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CASE NO.: Appeal (civil)  812 of 2004

PETITIONER: Naveen Kohli                                             

RESPONDENT: Neelu Kohli                                              

DATE OF JUDGMENT: 21/03/2006

BENCH: B.N. AGRAWAL,A.K. MATHUR & DALVEER BHANDARI

JUDGMENT: J U D G M E N T

Dalveer Bhandari, J

       This appeal is directed against the judgment of the  Allahabad High Court dated 07.07.2003 passed by the  Division Bench in First Appeal No.323 of 2003.    

       The appellant and the respondent are husband and  wife. The appellant has filed a petition under the Hindu  Marriage Act, 1955 for divorce. The Family Court after  comprehensively dealing with the matter ordered  cancellation of marriage between the parties under  Section 13 of the Hindu Marriage Act which was  solemnized on 20.11.1975 and directed the appellant to  pay Rs.5 lacs as her livelihood allowance.  The appellant  deposited the amount as directed.

       The respondent aggrieved by the said judgment  preferred First Appeal before the Division Bench of the  Allahabad High Court.  After hearing the parties the  appeal was allowed and the decree passed by the Family  Court, Kanpur City seeking divorce and annulment of the  marriage was dismissed.

       The appellant aggrieved by the said judgment of the  High Court had preferred special leave petition under  Article 136 of the Constitution of India.  This Court  granted special leave to appeal to the appellant.  

       Brief facts which are necessary to dispose of this  appeal are recapitulated.  

       The appellant, Naveen Kohli got married to Neelu  Kohli on 20.11.1975.  Three sons were born out of the  wedlock of the parties.  The appellant constructed three  factories with the intention of providing a separate  factory for his three sons. He also constructed bungalow  no.7/36 A for their residence.  The parties got all their  three sons admitted and educated in a public school in   Nanital. According to the appellant, the respondent is  bad tempered and a woman of rude behaviour.  After  marriage, she started quarrelling and misbehaving with  the appellant and his parents and ultimately, the  appellant was compelled to leave the parental residence  and started to reside in a rented premises from May  1994.  According to the version of the appellant, the  respondent in collusion with her parents got sufficient

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business and property transferred in her name.

       The appellant alleged that in the month of May  1994, when he along with the respondent and their  children visited Bombay to attend the golden jubilee  marriage anniversary of his father-in-law, he noticed that  the respondent was indulging in an indecent manner and  found her in a compromising position with one Biswas  Rout.  Immediately thereafter, the appellant started living  separately from the respondent since May 1994.  The  appellant suffered intense physical and mental torture.

        According to the appellant, the respondent had  withdrawn Rs.9,50,000/- from the Bank Account of the  appellant and deposited the same in her account.

       The appellant alleged that the respondent got a false  first information report registered against him under  Sections 420/467/468 and 471 IPC which was registered  as Case No.156 of 1995.  According to him, the  respondent again got a case under Sections 323/324  I.P.C. registered in the police station Panki, Kanpur City  and efforts were made to get the appellant arrested.

       The appellant filed a Civil Suit No. 1158/1996  against the respondent.  It was also reported that the  appellant was manhandled at the behest of the  respondent and an FIR No.156 of 1996 was filed by the  eldest son at the behest of the respondent against the  appellant in police station, Panki complaining that the  appellant had physically beaten her son, Nitin Kohli.

       The respondent in her statement before the Trial  Court had mentioned that she had filed an FIR against  the appellant under Section 420/468 IPC at the Police  Station, Kotwali and the respondent had gone to the  extent of filing a caveat in the High Court in respect of  the said criminal case so that the appellant may not  obtain an order from the High Court against her filing the  said FIR.

       In the same statement, the respondent had  admitted that she had filed an FIR No.100/96 at the  Police Station, Kohna under Section 379/323 IPC against  the appellant.   

       The respondent had also filed a complaint against  the appellant and his mother under Sections  498A/323/504/506 IPC at Police Station, Kohna.   

       The respondent in her statement had admitted  that  she had opposed the bail of the appellant in the criminal  case filed at the Police Station, Kotwali on the basis of  legal advice.  In that very statement she further admitted  that after the police had filed final report in both the  criminal cases relating to Police Station, Kotwali and  Police Station, Kohna, she had filed protest petition in  those cases.   

       This clearly demonstrates the respondent’s deep  and intense feeling of revenge. The respondent in her  statement had also admitted that she had filed a  complaint in the Women Cell, Delhi in September 1997.   According to the appellant, the respondent had filed a  complaint no.125 of 1998 against the appellant’s lawyer

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and friend alleging criminal intimidation which was  found to be false.

