Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2012 OF 2013
SHRI RAKESH RAMAN … APPELLANT
Versus
SMT. KAVITA …RESPONDENT
J U D G M E N T
SUDHANSHU DHULIA, J.
1. This appeal arises out of a divorce proceeding initiated by
the appellant under Section 13 of the Hindu Marriage Act,
1955, (hereinafter referred to as the “Act”), in the Court of
Additional District Judge (North), Tis Hazari Courts, Delhi. His
suit was decreed and the marriage was dissolved by the Order
of the Additional District Judge (North) dated 02.05.2009. The
Signature Not Verified
Digitally signed by
NIRMALA NEGI
Date: 2023.04.26
17:44:57 IST
Reason:
respondent/wife, then, filed an appeal before the Delhi High
Court which has set aside the order of the Trial Court and
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dismissed the petition of the husband. Aggrieved by the said
Order, the appellant/husband has filed a Special Leave
Petition before this Court, in which leave was granted on
26.02.2013.
2. The appellant and the respondent were married under
Hindu rituals and customs in Delhi, on 16.04.1994.
Regrettably, it did not take long for the marital discord to set
in their marital life. The appellant’s case is that his wife was
not happy in their small dwelling, and used offensive, even
abusive language against him. It has also been alleged that in
September, 1994, she got her pregnancy terminated, without
any prior intimation to her husband (this allegation was
denied by the wife and could never be proved against her). It
was in September 1994, again when she left her matrimonial
home, but due to the efforts made by the wellwishers and
relatives, they started living together from March 1995
onwards. This again did not last long, as on 16.02.1998 she
left her matrimonial house, and lodged a complaint with the
local police on 16/17.02.1998. In March 1998, she agreed to
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join her husband, on the condition that the appellant would
take another accommodation and consequently in April, 1998
another house was taken on rent, and the two started living
together in the new house. But then, on 24.08.1998, the
appellant alleges that he was beaten by his wife and her
brother. On 29.11.1998, he was kept out of his own house for
the entire night. On 17.12.1998 she left her matrimonial
house and lodged an FIR against the appellant and his
brother, under Section 498A/406 of the Indian Penal Code, at
Anand Parbat Police Station, New Delhi. The appellant and
his brother were arrested the same day, while they were
attending a marriage ceremony, and this was done in the
presence of 15 to 20 of his friends. Later the two were
released on bail, though the wife persisted with the matter and
even moved an application for cancellation of their bail. The
wife then filed a complaint under Sections 323 and 324 read
with Section 34 IPC against the appellant/husband and his
family members, however, they were subsequently discharged
from the case. The respondent also initiated proceedings
against appellant under Section 107 read with Section 150 of
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the Code of Criminal Procedure. She then filed a petition,
under Section 18 of Hindu Adoption and Maintenance Act,
1956, for her maintenance.
3. Left by his wife and burdened with multiple litigations
slapped on him, the appellant took the decision to end the
matrimonial relations. He thus moved his petition for
dissolution of marriage under Section 13(1) (ia) & (ib) of Hindu
Marriage Act, 1955, before the Additional District Judge, North
Delhi on 20.09.2002, inter alia, on the facts, as narrated in the
preceding paragraph.
4. The respondent denies that she ever ‘deserted’ her
husband or inflicted any cruelty on him. Her counsel would
submit that she only took recourse to legal avenues available
to her under the law. She alleges that her ornaments which
were her ‘stridhan’, were taken away and were never returned,
and how she was forced to file a case against her husband
under Sections 498A & 406 of the Indian Penal Code (IPC). It
was also her case that she had made every possible effort for
reconciliation, but due to the noncooperation of the appellant,
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all efforts towards mediation and settlement resulted in
failure. She has denied that she had terminated her
pregnancy.
5. The Family Court on 15.10.2003 framed issues on
cruelty and desertion. The Trial Court gave the findings on
cruelty as well as desertion in favour of the husband and a
decree for the dissolution of marriage was passed.
