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CASE NO.: Appeal (civil)  151 of 2004

PETITIONER: Samar Ghosh

RESPONDENT: Jaya Ghosh

DATE OF JUDGMENT: 26/03/2007

BENCH: B.N. Agrawal, P.P. Naolekar & Dalveer Bhandari

JUDGMENT: J U D G M E N T

Dalveer Bhandari, J.         This is yet another unfortunate matrimonial dispute  which has shattered the twenty two year old matrimonial  bond between the parties.  The appellant and the  respondent are senior officials of the Indian  Administrative Service, for short ’IAS’.  The appellant and  the respondent were married on 13.12.1984 at Calcutta  under the Special Marriage Act, 1954.  The respondent  was a divorcee and had a female child from her first  marriage.  The custody of the said child was given to her  by the District Court of Patna where the respondent had  obtained a decree of divorce against her first husband,  Debashish Gupta, who was also an I.A.S. officer.  

       The appellant and the respondent knew each other  since 1983.  The respondent, when she was serving as  the Deputy Secretary in the Department of Finance,  Government of West Bengal, used to meet the appellant  between November 1983 and June 1984. They cultivated  close friendship which later developed into courtship.   

       The respondent’s first husband, Debashish Gupta  filed a belated appeal against the decree of divorce  obtained by her from the District Court of Patna.  Therefore, during the pendency of the appeal, she literally  persuaded the appellant to agree to the marriage  immediately so that the appeal of Debashish Gupta may  become infructuous.  The marriage between the parties  was solemnized on 13.12.1984. According to the  appellant, soon after the marriage, the respondent asked  the appellant not to interfere with her career.  She had  also unilaterally declared her decision not to give birth to  a child for two years and the appellant should not be  inquisitive about her child and he should try to keep  himself aloof from her as far as possible.  According to  the appellant, there was imposition of rationing in  emotions in the arena of love, affection, future planning  and normal human relations though he tried hard to  reconcile himself to the situation created by the  respondent.

       The appellant asserted that the apathy of the  respondent and her inhuman conduct towards him  became apparent in no time.  In February 1985, the  appellant suffered prolonged illness.  The respondent’s  brother was working in Bareilly. Her parents along with  her daughter went there for sojourn.  The appellant could

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not go because of high temperature and indifferent  health.  She left him and went to Bareilly even when  there was no one to look after him during his illness.  On  her return, the respondent remained in Calcutta for  about four days, but she did not care to meet the  appellant or enquire about his health.  According to the  appellant, he made all efforts to make adjustments and  to build a normal family life.  He even used to go to  Chinsurah every weekend where the respondent was  posted but she showed no interest and was overtly  indifferent to him.  The appellant usually returned from  Chinsurah totally dejected.  According to the appellant,  he felt like a stranger in his own family.  The respondent  unilaterally declared that she would not have any child  and it was her firm decision.  The appellant felt that his  marriage with the respondent was merely an eye-wash  because immediately after the marriage, serious  matrimonial problems developed between them which  kept growing.

       The respondent was transferred to Calcutta in May  1985.  Their residential flat at the Minto Park Housing  Estate stood allotted to the appellant.  The respondent  used to come to their flat intermittently. One Prabir  Malik, a domestic servant-cum-cook also used to live in  the said flat.  He used to cook food and carry out  household work for the appellant.  According to the  appellant, the respondent used to say that her daughter  was being neglected and that she might even be harmed.   The indication was towards Prabir Malik.  The appellant  and the respondent virtually began to live separately from  September, 1985.

       The appellant was transferred to Murshidabad in  May 1986 but the respondent continued to stay in  Calcutta.  The appellant stayed in Murshidabad up to  April 1988 and thereafter he went on deputation on an  assignment of the Government of India but there he  developed some health problem and, therefore, he sought   a transfer to Calcutta and came back there in September  1988.  On transfer of the appellant to Murshidabad, the  flat in which they were staying in Minto Park was allotted  to the respondent as per the standard convention.  The  appellant and the respondent again began living together  in Calcutta from September 1988.  The appellant again  tried to establish his home with the respondent after  forgetting the entire past.   

       According to the appellant, the respondent never  treated the house to be her family home. The respondent  and her mother taught respondent’s daughter that the  appellant was not her father.  The child, because of  instigation of the respondent and her mother, gradually  began to avoid the appellant. The respondent in no  uncertain terms used to tell the appellant that he was  not her father and that he should not talk to the child or  love her.  The appellant obviously used to feel very  offended.   

       The appellant also learnt that the respondent used  to tell her mother that she was contemplating divorce to  the appellant.  The respondent’s daughter had also  disclosed to the appellant that her mother had decided to  divorce him.  According to the appellant, though they  lived under the same roof for some time but the

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respondent virtually began to live separately from April,  1989 at her parent’s house. In April 1990 the appellant’s  servant Prabir Malik had left for Burdwan on getting a  job.  The respondent used to come from her parents  house to drop her daughter to her school La Martinere.    She used to come to the flat at Minto Park from the  school to cook food only for herself and leave for the  office.  The appellant began to take his meals outside as  he had no other alternative.  

       According to the appellant, the said Prabir Malik  came to the flat on 24th August, 1990 and stayed there at  the night.  The next two days were holidays.  The  respondent and her father also came there on 27th  August, 1990.  On seeing Prabir, the respondent lost her  mental equanimity.  She took strong exception to Prabir’s  presence in her flat and started shouting that the  appellant had no self-respect and as such was staying in  her flat without any right. According to the appellant, he  was literally asked to get out of that flat.  The  respondent’s father was also there and it appeared that  the act was pre-conceived.  The appellant felt extremely  insulted and humiliated and immediately thereafter he  left the flat and approached his friend to find a temporary  shelter and stayed with him till he got a government flat  allotted in his name on 13.9.1990.  

       Admittedly, the appellant and the respondent have  been living separately since 27th August, 1990.  The  appellant further stated that the respondent refused  cohabitation and also stopped sharing bed with him  without any justification.  Her unilateral decision not to  have any child also caused mental cruelty on the  appellant.  The appellant was not permitted to even show  his normal affection to the daughter of the respondent  although he was a loving father to the child.  The  appellant also asserted that the respondent desired  sadistic pleasure at the discomfiture and plight of the  appellant which eventually affected his health and  mental peace.  In these circumstances, the appellant has  prayed that it would not be possible to continue the  marriage with the respondent and he eventually filed a  suit for the grant of divorce.  

       In the suit for divorce filed by the appellant in  Alipur, Calcutta, the respondent filed her written  statement and denied the averments.  According to the  version of the respondent, Prabir Malik, the domestic  servant did not look after the welfare and well-being of  the child. The respondent was apprehensive that Prabir  Malik may not develop any affection towards the  respondent’s daughter.   

       According to the version of the respondent, the  appellant used to work under the instructions and  guidance of his relations, who were not very happy with  the respondent and they were interfering with their  family affairs.  The respondent stated that the appellant  has filed the suit for divorce at the behest of his brothers  and sisters.  The respondent has not denied this fact that  from 27th August, 1990 they have been continuously  living separately and thereafter there has been no  interaction whatsoever between them.

       The appellant, in support of his case, has examined

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himself as witness no.1.  He has also examined  Debabrata Ghosh as witness no.2, N. K. Raghupatty as  witness no.3, Prabir Malik as witness no.4 and  Sikhabilas Barman as witness no.5.   

       Debabrata Ghosh, witness no.2 is the younger  brother of the appellant.  He has stated that he did not  attend the marriage ceremony of the appellant and the  respondent. He seldom visited his brother and sister-in- law at their Minto Park flat and he did not take any  financial assistance from his brother to maintain his  family. He mentioned that he noticed some rift between  the appellant and the respondent.   

