Supreme Court of India
SAMARGHOSHversusJAYA GHOSH
- Citation
- 2007 INSC 338
- Decided
- 26 March 2007
- Disposal
- Disposed off
- Bench
- B N AGRAWAL
Holding
The Supreme Court held that the trial court was correctly justified in granting divorce on the ground of mental cruelty and that the High Court erred in reversing that decree.
Summary
The case involved two senior IAS officers who married under the Special Marriage Act in 1984. The wife unilaterally decided not to have children, refused cohabitation, neglected her husband during illness, insulted him and eventually forced him out of their home, leading to a separation that lasted over sixteen years. The husband filed a suit for divorce on the ground of mental cruelty under Section 13(1)(i)(a) of the Hindu Marriage Act. The trial court granted the decree, but the High Court reversed it, holding that the alleged conduct did not amount to cruelty. On appeal, the Supreme Court held that the cumulative conduct—refusal to cohabit, unilateral decision against procreation, humiliation, neglect during illness, and long‑term separation—constituted mental cruelty and an irretrievable breakdown of marriage. The Court set aside the High Court judgment and restored the trial court's decree of divorce. The appeal was allowed and each party was ordered to bear its own costs.
Issues considered
- Whether the appellant proved mental cruelty sufficient to grant divorce under Section 13(1)(i)(a) of the Hindu Marriage Act.
- Whether the long period of separation and the conduct of the parties amount to an irretrievable breakdown of marriage.
- Whether the High Court erred in reversing the trial court's decree of divorce.
Legislation cited
- Hindu Marriage Act, 1955s. 13(1)(i)(a)
- Special Marriage Act, 1954
Subjects
mental crueltydivorcematrimonial disputeirretrievable breakdownIAS officersseparationHindu Marriage ActSpecial Marriage Act
Judgment
+-
A SAMARGHOSH
v.
'( -
JAYAGHOSH
MARCH 26, 2007
B [B.N. AGRAWAL, P.P. NAOLEKAR AND DAL VEER BHANDARI, JJ.]
4-
Matrimonial Disputes:
-...
Divorce-On ground of mental cruelty- 'Mental cruelty '-Instances
c illustrated-On facts, Held: wife's unilateral decision immediately after
marriage, not to have any child from the marriage, her refusal to respect
marital bond and discharge obligations of marital life, her total indifference
and neglect during husband's illness, coupled with other instances would
certainly cause great annoyance to him leading to mental cruelty-Parties
--
D living separately for more than 16 years, irresistible conclusion would be
that matrimonial bond has been ruptured beyond repair because of mental
cruelty caused by the wife.
Respondent, mother of a girl child, sought for and was granted a decree
of divorce with custody of the child. While the matter was pending before the
E appellate court, she re-married another man, the appellant, on 13.12.1984.
Later, the appellant also filed a suit for a decree of divorce against the
respondent on the ground of mental cruelty. Both the parties were IAS
Officers. The case of the appellant, inter alia, was that soon after the marriage
he came to know that respondent's marrying him was merely an eye-wash as
she unilaterally declared her decision not to give birth to any child and asked J.
F him to keep himself away from her; that the respondent refused to cohabit
with the appellant; that the respondent neglected him to the extent that when
he fell ill she went to her brother and parents at a far off place without caring
that there was no one to look after him during his illness; that at times she
used to cook only for herself and not for him and he had either to take his
G meals outside or have to cook again for himself; that she started insulting
and humiliating him in the presence of her father and his servant and one
day virtually turned him out from the house and he had to stay with his friend
until he was allotted an accommodation; that from April 1989, the respondent ~-
;-
started living with her parents, and since August, 1990, the parties were living
H 428
+
- )
SAMARGHOSHv. JAYAGHOSH
separately. In the circumstances the appellant pleaded that it would not be
possible to continue the marriage and prayed for a decree of divorce. The
42S
A
trial court after appreciating the evidence adduced by the parties decreed the
'-
suit, but on appeal by the respondent, the High Court reversed the judgment
' of the trial court and dismissed the suit. Aggrieved, the husband filed the
appeal
B
Disposing of the appeal, the Court
_J
HELD: 1.1. In the backdrop of the ratio and spirit of a number of decided
cases, the trial court was fully justified in decreeing the appellant's suit for
divorce. In a case of this nature, no other logical view is possible. The High
c
.. Court was not justified in reversing the judgment of the trial court, which is
based on carefully watching the demeanour of the parties and their respective
witnesses. [Paras 104 and 105] [466-F-G; G-H]
1.2. 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
D
divorce, it can well be presumed that the marriage bas broken down. The court,
.,J
no doubt, should seriously make an endeavour to reconcile the parties; yet, if
it is found that th·e breakdown is irreparable, then divorce should not be
withheld. The consequences of preservation in law of the unworkable marriage
which has long ceased to be effective are bound to be a source of greater misery
for the parties. In the instant case, the respondent appeared in person. Even E
at this stage the Court made an effort that the parties should talk to each
other so that if the parties could reconcile their differences then the case be
deferred, but, despite the request from the Court there was no conversation
between the parties. In this view of the matter, the parties cannot be compelled
) to live together. [Paras 95 and 36] (462-D-F; 444-B-C]
F
Naveen Kohli v. Neelu Kohli, (2006] 4 SCC 558; N.G. Dastane v. S.
Dastane, (1975] 2 SCC 326; Sirajmohmedkhan Janmohamadkhan v.
Haizunnisa Yasinkhan & Anr., (1981] 4 SCC 250 1 ; Shobha Rani v. Madhukar
Reddi, [1988] 1 sec 1052; Rajani v. Subramanian, AIR (1990) Ker. I; V.
Bhagat v. D. Bhagat (Mrs.), [1994] 1 SCC 337; Chetan Dass v. Kam/a Devi, G
(2001] 4 SCC 2503• Savitri Pandey v. Prem Chandra Pandey, [2002) 2 SCC
I. 1982(1) SCR 695
2. 1988(1) SCR 1010
3. 2001(3) SCR 20 H
+
430 SUPREME COURT REPORTS [2007] 4 S.C.R.
A 734; Gananath Pattnaik v. State of Orissa, [2002] 2 SCC 61~; Parveen Mehta
v. Inderjit Mehta, [2002] 5 SCC 706; A. Jayachandra v. Aneel Kaur, [2005] 2
SCC 226; Vinita Saxena v. Panka_i Pandit, (2006) 3 SCC 778 and Rishikesh
Sharma v. Saroj Sharma, (2006), 12 Scale 282, referred to.
Russell v. Russell, (1897) AC 395; Evans v. Evans, (1790) 1 Hagg Con
B 35; Waters v. Waters, [1956] 1 All. E.R. 432; Hadden v. Hadden, The Times,
December 5, 1919, (also reported in Modern Law Review Vol.12, 1949; Lord
Simon Watt (or Thomas) v. Thomas, (1947] 1 All E.R. 582; Lord Stowell Evans
v. Evans, (1790) 1 Hagg Con 35; Simpson v. Simpson, (1951] 1 All E.R. 955;
Prichardv. Pritchard, (1864) 3 S&T 523; J.O. in Power v. Power, (1865) 4
C SW & Tr. 173; Bravery v. Bravery, (1954) 1 WLR 1169; Jamieson v. Jamieson,
[1952] I All E.R. 875; Le Brocq v. Le Brockq, (1964] 3 All E.R. 464; Wardv.
Ward, (1958) 2 All E.R. 217; White (otherwise Berry) v. White, (1948] 2 All
E.R. 151; Walsham v. Walsham, [1949] I All E.R. 774; Cackett (otherwise
Trice) v. Cackett, [1950) I All E.R. 677; Knott v. Knott, [1955] 2 All E.R. 305;
-
Sheldon v. Sheldon, [1966] 2 All E.R. 257, Lord Denning, MR.; Jamieson v.
D Jamieson, (1952] I All E.R. 875; Waters v. Waters, (1956] I All E.R. 432 King
v. King, (1952] 2 All E.R. 584; Warr v. Warr, [1975] I All ER 85; Jem v. Jem,
(1937) 34 Haw. 312; Hybertson v. Hybertson, (1998) 582 N.W. 2d 402;
Rosenbaum v. Rosenbaum, (1976) 38 Ill.App.3d. 1; Fleck v. Fleck 19 N.D. 561;
Donaldson v. Donaldson, (1917) 31Idaho180; Chouinardv. Chouinard, 10
E D.L.R. (3d) 263; Knoll v. Knoll, 10 D.L.R. (3d) 199; Luther v. Luther, [(1978)
5 R.F.L. (2d) 285, 26 N.S.R. (2d) 232, 40 A.P.R. 232; Zalesky v. Zalesky, 1
D.L.R. (3d) 471; Dunkley v. Dunkley, (1938) SASR 325 and La Rovere v. La
Rovere, 4 FLR 1 and Ladder v. Ladder, 1921 New Zealand Law Reports 786,
referred to.
F The Shorter Oxford Dictionary; Black's Law Dictionary 8th Edition,
2004; Halsbury's Laws of England Vo/.13, 4th Edition Para 1269; 24
American Jurisprudence 2d; William Latey, 'The Law and Practice in Divorce
and Matrimonial Causes' (15th Edition); 71 st report of the Law Commission
of India on "Irretrievable Breakdown of Marriage", referred to.
G 1.3. The High Court has seriously erred in not appreciating the evidence
on record in a proper perspective. The respondent's refusal to cohabit has
4. 2002(1) SCR 50
5. 2002(1) SCR 845
H 6. 2004(6) Supp. SCR 599
+ SAMAR GHOSH v. JAY A GHOSH 431
" er· been proved beyond doubt. The High Court's finding that the husband and A
wife might be sleeping in separate rooms did not lead to a conclusion that
they did not cohabit and to justify this by saying that the respondent was highly
educated and holding a high post was entirely unsustainable. Once the
respondent accepted to become the wife of the appellant, she had to respect
the marital bond and discharge obligations of marital life.
