REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6582 OF 2008 ARISING OUT OF

SPECIAL LEAVE PETITION (CIVIL) NO. 10907 OF 2007

SUMAN KAPUR … APPELLANT

VERSUS

SUDHIR KAPUR …  RESPONDENT

J U D G M E N T C.K. THAKKER, J. 1. Leave granted.

2. The  present  appeal  is  filed  by  the

appellant-wife being aggrieved and dissatisfied

with the decree of divorce dated August 07,

2004 passed by the Additional District Judge,

Delhi in HMA No. 322/2001/96 and confirmed by

the High Court of Delhi on January 29, 2007 in

Matrimonial Appeal No. 62 of 2004.

3. The  facts  in  nutshell  are  that  the

appellant  Suman  Kapur  is  the  wife  and

respondent Sudhir Kapur is the husband.  The

matrimonial alliance was entered into between

the parties as per Hindu rites and rituals in

Delhi on March 04, 1984.  It was the case of

the  appellant  that  both  the  parties  were

friends from childhood and were knowing each

other  since  1966.   They  had  also  studied

together in the same school. They were very

close since 1974 and after a friendship of more

than  a  decade,  they  decided  to  marry.   The

marriage  was  inter-caste  marriage.   Though

initially  parents  of  both  the  parties  were

opposed  to  the  marriage,  subsequently,  they

consented. The parties have no issue from the

said wedlock.

4. The appellant has a brilliant academic

record  and  has  been  the  recipient  of  the

prestigious  Lalor  Foundation  Fellowship  of

United  States  of  America  (USA),  offered  to

young scientists for outstanding performance in

the area of research.  According to her, at the

time of her marriage, she was in employment

with the Department of Bio-chemistry in the All

India Institute of Medical Sciences (AIIMS) and

was also pursuing her Ph.D.

5. It is the case of the appellant that

she  conceived  for  the  first  time  in  1984,

within  a  period  of  about  one  month  of  the

marriage, but on account of being exposed to

harmful radiations as a part of lab work of her

Ph.D.  thesis,  she  decided  to  terminate  the

pregnancy.  The appellant asserted that it was

done  with  the  knowledge  and  consent  of  the

respondent-husband.

6. Again, in 1985, she  conceived.   But

even  that  pregnancy  was  required  to  be

terminated on the ground of an acute kidney

infection for which she had to undergo an IVP,

which  entailed  six  abdominal  X-rays  and

radiometric  urinary  reflect  test  with

radioactive  drinking  dye.   She  claimed  that

even the second pregnancy was terminated with

the knowledge and consent of the respondent-

husband.

7. According to the appellant, third time

she became pregnant in 1989, but she suffered

natural  abortion  on  account  of  having  a

congenitally  small  uterus  and  thus  prone  to

recurrent miscarriages.

8. It is the case of the appellant that

though she was well-placed and having good job

in  AIIMS  in  Delhi,  only  with  a  view  to

accompany  her  husband  who  was  serving  in

Bombay, she left the job.  In 1988, the parties

together  left  for  USA.   The  appellant  was

awarded Lalor Foundation Fellowship in USA for

which she had to move to Kansas city and could

not join the respondent-husband at the place of

his work.

9. The case of the respondent-husband, on

the other hand was that since solemnization of

marriage  between  the  parties,  the  attitude,

conduct  and  behaviour  of  the  appellant-wife

towards the respondent as well as his family

members was indignant and rude.  It was alleged

by him that first pregnancy was terminated in

1984 by the appellant-wife without consent and

even without knowledge of the respondent.  Same

thing was repeated at the time of termination

of second pregnancy in 1985.  He was kept in

complete dark about the so-called miscarriage

by the appellant-wife in 1989.  The respondent

was  thus  very  much  aggrieved  since  he  was

denied the joy of feeling of fatherhood and the

parents of the respondent were also deprived of

grand-parenthood of a new arrival. It was also

contended by the respondent that the attitude

of the appellant-wife towards her in-laws was

humiliating.  Several instances were cited in

support of the said conduct and behaviour by

the husband.