       According to the appellant, the respondent filed a  forged complaint under sections 397/398 of the  Companies Act before the Company Law Board, New  Delhi and in the affidavit of the respondent she stated  that the appellant was immoral, alcoholic, and was  having affairs with numerous girls since marriage.  She  also called him a criminal, infidel, forger and her  manager to denigrate his position from the proprietor to  an employee of her company.

       The appellant also mentioned that the respondent  filed a false complaint in Case No.1365 0f 1988 using all  kinds of abuses against the appellant.  

       On 8.7.1999, the respondent filed a complaint in  the Parliament Street Police Station, New Delhi and made  all efforts to ensure the appellant’s arrest with the object  of sending him to jail.  The appellant was called to the  police station repeatedly and was interrogated by the  police and only after he gave a written reply and the  matter on scrutiny was found to be false, the appellant  with great difficulty was able to save himself from  imprisonment.

       On 31.3.1999 the respondent had sent notice for  breaking the Nucleus of the HUF, expressly stating that  the Family Nucleus had been broken with immediate  effect and asking for partition of all the properties and  assets of the HUF and stating that her share should be  given to her within 15 days.  According to the appellant,  this act of the respondent clearly broke all relations  between the appellant and the respondent on 31.3.1999.   

       The respondent had filed a complaint against the  appellant under Section 24 of the Hindu Marriage Act  directing payment of maintenance during the pendency  of the case.  This was rejected by the Trial Court and she  later filed an appeal in the High Court.   

       The appellant had deposited Rs.5 lacs on Court’s  directions but that amount was not withdrawn by the  respondent. On 22.1.2001 the respondent gave an  affidavit before the High Court and got non-bailable  warrants issued against the appellant.  Consequently,  the appellant was harassed by the police and ultimately  he got the arrest order stayed by the High Court.  The  respondent admitted in her statement that she got the  advertisement published in the English National  Newspaper ’Pioneer’.  The advertisement reads as under :

PUBLIC NOTICE Be it known to all that Mr. Naveen  Kohli S/o Mr. Prem Kumar Kohli was  working with my Proprietorship firm  as Manager.  He has abandoned his  job since May 1996 and has not  resumed duties.

He is no more in the employment of  the firm.  Any Body dealing with him  shall be doing so at his own risk, his

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authority to represent the firm has  been revoked and none should deliver  him orders, cash cheques or drafts  payable to the firm.

NEELU KOHLI Sole Proprietor M/s NITIN RUBBERS 152-B, Udyog Nagar, Kanpur

       The respondent in her statement before the Court  did not deny the contents of the affidavit but merely  mentioned that she did not remember whether she called  the appellant a criminal, infidel and a forger in the  affidavit filed before the Company Law Board.   

       The respondent did not deny her using choicest  abuses against the appellant but merely stated that she  did not remember.  

       The respondent also filed a contempt petition in the  Company Law Board against its order of the Company  Law Board dated 25.9.2000 in order to try and get the  appellant thrown out of the little apartment and urged  that the appellant be sent to jail.

       Before the Family Court, the respondent stated  about solemnization of the marriage with the appellant  on 20.11.1975.   In her written statement she had denied  the fact that she was either a rude or a quarrelsome lady.   The respondent also denied that she had mentally,  physically and financially harassed and tortured the  appellant.  She also stated that she never refused   cohabitation with the appellant. She also denied  indulging in any immoral conduct.  She averred in the  written statement that the appellant has been immorally  living with a lady named ’Shivanagi’.   

       The appellant and the respondent filed a number of  documents in support of their respective cases. On the  basis of the pleadings and the documents, the Additional  Principal Judge of Family Court framed the following  issues :- "1.     Whether the respondent treated the  plaintiff with cruelty by registering   various criminal cases, getting the news  published and initiating civil  proceedings?

2.      Whether the defendant treated the  plaintiff with cruelty by her objectionable  behaviour as stated in the plaint? 3.      Whether respondent has made false  allegation against the plaintiff?  If yes, its  impact?

       Whether in the presence of plaintiff, the  defendant displayed her behaviour with  Dr. Viswas Rout which comes in the  category of immorality as has been stated  in para 11 of the plaint?  If yes, its  impact?

4.      Whether the petition is not maintainable

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on the basis of preliminary objections 1  to 3 of the written statement?

5.      Whether plaintiff has kept Smt. Shivanagi   with him as his concubine?  If yes, its  impact?

6.      Whether suit of the plaintiff is barred by  the provisions of Section 11, C.P.C.?

7.      Whether plaintiff is entitled to get the  decree of dissolution of marriage against  defendant?

8.      Whether plaintiff is entitled to get any  other relief?"                                                                                                                                                                                                                                       Issues number 1 & 2 relate to the term ’Cruelty’ and  Issue no. 3 is regarding impact of false allegations levelled  by the respondent against the appellant.  All these three  issues were decided in favour of the appellant and against  the respondent. The learned Trial Court came to a definite  conclusion that the respondent had filed a very large  number of cases against the appellant and got him  harassed and tortured by the police.  It also declared him  an employee of the factory of which the respondent is a  proprietor by getting an advertisement issued in the  newspaper.  According to findings of the Trial Court, the  appellant was mentally, physically and financially  harassed and tortured by the respondent.  