(Para 30) [442-D-F) B
1.4. The finding of the High Court that if the ailment of the husband
-' was not very serious and he was not even confined to bed for his illness and
even assuming the wife under such circumstances did not meet the husband,
such behaviour can hardly amount to cruelty, cannot be sustained. During
illness, particularly in a nuclear family, the husband normally looks after
c
and supports his wife and similarly, he would expect the same from her. It
- may be pertinent to mention that in 1993, the appellant had a heart problem
leading to bye-pass surgery, even at that juncture, the respondent did not bother
to enquire about his health even on telephone and when she was confronted in
the cross-examination, she falsely stated that she did not know about it. This D
instance is clearly illustrative of the fact that now the parties have no emotions,
sentiments or feelings for each other at least since 27.8.1990. This is a clear
case of irretrievable breakdown of marriage. It is impossible to preserve or
save the marriage. Any further effort to keep it alive would prove to be totally
counter-productive. The respondent's total indifference and neglect of the
appellant during his illness would certainly lead to great annoyance leading E
to mental cruelty. (Paras 31, 103 and 33) (442-F-H; 443-A; 466-E-FJ
1.5. The High Court has erroneously placed reliance on the evidence
adduced by the reli:~ondent and discarded the evidence of the appellant. The
evidence of the witness produced on behalf of the respondent is wholly
) unbelievable and cannot stand the scrutiny of law. The High Court did not F
take into consideration the evidence of appellant's servant primarily because
of his low status in life. The credibility of the witness does not depend upon
his financial standing or social status only. A witness who is natural and
truthful should be accepted irrespective of his/her financial standing or social
status. In the impugned judgment, testimony of PW-4 is extremely important G
being a natural witness to the incident He graphically described the incident
of 27.8.1990. He also stated that in his presence, the respondent insulted
and humiliated the appellant. This witness also stated that immediately
... thereafter the appellant had left the flat and, admittedly, since 27.8.1990, both
.: the appellant and the respondent are living separately. This was a serious
incident and the trial court was justified in placing reliance on this evidence H
i~
432 SUPREME COURT REPORTS [2007) 4 S.C.R.
,
A and to come to a definite conclusion that this instance coupled with many other
~
instances led to grave mental cruelty to the appellant. Now the parties have
no feelings and emotions towards each other.
(Paras 33 and 34] [443-B-C; C-G]
1.6. In the background of facts of the case along with an important
B circumstance that the parties are admittedly living separately for more than
sixteen and half years (since 27.8.1990), the irresistible conclusion would be
that matrimonial bond has been ruptured beyond repair because of the mental
cruelty caused by the respondent. [Para 102] (466-B-C] '"-
1.7. The High Court seriously erred in reversing the judgment of the
c trial court. The impugned judgment of the High Court is set aside and the
judgment of the trial court granting the decree of divorce is re:;tored.
(Para 103] (466-D]
2.1. There cannot be any comprehensive definition of the concept of
•i:iental cruelty' within which all kinds of cases of mental cruelty can be
-
D
covered. Human mind is extremely complex and human behaviour is equally
complicated. Similarly, human ingenuity has no bound; therefore, to assimilate
I..
the entire human behaviour in one definition is almost impossible. What is
cruelty in one case may not amount to cruelty in other case. The concept of
cruelty differs from person to person depending upon his upbringing, level of
E sensitivity, educational, family and cultural background, financial position,
social status, customs, traditions, religious beliefs, human values and their
value system. [Paras 98 and 99] [463-G; 464-A-B]
2.2. Apart from this, the concept of mental cruelty cannot remain static;
it is bound to change with the passage of time, impact of modern culture
F through print and electronic media and value system etc. etc. What may be
mental cruelty now may not remain a mental cruelty after a passage of time
or vice versa. There can never be any strait-jacket formula or fixed
parameters for determining mental cruelty in matrimonial matters. The
prudent and appropriate way to adjudicate the case would be to evaluate it on
G its peculiar facts and circumstances while taking aforementioned factors into
consideration. [Para 100] [464-C-D]
2.3. No uniform standard can ever be laid down for guidance, yet it would
be appropriate to enumerate some instances of human behaviour which may ,.
be relevant in dealing with the cases of 'mental cruelty'. The following
H instances are only illustrative and not exhaustive:
SAMAR GHOSH v. .IA YA GHOSH 433
(i) On consideration of complete matrimonial life of the parties, acute A
mental pain, agony and suffering as would not make possible for the parties
to live with each other could come within the broad parameters of mental
cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the
parties, it becomes abundantly clear that situation is such that the wronged B
party cannot reasonably be asked to put up with such conduct and continue to
live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent
rudeness of language, petulance of manner, indifference and neglect may reach
such a degree that it makes the married life for the other spouse absolutely C
intolerable.
(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. D
(v) A sustained course of abusive and humiliating treatment calculated
to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually
affecting physical and mental health of the other spouse. The treatment E
complained of and the resultant danger or apprehension must be very grave,
substantial and weighty.
(vii) Sustai"ed reprehensible conduct, studied neglect, indifference or
total departure from the normal standard of conjugal kindness causing injury
to mental health or deriving sadistic pleasure can also amount to mental F
cruelty.
(viii) The conduct must be much more than jealousy, selfishness,
possessiveness, which causes unhappiness and dissatisfaction and emotional
upset may not be a ground for grant of divorce on the ground of mental cruelty.
G
(ix) Mere trivial irritations, quarrels, normal wear and tear of the
married life which happens in day to day life would not be adequate for grant
of divorce on the ground of mental cruelty.
(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
434 SUPREME COURT REPORTS [2007] 4 S.C.R.
A 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.
(xi) If a husband submits himself for an operation of sterilization without
B medical reasons and without the consent or knowledge of his wife and similarly
if the wife undergoes vasectomy or abortion without medical reason or without
the consent or knowledge of her husband, such an act of the spouse may lead
to mental cruelty.
(xii) Unilateral decision of refvsal to have intercourse for considerable
C period without there being any physical incapacity or valid reason may amount
to mental cruelty.
(xiii) Unilateral decision of either husban~ or wife after marriage not
to have child from the marriage may amount to cruelty.
D (xiv) Where there has been a long period of continuous separation, it
may fairly be concluded that the matrimonial b0t1d 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
E parties. In such like situations, it may lead to mental cruelty.
[Para 101) [464-D-G; 465-A-G; 466-A-B)
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 151 of2004.
From the Final Judgment and Order dated 20.05.03 of the High Court at
F Calcutta in F.A. No. 114of1997.
Ranjan Mukherjee, Rana Mukherjee, Siddharth Gautam and Goodwill
Indeevar for the Appellant.
Jaya Ghosh Respondent-in-person.
G The Judgment of the Court was delivered by
DALVEER BHANDARI, J. 1. This is yet another unfortunate matrimonial
dispute which has shattered the twenty two year old matrimonial bond between
the parties. The appellant and the respondent are senior officials of the
Indian Administrative Service, for short 'IAS'. The appellant and the
H respondent were married on 13.12.1984 at Calcutta under the Special Marriage
SA MAR GHOSH v. JAY A GHOSH [DAL VEER BHANDARI, J.] 435
Act, 1954. The respondent was a divorcee and had a female child from her A
first marriage. The custody of the said child was given to her by the District
Court of Patna where the respondent had obtained a decree of divorce against
her first husband, Debashish Gupta, who was also an I.A.S. officer.
2. The appellant and the respondent knew each other since 1983. The
respondent, when she was serving as the Deputy Secretary in the Department B
of Finance, Government of West Bengal, used to meet the appellant between
November 1983 and June 1984. They cultivated close friendship which later
developed into courtship.
3. The respondent's first husband, Debashish Gupta filed a belated
appeal against the decree of divorce obtained by her from the District Court C
of Patna. Therefore, during the pendency of the appeal, she literally persuaded
the appellant to agree to the marriage immediately so that the appeal of
Debashish Gupta may become infructuous. The marriage between the parties
was solemnized on 13.12.1984. According to the appellant, soon after the
marriage, the respondent asked the appellant not to interfere with her career. D
She had also unilaterally declared her decision not to give birth to a child for
two years and the appellant should not be inquisitive about her child and he
should try to keep himself aloof from her as far as possible. According to
the appellant, there was imposition of rationing in emotions in the arena of
love, affection, future planning and normal human relations though he tried
hard to reconcile himself to the situation created by the respondent. E
4. The appellant asserted that the apathy of the respondent and her
inhuman conduct towards him became apparent in no time. In February 1985,
the appellant suffered prolonged illness. The respondent's brother was
working in Bareilly. Her parents along with her daughter went there for F
sojourn. The appellant could not go because of high temperature and
indifferent health. She left him and went to Bareilly even when there was no
one to look after him during his illness. On her return, the respondent
remained in Calcutta for about four days, but she did not care to meet the
appellant or enquire about his health. According to the appellant, he made
all efforts to make adjustments and to build a normal family life. He even used G
to go to Chinsurah every weekend where the respondent was posted but she
showed no interest and was overtly indifferent to him. The appellant usually
returned from Chinsurah totally dejected. According to the appellant, he felt
like a stranger in his own family. The respondent unilaterally declared that
she would not have any child and it was her firm decision. The appellant felt H
436 SUPREME COURT REPORTS [2007] 4 S.C.R.
A that his marriage with the respondent was merely an eye-wash because
immediately after the marriage, serious matrimonial problems developed between
them which kept growing.
5. The respondent was transferred to Calcutta in May 1985. Their
residential flat at the Minto Park Housing Estate stood allotted to the appellant.
B The respondent used to come to their flat intermittently. One Prabir Malik, a
domestic servant-cum-cook also used to live in the said flat. He used to cook
food and carry out household work for the appellant. According to the
appellant, the respondent used to say that her daughter was being neglected
and that she might even be'harmed. The indication was towards Prabir Malik.
C The appellant and the respondent virtually began to live separately from
September, 1985.