10. The  respondent-husband,  therefore,

filed  HMA  No.  322/2001/96  in  the  Court  of

Additional District Judge, Delhi under Section

13(1)(ia) and (ib) of the Hindu Marriage Act,

1955 (hereinafter referred to as ‘the Act’) for

getting divorce from the appellant-wife.  Two

grounds were taken by the respondent-husband in

the said petition, i.e. (i) cruelty and (ii)

desertion.  It was alleged by the husband that

the wife was all throughout conscious, mindful

and  worried  of  one  thing  and  that  was  her

career.  In view of her thinking only in one

direction, she deprived the respondent-husband

of conjugal rights and matrimonial obligations.

She  also  treated  the  family  members  of  the

respondent-husband with cruelty.  She, without

consent or even knowledge of the respondent-

husband, got her pregnancy terminated twice in

1984 as well as in 1985 and falsely stated that

there was natural miscarriage at the time of

third pregnancy in 1989.  At no point of time,

she had taken consent of the husband nor even

she  had  informed  about  the  termination  of

pregnancy  or  about  miscarriage  to  the

respondent.   At  several  occasions,  she  had

stated that she was not interested at all in

living  with  the  respondent-husband  and  to

perform marital obligations.  She had made it

explicitly clear to the respondent-husband that

she was not willing to be a mother at the cost

of her career.  She had specifically told the

respondent-husband  that  if  he  was  very  much

interested and eager to be a father and his

mother  (respondent’s  mother)  wanted  to  be  a

grand-mother, he could enter into marriage tie

with any other woman, but the appellant-wife

would not give up her career.  She had also

stated  that  she  had  no  objection  if  the

respondent adopts a child which action would

not adversely affect her career. She had issued

a  notice  to  the  respondent-husband  that  it

would  be  better  that  they  would  peacefully

separate  from  each  other  so  that  the

respondent-husband may be able to fulfil the

wishes of his parents and the appellant-wife

may pursue her future career. The respondent-

husband,  therefore,  submitted  that  the  case

attracted both the provisions, viz. (i) cruelty

on the part of the wife under clause (ia) of

sub-section  (1)  of  Section  13  and  (ii)

desertion of matrimonial home and refusal to

perform  marital  obligations  falling  under

clause (ib) of sub-section (1) of Section 13 of

the Act.  On both the grounds, the respondent-

husband was entitled to a decree of divorce.

11. The  appellant-wife  in  her  objections

denied  the  allegations  of  the  husband.

According to her, she was doing her best to

please  her  husband  as  well  as  her  in-laws.

Precisely for that purpose, she had left her

service in Delhi and joined the husband.  It

was admitted that she was in service and was

also  interested  in  career  as  she  was  well-

educated lady and wanted to contribute to the

society.  But that did not mean that she was

not performing her marital obligations.  It was

an  admitted  fact  that  immediately  after  her

marriage, she conceived and she was very happy

about  it.   Unfortunately,  however,  for  the

circumstances  beyond  her  control,  she  was

compelled to get the pregnancy terminated with

the knowledge and consent of her husband.  The

same thing was repeated in 1985. In 1989, there

was  natural  miscarriage.  She  also  contended

that  she  had  to  go  to  USA  for  receiving

prestigious  award  of  Lalor  Foundation

Fellowship.  According to her, instead of being

happy  about  the  progress  of  the  wife,  the

husband had initiated the present proceedings

with jealousy and hence, he was not entitled to

a decree of divorce.  Even otherwise, there was

no cruelty on her part.  According to the wife,

during regular intervals, the parties used to

stay  together  and  the  appellant  had  never

refused to perform her matrimonial obligations

or even had shown her intention to deprive the

husband of conjugal rights.  It was, therefore,

submitted that the husband was not entitled to

the relief sought by him and the petition was

liable to be dismissed.

12. The  trial  Court  after  hearing  the

parties held that the husband was not entitled

to a decree of divorce on the ground that the

wife had deserted the husband for a continuous

period of not less than two years immediately

preceding  the  presentation  of  the  petition.

