Divorce on
ground of Mental Cruelty in section13(1)(i-a)-HMA
"It is impossible to give a comprehensive definition of
cruelty, but when reprehensible conduct or departure from the normal standards
of conjugal kindness causes injury to health or an apprehension of it, it is, I
think, cruelty if a reasonable person, after taking due account of the
temperament and all the other particular circumstances would consider that the
conduct complained of is such that this spouse should not be called on to
endure it.
##############################################################
Mental cruelty in Section 13(1)(i-a) can broadly be
defined as that conduct which inflicts upon the other party such mental pain
and suffering as would make it not possible for that party to live with the
other. In other words, mental cruelty must be of such a nature that the parties
cannot reasonably be expected to live together. The situation must be such that
the wronged party cannot reasonably be asked to put up with such conduct and
continue to live with the other party. It is not necessary to prove that the
mental cruelty is such as to cause injury to the health of the petitioner.
While arriving at such conclusion, regard must be had to the social status,
educational level of the parties, the society they move in, the possibility or
otherwise of the parties ever living together in case they are already living
apart and all other relevant facts and circumstances which it is neither
possible nor desirable to set out exhaustively. What is cruelty in one case may
not amount to cruelty in another case. It is a matter to be Determined in each
case having regard to the facts and circumstances of that case. If it is a case
of accusations and allegations, regard must also be had to the context in which
they were made.
V. Bhagat vs D. Bhagat on 19 November, 1993
Equivalent citations: 1994 AIR 710, 1994 SCC (1) 337
Bench: J Reddy, B.P.
PETITIONER:
V. BHAGAT
Vs.
RESPONDENT:
D. BHAGAT
DATE OF JUDGMENT19/11/1993
BENCH:
JEEVAN REDDY, B.P. (J)
BENCH:
JEEVAN REDDY, B.P. (J)
KULDIP SINGH (J)
CITATION:
1994 AIR 710 1994 SCC (1)
337
JT 1993 (6) 428 1993 SCALE
(4)488
ACT:
HEADNOTE:
JUDGMENT:
The Judgment of the Court
was delivered by B.P. JEEVAN REDDY, J.- This is an unusual case calling for an
unusual solution. The husband sued for divorce on the ground that the wife is
guilty of adulterous course of life. The wife not only denied the allegation
she attributed the allegation to lack of mental equilibrium of the husband. The
husband then amended his petition; he alleged a new ground for divorce viz.,
mental cruelty. According to him, the allegations made in the written statement
per se constitute cruelty which entitle him straight away to a divorce without
going into the original allegation of adultery. He is also relying upon certain
questions put to him in cross-examination by the counsel for the respondent and
the said counsel's explanatory statement made in that connection. We may
elaborate.
2.The petitioner-applicant,
Shri V. Bhagat is an Advocate practicing in this Court and Delhi High Court. He
is now aged about 55 years. The respondent wife is working at present as the
Vice-President of ITDC, a Public Sector Corporation. She is aged about 50
years. They were married in the year 1966. They have two grown-up children now
a son and a daughter. The son is a doctor while the daughter holds an MBA
degree and is working with an American Company in California.
3.The respondent was
working in a Television Company at the time of her marriage. After the birth of
a child she left the job in August 1967. The respondent started working again
from the year 1972 onwards. To start with she was employed in a Travel Agency.
Somewhere around 1978-79, the petitioner began suspecting her of infidelity.
According to him, when he questioned the respondent of her adulterous
behaviour, she admitted the same and asked to be pardoned. The wife denies
this. She says, she never made any such admission and that the allegation is a
totally false one. From 1980 onwards the petitioner was making attempts to
obtain a divorce by consent. The respondent was not willing. On May 28, 1985,
he instituted the present petition for divorce in the District Court, Delhi.
The divorce petition runs into more than 160 paragraphs. The main ground is
adultery. According to the husband, the wife is an incorrigible adulteress. The
respondent flied the written statement denying the allegations. The written
statement, it anything, is even lengthier and more voluminous than the divorce
petition.
