DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

CASE ANALYSIS
MANISHA TYAGI V. DEEPA KUMAR

SUBJECT

CONTRACTS

NAME OF THE FACULTY

S. RADHA KRISHNA

Name of the Candidate

D.SUMANTH

Roll No.
2018LLB120

SEMESTER 3

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 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher S. RADHA

KRISHNA sir who gave me the golden opportunity to do this wonderful project on the
topic of (MANISHA TYAGI V. DEEPA KUMAR) which also helped me in doing a lot
of Research and I came to know about so many new things I am really thankful to them.
Secondly I would also like to thank my friends who helped me a lot in finalizing this
project within the limited time frame.

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 SYNOPSIS
SUBJECT :- FAMILY LAW-1

PROJECT TOPIC :- Manisha Tyagi v. Deepak Kumar

BENCH :- V.S. Sirpurkar, Surinder Singh Nijjar

RELEVANT CASE LAWS :-

1. Naveen Kohli vs. Neelu Kohli.

2. N.G. Dastane vs. S. Dastane
3. Shobha Rani vs. Madhukar Reddi
4. V. Bhagat vs. D. Bhagat

ACTS :- Section 10 of the Hindu Marriage Act, 1955, Section 13 of the Hindu Marriage Act,
Section 406, 498-A, IPC , Section 354/506/34, Section 11 of the Hindu Marriage Act.

HEADNOTES :- The Indian judiciary is only in the nascent stage of developing an

unwavering position on cruelty as a ground for divorce. This case discusses the issue of
cruelty and irretrievable breakdown of marriage as grounds of divorce before and subsequent
to the 1976 amendment of the Hindu Marriage Act. The analysis provided by the author also
highlights the undulating positions adopted by the Courts while addressing the issue. At the
same time, it is crucial to understand the judicial approach to deciding whether the factual
matrix merits a decree of judicial separation or divorce. The evolution of cruelty as a ground
for divorce encompasses its varying definitions and prerequisites of proof of reasonable
apprehension.

FACTS :-

The marriage between the parties took place as per 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 seemed to come to
an end on 30.12.1992 and they lived separately since then. A daughter was born to them on
2.6.1993. On 24.11.1993 the husband filed a petition under Section 13 of the Hindu Marriage
Act for dissolution of the marriage on the ground of cruelty. He described his wife as
quarrelsome, rude and ill-mannered and also stated his wife as misusing her position as an
advocate. According to him, she had constantly threatened him and his family that she along

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with her two uncles, who too are advocates, would make their lives miserable. The husband
also complained that the wife had been making baseless complaints to his superiors in which
she had made numerous false allegations about the behaviour of the husband and his family
even prior to the marriage ceremony. The husband further complained that even during the
short period of cohabitation, her behaviour was erratic, inhuman and unbearable and she
would deliberately indulge in erratic sexual behaviour. She had also registered FIR on
19.1.1994 under Section 406, 498-A, IPC. The police raided the flat of the parents of the
husband. She took away all her belongings including the Maruti car it was alleged that she
even took the ornaments belonging to the husband and his parents. She made false allegations
against his father, advocate and the son of the advocate. With these allegations, he
approached the court seeking divorce.

QUESTION OF LAW :-

1. Whether respondent has been exercising such cruelty towards the petitioner so as to
entitle the petitioner to the dissolution of the marriage?
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?
3. Whether the petitioner is bad as premature?
4. Whether the petition is malafide?

PETITIONER’S CONTENTION :-

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, jeweller and electronic items. She states that the 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.

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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.

RESPONDENT’S CONTENTION :-

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..

JUDGEMENT IN LOWER COURT :-

The respondent-husband was willing to pay a sum of Rs. 10 lacs to the appellant-wife and his
child. We would, as such, direct that this amount be paid to the appellant-wife and the child
as early as possible. We would, accordingly, direct the respondent-husband to file an
undertaking before this Court within a period of two weeks from today to the effect that he
would pay a sum of Rs. 10 lacs within a period of two months thereafter. Liberty is granted to
the appellant-wife to approach this Court in case the said undertaking given by the
respondent-husband is not honoured and the amount is not paid to her within the stipulated
period. We would leave the parties to bear their own costs.

JUDGEMENT IN HIGHER COURT :-

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. There shall be no order as to costs.

