The 

appeal from family courts lies directly to the Hon’ble High
Court within 30 days of passing the order or the judgment. Such an
appeal can be on both question of law and question of fact.  No appeal
lies against an order which is passed with the consent of the parties.  Counseling   and   conciliation  
are   the   two   pillars   on   which   the   whole structure of family courts is built.

ISSUE II-

Whether the long periods of continuous separation between the parties led to the matrimonial
bond being breached beyond repair, which tantamounted to cruelty

2.1. It is humbly submitted to this Honourable Court that Marriage is a sacramental union, a holy
union between man and women and not a contractual union as per Hindu tradition. It is a union
which once tied cannot be untied. According to Manu, husband and wife are united to each other
not merely in this life but even after death, in the other world.1

 Section 13 of the Hindu Marriage Act 1955 defines the grounds for divorce and Section 13
(1)(i-a) specifically states that:

(1) Any marriage solemnised, 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

(i-a) has, after the solemnisation of the marriage, treated the petitioner with cruelty

The term ‘Cruelty’ constitutes both acts of Physical and Mental cruelty. Even though the act doesn’t
define mental cruelty as such, the Apex court has in ample verdicts defined and established the
grounds for mental cruelty.

In Bhagat v. Bhagat,2 the Honourable Supreme Court defined Mental Cruelty 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”. It was further stated that it “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.”

1
Dr. Paras Diwan, Modern Hindu Law (Allahabad Law Agency, 22nd edition).
2
AIR 1994 SC 710
 In Shobha Rani v. Madhukar Reddi3, the Supreme Court observed that the word
‘cruelty’ has not been defined in the Act, the word is used in Section 13(1) (ia) of the
HMA with reference to human conduct or behavior in relation to or in respect of matrimonial
duties and obligations. It is a course of conduct of one which is adversely affecting the
other. After passing Marriage laws (Amendments) Act, 1976 cruelty has been a ground of
divorce.

In Parveen Mehta v. Inderjit Mehta4, mental cruelty was defined as- Mental cruelty is a state of mind
and feeling with one of the spouses due to the behavior or behavioral pattern by the other.
Unlike the case of physical cruelty, the 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.

In A. Jyachandra v. Aneel Kaur9, the S. C. expressed the view about cruelty. The expression “cruelty” has
been issued in relation to human conduct or human behavior. It is a conduct in relation to or in
respect of matrimonial duties and obligations. The cruelty may be mental or physical, intentional or
unintentional.

3
A.I.R. 1988 S.C. 121 (India).

4
Parveen Mehta v. Inderjit Mehta, A.I.R. 2002 SCC 706 (India).
The Court below also erred and failed to appreciate that the sanctity of the

marriage cannot be left at the wish of one annoying spouse. In order to show that the impugned order is

erroneous, reliance has been placed upon the cases of Smt. Beena v. Suresh Vir Tomer, [1995 (25) ALR

277] and Savitri Pandey v. Prem Chandra Pandey, [(2002) 2 SCC 73]. wife

In order to establish that it is virtually impossible for the parties to live together and the decree of
divorce is the only recourse left and to justify that the order of the Family Court is perfectly legal,
reliance has been placed upon the cases of Smt. Meena Singh v. Mithlesh Kumar Singh, [(2009 (3)
ALJ 303], Satish Sitole v.Ganga (Smt.); [(2008) 7 SCC 734], Smt. Mayadevi v. Jagdish Prasad, [2007 AIR
SCW 1803], Sujata Uday Patil v. Uday Madhukar Pathil, [2007 AIR SCW 896], Naveen Kohliv. Neelu
Kholi, [(2006) 4 SCC 558], Durga Prasanna Tripathi v. Arundhati Tripathi, [(2005) 7 SCC 353],
Jayachandra v. Aneel Kaur, [(2005) 2 SCC 22 : AIR 2005 SC 534],Poonam Gupta v. Ghanshyam Gupta,
[AIR 2003 (All) 51]; G.V.N Kameshwar Rao v. G. Jabilli, [(2002) 2 SCC 296], Praveen Mehta v. Inderjit
Mehta, [11 (2002) DMC 205 (SC)]and Smt. Kalpana Srivastava v. Surendra nath, [AIR 1985 (All)
253].wife

Following the principle of ‘live and let live’ and the precedent laid down by the Apex Court, it is
desirable and expedient in the interest of justice to dismiss the decree passed by the Family Court
below and to allow the appeal. Contention 2

