Divorce granted to husband on cruelty grounds when highly educated wife alleged allegation against husband.

 

“For considering dissolution of marriage at the instance of a spouse who allege mental cruelty, the result of such mental cruelty must be such that it is not possible to continue with the matrimonial relationship. In other words, the wronged party cannot be expected to condone such conduct and continue to live with his/her spouse.

The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of education and also the status of the parties, in order to determine whether the cruelty alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party. In Samar Ghosh Vs. Jaya Ghosh1, this Court gave illustrative cases where inference of mental cruelty could be drawn even while emphasizing that no uniform standard can be laid down and each case will have to be decided on its own facts.

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In The Supreme Court of India

( Civil Appellate Jurisdiction)

 [Civil Appeal Nos. 3786-3787 of 2020]

Joydeep Majumdar Vs. Bharti Jaiswal Majumdar

Hrishikesh Roy, J.

1. Heard Mr. Gopal Sankaranarayanan, the learned Senior Counsel appearing for the appellant (Husband). Also heard Mr. Ahmad Ibrahim, learned counsel appearing for the respondent (Wife).

2. The challenge in these appeals is to the analogous judgment and order dated 25.6.2019 in the First Appeal No. 81 of 2017 and First Appeal No. 82 of 2017 whereby the High Court of Uttarakhand had allowed both appeals by reversing the common order dated 4.7.2017 of the Family Court, Dehradun. Before the Family Court, the appellant succeeded with his case for dissolution of marriage but the respondent failed to secure a favourable verdict in her petition for restitution of conjugal rights.

3. The appellant is an Army Officer with M.Tech qualification. The respondent is holding a faculty position in the Government P G College, Tehri with Ph.d degree. They got married on 27.9.2006 and lived together for few months at Vishakhapatnam and at Ludhiana. But from the initial days of married life, differences cropped up and since 15.9.2007, the couple have lived apart.

4. Following the estrangement, the appellant earlier applied for divorce from the Family Court at Vishakhapatnam. The respondent then filed a petition against the respondent in the Dehradun Court for restitution of conjugal rights. Later, when she learnt of the case filed by the appellant at Vishakhapatnam, the respondent filed Transfer Petition (C) No. 1366/2011 before this Court. The appellant appeared before the Supreme Court and stated that the case at Vishakhapatnam would be withdrawn. This Court then recorded the following order:

"Counsel for the respondent states that the respondent would withdraw his petition pending before the Family Court at Visakhapatnam, Andhra Pradesh and in case he has to file any petition seeking any relief against the petitioner (his estranged wife), he will file the petition only before the proper Court at Dehradun, Uttarakhand.

In view of the statement made at the Bar, the petitioner is left with no grievance. The transfer petition is disposed of. We may, however, observe that in case the respondent files a petition at Dehradun, the Dehradun Court shall take it up and dispose it of expeditiously and without any undue loss of time."

5. In the divorce proceeding, the appellant pleaded that he was subjected to numerous malicious complaints by the respondent which have affected his career and loss of reputation, resulting in mental cruelty. On the other hand, the respondent in her case for restitution of conjugal rights contended that the husband without any reasonable cause had deserted her and accordingly she pleaded for direction to the appellant, for resumption of matrimonial life.

6. The Family Court at Dehradun analogously considered both cases. The learned judge applied his mind to the evidence led by the parties, the documents on record and the arguments advanced by the respective counsel and gave a finding that the respondent had failed to establish her allegation of adultery against the husband.

It was further found that the respondent had subjected the appellant to mental cruelty with her complaints to the Army and other authorities. Consequently, the Court allowed the appellant's suit for dissolution of marriage and simultaneously dismissed the respondent's petition for restitution of conjugal rights.

7. The aggrieved parties then filed respective First Appeals before the Uttarakhand High Court. On consideration of the pleadings and the issues framed by the trial Court, the High Court noted that cruelty is the core issue in the dispute. The Court then proceeded to examine whether the wife with her complaints to various authorities including the Army's top brass, had treated the appellant with cruelty to justify his plea for dissolution of marriage.

While it was found that the wife did write to various authorities commenting on the appellant's character and conduct, the Division Bench opined that those cannot be construed as cruelty since no court has concluded that those allegations were false or fabricated.

According to the Court, the conduct of the parties against each other would at best be squabbles of ordinary middle class married life. Accordingly, the High Court set aside the decree for dissolution of marriage and allowed the respondent's suit for restitution of conjugal rights, under the impugned judgment.

8. Challenging the High Court's decision, Mr. Gopal Sankaranarayanan, the learned Senior Counsel highlights that the respondent had filed a series of complaints against the appellant before the superior officers in the Army upto the level of the Chief of Army Staff and to other authorities and these complaints have irreparably damaged the reputation and mental peace of the appellant.

The appellant cannot therefore be compelled to resume matrimonial life with the respondent, in the face of such unfounded allegations and cruel treatment. Moreover, matrimonial life lasted only for few months and the couple have been separated since 15.9.2007 and after all these years, restitution would not be justified or feasible.

9. Per contra, Mr. Ahmad Ibrahim, the learned counsel submits that the respondent is keen to resume her matrimonial life with the appellant. According to the counsel, the respondent wrote letters and filed complaints only to assert her legal right as the married wife of the appellant and those communications should therefore be understood as efforts made by the wife to preserve the marital relationship.

It is further contended that only because the appellant had filed the divorce case before the Vishakhapatnam Court and had obtained an ex-parte order, the respondent was constrained to write to various authorities to assert her right as the legally wedded wife of the appellant.

10. For considering dissolution of marriage at the instance of a spouse who allege mental cruelty, the result of such mental cruelty must be such that it is not possible to continue with the matrimonial relationship. In other words, the wronged party cannot be expected to condone such conduct and continue to live with his/her spouse.

The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of education and also the status of the parties, in order to determine whether the cruelty alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party. In Samar Ghosh Vs. Jaya Ghosh1, this Court gave illustrative cases where inference of mental cruelty could be drawn even while emphasizing that no uniform standard can be laid down and each case will have to be decided on its own facts.

11. The materials in the present case reveal that the respondent had made several defamatory complaints to the appellant's superiors in the Army for which, a Court of inquiry was held by the Army authorities against the appellant. Primarily for those, the appellant's career progress got affected. The Respondent was also making complaints to other authorities, such as, the State Commission for Women and has posted defamatory materials on other platforms. The net outcome of above is that the appellant's career and reputation had suffered.

12. When the appellant has suffered adverse consequences in his life and career on account of the allegations made by the respondent, the legal consequences must follow and those cannot be prevented only because, no Court has determined that the allegations were false. The High Court however felt that without any definite finding on the credibility of the wife's allegation, the wronged spouse would be disentitled to relief. This is not found to be the correct way to deal with the issue.

13. Proceeding with the above understanding, the question which requires to be answered here is whether the conduct of the respondent would fall within the realm of mental cruelty. Here the allegations are levelled by a highly educated spouse and they do have the propensity to irreparably damage the character and reputation of the appellant. When the reputation of the spouse is sullied amongst his colleagues, his superiors and the society at large, it would be difficult to expect condonation of such conduct by the affected party.

14. The explanation of the wife that she made those complaints in order to protect the matrimonial ties would not in our view, justify the persistent effort made by her to undermine the dignity and reputation of the appellant. In circumstances like this, the wronged party cannot be expected to continue with the matrimonial relationship and there is enough justification for him to seek separation.

15. Therefore, we are of the considered opinion that the High Court was in error in describing the broken relationship as normal wear and tear of middle class married life. It is a definite case of cruelty inflicted by the respondent against the appellant and as such enough justification is found to set aside the impugned judgment of the High Court and to restore the order passed by the Family Court.

The appellant is accordingly held entitled to dissolution of his marriage and consequently the respondent's application for restitution of conjugal rights stands dismissed. It is ordered accordingly.

16. With the above order, the appeals stand disposed of leaving the parties to bear their own cost.

.......................J. (Sanjay Kishan Kaul)

.......................J. (Dinesh Maheshwari)

.......................J. (Hrishikesh Roy)

 

Irretrievable breakdown of marriage is not a ground for divorce in India under Hindu Marriage Act.

