REPORTABLE

 IN THE SUPREME COURT OF INDIA   CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO.5387 OF 2007

MANISHA TYAGI                                          .….APPELLANT   

VERSUS

DEEPAK KUMAR                                                …RESPONDENT

  J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. In this appeal the wife has challenged the judgment of High Court  

of Punjab and Haryana in LPA No.1625/01 dated 25.8.2006 whereby the  

High Court set aside the judgment of the Trial Court and the Judgment  

of Ld. Single Judge and granted a decree of divorce to the husband.

2. Marriage between the parties was celebrated according to Hindu  

rites at New Delhi on 17.11.1991. For a short period after the marriage,  

the couple stayed at Meerut where the husband was posted as a Captain  

in the Indian Army.  Mutual cohabitation of the parties seems to have  

come to an end on 30.12.1992.  They have been living separately since  

31.12.1992.  They have a daughter who was born on 2.6.1993.

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3. On 24.11.1993 the husband filed a petition under Section 13 of  

the  Hindu  Marriage  Act  being  Matrimonial  Case  No.644  of  1993  for  

dissolution of the marriage.  Later on the petition was amended and filed  

in the Court of District Judge of Gurgaon on 28.11.1995 pursuant to the  

order issued by this Court in a transfer petition.   

4. The  husband  has  mentioned  numerous  instances  of  cruelty  in  

paragraph  7  of  the  divorce  petition.   He  has  described  the  wife  as  

quarrelsome,  rude  and  ill-mannered.   He  had  gone  to  the  extent  of  

terming his wife to be schizophrenic, making his life a living hell.  He  

goes on to narrate that all efforts at conciliation even by his parents did  

not yield any result.  He then proceeds to state that his wife is misusing  

her position as a practising advocate.  According to him she has been  

constantly threatening him as well as his family that since she and her  

two uncles are advocates they would make the lives of the husband and  

his family miserable.   The husband then complains that the wife has  

been making baseless complaints to his superiors.  This has affected his  

career  prospects  in  the  Army.   He  makes  a  special  reference  to  a  

statutory complaint dated 10.12.1993 in which according to him the wife  

had  made  numerous  false  allegations  about  the  behaviour  of  the  

husband and his family even prior to the marriage ceremony.  

5. We may notice here the contents of the statutory complaint. She  

complained about the exorbitant demands made by the husband’s family  

for dowry.  She complained that within days of the marriage the husband  

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started behaving in a strange manner; throwing household articles and  

clothes all around in the room and also mimicking the sound of different  

animals and sometimes barking like a dog.  She had also claimed that  

she had never seen a human being behaving that way even if very heavily  

drunk, as he was most of the times she remained in his company. She  

has stated that the husband and in-laws had willfully and cruelly treated  

her and had spared no effort  to cause her mental  harm and inflicted  

grave injuries.  She also complains that there is danger to her life, limb  

and health.  They had pressurised her to meet not only their unlawful  

demands  of  money  but  also  for  spurious  reasons.   She  ends  the  

complaint  with  the  comment  that  she  has  a  child  to  support.   She  

requested that an enquiry be held into the conduct of the husband which  

is  not  only  rude,  indiscreet,  disgraceful  and unbecoming  of  an  Army  

officer but he has committed the offences under the Penal Code.

6. The husband further complains that even during this short period  

of  cohabitation  the  behaviour  of  the  wife  was  erratic,  inhuman  and  

unbearable.  In  order  to  cause mental  agony to the husband the wife  

would  deliberately  indulge  in  erratic  sexual  behaviour.   She  would  

intentionally interrupt the coitus.  On many occasions she even refused  

to share the bed with him.   

7. The husband then makes a grievance that the wife had made a  

complaint to the Women Cell, Nanakpura, New Delhi where notice was  

received by the husband for appearance on 28.1.1994.  She had also  

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registered FIR No.10 on 19.1.1994 with Police  Station,  Keshavpuram,  

Delhi under Section 406, 498-A, IPC.  The police raided the flat of the  

parents of the husband at Noida on 22.1.1994 along with the wife.  She  

even  took  away  all  her  belongings  including  the  Maruti  car.   The  

husband  in  fact  goes  on  further  to  allege  that  she  even  took  the  

ornaments  belonging  to  the  husband  and  his  parents.   It  is  further  

alleged that the husband and the parents had to approach the court for  

anticipatory bail.  She then filed a petition for maintenance before the  

Family  Court,  Meerut.   She  also  lodged  an  FIR  on  18.8.1999  under  

Section  354/506/34.   She  made  false  allegations  against  his  father,  

advocate  and  the  son  of  the  advocate.   With  these  allegations  the  

husband had gone to court seeking divorce.  