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 TABLE OF CONTENTS :-

1. SYNOPSIS………………………………………………………………...2
2. FACTS……………………………………………………………….…….3
3. ISSUES………………………………………………………….………….5
4. PETITIONER’S CONTENTION……………………………….………..9
5. RESPONDENT’S CONTENTION…………………………..………….11
6. OBSERVATIONS…………………………………………….………….13
7. JUDGEMENT IN LOWER COURT……………………………..……..16
8. JUDGEMENT IN SUPREME COURT………………………………..17

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SUBJECT :- FAMILY LAW-1

PROJECT TOPIC :- Manisha Tyagi v. Deepak Kumar

CITATION :- AIR 2010 1042 (SC) , 2010 (3) ALT 27 (SC) , 2010 (10) AWC 1902 (SC) ,
JT 2010 (2) SC 82 , 2010 (2) SCALE 294 , (2010) 4 SCC 339 , 2010 (2) UJ 991 (SC)

BENCH :- V.S. Sirpurkar, Surinder Singh Nijjar

ACTS :- Section 10 of the Hindu Marriage Act, 1955, Section 13 of the Hindu Marriage Act,
Section 406, 498-A, IPC , Section 354/506/34, Section 11 of the Hindu Marriage Act.

HEADNOTES :- The Indian judiciary is only in the nascent stage of developing an

unwavering position on cruelty as a ground for divorce. This case discusses the issue of
cruelty and irretrievable breakdown of marriage as grounds of divorce before and subsequent
to the 1976 amendment of the Hindu Marriage Act. The analysis provided by the author also
highlights the undulating positions adopted by the Courts while addressing the issue. At the
same time, it is crucial to understand the judicial approach to deciding whether the factual
matrix merits a decree of judicial separation or divorce. The evolution of cruelty as a ground
for divorce encompasses its varying definitions and prerequisites of proof of reasonable
apprehension.

This case is an appeal to supreme court because lower court i.e. Punjab high court
dismissed this case.

FACTS :-

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. In this case, an
army officer, and an advocate, got married according to Hindu rites on 17.11.1991.
However, they soon fell apart, and started living separately from 31.12.1992 onwards.
The husband filed a petition for divorce on the ground of cruelty, before the District
Court of Gurgaon under Section 13 of the Hindu Marriage Act. The husband alleged
that the wife was rude, ill- mannered, quarrelsome and schizophrenic, and that she had
made his life a living hell. He alleged that she shouted and made scenes and

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 humiliated him in front of his officers and jawans, made allegations of sodomy
against him, and allegations against his old and infirm father of molesting her.
Besides, the husband also alleged that the wife filed various criminal cases against
him, which ended in either his acquittal, discharge, or were quashed, thereby
indicating that they were all false. Further, that she hurled filthy abuses on him and
his family members, compared him to a barking dog, and had erratic sexual
behaviour. 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 complained that the wife had been
making baseless complaints to his superiors, which has affected his career prospects
in the Army. The husband filed a claim for cruelty against his wife.

The wife also made equally vile allegations of dowry demand, sodomy, and mental and
physical torture in various ways. In sum, there were innumerable complaints and allegations
made against each other. Best efforts for reconciliation were made by the Court but to no
effect. The trial Court on evaluation of the entire evidence found that even though it was a
case where marriage had broken, but under the law as it exists, the marriage could not be
dissolved on the ground of irretrievable breakdown. The Court found both the parties at fault,
and did not grant the decree of divorce as the husband could not prove cruelty of wife so as to
entitle him to a decree of divorce. On appeal against this by the husband, the single judge
observed that the wife had exceeded all limits of decency and crossed the ‘Lakshman Rekha’
when she went to the extent of lodging a false FIR, and when she tried to humiliate him in
front of his superiors. The Court found both the parties at fault, and adopted a middle path by
granting a decree of judicial separation under Section 10 of the Hindu Marriage Act, so that
the parties might ponder over their differences and re-unite, for the welfare of their daughter.

The husband accepted the order of the single judge, but the wife went in appeal before the
Division Bench of the Punjab and Haryana High Court. This Court also observed that even
though the marriage had irretrievably broken down, but in the absence of such statutory
ground the marriage cannot be dissolved on this ground. The Division Bench proceeded on
the basis of allegations of cruelty, and was convinced that the wife’s behaviour amounted to
mental cruelty of the worst type. Her allegations of sodomy against her husband, lodging
false FIRs and complaints against him, and making allegations against her infirm father-in-
law of molesting her, all amounted to cruelty and were certainly intolerable behaviour. The

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Court held that cruelty as alleged by the husband stood proved, and consequently, the single
judge order was set aside and a decree of divorce granted to the husband.