6. The High Court in appeal, came to the conclusion that
the mere fact that the respondent did not allow her husband
to enter his house on 29.11.1998, would not prove that it was
her intention to bring cohabitation permanently to an end and
therefore the ground of dissolution of marriage on desertion
were not made out. As far as filing of various complaints under
Sections 323, 324 and 498A IPC are concerned, the High
Court was of the view that mere filing of such complaints, or
their result in acquittal would not amount to cruelty, as the
wife was only exercising her options available to her under the
law. Moreover, what has to be seen are also the circumstances
under which these complaints were filed.
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7. We have heard Mr. S.K. Rungta, learned Senior Advocate
for the appellant/husband and Mr. S.K. Bhalla learned
Advocate for the respondent/wife at length and perused the
material on record.
8. This case has travelled from the Family Court to the High
Court and now finally to this Court. The decision of Delhi High
Court is of 08.04.2011, which goes back to twelve years. We
have to take into consideration all the facts which are before
us as of now. To our mind the facts which we must take into
account are: (i) that the “couple” is now living separately for
the last almost 25 years, and all these years there has been no
cohabitation between them. (ii) That there is no child out of
the wedlock, and the couple lived together as husband and
wife for barely 4 years. (iii) That repeated efforts by the Courts
for reconciliation or settlement have resulted in failure.
9. At the very initial stage the Trial Court had sent the
parties for mediation, which did not succeed. This Court had
also sent the two for mediation, which failed. The case was
again sent for settlement in the Lok Adalat but with no results.
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On 11.04.2015, this Court again requested the parties to
explore possibilities of living together, but nothing
materialised. Then on 09.05.2015, this Court asked the
parties to come to some mutual settlement, but in vain. In
other words, every single effort of the Court and the mediators,
towards a compromise or settlement has led to a blind alley.
Even now, before giving a formal hearing to the parties we
tried to gather the current situation from the parties. The
appellant has unequivocally stated that there is no room for
any compromise or settlement and he requests that a decision
be made in this case on its merits, whereas the counsel for the
respondent apprised this Court that the respondent would like
to save her marriage and he prays for mediation once again.
He would also submit that no ground for divorce has been
made out and the wellconsidered decision of Delhi High Court
should be upheld.
10. The husband and wife, who are before us have been
living separately since the last 25 years. There is no child out
of the wedlock. There are bitter allegations of cruelty and
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desertion from both the sides and multiple litigations between
the two in the last more than 25 years. This embittered
relationship between the appellant and the respondent which
has not witnessed any moment of peace for the last 25 years is
a marital relationship only on paper. The fact is that this
relationship has broken down irretrievably long back.
11. The High Court has taken a view that mere filing of
criminal cases against the appellanthusband would not
constitute cruelty. All the same, the number of criminal cases
filed by the respondentwife against the appellanthusband are
far too many which have been discussed above. All these
cases have either resulted in discharge or acquittal of the
appellanthusband, if not before the pronouncement of the
Judgment of the Delhi High Court but definitely after the
pronouncement of the Judgment of the Delhi High Court.
Moreover, a three Judge Bench of this Court in
Naveen Kohli
1
v. Neelu Kohli held that repeatedly filing of criminal cases by
one party against the other in a matrimonial matter would
1 (2006) 4 SCC 558
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amount to cruelty and the same was reiterated by a Division
2
Bench of this Court in K. Srinivas Rao v . D.A. Deepa .
12. Other aspect which we must consider is the fact that for
the last 25 years the appellant and respondent, are living
separately, and have not cohabitated. There is absolutely no
scope of reconciliation between the parties. There is in fact no
bond between the two and as the Law Commission in its 71st
report said about such a marriage, which is a marriage which
has de facto broken down, and only needs a de jure
recognition by the law. The same was reiterated by the Law
th
Commission in its 217 report.
13. Under similar circumstances, this Court in
R. Srinivas
3 4
Kumar v . R. Shametha , Munish Kakkar v. Nidhi Kakkar
5
and Neha Tyagi v. Lieutenant Colonel Deepak Tyagi has
held that an irretrievable marriage is a marriage where
husband and wife have been living separately for a
2 (2013) 5 SCC 226
3 (2019) 9 SCC 409
4 (2020) 14 SCC 657
5 (2022) 3 SCC 86
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considerable period and there is absolutely no chance of their
living together again. In all the above cited three cases, this
Court in exercise of its power under Article 142 of the
Constitution of India has dissolved the marriage on the ground
of irretrievable breakdown as a ground, which otherwise does
not exist under the Hindu Marriage Act.