6. The appellant was transferred to Murshidabad in May 1986 but the
respondent continued to stay in Calcutta. The appellant stayed in
Murshidabad up to April 1988 and thereafter he went on deputation on an
D assignment of the Government of India but there he developed some health
problem and, therefore, he sought a transfer to Calcutta and came back there
in September 1988. On transfer of the appellant to Murshidabad, the flat in
which they were staying in Minto Park was allotted to the respondent as per
the standard convention. The appellant and the respondent again began
living together in Calcutta from September 1988. The appellant again tried to
E establish his home with the respondent after forgetting the entire past.
7. According to the appellant, the respondent never treated the house
to be her family home. The respondent and her mother taught respondent's
daughter that the appellant was not her father. The child, because of instigation
F of the respondent and her mother, gradually began to avoid the appellant. The
respondent in no uncertain terms used to tell the appellant that he was not
her father and that he should not talk to the child or love her. The appellant
obviously used to feel very offended.
l
I
8. The appellant also learnt that the respondent used to tell her mother
G that she was contemplating divorce to the appellant. The respondent's
daughter had also disclosed to the appellant that her mother had decided to
divorce him. According to the appellant, though they lived under. the same
roof for some time but the respondent virtually began to live separately from
April, 1989 at her parent's house. In April 1990 the appellant's servant Prabir
Malik had left for Burdwan on getting a job. The respondent used to come
H from her parents house to drop her daughter to her school La Martinere. She
SAMARGHOSHv. JAY A GHOSH [DALVEERBHAND<\Rr. T 1 437
.# used to come to the flat at Minto Park from the school to cook food only for A.
herself and leave for the office. The appellant began to take his meals outside
as he had no other alternative.
9. According to the appellant, the said Prabir Malik came to the flat on
24th August, 1990 and stayed there at the night. The next two days were
holidays. The respondent and her father also came there on 27th August, B
1990. On seeing Prabir, the respondent lost her mental equanimity. She took
strong exception to Prabir's presence in her flat and started shouting that the
appellant had no self-respect and as such was staying in her flat without any
right. According to the appellant, he was literally asked to get out of that flat.
The respondent's father was also there and it appeared that the act was pre- C
conceived. The appellant felt extremely insulted and humiliated and immediately
thereafter he left the flat and approached his friend to find a temporary shelter
and stayed with him till he got a government flat allotted in his name on
13.9.1990.
I 0. Admittedly, the appellant and the respondent have been living D
separately since 27th August, 1990. The appellant further stated that the
respondent refused cohabitation and also stopped sharing bed with him
without any justification. Her unilateral decision not to have any child also
caused mental cruelty on the appellant. The appellant was not permitted to
even show his normal affection to the daughter of the respondent although
he was a loving father to the child. The appellant also asserted that the E
respondent desired sadistic pleasure at the discomfiture and plight of the
appellant which eventually affected his health and mental peace. In these
circumstances, the appellant has prayed that it would not be possible to
continue the marriage with the respondent and he eventually filed a suit for
the grant of divorce. F
11. In the suit for divorce filed by the appellant in Alipur, Calcutta, the
respondent filed her written statement and denied the avennents. According
to the version of the respondent, Prabir Malik, the domestic servant did not
look after the welfare and well-being of the child. The respondent was
apprehensive that Prabir Malik may not develop any affection towards the G
respondent's daughter.
12. According to the version of the respondent, the appellant used to
! work under the instructions and guidance of his relations, who were not very
happy with the respondent and they were interfering with their family affairs.
The respondent stated that the appellant has filed the suit for divorce at tl1e H
438 SUPREME COURT REPORTS [2007) 4 S.C.R.
A behest of his brothers and sisters. The respondent has not denied this fact
that from 27th August, 1990 they have been continuously living separately
and thereafter there has been no interaction whatsoever between them.
13. The appellant, in support of his case, has examined himself as
witness no. I. He has also examined Debabrata Ghosh as witness no.2, N. K.
B Raghupatty as witness no.3, Prabir Malik as witness no.4 and Sikhabilas
Barman as witness no.5.
14. Debabrata Ghosh, witness no.2 is the younger brother of the
appellant. He has stated that he did not attend the marriage ceremony of the
C appellant an'd the respondent. He seldom visited his brother and sister-in-law
at their Minto Park flat and he did not take any financial assistance from his
brother to maintain his family. He mentioned that he noticed some rift between
the appellant and the respondent.
15. The appellant also examined N. K. Raghupatty, witness no.3, who
D was working as the General Secretary at that time. He stated that he knew
both the appellant and the respondent because both of them were his
colleagues. He was occupying a suite in the Circuit House at Calcutta. He
stated that two weeks before the Puja vacation in 1990, the appellant wanted
permission to stay with him because he had some altercation with the
respondent. According to this witness, the appellant was his close friend,
E therefore, he permitted him to stay with him. He further stated that the
appellant after a few days moved to the official flat allotted to him.
16. Prabir Malik was examined as witness no.4. He narra~ed that he had
known the appellant for the last 8/9 years. He was working as his servant-
cum-cook. He also stated that since April 1990 he was serving at the
F Burdwan Collectorate. He stated that after getting the job at Burdwan
Collectorate, he used to visit the Minto Park flat of the appellant on 2nd and
4th Saturdays. He stated that the relationship between the appellant and the
respondent was not cordial. He also stated that the appellant told him that
the respondent cooks only for herself but does not cook for the appellant and
G he used to eat out and sometimes cooked food for himself. He stated that
the brothers and sisters of the appellant did not visit Minto Park flat. He also
stated that the daughter of the respondent at times used to say that the
appellant was not her father and that she h~d no blood relationship with him.
He stated that on 4th Saturday, in the month of August, 1990, he came to the
flat of the appellant. On seeing him the respondent got furious and asked
H him for what purpose he had come to the flat? She further stated that the
(
-~
SAMAR GHOSH v. JAY A GHOSH [DAL VEER BHANDARI, J.] 439
appellant had no residence, therefore, she had allowed him to stay in her flat. A
She also said that it was her flat and she was paying rent for it. According
to the witness, she further stated that even the people living on streets and
street beggars have some prestige, but these people had no prestige at all.
At that time, the father of the respondent was also present. According to
Prabir Malik, immediately after the incident, the appellant left the flat.
B
17. The appellant also examined Sikhabilas Barman as witness no.5, who
was also an IAS Officer. He stated that he had known the appellant and his
wife and that they did not have cordial relations. He further stated that the
appellant told him that the respondent cooks for herself and leaves for office
and that she does not cook for the appellant and he had to take meals outside C
and sometimes cooked food for himself. He also stated that the respondent
had driven the appellant out of the said flat.
18. The respondent has examined herself. According to her statement,
she indicated that she and the appellant were staying together as normal
husband and wife. She denied that she ill-treated Prabir Malik. She further D
stated that the brothers and sisters of the appellant used to stay at Minto
Park flat whenever they used to visit Calcutta. She stated that they were
interfering in the pr_ivate affairs, which was the cause of annoyance of the
-·
respondent. She denied the incident which took place after 24.8. 1990.
However, she stated that the appellant had left the apartment on 27.8.1990.
In the cross-examination, she stated that the appellant appeared to be a fine E
gentleman. She admitted that the relations between the appellant and the
respondent were not so cordial. She denied that she ever mentioned to the
appellant that she did not want a child for two years and refused cohabitation.
) 19. The respondent also examined R. M. Jamir as witness no. 2. He F
stated that he had known both of them and in the years 1989-90 he visited
their residence and he found them quite happy. He stated that in 1993 the
respondent enquired about the heart problem of the appellant.
20_. The respondent also examined her father A. K. Dasgupta as witness
no. 3. He stated that his daughter neither insulted nor humiliated her husband G
in presence of Prabir Malik nor asked him to leave the apartment. He stated
that the appellant and the respondent were living separately since 1990 and
he never enquired in detail about this matter. He stated that the appellant had
a lot of affection for the respondent's daughter. He stated that he did not
know about the heart trouble of the appellant. He stated that he was also
unaware of appellant's bye-pass surgery. H
440 SUPREME COURT REPORTS (2007] 4 S.C.R.
A 21. The learned Additional District Judge, 4th Court, Alipur, after '
examining the plaint, written statements and evidence on record; framed the
follows issues:
"I. Is the suit maintainable?
2. Is the respondent guilty of cruelty as alleged?
B
3. Is the petitioner entitled to decree of divorce as claimed?
4. To what other relief or reliefs the petitioner is entitled?"
22. Issue no. 1 regarding maintainability of the suit was not pressed, so
C this issue was decided in favour of the appellant.
23. The trial court, after analyzing the entire pleadings and evidence·on
record, came to the conclusion that the following facts led to mental cruelty:
1. Respondent's refusal to cohabit with the appellant.
D 2. Respondent's unilateral decision not to have children after the
marriage.
3. Respondent's act of humiliating the appellant and virtually turning
him out of the Minto Park apartment. The appellant in fact had taken
shelter with his friend and he stayed there till official accommodation
E was allotted to him.
..
4. Respondent's going to the flat and cooking only for herself and the
appellant was forced to either eat out or cook his own meals.
5. The respondent did not take care of the appellant during his
p prolonged illness in 1985 and never enquired about his health even
when he underwent the bye-pass surgery in 1993.
6. The respondent also humiliated and had driven out the loyal servant-
cum-cook of the appellant, Prabir Malik.
G 24. The learned Additional District Judge came to the finding that the
appellant has succeeded in proving the case of mental cruelty against the
respondent, therefore, the decree was granted by the order dated 19 .12.1996
and the marriage between· the parties was dissolved.
25. The respondent, aggrieved by the :said judgment of the learned
H Additional District Judge, filed an ·appeal before the High Court. The Division
SAMARGHOSHv. JAYAGHOSH[DALVEERBHANDARl,J.] 441
~ Bench of the High Court vide judgment dated 20.5.2003 reversed the judgment A
of the Additional District Judge on the ground that the appellant has not been
able to prove the allegation of mental cruelty. The findings of the High Court,
in brief, are recapitulated as under:
I. The High Court arrived at the finding,Uiat it was certainly within
the right of the respondent-wife having such a high statUs in life B
to decide when she would like to have a child after marriage.