8. The Trial Court also took notice of the counter allegations made by  

the  wife.   She  claimed  that  the  husband and  his  family  had  started  

treating her with cruelty when the unwarranted demands for dowry were  

not  met  by  her  parents.   She  also  claimed  that  the  husband  is  

deliberately  disrupting  the  marriage  as  he  wants  to  get  married  to  

someone else.  She however admitted that the couple had separated on  

31.12.1992.  She complains about the deliberate neglect by the husband  

of  his  matrimonial  as  well  as  parental  duties  towards  the  new  born  

daughter.   She denied  all  the allegations  made by  the  husband with  

regard to her erratic behaviour.  She dwells on the illegal demands made  

by the in-laws for cash, jeweler and electronic items.  She states that the  

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marriage was celebrated under shadow of extortion.  She was harassed  

by the in-laws and rudely informed that they were expecting a sum of  

more than 30-lakh rupees to be spent in the marriage as her father was  

working abroad.  On the very first day when she went to the matrimonial  

home she was informed by the mother-in-law that her son was destined  

to marry twice as per the horoscope.  She reiterates the allegations about  

the erratic behaviour of the husband.  She states that in his show of  

temper he threw household things at her.  She was constantly beaten on  

one pretext or the other.  Denying the allegations with regard to sexual  

misbehaviour she stated that in fact the respondent tried to have sexual  

intercourse during menstruation period or after  conception.   She had  

asked him to desist from acting in such an unnatural manner but to no  

effect.  She further admitted having made the complaint but she denied  

that these are made as a counter blast to the divorce petition filed by the  

husband.   

9. On the basis of the pleadings of the parties the Trial Court framed  

the following issues:

“1.  Whether  respondent  has  been  exercising such cruelty towards the petitioner so  as to entitle the petitioner to the dissolution of  the marriage? OPP

2.  Whether  the  petitioner  has  been  ill- treating  the  respondent  and  as  such,  cannot  take benefit of his own cruel and tortuous acts,  if so, to what effect? OPR

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3.  Whether  the  petitioner  is  bad  as  premature?

OPP 4. Whether the petition is malafide? OPR 5. Relief.”

10.  The Trial Court on evaluation of the entire evidence however held  

as follows:   

“Although  the  circumstances  mentioned  above clearly reveal that it is a case of broken  marriage, however, there is no ground given in  Section 13 of the Hindu Marriage Act, where a  decree of divorce can be founded on the proof of  irretrievably broken marriage.  In this regard, I  may cite a recent judgment of our own Hon’ble  High Court reported as Rupinder Kaur Vs. Gurjit  Singh  Sandhu (1997-3)  P.L.R.  553.   It  is  laid  down in this decision that even if the marriage is  assumed to have (illegible) for irretrievably, it is  not ground to dissolve the marriage.   

However,  the  situation  reached  between  the  parties is of the doing of the petitioner and it is  well cherished principle laid down in Section 11  of the Hindu Marriage Act that a party cannot be  permitted to take benefit of his own wrongs.

For  the  discussion  made  above  and  the  conclusions  reached  thereon,  I  hold  that  the  petitioner has been unsuccessful in proving the  respondent to have treated him with cruelty of  the  nature  as  to  entitle  him  to  a  decree  of  divorce.  It is however, proved on the other side  that the petitioner had harassed the respondent  for getting his demand and the demands of his  parents fulfilled.  However, the respondent has  prayed for no relief on that ground.  Issue No.1  is, therefore, decided against the petitioner while  Issue  No.2  is  decided  in  favour  of  the  respondent.”

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11. Aggrieved  by  the  aforesaid  findings  the  respondent  filed  F.A.O.  

No.16-M of 2000 in the Punjab and Haryana High Court.  The Learned  

Single  Judge  independently  examines  the  entire  evidence  and  the  

material  on  the  record.   Upon  evaluation  of  the  entire  evidence  the  

Learned  Single  Judge  observed  that  both  the  parties  are  at  fault.  