QUESTION OF LAW :-

5. Whether respondent has been exercising such cruelty towards the petitioner so as to
entitle the petitioner to the dissolution of the marriage?
6. 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?
7. Whether the petitioner is bad as premature?
8. Whether the petition is malafide?

PETITIONER’S CONTENTION :-

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 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. In response to the petition, the appellant-wife not only
countered the allegations of cruelty by denying these being wrong and false but counter
attacked the respondent-husband by alleging that rather his conduct amounted to cruelty. She
alleged that the respondent-husband and his family members had demanded exorbitant dowry

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and when this demand could not be met then the respondent-husband had started treating the
appellant-wife with cruelty. Elaborating the reasons behind this attitude of the respondent-
husband, the appellant-wife claimed that he was interested in performing second marriage
with a girl for whom he had a liking. It is claimed that the respondent had performed this
marriage just for monetary consideration. It has been stated that the appellant-wife was
treated with cruelty. Otherwise cohabitation of marriage and birth of a child as alleged in the
petition was not disputed. It had also been conceded in the reply that parties were living
separately since 31.12.1992. The averment in the petition that the husband had been
discharging his obligation was disputed and it was pointed out that he had even not visited the
wife at the time of delivery of the child. He had also not arranged any medical aid. The
allegation of raising demand for car, jewellery and electronic items by the husband and his
family members has also been made. It is further claimed that the husband and his family
members had started mis-behaving from the very first day of the marriage and had even
asked for payment of Rs. 10,000/- prior to the marriage for getting the car comprehensively
insured with a threat that marriage may not take place in case this demand was not met. It has
been brought out in the reply that the behaviour of the respondent-husband was rather very
strange. In a fit of uncontrolable tampers, he used to throw household articles and clothes
brought by the wife shouting and cursing the wife for bringing insufficient dowry. It is also
claimed that besides taunting, the wife used to be beaten by the husband, on being instigated
by his parents. The allegations of switching off TV and erratic and rude behaviour as made in
the petition had been denied by the wife and so also the other allegations as had been
enumerated above. It has also been alleged by the appellant-wife that she had suffered
miscarriage in third weeks of June 1992 when her mother-in-law gave blow on her stomach
during her first pregnancy. At that time no medical assistance was provided to her and rather
she was virtually kept as captive. It is further alleged that the demands for payment of various
sums have been made from time to time. As per the appellant-wife, the parents of the
respondent husband were not interested in her begetting a child and as such had not relished
the news when she again became pregnant in September 1992. It is claimed that the parents
had wanted the appellant-wife to terminate the said pregnancy. While denying the allegations
made in regard to her erratic sexual behaviour, the appellant-wife rather made counter
allegations against the respondent-husband. As per her, the husband used to insist to sexual
intercourse during menstruation period and even after conception. Allegations of even acting
in an unnatural manner were also made. Moving of petition seeking maintenance to the army
and filing of other petitions etc. had been conceded in the reply.

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Replication was filed by the respondent controverting the pleas taken in the reply. The trial
thereafter followed on the issues as framed by the trial Court. Parties led their respective
evidence. In support of the petition, respondent-husband had examined seven witnesses
besides himself appeared as first witness. On the other hand, the appellant-wife besides
appearing herself as a witness in her defence had examined six other witnesses. Evidence of
Dr. Madhu Tyagi (RW4) was excluded from consideration, rightly, as she never turned up for
being cross-examined after recording of her examination-in-chief. On appreciation of
respective evidence led by the parties, the trial Court came to the conclusion that the
respondent-husband had not been successful in proving the allegations of the cruelty. Petition
was, accordingly, dismissed. In an appeal, as already noticed, the learned Single Judge has
granted partial relief to the respondent-husband by setting aside the judgment of the trial
court and by granting decree of judicial separation instead of divorce as prayed for in the first
appeal.

RESPONDENT’S CONTENTION :-

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.

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. 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 started behaving in a strange manner; throwing household

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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 wilfully 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.

he 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.

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 registered FIR No.10 on 19.1.1994 with Police Station,
Keshavpuram, Delhi under Section 406, 498-A, IPC. 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:

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

OBSERVATIONS :-

Section 13(1)(a) of the Hindu Marriage Act, 1955 states that, “any marriage solemnized,
whether before or after the commencement of this Act, may, on a petition presented by either
the husband or the wife, be dissolved by a decree of divorce on the ground that the other
party- has, after the solemnization of the marriage, treated the petitioner with cruelty.