       The appellant also examined N. K. Raghupatty,  witness no.3, who was working as the General Secretary  at that time.  He stated that he knew both the appellant  and the respondent because both of them were his  colleagues.  He was occupying a suite in the Circuit  House at Calcutta.  He stated that two weeks before the  Puja vacation in 1990, the appellant wanted permission  to stay with him because he had some altercation with  the respondent.  According to this witness, the appellant  was his close friend, therefore, he permitted him to stay  with him.  He further stated that the appellant after a few  days moved to the official flat allotted to him.

       Prabir Malik was examined as witness no.4.  He  narrated that he had known the appellant for the last  8/9 years.  He was working as his servant-cum-cook.    He also stated that since April 1990 he was serving at the  Burdwan Collectorate.   He stated that after getting the  job at Burdwan Collectorate, he used to visit the Minto  Park flat of the appellant on 2nd and 4th Saturdays.   He  stated that the relationship between the appellant and  the respondent was not cordial.  He also stated that the  appellant told him that the respondent cooks only for  herself but does not cook for the appellant and he used  to eat out and sometimes cooked food for himself.   He  stated that the brothers and sisters of the appellant did  not visit Minto Park flat.  He also stated that the  daughter of the respondent at times used to say that the  appellant was not her father and that she had no blood  relationship with him.  He stated that on 4th Saturday, in  the month of August, 1990, he came to the flat of the  appellant.  On seeing him the respondent got furious and  asked him for what purpose he had come to the flat?   She further stated that the appellant had no residence,  therefore, she had allowed him to stay in her flat.  She  also said that it was her flat and she was paying rent for  it.   According to the witness, she further stated that even  the people living on streets and street beggars have some  prestige, but these people had no prestige at all.  At that  time, the father of the respondent was also present.   According to Prabir Malik, immediately after the incident,  the appellant left the flat.          The appellant also examined Sikhabilas Barman as  witness no.5, who was also an IAS Officer.  He stated  that he had known the appellant and his wife and that  they did not have cordial relations.  He further stated  that the appellant told him that the respondent cooks for  herself and leaves for office and that she does not cook  for the appellant and he had to take meals outside and  sometimes cooked food for himself.  He also stated that  the respondent had driven the appellant out of the said

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flat.

       The respondent has examined herself.   According to  her statement, she indicated that she and the appellant  were staying together as normal husband and wife.  She  denied that she ill-treated Prabir Malik.  She further  stated that the brothers and sisters of the appellant used  to stay at Minto Park flat whenever they used to visit  Calcutta.  She stated that they were interfering in the  private affairs, which was the cause of annoyance of the  respondent.   She denied the incident which took place  after 24.8. 1990.  However, she stated that the appellant  had left the apartment on 27.8.1990.  In the cross- examination, she stated that the appellant appeared to  be a fine gentleman.  She admitted that the relations  between the appellant and the respondent were not so  cordial.  She denied that she ever mentioned to the  appellant that she did not want a child for two years and  refused cohabitation.    

       The respondent also examined R. M. Jamir as  witness no. 2.    He stated that he had known both of  them and in the years 1989-90 he visited their residence  and he found them quite happy.  He stated that in 1993  the respondent enquired about the heart problem of the  appellant.    

       The respondent also examined her father A. K.  Dasgupta as witness no. 3.  He stated that his daughter  neither insulted nor humiliated her husband in presence  of Prabir Malik nor asked him to leave the apartment.  He  stated that the appellant and the respondent were living  separately since 1990 and he never enquired in detail  about this matter.  He stated that the appellant had a lot  of affection for the respondent’s daughter.  He stated that  he did not know about the heart trouble of the appellant.   He stated that he was also unaware of appellant’s bye- pass surgery.  

       The learned Additional District Judge, 4th Court,  Alipur, after examining the plaint, written statements  and evidence on record, framed the follows issues: "1.     Is the suit maintainable?

2.      Is the respondent guilty of cruelty as alleged?

3.      Is the petitioner entitled to decree of divorce as          claimed?

4.      To what other relief or reliefs the petitioner is          entitled?"

       Issue no. 1 regarding maintainability of the suit was  not pressed, so this issue was decided in favour of the  appellant.

       The trial court, after analyzing the entire pleadings  and evidence on record, came to the conclusion that the  following facts led to mental cruelty: 1.      Respondent’s refusal to cohabit with the  appellant.

2.      Respondent’s unilateral decision not to  have children after the marriage.

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3.      Respondent’s act of humiliating the  appellant and virtually turning him out of the  Minto Park apartment.  The appellant in fact  had taken shelter with his friend and he  stayed there till official accommodation was  allotted to him.  

4.      Respondent’s going to the flat and  cooking only for herself and the appellant was  forced to either eat out or cook his own meals.

5.      The respondent did not take care of the  appellant during his prolonged illness in 1985  and never enquired about his health even  when he underwent the bye-pass surgery in  1993.  

6.      The respondent also humiliated and had  driven out the loyal servant-cum-cook of the  appellant, Prabir Malik.

       The learned Additional District Judge came to the  finding that the appellant has succeeded in proving the  case of mental cruelty against the respondent, therefore,  the decree was granted by the order dated 19.12.1996  and the marriage between the parties was dissolved.

       The respondent, aggrieved by the said judgment of  the learned Additional District Judge, filed an appeal  before the High Court.   The Division Bench of the High  Court vide judgment dated 20.5.2003 reversed the  judgment of the Additional District Judge on the ground  that the appellant has not been able to prove the  allegation of mental cruelty.  The findings of the High  Court, in brief, are recapitulated as under: I.      The High Court arrived at the finding that it was  certainly within the right of the respondent-wife  having such a high status in life to decide when she  would like to have a child after marriage.

II.     The High Court also held that the appellant has  failed to disclose in the pleadings when the  respondent took the final decision of not having a  child.   

III.    The High Court held that the appellant also failed to  give the approximate date when the respondent  conveyed this decision to the appellant.   

IV.     The High Court held that the appellant started  living with the respondent, therefore, that amounted  to condonation of the acts of cruelty.   

V.      The High Court disbelieved the appellant on the  issue of respondent’s refusing to cohabit with him,  because he failed to give the date, month or the year  when the respondent conveyed this decision to him.

VI.     The High Court held that the appellant’s and the  respondent’s sleeping in separate rooms did not  lead to the conclusion that they did not cohabit.

VII.    The High Court also observed that it was quite  proper for the respondent with such high status

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and having one daughter by her previous husband,  not to sleep in the same bed with the appellant.   

VIII.   The High Court observed that refusal to cook in  such a context when the parties belonged to high  strata of society and the wife also has to go to office,  cannot amount to mental cruelty.   

IX.     The High Court’s findings that during illness of the  husband, wife’s not meeting the husband to know  about his health did not amount to mental cruelty.

       The High Court was unnecessarily obsessed by the  fact that the respondent was also an IAS Officer.  Even if  the appellant had married an IAS Officer that does not  mean that the normal human emotions and feelings  would be entirely different.                   The finding of the Division Bench of the High Court  that, considering the position and status of the  respondent, it was within the right of the respondent to  decide when she would have the child after the marriage.  Such a vital decision cannot be taken unilaterally after  marriage by the respondent and if taken unilaterally, it  may amount to mental cruelty to the appellant.   

       The finding of the High Court that the appellant  started living with the respondent amounted to  condonation of the act of cruelty is unsustainable in law.

       The finding of the High Court that the respondent’s  refusal to cook food for the appellant could not amount to  mental cruelty as she had to go to office, is not  sustainable. The High Court did not appreciate the  evidence and findings of the learned Additional District  Judge in the correct perspective.  The question was not of  cooking food, but wife’s cooking food only for herself and  not for the husband would be a clear instance of causing  annoyance which may lead to mental cruelty.   