In the matter of Darshan Gupta vs. Radhika Gupta, (2013) 9 SCC 149. Towards the same end, the learned counsel for the appellant advanced yet another submission. The learned counsel representing the appellant sought dissolution of marriage on the ground that the matrimonial ties between the parties had irretrievably broken down. It was, therefore, the contention of the learned counsel for the appellant that this Court would be justified in annulling the marriage between the parties, especially when the parties have lived apart for more than 12 years. Inviting this Courts attention to the intervention at the instance of this Court, in compliance wherewith the parties had made a last-ditch effort to live together, and had actually taken up residence in an independent flat in Hyderabad on 29-9-2011, it was pointed out that they could not persuade themselves into a relationship of cordiality. It was, therefore, sought to be suggested that there was no likelihood of the parties ever living together as husband and wife. It was accordingly submitted that this Court should consider the annulment of the matrimonial ties between the parties on the ground of irretrievable breakdown of marriage.

At the present juncture, it is questionable as to whether the relief sought by the learned counsel for the appellant on the ground of irretrievable breakdown of marriage is available to him. The reason for us to say so is based on a judgment rendered by this Court in Vishnu Dutt Sharma v. Manju Sharma, wherein this Court has held as under:

10. On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature.

If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for Parliament to enact or amend the law and not for the courts. Hence, we do not find force in the submission of the learned counsel for the appellant.

There has been a lot of brainstorming with regard to the efficacy and societal impact that this ground would have if it is made as a ground for divorce. On the recommendations of the Law Commission of India, the Legislature in its wisdom would amend the Hindu Marriage Act to bring within its fold the ground of irretrievable breakdown of marriage. However it is expected that watertight safeguards are introduced so as not to send the message that now divorce has become a cakewalk.

In the matter of Sangeetha Vs Jitender Bhandari, The Hon’ble Madras High Court held that” Coming to the point raised by the learned Senior Counsel for the respondent/husband that there is irretrievable breakdown of marriage, the same cannot be invoked in this case, as one of the parties, viz. the appellant/wife is interested in living with the respondent/husband, which is quite evident from the fact that she did not even think of filing a petition claiming monthly maintenance from her husband. That apart, irretrievable breakdown of marriage has not been incorporated as a ground for divorce under the Hindu Marriage Act, 1955 and this Court is unable to accept the contention of the learned Senior Counsel appearing for the respondent to grant divorce on the ground of irretrievable breakdown of marriage.”

Divorce on grounds of Mental & Physical Cruelty under Hindu Marriage Act. Judgement

Divorce on grounds of Mental & Physical Cruelty under Hindu Marriage Act.

The expression 'cruelty' has not been defined in the Hindu Marriage Act. 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 a 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. Cruelty can be physical or mental. In the present case there is no allegation of physical cruelty alleged by the plaintiff. What is alleged is mental cruelty and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. It is settled law that the instances of cruelty are not to be taken in isolation but to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the plaintiff has been subjected to mental cruelty due to conduct of the other spouse. In the decision in Samar Ghosh case (supra), this Court set out illustrative cases where inference of 'mental cruelty' can be drawn and they are only illustrative and not exhaustive.

The Honourable Supreme Court in Savitri Pandey vs. Prem Chandra Pandey, reported in (2002) 2 SCC 73, has held as follows:

6. Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(ia) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. 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 the instant case both the trial court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent. Concurrent findings of fact arrived at by the courts cannot be disturbed by this Court in exercise of powers under Article 136 of the Constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly shows that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life

. In Suman Singh vs. Sanjay Singh, reported in (2017) 4 SCC 85, the Apex Court has held that:

12. 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". 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.

Divorce on Grounds of Cruelty under Hindu Marriage Act, 1955.

(Where the wife leveled false allegations of illicit relationship with another Lady.)

 In Hemwanti Tripathi vs. Harish Narain Tripathi, 181 (2011) DLT 237, it is also held that :

"14........That the ratio of Ashok Kumar v. Santosh Sharma (supra) and Savitri Bachman (supra) 

wherein it was held that a decree of divorce on the ground of cruelty can be passed on the strength of false, baseless, scandalous and malicious allegations in the written statement by one party on the other is thus found applicable to the facts of the present case because in the case at hand the husband has not led any evidence in support of his allegations. What surprises this Court the most is that despite the fact that the Trial Court gave the entire findings in favour of the Appellant but still passed the judgment against the Appellant merely on the ground that the acts alleged by the Petitioner against the Respondent at best can be termed as wear and tear of daily life and does not amount to cruelty. The learned Trial Court further held against the Appellant because she failed to produce any close relative including her uncle who was living in neighborhood to prove the instance of beatings given by the Respondent on various dates. This Court fails to comprehend as to how such a view could be taken by the learned Trial Court as clearly serious and malicious allegations of the Appellant having relationship with one Sadhu and her staying out of the house during nights also levelled by the Respondent and as per the settled legal position, casting such aspersions on the character of the other spouse has the affect of causing deleterious affect on the mind of such spouse and the same is a worse form of cruelty. It has not been denied by the Respondent that no evidence was led by him to prove that the Appellant used to go out during night to stay with that Sadhu. The Respondent has also not given any reasons in the Ex. PW 1/1 to severe his relationship with the Appellant.

In the matter of : AJEET PANWAR Vs BABITA ( Delhi High Court).

29. It is a case where not only false allegations were made against the appellant/husband and in-laws but they were also got arrested and later on acquitted on charges being found to be false. This in itself amounts to cruelty. Even the attempt by the respondent/wife to commit suicide so as to get his in-laws including unmarried Nanad and married Nanad implicated in itself is an act of cruelty on her part upon her husband and in-laws.

30. Learned Judge Family Court failed to consider all these aspects while dismissing the petition seeking divorce on account of cruelty. Learned Judge Family Court failed to note that in matrimonial pleadings appellant was not required to establish the case beyond reasonable doubt like any criminal trials but on preponderance of probabilities. Both the acts independently were sufficient to prove cruelty and grant of a decree of divorce to the appellant/husband.

31. The learned Judge Family Court in our estimate failed to approve and appreciate the pleadings of the parties and their evidence under correct legal perspective.

32. The impugned judgment is not sustainable and is set aside.

Divorce on Grounds of irretrievable broken down under Hindu Marriage Act.

In the matter of : Sardar Avtar Singh vs Amarjeet Kaur Gandhi ( Delhi High Court)

As the parties are living separately for more than sixteen years and there has been no reconciliation and the marriage has been irretrievable broken down, it is just and proper that the marriage between the parties is dissolved by decree of divorce for the reasons stated in paras 12 to 19.

12. Besides the instances of cruelty detailed in the petition, there was another instance of cruelty i.e. the scandalous allegations leveled by the respondent against the appellant of illicit relationship with one Parvinder Kaur. This allegation was made by the respondent in the cross examination of the appellant as against all settled law, the learned Trial Court wrongly rejected this ground of cruelty by simply holding that one single act cannot be treated as cruelty. The relevant part of the judgment to this effect is reproduced hereunder :

"...The counsel for petitioner has contended that the respondent has also inflicted cruelty upon the petitioner as during cross examination, it was suggested to him that he had illicit relations with one Parvinder Kaur and was residing with the said woman. The counsel for petitioner objected to said cross examination of the petitioner being beyond pleadings of the respondent, so, counsel for respondent was not allowed to put further question to that effect to the petitioner. Admittedly, there are no pleadings of the respondent that the petitioner had illicit relations with one Parvinder Kaur and this suggestion to the petitioner was given beyond pleadings. Even perusal of the testimony of the respondent shows that once she had tried to contact the petitioner when he was residing at Rohini, she found one another lady inside the house and petitioner on that occasion had asked the respondent to leave the place or he would break her legs and throw her from the fourth floor. This incident appeared to have taken place subsequent to the filing of the petition and it should have been brought on record by the respondent through her counsel as subsequent event, however, it has not been done so in the present case. No doubt, leveling of scandalous allegations without proof do amount to mental cruelty but in the present case, keeping in view the totality of the circumstances and the conduct of the petitioner one single act of the respondent that she disclosed before the court that petitioner was found living with another woman cannot be treated as cruelty for dissolution of their marriage, particularly, when the respondent till date wants to keep her thirty years old marriage with the petitioner alive...."

19. It is the admitted position that the parties are living separately since January, 1995, i.e. for more than sixteen years. The allegations of cruelty is also such which makes reconciliation between the parties have "irretrievable broken down" and as such there is no reason to carry on with the broken or dead marriage and continuation with such a marriage will cause further mental cruelty to the appellant. In such cases, it is expedient and necessary to dissolve the marriage with decree of divorce as it has been held in Samar Ghosh vs. Jaya Ghosh, (2007) 4 SCC 511, the relevant part is reproduced hereunder :

"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 endeavor 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."