According to the Learned Single Judge the wife had crossed “Lakshman  

Rekha”.  Apart from what was stated by the Trial Court,  the Learned  

Single Judge notices that the wife had not only made allegations about  

the unnatural demands of the husband for sexual intercourse when she  

was pregnant but she had also made an allegation that he had wanted to  

commit the act of  sodomy with her which she resisted.   The Learned  

Single Judge concludes that the evidence led by the husband with regard  

to cruelty of the wife  is not such that he can be granted a decree of  

divorce under Section 13 of the Hindu Marriage Act.  At the same time,  

adverting to the behaviour of wife the Learned Single Judge observed as  

follows:

“I have considered the contentions of the  parties with reference to the documents and first  of  all  I  must  say  here  that  respondent  had  crossed “Lakshman Rekha”. I do not deny that a  woman has no rights after the lawful marriage.  She  expects  love  and  affection,  financial  and  physical  security,  equal  respect  and lots  more  but  at  the  same  time,  the  wife  must  remain  within the limits.  She should not perform her  acts  in  such  a  manner  that  it  may  bring  incalculable  miseries  for  the  husband and his  family members  She should not go to hat extent  

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that  it  may be difficult  for  her  to  return from  that point.”

12. The final conclusion reached by the Learned Single Judge is as  

follows:

“I have made an independent assessment  of the oral evidence and am of the opinion that  both the parties  are  at  fault.   The respondent  exceeded the limits of decency when she went to  the extent of lodging a false FIR and when she  tried to humiliate the appellant in the eye of his  superiors by writing a very damaging letter Ex.  PW2/1 without knowing its consequences.”

13. In  view  of  the  aforesaid  conclusions  the  Learned  Single  Judge  

granted the  alternative  relief  to  the  husband by passing a decree  for  

judicial separation under Section 10 of the Hindu Marriage Act.  This  

decree was passed with the hope that the parties would ponder upon the  

situation and may be able to re-unite for the welfare of the child.  If, on  

the other hand, the parties do not reconcile within the statutory period of  

one year it will be open to either of them to seek a decree of divorce.   

14. Aggrieved by the aforesaid judgment the wife went in appeal before  

the Division Bench in LPA No.1625/01.  The Division Bench noticed the  

extensive pleadings as well as the evidence led by the parties.  On a re-

evaluation of the evidence the Division Bench concluded that all efforts of  

reconciliation  between  parties  have  failed.   They  have  been  living  

separately  since  31.12.1992.   According  to  the  Division  Bench  the  

marriage has irretrievably broken down.  The Division Bench sums up  

the entire matrimonial scene of the parties in the following words:   

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“The  allegations  and  counter  allegations  had flown thick and proper in this case.  To an  extent these did receive support by the evidence  led by the respective parties.  The learned Single  Judge chose a middle-path by holding that both  the parties were at fault and accordingly granted  decree of judicial separation instead of divorce.  To what effect and what difference it has made  to the lives of parties can not really be made out.  The  parties  are  living  separately  since  31.12.1992.  Though  not  revealed  from  the  record  but  we  can  assume  that  efforts  must  have been made for reconciliation between the  parties  at  the  trial  and  at  the  first  appellate  stage.   Both the parties continue to differ and  have refused to patch up.  As noticed earlier, we  also  failed  in  our  efforts  to  bring  this  matrimonial  dispute  to  some  agreed  solution.  What is left of this marriage?  Both the parties  though educated but are still  standing firm on  their respective stands.  They both seem to be  totally unconcerned about their young child and  have  continued  with  their  combatant  attitude  without any remorse.  This marriage, if we may  say,  has  irretrievably  broken  down.   That  of  course cannot be a ground for granting divorce  between this  fighting  couple.   No  wonder,  the  Hon’ble  Supreme Court  in  a latest  decision in  Naveen Kohli vs. Neelu Kohli, 2006 (3) Scale 252  has made a recommendation to the executive to  provide this as a legal ground for divorce.  Till  the law is amended, we will remain handicapped  to act even in those cases where one finds that a  marriage just cannot work and existence thereof  is  nothing  but  an  agony  for  both  the  parties.  We,  as  such,  are  required  to  decide  if  the  allegations  of  cruelty  made  by  the  respondent  were proved or not.”    