14. In Naveen Kohli (supra), a strong recommendation has
been made by this Court to the Union of India to consider
adding irretrievable breakdown down of a marriage as a
ground for divorce under the Hindu Marriage Act.
15. The multiple Court battles between them and the
repeated failures in mediation and conciliation is at least
testimony of this fact that no bond now survive between the
couple, it is indeed a marriage which has broken down
irretrievably.
16. Matrimonial cases before the Courts pose a different
challenge, quite unlike any other, as we are dealing with
human relationships with its bundle of emotions, with all its
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faults and frailties. It is not possible in every case to pin
point to an act of “cruelty” or blameworthy conduct of the
spouse. The nature of relationship, the general behaviour of
the parties towards each other, or long separation between the
two are relevant factors which a Court must take into
6
consideration. In v a three
Samar Ghosh . Jaya Ghosh
judge Bench of this Court had dealt in detail as to what would
constitute cruelty under Section 13 (1) (ia) of the Act. An
important guideline in the above decision is on the approach
of a Court in determining cruelty. What has to be examined
here is the entire matrimonial relationship, as cruelty may not
be in a violent act or acts but in a given case has to be
gathered from injurious reproaches, complaints, accusations,
taunts, etc. The Court relied on the definition of cruelty in
matrimonial relationships in Halsbury’s Laws of England (Vol
th
13, 4 Edn, Para 1269, Pg 602) which must be reproduced
here:
“The general rule in all cases of cruelty is that
the entire matrimonial relationship must be
considered, and that rule is of special value
when the cruelty consists not of violent acts but
of injurious reproaches, complaints,
6 (2007) 4 SCC 511
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accusations or taunts. In cases where no
violence is averred, it is undesirable to consider
judicial pronouncements with a view to creating
certain categories of acts or conduct as having
or lacking the nature or quality which renders
them capable or incapable in all circumstances
of amounting to cruelty; for it is the effect of the
conduct rather than its nature which is of
paramount importance in assessing a complaint
of cruelty. Whether one spouse has been guilty
of cruelty to the other is essentially a question
of fact and previously decided cases have little,
if any, value. The court should bear in mind the
physical and mental condition of the parties as
well as their social status, and should consider
the impact of the personality and conduct of
one spouse on the mind of the other, weighing
all incidents and quarrels between the spouses
from that point of view; further, the conduct
alleged must be examined in the light of the
complainant's capacity for endurance and the
extent to which that capacity is known to the
other spouse. Malevolent intention is not
essential to cruelty but it is an important
element where it exists.”
The view taken by the Delhi High Court in the present
case that mere filing of criminal cases by the wife does not
constitute cruelty as what has also to be seen are the
circumstances under which cases were filed, is a finding we do
not wish to disregard totally, in fact as a pure proposition of
law it may be correct, but then we must also closely examine
the entire facts of the case which are now before us. When we
take into consideration the facts as they exist today, we are
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convinced that continuation of this marriage would mean
continuation of cruelty, which each now inflicts on the other.
Irretrievable breakdown of a marriage may not be a ground for
dissolution of marriage, under the Hindu Marriage Act, but
cruelty is. A marriage can be dissolved by a decree of divorce ,
inter alia , on the ground when the other party “has, after the
solemnization of the marriage treated the petitioner with
7
cruelty” . In our considered opinion, a marital relationship
which has only become more bitter and acrimonious over the
years, does nothing but inflicts cruelty on both the sides. To
keep the façade of this broken marriage alive would be doing
injustice to both the parties. A marriage which has broken
down irretrievably, in our opinion spells cruelty to both the
parties, as in such a relationship each party is treating the
other with cruelty. It is therefore a ground for dissolution of
marriage under Section 13 (1) (ia) of the Act.