341
She has denied the
allegation in toto. According to her, the husband is like Othello a
pathologically suspicious character.
4.On February 5, 1986, the
petition for divorce was withdrawn and transferred to the High Court of Delhi.
It was assigned to Justice H.C. Goel. The learned Judge struck out a large
number of paragraphs from the petition for divorce. Against the order of the
learned Judge, the petitioner approached this Court by way of an appeal which
was allowed on February 19, 1987. On that occasion, this Court directed the
learned Chief Justice of the Delhi High Court to nominate a learned Judge to
take up the divorce petition and dispose it of as expeditiously as possible. It
was directed that the matter may be heard on day-to-day basis as far as
possible.
5.In May 1987, the
petitioner filed an interlocutory application before the High Court for passing
a decree of divorce on the basis of the averments made by the respondent in her
written statement/counter. According to him, those allegations amounted to
cruelty against him and furnished adequate grounds for passing a decree of
divorce. He then filed an application in this Court to withdraw the said
interlocutory application to the file of this Court and grant the relief prayed
for by him. This Court refused to do so. The interlocutory application filed by
him was dismissed by the High Court. Thereafter, he amended his petition for
divorce and again filed another interlocutory application for granting divorce
on the basis of the averments made by the respondent in her written statement.
This application too was dismissed by the High Court. It is stated that the
special leave petition filed against the same was also dismissed by this Court.
The trial is in progress now. Petitioner's evidence is over and the wife's
statement is being recorded. At this stage, the present application I.A. No. 1
of 1993 is filed in Civil Appeal No. 424 of 1987 (which was disposed of on
February 19, 1987). The prayer in the application is to give appropriate
directions for speedy disposal of the divorce petition. In this application the
petitioner has made the following averments: the petition for divorce is
pending over the last 8 years. The respondent has indulged in dilatory tactics
to protract the litigation. The respondent spent more than 11 months in cross-examining
the petitioner alone (February 19, 1992 to January 1993). While the
examination-in-chief is mere 30 pages, the cross-examination runs into more
than 150 pages most of it irrelevant and unnecessary. The trial Judges are
unable to stop the vexatious cross-examination by the counsel for the
respondent. The repeated directions from this Court to dispose of the divorce
petition as expeditiously as possible and on day-to-day basis did not have the
desired effect. As many as five learned Judges of the High Court have tried
this matter, but still it is at the stage of recording of evidence. The
evidence of the respondent wife is yet to be completed. As a matter of fact, on
May 1, 1991, this Court was constrained to observe: "We are inclined to
agree with the counsel for the petitioner that the directions have not been
followed and the matter has unnecessarily been protracting. We request the
learned Chief Justice of the High Court to personally look into the matter and
allot the case to a learned Judge on
342
the appellate side who can
deal with the matter day-to-day and have it disposed of within a reasonable
time, say, within three to four months from today."
The petitioner complains
that even though a period of more than 28 months has elapsed since the said order,
the matter is still at the stage of trial.
6.In her counter filed to
this application, the respondent stated that she is in no way responsible for
the delay in disposal of the divorce petition and that in fact the petitioner
himself is responsible for the delay. She submitted that almost every order
passed by the Delhi High Court was challenged by him by way of special leave
petition in this Court and that he has also been making allegations against the
learned Judges trying the petition as and when they passed orders unfavourable
to him.
7.In this application (I.A.
No. 1 of 1993), this Court directed on May 3, 1993, both the parties to be
present in person in the Court with a view to explore the possibility of a
settlement. On the next date, i.e. May 7, 1993, the respondent was not present.
The matter was adjourned to July 19, 1993. On July 19, 1993, the parties were
heard for some time and the Court suggested to the parties to find a via media
to settle the matter. The parties sought for a short adjournment. The matter
was adjourned to August 6, 1993. On 6th August, the matter was again adjourned
to 16th August on which date we were told that the parties could not arrive at
any settlement, whereupon the arguments of the counsel for the parties were heard.