Cruelty is a ground for matrimonial relief under all the matrimonial law statutes in India.
However, it has not been defined, and the concept of cruelty varies from time to time. What
was cruelty yesterday might not be cruelty today, and what is cruelty today might not
necessarily be understood as an act of cruelty tomorrow. The Supreme Court in Ravi Kumar
v. Julmi Devi very aptly said that cruelty has no definition, and in fact, such definition is not
possible. Cruelty in matrimonial cases can be of infinite variety, it being a very subjective
concept. In the case of Naveen Kohli v. Neelu Kohli1, the Supreme Court examined the
development of the concept of mental cruelty in matrimonial cases, and observed that before
the 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, today, it is not necessary for a party claiming divorce
to prove that the cruel treatment is of such a nature as to cause a reasonable apprehension that
it will be harmful or injurious for him or her to live with the other party. Now, it is 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.

1
(2006) 4 SCC 558

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Cruelty not only includes physical cruelty, but also mental cruelty. In Shobha Rani v.
Madhukar Reddi, the Supreme Court held that that cruelty may be mental or physical,
intentional or unintentional. The Supreme Court defined mental cruelty in V. Bhagat v. D.
Bhagat2 as that conduct which inflicts upon the other party such mental pain and suffering as
would make it not possible for at party to live with the other. 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.

Thus, in the case of Manisha Tyagi v. Capt. Deepak Kumar, both the trial Court and the
appellate Court (single judge) had upon after carefully examining the case and considering
the conduct of the parties over a period of time, found that the husband could not prove
cruelty on part of the wife. The trial Court explained that to say that a person started to bark
like a dog, and a person is a dog are two different things. The Court also said that the
allegations of the wife against the husband of unnatural sex cannot be equated with sodomy.
Thus, the fact that the wife had been treating her husband with cruelty could not be
established. Both the Courts

had agreed that the marriage had broken down, and was irretrievable, but, since that was not a
valid ground for divorce under the Hindu Marriage Act, divorce could not be granted.

The Appellate Court granted a decree of judicial separation to the husband, since it came to
the conclusion that by doing this, the couple could get more time to ponder over the issues,
while keeping in mind the welfare of their daughter. If the parties reconciled their differences,
then the decree of judicial separation would not hold valid, and if, they do not decide to
reconcile, then, either party could ask for the dissolution of marriage on the basis of the
decree of judicial separation. As is known to us by the facts, the husband had accepted the
decree granted by the single judge, and after the expiry of one year, even filed for divorce.
However, the wife challenged the grant of decree of judicial separation to the husband by the
Appellate Court. The wife complained that the single judge had wrongly granted the decree
of judicial separation to the husband, despite both the Courts (trial and appellate) coming to
the conclusion that the husband could not prove cruelty of wife. The Division Bench held that
that the wife’s acts amounted to cruelty of the worst kind, and thus it granted a decree of
divorce to the husband.

2
(1975) 2 SCC 326

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It is important for us to note here, that it was not the husband who went in appeal against the
grant of decree of judicial separation. Rather, it was the wife who had challenged the decree,
and later even challenged the order of the Division Bench. Still, the Division Bench of the
Punjab and Haryana High Court granted the relief of divorce, as initially sought by the
husband, as if, it was he who had challenged the decree of separation and appealed for
divorce. Also, even if the wife’s appeal against decree of separation had been dismissed, the
trial Court’s findings of her acts not amounting to cruelty towards the husband would still
have remained intact. And as mentioned above, the effect of the order passed by the Division
Bench is as if an appeal of the husband against the decree of separation has been allowed.

As is proved by the 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. Thus, the middle
path of judicial separation had been accepted. There was no need for the Division Bench to
grant the decree of divorce as this was not a case where there was a need for the Court to
correct any glaring and serious errors committed by the Courts below which had resulted in a
miscarriage of justice. The trial Court and the appellate Court had both concluded that the
husband could not prove cruelty by the wife. Thus, the Apex Court very aptly stated that, “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.

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

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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.

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 3 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.

JUDGEMENT IN LOWER COURT :-

We have already noticed that the parties are living separately since 31.12.92. We have also
made reference to the efforts that we made to resolve the differences between the parties or
other settlement and that we remained unsuccessful. We can thus say that there is no
possibility of the parties living together. The respondent is an army officer and appellant-wife
is an Advocate practising at High Court. They are thus belonging elite society. High standard
of behaviour can rightly be expected from them. Any misconduct committed in the
environment of the army service or in the presence of subordinates and colleague officers
would have certainly been very degrading for the respondent and would show cruelty. Having
regard to the social background and status of the parties and other circumstances, we can say
that the allegations proved in this case would amount to cruelty on the part of the wife. We
would, accordingly, hold that the finding of the learned Single Judge in granting 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 and modify the judgment of
the learned Single Judge to hold that the decree of divorce prayed by the respondent-husband
is granted.