·-r
II. The High Court also held that the appellant has failed to disclose
in the pleadings when the respondent took the final decision of
not having a child.
m. The High Court held that the appellant also failed to give the c
approximate date when the respondent conveyed this decision to
the appellant.
N. The High Court held that the appellant started living with the
respondent, therefore, that amounted to condonation of the acts
of cruelty. D
V. The High Court disbelieved the appellant on the issue of
respondent's refusing to cohabit with him, because he failed to
give the date, month or the year when the respondent conveyed
this decision to him. ··
E
VI. The High Court held that the appellant's and the respondent's
sleeping in separate rooms did not lead to the conclusion that
they did not cohabit.
VIL The High Court also observed that it was quite proper for the
respondent with such high status and having one daughter by F
her previous husband, not to sleep in the same bed with the
appellant.
VIII. The High Court observed that refusal to cook in such a context
when the parties belonged to high strata of society and the wife
also has to go to office, cannot amount to mental cruelty.
G
IX. The High Court's findings that during illness of the husband,
wife's not meeting the husband to know about his health did not
amount to mental cruelty.
26. The High Court was unnecessarily obsessed by the fact that the
respondent was also an IAS Officer. Even ifthe appellant had married an IAS H
442 SUPREME COURT REPORTS [2007) 4 S.C.R.
A Officer that. does not mean that the normal human emotions and feelings
would be entirely different.
27. The finding ofttte Division Bench of the High Court that, considering
the position and status of the respondent, it was within the right of the
respondent to decide when she would have the child after the marriage. Such
B a vital decision cannot be taken unilaterally after marriage by the respondent
and if taken unilaterally, it may amount to mental cruelty to the appellant.
28. The finding of the High Court that the appellant started living with
the respondent amounted to condonation of the act of cruelty is unsustainable
in law.
c
29. The finding of the High Court that the respondent's refusal to cook
food for the appellant could not amount to mental cruelty as she had to go
to office, is not sustainable. The High Court did not appreciate the evidence
and findings of the learned Additional District Judge in the correct perspective.
D The question was not of cooking food, but wife's cooking food only for
herself and not for the husband would be a clear instance of causing annoyance
which may lead to mental cruelty.
30. The High Court has seriously erred in not appreciating the evidence
on record in a proper perspective. The respondent's refusal to cohabit has
E been proved beyond doubt. The' High Court's finding that the husband and
wife might be sleeping in separate rooms did not lead to a conclusion that
they did not cohabit anq tojustify this by saying that the respondent was
a
highly educated and holding high post was entirely unsustainable. Once the
respondent accepted to become th!'! wife of the appellant, she had to respect
the marital bond and discharge obligations of marital life.
F
31. The finding of the High Court that if the ailment of the husband was
not very serious and he was not even confined to bed for his illness and even
assuming the wife under such circumstances did not meet the husband, such
behaviour can hardly amount to cruelty, cannot be sustained. During illness,
G particularly in a nuclear family, the husband normally looks after and supports
his wife and similarly, he would expect the same from her. The respondent's
total indifference and neglect of the appellant during his illness would certainly
lead to great annoyance leading to mental cruelty.
32. It may be pertinent to mention that in 1993, the appellant had a heart
H problem leading to bye-pass surgery, even at that juncture, the respondent
,,..
- )J
SAMAR GHOSH v. JAY A GHOSH [DAL VEER BHANDARI, J.]
did not bother to enquire about his health even on telephone and when she
443
was confronted in the cross-examination, she falsely stated that she did not
A
know about it. ....
.....
33. Mr. A. K. Dasgupta, father of the respondent and father-in-law of
the appellant, was examined by the respondent. In the cross-examination, he
stated that his daughter and son-in-law were living separately and he never B
enquired about this. He further said that the appellant left the apartment, but
he never enquired from anybody about the cause of leaving the apartment.
He also stated that he did not know about the heart trouble and bye-pass
surgery of the appellant. In the impugned judgment, the High Court has
erroneously placed reliance on the evidence submitted by the respondent and
discarded the evidence of the appellant. The evidence of this witness is
c
wholly unbelievable and cannot stand the scrutiny of law.
34. The High Court did not take into consideration the evidence of
Prabir Malik primarily because of his low status in life. The High Court, in the
impugned judgment, erroneously observed that the appellant did not hesitate D
to take help from his servant in the matrimonial dispute though he was highly
educated and placed in high position. The credibility of the witness does not
depend upon his financial standing or social status only. A witness which is
natural and truthful should be accepted irrespective of his/her financial standing
or social status. In the impugned judgment, testimony of witness no.4 (Prabir
Malik) is extremely important being a natural witness to the incident. He E
graphically described the incident of 27 .8.1990. He also stated that in his
presence in the apartment at Minto Park, the respondent stated that the
appellant had no place of residence, therefore, she allowed him to stay in her
flat, but she did not like any other man of the appellant staying in the flat.
.) According to this witness, she said that the flat was hers and she was paying F
rent for it. According to this witness, the respondent further said that even
people living on streets and street beggars have some prestige, but these
people have no prestige at all. This witness also stated that immediately
thereafter the appellant had left the flat and admittedly since 27 .8.1990, both
the appellant and the respondent are living separately. This was a serious
incident and the trial court was justified in placing reliance on this evidence G
and to come to a definite conclusion that this instance coupled with many
other instances led to grave mental cruelty to the appellant. The trial Court
,. rightly decreed the suit of the appellant. The High Court was not justified in
reversing the judgment of the trial Court.
H
444 SUPREME COURT REPORTS [2007] 4 S.C.R.
....
A 35. The High Court also failed to take into consideration the most
important aspect of the case that admittedly the appellant and the respondent
have been _living separ,ately for more than sixteen and half years (since
27.8.1990). The entire substratum of the marriage has already disappeared.
During this long period, the parties did not spend a single minute together.
B The appellant had undergone bye-pass surgery ·even then the respondent did
not bother to enquire about his health even on telephone. Now the parties
have no feelings and emotions towards each other.
36. The respondent appeared in person. Even before this Court, we had
indicated to the parties that irrespective of whatever has happened, even now,
C if they want to reconcile their differences then the case be deferred and they
should talk to each other. The appellant was not even prepared to speak with
the respondent despite request from the Court. In this view of the matter, the
parties cannot be compelled to live together.
37. The learned Additional District Judge decreed the appellant's suit
D on the ground of mental cruelty. We deem it appropriate to analyze whether
the High Court was justified in reversing the judgment of the learned Additional
District Judge in view of the law declared by a catena of cases. We deem it
appropriate to deal with the decided cases.
38. Before we critically examine both the judgments in the light of
E settled law, it has become imperative to understand and comprehend the
concept of cruelty.
39. The Shorter Oxford Dictionary defines 'cruelty' as 'the quality of
being cruel; disposition of inflicting suffering; delight in or indifference to
another's pain; mercilessness; hard-heartedness'.
F
40. The term "mental cruelty" has been defined in the Black's Law
Dictionary [8th Edition, 2004] as under:
"Mental Cruelty - As a ground for divorce, one spouse's course of
conduct (not involving actual violence) that creates such anguish that
G it endangers the life, physical health, or mental health of the other
spouse."
41. The concept of cruelty has been summarized in Halsbury' s Laws of
England [Vol.13, 4th Edition Para 1269] as under:
H "The general rule in all cases of cruelty is that the entire matrimonial
....,..
SAMAR GHOSH v. JAY A GHOSH [DAL VEER BHANDARI, J.] 445
:-
> relationship must be considered, and that rule is of special value when A
the cruelty consists not of violent acts but of injurious reproaches,
complaints, accusations or taunts. In cases where no violence is
averred, it is undesirable to consider judicial pronouncements with a
view to creating certain categories of acts or conduct as having or
lacking the nature or quality which renders them capable or incapable
B
in all circumstances of amounting to cruelty; for it is the effect of the
conduct rather than its nature which is of paramount importance in
assessing a complaint of cruelty. Whether one spouse has been guilty
of cruelty to the other is essentially a question of fact and previously
decided cases have little, if any, value. The court should bear in mind
the physical and mental condition of the parties as well as their social c
status, and should consider the impact of the personality and conduct
of one spouse on the mind of the other, weighing all incidents and
--- quarrels between the spouses from that point of view; further, the
conduct alleged must be examined in the light of the complainant's
capacity for endurance and the extent to which that capacity is known D
to the other spouse. Malevolent intention is not essential to cruelty
but it is an important element where it exits."
--'
42. In 24 American Jurisprudence 2d, the term "mental cruelty" has been
defined as under:
E
"Mental Cruelty as a course of unprovoked conduct toward one's
spouse which causes embarrassment, humiliation, and anguish so as
to render the spouse's life miserable and unendurable. The plaintiff
must show a course of conduct on the part of the defendant which
1"'-
so endangers the physical or mental health of the plaintiff as to render
continued cohabitation unsafe or improper, although the plaintiff need F
__)
not establish actual instances of physical abuse."
43. In the instant case, our main endeavour would be to define broad
parameters of the concept of 'mental cruelty'. Thereafter, we would strive to
determine whether the instances of mental cruelty enumerated in this case by
G
the appellant would cumulatively be adequate to grant a decree of divorce on
the ground of mental cruelty according to the settled legal position as
crystallized by a number of cases of this Court and other Courts.
... 44. This Court has had an occasion to examine in detail the position of
mental cruelty in N.G. Dastane v. S. Dastane, reported in [1975] 2 SCC 326 H
446 SUPREME COURT REPORTS (2007) 4 S.C.R.
A at page 337, para 30 observed as under :-
"The enquiry therefore has to be whether the conduct charges as
cruelty is of such a character as to cause in the mind of the petitioner
a reasonable apprehension that it will be harmful or injurious for him
to live with the respondent... .."
