MANISHA TYAGIversusDEEPAK KUMAR

                     [2010] 2 S.C.R. 554


A
                         MANISHA TYAGI
                                v.
                         DEEPAK KUMAR
                 (Civil Appeal No. 5387 of 2007)
B                      FEBRUARY 10, 2010
    [V.S. SIRPURKAR AND SURINDER SINGH NIJJAR, JJ.]

        Hindu Marriage Act, 1955:
c       s.13(1)(i-a) - Divorce - On ground of cruelty- Standard
  required to establish cruelty - Held: 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- To establish cruelty
0 it is not necessary that physical violence should be used -
  Continued ill-treatment, cessation of marital intercourse,
  studied neglect, indifference of one spouse to the other may
  lead to an inference of cruelty.

E      ss. 10 and 13 - Petition of husband for divorce on ground
  of cruelty - Dismissed by trial court - Single Judge of High
  Court found both the parties to be at fault and granted decree
  of judicial separation instead of divorce - Wife challenged the
  decree of judicial separation - Division Bench re-appreciated
F the entire evidence and decreed divorce - On appeal, held:
  The husband had not challenged the decree passed by the
  Single Judge, yet the effect of the order passed by the Division
  Bench was as if an appeal ofthe husband against the decree
  of judicial separation was allowed - Also, it was not a Cpse
G where it was necessary for the Division Bench to correct any
  glaring and serious effors committed by the court below which
  had resulted in miscarriage of justice - There was no .
  compelling necessity, independently placed before the

                                554
H
         MANISHA TYAGI v. DEEPAK KUMAR                    555


 Division Bench to justify reversal, of the decree of judicial   A
 separation - Order passed by the Single Judge restored.

       The husband-respondent filed petition under Section
. 13 of the Hindu Marriage Act, 1955 seeking divorce on the
  ground of cruelty. The petition was dismissed by the trial
  court. Respondent challenged the order. A Single Judge 8
  of the High Court found both the parties to be at fault and
  granted decree of judicial separation under Section 10 of
  the Hindu Marriage Act, 1955 instead of divorce.
  Aggrieved, the wife filed LPA before the Division Bench.
  The Division Bench re-appreciated the entire evidence C
  and held that the cruelty alleged by the husband stood
  proved and granted decree of divorce. The said judgment
  is challenged by the wife in the present appeal.

     Allowing the appeal, the Court                              D
       HELD: 1.1. As regards the standard required to
  establish cruelty in matrimonial cases, 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 E
  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 F
  physical violence should be used. However continued ill-
  treatm~nt, cessation .of marital intercourse, studied
· neglect, indifference of one spouse to the other may lead
  to an inference of cruelty. However in the present case
  even with aforesaid standard both the Trial Court and the G
  Appellate Court (the Single Judge of High 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. [Para 24] [569-G-H; 570-A-B]
                                                                 H
    556     SUPREME COURT REPORTS              [2010] 2 S.C.R.


A        1.2. In the present case, 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.
8   The Appellate Court further came to the conclusion that
    since both the parties made extremely serious
    allegations, it would be appropriate as the parties were
    not compelled to live together. The Appellate Court came
    to the conclusion that it would be more appropriate to
C   give the couple some time to ponder over the issue
    especially keeping in view the welfare of their daughter.
    If in due course they manage to reconcile their
    differences the decree of judicial separation would be of
    no consequence. On the other hand, if the parties
    continued with their adamant attitudes it would be
D   possible for either party to seek dissolution of the
    marriage on the basis of the aforesaid decree of judicial
    separation. The husband did not challenge the aforesaid
    decree of the Appellate Court, he was content to wait for
    one year and thereafter seeking decree of divorce. In fact
E   upon the expiry of one year he has actually filed the
    necessary proceedings seeking decree of divorce in the
    Court of District Judge. These proceedings are still
    pending. On the other hand the wife had filed the Latest
    Patent Appeal challenging the grant of decree of judicial
F   separation to the husband by the Appellate Court. The
    High Court erred in granting a decree of divorce to ·the
    husband. [Paras 27, 28, 29 and 30] [571-G-H; 572-A-H; 573-
    A-C]
G     1.3. The wife 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.
H Therefore even if the appeal had been dismissed, the
         MANISHA TYAGI v. DEEPAK KUMAR                   557


findings recorded by the Trial Court in her favour would        A
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         B
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 the basis of the proven
facts the Trial Court was more inclined to believe the wife,
whereas the Single Judge of the High court found both           c
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.       0
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. The         E
Judgment passed by the Division Bench of High Court
is set aside and that passed by the Single Judge 'is
restored. [Paras :30 and 31] [572-E-H; 573-A-D]

    Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558; N.G.
Dastane v. S. Dastane (1975) 2 SCC 326; Shobha Rani v.          F
Madhukar Reddi (1988) 1 SCC 105 and V. Bhagat v. D.
Bhagat (1994) 1 SCC 337, referred to.

                    Case Law Reference:
    (2006) 4 sec 558         referred to          Para 22       G

    (1975) 2 sec 326         referred to          Para 23
    (1988) 1 sec 105         referred to          Para 25
    (1994) 1 sec 337         referred to          Para 26       H
     558      SUPREME COURT REPORTS              [2010] 2 S.C.R.


A         CIVIL APPELLATE JURISDICTION : Civil Appeal No.
     5387 of 2007.

       From the Judgment & Order dated 25.8.2006 of the High
  Court of Punjab & Haryana at Chandigarh in LP.A No. 1625
B of 2001.

           Kamini Jaiswal for the Appellant.

         Rajender Kumar, M.A. Chinnasamy, K. Krishnakumar and
     Ravi Tamar for the Respondent.
c.
           The Judgment of the Court was delivered by

       SURINDER SINGH NIJJAR, J. 1. In this appeal the wife
  has challenged the judgment of High Court of Punjab and
  Haryana in LPA No.1625/01 dated 25.8.2006 whereby the High
D Court set aside the judgment of the Trial Court and the
  Judgment of Ld. Single Judge and granted a decree of divorce
  to the husband.

       2. Marriage between the parties was celebrated according
E 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
F 31.12.1992. They have a daughter who was born on 2.6.1993.

        3. On 24.11.1993 the husband filed a petition under
  Section 13 of the Hindu Marriage Act being Matrimonial Case
  No.644 of 1993 for dissolution of the marriage. Later on the
  petition was amended and filed in the Court of District Judge
G of Gurgaon on 28.11.1995 pursuant to the order issued by this
  Court in a transfer petition.

       4. The husband has mentioned numerous instances of
  cruelty in paragraph 7 of the divorce petition. He has described
H the wife as quarrelsome, rude and ill-mannered. He had gone
         MANISHA TYAGI v. DEEPAK KUMAR                        559
           [SURINDER SINGH NIJJAR, J.]
to the extent of terming his wife to be schizophrenic, making        A
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     B
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        C
in which according ,to him the wife had made numerous false
allegations about the behaviour of the husband and his family
even prior to the marriage ceremony.

      5. We may notice here the contents of the statutory
complaint. She complained about the exorbitant demands               D
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 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               E
claimed that she had never seen a human being behaving that
way even if very heavily drunk, as he was most of the times she
remained in his company. She has stated that the husband and
in-laws had willfully and cruelly treated her and had spared no
effort to cause her mental harm and inflicted grave injuries. She    F
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        G
husband which is not only rude, indiscreet, disgraceful and
unbecoming of an Army officer but he has committed the
offences under the Penal Code.

    6. The husband further complains that even during this
                                                                     H
    560     SUPREME COURT REPORTS                   [2010] 2 S.C.R.


A   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
8   with him.