       The Trial Court framed specific issue whether the  appellant had kept Smt. Shivangi with him as his  concubine.   This allegation has been denied by the  appellant.  The respondent had failed to produce any  witness in respect of the aforesaid allegation and was  consequently not able to prove the same.   The Trial  Court stated that both parties have levelled allegations of  character assassination against each other but failed to  prove them.   

       The Trial Court stated that many a times efforts  have been made for an amicable settlement, but on the  basis of allegations which have been levelled by both the  parties against each other, there is no cordiality left  between the parties and there is no possibility of their  living together. According to the Trial court, there was no  possibility to reconnect the chain of marital life between  the parties.  Hence, the Trial Court found that there is no  alternative but to dissolve the marriage between the  parties.  The Trial Court also stated that the respondent  had not filed any application for allowing permanent  maintenance and Stridhan but, in the interest of justice,  the Trial Court directed the appellant to deposit  Rs.5,00,000/- toward permanent maintenance of the  respondent.  The Trial Court also ordered that a decree of  dissolution of marriage shall be effective after depositing  the payment of Rs.5,00,000/- by the appellant.   Admittedly, the appellant had immediately deposited the  said amount.                  The respondent, aggrieved by the judgment of the  Principal Judge, Family Court, Kanpur City, preferred the

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first appeal before the High Court, which was disposed of  by a Division Bench of the Allahabad High Court.

       According to the High Court, the Trial Court had not  properly appreciated and evaluated the evidence on  record.  According to the High Court, the appellant had  been living with one Shivangi.  As per the High Court, the  fact that on Trial Court’s directions the appellant  deposited the sum of Rs.5,00,000/- within two days after  the judgment which demonstrated that the appellant was  financially well off. The Division Bench of the High Court  held that actions of the appellant amounted to  misconduct, un-condonable for the purpose of Section  13(1)(a) of the Hindu Marriage Act.   The appeal was  allowed and the Trial Court judgment has been set aside.   The suit filed by the appellant seeking a decree of divorce  was also dismissed.   

       The appellant preferred a Special Leave Petition  before this Court.  We have carefully perused the  pleadings and documents on record and heard the  learned counsel appearing for the parties at length.    

       Both the parties have levelled allegations against  each other for not maintaining the sanctity of marriage  and involvement with another person. According to the  respondent, the appellant is separately living with  another woman, ’Shivanagi’.  According to the appellant,  the respondent was seen indulging in an indecent  manner and was found in compromising position with  one Biswas Rout.  According to the findings of the Trial  Court both the parties failed to prove the allegations  against each other.  The High Court has of course  reached the conclusion that the appellant was living with  one ’Shivanagi’ for a considerable number of years.  The  fact of the matter is that both the parties have been living  separately for more than 10 years.  Number of cases  including criminal complaints have been filed by the  respondent against the appellant and every effort has  been made to harass and torture him and even to put the  appellant behind the bars by the respondent.  The  appellant has also filed cases against the respondent.

       We would like to examine the facts of the case in the  light of the settled position of law which has been  crystallized by a series of judgments.

       In the light of facts and circumstances of this case  we would also like to examine the concept of Irretrievable  Breakdown of Marriage particularly with reference to  recently decided cases.

Impact of Physical and Mental Cruelty in Matrimonial  Matters.

       The petition for divorce was filed primarily on the  ground of cruelty.  It may be pertinent to note that, prior  to the 1976 amendment in the Hindu Marriage Act, 1955  cruelty 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 1976  Amendment, the Cruelty was made ground for divorce.   The words which have been incorporated are "as to cause

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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 cruelty  treatment is of such a nature as to cause an  apprehension \026 reasonable apprehension that it will be  harmful or injurious for him or her to live with the other  party.

       The Court had an occasion to examine the 1976  amendment in the case of N.G. Dastane v. S. Dastane  [(1975) 2 SCC 326: AIR 1975 SC 1534], The Court noted  that "....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".      

       We deem it appropriate to examine the concept of  ’Cruelty’ both in English and Indian Law, in order to  evaluate whether  the appellant’s petition based  on the  ground of cruelty deserves to be allowed or not.