In the another matter : Satish Sitole Vs Smt. Ganga( The Apex Court )

 “Having dispassionately considered the materials before us and the fact that out of 16 years of marriage the appellant and the respondent had been living separately for 14 years, we are also convinced that any further attempt at reconciliation will be futile and it would be in the interest of both the parties to sever the matrimonial ties since the marriage has broken down irretrievably.”

Alleged adultery on husband by wife not proved/ divorce granted on grounds of cruelty.

 Prior to the 1976 amendment to the Hindu Marriage Act 1955, cruelty was not a ground for grant of divorce. It was only a ground for judicial separation under Section 10 thereto. However, with the amendment in the year 1976, cruelty was incorporated as a ground for dissolution of the Hindu Marriage. Simultaneously, the words "as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious to the petitioner to live with the other party" has been deleted. The statute no longer requires that proof. In a matrimonial dispute, the same set of facts may lead to different conclusions because the interpretation would depend upon the context of N.G. Dastane(Dr) .v S. Dastane (1975)2 SCC 326 Manisha Tyagi v Deepak Kumar (2010)4 SCC 339 the parties and the complexion of the case. The Courts are not to search for a standard in life to determine cruelty in a complaint of cruel treatment by one spouse against the other spouse or his/her relatives. A set of facts stigmatized as cruelty in one case is so in another case. Cruelty may allegedly depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their cultural orientation and the human values in which they are imbued.

The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health 9 Vijaykumar Ramchandra Bhat v Neela Vijaykumar Bhate (2003)6 SCC 334 of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible."

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                            IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Reserved on: 08.05.2014

                                              Pronounced on: 21.08.2014

+      FAO NO.295/2000, CMs. 1065-67/2000, 740/2001, 7490/2006,

       4499/2009 & 20065/2010

       MRS. ANIL SINGH                            ..... Appellant

                                                                         Through:        Mr. R.K. Gupta with  Singh, Advs.

                         versus

       DR. NARENDER SINGH                          ….. Through:          Mr. Rajiv Bahl, Advocate

       CORAM:

       HON'BLE MR. JUSTICE NAJMI WAZIRI

    MR. JUSTICE NAJMI WAZIRI

1. The present appeal challenges the judgment and decree dated 7.2.2000 of the Additional District Judge ("Trial Court") whereby the respondent's ("husband") petition for dissolution of marriage against the appellant ( "wife") under sections 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act ( the " Act") was allowed and the marriage was accordingly dissolved.

2. The facts leading to the present appeal are that the parties got married on 16.10.1988, a son viz. Master Amit was born to them in 1991. They lived in their matrimonial house, which was allotted to the husband by virtue of his being the Chief Medical Officer, CGHS, Delhi. The wife is employed with the National Airport Authority. Presently only the wife and their son live in the matrimonial house. It is stated that the parties could not live together after 5.5.1992. These facts remain uncontroverted.

3. It is the case of the husband that the wife treated him and his family members with repeated cruelty and failed to perform her duties as a wife, hence dissolution of the marriage was sought. The attempts to reconciliation failed. The husband alleged that one day the wife's behaviour became unbearable as a result of which he left the matrimonial house but only for that day. When he tried re-entering the house, the wife refused to let him in. She also did not allow the husband to meet or spend any time with their son. In reply, the wife denied all these allegations. She alleged that it was the husband who abandoned her alongwith their son, without assigning any reason therefor and further that the husband alongwith his family members was cruel towards her.

4. The Trial Court recorded in detail the various acts and instances of cruelty committed by the wife against the husband and his family; of the several attempts at reconciliation which failed and that the wife withdrew herself from the company of her husband and his family. It was also noted that the wife had filed a criminal complaint with the CAW Cell, which according to the husband, was only to harass him and his family. In her Written Statement (WS), the wife, while denying the allegations of desertion and cruelty, submitted that it was in fact the husband who had abandoned her and their minor son without any reason nor had he returned to the matrimonial house ever since; that the husband was committing adultery with his colleague at work, thereby subjecting the wife to unimaginable mental cruelty and furthermore, that the wife was threatened from disclosing this to any member of their family. The Written Statement however, denied all efforts as claimed to have been made by the husband towards reconciliation. Based on the submissions above mentioned, the Trial Court framed two issues being;

i. Whether the wife (appellant herein) treated the husband with cruelty;

ii. Whether the wife deserted the husband without any justifiable reason.

5. While adjudicating the first issue, the impugned order noted in detail the submissions of the husband, consisting of various instances including the dates, on which the wife was said to be cruel and negligent towards the husband and his family. It was submitted that the criminal complaint was filed with the CAW Cell after the filing the divorce petition and that a sum of Rs 8 lakhs was demanded from him in consideration for withdrawing the criminal complaint. It was noted that the wife had refused to have any sexual relations with respondent after the birth of their son. The Trial Court noted that during cross-examination, the wife did not put any questions to the husband pertaining to the allegations of her trying to immolate herself, or questions which would disprove the allegation of lock and denial of sexual relations between them. Admittedly the parties no longer live together in the matrimonial home and only the wife lives in it with the son. The accommodation was allotted to the husband. The appellant has failed to bring anything on record to show that she tried to reconcile her differences with the respondent. The Trial Court noted the submission of the wife that the parties lived together till 1993 was contradicted by the wife herself in the cross-examination, where it was said that there were no relations between the parties since 5 th May 1992. On a more serious allegation of adultery being levelled against the husband, the impugned order noted that the wife did not put any question to the respondent during his cross-examination to prove or strengthen the allegation. The Court noted that apart from mere allegations in the Written Statement, no evidence was brought forward by the appellant, to prove adultery by the husband. The Court noted that a mere statement that the respondent seemed to be in the company of the colleague often, does not establish the allegation of adultery. The lack of evidence and the absence of any of the allegations of adultery led the Trial Court to conclude that the wife failed to make out a case of adultery by the husabnd.

6. The Court held that since the appellant admitted to existence of certain efforts by the husband, the argument of the appellant that the husband, after abandoning her and their son, made no effort to reconcile their differences, stood negated. Accordingly, this aspect was decided in favour of the husband. The Court held that the husband had mentioned several dates when the wife was said to have ill-treated him, these dates were neither refuted nor reasonably explained by the wife. The lack of denial thereof would amount to admitting such instances of cruelty, which only strengthened the case of the husband. Based on these findings, the Trial Court held that the answer to the first issue was in the affirmative i.e. there was cruelty towards the husband.

7. On the issue concerning desertion by the wife/ appellant, the Trial Court noticed that the respondent/ husband was forced to leave his matrimonial house given the prevailing circumstances. It was the case of the husband that he left the matrimonial house on 5.5.92 but was not allowed to re-enter it when he tried to as allegedly the house lock had been changed. This was denied by the appellant. In her Written Statement, she contended that they were not cohabiting since 1993. However, during cross examination, she admitted that they were not living together in the matrimonial house since 1992, thereby contradicting her own averments in the Written Statement. The Trial Court recorded that the appellant had failed to prove her case of living separately from her husband for justifiable reasons or that the husband was a consenting party to his living separately from his wife and their minor son. The Trial Court noted the contention of the husband, that the threat of the wife to commit suicide by immolating herself, had forced him to leave the matrimonial house. This allegation against the wife was remained uncontroverted by her, thereby leading the Court to conclude that she had admitted it. The Court further noted that the wife had agreed to live with the respondent after the death of his colleague, with whom he was allegedly being adulterous, only proves that she had herself wilfully distanced the respondent. The Trial Court concluded that she had intended to live separately from her husband much prior to 1993 and that she had no intention of living together in the matrimonial house anymore. Holding that the husband had made out a case of cruelty and desertion, which the wife was unable to disprove, the Trial Court passed an order dissolving their marriage under sections 13 (1)(i-a) and 13 (1)(i-b) of the Act. This appeal challenges the said dissolution order.