15. While  reappreciating  evidence  the  Division  Bench  notices  the  

averments made by the wife in paragraphs 13 and 31 of the Statutory  

Complaint dated 10.12.1993 wherein she had stated as follows:

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“13.  On  2.12.1991,  my  husband  started  behaving  in  a  strange  manner  throwing  the  household articles and clothes all around in the  room  and  also  mimicking  the  sound  different  animals and some times barking like a dog.  I  was not only stunned but also shocked because  I had never seen a human being behaving that  way even if very heavily drunk as he was most of  the time I remained in his company.  I was not  allowed to touch any thing which belong to him.  When I told my mother-in-law, she warned me to  ensure  that  I  obeyed  all  orders  given  to  me,  either my husband or in laws.”

“31. My health started deteriorating.  My  mind  was  disturbed  to  the  extreme.   Now  another  form  of  torture,  unnatural  sex.   He  would  thrust  on  me  at  odd hours.   I  was  no  longer  a human being  but  a slave  to his  wild  passions.”  

16. It  is  also  observed  that  the  wife  has  not  denied  the  aforesaid  

averments while giving her evidence.  She had in fact further elaborated  

the allegation of sodomy made by her in the complaint.  The conclusion  

recorded by the Division Bench is as follows:   

“We  have  given  our  thoughtful  consideration to the while issue.  It  cannot be  disputed  that  the  appellant  had  made  the  averments in paras 13 and 31 of the complaints,  which  have  been  reproduced  above.   She  has  also not denied the same, rather while giving her  evidence,  she  had  further  elaborated  the  allegations  of  sodomy  made  by  her  in  the  complaint.   Wife  cannot  deny  that  she  had  compared  her  husband  to  a  barking  dog  that  she also made allegations against him for having  behaved  in  a  strange  manner.   She  had  also  referred to him as heavy drunkard. Even if we  leave aside the other allegations as made by the  husband, we think that describing husband as  

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dog  and  mimicking  as  animals  and  making  allegations of  sodomy would be enough to say  that  these  amounted  to  cruelty  on  her  part  towards her husband.  It cannot be denied that  the  wife  had  lodged  various  complaints  and  criminal  proceedings  against  the  respondent- husband.   FIR under  sections  498-A and 406  IPC was got registered by the wife.  Respondent- husband, however, earned acquittal in this case.  Another complaint filed before the Police Station  Civil  Lines,  Meerut  ended  in  dropping  of  the  proceedings.  Yet in another FIR got registered  under  Sections  417,  419  and  420  IPC,  the  respondent-husband  was  discharged.   The  record also reveals that still another FIR was got  registered under Sections 354 and 506 read with  Section 34 IPC on 18.8.1999 against the father- in-law, an Advocate and son of an Advocate by  the appellant-wife.  We think that this conduct  would  exceed  all  bounds  of  moderation.   A  daughter-in-law  making  an  allegation  against  her  old  and  infirm  father-in-law  for  molesting  her would certainly be an intolerable behaviour,  which  can  be  termed  nothing  but  an  act  of  immense cruelty for a son, who was none else  than the husband of such complaint-wife.  This  FIR  was  quashed  on  20.3.2002.   Seeing  the  cumulative  effect  of  all  these  allegations,  we  would not have any hesitation to hold that the  allegations of cruelty made by the respondent- husband stand established.”

17. Since  the  allegation  of  cruelty  made  by  the  husband  had been  

accepted, the Division Bench further observed as follows:   

“We  would,  accordingly,  hold  that  the  finding  of  the  learned  Single  Judge  in  grating  partial  relief  and  that  of  the  trial  Judge  in  declining  the  relief  of  divorce  cannot  be  sustained.   We  would,  accordingly,  set  aside  both  the  judgments  and hold  that  the  cruelty  alleged  by  the  respondent  husband  stands  proved.  As a result, we will dismiss the appeal  

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and modify the judgment of the learned Single  Judge to hold that the decree of divorce prayed  by the respondent-husband is granted.”

The aforesaid  judgment has been challenged by the wife  in  the  

present appeal.  

18.  We have heard the counsel for the parties.  Ms. Kamini Jaiswal,  

appearing for the appellant,  submitted that order passed by the High  

Court could not have been passed in an appeal filed by the wife.  The  

husband had not filed any appeal.   Both the courts below had given  

concurrent  findings  that  that  the  allegations  of  the  husband  about  

cruelty of the wife have not been proved.  These findings were based on a  

thorough evaluation of the evidence by the Trial Court as well  as the  

learned Single Judge of the High Court.  The Division Bench reversed the  

findings  without  any  recording  any  independent  reasons.  Learned  

Counsel made a reference to the observations of the Trial Court wherein  

it has been observed that averments made in paragraph 13 would not  

amount to calling her husband a dog.  The District Judge had observed  

“to say that a person started barking like a dog and that that person is a  

dog are two different things. In Para 13 of exh. PW2/1, the respondent  

only speaks about unhuman behaviour of her husband and she cannot  

be taken as addressing her husband as dog in this paragraph”.   