He, however, held that it was fully established

by the husband that there was cruelty on the

part  of  the  wife.   The  wife  without  the

knowledge and consent of the husband got her

pregnancy terminated twice – firstly in 1984

and secondly in 1985.  The husband was also not

informed about natural miscarriage in 1989.  A

finding was also recorded by the trial Court

that  the  wife  was  not  ready  and  willing  to

perform matrimonial obligations and she always

attempted  to  stay  away  from  her  husband  by

depriving conjugal rights of the husband.  It

was, therefore, a case of mental cruelty.  The

trial Court also referred to several letters

written  by  wife  to  the  husband,  and  notice

issued by the wife through an advocate which

went to show that she was not interested in

performing marital obligations and continuing

marital relations with the husband.  The Court

also relied upon various entries made by the

appellant-wife  in  her  diary  which  suggested

that all throughout she was worrying about her

future and her career.  For wife, according to

the  trial  Court,  her  career  was  the  most

important  factor  and  not  matrimonial

obligations.  The trial Court, therefore, held

that the case was covered by mental cruelty

which was shown by the wife towards the husband

and the husband was entitled to a decree of

divorce on that ground.

13. Being aggrieved by the decree passed

by  the  trial  Court,  the  wife  preferred  an

appeal in the High Court of Delhi.  The High

Court again appreciated the evidence on record

and confirmed the decree of divorce passed by

the trial Court.  The High Court, however, held

that  it  was  not  necessary  for  the  Court  to

consider mental cruelty so far as termination

of  pregnancy  was  concerned,  since  in  the

opinion of the High Court, even otherwise from

the letters and entries in diary, it was proved

that there was mental cruelty on the part of

the wife.  Accordingly, the decree of divorce

passed by the trial Court was confirmed by the

High Court.

14. The said order has been challenged in

the present proceedings.  On July 16, 2007,

notice  was  issued  by  this  Court.   The

respondent appeared and affidavit-in-reply and

affidavit-in-rejoinder  were  thereafter  filed.

Considering  the  nature  of  controversy,  the

Registry was directed to place the matter for

final hearing and accordingly, the matter has

been placed before us.

15. We have heard the learned counsel for

the parties.

16. The learned counsel for the appellant

contended that both the courts had committed an

error of law in granting a decree of divorce

against the appellant-wife.  It was submitted

that the courts below ought not to have held

that there was mental cruelty on the part of

the appellant-wife and the respondent-husband

was entitled to a decree of divorce on that

ground. It was also submitted that once the

High Court has not considered the allegation as

to termination of pregnancy without the consent

of the husband, no decree for divorce on the

ground of mental cruelty could have been passed

by it.  Even if all the allegations leveled

against the wife had been accepted, they were

in the nature of ‘normal wear and tear’ in a

matrimonial life of a couple which would not

fall within the mischief of clause (ia) of sub-

section (1) of Section 13 of the Act and the

orders passed by the courts below are liable to

be set aside.  It was further submitted that

even  otherwise,  the  wife  is  entitled  to  an

appropriate relief from this Court inasmuch as

from the evidence, it is clearly established

that the High Court confirmed the decree passed

by  the  trial  Court  on  January  29,  2007  and

before the period of filing Special Leave to

Appeal to this Court expires, the respondent-

husband entered into re-marriage with a third

party and from the said wedlock, he is having

an issue. It was, therefore, submitted that the

husband  has  created  a  situation  which  had

seriously  prejudiced  the  appellant  and  the

Court may not allow the respondent-husband to

take undue advantage of the situation created

by him.