In the background of the orders of this Court made in this IA, referred to
above, learned counsel for the petitioner reiterated his plea to grant a
divorce on the ground of cruelty evidenced by the averments in her counter and
the questions put to him in the cross-examination. Counsel submitted that the
marriage between the parties has broken down irretrievably. Having regard to
the nature of allegations and counter-allegations made by the parties against
each other, there is hardly any room for their coming together. The petitioner
has been trying to obtain divorce right from the year 1980. For five years he
tried to get it by consent, failing which he approached the Court. Eight years
have passed by and in spite of the repeated orders of this Court, even the
trial is not yet over. The petitioner is now 55 years old. A good part of the
lives of both the parties has been spent in rancour and litigation. Dehors the
allegations of adultery originally made in the petition for divorce, the
petitioner is entitled to divorce on the basis of the additional ground put in
by way of amendment viz., cruelty mental cruelty by wife. The averments made in
her counter and the questions put by her counsel in the cross-examination of
the petitioner do constitute clear acts of cruelty. In view of the said
averments/questions, no further material is necessary to establish the said
additional ground. In her written statement, the respondent has alleged that
the petitioner is "suffering from mental hallucination" that his is a
"morbid mind for which he needs expert psychiatric treatment" and
further that "the petitioner is suffering from paranoid disorder. He needs
expert psychological treatment.... He is incoherent in his thinking.... The
petitioner is a mental patient. The petitioner needs treatment by a
psychiatrist
343
to whom he was directed by
his own sister.... He is a patient and needs treatment and restoration of
normal mental health.... The petitioner needs psychological treatment to make
him act a normal person" and so on and so forth. In the cross-examination
of the petitioner, the Senior Advocate appearing for the respondent wife put
several questions suggesting that the petitioner and the several members of his
family including his grandfather are lunatics and that a streak of insanity is
running in the entire family. When he protested against the said questions, the
learned Senior Advocate made the following statement in the Court "all of
your (petitioner's) family including your grandfather and others are lunatics with
streaks of insanity running in the entire family; this is the respondent's
case; and that is why these questions have been asked." The said questions
were put and the said statement was made by her Advocate at the instructions of
the respondent. Notwithstanding the dismissal of a similar application by the
Delhi High Court and the dismissal of a special leave petition there against by
this Court, this is a fit and proper case and this is the most appropriate
stage at which the petitioner should be granted divorce on the ground of
cruelty. The situation has become intolerable, says the counsel.
8.The learned counsel for
the respondent, on the other hand, reiterated his submission that the
respondent was not responsible for the delay; that in fact the petitioner has
himself been delaying the proceedings and that the questions put to him in
cross-examination and the defence taken in the written statement are merely the
reactions of the wife to unjustified and unwarranted aspersions cast upon her
character. The respondent has only been trying to explain that the several
serious allegations levelled against her are the products of a sick mind and
are mere figments of his imagination. She submitted that her children and even
the sisters and mother of the petitioner are siding her in this dispute and
that the petitioner alone, alienated from his entire family, is persecuting
her. It is submitted that she is only trying to defend her honour, self-respect
and standing in society. It is pointed out that she is holding a fairly high
office in a Public Sector Corporation and it is her duty to herself, her
children and to the families of her husband and herself to disprove the
unfounded allegations levelled against her. She has submitted that she is not
agreeable to divorce on any ground whatsoever and that she is always prepared
to live with the petitioner. It is only the petitioner who is keeping himself
away from her company and has confined himself to one room, whereas she, her
children and her mother-in-law live in the house as usual.
9.It is said that marriages
are made in heaven, that may be so, but this one has turned into a hell for
sure. The allegations and the counter allegations are indicative of the intense
hatred and rancour between the parties. Any reconciliation is out of question.
The question before us is what in all the facts and circumstances of the case,
should we do? Three courses are open. First is to look to the prayer in the
application and reject it in view of two earlier directions to the same effect.