       7. The husband then makes a grievance that the wife had
  made a complaint to the Women Cell, Nanakpura, New Delhi
  where notice was received by the husband for appearance on
  28.1.1994. She had also registered Fl R No.10 on 19.1.1994
C with Police Station, Keshavpuram, Delhi under Section 406,
  498-A, IPC. The police raided the flat of the parents of the
  husband at Neida on 22.1.1994 along with the wife. She even
  took away all her belongings including the Maruti car. The
  husband in fact goes on further to allege that she even took the
D ornaments belonging to the husband and his parents. It is
  further alleged that the husband and the parents had to
  approach the court for anticipatory bail. She then filed a petition
  for maintenance before the Family Court, Meerut. She also
  lodged an FIR on 18.8.1999 under Section 354/506/34. She
E made false allegations against his father, advocate and the son
  of the advocate. With these allegations the husband had gone
  to court seeking divorce.

       8. The Trial Court also took notice of the counter allegations
F 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
G 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 an~ electronic
H
         MANISHA TYAGI v. DEEPAK KUMAR                       561
           [SURINDER SINGH NIJJAR, J.]

items. She states that the marriage was celebrated under A
shadow of extortion. She was harassed by the in-laws and
rudely informed that they were expecting a sum of more than
30-lakh rup13es 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 B
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         c
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 0
as a counter blast to the divorce petition filed by the husband.

    9. On the basis of the pleadings of the parties the Trial.
Court framed the following issues:
                                                                '
          "1. Whether respondent has been exercising such            E
    cruelty towards the petitioner so as to entitle the petitioner
    to the dissolution of the marriage? OPP

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

          3. Whether the petitioner is bad as premature?

          OPP.
                                                                     G
          4. Whether the petition is malafide? OPR

          5. Relief."

   10. The Trial Court on evaluation of the entire evidence
however held as follows:                                             H
    562      SUPREME COURT REPORTS                  [2010] 2 S.C.R.


A                 "Although the circumstances mentioned above
          clearly reveal thaj it is a case of broken marriage,
          however, there is no ground given in Section 13 of the
          Hindu Marriage Act, where a decree of divorce can be
          founded on the proof of irretrievably broken marriage. In
B         this regard, I may cite a recent judgment of our own Hon'ble
          High Court reported as Rupinder Kaur Vs. Gurjit Singh
          Sandhu (1997-3) P.L.R. 553. It is laid down in this decision
          that even if the marriage is assumed to have (illegible) for
          irretrievably, it is not ground to dissolve the marriage.
c                However, the situation reached between the parties
          is of the doing of the petitioner and it is well qherished
          principle laid down in Section 11 of the Hindu Marriage
          Act that a party cannot be permitted to take benefit of his
          own wrongs.
D
          For the discussion made above and the conclusior:_i_s.
          reached thereon, I hold that the petitioner has been
          unsuccessful in proving the respqndentto have treated him
          with cruelty of the nature as to entitle him to a decree of
E         divorce,_ Lt is however, proved on the other side that the
    -     pelTffoner had harassed the respondent for getting his
          demand and the demands of his parents fulfilled. However,
          the respondent has prayed for no relief on that ground.
          Issue No.1 is, therefore, decided against the petitioner
F         while Issue No.2 is decided in favour of the respondent."

        11. Aggrieved by the aforesaid findings the respondent
  filed F.A.O. No.16-M of 2000 in the P.unjab and Haryana High
  Court. The Learned Single Judge independently examines the
  entire evidence and the material on the record. Upon evaluation
G 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
H unnatural demands of the husband for sexual intercourse when
          MANISHA TYAGI v. DEEPAK KUMAR                           563
            [SURINDER SINGH NIJJAR, J.]
she was pregnant but she had also made an allegation that he             A
had wanted to commit the act of sodomy with her which s~e
resisted. The Learned Single Judge concludes that the evic'ence
led by the husband with regard to cruelty of the wife ~s 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            B
behaviour of wife the Learned Single Judge observed as
follows:

            "I have considered the contentions of the parties with
     reference to the documents and first of all I must say here
     that respondent had crossed "Lakshman R.ekha". ldo not              C
     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 tirne,
     the wife must remain within the limits. She should not
     perform her acts in such a manner that it may bring                 D
     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."

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

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

      13. In view of the aforesaid conclusions the Learned Single        G
Judge granted the alternative relief to the husband by passing
a decree for judicial separation under Section 10 of the Hindu
Marriage Act. This decree was passed with the hope that the
parties would ponder upon the situation and may be able to re-
unite for the welfare of the child. If, on the other hand, the parties   H
    564       SUPREME COURT REPORTS                    [201 O] 2 S.C.R.