17. The  learned  counsel  for  the

respondent-husband,  on  the  other  hand,

supported the decree passed by the trial Court

and confirmed by the High Court.  It was urged

that the trial Court on the basis of evidence

adduced by the parties recorded a finding of

fact that the conduct and behaviour of the wife

was  in  the  nature  of  mental  cruelty  and

accordingly allowed the petition filed by the

husband.  The High Court, though convinced on

all grounds, did not think it fit to enter into

correctness  or  otherwise  of  the  finding

recorded with regard to illegal termination of

pregnancy  by  wife  without  the  knowledge  and

consent of the husband since it was convinced

that even otherwise on the basis of evidence on

record,  mental  cruelty  of  the  wife  was

established.  It was not necessary for the High

Court to consider and to record a finding as to

illegal termination of pregnancy by wife since

the decree passed by the trial Court could be

confirmed.  As  far  as  mental  cruelty  is

concerned, on the basis of other evidence and

material on record, a finding had been recorded

by the trial Court.  The said finding was a

finding of fact which was confirmed by the High

Court.  In  exercise  of  jurisdiction  under

Article  136  of  the  Constitution,  this  Court

will not interfere with the said finding and

hence the appeal deserves to be dismissed.

18. Regarding re-marriage by the husband,

it was stated that after the decree of divorce

passed by the trial Court, the husband did not

re-marry.   But  the  decree  of  divorce  was

confirmed  by  the  High  Court.  The  husband

thereafter had taken the action which cannot be

said to be illegal or otherwise unlawful.  The

wife,  therefore,  cannot  take  a  technical

contention that the husband should have waited

till  the  period  of  filing  Special  Leave  to

Appeal to this Court would expire.  It was,

therefore, submitted that the appeal deserves

to be dismissed.

19. Having heard the learned counsel for

the  parties,  on  the  facts  and  in  the

circumstances of the case, in our opinion, it

cannot be said that by recording a finding as

to  mental  cruelty  by  the  wife  against  the

husband,  the  Courts  below  had  committed  any

illegality.  

20.     Section 13 of the Hindu Marriage Act

provides for grant of divorce in certain cases.

It enacts that any marriage solemnized whether

before or after the commencement of the Act may

be dissolved on a petition presented either by

the  husband  or  by  the  wife  on  any  of  the

grounds specified therein. Clause (ia) of sub-

section  (1)  of  Section  13  declares  that  a

decree of divorce may be passed by a Court on

the  ground  that  after  the  solemnization  of

marriage, the opposite party has treated the

petitioner with cruelty.

21. Now,  it  is  well-settled  that  the

expression ‘cruelty’ includes both (i) physical

cruelty; and (ii) mental cruelty.  The parties

in this connection, invited our attention to

English as well as Indian authorities.  We will

refer to some of them.

Mental Cruelty 22. The concept of cruelty has been dealt

with 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  complainant's capacity for endurance and the extent to which that capacity is known to the other spouse”.  

23. In  Gollins  V.  Gollins  1964  AC  644:

(1963)2 All ER 966, Lord Reid stated: “No one has ever attempted to give a comprehensive  definition  of  cruelty and I do not intend to try to do so. Much must depend on the knowledge and intention of the respondent, on the nature of his (or her) conduct, and on  the  character  and  physical  or mental weakness of the spouses, and probably  no  general  statement  is equally  applicable  in  all  cases except the requirement that the party seeking  relief  must  show  actual  or probable  injury  to  life,  limb  or health”.

24. Lord  Pearce  also  made  similar

observations;

“It  is  impossible  to  give  a comprehensive  definition  of  cruelty, but  when  reprehensible  conduct  or departure  from  normal  standards  of conjugal  kindness  causes  injury  to health or an apprehension of it, is, I think, cruelty if a reasonable person, after  taking  due  account  of  the temperament  and  all  the  other particular  circumstances  would considered that the conduct complained of is such that this spouse should not be called on to endure it”. [see also  Russell v. Russell,  (1897) AC 395 : (1895-99) All ER Rep 1].  

25. The test of cruelty has been laid down

by  this  court  in  the  leading  case  of  N.G.

Dastane v. S. Dastane, (1975)2 SCC 326 thus: “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....”