8. The learned counsel for the appellant/wife contended before this Court that the impugned order has failed to recognize the fact that it was the respondent/ husband who was cruel towards the appellant and it was the husband who deserted her and their minor son. The counsel contended that the Trial Court failed to take note that the respondent had alleged instances amounting to cruelty only after 1992 and that there was no case of cruelty or of desertion till 1992; and that the husband had failed to show the Court that there was cruelty towards him and desertion by the wife. He submits that the Trial Court fell into error by failing to notice that the husband's examination-in-chief was not corroborated; that failure of the wife's counsel to put suggestions to the husband in his cross- examination, for denying acts of cruelty and desertion alleged against the wife cannot be construed as a substitute for the burden of proof placed on the husband to prove his case. It was submitted that when the husband had condoned all acts of cruelty by the appellant, he cannot now claim dissolution of marriage on the same "condoned" grounds of cruelty and desertion; that this was a point in law which the Trial Court failed to take note of; that till date the appellant alongwith their son live in the matrimonial home at the expense of the respondent and continue to avail the residential benefits by virtue of her status as his wife, which only goes to show that the respondent has indeed forgiven and condoned the acts of the appellant. The learned counsel submits that in the circumstances, a petition for divorce was contradictory and not maintainable.

9. The learned counsel further contended that every method possible to reconcile differences between the parties was attempted, despite the husband committing adultery; that it was gross error on the part of the Trial Court to not take into consideration these efforts of reconciliation; that it was settled law that divorce could not be granted merely because the wife had failed to prove charges levelled by her in her Written Statement (WS); whereas it was for the husband to disprove the charges levelled in the wife's WS. The counsel relied on Naval Kishore Somani v. Poonam Somani1 in support of this submission. He argued that since the respondent has failed to disprove allegations of adultery, the respondent cannot be said to have discharged the burden of proof and the Trial Court fell into error in passing the decree of divorce. He also contended that the intervention of the police and issuance of summons of the husband does not constitute an act of cruelty per se and that the husband cannot quote such instances to build a case of cruelty against the wife. It was submitted that even if the wife had not shown a reasonable cause for her living apart from her husband, the latter is still required to show the Court that the desertion was without any justifiable cause.

10. The impugned judgment addresses the contentions raised and submissions made on the three issues in separate parts i.e., cruelty, desertion and adultery. In adjudicating the three issues, this Court has arrived at the following conclusion:

Cruelty

11. In a petition for divorce filed on grounds of cruelty, the petitioner is required to show that he/she was subjected to such conduct which was 1 AIR 1999 A.P 1 harmful to her/his existence. It is settled law that in matrimonial cases, the fact of cruelty would need to be assessed from the peculiar facts of each case. The Supreme Court has held that cruelty is a course or conduct of one, which adversely affects the other. Cruelty may be mental or physical, intentional or unintentional. The cruelty alleged may largely depend upon the type of life the parties are accustomed to; their economic and social conditions and the cultural and human values to which they are exposed or attach importance to. Each case has to be decided on its own merits.2 The term Cruelty, has not been defined in the Hindu Marriage Act, hence its contextual definition has evolved through judicial pronouncements. It is more than mere physical and mental cruelty. The facts shown by the petitioner must indicate to the Court, the existence of such behaviour which may be objectionable or that may cause discomfort in the marriage. It is settled law that so far as proving the facts/instances of cruelty alleged in the petition are concerned, the burden of proof lies on the one alleging it. The burden of proof will lie on the party who affirms a fact and not on the party which denies it. The petitioner must therefore prove that the respondent has treated him with cruelty under the Act.3

12. In the present instance, the husband alleged that the wife had treated him and his family with cruelty and ultimately deserted him without any reason. He gave an account of a series of instances with specific dates on which he was subject to cruelty. It is unnecessary to recount the facts again. However, it would be pertinent to note that the wife alleges the same acts of cruelty and desertion to have been inflicted upon her by the Naveen Kohli v. Neelu Kohli (2006)4 SCC 558 husband. The Court would be required to see what constitutes cruelty. Such determination will vary from case to case. Acts which are part of the wear and tear of the marital life cannot be defined as acts of cruelty. It has been held by the Supreme Court that there is no longer a standard required to classify an act as cruelty. It holds:

"27. Now it would be sufficient to show that the conduct of one of the spouses is so abnormal and below the accepted norm that the other spouse could not reasonably be expected to put up with it. The conduct is no longer required to be so atrociously abominable which would cause a reasonable apprehension that it would be harmful or injurious to continue the cohabitation with the other spouse. Therefore to establish cruelty it is not necessary that physical violence should be used. However, continued ill-treatment, cessation of marital intercourse, studied neglect, indifference of one spouse to the other may lead to an inference of cruelty." 4

13. Prior to the 1976 amendment to the Hindu Marriage Act 1955, cruelty was not a ground for grant of divorce. It was only a ground for judicial separation under Section 10 thereto. However, with the amendment in the year 1976, cruelty was incorporated as a ground for dissolution of the Hindu Marriage. Simultaneously, the words "as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious to the petitioner to live with the other party" has been deleted. The statute no longer requires that proof. In a matrimonial dispute, the same set of facts may lead to different conclusions because the interpretation would depend upon the context of N.G. Dastane(Dr) .v S. Dastane (1975)2 SCC 326 Manisha Tyagi v Deepak Kumar (2010)4 SCC 339 the parties and the complexion of the case. The Courts are not to search for a standard in life to determine cruelty in a complaint of cruel treatment by one spouse against the other spouse or his/her relatives. A set of facts stigmatized as cruelty in one case is so in another case. Cruelty may allegedly depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their cultural orientation and the human values in which they are imbued.5

14. The husband had alleged acts of cruelty against the wife including her withdrawal from his company and also his family. The Trial Court was to examine this aspect. The wife in her WS had alleged adultery by the husband with his colleague. This allegation was never proved. It is a most severe allegation which, if false, by itself amounts to cruelty. The learned counsel for the respondent submits that the wife had consistently failed to perform her marital obligations, i.e., she had withdrawn from his society - more particularly keeping husband away from her society and company for years, and indeed did not allow him to meet their son on the latter's birthdays. These allegations were found by the Trial Court to be true. It is not always the harsh words or physical violence that only amounts to cruelty. Unspoken hostility or continued neglect, sullenness or indifferent coupled with the spouse refusing to cohabit or have any marital relationship with the other spouse could be termed as cruelty. Denying or abstaining from physical relations unilaterally without any justifiable reasons amounts to cruelty towards the other spouse. In the present case, the wife had failed to disprove the allegation made by the husband. On the 5 Shobha Rani vs. Madhukar Reddi, (1988) 1 SCC 105 contrary, her allegation of adultery remained unproved. Her allegations were false, it amounted to cruelty. Therefore, this Court is of the view that the Trial Court was right in concluding that the husband had been subjected to cruelty by the wife. There is no infirmity in the impugned order apropos the conclusion arrived at in this regard. Desertion

15. The husband had alleged desertion by the wife. He would also need to prove it. The concept of desertion has been explained in Halsbury's Laws of England as;

"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. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases.6"

Just as the incidence of cruelty, desertion too has to be proven by the spouse so alleging it against the other. In doing so, the factum and the intention of desertion have to be proved. Such desertion ought to be for continuous a period of two years prior to filing of the petition. It would need to be shown that such desertion was without justifiable cause for withdrawal from the society of the other spouse. The events narrated in the divorce petition indicated that the husband was made to leave the matrimonial house, since the wife was extending threats of committing suicide, only to implicate him. Furthermore, she did not permit the (3rd Edn) Vol 12 husband to re-enter the house when he tried to return back home immediately, after having left for a day on 5.5.1992. The husband only left the home with the intention of returning back. He showed that he left for temporarily, only to tide-over the threat extended to him; the temporary removal of his physical presence was merely in his own interest as well as in the interest of his family to overcome the momentary matrimonial upheaval occasioned by wife's threat to commit suicide. His having endeavoured to re-enter the house was thwarted by the wife as the house lock had been changed. This aspect remained uncontroverted by the wife. Therefore, the only conclusion would be that the wife had prevented the return of the husband. The husband could not be said to have deserted the wife. On the contrary, the wife had continued to keep him away from her society and company. Therefore, although the wife was residing in the accommodation allotted to the husband, she had deserted him. She had shown no reason why she did not allow the husband to return. The factum of her withdrawing from the society of the husband without reason and continued to do so for more than two years showed her intention and factum to desert the husband.

16. This Court notices that there are no averments as to the causes or reasons or events leading to the alleged desertion by the husband except for a bald averment or the assertion by the wife that the husband deserted her without any reason. There is no proof on the record to support the aforesaid bald averment. The lack of relevant and appropriate material or proof would only lead to the conclusion that there was no just reason for not allowing the husband to go into the matrimonial home and that the wife always intended to desert the husband. A mere counter-allegation will not suffice to make out a case of the desertion of the appellant. The Trial Court was therefore, right in holding and concluding that the husband had established desertion by the wife. This Court is of the view that the reason for and the conclusion arrived at by the Trial Court cannot be faulted.