(We have been principally impressed by the consideration that once the marriage has broken down
beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be
harmful to society and injurious to the interests of the parties. Where there has been a long period
of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The
marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in
such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the
feelings and emotions of the parties.
….once the marriage has broken down beyond repair, it would be unrealistic for the law not to take
notice of that fact, and it would be harmful to society and injurious to the interests of the parties.
Where there has been a long period of continuous separation, it may fairly be surmised that the
matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie.
By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the
contrary, it shows scant regard for the feelings and emotions of the parties.) Smt. Poornima Misra
versus Sunil Misra 2010 SCC OnLine All 78 : (2010) 79 ALR 701 : (2010) 3 All LJ 555 : 2010 AIHC 3108
Allahabad High Court con 3

In Samar Ghosh v. Jaya Ghosh2, the Apex Court has held as follows: 87 Smt. Arti Pandey Versus
Vishnu Kant Tiwari 101. “No uniform standard can ever be laid down for guidance, yet we deem it
appropriate to enumerate some instances of human behaviour which may be relevant in dealing
with the cases of ‘mental cruelty’. The instances indicated in the succeeding paragraphs are only
illustrative and not exhaustive. (i) ………………………………………………………………. (ii) On comprehensive
appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is
such that the wronged party cannot reasonably be asked to put up with such conduct and continue
to live with other party. (iv) Mental cruelty is a state of mind. The feeling of deep anguish,
disappointment, frustration in one spouse caused by the conduct of other for a long time may lead
to mental cruelty. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting
physical and mental health of the other spouse. The treatment complained of and the resultant
danger or apprehension must be very grave, substantial and weighty. (vii)
……………………………………………………………………………. (viii)
…………………………………………………………………………… (ix)
……………………………………………………………………………. (x) The married life should be reviewed as a whole
and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must
be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that
because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live
with the other party any longer, may amount to mental cruelty. xxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxx
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that
the matrimonial bond is beyond repair. Themarriage becomes a fiction though supported by a legal
tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity ofmarriage; on the
contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it
may lead to mental cruelty.” Conten 2

Smt. Mamta Dubey versus Rajesh Dubey 2009 SCC OnLine All 629 : AIR 2009 All 141 : (2009) 6 AIR
Kant R (NOC 951) 330 : (2009) 4 All LJ 730 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 and bound to be a source of greater misery for the
parties.
10. Recently in the case of Sivasankaran v. Santhimeenal, the Supreme Court held that the
court can dissolve a marriage when there is actually no chance of the marriage surviving, and it is
broken beyond repair. The Court Relied on Naveen Kohli v. Neelu Kohli, MANU/SC/1387/2006 :
(2006) 4 SCC 558, wherein it held as follows:

"85. 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. ..."
con 3

1 4 . In Laxmi v. Kanhaiya Lal, MAT.PP.(F.C.) 5/2020 decided by this Court on 07.10.2021, where the
parties lived together only for a period of 8 to 9 months, while they had been living separately for
the last 15-16 years, this court has held as follows:

"23. When the marriage sours, the vows that the couple takes at the time of marriage
are a casualty. We take it that neither of the parties to a marriage enters into the
matrimonial bond, only to break it later. For the said bond to breach, there are bound to
be some underlying reasons. In some cases, those reasons may come to the surface and
the court may be able to see them. In others, they may remain latent for myriad
reasons. Those reasons would, invariably, be attributable to both the parties, as it takes
two to fight. And when the fight goes to the point of them filing cases against each
other, the situation becomes messy and bitter for both of them. Unless the situation is
diffused early and the parties decide to reconcile and call a truce, with passage of time,
the void between them only increases, and the feeling of love and warmth in their
relationship begins to fade. What is left is only a feeling of hurt, hatred, disrespect,
disregard and bitterness for the other. These negative feelings and thoughts are bound
to give rise to mental trauma, harassment and cause immense cruelty to one-if not both
the parties. It is well known and medically established that constant feeling of sorrow,
hatred, stress, pain, hurt-and the like, do also manifest in the form of serious diseases
such as heart diseases, diabetes, cancer, etc. [The same has been a point of study in an
article by Timothy W. Smith and Brian R.W. Baucom, wherein it was stated that quality
of intimate relationships matters as "strain and disruption are associated with increased
risk" (of coronary heart disease)]1. The data from NCRB suggests that there are more
suicides resulting from unsettled marital disputes, compared to those resulting from
divorce. In our view, there is no reason, not to recognize this as cruelty, entitling the
court to pass a decree of divorce on the ground of cruelty." Concise it for con 2