Second, to make another request (third one) to the High Court to dispose of the
matter expeditiously and
344
third, to explore whether
any solution can be found to the predicament in which the parties are now
placed. So far as the first two alternatives are concerned, it may be noted,
there have been two such directions by this Court earlier, one in the year 1987
and the other in the year 1991. The advisability of a third such direction
request is open to question. If two such requests/directions had no effect, it
is doubtful that a third direction would yield any better result. It may be an
exercise in futility besides being inadvisable. In the facts and circumstances
of this case, we are inclined to explore the third alternative.
10.That this is a rather
unusual case can hardly be disputed. The divorce petition has been pending for
more than 8 years. With a view to expedite its disposal it was transferred from
the District Court to the High Court. This Court repeatedly requested (in 1987
and 1991) the High Court to try the matter on a day-to-day basis and dispose it
of expeditiously. The petition is still at the stage of trial. It is not
possible for us to apportion the blame. Each side attributes it to the other.
Five learned Judges of the High Court have tried their hand at the case, but it
still remains at the stage of trial. The cross-examination of the petitioner
alone took one full year. The cross-examination of the respondent is yet to
begin. Having regard to the number of allegations made by the petitioner in his
divorce petition and the material relied upon by him, it may safely be presumed
that the cross-examination of the respondent would take as much time as the
cross-examination of the petitioner, if not more. Each party, it appears, is out
to punish the other for what the other is supposed to have said or done. This
appears to be the single thought ruling their lives today. A good part of the
lives of both the parties has been consumed in this litigation and yet the end
is not in sight. The assertion of the wife that she wants to live with the
husband even now, appears to be but a mere assertion. After all the allegations
made against her in the petition and the allegations levelled by her against
the petitioner, living together is out of question. Rapprochement is not in the
realm of possibility. For the parties to come together, they must be
superhumans, which they are not. The parties have crossed the point of no
return long ago. The nature of the allegations levelled against each other show
the intense hatred and animosity each bears towards the other. The marriage is
over except in name. The desirability of allowing the continuation of the
divorce proceedings in the particular facts and circumstances of this case, is
open to grave doubt. The matter may take more than a year at the minimum to
conclude in the High Court and then there is the right of appeal to the losing
party. Both the parties are well- settled. The children are grown-up and are on
their own. It is significant to note that this is not a case where allegations
are made only by one party against the other; both have levelled serious
allegations against the other. The husband calls the wife an adulteress and the
wife calls the husband a lunatic.
11.The question, however,
is whether the allegations made by the respondent wife do constitute mental
cruelty. The allegations in her written statement and her counsel's explanatory
statement in Court have already 345 been set out hereinabove. The respondent
has asserted in her written statement that she "has every right to make
correct statement of facts to defend herself against the wanton, imaginary and
irresponsible allegations".
12.Clause (i-a) of Section
13 specifies cruelty as one of the grounds of divorce. Insofar as relevant,
Section 13 reads:
"13. Divorce.- (1) Any
marriage solemnised, whether before or after the commencement of this Act, may,
on a petition presented by either the husband or the wife, be dissolved by a
decree of divorce on the ground that the other party- (i-a) has, after the
solemnization of the
marriage, treated the petitioner with cruelty; or"
13.Cruelty contemplated by
the sub-clause is both physical and mental. We are concerned herein with the
latter. It is not possible to define 'mental cruelty' exhaustively. As observed
by Lord Reid in Gollins v. Gollins1: "No one has ever attempted to give a
comprehensive definition of cruelty and I do not intend to try to do so. Much
must depend on the knowledge and intention of the respondent, on the nature of
his (or her) conduct, and on the character and physical or mental weaknesses of
the spouses, and probably no general statement is equally applicable in all
cases except the requirement that the party seeking relief must show actual or
probable injury to life, limb or health.
It is easy to see that the
origin of this requirement is the decision in the well-known case of Russell v.
Russell2."
To the same effect are the
observations of Lord Pearce (at p. 695; All ER p. 992):
"It is impossible to
give a comprehensive definition of cruelty, but when reprehensible conduct or
departure from the normal standards of conjugal kindness causes injury to
health or an apprehension of it, it is, I think, cruelty if a reasonable
person, after taking due account of the temperament and all the other
particular circumstances would consider that the conduct complained of is such
that this spouse should not be called on to endure it.