A do not reconcile within the statutory period of -one year it will
  be open to either of them to seek a decree of divorce.

        14. Aggrieved by the ·aforesaid judgment the wife went in
  appeal before the Division Bench in LPA No.1625/01. The
B Division Bench noticed the extensive pleadings as well as the
  evidence led by the parties. On a re-evaluation of the evidence
  the Division Bench concluded that all efforts of reconciliation
  between parties have failed. They have been living separately
  since 31.12.1992. According to the Division Bench the
C marriage has irretrievably broken down. The Division Bench
  sums up the entire matrimonial scene of the parties in the
  following words:

                 "The allegations and counter alle.gations had flown
          thick and proper in this case. To an extent these did receive
D         support by the evidence led by the respective parties. The
          learned Single Judge chose a middle-path by holding that
          both the parties were at fault and accordingly granted
          decree of judicial separation instead of divorce. To what
          effect and what difference it has made to the live's of parties
E         can not really be made out. The parties are living
          separately since 31.12.1992. Though not revealed from the
          record but we can assume that efforts must have been
          made for reconciliation betwee~ the parties .at the trial and
          at the first appellate stage. Bot~ .the parties continue to
F         differ and have refused to patch up.'·As noticed earlier, we
          also failed in our efforts to bring this matrimonial dispute
          to some agreed solution. What is left of this marriage?
          Both the parties though educated but are still standing firm
          on their respective stands. They both seem to be totally
          unconcerned about their young child and have continued
G
          with their combatant attitude without any remorse. This
          marriage, if we may say, has irretrievably broken down.
          That of course cannot be a ground for granting divorce
          between this fighting couple. No wonder, the Hon'ble
H ..      Supreme Court in a latest decision in Naveen Kohli vs.
         MANISHA TYAGI v. DEEPAK KUMAR                      565
           [SURINDER SINGH NIJJAR, J.]

    Neelu Kohli, 2006 (3) Scale 252 has made a                     A
    recommendation to t.he 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    B
    required to decide if the allegations of cruelty made by the
    respondent were proved or not."

     15. While reappreciating evidence the Division Bench
notices the averments made by the wife in paragraphs 13 and        C
31 of the Statutory Complaint dated 10.12.1993 wherein she
had stated as follows:

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

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

     16. It is also observed that the wife has not denied the
aforesaid averments while giving her evidence. She had in fact     G
further elaborated the allegation of sodomy made by her in the
complaint. The conclusion recorded by the Division Bench is
as follows:

          "We have given our thoughtful consideration to the
                                                                   H
    566      SUPREME COURT REPORTS                  [201 O] 2 S.C.R.


A         while issue. It cannot be disputed that the appellant had
          made the averments in paras 13 and 31 of the complaints,
          which have been reproduceq above. She has also not
          denied the same, rather while giving her evidence, she had
          further elaborated the allegations of sodomy made by her
B         in the complaint. Wife cannot deny that she had compared
          her husband to a barking dog that she also made
          allegations against him for having behaved in a strange
          manner. She had also referred to him as heavy drunkard.
          Even if we leave aside the other allegations as made by
c         the husband, we think that describing husband as dog and
          mimicking as animals and making allegations of sodomy
          would be enough to say that these amounted to cruelty 'on
          her part towards her husband. It cannot be denied that the
          wife had lodged various complaints and criminal
          proceedings against the respondent-husband. FIR under
D
          sections 498-A and 406 IPC was got registered by the
          wife. Respondent-husband, however, ea~ned 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
E         and 420 IPC, the respondent-husband was discharged.
          The record also reveals that still another FIR was got
          registered under Sections 354 and 506 re?d with Section
          34 IPC on 18.8.1999 against the father-in-law, an
          Advocate and son of an Advocate by the appellant-wife.
F         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,
G         who was none else than the husband of such complaint-
          wife. This FIR was quashed on 20.3.2002. Seeing the
          cumulative effect of all these allegations, we would not
          have any hesitation to hold that the allegations of cruelty
          made by the respondent-husband stand established."
H
         MANISHA TYAGI v. DEEPAK KUMAR                         567
           [SURINDER SINGH NIJJAR, J.]
     17. Since the allegation of cruelty made by the husband          A
had been accepted, the Division Bench further observed as
follows:

            "We would, accordingly, hold that the finding of the
     learned Single Judge in grating partial relief and that of the   B
     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 ahd modify the judgment of the learned
     Single Judge to hold that the decree of divorce prayed by        C
     the respondent-husband is granted."

     The aforesaid judgment has been challenged by the wife
in the present appeal.
                                                                      D
     . 18. We have heard the counsel for the parties. Ms. Kamini
Jaiswal, appearing for .the appellant, submitted that order
passed by the High Court could not have been passed in an
appeal filed by the wife. The husband had not filed any appeal.
Both the courts below had given concurrent findings that that
the allegations of the husband about cruelty of the wife have         E
not been proved. These findings were based on a thorough
evaluation of the evidence by the Trial Court as well as the
learned Single Judge of the High Court. The Division Bench
reversed the findings without any recording any independent
reasons. Learned Counsel made a reference to the                      F
observations of the Trial Court wherein it has been observed
that averments made in paragraph 13 would not amount to
calling her husband a dog. The District Judge had observed
"to say that a person started barking like a dog and that that
person is a dog are two different things. In Para 13 of exh. PW2/     G
1, the respondent only speaks about unhuman behaviour of her
husband and she cannot be taken as addressing her husband
as dog in this paragraph".

     19. The Trial Court also observed that the allegations made      H
    568     SUPREME COURT REPORTS                   [2010] 2 S.C.R.


A in paragraph 31 of the Statutory Complaint about unnatural sex
  cannot be equated with sodomy. The Trial Court also came to·
  the conclusion that it is a case of broken marriage. However,
  in the absence of a ground under Section 13 of the Hindu
  Marriage Act where a decree of divorce can be founded on the
8 proof of irretrievable broken marriage, it would not be a ground
  to dissolve the marriage. It is also pointed out that these findings
  were not rejected by the Appellate Court.· According to the
  learned counsel on this short ground the judgment of the
  Division Bench is liable to be set aside.

C          20. On the other hand, Mr. Rajender Kumar, appearing for
     the husband submitted that the High Court possibly could not
     have granted the decree on the basis of irretri~able break
     down of marriage. However, the High Court has granted the
     decree of divorce upon re-appreciation of the evidence and
D recording an independent finding that the conduct of the wife
     amounts to cruelty which would entitle the husband to a decree
     of divorce. According to the learned counsel substantial justice
  .. has been done between the parties and the judgment does not
     call for any interference. It has also been pointed out by the
E learned counsel that, a petition was filed for divorce on the
     basis of the decree of judicial separation which had been
    granted by the learned Single Judge. However proceedings in
    the. aforesaid case have been kept in abeyance due to the
     pendency of the appeals in the High Court and this Court.
F Learned counsel submitted that there is absolutely no room for
     reconciliation between the parties. Therefore, the judgment of
 .·the High Court need not be reversed at this stage.

       21. We have considered the submissions made by the
  learned couhsel. The Trial Court as well ·as the Appellate Court
G have both concluded that the behaviour of the husband as well
  as the wife falls short of the standard required to establish
  mental cruelty in terms of Section 13(1) (i-a).

          22. At this stage we may notice the observations made
H ·. by this Court in the case of Naveen Kohli vs. Neelu Kohli
         MANISHA TYAGI v. DEEPAK KUMAR                        569
           [SURINDER SINGH NIJJAR, J.]

(2006) 4 sec 558. In this case the Court examined the                A
deveiopment and evolution of the concept of mental cruelty in
matrimonial causes. In paragraph 35 it is observed as follows:

     "35. The petition for divorce was filed primarily on the
     ground of cruelty. It may be pertinent to note that, prior to 8
     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 C
     "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 D
     apprehension-reasonable apprehension - that it will be
     harmful or injurious for him or her to live with the other party."