       The High Court has seriously erred in not  appreciating the evidence on record in a proper  perspective.   The respondent’s refusal to cohabit has  been proved beyond doubt.  The High Court’s finding that  the husband and wife might be sleeping in separate  rooms did not lead to a conclusion that they did not  cohabit and to justify this by saying that the respondent  was highly educated and holding a high post was entirely  unsustainable.  Once the respondent accepted to become  the wife of the appellant, she had to respect the marital  bond and discharge obligations of marital life.                  The finding of the High Court that if the ailment of  the husband was not very serious and he was not even  confined to bed for his illness and even assuming the wife  under such circumstances did not meet the husband,  such behaviour can hardly amount to cruelty, cannot be  sustained.  During illness, particularly in a nuclear  family, the husband normally looks after and supports  his wife and similarly, he would expect the same from  her.  The respondent’s total indifference and neglect of  the appellant during his illness would certainly lead to  great annoyance leading to mental cruelty.   

       It may be pertinent to mention that in 1993, the

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appellant had a heart problem leading to bye-pass  surgery, even at that juncture, the respondent did not  bother to enquire about his health even on telephone and  when she was confronted in the cross-examination, she  falsely stated that she did not know about it.

       Mr. A. K. Dasgupta, father of the respondent and  father-in-law of the appellant, was examined by the  respondent.  In the cross-examination, he stated that his  daughter and son-in-law were living separately and he  never enquired about this.  He further said that the  appellant left the apartment, but he never enquired from  anybody about the cause of leaving the apartment.  He  also stated that he did not know about the heart trouble  and bye-pass surgery of the appellant.  In the impugned  judgment, the High Court has erroneously placed  reliance on the evidence submitted by the respondent  and discarded the evidence of the appellant.  The  evidence of this witness is wholly unbelievable and  cannot stand the scrutiny of law.   

       The High Court did not take into consideration the  evidence of Prabir Malik primarily because of his low  status in life.  The High Court, in the impugned  judgment, erroneously observed that the appellant did  not hesitate to take help from his servant in the  matrimonial dispute though he was highly educated and  placed in high position.  The credibility of the witness  does not depend upon his financial standing or social  status only.  A witness which is natural and truthful  should be accepted irrespective of his/her financial  standing or social status.  In the impugned judgment,  testimony of witness no.4 (Prabir Malik) is extremely  important being a natural witness to the incident.  He  graphically described the incident of 27.8.1990.  He also  stated that in his presence in the apartment at Minto  Park, the respondent stated that the appellant had no  place of residence, therefore, she allowed him to stay in  her flat, but she did not like any other man of the  appellant staying in the flat.  According to this witness,  she said that the flat was hers and she was paying rent  for it.  According to this witness, the respondent further  said that even people living on streets and street beggars  have some prestige, but these people have no prestige at  all.  This witness also stated that immediately thereafter  the appellant had left the flat and admittedly since  27.8.1990, both the appellant and the respondent are  living separately.  This was a serious incident and the  trial court was justified in placing reliance on this  evidence and to come to a definite conclusion that this  instance coupled with many other instances led to grave  mental cruelty to the appellant.   The trial Court rightly  decreed the suit of the appellant.  The High Court was  not justified in reversing the judgment of the trial Court.

       The High Court also failed to take into consideration  the most important aspect of the case that admittedly the   appellant and the respondent have been living separately  for more than sixteen and half years (since 27.8.1990).   The entire substratum of the marriage has already  disappeared.  During this long period, the parties did not  spend a single minute together.  The appellant had  undergone bye-pass surgery even then the respondent  did not bother to enquire about his health even on  telephone.  Now the parties have no feelings and

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emotions towards each other.   

       The respondent appeared in person.  Even before  this Court, we had indicated to the parties that  irrespective of whatever has happened, even now, if they  want to reconcile their differences then the case be  deferred and they should talk to each other.  The  appellant was not even prepared to speak with the  respondent despite request from the Court.  In this view  of the matter, the parties cannot be compelled to live  together.  

       The learned Additional District Judge decreed the  appellant’s suit on the ground of mental cruelty.  We  deem it appropriate to analyze whether the High Court  was justified in reversing the judgment of the learned  Additional District Judge in view of the law declared by a  catena of cases.  We deem it appropriate to deal with the  decided cases.                  Before we critically examine both the judgments in  the light of settled law, it has become imperative to  understand and comprehend the concept of cruelty.                     The Shorter Oxford Dictionary defines ’cruelty’ as  ’the quality of being cruel; disposition of inflicting  suffering; delight in or indifference to another’s pain;  mercilessness; hard-heartedness’.         The term "mental cruelty" has been defined in the  Black’s Law Dictionary [8th Edition, 2004] as under: "Mental Cruelty - As a ground for divorce, one  spouse’s course of conduct (not involving  actual violence) that creates such anguish that  it endangers the life, physical health, or mental  health of the other spouse."

       The concept of cruelty has been summarized in  Halsbury’s Laws of England [Vol.13, 4th Edition Para  1269] as under:         "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,  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

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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 exits."  

       In 24 American Jurisprudence 2d, the term "mental  cruelty" has been defined as under: "Mental Cruelty as a course of unprovoked  conduct toward one’s spouse which causes  embarrassment, humiliation, and anguish so  as to render the spouse’s life miserable and  unendurable.  The plaintiff must show a  course of conduct on the part of the defendant  which so endangers the physical or mental  health of the plaintiff as to render continued  cohabitation unsafe or improper, although the  plaintiff need not establish actual instances of  physical abuse."                  In the instant case, our main endeavour would be to  define broad parameters of the concept of ’mental  cruelty’.  Thereafter, we would strive to determine  whether the instances of mental cruelty enumerated in  this case by the appellant would cumulatively be  adequate to grant a decree of divorce on the ground of  mental cruelty according to the settled legal position as  crystallized by a number of cases of this Court and other  Courts.

       This Court has had an occasion to examine in detail  the position of mental cruelty in N.G. Dastane v. S.  Dastane  reported in (1975) 2 SCC 326 at page 337, para  30 observed as under :-         "The enquiry therefore has to be whether  the conduct charges as cruelty is of such a  character as to cause in the mind of the  petitioner a reasonable apprehension that it  will be harmful or injurious for him to live with  the respondent\005."      

       In the case of Sirajmohmedkhan  Janmohamadkhan v. Haizunnisa Yasinkhan  & Anr.  reported in (1981) 4 SCC 250, this Court stated that the  concept of legal cruelty changes according to the changes  and advancement of social concept and standards of  living. With the advancement of our social conceptions,  this feature has obtained legislative recognition, that a  second marriage is a sufficient ground for separate  residence and maintenance.  Moreover, to establish legal  cruelty, it is not necessary that physical violence should  be used. Continuous ill-treatment, cessation of marital  intercourse, studied neglect, indifference on the part of  the husband, and an assertion on the part of the  husband that the wife is unchaste are all factors which  lead to mental or legal cruelty.    

       In the case of Shobha Rani v. Madhukar Reddi  reported in (1988) 1 SCC 105, this Court had an occasion  to examine the concept of cruelty.   The word ’cruelty’ has  not been defined in the Hindu Marriage Act.  It has been  used in Section 13(1)(i)(a) of the Act in the context of  human conduct or behaviour in relation to or in respect

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of matrimonial duties or obligations.  It is a course of  conduct of one which is adversely affecting the other.    The cruelty may be mental or physical, intentional or  unintentional.  If it is physical, it is a question of fact and  degree.  If it is mental, the enquiry must begin as to the  nature of the cruel treatment and then as to the impact  of such treatment on the mind of the spouse.   Whether it  caused reasonable apprehension that it would be  harmful or injurious to live with the other, ultimately, is  a matter of inference to be drawn by taking into account  the nature of the conduct and its effect on the  complaining spouse.  There may, however, be cases  where the conduct complained of itself is bad enough and  per se unlawful or illegal.  Then the impact or the  injurious effect on the other spouse need not be enquired  into or considered.  In such cases, the cruelty will be  established if the conduct itself is proved or admitted.   The absence of intention should not make any difference  in the case, if by ordinary sense in human affairs, the act  complained of could otherwise be regarded as cruelty.   Intention is not a necessary element in cruelty.  The relief  to the party cannot be denied on the ground that there  has been no deliberate or wilful ill-treatment.