I agree with Lord Merriman
whose practice in cases of mental cruelty was always to make up his mind first
whether there was injury or apprehended injury to health. In the light of that
vital fact the court has then to decide whether the sum total of the
reprehensible conduct was cruel. That depends on whether the cumulative conduct
was sufficiently weighty to say that from a reasonable person's point of view,
after a consideration of any excuse which this respondent might have in the 1
1964 AC 644: (1963) 2 All ER 966
2 (1895-99) All ER Rep 1
:(1897) AC 395 346
circumstances, the conduct
is such that this petitioner ought not to be called on to endure it.
The particular
circumstances of the home, the temperaments and emotions of both the parties
and their status and their way of life, their past relationship and almost
every circumstance that attends the act or conduct complained of may all be
relevant."
The reference to
"Injury to life, limb or health" in the above passages must be
understood in the context of the requirements of the divorce law then obtaining
in the United kingdom.
14.The change of law
brought about by the Hindu Marriage Laws (Amendment) Act, 1976 deserves notice.
Prior to the said Amendment Act, cruelty was not a ground for claiming divorce
under the Hindu Marriage Act. It was a ground only for claiming judicial
separation under Section 10. By the said Amendment Act, cruelty was made a
ground for divorce as well evidently in recognition of the changing mores of
the society. While doing so, it is significant, the words "as to cause a
reasonable apprehension in the mind of the petitioner that it will be harmful
or injurious for the petitioner to live with the other party," qualifying
the expression "cruelty" in Section 10(1)(b), were omitted by
Parliament. It is, therefore, not necessary for the party claiming divorce to
prove that the cruel treatment is of such a nature as to cause an apprehension
a reasonable apprehension in his/her mind that it will be harmful or injurious
for him/her to live with the other party. Now what does this change mean?
Surely, the deletion of the said words could not have been without a purpose.
The cruelty of the nature described in Section 10(1)(b) has been explained in
this Court's decision in N.G. Dastane v. S. Dastane3. Chandrachud, J. speaking
for the Bench, held that where an allegation of cruelty is made, the enquiry
has to be
"... whether the
conduct charged as cruelty is of such a character as to cause in the mind of
the petitioner a reasonable apprehension that it will be harmful or injurious
for him to live with the respondent".
The learned Judge held
further: (SCC pp. 337- 38, paras 30-3 1)
"It is not necessary,
as under the English law, that the cruelty must be of such a character as to
cause 'danger' to life, limb or health or as to give rise to a reasonable
apprehension of such a danger. Clearly, danger to life, limb or health or a
reasonable apprehension of it is a higher requirement than a reasonable
apprehension that it is harmful or injurious for one spouse to live with the
other. But under Section 10(1)(b), harm or injury to health, reputation, the
working-career or the like, would be an important consideration in determining
whether the conduct of the respondent amounts to cruelty. Plainly, what we must
determine is not whether the petitioner has proved the charge of cruelty having
regard to the principles of English law, but whether the petitioner
3 (1975) 2 SCC 326: AIR
1975 SC 1534
347
proves that the respondent
has treated him with such cruelty as to cause a reasonable apprehension in his
mind that it will be harmful or injurious for him to live with the
respondent."
This requirement is no
longer present in Section 13(1)(i-a).
15. If so, the question
arises what kind of cruel treatment does clause (i- a) contemplate? In
particular, what is the kind of mental cruelty that is required to be
established? While answering these questions, it must be kept in mind that the
cruelty mentioned in clause (i-a) is a ground now for divorce as well as for
judicial separation under Section
10. Another circumstance to
be kept in mind is that even where the marriage has irretrievably broken down,
the Act, even after the 1976 (Amendment) Act, does not permit dissolution of
marriage on that ground. This circumstance may have to be kept in mind while
ascertaining the type of cruelty contemplated by Section 13(1)(i-a).
16. Mental cruelty in
Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon
the other party such mental pain and suffering as would make it not possible
for that party to live with the other. In other words, mental cruelty must be
of such a nature that the parties cannot reasonably be expected to live
together. The situation must be such that the wronged party cannot reasonably
be asked to put up with such conduct and continue to live with the other party.