       D. Tolstoy in his celebrate book "The Law and  Practice of Divorce and Matrimonial Causes" (Sixth  Edition, p. 61) defined cruelty in these words:         "Cruelty which is a ground for  dissolution of marriage may be  defined as willful and unjustifiable  conduct of such a 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 concept of cruelty in matrimonial matters was  aptly discussed in the English case in Bertram v. Bertram  [(1944) 59, 60] per Scott, L.J. observed:         "Very slight fresh evidence is needed  to show a resumption of the cruelty,  for cruelty of character is bound to  show itself in conduct and  behaviour. Day in and day out,  night in and night out."

In Cooper vs. Cooper [(1950) WN 200 (HL)], it was  observed as under:         "It is true that the more serious the  original offence, the less grave need  be the subsequent acts to constitute  a revival."                  Lord Denning, L.J. in Kaslefsky v. Kaslefsky [(1950)  2 All ER 398, 403] observed as under:         "If the door of cruelty were opened  too wide, we should soon find  ourselves granting divorce for  incompatibility of temperament.   This is an easy path to tread,  especially in undefended cases.  The  temptation must be resisted lest we  slip into a state of affairs where the  institution of marriage itself is  imperiled."

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        "In England, a view was at one time taken that the  petitioner in a matrimonial petition must establish his  case beyond a reasonable doubt but in Blyth v. Blyth  [(1966) 1 All ER 524, 536], the House of Lords held by a  majority that so far as the grounds of divorce or the bars  to divorce like connivance or condonation are concerned,  "the case like any civil case, may be proved by a  preponderance of probability".   

       The High Court of Australia in Wright v. Wright  [(1948) 77 CLR 191, 210], has also taken the view that  "the civil and not the criminal standard of persuasion  applies to matrimonial causes, including issues of  adultery".  The High Court was therefore in error in  holding that the petitioner must establish the charge of  cruelty "beyond reasonable doubt".  The High Court adds  that "This must be in accordance with the law of  evidence", but we are not clear as to the implications of  this observation."

       Lord Pearce observed:

"It is impossible to give a  comprehensive definition of cruelty,  but when reprehensible conduct or  departure from the normal  standards of conjugal kindness  causes injury to health or an  apprehension of it, it is, I think,  cruelty if a reasonable person, after  taking due account of the  temperament and all the other  particular circumstances would  consider that the conduct  complained of is such that this  spouse should not be called on to  endure it.

               *               *               *

       I agree with Lord Merriman  whose practice in cases of mental  cruelty was always to make up his  mind first whether there was injury  or apprehended injury to health.  In  the light of that vital fact the court  has then to decide whether the sum  total of the reprehensible conduct  was cruel.  That depends on  whether the cumulative conduct  was sufficiently weighty to say that  from a reasonable person’s point of  view, after a consideration of any  excuse which this respondent might  have in the circumstances, the  conduct is such that this petitioner  ought not to be called on to endure  it.                 *               *               *         The particular circumstances  of the home, the temperaments and  emotions of both the parties and  their status and their way of life,  their past relationship and almost  every circumstance that attends the

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act or conduct complained of may  all be relevant."

       Lord Reid in Gollins v. Gollins [1964 AC 644 : (1963)  2 All ER 966]:

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

       The principles of law which have been crystallized  by a series of judgments of this Court are recapitulated  as under :-

       In the case of Sirajmohmedkhan  Janmohamadkhan vs. Harizunnisa Yasinkhan  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 Sbhoba Rani vs.  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  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

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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.

       The cruelty alleged may largely depend upon the  type of life the parties are accustomed to or their  economic and social conditions and their culture and  human values to which they attach importance.   Each  case has to be decided on its own merits.

       The Court went on to observe as under :         "It will be necessary to bear in mind  that there has been marked  changed in the life around us.  In  matrimonial duties and  responsibilities in particular, we find  a sea change. They are of varying  degrees from house to house or  person to person.  Therefore, when a  spouse makes complaint about the  treatment of cruelty by the partner  in life or relations, the court should  not search for standard in life.  A set  of facts stigmatized as cruelty in one  case may not be so in another case.   The cruelty alleged may largely  depend upon the type of life the  parties are accustomed to or their  economic and social conditions.  It  may also depend upon their culture  and human values to which they  attach importance.  We, the judges  and lawyers, therefore, should not  import our own notions of life.  We  may not go in parallel with them.    There may be a generation gap  between us and the parties.  It  would be better if we keep aside our  customs and manners.  It would be  also better if we less depend upon  precedents.   

               Lord Denning said in Sheldon  v. Sheldon, [1966] 2 All E.R. 257  (CA) ’the categories of cruelty are not  closed’.  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 the case of V. Bhagat vs. D. Bhagat  reported in  (1994) 1 SCC 337, this Court had occasion to examine  the concept of ’mental cruelty’.  This Court observed as  under: "16. Mental cruelty in Section

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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  decided 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."