       In Rajani v. Subramonian AIR 1990 Ker. 1 the  Court aptly observed that  the concept of cruelty    depends upon the type of life the parties are accustomed  to or their economic and social conditions, their culture  and human values to which they attach importance,  judged by standard of modern civilization in the  background of the cultural heritage and traditions of our  society.          Again, this Court had an occasion to examine in  great detail the concept of mental cruelty.  In the case of  V. Bhagat v. D. Bhagat (Mrs.) reported in (1994) 1 SCC  337, the Court observed, in para 16 at page 347, as  under:         "16. Mental cruelty in Section 13(1)(i-a)  can broadly be defined as that conduct which  inflicts upon the other party such mental pain  and suffering as would make it not possible for  that party to live with the other.  In other  words, mental cruelty must be of such a  nature that the parties cannot reasonably be  expected to live together.  The situation must  be such that the wronged party cannot  reasonably be asked to put up with such  conduct and continue to live with the other  party.  It is not necessary to prove that the  mental cruelty is such as to cause injury to the  health of the petitioner.  While arriving at such  conclusion, regard must be had to the social  status, educational level of the parties, the  society they move in, the possibility or  otherwise of the parties ever living together in  case they are already living apart and all other  relevant facts and circumstances which it is  neither possible nor desirable to set out  exhaustively.  What is cruelty in one case may  not amount to cruelty in another case.  It is a  matter to be 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."

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       This Court aptly observed in Chetan Dass v.  Kamla Devi reported in (2001) 4 SCC 250, para 14 at  pp.258-259, as under:         "Matrimonial matters are matters of  delicate human and emotional relationship.  It  demands mutual trust, regard, respect, love  and affection with sufficient play for  reasonable adjustments with the spouse.  The  relationship has to conform to the social  norms as well.  The matrimonial conduct has  now come to be governed by statute framed,  keeping in view such norms and changed  social order.  It is sought to be controlled in  the interest of the individuals as well as in  broader perspective, for regulating matrimonial  norms for making of a well-knit, healthy and  not a disturbed and porous society.  The  institution of marriage occupies an important  place and role to play in the society, in general.  Therefore, it would not be appropriate to apply  any submission of "irretrievably broken  marriage" as a straitjacket formula for grant of  relief of divorce.  This aspect has to be  considered in the background of the other  facts and circumstances of the case."

       In Savitri Pandey v. Prem Chandra Pandey  reported in (2002) 2 SCC 73, the Court stated as under:         "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."   

       This Court in the case of Gananath Pattnaik v.  State of Orissa reported in (2002) 2 SCC 619 observed  as under:         "The concept of cruelty and its effect  varies from individual to individual, also  depending upon the social and economic  status to which such person belongs.   "Cruelty" for the purposes of constituting the  offence under the aforesaid section need not be  physical.  Even mental torture or abnormal  behaviour may amount to cruelty and  harassment in a given case."                                                                                                                                                                                                                                 

       The mental cruelty has also been examined by this  Court in Parveen Mehta v. Inderjit Mehta reported in  (2002) 5 SCC 706 at pp.716-17 [para 21] which reads as  under:

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       "Cruelty for the purpose of Section  13(1)(i-a) is to be taken as a behaviour by one  spouse towards the other, which causes  reasonable apprehension in the mind of the  latter that it is not safe for him or her to  continue the matrimonial relationship with the  other.   Mental cruelty is a state of mind and  feeling with one of the spouses due to the  behaviour or behavioural pattern by the other.   Unlike the case of physical cruelty, mental  cruelty is difficult to establish by direct  evidence.  It is necessarily a matter of  inference to be drawn from the facts and  circumstances of the case.  A feeling of  anguish, disappointment and frustration in  one spouse caused by the conduct of the other  can only be appreciated on assessing the  attending facts and circumstances in which  the two partners of matrimonial life have been  living.  The inference has to be drawn from the  attending facts and circumstances taken  cumulatively.  In case of mental cruelty it will  not be a correct approach to take an instance  of misbehaviour in isolation and then pose the  question whether such behaviour is sufficient  by itself to cause mental cruelty.  The  approach should be to take the cumulative  effect of the facts and circumstances emerging  from the evidence on record and then draw a  fair inference whether the petitioner in the  divorce petition has been subjected to mental  cruelty due to conduct of the other."           In this case the Court also stated that so many years  have elapsed since the spouses parted company.  In  these circumstances it can be reasonably inferred that  the marriage between the parties has broken down  irretrievably.         In A. Jayachandra v. Aneel Kaur reported in  (2005) 2 SCC 22, the Court observed as under:         "The expression "cruelty" has not been  defined in the Act. Cruelty can be physical or  mental. Cruelty which is a ground for  dissolution of marriage may be defined as  wilful and unjustifiable conduct of such  character as to cause danger to life, limb or  health, bodily or mental, or as to give rise to a  reasonable apprehension of such a danger.  The question of mental cruelty has to be  considered in the light of the norms of marital  ties of the particular society to which the  parties belong, their social values, status,  environment in which they live. Cruelty, as  noted above, includes mental cruelty, which  falls within the purview of a matrimonial  wrong. Cruelty need not be physical. If from  the conduct of the spouse, same is established  and/or an inference can be legitimately drawn  that the treatment of the spouse is such that it  causes an apprehension in the mind of the  other spouse, about his or her mental welfare  then this conduct amounts to cruelty. In a  delicate human relationship like matrimony,  one has to see the probabilities of the case.  The concept proof beyond the shadow of

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doubt, is to be applied to criminal trials and  not to civil matters and certainly not to  matters of such delicate personal relationship  as those of husband and wife. Therefore, one  has to see what are the probabilities in a case  and legal cruelty has to be found out, not  merely as a matter of fact, but as the effect on  the mind of the complainant spouse because of  the acts or omissions of the other. Cruelty may  be physical or corporeal or may be mental. In  physical cruelty, there can be tangible and  direct evidence, but in the case of mental  cruelty there may not at the same time be  direct evidence. In cases where there is no  direct evidence, Courts are required to probe  into the mental process and mental effect of  incidents that are brought out in evidence. It is  in this view that one has to consider the  evidence in matrimonial disputes.         To constitute cruelty, the conduct  complained of should be "grave and weighty"  so as to come to the conclusion that the  petitioner spouse cannot be reasonably  expected to live with the other spouse. It must  be something more serious than "ordinary  wear and tear of married life".  The conduct  taking into consideration the circumstances  and background has to be examined to reach  the conclusion whether the conduct  complained of amounts to cruelty in the  matrimonial law.  Conduct has to be  considered, as noted above, in the background  of several factors such as social status of  parties, their education, physical and mental  conditions, customs and traditions.  It is  difficult to lay down a precise definition or to  give exhaustive description of the  circumstances, which would constitute  cruelty.  It must be of the type as to satisfy the  conscience of the Court that the relationship  between the parties had deteriorated to such  extent due to the conduct of the other spouse  that it would be impossible for them to live  together without mental agony, torture or  distress, to entitle the complaining spouse to  secure divorce.  Physical violence is not  absolutely essential to constitute cruelty and a  consistent course of conduct inflicting  immeasurable mental agony and torture may  well constitute cruelty within the meaning of  Section 10 of the Act.  Mental cruelty may  consist of verbal abuses and insults by using  filthy and abusive language leading to constant  disturbance of mental peace of the other party.