26. In  Sirajmohmedkhan  Janmohamadkhan v.

Haizunnisa Yasinkhan & Anr., (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. It was further stated that to establish

legal  cruelty,  it  is  not  necessary  that

physical  violence should  be used.  Continuous

cessation  of  marital  intercourse  or  total

indifference on the part of the husband towards

marital  obligations  would  lead  to  legal

cruelty. 27. In  Shobha  Rani v. Madhukar  Reddi,

(1988)  1  SCC  105,  this  Court  examined  the

concept of cruelty. It was observed that the

term  ‘cruelty’  has  not  been  defined  in  the

Hindu Marriage Act. It has been used in Section

13(1)(ia) of the Act in the context of human

conduct  and  behavior  in  relation  to  or  in

respect of matrimonial duties or obligations.

It is a course of conduct of one spouse which

adversely affects the other spouse. The cruelty

may  be  mental  or  physical,  intentional  or

unintentional.  If  it  is  physical,  it  is  a

question of degree which is relevant. 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

other  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. Mens rea 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. 28. In  V.  Bhagat v.  D.  Bhagat  (Mrs.),

(1994) 1 SCC 337, the Court observed;

“Mental  Cruelty  in  Section  13(1)(ia) 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 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 or 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”.

29. This  Court  in  Chetan  Dass v.  Kamla

Devi, (2001) 4 SCC 250, stated; “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”.

30. Mental cruelty has also been examined

by  this  Court  in  Parveen  Mehta v.  Inderjit

Mehta (2002) 5 SCC 706 thus; “Cruelty for the purpose of Section 13 (1)(ia) is to be taken as a behavior 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  behavior  or behavioral  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 misbehavior in isolation and then pose  the  question  whether  such behavior  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.”  

31.  In  A.  Jayachandra v.  Aneel  Kaur,

(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 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 dispute.”

32. In  Vinita  Saxena v.  Pankaj  Pandit,

(2006) 3 SCC 778, the Court said; “It  is  settled  by  a  catena  of decisions  that  mental  cruelty  can cause  even  more  serious  injury  than the  physical harm and create in the mind  of  the  injured  appellant  such apprehension as is contemplated in the section.  It is to be determined on whole  facts  of  the  case  and  the matrimonial  relations  between  the

spouses.  To amount to cruelty, there must be such willful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as  to  render  the  continued  living together  of  spouses  harmful  or injurious  having  regard  to  the circumstances of the case.

The  word  “cruelty”  has  not  been defined  and  it  has  been  used  in relation  to  human  conduct  or  human behaviour.   It  is  the  conduct  in relation  to  or  in  respect  of matrimonial  duties  and  obligations. It  is  a  course  of  conduct  and  one which  is  adversely  affecting  the other.  The cruelty may be mental or physical,  intentional  or unintentional.   There  may  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”.

33. It was further stated: “Each  case depends on its own facts and  must  be  judged  on  these  facts. The concept of cruelty has varied from time to time, from place to place and from individual to individual in its application according to social status of  the  persons  involved  and  their economic conditions and other matters. The  question  whether  the  act complained of was a cruel act is to be determined  from  the  whole  facts  and

the matrimonial relations between the parties.   In  this  connection,  the culture,  temperament  and  status  in life  and  many  other  things  are  the factors which have to be considered.

The legal concept of cruelty which is  not  defined  by  the  statute  is generally described as conduct of such character as to have caused danger to life,  limb  or  health  (bodily  and mental) or to give rise to reasonable apprehension  of  such  danger.   The general  rule  in  all  questions  of cruelty is that the whole matrimonial relations  must  be  considered,  that rule is of a special value when the cruelty  consists  not  of  violent  act but  of  injurious  reproaches, complaints, accusations or taunts.  It may be mental such as indifference and frigidity towards the wife, denial of a  company  to  her,  hatred  and abhorrence for wife, or physical, like acts of violence and abstinence from sexual intercourse without reasonable cause.   It must be proved that one partner  in  the  marriage  however mindless  of  the  consequences  has behaved  in  a  way  which  the  other spouse could not in the circumstances be  called  upon  to  endure,  and  that misconduct has caused injury to health or a reasonable apprehension of such injury.   There  are  two  sides  to  be considered in case of apprehension of such injury.  There are two sides to be  considered  in  case  of  cruelty. From  the  appellants,  ought  this appellant  to be called on to endure the  conduct?  From  the  respondent’s side, was this conduct excusable?  The Court has then to decide whether the

sum total of the reprehensible conduct was  cruel.  That depends on whether the  cumulative  conduct  was sufficiently serious to say that from a  reasonable  person’s  point  of  view after  a  consideration  of  any  excuse which the respondent might have in the circumstances,  the  conduct  is  such that  the  petitioner  ought  not  be called upon to endure.”