       The word ’cruelty’ has to be understood in the  ordinary sense of the term in matrimonial affairs.  If the  intention to harm, harass or hurt could be inferred by  the nature of the conduct or brutal act complained of,  cruelty could be easily established.  But the absence of  intention should not make any difference in the case.   There may be instances of cruelty by unintentional but  inexcusable conduct of any party.  The cruel treatment  may also result from the cultural conflict between the  parties.   Mental cruelty can be caused by a party when  the other spouse levels an allegation that the petitioner is  a mental patient, or that he requires expert psychological  treatment to restore his mental health, that he is  suffering from paranoid disorder and mental  hallucinations, and to crown it all, to allege that he and  all the members of his family are a bunch of lunatics.   The allegation that members of the petitioner’s family are  lunatics and that a streak of insanity runs though his  entire family is also an act of mental cruelty.           This Court in the case of Savitri Pandey vs. Prem  Chandra Pandey reported in (2002) 2 SCC 73, stated  that 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

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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.   

       In this case, this Court further stated as under:         "9. Following the decision in  Bipinchandra case [AIR 1957 SC  176] this Court again reiterated the  legal position in Lachman  Utamchand Kirpalani v. Meena [AIR  1964 SC 40] by holding that in its  essence desertion means the  intentional permanent forsaking and  abandonment of one spouse by the  other without that other’s consent,  and without reasonable cause.  For  the offence of desertion so far as the  deserting spouse is concerned, two  essential conditions must be there  (1) the factum of separation, and (2)  the intention to bring cohabitation  permanently to an end (animus  deserendi).  Similarly two elements  are essential so far as the deserted  spouse is concerned: (1) the absence  of consent, and (2) absence of  conduct giving reasonable cause to  the spouse leaving the matrimonial  home to form the necessary  intention aforesaid.  For holding  desertion as proved the inference  may be drawn from certain facts  which may not in another case be  capable of leading to the same  inference; that is to say the facts  have to be viewed as to the purpose  which is revealed by those acts or by  conduct and expression of intention,  both anterior and subsequent to the  actual acts of separation."                                                                                   In this case, this Court further stated that cruelty  can be said to be an act committed with the intention to  cause suffering to the opposite party. This Court in the case of Gananth Pattnaik vs.  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."                                                                                                                                                                                                                                 

       This Court, in the case of Parveen Mehta  vs.  Inderjit Mehta reported in (2002) 5 SCC 706, defined  cruelty 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  subject 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 Chetan Dass vs. Kamla Devi  reported in (2001)  4 SCC 250 , this Court observed that the matrimonial  matters have to be basically decided on its facts. In the  words of the Court:        "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

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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 Sandhya Rani vs. Kalyanram Narayanan  reported in (1994) Supp. 2 SCC 588, this Court reiterated  and took the view that since the parties are living  separately for the last more than three years, we have no  doubt in our mind that the marriage between the parties  has irretrievably broken down.  There is no chance  whatsoever of their coming together.  Therefore, the  Court granted the decree of divorce.

       In the case of Chandrakala Menon vs. Vipin  Menon reported in (1993) 2 SCC 6, the parties had been  living separately for so many years.  This Court came to  the conclusion that there is no scope of settlement  between them because, according to the observation of  this Court, the marriage has irretrievably broken down  and there is no chance of their coming together.  This  Court granted decree of divorce.   

       In the case of Kanchan Devi vs. Promod Kumar  Mittal reported in (1996) 8 SCC 90, the parties were  living separately for more than 10 years and the Court  came to the conclusion that the marriage between the  parties had to be irretrievably broken down and there  was no possibility of reconciliation and therefore the  Court directed that the marriage between the parties  stands dissolved by a decree of divorce.

       In Swati Verma vs. Rajan Verma reported in  (2004) 1 SCC 123, a large number of criminal cases had  been filed by the petitioner against the respondent.  This  Court observed that the marriage between the parties  had broken down irretrievably with a view to restore good  relationship and to put a quietus to all litigations  between the parties and not to leave any room for future  litigation, so that they may live peacefully hereafter, and  on the request of the parties, in exercise of the power  vested in this Court under Article 142 of the Constitution  of India, the Court allowed the application for divorce by  mutual consent filed before it under Section 13-B of the  Hindu Marriage Act and declared the marriage dissolved  and granted decree of divorce by mutual consent.                   In Prakash Chand Sharma vs. Vimlesh [1995  Supp (4) SCC 642], the wife expressed her will to go and  live with the husband notwithstanding the presence of  the other woman but the husband was not in a position  to agree presumably because he has changed his position  by remarriage.  Be that as it may, a reconciliation was  not possible.