        The Court dealing with the petition for  divorce on the ground of cruelty has to bear in  mind that the problems before it are those of  human beings and the psychological changes  in a spouse’s conduct have to be borne in  mind before disposing of the petition for  divorce. However, insignificant or trifling, such  conduct may cause pain in the mind of  another. But before the conduct can be called  cruelty, it must touch a certain pitch of

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severity. It is for the Court to weigh the gravity.  It has to be seen whether the conduct was  such that no reasonable person would tolerate  it. It has to be considered whether the  complainant should be called upon to endure  as a part of normal human life. Every  matrimonial conduct, which may cause  annoyance to the other, may not amount to  cruelty. Mere trivial irritations, quarrels  between spouses, which happen in day-to-day  married life, may also not amount to cruelty.  Cruelty in matrimonial life may be of  unfounded variety, which can be subtle or  brutal. It may be words, gestures or by mere  silence, violent or non-violent."

       This Court in Vinita Saxena v. Pankaj Pandit  reported in (2006) 3 SCC 778 aptly observed as under:         "As to what constitutes the required  mental cruelty for the purposes of the said  provision, will not depend upon the numerical  count of such incidents or only on the  continuous course of such conduct but really  go by the intensity, gravity and stigmatic  impact of it when meted out even once and the  deleterious effect of it on the mental attitude,  necessary for maintaining a conducive  matrimonial home.  

       If the taunts, complaints and reproaches  are of ordinary nature only, the court perhaps  need consider the further question as to  whether their continuance or persistence over  a period of time render, what normally would,  otherwise, not be so serious an act to be so  injurious and painful as to make the spouse  charged with them genuinely and reasonably  conclude that the maintenance of matrimonial  home is not possible any longer."

       In Shobha Rani’s case (supra) at pp.108-09, para  5, the Court observed as under:         "5. Each case may be different.  We deal  with the conduct of human beings who are no  generally similar.  Among the human beings  there is no limit to the kind of conduct which  may constitute cruelty.  New type of cruelty  may crop up in any case depending upon the  human behaviour, capacity or incapability to  tolerate the conduct complained of.  Such is  the wonderful (sic) realm of cruelty."

       In this case, the Court cautioned the lawyers and  judges not to import their own notions of life in dealing  with matrimonial problems. The judges should not  evaluate the case from their own standards.  There may  be a generation gap between the judges and the parties.   It is always prudent if the judges keep aside their  customs and manners in deciding matrimonial cases in  particular.          In a recent decision of this Court in the case of  Rishikesh Sharma v. Saroj Sharma reported in 2006  (12) Scale 282, this Court observed that the respondent

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wife was living separately from the year 1981 and the  marriage has broken down irretrievably with no  possibility of the parties living together again.  The Court  further observed that it will not be possible for the parties  to live together and therefore there was no purpose in  compelling both the parties to live together.  Therefore  the best course was to dissolve the marriage by passing a  decree of divorce so that the parties who were litigating  since 1981 and had lost valuable part of life could live  peacefully in remaining part of their life.  The Court  further observed that her desire to live with her husband  at that stage and at that distance of time was not  genuine.           This Court observed that under such  circumstances, the High Court was not justified in  refusing to exercise its jurisdiction in favour of the  appellant who sought divorce from the Court.           "Mental cruelty" is a problem of human behaviour.   This human problem unfortunately exists all over the  world.  Existence of similar problem and its adjudication  by different courts of other countries would be of great  relevance, therefore, we deem it appropriate to examine  similar cases decided by the Courts of other jurisdictions.   We must try to derive benefit of wisdom and light  received from any quarter. ENGLISH CASES:           William Latey, in his celebrated book ’The Law and  Practice in Divorce and Matrimonial Causes’ (15th Edition)  has stated that there is no essential difference between  the definitions of the ecclesiastical courts and the post- 1857 matrimonial courts of legal cruelty in the marital  sense.  The authorities were fully considered by the Court  of Appeal and the House of Lords in Russell v. Russell  (1897) AC 395 and the principle prevailing in the Divorce  Court (until the Divorce Reform Act, 1969 came in force),  was as follows:         Conduct of such a character as to have  caused danger to life, limb, or health, bodily or  mental, or as to give rise to a reasonable  apprehension of such danger. {see: Russell v.  Russell (1895) P. 315 (CA)}.

       In England, the Divorce Reform Act, 1969 came into  operation on January 1, 1971.  Thereafter the distinction  between the sexes is abolished, and there is only one  ground of divorce, namely that the marriage has broken  down irretrievably.   The Divorce Reform Act, 1969 was  repealed by the Matrimonial Causes Act, 1973, which  came into force on January 1, 1974.   The sole ground on  which a petition for divorce may be presented to the  court by either party to a marriage is that the marriage  has broken down irretrievably.            Lord Stowell’s proposition in Evans v. Evans (1790)  1 Hagg Con 35 was approved by the House of Lords and  may be put thus: before the court can find a husband  guilty of legal cruelty towards his wife, it is necessary to  show that he has either inflicted bodily injury upon her,  or has so conducted himself towards her as to render  future cohabitation more or less dangerous to life, or  limb, or mental or bodily health.  He was careful to avoid  any definition of cruelty, but he did add: ’The causes  must be grave and weighty, and such as to show an  absolute impossibility that the duties of married life can  be discharged’.  But the majority of their Lordships in  Russell v. Russell (1897) (supra) declined to go beyond

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the definition set out above.  In this case, Lord Herschell  observed as under:         "It was conceded by the learned  counsel for the appellant, and is, indeed,  beyond controversy, that it is not every act  of cruelty in the ordinary and popular sense  of that word which amounted to saevitia,  entitling the party aggrieved to a divorce;  that there might be many wilful and  unjustifiable acts inflicting pain and misery  in respect of which that relief could not be  obtained."         Lord Merriman, in Waters v. Waters (1956) 1 All.  E.R. 432 observed that intention to injure was not  necessary ingredient of cruelty.         Sherman, J. in Hadden v. Hadden, The Times,  December 5, 1919, (also reported in Modern Law Review  Vol.12, 1949 at p.332) very aptly mentioned that he had  no intention of being cruel but his intentional acts  amounted to cruelty.  In this case, it was observed as  under: ’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 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 upon to endure it.’

       Lord Simon in Watt (or Thomas) v. Thomas [(1947)  1 All E.R. 582 at p. 585] observed as under:         "\005 the leading judicial authorities in both  countries who have dealt with this subject are  careful not to speak in too precise and  absolute terms, for the circumstances which  might conceivably arise in an unhappy married  life are infinitely various.           Lord Stowell in Evans v. Evans 1790 (1)  Hagg Con 35 avoids giving a "direct definition".   While insisting that "mere austerity of temper,  petulance of manners, rudeness of language,  want of civil attention and accommodation,  even occasional sallies of passion, if they do  not threaten bodily harm, do not amount to  legal cruelty."

       In Simpson v. Simpson (1951) 1 All E.R. 955, the  Court observed that:         "When the legal conception of cruelty is  described as being conduct of such a character  as to cause danger to life, limb or health,  bodily or mental, or to give rise to a reasonable  apprehension of such danger, it is vital to bear  in mind that it comprises two distinct  elements: first, the ill-treatment complained of,  and, secondly, the resultant danger or the  apprehension thereof.  Thus, it is inaccurate,  and liable to lead to confusion, if the word  "cruelty" is used as descriptive only of the  conduct complained of, apart from its effect on  the victim.          

