of conjugal rights  as
prayed? OPP
Relief

18)   Parties adduced the evidence. By order dated  14.12.2012,  the  Family
Court allowed the petition filed by the respondent. It  was  held  that  the
grounds alleged by the respondent amounted  to  mental  cruelty  within  the
meaning of Section 13(1)(ia) of the Act and the same having been  proved  by
the respondent, he was  entitled  to  claim  a  decree  for  dissolution  of
marriage against the appellant. Accordingly, the Trial Court granted  decree
for dissolution of marriage in favour of the respondent  and  dissolved  the
marriage. Since the decree for dissolution of marriage  was  passed  against
the appellant, the petition filed by the appellant  against  the  respondent
seeking restitution of conjugal rights was dismissed.
19)   The appellant, felt aggrieved by  the  aforesaid  order,  filed  first
appeals before the High Court. In appeals,  the  question  was  whether  the
Trial Court was justified in granting decree for dissolution of marriage  to
the respondent (husband) and, in consequence, was  justified  in  dismissing
the petition for restitution of  conjugal  rights  filed  by  the  appellant
(wife).
20)   By impugned  judgment,  the  High  Court  dismissed  the  appeals  and
affirmed the judgment/decree of the Trial Court. The appellant (wife),  felt
aggrieved, has filed these appeals by special leave against the judgment  of
the High Court.
21)   Heard Mr. D.N. Goburdhan, learned counsel for the  appellant  and  Mr.
Gaurav Goel, learned counsel for the respondent.
22)   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we are inclined  to  allow  the  appeals  and  while
setting aside the impugned order, dismiss the divorce petition filed by  the
respondent(husband) against the appellant and,  in  consequence,  allow  the
petition filed by the appellant(wife) for  restitution  of  conjugal  rights
against the respondent (husband).
23)   The word "cruelty” used  in  Section  13(1)(ia)  of  the  Act  is  not
defined under the Act.  However, this expression was the subject  matter  of
interpretation in several cases of  this  Court.  What  amounts  to  “mental
cruelty” was succinctly explained by  this  Court  (three  Judge  Bench)  in
Samar Ghosh vs. Jaya Ghosh [(2007) 4  SCC  511].  Their  Lordships  speaking
through Justice Dalveer Bhandari observed that no uniform standard can  ever
be laid  down  for  guidance,  yet  it  is  appropriate  to  enumerate  some
instances of human behavior which may  be  considered  relevant  in  dealing
with the cases of “mental cruelty”.
24)   Their Lordships then broadly enumerated 16  category  of  cases  which
are considered relevant while examining  the  question  as  to  whether  the
facts alleged and proved constitute “mental cruelty” so as  to  attract  the
provisions of Section 13  (1)  (ia)  of  the  Act  for  granting  decree  of
divorce.
25)   Keeping in view the law laid down in Samar Ghosh’s case (supra),  when
we examine the grounds taken by the respondent in his petition  for  proving
the mental cruelty for grant of divorce against the appellant, we find  that
none of the grounds satisfies either individually or collectively  the  test
laid down in Samar Ghosh’s case (supra) so as to entitle the  respondent  to
claim a decree of divorce.
26)   This we hold for more than one reason. First, almost all  the  grounds
taken by the respondent in his petition were stale or/and isolated  and  did
not subsist to enable the respondent to seek a  decree  for  dissolution  of
marriage. In other words, the incidents of cruelty alleged had  taken  place
even, according to the respondent, immediately  after  marriage.  They  were
solitary incidents relating  to  the  behavior  of  the  appellant.  Second,
assuming that one or more grounds constituted an  act  of  cruelty,  yet  we
find that the acts complained of were condoned by the parties due  to  their
subsequent conduct inasmuch as admittedly both lived together till 2006  and
the appellant gave birth to their second daughter in 2006.  Third,  most  of
the incidents of alleged cruelty pertained to the period prior to  2006  and
some were alleged to have occurred after 2006.  Those  pertained  to  period
after 2006 were founded on general allegations with no details pleaded  such
as when such incident occurred  (year,  month,  date  etc.),  what  was  its
background, who witnessed, what the appellant actually said etc.
27)   In our view, the incidents which occurred prior to 2006 could  not  be
relied on to prove the instances of cruelty  because  they  were  deemed  to
have been condoned by the acts of the  parties.  So  far  as  the  instances
alleged after 2006 were concerned, they being isolated  instances,  did  not
constitute an act of cruelty.
28)   A petition seeking divorce on some isolated incidents alleged to  have
occurred 8-10 years prior to filing of the date of petition  cannot  furnish
a subsisting cause of action to  seek  divorce  after  10  years  or  so  of
occurrence of such incidents.  The incidents alleged should be of  recurring
nature or continuing one and they should  be  in  near  proximity  with  the
filing of the petition.
29)   Few isolated incidents of long past and that too found  to  have  been
condoned due to compromising behavior of the parties  cannot  constitute  an