It is not necessary to prove that the mental cruelty is such as to cause injury
to the health of the petitioner. While arriving at such conclusion, regard must
be had to the social status, educational level of the parties, the society they
move in, the possibility or otherwise of the parties ever living together in
case they are already living apart and all other relevant facts and
circumstances which it is neither possible nor desirable to set out
exhaustively. What is cruelty in one case may not amount to cruelty in another
case. It is a matter to be Determined in each case having regard to the facts
and circumstances of that case. If it is a case of accusations and allegations,
regard must also be had to the context in which they were made.
17.At this stage, we may
refer to a few decisions of this Court rendered under Section 13(1)(i-a). In
Shobha Rani v. Madhukar Reddi4, Justice K. Jagannatha Shetty, speaking
for the Division Bench, held: (SCC pp. 108-09, paras 4 and 5) "Section
13(1)(i-a) uses the words 'treated the petitioner with cruelty'. The word
'cruelty' has not been defined. Indeed it could not have been defined. It has
been used in relation to human conduct or human behaviour. It is the conduct in
relation to or in respect of matrimonial duties and obligations. It is a course
of conduct of one which is adversely affecting the other. The cruelty may be
mental or physical, intentional or unintentional. If it is physical the court
will have no problem to determine it. It is a question of fact and degree. If
it is mental the problem presents difficulty. First, the enquiry must begin as
4 (1988) 1 SCC 105:1988 SCC
(Cri) 60
348
to the nature of the cruel
treatment. Second, the impact of such treatment on the mind of the spouse.
Whether it caused reasonable apprehension that it would be harmful or injurious
to live with the other. Ultimately, it is a matter of inference to be drawn by
taking into account the nature of the conduct and its effect on the complaining
spouse. There may, however, be cases where the conduct complained of itself is
bad enough and per se unlawful or illegal. Then the impact or the injurious
effect on the other spouse need not be enquired into or considered. In such
cases, the cruelty will be established if the conduct itself is proved or
admitted.
It will be necessary to
bear in mind that there has been marked change in the life around us. In
matrimonial duties and responsibilities in particular, we find a sea change.
They are of varying degrees from house to house or person to person. Therefore,
when a spouse makes complaint about the treatment of cruelty by the partner in
life or relations, the court should not search for standard in life. A set of
facts stigmatised as cruelty in one case may not be so in another case. The
cruelty alleged may largely depend upon the type of life the parties are
accustomed to or their economic and social conditions. It may also depend upon
their culture and human values to which they attach importance. We, the judges
and lawyers, therefore, should not import our own notions of life. We may not
go in parallel with them. There may be a generation gap a between us and the
parties. It would be better if we keep aside our customs and manners. It would
be also better if we less depend upon precedents. Because as Lord Denning said
in Sheldon v. Sheldon' 'the categories of cruelty are not closed'. Each case
may be different. We deal with the conduct of human beings who are not
generally similar. Among the human beings there is no limit to the kind of
conduct which may constitute cruelty. New type of cruelty may crop up in any
case depending upon the human behaviour, capacity or incapability to tolerate
the conduct complained of. Such is the wonderful (sic) realm of cruelty.
" It was a case where
the wife was a postgraduate in biological sciences while the husband was a
doctor. The wife moved the court for divorce on the ground of cruelty.
According to her, she had an amount of Rupees two lakhs in fixed deposit in a bank
apart from a house property, that her mother-in-law used to make constant
demands of money, and that the respondent husband supported his mother therein.