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       Lord Reid, concurring, reserved opinion as to cases  of alleged cruelty in which the defender had shown  deliberate intention, though he did not doubt that there  were many cases where cruelty could be established  without its being necessary to be satisfied by evidence  that the defender had such an intention.  Lord Tucker,  also concurring, said: ’Every act must be judged in relation to its  attendant circumstances, and the physical or  mental condition or susceptibilities of the  innocent spouse, the intention of the offending  spouse and the offender’s knowledge of the  actual or probable effect of his conduct on the  other’s health are all matters which may be  decisive in determining on which side of the  line a particular act or course of conduct lies.’

       In Prichard v. Pritchard (1864) 3 S&T 523, the  Court observed that repeated acts of unprovoked violence  by the wife were regarded as cruelty, although they might  not inflict serious bodily injury on the husband.          Wilde, J.O. in Power v. Power (1865) 4 SW & Tr.  173 aptly observed that cruelty lies in the cumulative ill  conduct which the history of marriage discloses.          In Bravery v. Bravery (1954) 1 WLR 1169, by  majority, the Court held as under: ’If a husband submitted himself to an  operation for sterilization without a medical  reason and without his wife’s knowledge or  consent it could constitute cruelty to his wife.   But where such an operation was performed to  the wife’s knowledge, though without her  consent and she continued to live with him for  thirteen years, it was held that the operation  did not amount to cruelty.’

       Lord Tucker in Jamieson v. Jamieson (1952) I All  E.R. 875 aptly observed that "Judges have always  carefully refrained from attempting a comprehensive  definition of cruelty for the purposes of matrimonial  suits, and experience has shown the wisdom of this  course".           In Le Brocq v. Le Brockq [1964] 3 All E.R. 464, at  p. 465, the court held as under: "I think \005. that ’cruel’ is not used in any  esoteric or ’divorce court’ sense of that word,  but that the conduct complained of must be  something which an ordinary man or a jury  \005.. would describe as ’cruel’ if the story were  fully told."                  In Ward v. Ward [(1958) 2 All E.R. 217, a refusal to  bear children followed by a refusal of intercourse and  frigidity, so that the husband’s health suffered, was held  to be cruelty; so also the practice by the husband of  coitus interruptus against the wish of his wife though she  desired to have a child.  (Also see: White (otherwise Berry)  v. White [1948] 2 All E.R. 151; Walsham v. Walsham,  [1949] I All E.R. 774; Cackett (otherwise Trice) v. Cackett,  [1950] I All E.R. 677; Knott v. Knott [1955] 2 All E.R. 305.         Cases involving the refusal of sexual intercourse  may vary considerably and in consequence may or may  not amount to cruelty, dependent on the facts and  circumstances of the parties.  In Sheldon v. Sheldon,  [1966] 2 All E.R. 257, Lord Denning, M.R. stated at p.

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259: "The persistent refusal of sexual intercourse  may amount to cruelty, at any rate when it  extends over a long period and causes grave  injury to the health of the other. One must of  course, make allowances for any excuses that  may account for it, such as ill-health, or time  of life, or age, or even psychological infirmity.   These excuses may so mitigate the conduct  that the other party ought to put up with it.  It  after making all allowances however, the  conduct is such that the other party should  not be called upon to endure it, then it is  cruelty."

       Later, Lord Denning, at p. 261, said that the refusal  would usually need to be corroborated by the evidence of  a medical man who had seen both parties and could  speak to the grave injury to health consequent thereon.   In the same case, Salmon, L. J. stated at p. 263: "For my part, I am quite satisfied that if the  husband’s failure to have sexual intercourse  had been due to impotence, whether from  some psychological or physical cause, this  petition would be hopeless. No doubt the lack  of sexual intercourse might in such a case  equally have resulted in a breakdown in his  wife’s health.  I would however regard the  husband’s impotence as a great misfortune  which has befallen both of them."

There can be cruelty without any physical violence, and  there is abundant authority for recognizing mental or  moral cruelty, and not infrequently the worst cases  supply evidence of both.  It is for the judges to review the  married life of the parties in all its aspects.   The several  acts of alleged cruelty, physical or mental, should not be  taken separately.  Several acts considered separately in  isolation may be trivial and not hurtful but when  considered cumulatively they might well come within the  description of cruelty.  (see: Jamieson v. Jamieson, [1952]  I All E.R. 875; Waters v. Waters, [1956] I All E.R. 432.   "The general rule in all questions of cruelty is that the  whole matrimonial relations must be considered." (per  Lord Normand in King v. King [1952] 2 All E.R. 584).                    In Warr v. Warr [1975] I All ER 85), the Court  observed that "Section 1(2)(c) of the Matrimonial Causes  Act, 1973 provides that irretrievable breakdown may be  proved by satisfying the court that the respondent has  deserted the petitioner for a continuous period of at least  two years immediately preceding the presentation of the  petition."

AMERICAN CASES:         In Jem v. Jem [(1937) 34 Haw. 312], the Supreme  Court of Hawaii aptly mentioned that cruel treatment not  amounting to physical cruelty is mental cruelty.

       While dealing with the matter of extreme cruelty,  the Supreme Court of South Dakota in the case of  Hybertson v. Hybertson (1998) 582 N.W. 2d 402 held as  under: "Any definition of extreme cruelty in a marital  setting must necessarily differ according to the

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personalities of the parties involved. What  might be acceptable and even common place in  the relationship between rather stolid  individuals could well be extraordinary and  highly unacceptable in the lives of more  sensitive or high-strung husbands and wives.  Family traditions, ethnic and religious  backgrounds, local customs and standards  and other cultural differences all come into  play when trying to determine what should fall  within the parameters of a workable marital  relationship and what will not."

       In Rosenbaum v. Rosenbaum [(1976) 38 Ill.App.3d.  1] the Appellate Court of Illinois held as under: "To prove a case entitling a spouse to divorce  on the ground of mental cruelty, the evidence  must show that the conduct of the offending  spouse is unprovoked and constitutes a course  of abusive and humiliating treatment that  actually affects the physical or mental health  of the other spouse, making the life of the  complaining spouse miserable, or endangering  his or her life, person or health."

       In the case of Fleck v. Fleck 79 N.D. 561, the  Supreme Court of North Dakota dealt with the concept of  cruelty in the following words: "The decisions defining mental cruelty employ  such a variety of phraseology that it would be  next to impossible to reproduce any generally  accepted form. Very often, they do not purport  to define it as distinct from physical cruelty,  but combine both elements in a general  definition of ’cruelty,’ physical and mental. The  generally recognized elements are:    (1)     A course of abusive and humiliating  treatment;

(2)     Calculated or obviously of a nature to  torture, discommode, or render miserable the  life of the opposite spouse; and

(3)     Actually affecting the physical or mental  health of such spouse."

                In Donaldson v. Donaldson [(1917) 31 Idaho 180,  170 P. 94], the Supreme Court of Idaho also came to the  conclusion that no exact and exclusive definition of legal  cruelty is possible.  The Court referred to 9 RCL p. 335  and quoted as under: "It is well recognized that no exact inclusive  and exclusive definition of legal cruelty can be  given, and the courts have not attempted to do  so, but generally content themselves with  determining whether the facts in the particular  case in question constitute cruelty or not.  Especially, according to the modern view, is  the question whether the defending spouse has  been guilty of legal cruelty a pure question of  fact to be resolved upon all the circumstances

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of the case."

CANADIAN CASES:         In a number of cases, the Canadian Courts had  occasions to examine the concept of ’cruelty’.  In  Chouinard v. Chouinard 10 D.L.R. (3d) 263], the  Supreme Court of New Brunswick held as under: "Cruelty which constitutes a ground for divorce  under the Divorce Act, whether it be mental or  physical in nature, is a question of fact.  Determination of such a fact must depend on  the evidence in the individual case being  considered by the court. No uniform standard  can be laid down for guidance; behaviour  which may constitute cruelty in one case may  not be cruelty in another.  There must be to a  large extent a subjective as well as an objective  aspect involved; one person may be able to  tolerate conduct on the part of his or her  spouse which would be intolerable to another.  Separation is usually preceded by marital  dispute and unpleasantness. The court should  not grant a decree of divorce on evidence of  merely distasteful or irritating conduct on the  part of the offending spouse. The word ’cruelty’  denotes excessive suffering, severity of pain,  mercilessness; not mere displeasure, irritation,  anger or dissatisfaction; furthermore, the Act  requires that cruelty must be of such a kind as  to render intolerable continued cohabitation."