19. The  Trial  Court  also  observed  that  the  allegations  made  in  

paragraph 31 of the Statutory Complaint about unnatural sex cannot be  

equated with sodomy.  The Trial Court also came to the conclusion that  

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it is a case of broken marriage.  However, in the absence of a ground  

under Section 13 of the Hindu Marriage Act where a decree of divorce  

can be founded on the proof of irretrievable broken marriage, it would  

not be a ground to dissolve the marriage.   It is also pointed out that  

these findings were not rejected by the Appellate Court.  According to the  

learned counsel on this short ground the judgment of the Division Bench  

is liable to be set aside.   

20. On  the  other  hand,  Mr.  Rajender  Kumar,  appearing  for  the  

husband submitted that the High Court possibly could not have granted  

the  decree  on  the  basis  of  irretrievable  break  down  of  marriage.  

However,  the  High Court  has  granted  the  decree  of  divorce  upon re-

appreciation of the evidence and recording an independent finding that  

the conduct of  the wife amounts to cruelty which   would entitle  the  

husband  to  a  decree  of  divorce.   According  to  the  learned  counsel  

substantial justice has been done between the parties and the judgment  

does not call for any interference.  It has also been pointed out by the  

learned counsel that, a petition was filed for divorce on the basis of the  

decree  of  judicial  separation  which  had  been  granted  by  the  learned  

Single Judge.  However proceedings in the aforesaid case have been kept  

in abeyance due to the pendency of the appeals in the High Court and  

this Court.  Learned counsel submitted that there is absolutely no room  

for reconciliation between the parties.  Therefore,  the judgment of the  

High Court need not be reversed at this stage.  

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21. We have considered the submissions made by the learned counsel.  

The Trial Court as well as the Appellate Court have both concluded that  

the  behaviour  of  the  husband  as  well  as  the  wife  falls  short  of  the  

standard required to establish mental cruelty in terms of Section 13(1)  

(i-a).   

22. At this stage we may notice the observations made by this Court in  

the case of  Naveen Kohli vs.  Neelu Kohli (2006) 4 SCC 558.  In this  

case the Court examined the development and evolution of the concept of  

mental cruelty in matrimonial causes. In paragraph 35 it is observed as  

follows:   

“35.  The  petition  for  divorce  was  filed  primarily on the ground of cruelty.   It  may be  pertinent to note that, prior to 1976 amendment  in the Hindu Marriage Act, 1955 cruelly was not  a ground for claiming divorce under the Hindu  Marriage Act.  It was only a ground for claiming  judicial separation under Section 10 of the Act.  By  the  1976 amendment,  cruelty  was made a  ground for  divorce  and the  words  which have  been omitted from Section 10 are “as to cause a  reasonable  apprehension  in  the  mind  of  the  petitioner that it  will  be harmful  or injurious for  the  petitioner  to  live  with  the  other  party”.  Therefore,  it  is  not  necessary  for  a  party  claiming  divorce  to  prove  that  the  cruel  treatment  is  of  such a nature  as  to  cause  an  apprehension–reasonable apprehension – that it  will be harmful or injurious for him or her to live  with the other party.”

23.  The classic example of the definition of cruelty in the pre-1976 era  

is  given in the well  known decision of  this Court  in the case of  N.G.  

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Dastane vs.  S. Dastane (1975) 2 SCC 326, wherein it is observed as  

follows:

“The  enquiry  has  to  be  whether  the  conduct  charged as cruelty is of such a character as to  cause in the mind of the petitioner as reasonable  apprehension  that  it  would  be  harmful  or  injurious for him to live with the respondent”.