She did not report the same to her parents because she was afraid that if she
informed her parents, something may be done to her. The respondent-husband
himself admitted in a letter written to the wife that the demand for dowry by
his parents was nothing wrong. On the above facts, it was held that the ground
of cruelty was established and divorce was granted. The following further
observations of Shetty, J. appear to us relevant: (SCC pp. 1 14-15, para 18)
"Section 13(1)(i-a) of the Hindu Marriage Act provides that the party has
after solemnization of the marriage treated the petitioner with
5 (1966) 2 All ER 257, 259:
(1966) 2 WLR 993 349
cruelty. What do these
words mean? What should be the nature of cruelty? Should it be only
intentional, wilful or deliberate? Is it necessary to prove the intention in
matrimonial offence? We think not. We have earlier said that cruelty may be of
any kind and any variety. It may be different in different cases. It is in
relation to the conduct of parties to a marriage. That conduct which is
complained of as cruelty by one spouse may not be so for the other spouse. There
may be instances of cruelty by the unintentional but inexcusable conduct of any
party. The cruel treatment may also result by the cultural conflict of the
spouse. In such cases, even if the act of cruelty is established, the intention
to commit suicide cannot be established. The aggrieved party may not get
relief. We do not think that was the intention with which the Parliament
enacted Section 13(1)(i-a) of the Hindu Marriage Act. The context and the set
up in which the word 'cruelty' has been used in the section, seems to us, that
intention is not a necessary element in cruelty. That word has to be understood
in the ordinary sense of the term in matrimonial affairs. If the intention to
harm, harass or hurt could be inferred by the nature of the conduct or brutal
act complained of, cruelty could be easily established. But the absence of
intention should not make any difference in the case, if by ordinary sense in
human affairs, the act complained of could otherwise be regarded as cruelty.
The relief to the party cannot be denied on the ground that there has been no
deliberate or wilful ill-treatment."
18.In
Chanderkala Trivedi v. Dr S.P. Trivedi6 the husband sued for
divorce on the ground of cruelty by wife. The wife filed a written statement
wherein she attributed adultery to the husband. In reply thereto the husband
put forward another allegation against the wife that she was having undesirable
association with young boys. Considering the mutual allegations, R.M. Sahai, J.
speaking for Division Bench, observed: (SCC
p. 233, para 2)
"Whether the
allegation of the husband that she was in the habit of associating with young
boys and the findings recorded by the three courts are correct or not but what
is certain is that once such allegations are made by the husband and wife as
have, been made in this case then it is obvious that the marriage of the two
cannot in any circumstance be continued any further. The marriage appears to be
practically dead as from cruelty alleged by the husband it has turned out to be
at least intimacy of the husband with a lady doctor and unbecoming conduct of a
Hindu wife."
19.It was argued on behalf
of the husband that the wife has failed to establish the charge of adultery
levelled against him and that the charge of adultery must be proved beyond
reasonable doubt. Dealing with the argument, the learned Judge observed: (SCC
pp. 233-34, para 3) 6 (1993) 4 SCC 232 : 1993 SCC (Cri) II 54 : (1993) 3 Scale
541
350
"But we do not propose
to examine it as we are satisfied that the marriage is dead and the findings of
fact cannot be set aside by this Court except that the appeal can be sent back
to the Division Bench to decide it again which would mean another exercise in
futility leading to tortuous litigation and continued agony of the
parties."