       In Knoll v. Knoll 10 D.L.R. (3d) 199, the Ontario  Court of Appeal examined this matter.  The relevant  portion reads as under:         "Over the years the courts have  steadfastly refrained from attempting to  formulate a general definition of cruelty. As  used in ordinary parlance "cruelty" signifies a  disposition to inflict suffering; to delight in or  exhibit indifference to the pain or misery of  others; mercilessness or hard-heartedness as  exhibited in action. If in the marriage  relationship one spouse by his conduct causes  wanton, malicious or unnecessary infliction of  pain or suffering upon the body, the feelings or  emotions of the other, his conduct may well  constitute cruelty which will entitle a petitioner  to dissolution of the marriage if, in the court’s  opinion, it amounts to physical or mental  cruelty "of such a kind as to render intolerable  the continued cohabitation of the spouses."  

       In Luther v. Luther [(1978) 5 R.F.L. (2d) 285, 26  N.S.R. (2d) 232, 40 A.P.R. 232], the Supreme Court of  Nova Scotia held as under: "7.     The test of cruelty is in one sense a  subjective one, namely, as has been said many  times, is this conduct by this man to this  woman, or vice versa, cruelty? But that does  not mean that what one spouse may consider  cruel is necessarily so. Cruelty must involve  serious and weighty matters, which,

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reasonably considered, may cause physical or  mental suffering. It must furthermore -- an  important additional requirement -- be of such  a nature and kind as to render such conduct  intolerable to a reasonable person."

The Supreme Court further held as under:   "9.     To constitute mental cruelty, conduct  must be much more than jealousy, selfishness  or possessiveness which causes unhappiness,  dissatisfaction or emotional upset. Even less  can mere incompatibility or differences in  temperament, personality or opinion be  elevated to grounds for divorce."

       In another case Zalesky v. Zalesky 1 D.L.R. (3d)  471, the Manitoba Court of Queen’s Bench observed that  where cohabitation of the spouses become intolerable  that would be another ground of divorce.  The Court held  as under:         "There is now no need to consider  whether conduct complained of caused ’danger  to life, limb, or health, bodily or mentally, or a  reasonable apprehension of it’ or any of the  variations of that definition to be found in the  Russell case.

       In choosing the words ’physical or mental  cruelty of such a kind as to render intolerable  the continued cohabitation of the spouses’  Parliament gave its own fresh complete  statutory definition of the conduct which is a  ground for divorce under s. 3(d) of the Act."

AUSTRALIAN CASES:

       In Dunkley v. Dunkley (1938) SASR 325, the Court  examined the term "legal cruelty" in the following words:   "’Legal cruelty’, means conduct of such a  character as to have caused injury or danger  to life, limb or health (bodily or mental), or as  to give rise to a reasonable apprehension of  danger. Personal violence, actual or  threatened, may alone be sufficient; on the  other hand, mere vulgar abuse or false  accusations of adultery are ordinarily not  enough; but, if the evidence shows that  conduct of this nature had been persisted in  until the health of the party subjected to it  breaks down, or is likely to break down, under  the strain, a finding of cruelty is justified."

       In La Rovere v. La Rovere [4 FLR 1], the Supreme  Court of Tasmania held as under: "When the legal conception of cruelty is  described as being conduct of such a character  as to cause danger to life, limb or health,  bodily or mental, or to give rise to a reasonable  apprehension of such danger, it is vital to bear  in mind that it comprises two distinct  elements: first, the ill-treatment complained of,

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and, secondly, the resultant danger or the  apprehension thereof. Thus it is inaccurate  and liable to lead to confusion, if the word  ’cruelty’ is used as descriptive only of the  conduct complained of, apart from its effect on  the victim."

       We have examined and referred to the cases from  the various countries.  We find strong basic similarity in  adjudication of cases relating to mental cruelty in  matrimonial matters.  Now, we deem it appropriate to  deal with the 71st report of the Law Commission of India  on "Irretrievable Breakdown of Marriage".   

       The 71st Report of the Law Commission of India  briefly dealt with the concept of irretrievable breakdown  of marriage.  This Report was submitted to the  Government on 7th April, 1978. In this Report, it is  mentioned that during last 20 years or so, and now it  would be around 50 years, a very important question has  engaged the attention of lawyers, social scientists and  men of affairs, should the grant of divorce be based on  the fault of the party, or should it be based on the  breakdown of the marriage?  The former is known as the  matrimonial offence theory or fault theory.  The latter has  come to be known as the breakdown theory.  It would be  relevant to recapitulate recommendation of the said  Report.     

       In the Report, it is mentioned that the germ of the  breakdown theory, so far as Commonwealth countries  are concerned, may be found in the legislative and  judicial developments during a much earlier period.  The  (New Zealand) Divorce and Matrimonial Causes  Amendment Act, 1920, included for the first time the  provision that a separation agreement for three years or  more was a ground for making a petition to the court for  divorce and the court was given a discretion (without  guidelines) whether to grant the divorce or not.  The  discretion conferred by this statute was exercised in a  case Lodder v. Lodder 1921 New Zealand Law Reports  786.  Salmond J., in a passage which has now become  classic, enunciated the breakdown principle in these  words: "The Legislature must, I think, be taken to  have intended that separation for three years  is to be accepted by this court, as prima facie a  good ground for divorce.  When the  matrimonial relation has for that period ceased  to exist de facto, it should, unless there are  special reasons to the contrary, cease to exist  de jure also.  In general, it is not in the  interests of the parties or in the interest of the  public that a man and woman should remain  bound together as husband and wife in law  when for a lengthy period they have ceased to  be such in fact.  In the case of such a  separation the essential purposes of marriage  have been frustrated, and its further  continuance is in general not merely useless  but mischievous."                  In the said Report, it is mentioned that restricting  the ground of divorce to a particular offence or

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matrimonial disability, causes injustice in those cases  where the situation is such that although none of the  parties is at fault, or the fault is of such a nature that the  parties to the marriage do not want to divulge it, yet such  a situation has arisen in which the marriage cannot  survive.  The marriage has all the external appearances  of marriage, but none in reality.  As is often put pithily,  the marriage is merely a shell out of which the substance  is gone.   In such circumstances, it is stated, there is  hardly any utility in maintaining the marriage as a  fagade, when the emotional and other bonds which are of  the essence of marriage have disappeared.   

       It is also mentioned in the Report that in case the  marriage has ceased to exist in substance and in reality,  there is no reason for denying divorce, then the parties  alone can decide whether their mutual relationship  provides the fulfilment which they seek.  Divorce should  be seen as a solution and an escape route out of a  difficult situation.  Such divorce is unconcerned with the  wrongs of the past, but is concerned with bringing the  parties and the children to terms with the new situation  and developments by working out the most satisfactory  basis upon which they may regulate their relationship in  the changed circumstances.

       Once the parties have separated and the separation  has continued for a sufficient length of time and one of  them has presented a petition for divorce, it can well be  presumed that the marriage has broken down. The court,  no doubt, should seriously make an endeavour to  reconcile the parties; yet, if it is found that the  breakdown is irreparable, then divorce should not be  withheld.  The consequences of preservation in law of the  unworkable marriage which has long ceased to be  effective are bound to be a source of greater misery for  the parties.           Law of divorce based mainly on fault is inadequate  to deal with a broken marriage.  Under the fault theory,  guilt has to be proved; divorce courts are presented  concrete instances of human behaviour as bring the  institution of marriage into disrepute.