16. In Romesh Chander v. Savitri, (1995) 2 SCC 7, Hon’ble Supreme Court again held
that when marriage is dead, emotionally and practically, and there is no chance of its
being retrieved, continuance of it would be cruelty within the meaning of Section13(1)(i-
a) of the Act. Con 2

16. In the present case the parties have never lived together for any significant length of time, since
inception of their marriage. It appears, that the Respondent treated the Appellant as his overseas wife, only to
use her as a temporary companion, and to have someone to serve him when he came to India on short visits after
yearly gaps. In the past seven years, after institution of the divorce proceedings, the parties have admittedly not
communicated with each other. The respondent's submission that the appellant has been forced and is
under pressure to not stay with the respondent, is wholly denied by the Appellant. The Appellant is
educated with a professional degree, She is a major, and has been consciously maintaining her
stance consistently. con 3 the end line

The period of separation and the deciduous meetings of the parties are enough to show that their
matrimonial bond has broken and is beyond repair. After the marriage, which is now 11 years old,
the parties lived together only for a few days together in Lucknow, Agra, Delhi, Nainital and Mumbai,
when the Respondent came back from Canada on vacations. In the present case, there is neither a
matrimonial home, nor the possibility of ever having one. The damage to the marriage is evident.
These instances do not amount to ordinary wear and tear of day-to-day life. The parties in the
present appeal are at an age, where they may start a new life, if given a chance. However, keeping
them tied to a legal bond would only mean snatching away from them the chance to ever lead a
fulfilling life. Continuation of this matrimonial bond, itself, is sufficient to cause immense mental
cruelty to the appellant, at least, if not to both the parties. In the facts of the present case, we see no
reason to keep this moribund marriage alive. The ground of cruelty is, thus, clearly made out as
expounded in Samar Ghosh con 2 the end line

15. The appellant raised a grievance that the respondent never really provided for her after
their marriage. To this, the only answer given by the respondent is that he bore the appellant's
expenses for travel and stay in hotels when he visited India, and he also brought gifts for her,
including on marriage anniversary. He states that the appellant is herself qualified & working and,
therefore, was not in need of any monetary support.

16. The issue is not about the appellant/wife being in need of monetary support. The issue is,
as to how the respondent conducted himself in his role as the appellant's husband. The admitted
lack of any financial support-not even occasional, displays the indifferent and inert attitude of the
respondent towards the appellant. This is also clearly displayed by his lack of will to be with the
Appellant-either in Canada, or in India. The respondent claims that the appellant herself withdrew
from the process of her immigration to Germany, to be with him. There is nothing placed on record
by way of evidence, by the respondent, to show as to what steps he took to persuade the appellant
to join his company in Canada, or to return to India and be with her. The said conduct of the
respondent clearly shows that it was not a priority for him to save his marriage with the appellant.
This indifference shown by the respondent towards the appellant would certainly have caused
doubts and consternation in the mind of the appellant, and her decision-not to immigrate to
Germany, only because the respondent was calling her, can well be appreciated. There appear to
be little, rather no confidence building measures that the respondent appears to have taken, to
give an assurance that the appellant would be well taken care of, and not harmed or left helpless, if
she followed him into a far off strange world. Con 2 explanation 1

17. We may also observe that in his written-statement, and also before us, the respondent has
been claiming that it is the Appellant's father and brother, who have turned the matrimonial
relationship between the parties into hell. Thus, it is clear that the respondent has treated, and
continues to treat, the appellant's family with disdain. This conduct of the respondent would also
have caused immense mental cruelty to the appellant, sufficient for her to reasonably conclude
that she cannot continue her relationship with the respondent.

18. We are, therefore, of the view that even the aforesaid conduct of the respondent
establishes the ground of mental cruelty caused to the appellant, by the respondent con 2 expla 2
Prayer : In view of the aforesaid, it is humbly requested to this hon’ble court to allow the appeal, set
aside the impugned judgment and decree, and dissolve the marriage between the parties by a
decree of divorce on the ground of cruelty contained in Section 13(1)(ia) of the Hindu Marriage Act