34.      Recently, in Samar Ghosh v. Jaya Ghosh,

(2007) 4 SCC 511, this Court held; “No uniform standard can ever be laid down  for  guidance,  yet  we  deem  it appropriate  to  enumerate  some instances of human behavior 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  behavior  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 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 behavior  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”.

35. Now, coming to the facts of the case,

from the evidence of Smt. Vimal Kapur (mother-

in-law  of  appellant-wife  and  mother  of

respondent-husband) who is examined as PW 1 and

Sudhir  Kapur,  husband-PW  2,  the  trial  Court

held that the wife was interested in her career

only and she had neglected towards matrimonial

obligations and exercise of conjugal rights by

the husband.  The trial Court also held that

termination of pregnancy by wife was without

consent or even knowledge of the husband which

was  in  the  nature  of  mental  cruelty.  But

keeping  the  said  element  of  mental  cruelty

aside, the High Court was convinced that the

allegation  of  mental  cruelty  towards  the

husband  by  the  wife  was  clearly  established

from  the  evidence  on  record  adduced  by  the

respondent-husband.  The High Court noted that

the  appellant-wife  was  constantly  and

continuously avoiding staying with the husband

and  preventing  him  to  have  matrimonial

relations.  From the letters of the appellant-

wife also, the High Court held that it was the

wife who had stated that she had completely

lost  interest  in  the  marriage  and  she  was

willing to get divorce.  The High Court further

noted  that  the  appellant-wife  sent  a  notice

through her advocate to the respondent-husband

during the pendency of mediation proceedings in

the High Court wherein she alleged that the

respondent was having another wife in USA whose

identity was concealed.  This was based on the

fact that in his income-tax return, the husband

mentioned  the  Social  Security  Number  of  his

wife as 476-15-6010, a number which did not

belong  to  the  appellant-wife,  but  to  some

American lady (Sarah Awegtalewis).  The High

Court,  however,  recorded  a  finding  of  fact

accepting the explanation of the husband that

there  was  merely  a  typographical  error  in

giving Social Security Number allotted to the

appellant which was 476-15-6030.  According to

the High Court, taking undue advantage of the

error in Social Security Number, the appellant

wife had gone to the extent of making serious

allegation that the respondent had married to

an American woman whose Social Security Number

was wrongly typed in the income tax return of

the respondent-husband.

36. The High Court also observed that the

appellant  wanted  to  pursue  her  professional

career  to  achieve  success.   In  her  written

statement itself, she had admitted that she was

very much interested in her career; that she

was independent since 1979 and she was keen to

live independent life.

37. The  High  Court  also  took  a  serious

note of an entry in the personal diary of the

appellant-wife dated September 14, 1986 wherein

she stated;

“I said, “we started this journey as two individuals and if you can do so fine otherwise forget and don’t bring the  ghost of parents in between the two of us.  He did not like the use of words  ghosts  and  first  cursed  my vocabulary  and then he said “you do

not have any, but I have better ties”. At this I told him you are given these 15 days and you can find another wife for yourself.  He has this notion that he will go to USA (NY) and I will stay with his parents and I told him I will not and he says this was the deal in July and when I refuted he said “no you  had  promised”.   I  told  him  you have just now paid the fine and you are again using the same tricks again. Naturally, he did not like and said to me “I am not and have never with you played tricks”.  I said sorry- I do not trust you any further and he said it is your fault.  It may now be my fault but I think it is just quits.  I don’t  think I will write to anybody back in Delhi now for 15 days and if I can find myself work here any kind”.