B
45. In the case of Sirajmohmedkhan Janmohamadkhan v. Haizunnisa
Yasinkhan & Anr., reported in [ 198 l] 4 SCC 250, this Court stated that the
concept of legal cruelty changes according to the changes and advancement
of social concept and standards of living. With the advancement of our social
C conceptions, this feature has obtained legislative recognition, that- a second
marriage is a sufficient ground for separate residence and maintenance.
Moreover, to establish legal cruelty, it is not necessary that physical violence
should be used. Continuous ill-treatment, cessation of marital intercourse,
studied neglect, indifference on the part of the husband, and an assertion on
the part of the husband that the wife is unchaste are all factors which lead
D to mental or legal cruelty.
46. In the case of Shobha Rani v. Madhukar Reddi, reported in [ 1988]
l SCC 105, !his Court had an occasion to examine the concept of cruelty. The
word 'cruelty' has not been defined in the Hindu Marriage Act. It has been
E used in Section 13(l)(i)(a) of the Act in the context of human conduct or
behaviour in relation to or in respect of matrimonial duties or obligations. It
is a course of conduct of one which is adversely affecting the other. The
cruelty may be mental or physical, intentional or unintentional. If it is physical,
it is a question of fact and degree. If it is mental, the enquiry must begin as
to the nature of the cruel treatment and then as to the impact of such
F treatment on the mind of the spouse. Whether it caused reasonable
apprehension that it would be harmful or injurious to live with the other,
ultimately, is a matter of inference to be drawn by taking into account the
nature of the conduct and its effect on the complaining spouse. There may,
however, be cases where the conduct complained of itself is bad enough and
G per se unlawful or illegal. Then the impact or the injurious effect on the other
spouse need not be enquired into or considered. In such cases, the cruelty
will be established if the conduct itself is proved or admitted. The absence
of intention should not make any difference in the case, if by ordinary sense
in human affairs, the act complained of could otherwise be regarded as
H cruelty. Intention is not a necessary element in cruelty. The relief to the party
SAMAR GHOSH v. JAY A GHOSH [DAL VEER BHANDARI, J.] 447
cannot be denied on the ground that there has been no deliberate or wilful A
ill-treatment.
47. ln Rajani v. Subramanian, AIR (1990) Ker. 1 the Court aptly observed
that the concept of cruelty depends upon the type of life the parties are
accustomed to or their economic and social conditions, their culture and
human values to which they attach importance, judged by standard of modem B
civilization in the background of the cultural heritage and traditions of out
society.
48. Again, this Court had an occasion to examine in great detail the
concept of mental cruelty. In the case of V. Bhagat v. D. Bhagat (Mrs.),
reported in [1994] l SCC 337, the Court observed, in para 16 at page 347, as C
under:
"16. Mental cruelty in Section 13(l){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 D
other. In other words, mental cruelty must be of such a nature that the
parties cannot reasonably be expected to live together. The situation
. ..J
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
in.:11ry to the health of the petitioner. While arriving at such conclusion, E
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 F
;. not amount to cruelty in another case. It is a matter to be detennined
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."
49. This Court aptly observed in Chetan Dass v. Kam/a Devi, reported G
in [2001] 4 sec 250, para 14 at pp.258-259, as under:
"Matrimonial matters are matters of delicate human and emotional
.. relationship. It demands mutual trust, regard, respect, love and affection
with sufficient play for reasonable adjustments with the spouse. The
relationship has to conform to the social norms as well. The matrimonial H
....~
A
448 SUPREME COURT REPORTS
'
[2007] 4 S.C.R.
conduct has now come to be governed by statute framed, keeping in
view such nonns and changed social order. It is sought to be controlled "'
-
in the interest of the individuals as well as in broader perspective, for
regulating matrimonial nonns for making of a well-knit, healthy and ..,_
not a disturbed and porous society. The institution of marriage
occupies an important place and role to pity in the society, in general.
B Therefore, it would not be appropriate to apply any submission of
"irretrievably broken marriage" as a straitjacket formula for grant of
relief of divorce. This aspect has to be considered in the background
~-
of the other facts and circumstances of the case."
50. In Savitri Pandey v. Prem Chandra Pandey, reported in [2002] 2
c SCC 73, the Court stated as under:
..
"Mental cruelty is the conduct of other spouse which causes
mental suffering or fear to the matrimonial life of the other. "Cruelty",
therefore, postulates a treatment of tlie petitioner with such cruelty as
D to cause a reasonable apprehension in his or her mind that it would
be harmful or injurious for the petitioner to live with the other party.
Cruelty, however, has to be distinguished from the ordinary wear and I...
tear of family life. It cannot be decided on the basis of the sensitivity
of the petitioner and has to be adjudged on the basis of the course
of conduct which would, in general, be dangerous for a spouse to live
E with the other."
51. This Court in the case of Gananath Pattnaik v. State of Orissa,
reported in [2002] 2 sec 619 observed as under:
"The concept of cruelty and its effect varies from individual to
F individual, also depending upon the social and economic status to ...
which such person belongs. "Cruelty" for the purposes of constituting
the offence under the aforesaid section need not be physical. Even
mental torture or abnormal behaviour may amount to cruelty and
harassment in a given case."
G 52. The mental cruelty has also been examined by this Court in Parveen
Mehta v. lnderjit Mehta, reported in [2002] 5 SCC 706 at pp.716-17 [para 21]
which reads as under:
,
"Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a
behaviour by one spouse towards the other, which causes reasonable
H apprehension in the mind of the latter that it is not safe for him or her
I
j-
.. ~
SAMAR GHOSH v. JAY A GHOSH [DAL VEER BHANDARI, J.] 449
to continue the matrimonial relationship with the other. Mental cruelty A
is a state of mind and feeling with one of the spouses due to the
behaviour or behavioural pattern by the other. Unlike the case of
physical cruelty, mental cruelty is difficult to establish by direct
evidence. It is necessarily a matter of inference to be drawn from the
facts and circumstances of the case. A feeling of anguish,
disappointment and frustration in one spouse caused by the conduct B
of the other can only be appreciated on assessing the attending facts
and circumstances in which the two partners of matrimonial life have
been living. The inference has to be drawn from the attending facts
and circumstances take11 cumulatively. In case of mental cruelty it will
not be a correct approach to take an instance of misbehaviour in c
isolation and then pose the question whether such behaviour is
sufficient by itself to cause mental cruelty. The approach should be
"f°!"' to take the cumulative effect of the facts and circumstances emerging
from the evidence on record and then draw a fair inference whether
the petitioner in the divorce petition has been subjected to mental
cruelty due to conduct of the other." D
53. In this case the Court also stated that so many years have elapsed
since the spouses parted company. In these circumstances it can be reasonably
inferred that the marriage between the parties has broken down irretrievably.
t_
54. In A. Jayachandra v. Aneel Kaur, reported in [2005] 2 SCC 22, the E
Court obse1 red as under:
"The expression "cruelty" has not been defined in the Act. Cruelty
can be physical or mental. Cruelty which is a ground for dissolution
of marriage may be defined as wilful and unjustifiable conduct of such
_) character as to cause danger to life, limb or health, bodily or mental, F
or as to give rise to a reasonable apprehension of such a danger. The
question of mental cruelty has to be considered in the light of the
norms of marital ties of the particular society to which the parties
belong, their social values, status, environment in which they live.
Cruelty, as noted above, includes mental cruelty, which falls within the G
purview of a matrimonial wrong. Cruelty need not be physical. If from
the conduct of the spouse, same is established and/or an inference
can be legitimately drawn that the treatment of the spouse is such that
-.J it causes an apprehension in the mind of the other spouse, '1bout his
or her mental welfare then this conduct amounts to cruelty. In a
H
450 SUPREME COURT REPORTS (2007] 4 S.C.R.
....
A delicate human relationship like matrimony, one has to see the
probabilities of the case. The concept proof beyond the shadow of
doubt, is to be applied to criminal trials and not to civil matters and
certainly not to matters of such delicate personal relationship as those
of husband and wife. Therefore, one has to see. what are the
probabilities in a case and legal cruelty has to be found out, not
B merely as a matter of fact, but as the effect on the mind of the
complainant spouse because of the acts or omissions of the other.
Cruelty may be physical or corporeal or may be mental. In physical
cruelty, there can be tangible and direct evidence, but in the case of
mental cruelty there may not at the same time be direct evidence. In
c cases where there is no direct evidence, Courts are required to probe
into the mental process and mental effect of incidents that are brought
out in evidence. It is in this view that .:me has to consider the
evidence in matrimonial disputes.
To constitute cruelty, the conduct complained of should be "grave
D and weighty" so as to come to the conclusion that the petitioner
spouse cannot be reasonably expected to live with the other spouse.
It must be something more serious than "ordinary wear and tear of
married life". The conduct taking into consideration the circumstances
and background has to be examined to reach the conclusion whether
the conduct complained of amounts to cruelty in the matrimonial law.
E Conduct has to be considered, as noted above, in the background of
several factors such as social status of parties, their education, physical
and mental conditions, customs and traditions. It is difficult to lay
down a precise definition or to give exhaustive description of the
circumstances, which would constitute cruelty. It must be of the type
F as to satisfy the conscience of the Court that the relationship between
the parties had deteriorated to such extent due to the conduct of the
other spouse that it would be impossible for them to live together
without mental agony, torture or distress, to entitle the complaining
spouse to secure divorce. Physical violence is not absolutely essential
to constitute cruelty and a consistent course of conduct inflicting
G immeasurable mental agony ar;d torture may well constitute cruelty
within the meaning of Section l 0 of the Act. Mental cruelty may
consist of verbal abuses and insults by using filthy and abusive
language leading to constant disturbance of mental peace of the other
party.
H
SAMAR GHOSH v. JAY A GHOSH [DAL VEER BHANDARI, J.] 451
) The Court dealing with the petition for divorce on the ground of A
cruelty has to bear in mind that the problems before it are those of
human beings and the psychological changes in a spouse 1s conduct
have to be borne in mind before disposing of the petition for divorce.