17. Cruelty has not been defined under the Act. All the
same, the context where it has been used, which is as a
ground for dissolution of a marriage would show that it has to
7 Section 13 (1) (ia) of the Hindu Marriage Act, 1955
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be seen as a ‘human conduct’ and ‘behavior” in a matrimonial
relationship. While dealing in the case of Samar Ghosh
(supra) this Court opined that cruelty can be physical as well
as mental:
“46…If it is physical, it is a question of
fact and degree. If it is mental, the
enquiry must begin as to the nature of
the cruel treatment and then as to the
impact of such treatment on the mind of
the spouse. Whether it caused
reasonable apprehension that it would be
harmful or injurious to live with the
other, ultimately, is a matter of inference
to be drawn by taking into account the
nature of the conduct and its effect on the
complaining spouse.
Cruelty can be even unintentional:
…The absence of intention should not
make any difference in the case, if by
ordinary sense in human affairs, the act
complained of could otherwise be
regarded as cruelty. Intention is not a
necessary element in cruelty. The relief
to the party cannot be denied on the
ground that there has been no deliberate
or wilful illtreatment.”
This Court though did ultimately give certain
illustrations of mental cruelty. Some of these are as follows:
(i) On consideration of complete
matrimonial life of the parties, acute
mental pain, agony and suffering as
would not make possible for the parties to
live with each other could come within
the broad parameters of mental cruelty.
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(xii) Unilateral decision of refusal to have
intercourse for considerable period
without there being any physical
incapacity or valid reason may amount to
mental cruelty.
(xiii) Unilateral decision of either husband
or wife after marriage not to have child
from the marriage may amount to cruelty.
(xiv) Where there has been a long
period of continuous separation, it
may fairly be concluded that the
matrimonial bond is beyond repair.
The marriage becomes a fiction though
supported by a legal tie. By refusing to
sever that tie, the law in such cases,
does not serve the sanctity of
marriage; on the contrary, it shows
scant regard for the feelings and
emotions of the parties. In such like
situations, it may lead to mental
cruelty.
(emphasis supplied)
18. We have a married couple before us who have barely
stayed together as a couple for four years and who have now
been living separately for the last 25 years. There is no child
out of the wedlock. The matrimonial bond is completely
broken and is beyond repair. We have no doubt that this
relationship must end as its continuation is causing cruelty on
both the sides. The long separation and absence of
cohabitation and the complete breakdown of all meaningful
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bonds and the existing bitterness between the two, has to be
read as cruelty under Section 13(1) (ia) of the 1955 Act. We
therefore hold that in a given case, such as the one at hand,
where the marital relationship has broken down irretrievably,
where there is a long separation and absence of cohabitation
(as in the present case for the last 25 years), with multiple
Court cases between the parties; then continuation of such a
‘marriage’ would only mean giving sanction to cruelty which
each is inflicting on the other. We are also conscious of the
fact that a dissolution of this marriage would affect only the
two parties as there is no child out of the wedlock.
19. Under these circumstances, we uphold the Order of the
Trial Court, though for different grounds given by us in our
order, and we set aside the Order of the High Court and grant
a decree of divorce to the appellant/husband. Their marriage
shall stand dissolved.
20. However, considering the fact that the
appellant/husband is an employee in Life Insurance
Corporation, as we have been informed at the Bar and his
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present salary is more than Rs.1,00,000/ (One Lakh Rupees)
per month, we deem it fit and proper that he gives an amount
of Rs.30,00,000/ (Thirty Lakh Rupees) to the respondent/wife
as permanent alimony. This amount of Rs.30,00,000/ (Thirty
Lakh Rupees) shall be deposited in the name of the
respondent, within a period of four weeks from today with the
Registry of this Court. The decree of divorce shall be made
effective only from the date of such a deposit. On the event of
such deposit, the Registry after verifying the credentials of the
respondent/wife shall disburse the amount to the
respondent/wife without further reference to this Court.
With the aforesaid directions, the appeal stands allowed.
..……….………………….J.
[SUDHANSHU DHULIA]
...………………………….J.
[J. B. PARDIWALA]
New Delhi.
April 26, 2023.
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