As already noticed above, the respondent-husband was willing to pay a sum of Rs. 10 lacs to
the appellant-wife and his child. We would, as such, direct that this amount be paid to the

3
1976 amendment in the Hindu Marriage Act, 1955

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appellant-wife and the child as early as possible. We would, accordingly, direct the
respondent-husband to file an undertaking before this Court within a period of two weeks
from today to the effect that he would pay a sum of Rs. 10 lacs within a period of two months
thereafter. Liberty is granted to the appellant-wife to approach this Court in case the said
undertaking given by the respondent-husband is not honoured and the amount is not paid to
her within the stipulated period. We would leave the parties to bear their own costs.

JUDGEMENT IN SUPREME 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 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. 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. There shall
be no order as to costs.

The court considered the conclusion by the Trial Court and the Appellate Court in which the
behaviour of the husband as well as the wife is stated to fall short of the standard required to
establish mental cruelty in terms of Section 13(1) (i-a).4 In the case of Naveen Kohli vs.
4
Section 13(1) (i-a)

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Neelu Kohli the Court examined the development and evolution of the concept of mental
cruelty in matrimonial causes. It is not necessary for a party claiming divorce to prove that
the cruel treatment is of such a nature as to cause reasonable apprehension that it will be
harmful or injurious for him or her to live with the other party. 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." 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: 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 sometimes 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 anything 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 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 Dastane vs. Dastane5, wherein it is observed that 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. 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. Continued ill-treatment,
cessation of marital intercourse, studied neglect; indifference of one spouse to the other may
lead to an inference of cruelty. In the case of Shobha Rani vs. Madhukar Reddi (1988) 1 SCC
105 the concept of cruelty has been stated as 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 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. The absence of
intention should not make any difference in the case, if by ordinary sense in human affairs,

5
(1975) 2 SCC 326

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the act complained of could be regarded as cruelty. In the case of V. Bhagat vs. D. Bhagat6,
Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts
upon the other party such mental pain and suffering as would make it not possible for that
party to live with the other. In other words, mental cruelty must be of such a nature that the
parties cannot reasonably be expected to live together. The situation must be such that the
wronged party cannot reasonably be asked to put up with such conduct and continue to live
with the other party. It is not necessary to prove that the mental cruelty is such as to cause
injury to the health of the petitioner. While arriving at such conclusion, regard must be had to
the social status, educational level of the parties, the society they move in, the possibility or
otherwise of the parties ever living together in case they are already living apart and all other
relevant facts and circumstances which it is neither possible nor desirable to set out
exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a
matter to be determined in each case having regard to the facts and circumstances of that
case. If it is a case of accusations and allegations, regard must also be had to the context in
which they were made."

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. N.G. Dastane vs. S.
Dastane7 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". 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. The
Court observed that mental cruelty in Section 13(1)(i-a) can broadly be defined as that
6
(1994) 1 SCC 337
7
(1975) 2 SCC 326

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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.

Since both the parties made extremely serious allegations, it would be appropriate as the
parties were not compelled to live together. The Appellate Court had come to the conclusion
that it would be better to give some time to the couple to ponder over the issue, especially
keeping in mind the welfare of their daughter. If they manage to reconcile, judicial separation
is not required. However, if the parties continued with their adamant attitudes it would be
possible for either party to seek dissolution of the marriage. The husband had not challenged
the aforesaid decree of the Appellate Court, he was content to wait for one year to seek
decree of divorce. Upon the expiry of one year, he had actually filed the necessary
proceedings seeking decree of divorce in the Court of District Judge whose proceedings were
still pending.

The High Court erred in granting a decree of divorce to the husband. Even if the appeal by
the wife to the division bench of High Court had been dismissed, the findings recorded by the
Trial Court in her favour would have remained intact. Both the parties had failed to make out
a case of divorce against each other.

Decision: The Trial Court inclined to believe the wife, whereas the learned Single Judge of
the High court found both the parties 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. There was no compelling necessity placed before the
Division Bench to justify reversal, of the decree of judicial separation. The trial judgement
was not upheld and the appeal was allowed.

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