However, insignificant or trifling, such conduct may cause pain in the
mind of another. But before the conduct can be called cruelty, it must B
touch a certain pitch of severity. It is for the Court to weigh the
gravity. It has to be seen whether the conduct was such that no
reasonable person would tolerate it. It has to be considered whether
the complainant should be called upon to endure as a part of nonna!
human life. Every matrimonial conduct, which may cause annoyance
to the other, may not amount to cruelty. Mere trivial irritations, quarrels C
between spouses, which happen in day-to-day married life, may also
not amount to cruelty. Cruelty in matrimonial life may be ofunfounded
variety, which can be subtle or brutal. It may be words, gestures 0r
by mere silence, violent or non-violent."
55. This Court in Vinita Saxena v. Pankaj Pandit, reported in (2006] 3 D
sec 778 aptly observed as under:
"As to what constitutes the required mental cruelty for the
purposes of the said provision, will not depend upon the numerical
count of such incidents or only on the continuous course of such
conduct but really go by the intensity, gravity and stigmatic impact E
of it when meted out even once and the deleterious effect of it on the
mental attitude, necessary for maintaining a conducive matrimonial
home.
If the taunts, complaints and reproaches are of ordinary nature
.) only, the court perhaps need consider the further question as to F
whether their continuance or persistence over a period of time render,
what normally would, otherwise, not be so serious an act to be so
injurious and painful as to make the spouse charged with them
genuinely and reasonably conclude that th~ maintenance of matrimonial
home is not possible any longer." G
...
56. In Shobha Rani's case (supra) at pp.108-09, para 5, the Court observed
as under:
7'
"5. Each case may be different. We deal with the conduct of
human beings who are no generally similar. Among the human beings H
452 SUPREME COURT REPORTS (2007) 4 S.C.R.
A there is no limit to the kind of conduct which may constitute cruelty.
New type of cruelty may crop up in any case depending upon the
human behaviour, capacity or incapability to tolerate the conduct
complained of. Such is th(! wonderful (sic) realm of cruelty."
57. In this case, the Court cautioned the lawyers and judges not to
B import their own notions of life in dealing with matrimonial problems. The
judges should not evaluate the case from their own standards. There may be
a generation gap between the judges and the parties. It is always prudent if
the judges keep aside their customs and manners in deciding matrimonial
cases in particular.
c 58. In a recent decision of this Court in the case of Rishikesh Sharma
v. Saroj Sharma, reported in (2006) 12 Scale 282, this Court observed that the
respondent wife was living separately from the year 1981 and the marriage has
broken down irretrievably with no possibility of the parties living together
again. The Court further observed that it will not be possible for the parties
D to live together and therefore there was no purpose in compelling both the
parties to live together. Therefore the best course was to dissolve the marriage
by passing a decree of divorce so that the parties who were litigating since
1981and had lost valuable part of life could live peacefully in remaining part
of their life. The Court further observed that her desire to live with her
husband at that stage and at that distance of time was not genuine.
E
59. This Court observed that under such circumstances, the High Court
was not justified in refusing to exercise its jurisdiction in favour of the
appellant who sought divorce from the Court.
60. "Mental cruelty" is a problem of human behaviour. This human
F problem unfortunately exists all over the world. Existence of similar problem
and its adjudicati<m by different courts of other countries would be of great
relevance, therefore, we deem it appropriate to ex&mine similar cases decided
by the Courts of other jurisdictions. We must try to derive benefit of wisdom
and light received from any quarter.
G ENGLISH CASES:
61. William Latey, in his celebrated book 'The Law and Practice in
Divorce and Matrimonial Causes' (15th Edition) has stated that there is no
essential difference between the definitions of the ecclesiastical courts and
H the post-1857 matrimonial courts of legal cruelty in the marital sense. The
)
' SAMAR GHOSH v. JAY A GHOSH [DAL VEER BHANDARI, J.]
authorities were fully considered by the Court of Appeal and the House of
453
A
Lords in Russell v. Russell, (1897) AC 395 and the principle prevailing in the
Divorce Court (until the Divorce Reform Act, 1969 came in force), was as
follows:
Conduct of such a character as to have caused danger to life,
limb, or health, bodily or mental, or as to give rise to a reasonable B
apprehension of such danger. {see: Russell v. Russell, (1895) P. 315
(CA)}.
62. In England, the Divorce Reform Act, 1969 came into operation on
January 1, 1971. Thereafter the distinction between the sexes is abolished, and
there is only one ground of divorce, namely that the marriage has broken C
down irretrievably. The Divorce Reform Act, 1969 was repealed by the
Matrimonial Causes Act, 1973, which came into force on January 1, 1974. The
sole ground on which a petition for divorce may be presented to the court
by either party to a marriage is that the marriage has broken down irretrievably.
63. Lord Stowell's proposition in Evans v. Evans, (I 790) 1 Hagg Con 35
D
was approved by the House of Lords and may be put thus: before the court
can find a husband guilty of legal cruelty towards his wife, it is necessary
to show that he has either inflicted bodily injury upon her, or hat; so conducted
himself towards her as to render future cohabitation more or less dangerous
to life, or limb, or mental or bodily health. He was careful to avoid any E
defmition of cruelty, but he did add: 'The causes must be grave and weighty,
and such as to show an absolute impossibility that the duties of married life
can be discharged'. But the majority of their Lordships in Russell v. Russell
(1897) (supra) declined to go beyond the definition set out above. In this
case, Lord Herschell observed as under:
) F
"It was conceded by the learned counsel for the appellant, and
is, indeed, beyond controversy, that it is not every act of cruelty in
the ordinary and popular sense of that word which amounted to
saevitia, entitling the party aggrieved to a divorce; that there might
be many wilful and unjustifiable acts inflicting pain and misery in G
respect of which that relief could not be obtained."
64. Lord Merriman, in Waters v. Waters, [1956] 1 All. E.R. 432 observed
that intention to injure was not necessary ingredient of cruelty.
65. Sherman, J. in Hadden v. Hadden, The Times, December 5, 1919, H
-{
454 SUPREME COURT REPORTS [2007) 4 S.C.R.
A (also reported in Modem Law Review Vol.12, 1949 at p.332) very aptly
mentioned tha_t he had no intention of being cruel but his intentional acts
amounted to cruelty. In this case, it was observed as under:
"
'It is impossible to give a comprehensive definition of cruelty, but
when reprehensible conduct or departure from the normal standards
B of conjugal kindness causes injury to health or an apprehension of
it, it is cruelty if a reasonable person, after taking due account of the
temperament and all the other particular circumstances would consider
that the conduct complained of is such that this spouse should not
be called upon to endure it.'
c 66. Lord Simon in Watt (or Thomas) v. Thomas, [1947] I All E.R. 582 at
p. 585 observed as under:
" .... the leading judicial authorities in both countries who have
dealt with this subject are careful not to speak in too precise and
absolute terms, for the circumstances which might conceivably arise
D in an unhappy married life are infinitely various.
Lord Stowell in Evans v, Evans, (1790) I Hagg Con 35 avoids
giving a "direct definition". While insisting that "mere austerity of
temper, petulance of manners, rudeness of language, want of civil
attention and accommodation, even occasional sallies of passion, if
E they ·do not threaten bodily harm, do not amount to legal cruelty."
67. In Simpson v. Simpson, [ 1951] I All E.R. 955, the Court observed
that:
"When the legal conception of cruelty is described as being
F conduct of such a character as to cause danger to life, limb or health, i..
bodily or mental, or to give rise to a reasonable apprehension of such
danger, it is vital to bear in mind that it comprises two distinct elements:
first, the ill-treatment complained of, and, secondly, the resultant danger
or the apprehension thereof. Thus, it is inaccurate, and liable to lead
G to confusion, if the word "cruelty" is used as descriptive only of the
conduct complained of, apart from its effect on the victim ...
68. Lord Reid, concurring, reserved opinion as to cases of alleged
cruelty in which the defender had shown deliberate intention, though he did ";
,...I
not doubt that there were many cases where cruelty could be established
H without its being necessary to be satisfied by evidence that the defender had
SAMAR GHOSH v. JAYA GHOSH [DAL VEER BHANDARI, J.] 455
such an intention. Lord Tucker, also concurring, said: A
'Every act must be judged in relation to its attendant circumstances,
and the physical or mental condition or susceptibiliti~s of the innocent
spouse, the intention of the offending spouse and the offender's
knowledge of the actual or probable effect of his conduct on the
other's health are all matters which may be decisive in determining on B
which side of the line a particular act or course of conduct lies.'
69. In Prichardv. Pritchard, (1864) 3 S&T 523, the Court observed that
repeated acts of unprovoked violence by the wife were regarded as cruelty,
although they might not inflict serious bodily injury on the husband.
c
70. Wilde, J.O. in Power v. Power, (1865) 4 SW & Tr. 173 aptly observed
that cruelty lies in the cumulative ill conduct which the history of marriage
discloses.
71. In Bravery v. Bravery, (1954) 1 WLR 1169, by majority, the Court
held as under: D
'If a husband submitted himself to an operation for sterilization without
a medical reason and without his wife's knowledge or consent it could
constitute cruelty to his wife. But where such an operation was
performed to the wife's knowledge, though without her consent and
she continued to live with him for thirteen years, it was held that the E
operation did not amount to cruelty.'
72. Lord Tucker in Jamieson v. Jamieson, [1952] I All E.R. 875 aptly
observed that "Judges have always carefully refrained from attempting a
comprehensive definition of cruelty for the purposes of matrimonial suits, and
F
experience· has shown the wisdom of this course".
73. In Le Brocq v. Le Brockq, [1964] 3 All E.R. 464, at p. 465, the court
held as under:
"I think ...... that 'cruel' is not used in any esoteric or 'divorce court' G
sense of that word, but that the conduct complained of must be
something which an ordinary man or a jury....... would describe as
'cruel' if the story were fully told."