     23. The classic example of the definition of cruelty in the
pre-1976 era is given in the well known decision of this Court       E
in the case of N. G. Dastane vs. S. Dastane (1975) 2 SCC
326, wherein it is observed as follows:

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

    24. This is no longer the required standard. Now it would
be sufficient to show that the conduct of one of the spouses is
so abnormal and below the accepted norm that the other               G
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      H
    570       SUPREME COURT REPORTS                   [201 O] 2 S.C.R.


A   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
B   the conduct of the wife did not amount to cruelty of such a nature
    to enable the husband to obtain a decree of divorce.

        25. We may notice here the observations made by this
    Court ·in the case of Shobha Rani vs. Madhukar Reddi ( 1988)
c   1 sec· 105 wherein the concept of cruelty has been stated as
    under:

                 '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
D         to or in respect of matrimonial duties or obligations. It is a
          course of conduct of one which is adversely affecting the
          other. The cruelty may be mental or physical, intentional or
          unintentional. If it is physical, it is a question of fact and
          degree. It if it mental, the enquiry must begin as to the
E         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
F         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
G
          admitted. The absence of intention should not make any
          difference in the case, if by ordinary sense in human affairs,
          the act complained of could otherwise be regarded as
          cruelty. Intention is not a necessary element in cruelty. The
          relief to the party cannot b e denied on the ground that
H
         MANISHA TYAGI v. DEEPAK KUMAR                          571
           [SURINDER SINGH NIJJAR, J.]
     there has been no deliberate or willful ill-treatment."            A

     26. In the case of V. Bhagat vs. D. Bhagat (1994) 1 SCC
337, this Court while examining the concept of mental cruelty
observed as follows:

           "16. Mental cruelty in Section 13(1)(i-a) can broadly        B
     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                C
     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               D
     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           E
     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 circunistances of that case.· If it is a case of
     accusations and allegations, regard must also be had to            F
     the context in which they were made."

     27. Taking into consideration the conduct of the parties over
a period of time, the Trial Court as well as the Appellate Court
concluded that the husband had failed to establish cruelty on
the part of the wife which will be sufficient to grant a decree of      G
divorce.

    28. The Appellate Court further came to the conclusion that
since both the parties made extremely serious allegations, it
would be appropriate as the parties were not compelled to live          H
     572    SUPREME COURT REPORTS                  (2010] 2 S.C.R.


.AtogetheL. The Appellate Court came to the conclusion that it
  would be more appropriate to give the couple some time to
  ponder over, the issue especially keeping in view the welfare
  of their daughter. If in due course they manage to reconcile their
  differences the decree of judicial separation would be of no
B consequence. On the other hand, if the parties continued with
  their adamant attitudes it would be possible for either party to
  seek dissolution of the marriage on the basis of the aforesaid
  decree of judicial separation.

       29. As noticed earlier the husband did not challenge the
C aforesaid decree of the Appellate Court, he was content to wait
  for one year and there after seeking decree of divorce. In fact
  upon the expiry of one year he has actually filed the necessary
  proceedings seeking decree of divorce in the Court of District
  Judge, Gurgaon on 9.5.2002. These proceedings are still
D pending.

        30. On the other hand the wife had filed the Latest Patent
  Appeal challenging the grant of decree of judicial separation
  to the husband by the Appellate Court. We are of the opinion
E 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 failea to
F 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
G 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 riore inclined to believe the wife, whereas the learned
H
         MANISHA TYAGI v. DEEPAK KUMAR                      573
           [SURINDER SINGH NIJJAR, J.]
Single Judge of the High court found both the parties to be at     A
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,      B
independently placed before the Division Bench· to justify
reversal, of the decree of judicial separation. In such
circumstances it was wholly inappropriate for the Division of
High Court to have granted a decree of divorce to the husband.

     31. For the aforesaid reasons, we are unable to uphold        C
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 FAQ No. 16-M
of 2000.                                                           D

    32. There shall be no order as to costs.

B.B.B.                                         Appeal allowed.