Adultery

17. The wife had alleged adultery by the husband. This was never proved. She never filed any criminal case or complaint elsewhere nor had she mentioned such a serious matter, if it were so, to any member of the family. Logically then, only the appellant seemed to have knowledge of the said adultery. In the cross-examination no questions were put to the husband on the alleged adultery. The allegation was levelled only in the WS. It was a mere bald statement unsupported by any proof. Incidentally, a colleague with whom the adulterous relationship was alleged had passed away much prior to the filing of the divorce petition. Apart from the wife's statement in this regard, there was nothing on record either by way of document or in deposition or cross-examination to prove the allegation of adultery. Therefore, there was really nothing which the husband could be required to negate. The learned counsel for the appellant submitted that the wife having made the allegation of adultery, it was for the husband to have negated such an allegation. He relied upon Naval Kishore Somani v. Poonam Somani7 to contend that where the husband does not traverse the charges made by the wife in the AIR 1999 A.P.1 WS, he failed to discharge that burden. It is noteworthy that in the aforesaid case, the Court concluded that the allegation of adultery made in the counter affidavit or WS by the respondent, if unproven or found false and baseless would itself constitute cruelty against the other spouse. But to hold that simply because the husband had failed to disprove such charges made by the wife in her WS would be stretching the limit of reasonableness. For adultery to be proven, cogent and substantive evidence has to be brought on record by the parties alleging so. In the present case, no such evidence was brought on record by the wife. In Somani (supra), the appellant seemed to have merely rebutted the allegations with a bald statement during the appellant's examination in chief. Whereas the respondent therein had provided enough proof to substantiate her allegations. There is clear difference in the facts of that case and the present appeal. The Trial Court concluded that there was lack of evidence from the wife in proving an allegation of adultery against the husband. Allegations of adultery have a consequence of damaging one's reputation, taking away the dignity of that person in the eyes of his family, friends and the society. The burden of proving adultery is placed on the individual who makes such an allegation. In the absence of any proof in this regard, the Trial Court rightly concluded that the charge of adultery against the husband was not proven.

18. The learned counsel for the respondent relied upon Savitri Bulchandani v. Mulchand Bulchdani8 which was a wife's appeal against the Trial Court decision granting divorce to the husband on the ground of 8 AIR 1987 Delhi 52 the cruelty and desertion. The Trial Court had found various documents authored by the wife threatening the husband and accusing him of having a bad character. The Court held that inability of the wife to prove the allegation of adultery against the husband amounted to cruelty. It observed:

"(44) In view of what is stated above, I am of the view that the appellant wife has persistently made false and baseless defamatory allegations against the husband regarding illicit relations with other women. She has failed to prove any of her assertions in accordance with law. Her own testimony in this regard is unworthy of reliance, for the reasons already stated. In the circumstances I am of the view that these false and baseless allegations which have been made by the wife in the written statement are sufficient in themselves, to bring home the charge of her having been cruel to the husband. In my view the husband is entitled to a decree of divorce on this ground alone."

19. In an appeal9 filed by the husband against the decree of divorce granted to the wife, the Supreme Court looked into the allegations against the wife made by the husband in his WS. The Court held:

"7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health 9 Vijaykumar Ramchandra Bhat v Neela Vijaykumar Bhate (2003)6 SCC 334 of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible."

20. What emerges from the aforesaid discussion is that wherever adultery is alleged by one spouse against the other and the allegation remains unproven, it constitutes cruelty against the accused spouse, since the allegation was a concerted and deliberate action which had the capacity to tarnish the reputation and lower the dignity of the other spouse. It would also cause immense mental trauma and stress to the accused party. Therefore, insofar as the wife had been unable to prove the allegation of adultery as made in her WS, it would constitute cruelty against the husband and this alone would be a ground on which divorce could have been granted. Besides, the husband had shown that he was prevented from being in the society of his wife because of her lacking him out and otherwise threatening to commit suicide so as to implicate the husband. He had shown that he had no intention to desert the wife or his son since he returned to the matrimonial home immediately after having left, for a day, on 5.5.1992. The wife's refusal to matrimonial relations with the husband and her false allegations of adultery constitute cruelty. The husband's divorce petition was justly allowed. This Court finds that the impugned order does not suffer from any infirmity or material irregularity. The respondent had sufficiently shown cruelty and desertion by the wife. The appeal is without merit and is accordingly dismissed. No orders as to costs.

NAJMI WAZIRI (JUDGE) AUGUST 21, 2014

Second Marriage during pendency of divorce appeal valid ?

 By a judgment dated 31.08.2009, the Additional

District Judge, North, Tis Hazari Court, Delhi allowed the

petition filed by Ms. Rachna Aggarwal under Section 13

(1) (i) (a) of the Hindu Marriage Act, 1955 (hereinafter

referred to as “the Act’) and dissolved the marriage

between her and the Appellant. By the said judgment

the petition filed under Section 9 of the Act by the

Appellant for restitution of conjugal rights was dismissed.

The Appellant filed appeals against the said judgment

and the operation of the judgment and decree dated

31.08.2009 was stayed by the High Court on 20.11.2009.

During the pendency of the Appeal, the Appellant and

Ms. Rachna Aggarwal reached a settlement before the

Mediation Centre, Tis Hazari Court, Delhi. According to

the terms of the settlement dated 15.10.2011, the

Appellant had to move an application for withdrawal of

the Appeals within 30 days. The Appellant filed an

application to withdraw the appeals before the High

Court in terms of the settlement dated 15.10.2011 which

was taken up on 28.11.2011 by the Registrar of the High

Court of Delhi. He recorded that there was a settlement

reached between the parties before the Mediation

Centre, Tis Hazari Court, Delhi and listed the matter

before the Court on 20.12.2011. The High Court

dismissed the appeals filed by the Appellant as

withdrawn in terms of the settlement by an order dated

20.12.2011. In the meanwhile, the Appellant married the

Respondent on 06.12.2011. Matrimonial discord

between the Appellant and the Respondent led to the

filing of a petition by the Respondent for declaring the

marriage as void under Section 5 (i) read with Section 11

of the Act. The main ground in the petition was that the

appeal filed by the Appellant against the decree of

divorce dated 31st August, 2009 was pending on the date

of their marriage i.e. 06.12.2011. The Family Court

dismissed the petition filed by the Respondent. The

Respondent challenged the judgment of the Family Court

in the High Court. By a judgment dated 10.08.2016, the

High Court set aside the judgment of the Family Court

and allowed the appeal of the Respondent and declared

the marriage between the Appellant and the Respondent

held on 06.12.2011 as null and void. Aggrieved by the

judgment of the High Court, the Appellant has

approached this Court.

2. As a pure question of law arises for our consideration

in this case, we make it clear that we are not dealing

with the merits of the allegations made by both sides.

The points that arises for consideration are:

a) Whether the dismissal of the appeal relates

back to the date of filing of the application

for withdrawal?

b) Whether the marriage dated 06.12.2011

between the Appellant and the Respondent

during the pendency of the appeal against

the decree of divorce is void?

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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No.18312 of 2017

MR. ANURAG MITTAL …… APPELLANT (S)

Versus

MRS. SHAILY MISHRA MITTAL …….. RESPONDENT (S)

J U D G M E N T

L. NAGESWARA RAO, J.

1. By a judgment dated 31.08.2009, the Additional

District Judge, North, Tis Hazari Court, Delhi allowed the

petition filed by Ms. Rachna Aggarwal under Section 13

(1) (i) (a) of the Hindu Marriage Act, 1955 (hereinafter

referred to as “the Act’) and dissolved the marriage

between her and the Appellant. By the said judgment

the petition filed under Section 9 of the Act by the

Appellant for restitution of conjugal rights was dismissed.

The Appellant filed appeals against the said judgment

and the operation of the judgment and decree dated

31.08.2009 was stayed by the High Court on 20.11.2009.