7
74. In Ward v. Ward, [1958] 2 All E.R. 217, a refusal to bear children
followed by a refusal of intercourse and frigidity, so that the husband's health H
--{
456 SUPREME COURT REPORTS [2007] 4 S.C.R.
A suffered, was held to be cruelty; so also the practice by the husband of coitus
interruptus against the wish of his wife though she desired to have a child.
(Also see: White (otherwise Berry) v. White, [ 1948] 2 All E.R. 151; Walsham
v. Walsham, [1949) I All E.R. 774; Cackett (otherwise Trice) v. Cackett, [1950)
I All E.R. 677; Knott v. Knott, [1955] 2 All E.R. 305.
B 75. Cases involving the refusal of sexual intercourse may vary
considerably and in consequence may or may not amount to cruelty, dependent
on the facts and circumstances of the parties. In Sheldon v. Sheldon, [1966)
2 All E.R. 257, Lord Denning, M.R. stated at p. 259:
"The persistent refusal of sexual intercourse may amount to cruelty,
c at any rate when it extends over a long period and causes grave injury
to the health of the other. One must of course, make allowances for
any excuses that may account for it, such as ill-health, or time of life,
or age, or even psychological infirmity. These excuses may so mitigate
the conduct that the other party ought to put up with it. It after
D making all allowances however, the conduct is such that the other
party should not be called upon to endure it, then it is cruelty."
76. Later, Lord Denning, at p. 261, said that the refusal would usually
need to be corroborated by the evidence of a medical man who had seen both
parties and could speak to the grave injury to health consequent thereon. In
E the same case, Salmon, L. J. stated at p. 263:
"For my part, I am quite satisfied that if the husband's failure to have
sexual intercourse had been due to impotence, whether from some
psychological or physical cause, this petition would be hopeless. No
doubt the lack of sexual intercourse might in such a case equally have
F resulted in a breakdown in his wife's health. I would however regard ... _
the husband's impotence as a great misfortune which has befallen
both of them."
77. There can be cruelty without any physical violence, and there is
abilndant authority for recognizing mental or moral cruelty, and not infrequently
G the worst cases supply evidence of both. It is for the judges to review the
married life of the parties in all its aspects. The several acts of alleged cruelty,
physical or mental, should not be taken separately. Several acts considered
separately in isol.ation may be trivial and not hurtful but when considered
cumulatively they might well come within the description of cruelty. (see:
H Jamieson v. Jamieson, [1952] I All E.R. 875; Waters v. Waters, [1956) I All E.R.
SAMAR GHOSH v. JAY A GHOSH [DAL VEER BHANDARI, J.] 457
432. "The general rule in all questions of cruelty is that the whole matrimonial A
relations must be considered." (per Lord Normand in King v. King, [1952) 2
All E.R. 584).
78. In Warr v. Warr, [1975) I All ER 85), the Court observed that "Section
1(2)(c) of the Matrimonial Causes Act, 1973 provides that irretrievable
breakdown may be proved by satisfying the court that the respondent has B
deserted the petitioner for a continuous period of at least two years immediately
preceding the presentation of the petition."
AMERICAN CASES:
79. InJem v. Jem, (1937) 34 Haw. 312, the Supreme Court of Hawaii aptly C
mentioned that cruel treatment not amounting to physical cruelty is mental
cruelty.
80. While dealing with the matter of extreme cruelty, the Supreme Court
of South Dakota in the case of Hybertson v. Hybertson, (1998) 582 N.W. 2d D
402 held as under:
"Any definition of extreme cruelty in a marital setting must necessarily
differ according to the personalities of the parties involved. What
might be acceptable and even common place in the relationship between
rather stolid individuals could well be extraordinary and highly E
• unacceptable in the lives of more sensitive or high-strung husbands
and wives. Family traditions, ethnic and religiOus backgrounds, local
customs and standards and other cultural differences all come into
- play when trying to determine what should fall within the parameters
of a workable marital relationship and what will not."
81. In Rosenbaum v. Rosenbaum, (1976) 38 Ill.App.3d. l the Appellate
F
Court of Illinois held as under:
"To prove a case entitling a spouse to divorce on the ground of
mental cruelty, the evidence must show that the conduct of the
offending spouse is unprovoked and constitutes a course of abusive G
and humiliating treatment that actually affects the physical or mental
health of the other spouse, making the life of the complaining spouse
. miserable, or endangering his or her life, person or health."
-.
82. ln the case of Fleck v. Fleck, 79 N.D. 561, the Supreme Court of
North Dakota dealt with the concept of cruelty in the following words: H
458 SUPREME COURT REPORTS (2007] 4 S.C.R. --
A "The decisions defining mental cruelty employ such a variety of
phraseology that it would be next to impossible to reproduce any
generally accepted form. Very often, they do not purport to define it
as distinct from physical cruelty, but combine both elements in a
general ·definition of 'cruelty,' physical and mental. The generally
recognized elements are:
B
(I) A course of abusive and humiliating treatment;
(2) Calculated or obviously of a nature to torture, discommode, or
render miserable the life of the opposite spouse; and
C (3) Actually affecting the physical or mental health of such spouse."
83. In Donaldson v. Donaldson, (1917) 31 Idaho 180, -170 P. 94, the
Supreme Court of Idaho also came to the conclusion that no exact and
exclusive definition of legal cruelty is possible. The Court referred to 9 RCL
p. 335 and quoted as under:
D "It is well recognized that no exact inclusive and exclusive defmition
of legal cruelty can be given, and the courts have not attempted to
do so, but generally content themselves with determining whether the
facts in the particular case in question constitute cruelty or not.
-- Especially, according to the modem view, is the question whether the
E defending spouse has been guilty of legal cruelty a pure question of
fact to be resolved upon all the circumstances of the case."
CANADIAN CASES:
...
84. In a number of cases, the Canadian Courts had occasions to examine
F the concept of 'cruelty'. In Chouinard v. Chouin~rd, I 0 D.L.R. (3d) 263], the
Supreme Court of New Brunswick held as under:
"Cruelty which constitutes a ground for divorce under the Divorce
Act, whether it be mental or physical in nature, is a question of fact.
Determination of such a fact must depend on the evidence in the
G individual case being considered by the court. No uniform standard
can be laid down for guidance; behaviour which may constitute
cruelty in one case may not be cruelty in another. There must be to
a large extent a subjective as well as an objective aspect involved;
one person may be able to tolerate conduct on the part of his or her
spouse which would be intolerable to another. Separation is usually
H
SAMAR GHOSH v. JAY A GHOSH [DAL VEER BHANDARI, J.] 459
,> preceded by marital dispute and unpleasantness. The court should A
not grant a decree of divorce on -evidence of merely distasteful or
irritating conduct on the part of the offending spouse. The word
'cruelty' denotes excessive suffering, severity of pain, mercilessness;
not mere displeasure, irritation, anger or dissatisfaction; furthermore,
the Act requires that" cruelty must be of such a kind as to render
intolerable continued cohabitation."
B
85. In Knoll v. Knoll, 10 D.L.R. (3d) 199, the Ontario Court of Appeal
..>, examined this matter. The relevant portion reads as under:
,,
"Over the years the courts have steadfastly refrained from
attempting to formulate a general definition of cruelty. As used in c
ordinary parlance "cruelty" signifies a disposition to inflict suffering;
to delight in or exhibit indifference to the pain or misery of others;
mercilessness or hard-heartedness as exhibited in action. If in the
marriage relationship one spouse by his conduct causes wanton,
malicious or unnecessary infliction of pain or suffering upon the D
body, the feelings or emotions of the other, his conduct may well
constitute cruelty which will entitle a petitioner to dissolution of the
marriage if, in the court's opinion, it amounts to physical or mental
cruelty "of such a kind as to render intolerable the continued
cohabitation of the spouses."
E
86. In Luther v. Luther, (1978) 5 R.F.L (2d) 285, 26 N.S.R. (2d) 232, 40
A.P.R. 232], the Supreme Court of Nova Scotia held as under:
. .-'
"7. The test of cruelty is in one sense a subjective one, namely, as
has been said many times, is this conduct by this man to this woman,
or vice versa, cruelty? But that does not mean that what one spouse F
may consider cruel is necessarily so. Cruelty must involve serious and
weighty matters, which, reasonably considered, may cause physical or
mental suffering. It must furthermore - an important additional
requirement - be of such a nature and kind as to render such
conduct intolerable to a reasonable person."
G
The Supreme Court further held as under:
"9. To constitute mental cruelty, conduct must be much more than
jealousy, selfishness or possessiveness which causes unhappiness,
dissatisfaction or emotional upset. Even less can mere incompatibility
or differences in temperament, personality or opinion be elevated to H
·~
460 SUPREME COURT REPORTS (2007) 4 S.C.R.
A grounds for divorce."
87. In another case Zalesky v. Zalesky, I D.L.R. (3d) 471, the Manitoba '
Court of Queen's Bench observed that where cohabitation of the spouses
become intolerable that would be another ground of divorce. The Court held
as under:
B
"There is now no need to consider whether conduct complained
of caused 'danger to life, limb, or health, bodily or mentally, or a
reasonable apprehension ofit' or any of the variations of that definition
......
to be found in the Russell case.
c In choosing the words 'physical or mental cruelty of such a kind ""
as to render intolerable the continued cohabitation of the spouses'
Parliament gave its own fresh complete statutory definition of the
conduct which is a ground for divorce under s. 3(d) of the Act."
AUSTRALIAN CASES:
D
88. In Dunkley v. Dunkley, (1938) SASR 325, the Court examined the
term "legal cruelty" in the following words:
"'Legal cruelty', means conduct of such a character as to have c~used
injury or danger to life, limb or health (bodily or mental), or as to give
E rise to a reasonable apprehension of danger. Personal violence, actual
or threatened, may alone be sufficient; on the other hand, mere vulgar
abuse or false accusations of adultery are ordinarily not enough; but,
if the evidence shows that conduct of this nature had been persisted
in until the health of the party subjected to it breaks down, or is likely
to break down, under the strain, a finding of cruelty is justified." :-
F
~
89. In La Rovere v. La Rovere, [4 FLR I], the Supreme Court of Tasmania
held as under:
"When the legal conception of cruelty is described as being conduct
of such a character as to cause danger to life, limb or health, bodily
,G or mental, or to give rise to a reasonable apprehension of such danger,
it is vital to bear in mind that it comprises two distinct elements: first,
the ill-treatrrient complained of, and, secondly, the resultant danger or
the apprehension thereof. Thus it is inaccurate and liable to lead to
confusion, if the word 'cruelty' is used as descriptive only of the
conduct complained of, apart from its effect on the victim."