38. From  the  above  letter,  it  is  clear

that  the  appellant-wife  had  described  the

parents of the husband as ‘ghost’.   

39. In the letter dated June 21, 1988, she

stated;

“I really wish you would understand my urge in pursuing my freedom away from the hawk eyes of your mother, sister and all other relatives.  But, as I am not ready to share the economic gains of this job with you and other family members.  I don’t expect either you or them  to  understand  my  need  and commitment for this job, or any job. I am bound to cause friction with so many people around me- I was at war

with just you around me in Bombay.”

40. In another letter, she stated that the

respondent-husband should not make a condition

for the wife of living together.  She stated;

“I am not a good person to waste all your potential, emotion on.  I do not deserve it.

… … … …

Please do not make living together a condition for the coming few months. And do not read from these lines that I  do  not  miss  you-  I  do  so individually and circumstantially- but as is my way of working I am not ready to stop myself for bonds and I believe the same for you.  I wish the best and topmost for you-the most perfect, one can hope to be and wish that nothing becomes a barrier between you and you and your achievements.  Even me.  It will  be  best  if  we  could  help  each other  constructively;  I  also  believe that we can do so- it is just that we believe in different things.

… … … …

If  possible,  stand  out  of  all  this mess and try to work the best possible solution for us and your family.  I do want you to remember that you are only one son and your family commitments. I would honour- but not at the cost of my spiritual search in life.”

41. She further said that the respondent-

husband  should  not  bring  her  marital  status

preventing her from pursuing her career in the

name of marriage.  She stated that when she was

unable to give even a child to the respondent-

husband, up to what stage, they should live

together.  She clarified that she did not want

to close her avenues in life at least at that

stage.  She  also  did  not  want  to  forego  her

chances whatever she would believe about her

chances.  She did not believe in love any more.

She expressly stated that she did not believe

in Indian social value system and she was very

happy in the foreign country.   

42. She stated;

“Mujhe is vivah ke naam per apne raste se mat roke. Ho sakta he mein he galat hoon-per mujhe nahin lagta.  Dampati ke  tarah  hum  saath  ji  liye  hein- purani quality of life se kuch neechey hi  star  per  jiye  hein-  ye  aur  koin jaane ya na jaane- Cambridge school se ek  dosre  ko  bada  hota  dekh  suman- sudhir  achhey  se  jaante  hein.   Es vivah  mein  aapko  santan  bhi  na  de saki- phir kahan tak jaruri hai ki hum saath rahe?  Aap mere vicharo se to kabhi sahmat nahin honge per auron ki

rai  kar  lein-jis  kisiki  bhi-  apni jindgi suljha lein.  Mujh se ye ummid karma chod de ke kisi vyaktigat  (per mujh se unrelated) ya samajik karan se abhi mein apna rehne sochne ka tarika badloon.   Jaisa  maine  pehle  likha- jindagi ji kar jaise bhi, job hi, jab bhi samajh aayega tabhi aayega, jaise main apne liye chhot chahti hoon vaise he  apni  oar  se  jitna  mujhe  adhikar hein aapko bhi mukt karti hoon.  Meine to kareeb chheh page par hi ye patr samapt kar diya-except for some help that  I needed for car, etc-buy your fax  today  was  quite  unsettling.   I don’t  like  to  close  my  avenues  in life- at lease not yet.  I was naïve to believe whatever I did for marriage as a constitution and marriage to you. I am not ready to forgo my chances- whatever I believe to be chances for what  I  have  experienced  as  being married.  I think the best alternative will  be  you  stay  in  India  for  some more time.  Chances are that even if you get an assignment outside Kansas we  would  be  living  separately.   So decide  for  yourself  cause  when  time comes I am going to do so for myself. I will this time not make a compromise and regret it a few months later and make both our lives miserable.  I have done that several times in the past-at least you should have enough of it to stop  trying  to  push  me  against  my belief.