During the pendency of the Appeal, the Appellant and

Ms. Rachna Aggarwal reached a settlement before the

Mediation Centre, Tis Hazari Court, Delhi. According to

the terms of the settlement dated 15.10.2011, the

Appellant had to move an application for withdrawal of

the Appeals within 30 days. The Appellant filed an

application to withdraw the appeals before the High

Court in terms of the settlement dated 15.10.2011 which

was taken up on 28.11.2011 by the Registrar of the High

Court of Delhi. He recorded that there was a settlement

reached between the parties before the Mediation

Centre, Tis Hazari Court, Delhi and listed the matter

before the Court on 20.12.2011. The High Court

dismissed the appeals filed by the Appellant as

withdrawn in terms of the settlement by an order dated

20.12.2011. In the meanwhile, the Appellant married the

Respondent on 06.12.2011. Matrimonial discord

between the Appellant and the Respondent led to the

filing of a petition by the Respondent for declaring the

marriage as void under Section 5 (i) read with Section 11

of the Act. The main ground in the petition was that the

appeal filed by the Appellant against the decree of

divorce dated 31st August, 2009 was pending on the date

of their marriage i.e. 06.12.2011. The Family Court

dismissed the petition filed by the Respondent. The

Respondent challenged the judgment of the Family Court

in the High Court. By a judgment dated 10.08.2016, the

High Court set aside the judgment of the Family Court

and allowed the appeal of the Respondent and declared

the marriage between the Appellant and the Respondent

held on 06.12.2011 as null and void. Aggrieved by the

judgment of the High Court, the Appellant has

approached this Court.

2. As a pure question of law arises for our consideration

in this case, we make it clear that we are not dealing

with the merits of the allegations made by both sides.

The points that arises for consideration are:

a) Whether the dismissal of the appeal relates

back to the date of filing of the application

for withdrawal?

b) Whether the marriage dated 06.12.2011

between the Appellant and the Respondent

during the pendency of the appeal against

the decree of divorce is void?

3. The Family Court framed only one substantial issue

as to whether the marriage between the parties was null

and void on account of the contravention of Section 5 (i)

of the Act. It was held by the Family Court that the

judgment and decree of divorce dated 31.08.2009 is a

judgment in rem which was neither reversed nor set

aside by a superior court. As the judgment was

confirmed by the High Court, the marriage between the

parties stood dissolved w.e.f. 31.08.2009 itself. The

Family Court also observed that there is no provision in

the Act which declares a marriage in contravention of

Section 15 to be void. It was further held by the Family

Court that the effect of stay of the judgment by a

superior court is only that the decree of divorce remained

in abeyance but it did not become non-existent. On the

other hand, the High Court framed a question whether

the Appellant could have contracted a second marriage

after the decree of divorce was passed on 31.08.2009

notwithstanding the operation of the decree being

stayed. The High Court was of the opinion that any

marriage solemnized by a party during the pendency

of the appeal wherein the operation of the decree of

divorce was stayed, would be in contravention of Section

5 (i) of the Act.

4. Section 11 of the Act provides that any marriage

solemnized after commencement of the Act shall be null

and void if it contravenes any of the conditions specified

in Clauses (i), (iv) and (v) of Section 5. Clause (i) of

Section 5 places a bar on marriage by a person who has

a spouse living at the time of the marriage. Section 15 of

the Act which is relevant is as follows:

“15. Divorced persons. When may marry again.-

When a marriage has been dissolved by a decree of

divorce and either there is no right of appeal against the

decree or, if there is such a right of appeal, the time for

appealing has expired without an appeal having been

presented, or an appeal has been presented but has been

dismissed, it shall be lawful for either party to the

marriage to marry again.”

5. There is no dispute that the marriage between the

Appellant and the Respondent was held on 06.12.2011

during the pendency of the appeals filed by the Appellant

against the decree of divorce in favour of Ms. Rachna

Aggarwal. It is also clear from the record that the

appeals were dismissed as withdrawn on 20.12.2011

pursuant to an application for withdrawal that was placed

before the Registrar on 28.11.2011. The Family Court

has rightly held that the decree of divorce is a judgment

in rem.

6. It is pertinent to take note of the Proviso to Section 15

of the Act according to which it shall not be lawful for the

respective parties to marry again unless at the time of

such marriage at least one year has elapsed from the

date of the decree in the Court of first instance. This

Proviso was repealed w.e.f. 27.05.1976.2

 In Lila Gupta

v. Laxmi Narain

3 Rajender Kumar contracted second

marriage with Lila Gupta before the expiry of one year

from the date of decree of divorce. This Court was

concerned with a point relating to the marriage between

Rajender Kumar and Lila Gupta being void having been

contracted in violation of the Proviso to Section 15 of the

Act. In the said context this Court observed as follows:

“8. Did the framers of law intend that a marriage

contracted in violation of the provision contained in

1 Marsh v. Marsh 1945 AC 271

2 Hindu Marriage (Amendment ) Act, 1976, Act 68 of 1976

3 (1978) 3 SCC 258

the proviso to Section 15 to be void? While enacting

the legislation, the framers had in mind the question

of treating certain marriages void and provided for

the same. It would, therefore, be fair to infer as

legislative exposition that a marriage in breach of

other conditions the legislature did not intend to treat

as void. While prescribing conditions for valid

marriage in Section 5 each of the six conditions was

not considered so sacrosanct as to render marriage in

breach of each of it void. This becomes manifest from

a combined reading of Sections 5 and 11 of the Act. If

the provision in the proviso is interpreted to mean

personal incapacity for marriage for a certain period

and, therefore, the marriage during that period was

by a person who had not the requisite capacity to

contract the marriage and hence void, the same

consequence must follow where there is breach of

condition (iii) of Section 5 which also provides for

personal incapacity to contract marriage for a certain

period. When minimum age of the bride and the

bridegroom for a valid marriage is prescribed in

condition (iii) of Section 5 it would only mean personal

incapacity for a period because every day the person

grows and would acquire the necessary capacity on

reaching the minimum age. Now, before attaining the

minimum age if a marriage is contracted Section 11

does not render it void even though Section 18 makes

it punishable. Therefore, even where a marriage in

breach of a certain condition is made punishable yet

the law does not treat it as void. The marriage in

breach of the proviso is neither punishable nor does

Section 11 treat it void. Would it then be fair to

attribute an intention to the legislature that by

necessary implication in casting the proviso in the

negative expression, the prohibition was absolute and

the breach of it would render the marriage void? If

void marriages were specifically provided for it is not

proper to infer that in some cases express provision is

made and in some other cases voidness had to be

inferred by necessary implication. It would be all the

more hazardous in the case of marriage laws to treat

a marriage in breach of a certain condition void even

though the law does not expressly provide for it.

Craies on Statute Law, 7th Edn., P. 263 and 264 may

be referred to with advantage:

“The words in this section are negative words,

and are clearly prohibitory of the marriage being had

without the prescribed requisites, but whether the

marriage itself is void ... is a question of very great

difficulty. It is to be recollected that there are no

words in the Act rendering the marriage void, and I

have sought in vain or any case in which a marriage

has been declared null and void unless there were

words in the statute expressly so declaring

it (emphasis supplied). . . . From this examination of

these Acts I draw two conclusions. First, that there

never appears to have been a decision where words

in a statute relating to marriage, though prohibitory

and negative, have been held to infer a nullity unless

such nullity was declared in the Act. Secondly, that,

viewing the successive marriage Acts, it appears that

prohibitory words, without a declaration of nullity,

were not considered by the legislature to create a

nullity [Ed. Quoting Catterall v. Sweetman, (1845) 9

Jur 951, 954] .”

9. In the Act under discussion there is a specific

provision for treating certain marriages contracted in

breach of certain conditions prescribed for valid

marriage in the same Act as void and simultaneously

no specific provision having been made for treating

certain other marriages in breach of certain

conditions as void. In this background even though

the proviso is couched in prohibitory and negative

language, in the absence of an express provision it is

not possible to infer nullity in respect of a marriage

contracted by a person under incapacity prescribed

by the proviso.

10. Undoubtedly the proviso opens with a prohibition

that: “It shall not be lawful” etc. Is it an absolute

prohibition violation of which would render the act a

nullity? A person whose marriage is dissolved by a

decree of divorce suffers an incapacity for a period of

one year for contracting second marriage. For such a

person it shall not be lawful to contract a second

marriage within a period of one year from the date of

the decree of the Court of first instance. While

granting a decree for divorce, the law interdicts and

prohibits a marriage for a period of one year from the

date of the decree of divorce. Does the inhibition for a

period indicate that such marriage would be void?