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               In V. Bhagat v. D. Bhagat  (supra), this Court  while allowing the marriage to dissolve on ground of  mental cruelty and in view of the irretrievable breakdown  of marriage and the peculiar circumstances of the case,  held that the allegations of adultery against the wife were  not proved thereby vindicating her honour and character.  This Court while exploring the other alternative observed  that the divorce petition has been pending for more than  8 years and a good part of the lives of both the parties  has been consumed in this litigation and yet, the end is  not in sight and that the allegations made against each  other in the petition and the counter by the parties will  go to show that living together is out of question and  rapprochement is not in the realm of possibility. This  Court also observed in the concluding part of the  judgment that:          "Before parting with this case, we  think it necessary to append a  clarification. Merely because there  are allegations and counter  allegations, a decree of divorce  cannot follow. Nor is mere delay in  disposal of the divorce proceedings  by itself a ground. There must be  really some extra- ordinary features  to warrant grant of divorce on the  basis of pleading (and other  admitted material) without a full  trial. Irretrievable breakdown of the  marriage is not a ground by itself.  But while scrutinising the evidence  on record to determine whether the  ground(s) alleged is/are made out  and in determining the relief to be  granted, the said circumstance can  certainly be borne in mind. The  unusual step as the one taken by us  herein can be resorted to only to  clear up an insoluable mess, when  the Court finds it in the interest of  both parties."                   Again in  A. Jaychandra v. Aneel Kumar, (2005) 2  SCC 22, a 3 judge Bench of this Court observed that 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  willful 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 his 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 delicate human relationship like  matrimony, one has to see the probabilities of the case.  The concept, a proof beyond the shadow of doubt, is to be  applied to criminal trials and not to civil matters and

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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.                  The expression ’cruelty’ 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. Cruelty is a course or conduct of one, which  is adversely affecting the other. The cruelty may be  mental or physical, intentional or unintentional. If it is  physical, the Court will have no problem in determining  it. It is a question of fact and degree. If it is mental, the  problem presents difficulties. First, the enquiry must  begin as to the nature of cruel treatment, second the  impact of such treatment in the mind of the spouse,  whether it caused reasonable apprehension that it would  be harmful or injurious to live with the other. Ultimately,  it is a matter of inference to be drawn by taking into  account the nature of the conduct and its effect on the  complaining spouse. However, there may be a case where  the conduct complained of itself is bad enough and per se  unlawful or illegal. Then the impact or 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 (See Sobha  Rani v. Madhukar Reddi (1988) 1 SCC 105).                 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

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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 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.                 The foundation of a sound marriage is tolerance,  adjustment and respecting one another. Tolerance to  each other’s fault to a certain bearable extent has to be  inherent in every marriage. Petty quibbles, trifling  differences should not be exaggerated and magnified to  destroy what is said to have been made in heaven. All  quarrels must be weighed from that point of view in  determining what constitutes cruelty in each particular  case and as noted above, always keeping in view the  physical and mental conditions of the parties, their  character and social status. A too technical and hyper- sensitive approach would be counter-productive to the  institution of marriage. The Courts do not have to deal  with ideal husbands and ideal wives. It has to deal with  particular man and woman before it. The ideal couple or  a mere ideal one will probably have no occasion to go to  Matrimonial Court.                 In Durga P.Tripathy v. Arundhati Tripathy,  (2005) 7 SCC 353, this Court further observed that  Marriages are made in heaven. Both parties have crossed  the point of no return.   A workable solution is certainly  not possible.  Parties cannot at this stage reconcile  themselves and live together forgetting their past as a  bad dream.  We, therefore, have no other option except to  allow the appeal and set aside the judgment of the High  Court and affirming the order of the Family Court  granting decree for divorce.                  In Lalitha v. Manickswamy, I (2001) DMC 679 SC  that the had cautioned in that case that unusual step of  granting the divorce was being taken only to clear up the  insoluble mess when the Court finds it in the interests of  both the parties.                  Irretrievable Breakdown of Marriage                 Irretrievable breakdown of marriage is not a ground  for divorce under the Hindu Marriage Act, 1955.   Because of the change of circumstances and for covering  a large number of cases where the marriages are virtually  dead and unless this concept is pressed into services, the  divorce cannot be granted.  Ultimately, it is for the  Legislature whether to include irretrievable breakdown of  marriage as a ground of divorce or not but in our  considered opinion the Legislature must consider  irretrievable breakdown of marriage as a ground for grant  of divorce under the Hindu Marriage Act, 1955.         The 71st Report of the Law Commission of India

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briefly dealt with the concept of Irretrievable breakdown  of marriage.   This Report was submitted to the  Government on 7th April, 1978.   We deem it appropriate  to recapitulate the recommendation extensively. In this  Report, it is mentioned that during last 20 years or so,  and now it would around 50 years, a very important  question has engaged the attention of lawyers, social  scientists and men of affairs, namely, 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.