       This Court in Naveen Kohli v. Neelu Kohli  reported in (2006) 4 SCC 558 dealt with the similar  issues in detail. Those observations incorporated in  paragraphs 74 to 79 are reiterated in the succeeding  paragraphs.        "74.    We have been principally impressed by  the consideration that once the marriage has  broken down beyond repair, it would be  unrealistic for the law not to take notice of that  fact, and it would be harmful to society and  injurious to the interests of the parties.  Where  there has been a long period of continuous  separation, it may fairly be surmised that the  matrimonial bond is beyond repair.  The  marriage becomes a fiction, though supported  by a legal tie.   By refusing to sever that tie the  law in such cases does not serve the sanctity  of marriage; on the contrary, it shows scant  regard for the feelings and emotions of the  parties.

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75. Public interest demands not only that the  married status should, as far as possible, as  long as possible, and whenever possible, be  maintained, but where a marriage has been  wrecked beyond the hope of salvage, public  interest lies in the recognition of that fact.   

76.     Since there is no acceptable way in which  a spouse can be compelled to resume life with  the consort, nothing is gained by trying to keep  the parties tied for ever to a marriage that in  fact has ceased to exist."    

77.     Some jurists have also expressed their  apprehension for introduction of irretrievable  breakdown of marriage as a ground for grant  of the decree of divorce. In their opinion, such  an amendment in the Act would put human  ingenuity at a premium and throw wide open  the doors to litigation, and will create more  problems then are sought to be solved.

78. The other majority view, which is shared  by most jurists, according to the Law  Commission Report, is that human life has a  short span and situations causing misery  cannot be allowed to continue indefinitely.  A  halt has to be called at some stage.  Law  cannot turn a blind eye to such situations, nor  can it decline to give adequate response to the  necessities arising therefrom.

79. When we carefully evaluate the judgment  of the High Court and scrutinize its findings in  the background of the facts and circumstances  of this case, it becomes obvious that the  approach adopted by the High Court in  deciding this matter is far from satisfactory."

       On proper analysis and scrutiny of the judgments of  this Court and other Courts, we have come to the definite  conclusion that there cannot be any comprehensive  definition of the concept of ’mental cruelty’ within which  all kinds of cases of mental cruelty can be covered.   No  court in our considered view should even attempt to give  a comprehensive definition of mental cruelty.   

       Human mind is extremely complex and human  behaviour is equally complicated. Similarly human  ingenuity has no bound, therefore, to assimilate the  entire human behaviour in one definition is almost  impossible.  What is cruelty in one case may not amount  to cruelty in other case.  The concept of cruelty differs  from person to person depending upon his upbringing,  level of sensitivity, educational, family and cultural  background, financial position, social status, customs,  traditions, religious beliefs, human values and their value  system.                    Apart from this, the concept of mental cruelty  cannot remain static; it is bound to change with the  passage of time, impact of modern culture through print  and electronic media and value system etc. etc.   What  may be mental cruelty now may not remain a mental

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cruelty after a passage of time or vice versa.  There can  never be any strait-jacket formula or fixed parameters for  determining mental cruelty in matrimonial matters.     The prudent and appropriate way to adjudicate the case  would be to evaluate it on its peculiar facts and  circumstances while taking aforementioned factors in  consideration.  

       No uniform standard can ever be laid down for  guidance, yet we deem it appropriate to enumerate some  instances of human behaviour which may be relevant in  dealing with the cases of ’mental cruelty’.  The instances  indicated in the succeeding paragraphs are only  illustrative and not exhaustive.   (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.

(ii)    On comprehensive appraisal of the entire  matrimonial life of the parties, it becomes  abundantly clear that situation is such  that the wronged party cannot reasonably  be asked to put up with such conduct  and continue to live with other party.  

(iii)   Mere coldness or lack of affection cannot  amount to cruelty, frequent rudeness of  language, petulance of manner,  indifference and neglect may reach such  a degree that it makes the married life for  the other spouse absolutely intolerable.   

(iv)    Mental cruelty is a state of mind.  The  feeling of deep anguish, disappointment,  frustration in one spouse caused by the  conduct of other for a long time may lead  to mental cruelty.

(v)     A sustained course of abusive and  humiliating treatment calculated to  torture, discommode or render miserable  life of the spouse.

(vi)    Sustained unjustifiable conduct and  behaviour of    one     spouse actually  affecting physical and mental   health of  the other spouse.  The treatment  complained of and the resultant danger  or      apprehension must be very grave,  substantial and weighty.

(vii)   Sustained reprehensible conduct, studied  neglect, indifference or total departure  from the normal standard of conjugal  kindness        causing injury to mental health  or deriving sadistic pleasure can also  amount to mental cruelty.

(viii)  The conduct must be much more than  jealousy,       selfishness, possessiveness,  which causes unhappiness and  dissatisfaction and emotional upset may

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not be a ground for grant of divorce on  the ground of mental cruelty.

(ix)    Mere trivial irritations, quarrels, normal  wear and        tear of the married life which  happens in day to day life would not be  adequate for grant of divorce on the  ground of mental cruelty.  

(x)     The married life should be reviewed as a  whole and a few isolated instances over a  period of years will not amount to cruelty.  The ill-conduct must be         persistent for a  fairly lengthy period, where the  relationship has deteriorated to an extent  that    because of the acts and behaviour of  a spouse, the   wronged party finds it  extremely difficult to live with        the other  party any longer, may amount to mental  cruelty.

(xi)    If a husband submits himself for an  operation of    sterilization without  medical reasons and without the consent  or knowledge of his wife and similarly if  the wife undergoes vasectomy or abortion  without medical reason or without the  consent or knowledge of her husband,  such an act of the spouse may lead to  mental cruelty.

(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.

       When we take into consideration aforementioned  factors along with an important circumstance that the  parties are admittedly living separately for more than  sixteen and half years (since 27.8.1990) the irresistible  conclusion would be that matrimonial bond has been  ruptured beyond repair because of the mental cruelty  caused by the respondent.                  The High Court in the impugned judgment seriously  erred in reversing the judgment of the learned Additional  Sessions Judge.  The High Court in the impugned  judgment ought to have considered the most important

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and vital circumstance of the case in proper perspective  that the parties have been living separately since 27th  August, 1990 and thereafter, the parties did not have any  interaction with each other.  When the appellant was  seriously ill and the surgical intervention of bye-pass  surgery had to be restored to, even on that occasion,  neither the respondent nor her father or any member of  her family bothered to enquire about the health of the  appellant even on telephone.  This instance is clearly  illustrative of the fact that now the parties have no  emotions, sentiments or feelings for each other at least  since 27.8.1990.  This is a clear case of irretrievable  breakdown of marriage.  In our considered view, it is  impossible to preserve or save the marriage.  Any further  effort to keep it alive would prove to be totally counter- productive.         In the backdrop of the spirit of a number of decided  cases, the learned Additional District Judge was fully  justified in decreeing the appellant’s suit for divorce.  In  our view, in a case of this nature, no other logical view is  possible.              On proper consideration of cumulative facts and  circumstances of this case, in our view, the High Court  seriously erred in reversing the judgment of the learned  Additional District Judge which is based on carefully  watching the demeanour of the parties and their  respective witnesses and the ratio and spirit of the  judgments of this Court and other Courts.   The High  Court erred in setting aside a well-reasoned judgment of  the trial court based on the correct analysis of the  concept of mental cruelty.  Consequently, the impugned  judgment of the High Court is set aside and the judgment  of the learned Additional District Judge granting the  decree of divorce is restored.          This appeal is accordingly disposed of but, in the  facts and circumstances of the case, we direct the parties  to bear their own costs.