While there is a disability for a time suffered by a

party from contracting marriage, every such disability

does not render the marriage void. A submission that

the proviso is directory or at any rate not mandatory

and decision bearing on the point need not detain us

because the interdict of law is that it shall not be

lawful for a certain party to do a certain thing which

would mean that if that act is done it would be

unlawful. But whenever a statute prohibits a certain

thing being done thereby making it unlawful without

providing for consequence of the breach, it is not

legitimate to say that such a thing when done is void

because that would tantamount to saying that every

unlawful act is void. As pointed out earlier, it would be

all the more inadvisable in the field of marriage laws.

Consequences of treating a marriage void are so

serious and far reaching and are likely to affect

innocent persons such as children born during the

period anterior to the date of the decree annulling the

marriage that it has always been considered not safe

to treat a marriage void unless the law so enacts or

the inference of the marriage being treated void is

either inescapable or irresistible. Therefore, even

though the proviso is couched in a language

prohibiting a certain thing being done, that by itself is

not sufficient to treat the marriage contracted in

contravention of it as void.”

7. In the said judgment, this Court also had occasion to

deal with the continuance of the marital tie even after

the decree of divorce for the period of incapacity as

provided in the Proviso to Section 15 of the Act. In the

said context, this Court held as follows:

“13. To say that such provision continues the

marriage tie even after the decree of divorce for the

period of incapacity is to attribute a certain status to

the parties whose marriage is already dissolved by

divorce and for which there is no legal sanction. A

decree of divorce breaks the marital tie and the

parties forfeit the status of husband and wife in

relation to each other. Each one becomes competent

to contract another marriage as provided by Section

15. Merely because each one of them is prohibited

from contracting a second marriage for a certain

period it could not be said that despite there being a

decree of divorce for certain purposes the first

marriage subsists or is presumed to subsist. Some

incident of marriage does survive the decree of

divorce; say, liability to pay permanent alimony but

on that account it cannot be said that the marriage

subsists beyond the date of decree of divorce. Section

13 which provides for divorce in terms says that a

marriage solemnised may on a petition presented by

the husband or the wife be dissolved by a decree of

divorce on one or more of the grounds mentioned in

that section. The dissolution is complete once

the decree is made, subject of course, to

appeal. But a final decree of divorce in terms

dissolves the marriage. No incident of such dissolved

marriage can bridge and bind the parties whose

marriage is dissolved by divorce at a time posterior to

the date of decree. An incapacity for second marriage

for a certain period does not have effect of treating

the former marriage as subsisting. During the period

of incapacity the parties cannot be said to be the

spouses within the meaning of clause (i), sub-section

(1) of Section 5. The word “spouse” has been

understood to connote a husband or a wife which

term itself postulates a subsisting marriage. The word

“spouse” in sub-section (1) of Section 5 cannot be

interpreted to mean a former spouse because even

after the divorce when a second marriage is

contracted if the former spouse is living that would

not prohibit the parties from contracting the marriage

within the meaning of clause (i) of sub-section (1) of

Section 5. The expression “spouse” in clause (i), subsection

(1) of Section 5 by its very context would not

include within its meaning the expression “former

spouse”.

(underlining ours)

8. After a comprehensive review of the scheme of the Act

and the legislative intent, this Court in Lila Gupta (supra)

held that a marriage in contravention of the proviso to

Section 15 is not void. Referring to Sections 5 and 11 of

the Act, this Court found that a marriage contracted in

breach of only some of the conditions renders the

marriage void. This Court was also conscious of the

absence of any penalty prescribed for contravention of

the proviso to Section 15 of the Act. This Court referred

to the negative expression “it shall not be lawful” used in

proviso to Section 15 which indicates that the prohibition

was absolute. In spite of the absolute prohibition, this

Court was of the view that a marriage contracted in

violation of the proviso to Section 15 was not void. There

was a further declaration that the dissolution of a

marriage is in rem and unless and until a Court of appeal

reversed it, marriage for all purposes was not subsisting.

The dissolution of the marriage is complete once the

decree is made, subject of course to appeal. This Court

also decided that incapacity for second marriage for a

certain period of time does not have the effect of treating

the former marriage as subsisting and the expression

‘spouse’ would not include within its meaning the

expression ‘former spouse’.

9. The majority judgment was concerned only with the

interpretation of proviso to Section 15 of the Act. Justice

Pathak in his concurring judgment referred to Section 15,

but refrained from expressing any opinion on its

interpretation.

Effective date of the Dismissal of Appeal

10. In case of a dissolution of marriage, a second

marriage shall be lawful only after dismissal of the

appeal. Admittedly, the marriage between the Appellant

and the Respondent was on 06.12.2011 i.e. before the

order of withdrawal was passed by the Court on

20.12.2011. There is no dispute that the application for

withdrawal of the appeal was filed on 28.11.2011 i.e.

prior to the date of the marriage on 06.12.2011. We

proceed to consider the point that whether the date of

dismissal of the appeal relates back to the date of filing

of the application for withdrawal of the appeal. Order XXI

Rule 89 (2) of the Code of Civil Procedure, 1908

(hereinafter referred to as “the CPC”) provides that

unless an application filed under Order XXI Rule 90 of the

CPC is withdrawn, a person shall not be entitled to make

or prosecute an application under Order XXI Rule 89 of

the CPC. In Shiv Prasad v. Durga Prasad,the

contention of the Appellant therein that an application

filed under the aforesaid Rule 90 does not stand

withdrawn until an order to the effect is recorded by the

Court, was not accepted. It was held that every

applicant has a right to unconditionally withdraw his

application and his unilateral act in that behalf is

sufficient. No order of the Court is necessary permitting

the withdrawal of the application. This Court concluded

that the act of withdrawal is complete as soon as the

applicant intimates the Court that he intends to withdraw

the application. The High Court of Bombay in Anil

Dinmani Shankar Joshi v. Chief Officer, Panvel

Municipal Council, Panvel followed the judgment of

this Court in Shiv Prasad (supra) and held that the said

judgment is applicable to suits also. The High Court

recognized the unconditional right of the plaintiff to

withdraw his suit and held that the withdrawal would be

4 (1975) 1 SCC 405

5 AIR 2003 Bom. 238, 239

13

complete as soon as the plaintiff files his purshis of

withdrawal.

11. Order XXIII Rule 1 (1) of the CPC enables the

plaintiff to abandon his suit or abandon a part of his

claim against all or any of the defendants. Order XXIII

Rule 1 (3) of the CPC requires the satisfaction of the

Court for withdrawal of the suit by the plaintiff in case he

is seeking liberty to institute a fresh suit. While

observing that the word abandonment in Order XXIII Rule

1 (1) of the CPC is “absolute withdrawal” which is

different from the withdrawal after taking permission of

the court, this Court held as follows6

:

“12. The law as to withdrawal of suits as enacted in

the present Rule may be generally stated in two parts:

(a) a plaintiff can abandon a suit or abandon a part

of his claim as a matter of right without the

permission of the court; in that case he will be

precluded from suing again on the same cause of

action. Neither can the plaintiff abandon a suit or a

part of the suit reserving to himself a right to bring a

fresh suit, nor can the defendant insist that the

plaintiff must be compelled to proceed with the suit;

and

(b) a plaintiff may, in the circumstances mentioned

in sub-rule (3), be permitted by the court to

withdraw from a suit with liberty to sue afresh on

the same cause of action. Such liberty being granted

6 K.S. Bhoopathy v. Kokila (2000) 5 SCC 458

by the Court enables the plaintiff to avoid the bar in

Order II Rule 2 and Section 11 CPC.”

12. Order XXIII Rule 1 (1) of the CPC gives an

absolute right to the plaintiff to withdraw his suit or

abandon any part of his claim. There is no doubt that

Order XXIII Rule 1 of the CPC is applicable to appeals as

well and the Appellant has the right to withdraw his

appeal unconditionally and if he makes such an

application to the Court, it has to grant it.7

 Therefore, the appeal is deemed to have been withdrawn on 28.11.2011

i.e. the date of the filing of the application for withdrawal.

On 06.12.2011 which is the date of the marriage

between the Appellant and the Respondent, Ms. Rachna

Aggarwal cannot be considered as a living spouse.

Hence, Section 5 (i) is not attracted and the marriage

between the Appellant and the Respondent cannot be

declared as void.