       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 in New Zealand reported in 1921.  Salmond J., in a  passage which has now become classic, enunciated the  breakdown principle in these word:         "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 Report it is mentioned that restricting the  ground of divorce to a particular offence or 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 there has  arisen a situation in which the marriage cannot be  worked.  The marriage has all the external appearances  of marriage, but none of the 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 bounds which

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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 fulfillment 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.

       On May 22, 1969, the General Assembly of the  Church of Scotland accepted the Report of their Moral  and Social Welfare Board, which suggested the  substitution of breakdown in place of matrimonial  offences.  It would be of interest to quote what they said  in their basis proposals:         "Matrimonial offences are often the  outcome rather than the cause of  the deteriorating marriage.  An  accusatorial principle of divorce  tends to encourage matrimonial  offences, increase bitterness and  widen the rift that is already there.   Separation for a continuous period  of at least two years consequent  upon a decision of at least one of the  parties not to live with the other  should act as the sole evidence of  marriage breakdown."

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.           A 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.   

       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 do 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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                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.   

       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.    

       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.

       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.

               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, then it  becomes obvious that the approach adopted by the High  Court in deciding this matter is far from satisfactory.

The High Court ought to have considered the  repercussions, consequences, impact and ramifications  of all the criminal and other proceedings initiated by the  parties against each other in proper perspective.  For  illustration, the High Court has mentioned that so far as  the publication of the news item is concerned, the status  of husband in a registered company was only that of an  employee and if any news item is published, in such a  situation, it could not, by any stretch of imagination be  taken to have lowered the prestige of the husband.  In  the next para 69 of the judgment that in one of the news  item what has been indicated was that in the company,  Nikhil Rubber (P) Ltd., the appellant was only a Director  along with Mrs. Neelu Kohli whom held 94.5% share of  Rs.100/- each in the company.  The news item further  indicated that Naveen Kohli was acting against the spirit  of the Article of the Association of Nikhil Rubber (P) Ltd.,  had caused immense loss of business and goodwill.  He  has stealthily removed produce of the company, besides  diverted orders of foreign buyers to his proprietorship  firm M/s Navneet Elastomers. He had opened bank  account with forged signatures of Mrs. Neelu Kohli and  fabricated resolution of the Board of Directors of the  company.  Statutory authority-Companies Act had  refused to register documents filed by Mr. Naveen Kolhi  and had issued show cause notice.  All business  associates were cautioned to avoid dealing with him  alone.  Neither the company nor Mrs. Neelu Kohli shall  be liable for the acts of Mr. Naveen Kohli. Despite the  aforementioned finding that the news item was intended  to caution business associates to avoid dealing with the

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appellant then to come to this finding in the next para  that it will by no stretch of imagination result in mental  cruelty is wholly untenable.   

The findings of the High Court that the respondent  wife’s cautioning the entire world not to deal with the  appellant (her husband) would not lead to mental cruelty  is also wholly unsustainable.   

The High Court ought to have examined the facts of  the case and its impact.  In the instant case, the  following cases were filed by the respondent against the  appellant.   1.      The respondent filed FIR No. 100/96 at Police          Station, Kohna under Sections 379/323 IPC 2.      The respondent got a case registered under Sections          323/324 registered in the police station Panki,          Kanpur City. 3.      At the behest of the respondent FIR No.156 of 1996          was also filed in the police station, Panki. 4.      The respondent filed FIR under Section 420/468          IPC at the Police Station, Kotwali. 5.      The respondent got a case registered under Section          under Sections 420/467/468 and 471 IPC.  6.      The respondent filed a complaint against the  appellant under Sections 498A/323/504/506 IPC  at Police Station, Kohna.   7.      The respondent had even gone to the extent of  opposing the bail application of the appellant in  criminal case filed at the police station, Kotwali 8.      When police filed final report in two criminal cases          at police station, Kotwali and police station, Kohna,          the respondent filed protest petition in these cases. 9.      The respondent filed complaint no.125 of 1998  in  the Women Cell, Delhi in September 1997  against  the appellant’s lawyer and friend alleging criminal  intimidation.  10. The respondent filed a complaint under sections  397/398 before the Company Law Board, New  Delhi. 11.     The respondent filed a complaint in Case No.1365  0f 1988 against the appellant. 12.     Again on 8.7.1999, the respondent filed a complaint  in the Parliament Street Police Station, New Delhi  and made all efforts to get the appellant arrested.  13.     On 31.3.1999, the respondent have sent  a notice  for breaking the Nucleus of the HUF. 14.     The respondent filed a complaint against the  appellant under Section 24 of the Hindu Marriage  Act. 15.     The respondent had withdrawn Rs.9,50,000/- from  the bank account of the appellant in a clandestine  manner. 16.     On 22.1.01 the respondent gave affidavit before the  High Court and got non-bailable warrants issued  against the appellant. 17.     The respondent got an advertisement issued in a  national newspaper that the appellant was only her  employee.  She got another news item issued  cautioning the business associates to avoid dealing  with the appellant.