My way of loving is not like that. I  do  not  even  believe  in  love  any more. There is no bigger lie that any one could tell another person.  I do not even believe in the Indian social value  system.   So  I  am  better  off being here away from every person and

every  thing  that  I  grew  up  with. Whenever I have understood things to be  a  different  shade  I  will  decide whether I want to be here or there.”

43. The High Court, in contrast, referred

to  the  letters  written  by  the  respondent-

husband.  It noted that those letters were full

of love and affection.  According to the High

Court, the husband tried his level best to keep

the  marriage  tie  to  subsist  and  made  all

attempts to persuade the wife explaining and

convincing her about the sacred relations of

husband and wife, the need and necessity of

child in their life and also feelings of his

parents  who  wanted  to  become  grand  parents.

According to the High Court, however, nothing

could persuade the wife who was only after her

career.  In the light of the above facts and

circumstances, the Court held that the trial

Court did not commit any error of fact or of

law in passing the decree for divorce on the

ground of mental cruelty.

44. The High Court in paragraph 28 of the

judgment stated;

“Applying  the  above  principles  to the  facts  of  the  present  case,  I feel the respondent has been able to establish and prove ‘cruelty’ under Section 13(1) (ia) of the Act.  The conduct  of  the  appellant  has  been examined above.  I have referred to the  letters  exchanged  between  the parties  during  the  period  1986 onwards  till  1994.   Some  of  the letters  have  been  written  by  the appellant  herself.   These  letters reveal  the  conflict  and  difference between  the  parties.   The  present case  also  reveals  that  the respondent  was  bending  over  his heels  to  placate  and  woo  the appellant  till  1994  but  thereafter gave up.  The respondent was deeply in love and was emotionally attached to  her.   He  has  however  over  the passage of time developed a hatred and  ill-will  for  the  appellant. There  is  no  apparent  ground  and reason  for  the  same  except  the conduct of the appellant.”

45. We find no infirmity in the approach

of the High Court.  The finding relating to

mental cruelty recorded by the trial Court and

confirmed by the High Court suffers from no

infirmity and we see no reason to interfere

with the said finding.

46. The fact, however, remains and it has

been brought to the notice of this Court that

the respondent got re-married on March 05, 2007

before the expiry of period of filing Special

Leave to Appeal to this Court under Article 136

of the Constitution.  It was also stated that a

child  was  born  from  the  said  wedlock  on

December 20, 2007.  Thus, the marriage had been

performed within a period of ninety days of the

order impugned in the present appeal.

47. Since, we are confirming the decree of

divorce on the ground of mental cruelty as held

by both the courts, i.e. the trial Court as

well as by the High Court, no relief can be

granted so far as the reversal of decree of the

courts below is concerned.  At the same time,

however, in our opinion, the respondent-husband

should not have re-married before the expiry of

period stipulated for filling Special Leave to

Appeal in this Court by the wife.   

48. It is true that filing of appeal under

Article 136 of the Constitution is not a right

of the party.  It is the discretion conferred

on this Court to grant leave to the applicant

to  file  appeal  in  appropriate  cases.   But,

since  the  Constitution  allows  a  party  to

approach this Court within a period of ninety

days from an order passed by the High Court, we

are  of  the  view  that  no  precipitate  action

could have been taken by the respondent-husband

by  creating  the  situation  of  fait  accompli.

Considering the matter in its entirety, though

we are neither allowing the appeal nor setting

aside  the  decree  of  divorce  granted  by  the

trial  Court  and  confirmed  by  the  appellate

Court in favour of respondent-husband, on the

facts and in the circumstances of the case, in

our opinion, ends of justice would be met if we

direct the respondent-husband to pay an amount

of Rs. Five lakhs to the appellant-wife. The

said  payment  will  be  made  on  or  before  31st

December, 2008.

49. The appeal is disposed of accordingly.

The  parties  will  bear  their  own  costs  all

throughout.

…………………………………………………J. (C.K. THAKKER)

NEW DELHI, …………………………………………………J. November 07, 2008. (D.K. JAIN)