13. Sh. Sakha Ram Singh, learned Senior Counsel

appearing for the Respondent placed reliance on a

judgment of this Court in Lila Gupta (supra) to submit

that the marriage between the Appellant and the

7 Bijayananda Patnaik v. Satrughna Sahu (1962) 2 SCR 538, 550

Respondent held on 06.12.2011 is void as it was in

violation of Section 15 of the Act. He relied upon the

concurring judgment of Justice Pathak in support of his

submission that the findings pertaining to Proviso to

Section 15 cannot be made applicable to Section 15. He

submitted that there is a qualitative difference between

the period of incapacity set out in the Proviso during

which a second marriage cannot be contracted and the

bar for another marriage during the pendency of an

appeal. We have already noted that Justice Pathak

refrained from expressing any view on the expression of

Section 15 of the Act. However, the scope and purport of

Section 15 of the Act arise for consideration in the

present case.

Interpretation of Section 15

Interpretation has been explained by Cross in Statutory

Interpretation as:

"The meaning that the Court ultimately attaches to the

statutory words will frequently be that which it

believes members of the legislature attached to them,

or the meaning which they would have attached to the

words had the situation before the Court been present

to their minds. Interpretation is the process by which

the Court determines the meaning of a statutory

8 Cross Statutory Interpretation, Ed. Dr. John Bell & Sir George Ingale, Second

Edition (1987)

16

provision for the purpose of applying it to the situation

before it”.

14. The Hindu Marriage Act is a social welfare

legislation and a beneficent legislation and it has to be

interpreted in a manner which advances the object of the

legislation. The Act intends to bring about social

reforms.9

 It is well known that this Court cannot interpret

a socially beneficial legislation on the basis as if the

words therein are cast in stone.10

15. The predominant nature of the purposive

interpretation was recognized by this Court in Shailesh

Dhairyawan v. Mohan Balkrishna Lulla

11 which is as

follows:

“ 33. We may also emphasise that the statutory

interpretation of a provision is never static but is

always dynamic. Though the literal rule of

interpretation, till some time ago, was treated as the

“golden rule”, it is now the doctrine of purposive

interpretation which is predominant, particularly in

those cases where literal interpretation may not

serve the purpose or may lead to absurdity. If it

brings about an end which is at variance with the

purpose of statute, that cannot be countenanced.

Not only legal process thinkers such as Hart and

Sacks rejected intentionalism as a grand strategy for

statutory interpretation, and in its place they offered

purposivism, this principle is now widely applied by

9 Parayankandiyal Eravath Kanapravan Kalliani Amma v. K. Devi (1996) 4 SCC 76, para 68

10 Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1, para 40

11 (2016) 3 SCC 619

17

the courts not only in this country but in many other

legal systems as well.”

16. In Salomon v. Salomon & Co Ltd.

12

, Lord

Watson observed that :

“In a Court of Law or Equity, what the legislature

intended to be done or not to be done can only be

legitimately ascertained from that which it has chosen

to enact, either in express words or by reasonable and

necessary implication.”

In Black-Clawson International Ltd. v. Papierwerke

Waldhof-Aschaffenburg AG13

, Lord Reid held that:

“We often say that we are looking for the intention of

Parliament, but that is not quite accurate. We are

seeking the meaning of the words which Parliament

used. We are seeking not what Parliament meant but

the true meaning of what they said.”

17. It is also relevant to take note of Dy. Custodian

v. Official Receiver

14

 in which it was declared that “if it

appears that the obvious aim and object of the statutory

provisions would be frustrated by accepting the literal

construction suggested by the Respondent, then it may

be open to the Court to inquire whether an alternative

construction which would serve the purpose of achieving

the aim and object of the Act, is reasonably possible”.

12 [1897] AC 22 at 38

13 [1975] AC 591, p. 613

14 (1965) 1 SCR 220 at 225 F - G

18

18. Section 15 of the Act provides that it shall be

lawful for either party to marry again after dissolution of

a marriage if there is no right of appeal against the

decree. A second marriage by either party shall be

lawful only after dismissal of an appeal against the

decree of divorce, if filed. If there is no right of appeal,

the decree of divorce remains final and that either party

to the marriage is free to marry again. In case an appeal

is presented, any marriage before dismissal of the appeal

shall not be lawful. The object of the provision is to

provide protection to the person who has filed an appeal

against the decree of dissolution of marriage and to

ensure that the said appeal is not frustrated. The

purpose of Section 15 of the Act is to avert complications

that would arise due to a second marriage during the

pendency of the appeal, in case the decree of dissolution

of marriage is reversed. The protection that is afforded

by Section 15 is primarily to a person who is contesting

the decree of divorce.

19

19. Aggrieved by the decree of divorce, the Appellant

filed an appeal and obtained a stay of the decree.

During the pendency of the appeal, there was a

settlement between him and his former spouse.

After entering into a settlement, he did not intend to

contest the decree of divorce. His intention was made

clear by filing of the application for withdrawal. It cannot

be said that he has to wait till a formal order is passed in

the appeal, or otherwise his marriage dated 06.12.2011

shall be unlawful. Following the principles of purposive

construction, we are of the opinion that the restriction

placed on a second marriage in Section 15 of the Act till

the dismissal of an appeal would not apply to a case

where parties have settled and decided not to pursue the

appeal.

20. It is not the case of the Appellant that the

marriage dated 06.12.2011 is lawful because of the

interim order that was passed in the appeals filed by him

against the decree of divorce. He rested his case on the

petition filed for withdrawal of the appeal. The upshot of

20

the above discussion would be that the denouement of

the Family Court is correct and upheld, albeit for different

reasons. The conclusion of the High Court that the

marriage dated 06.12.2011 is void is erroneous. Hence,

the judgment of the High Court is set aside.

21. Accordingly, the Appeal is allowed.

……….……..J.

[S.A. BOBDE]

………..………………..J.

 [L. NAGESWARA RAO]

NEW DELHI,

August 24th 2018

21

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 18312 Of 2017

MR. ANURAG MITTAL ... APPELLANT(S)

Versus

MRS. SHAILY MISHRA MITTAL ... RESPONDENT(S)

J U D G M E N T

S.A.BOBDE, J.

1. I am in agreement with the view taken by Nageswara Rao J.

but it is necessary to state how the question before us has already

been settled by the decision in Lila Gupta v. Laxmi Narain and Ors.

1

.

Even when the words of the proviso were found to be prohibitory in

clear negative terms – “it shall not be lawful” etc., this Court held that

the incapacity to marry imposed by the proviso did not lead to an

inference of nullity, vide para 9 of Lila Gupta (supra). It is all the

more difficult to infer nullity when there is no prohibition; where there

are no negative words but on the other hand positive words like “it

shall be lawful.” Assuming that a marriage contracted before it

became lawful to do so was unlawful and the words create a

disability, it is not possible to infer a nullity or voidness vide paras 9

1

(1978) 3 SCC 258

1

and 10 of Lila Gupta case. The Court must have regard to the

consequences of such an interpretation on children who might have

been conceived or born during the period of disability.

2. The observations in Lila Gupta’s case are wide. They are

undoubtedly made in the context of the proviso to sec 15 of the

Hindu Marriage (Amendment) Act, 19762

, since deleted. The proviso

opened with the prohibition that “it shall not be lawful.” This Court

considered the question whether a marriage contracted in violation of

the proviso would be a nullity or void and came to the conclusion that

though the proviso is couched in prohibitory and negative language,

in the absence of an express provision it was not possible to infer

nullity in respect of a marriage contracted by a person under

incapacity prescribed by the proviso.

What is held in essence is that if a provision of law prescribes

an incapacity to marry and yet the person marries while under that

incapacity, the marriage would not be void in the absence of an

express provision that declares nullity. Quae incapacity imposed by

statute, there is no difference between an incapacity imposed by

negative language such as “it shall not be lawful” or an incapacity

imposed by positive language like “it shall be lawful (in certain

conditions, in the absence of which it is impliedly unlawful)”. It would

thus appear that the law is already settled by this Court that a

marriage contracted during a prescribed period will not be void

because it was contracted under an incapacity. Obviously, this would

2 Act 68 of 1976 have no bearing on the other conditions of a valid marriage. The

decision in Lila Gupta case thus covers the present case on law.

3. In any event, in the present case we are satisfied that the

appellant’s marriage was not subsisting when he married again. He

had filed an application for withdrawal of his appeal against the

decree for dissolution and had done nothing to contradict his

intention to accept the decree of dissolution.

 .....................………J.

 [ S.A. BOBDE ]

NEW DELHI,

AUGUST 24, 2018

3