act of cruelty within the meaning of Section 13 (1)(ia)of the Act.
30)   In our considered opinion, both the Courts below failed to  take  note
of this material aspect of the case and thus committed jurisdictional  error
in passing a decree for dissolution of marriage.
31)   We cannot, therefore, countenance  the  approach  of  the  High  Court
because it did not, in the first instance, examine the grounds taken in  the
petition to find out as to whether such grounds  constitute  mental  cruelty
or not?  The finding,  therefore,  though  concurrent  does  not  bind  this
Court.
32)   We are not impressed by the submission of the learned counsel for  the
respondent that an incident  which  occurred  somewhere  in  2010  when  the
appellant  visited  the  office  of  the  respondent  and  alleged  to  have
misbehaved with the respondent in front of other officers  would  constitute
an act of cruelty on  the  part  of  the  appellant  so  as  to  enable  the
respondent to claim divorce.  In the first place, no decree for  divorce  on
one isolated incident  can  be  passed.  Secondly,  there  could  be  myriad
reasons for causing such isolated incident. Merely  because  both  exchanged
some verbal conversation in presence  of  others  would  not  be  enough  to
constitute an act  of  cruelty  unless  it  is  further  supported  by  some
incidents of alike nature. It was not so.
33)   We are also not impressed by the submission  of  the  learned  counsel
for the respondent that since the appellant had made allegation against  the
respondent of his having extra-marital relation and  hence  such  allegation
would also constitute an act  of  cruelty  on  the  part  of  the  appellant
entitling the respondent to claim decree for dissolution of marriage.
34)   Similarly, we are also not impressed  by  the  submission  of  learned
counsel for the respondent that since both have been living  separately  for
quite some time and hence this may be  considered  a  good  ground  to  give
divorce.
35)   In  the  first  place,  the  respondent  did  not  seek  a  decree  of
dissolution of marriage on these grounds. Second,  the  grounds  of  cruelty
taken by the respondent in his petition  does  not  include  these  grounds.
Third, even if  some  stray  allegations  were  made  by  the  wife  in  her
pleading/evidence as were relied upon by  the  learned  counsel  are  of  no
relevance because, as mentioned above, these ground were not pleaded in  the
petition by the respondent for seeking a decree of divorce and nor were  put
in issue; and lastly, the burden being on the respondent, the same could  be
discharged by the respondent by pleading and then proving.  It  was  not  so
done. It is for these reasons,  we  cannot  accept  the  aforementioned  two
submissions for affirming the decree of divorce.
36)   This takes us to the next question as to  whether  the  appellant  was
able to make out any case for restitution of  conjugal  rights  against  the
respondent.
37)   Having perused her petition and evidence, we are of the view that  the
appellant is entitled for  a  decree  for  restitution  of  conjugal  rights
against the respondent.
38)   In our considered view, as it  appears  to  us  from  perusal  of  the
evidence that it  is  the  respondent  who  withdrew  from  the  appellant's
company without there being any reasonable cause to do so. Now that we  have
held on facts that the respondent failed to make out  any  case  of  cruelty
against the appellant, it is clear to us that  it  was  the  respondent  who
withdrew from the company of the appellant without reasonable cause and  not
the vice versa.
39)   In view of foregoing discussion, the appeals succeed and are  allowed.
The impugned judgment is set aside. As a result, the petition filed  by  the
respondent (husband) under Section 13(1) of the Act seeking  dissolution  of
marriage is dismissed. As a consequence thereof, the  marriage  between  the
parties is held to subsist whereas  the  petition  filed  by  the  appellant
against the respondent under Section 9 of the  Act  seeking  restitution  of
conjugal right is allowed. A decree for restitution of  conjugal  right  is,
accordingly, passed against the respondent.
40)   We hope and trust that the parties would now realize their duties  and
obligations  against  each  other  as  also  would   realize   their   joint
obligations as mother and father towards  their  grown  up  daughters.  Both
should, therefore, give quite burial to their  past  deeds/acts  and  bitter
experiences and start living together and see that their daughters are  well
settled in their respective lives.  Such reunion, we feel, would be  in  the
interest of all family members  in  the  long  run  and  will  bring  peace,
harmony and  happiness.  We  find  that  the  respondent  is  working  as  a
"Caretaker" in the Government Department (see Para 4 of  his  petition).  He
must, therefore, be the "Caretaker" of his own family that being  his  first
obligation and at the same time attend to his Government duties to  maintain
his family.


………...................................J.
                                  [R.K. AGRAWAL]


….……..................................J.
                                [ABHAY MANOHAR SAPRE]
      New Delhi;
March 08, 2017
-----------------------
18