The findings of the High Court that these  proceedings could not be taken to be such which may  warrant annulment of marriage is wholly unsustainable.

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Even at this stage, the respondent does not want  divorce by mutual consent.  From the analysis and  evaluation of the entire evidence, it is clear that the  respondent has resolved to live in agony only to make life  a miserable hell for the appellant as well.  This type of  adamant and callous attitude, in the context of the facts  of this case, leaves no manner of doubt in our mind that  the respondent is bent upon treating the appellant with  mental cruelty.  It is abundantly clear that the marriage  between the parties had broken down irretrievably and  there is no chance of their coming together, or living  together again.  

The High Court ought to have appreciated that  there is no acceptable way in which the parties can be  compelled to resume life with the consort, nothing is  gained by trying to keep the parties tied forever to a  marriage that in fact has ceased to exist.    

Undoubtedly, it is the obligation of the Court and all  concerned that the marriage status should, as far as  possible, as long as possible and whenever possible, be  maintained, but when the marriage is totally dead, in  that event, nothing is gained by trying to keep the parties  tied forever to a marriage which in fact has ceased to  exist.  In the instant case, there has been total  disappearance of emotional substratum in the marriage.    The course which has been adopted by the High Court  would encourage continuous bickering, perpetual  bitterness and may lead to immorality.

In view of the fact that the parties have been living  separately for more than 10 years and a very large  number of aforementioned criminal and civil proceedings  have been initiated by the respondent against the  appellant and some proceedings have been initiated by  the appellant against the respondent, the matrimonial  bond between the parties is beyond repair.  A marriage  between the parties is only in name.  The marriage has  been wrecked beyond the hope of salvage, public interest  and interest of all concerned lies in the recognition of the  fact and to declare defunct de jure what is already  defunct de facto.  To keep the sham is obviously  conducive to immorality and potentially more prejudicial  to the public interest than a dissolution of the marriage  bond.

The High Court ought to have visualized that  preservation of such a marriage is totally unworkable  which has ceased to be effective and would be greater  source of misery for the parties.

The High Court ought to have considered that a  human problem can be properly resolved by adopting a  human approach.   In the instant case, not to grant a  decree of divorce would be disastrous for the parties.  Otherwise, there may be a ray of hope for the parties that  after a passage of time (after obtaining a decree of  divorce) the parties may psychologically and emotionally  settle down and start a new chapter in life.    

In our considered view, looking to the peculiar facts  of the case, the High Court was not justified in setting  aside the order of the Trial Court.  In our opinion,

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wisdom lies in accepting the pragmatic reality of life and  take a decision which would ultimately be conducive in  the interest of both the parties.    

Consequently, we set aside the impugned judgment  of the High Court and direct that the marriage between  the parties should be dissolved according to the  provisions of the Hindu Marriage Act, 1955.   In the  extra-ordinary facts and circumstances of the case, to  resolve the problem in the interest of all concerned, while  dissolving the marriage between the parties, we direct the  appellant to pay Rs.25,00,000/- (Rupees Twenty five lacs)  to the respondent towards permanent maintenance to be  paid within eight weeks.   This amount would include  Rs.5,00,000/- (Rupees five lacs with interest) deposited  by the appellant on the direction of the Trial Court.  The  respondent would be at liberty to withdraw this amount  with interest.  Therefore, now the appellant would pay  only Rs.20,00,000/- (Rupees Twenty lacs) to the  respondent within the stipulated period.  In case the  appellant fails to pay the amount as indicated above  within the stipulated period, the direction given by us  would be of no avail and the appeal shall stand  dismissed.   In awarding permanent maintenance we  have taken into consideration the financial standing of  the appellant.         Before we part with this case, on the consideration  of the totality of facts, this Court would like to  recommend the Union of India to seriously consider  bringing an amendment in the Hindu Marriage Act, 1955  to incorporate irretrievable breakdown of marriage as a  ground for the grant of divorce.   A copy of this judgment  be sent to the Secretary, Ministry of Law & Justice,  Department of Legal Affairs, Government of India for  taking appropriate steps.

The appeal is accordingly disposed of.  In the facts  and circumstances of the case we direct the parties to  bear their own costs.