24. This is no longer the required standard.  Now it would be sufficient  

to show that the conduct of one of the spouses is so abnormal and below  

the  accepted  norm  that  the  other  spouse  could  not  reasonably  be  

expected to put up with it.  The conduct is no longer required to be so  

atrociously abominable which would cause a reasonable apprehension  

that it would be harmful or injurious to continue the cohabitation with  

the other spouse.  Therefore to establish cruelty it is not necessary that  

physical  violence  should  be  used.   However  continued  ill-treatment  

cessation  of  marital  intercourse,  studied  neglect,  indifference  of  one  

spouse to the other may lead to an inference of cruelty.  However in this  

case even with aforesaid standard both the Trial Court and the Appellate  

Court  had  accepted  that  the  conduct  of  the  wife  did  not  amount  to  

cruelty of such a nature to enable the husband to obtain a decree of  

divorce.

25. We may notice here the observations made by this Court in the  

case of  Shobha Rani vs.  Madhukar Reddi (1988) 1 SCC 105 wherein  

the concept of cruelty has been stated as under:

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“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 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.  It if  it  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 b e denied  on the ground that there has been no deliberate  or willful ill-treatment.”

26. In the case of  V. Bhagat vs.  D. Bhagat (1994) 1 SCC 337, this  

Court while examining the concept of mental cruelty observed as follows:  

“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  

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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.”

27. Taking into consideration the conduct of the parties over a period  

of time, the Trial Court as well as the Appellate Court concluded that the  

husband had failed to establish cruelty on the part of the wife which will  

be sufficient to grant a decree of divorce.  

28. The Appellate Court further came to the conclusion that since both  

the parties made extremely serious allegations, it would be appropriate  

as the parties were not compelled to live together.  The Appellate Court  

came to the conclusion that it  would be more appropriate to give the  

couple some time to ponder over the issue especially keeping in view the  

welfare of their daughter.  If in due course they manage to reconcile their  

differences the decree of judicial separation would be of no consequence.  

On the other hand, if the parties continued with their adamant attitudes  

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it would be possible for either party to seek dissolution of the marriage  

on the basis of the aforesaid decree of judicial separation.

29. As  noticed  earlier  the  husband  did  not  challenge  the  aforesaid  

decree of the Appellate Court, he was content to wait for one year and  

there after seeking decree of divorce.  In fact upon the expiry of one year  

he has actually filed the necessary proceedings seeking decree of divorce  

in the Court of District Judge, Gurgaon on 9.5.2002.  These proceedings  

are still pending.  

30. On the  other  hand the  wife  had filed  the  Latest  Patent  Appeal  

challenging the grant of decree of judicial separation to the husband by  

the Appellate Court.  We are of the opinion that the High Court erred in  

granting a decree of divorce to the husband.  She had come in appeal  

before  the  Division  Bench  complaining  that  the  Appellate  Court  had  

wrongly granted the decree of judicial separation even after concurring  

with  the  findings  of  the  Trial  Court  that  the  husband  had  failed  to  

establish  cruelty  by  the  wife.  Therefore  even  if  the  appeal  had  been  

dismissed, the findings recorded by the Trial Court in her favour would  

have remained intact.   The effect  of the order passed by the Division  

Bench is as if an appeal of the husband against the decree of judicial  

separation has been allowed.  Both the parties had failed to make out a  

case of divorce against each other.   The husband had accepted these  

findings.  Therefore he was quite content to wait for the statutory period  

to lapse before filing the petition for divorce, which he actually did on  

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9.5.2002.  On the  basis  of  the  proven facts  the Trial  Court  was more  

inclined to believe the wife, whereas the learned Single Judge of the High  

court found both the parties to be at fault.  Hence the middle path of  

judicial  separation  had  been  accepted.   Therefore,  it  was  not  a  case  

where it was necessary for the Division Bench to correct any glaring and  

serious  errors  committed  by  the  court  below  which  had  resulted  in  

miscarriage of justice.  In our opinion there was no compelling necessity,  

independently placed before the Division Bench to justify reversal, of the  

decree  of  judicial  separation.  In  such  circumstances  it  was  wholly  

inappropriate for the Division of High Court to have granted a decree of  

divorce to the husband.  

31. For the aforesaid reasons, we are unable to uphold the judgment  

and  the  decree  of  the  Division  Bench.   Consequently,  we  allow  the  

appeal.  We set aside the Judgment and the Order passed by the Division  

Bench and restore the Order passed by the learned Single Judge in FAO  

No. 16-M of 2000.  

32. There shall be no order as to costs.

        ....……….……………………….J           ( V.S. SIRPURKAR )           

                                   …...………………………………J                                                               ( SURINDER SINGH NIJJAR ) NEW DELHI,

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FEBRUARY 10, 2010.

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