20.In the light of the
principles enunciated hereinabove, we may now examinewhether the allegations
made by the wife in her written statement and thequestions put by her counsel
to the petitioner in cross-examination amount to mental cruelty within the
meaning of the said sub-clause? The relevant portions of the written statement
have already been set out by us hereinbefore. We have also set out in the said
paragraph the explanatory statement made by the respondent's counsel in court
in Justification of the questions put by him to the petitioner in his cross-
examination. It is true that the said averments must be read in the context in
which they were made. At the same time, it must be remembered that the wife was
merely defending herself against what are, according to her, totally unfounded
allegations and aspersions on her character. It was not necessary for her to go
beyond that and allege that the petitioner is a mental patient, that he is not a
normal person, that he requires psychological treatment to restore his mental
health, that he is suffering from paranoid disorder and mental hallucinations
and to crown it all, to allege that he and all the members of his family are a
bunch of lunatics. It is not as if these words were uttered in a fit of anger
or under an emotional stress. They were made in a formal pleading filed in the
Court and the questions to that effect were put by her counsel, at her
instructions, in the cross-examination. Even in her additional written
statement she has asserted her right "to make correct statement of facts
to defend herself against the wanton, imaginary and irresponsible
allegations". These are not the mere protestations of an injured wife;
they are positive assertions of mental imbalance and streak of insanity in the
mental build-up of the husband. The husband is an Advocate practicing in this
Court as well as in Delhi High Court. The divorce petition is being tried in
the Delhi High Court itself. Making such allegations in the pleadings and
putting such questions to the husband while he is in the witness-box, is bound
to cause him intense mental pain and anguish besides affecting his career and
professional prospects. It is not as if the respondent is seeking any relief on
the basis of these assertions. The allegations against her may not be true; it
may also be true that the petitioner is a highly suspicious character and that
he assumes things against his wife which are not well founded. But on that
ground, to say that the petitioner has lost his normal mental health, that he
is a mental patient requiring expert psychological treatment and above all to
brand him and all the members of his family including his grandfather as
lunatics, is going far beyond the reasonable limits of her defence. It is
relevant to notice that the allegations of the wife in her written statement
amount in effect to "psychopathic disorder or any other disorder"
within the meaning of the Explanation to clause (iii) of sub-section (1) of
Section 13, though, she has not chosen to say that on that account she cannot
reasonably 351
be expected to live with
the petitioner-husband nor has she chosen to claim any relief on that ground.
Even so, allegations of 'paranoid disorder', ,mental patient', 'needs
psychological treatment to make him act a normal person' etc. are there coupled
with the statement that the petitioner and all the members of his family are
lunatics and that a streak of insanity runs through his entire family. These
assertions cannot but constitute mental cruelty of such a nature that the
petitioner, situated as he is and in the context of the several relevant
circumstances, cannot reasonably be asked to live with the respondent
thereafter. The husband in the position of the petitioner herein would be
justified in saying that it is not possible for him to live with the wife in
view of the said allegations. Even otherwise the peculiar facts of this case
show that the respondent is deliberately feigning a posture which is wholly
unnatural and beyond the comprehension of a reasonable person. She has been
dubbed as an incorrigible adulteress. She is fully aware that the marriage is
long dead and over. It is her case that the petitioner is genetically insane.
Despite all that, she says that she wants to live with the petitioner. The
obvious conclusion is that she has resolved to live in agony only to make life
a miserable hell for the petitioner as well. This type of callous attitude in
the context of the facts of this case, leaves no manner of doubt in our mind
that the respondent is bent upon treating the petitioner with mental cruelty.
It is abundantly clear that the marriage between the parties has broken down
irretrievably and there is no chance of their coming together, or living
together again. Having regard to the peculiar features of this case, we are of
the opinion that the marriage between the parties should be dissolved under
Section 13(1)(i-a) of Hindu Marriage Act and we do so accordingly. Having
regard to the peculiar facts and circumstances of this case and its progress
over the last eight years detailed hereinbefore we are of the opinion that it
is a fit case for cutting across the procedural objections to give a quietus to
the matter.
21.Before parting with this
case, we think it necessary to append a clarification. Merely because there are
allegations and counter-allegations, a decree of divorce cannot follow. Nor is
mere delay in disposal of the divorce proceedings by itself a ground. There
must be really some extraordinary features to warrant grant of divorce on the
basis of pleadings (and other admitted material) without a full trial.
Irretrievable breakdown of the marriage is not a ground by itself. But while
scrutinising the evidence on record to determine whether the ground(s) alleged
is/are made out and in determining the relief to be granted, the said
circumstance can certainly be borne in mind. The unusual step as the one taken
by us herein can be resorted to only to clear up an insoluble mess, when the
court finds it in the interest of both the parties.
22.The petition for divorce
H.M. Case No. 1 of 1986 pending in the Delhi High Court is withdrawn to the
file of this Court and is allowed. The marriage between the parties is
dissolved. In the circumstances, the allegations levelled by the petitioner
against the wife are held 'not proved'. The honour and character of the
respondent wife stands vindicated.
23. There shall be no order
as to costs