H
,>--
SAMAR GHOSH v. JA YA GHOSH [DAL VEER BHANDARI, J.] 461
r:-
I' 90. We have examined and referred to the cases from the various A
countries. We find strong basic similarity in adjudication of cases relating to
mental cruelty in matrimonial matters. Now, we deem it appropriate to deal with
the 71 st report of the Law Commission of India on "Irretrievable Breakdown
of Marriage".
91. The 71 st Report of the Law Commission of India briefly dealt with B
the concept of irretrievable breakdown of marriage. This Report was submitted
to the Government on 7th April, 1978. In this Report, it is mentioned that
..... during last 20 years or so, and now it would be around 50 years, a very
.. important question has engaged the attention of lawyers, social scientists and
men of affairs, should the grant of divorce be based on the fault of the party,
or should it be based on the breakdown of the marriage? The former is known
c
as the matrimonial offence theory or fault theory. The latter has come to be
known as the breakdown theory. It would be relevant to recapitulate
recommendation of the said Report.
92. In the Report, it is mentioned that the germ of the breakdown theory, D
so far as Commonwealth countries are concerned, may be found in the
legislative and judicial developments during a much earlier period. The (New
Zealand) Divorce and Matrimonial Causes Amendment Act, 1920, included for
the first time the provision that a separation agreement for three years or more
was a ground for making a petition to the court for divorce and the court was
given a discretion (without guidelines) whether to grant the divorce or not. E
The discretion conferred by this statute was exercised in a case Lodder v.
Lodder 1921 New Zealand Law Repo~s 786. Salmond J., in a passage which
has now become classic, enunciated the breakdown principle in these words:
"The Legislature must, I think, be taken to have intended that separation
for three years is to be accepted by this court, as prima facie a good F
ground for divorce. When the matrimonial relation has for that period
ceased to exist de facto, it should, unless there are special reasons to
the contrary, cease to exist de jure also. In general, it is not in the
interests of the parties or in the interest of the public that· a man and
woman should remain bound together as husband and wife in law G
when for a lengthy period they have ceased to be such in fact. In the
case of such a separation the essential purposes of marriage have
been frustrated, and its further continuance is in general not merely
-~
useless but mischievous."
-
llllil 93. In the said Report, it is mentioned that restricting the ground of H
462 SUPREME COURT REPORTS [2007] 4 S.C.R.
-....
A divorce to a particular offence or matrimonial disability, causes injustice in "'
those cases where the situation is such that although none of the parties is
at fault, or the fault is of such a nature that the parties to the marriage do
not want to divulge it, yet such a situation has arisen in which the marriage
cannot survive. The marriage has all the external appearances of marriage, but
none in reality. As is often put pithily, the marriage is merely a shell out of
B which the substance is gone. In such circumstances, it is stated, there is
hardly any utility in maintaining the marriage as a fagade, when the emotional
and other bonds which are of the essence of marriage have disappeared. .....
94. It is also mentioned in 'the Report that in case the marriage has
c ceased to exist in substance and in reality, there is no reason for denying
divorce, then the parties alone can decide whether their mutual relationship
provides the fulfilment which they seek. Divorce should be seen as a solution
and an escape route out of a difficult situation. Such divorce is unconcerned
_._
with the wrongs of the past, but is concerned with bringing the parties. and
the children to terms with the new situation and developments by working
D out the most satisfactory basis upon which they may regulate their relationship
in the changed circumstances.
95. 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
E court, no doubt, should seriously make an endeavour to reconcile the parties;
yet, if it is found that the breakdown is irreparable, then divorce should not
be withheld. The consequences of preservation in law of the unworkable
marriage which has long ceased to be effective are bound to be a source of
greater misery for the parties.
F 96. Law of divorce based mainly on fault is inadequate to deal with a
'!--
broken marriage. Under the fault theory, guilt has to be proved; divorce courts
are presented concrete instances of human behaviour as bring the institution
of marriage into disrepute.
G 97. This Court in Naveen Kohli v. Neelu Kohli, reported in (2006] 4 SCC
558 dealt with the similar issues in detail. Those observations incorporated
in paragraphs 74 to 79 are reiterated in the succeeding paragraphs.
"74. We have been principally impressed by the consideration that ~
once the marriage has broken down beyond repair, it would be ,,.
H unrealistic for the law not to take notice of that fact, and it would be
~
SAMAR GHOSH v. JAY A GHOSH [DAL VEER BHANDARI, J.] 463
-
,>
hannful to society and injurious to the interests of the parties. Where A
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.
B
75. Public interest demands not only that the married status should,
-> as far as possible, as long as possible, and whenever possible, be
maintained, but where a marriage has been wrecked beyond the hope
of salvage, public interest lies in the recognition of that fact.
c
76. Since there is no acceptable way in which a spouse can be
compelled to resume life with the consort, nothing is gained by trying
- to keep the parties tied for ever to a marriage that in fact has ceased
to exist."
77. Some jurists have also expressed their apprehension for D
introduction of irretrievable breakdown of marriage as a ground for
grant of the decree of divorce. In their opinion, such an amendment
in the Act would put human ingenuity at a premium and throw wide
open the doors to litigation, and will create more problems then are
sought to be solved.
E
78. The other majority view, which is shared by most jurists, according
to the Law Commission Report, is that human life has a short span
and situations causing misery cannot be allowed to continue
indefinitely. A halt has to be called at some stage. Law cannot tum
a blind eye to such situations, nor can it decline to give adequate
F
response to the necessities arising therefrom.
79. When we carefully evaluate the judgment of the High Court and
scrutinize its findings in the background of the facts and circumstances
of this case, it becomes obvious that the approach adopted by the
·High Court in deciding this matter is far from satisfactory."
G
98. On proper analysis and scrutiny of the judgments of this Court and
other Courts, we have come to the definite conclusion that there cannot be
any comprehensive definition of the concept of 'mental cruelty' within which
-..:
all kinds of cases of mental cruelty can be covered. No court in our considered
H
464 SUPREME COURT REPORTS [2007) 4 S.C.R.
A view should even attempt to give a comprehensive definition of mental cruelty.
'
99. Human mind is extremely complex and human behaviour is equally
complicated. Similarly human ingenuity has no bound, therefore, to assimilate
the entire human behaviour in one definition is almost impossible. What is
cruelty in one case may not amount to cruelty in other case. The concept of
B cruelty differs from person to person depending upon his upbringing, level
of sensitivity, educational, family and cultural bal.kground, financial position,
social status, customs, traditions, religious beliefs, human values and their
value system. ..... .
.•
100." Apart from this, the concept of mental cruelty cannot remain static;
c it is bound to change with the passage of time, impact of modem culture
through print and electronic media and value system etc. etc. What may be
mental cruelty now may not remain a mental cruelty after a passage of time
or vice versa. There can never be any strait-jacket formula or fixed parameters
for determining mental cruelty in matrimonial matters. The prudent and
D appropriate way to adjudicate the case would be to evaluate it on its peculiar
facts and circumstances while taking aforementioned factors in consideration.
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 ~
E indicated in the succeeding paragraphs are only illustrative and not exhaustive.
co On consideration of complete matrimonial life of the parties, acute
mental pain, agony and suffering as would not make possible for
the parties to live with each other could come within the broad .
parameters of mental cruelty.
F ..,...
(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.
(ii.t) Mere coldness or lack of affection cannot amount to cruelty,
G frequent rudeness of language, petulance of manner, indifference
and neglect may reach such a degree that it makes the married
life for the other spouse a'osolutely intolerable.
.,.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish,
disappointment, frustration in one spouse caused by the conduct
H
t
SAMARGHOSH v. JAY A GHOSH [DAL VEER BHANDARI, J.] 465
t of other for a long time may lead to mental cruelty. A
(v) A sustained course of abusive and humiliating treatment
calculated to torture, discommode or render miserable life of the
spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse
actually affecting physical and mental health of the other spouse. B
The treatment complained of and the resultant danger or
apprehension must be very grave, substantial and weighty.
--'·
..... (vii) Sustained repreherisible conduct, studied neglect, indifference or
total departure from the normal standard of conjugal kindness
causing injury to mental health or deriving sadistic pleasure can c
also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness,
possessiveness, which causes unhappiness and dissatisfaction
and emotional upset may not be a ground for grant of divorce
on the ground of mental cruelty. D
..,, (ix) Mere trivial irritations, quarrels, normal wear and tear of the
married life which happens in day to day life would not be
adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated
E
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
I extremely difficult to live with the other party any longer, may
~ amount to mental cruelty. F
(xi) If a husband submits himself for an operation of sterilization
without medical reasons and without the consent or knowledge
of his wife and similarly if the wife undergoes vasectomy or
abortion without medical reason or without the consent or
knowledge of her husband, such an act of the spouse may lead G
to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable
....
!
J( period without there being any physical incapacity or valid reason
may amount to mental cruelty.
~
H
466 SUPREME COURT REPORTS [2007) 4 S.C.R.
A (xiii) Unilateral decision of either husband or wife after marriage not
to have child from the marriage may amount to cruelty.
(xiv) Where there has been a Jong period of continuous separation, it
may fairly be concluded that the matrimonial bond is beyond
repair. The marriage becomes a fiction though supported by a
B 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 tl.e parties. In such
like situations, it may lead to mental cruelty.
I 02. When we take into consideration aforementioned factors along
C with an important circumstance that the parties are admittedly living separately
for more than sixteen and half years (since 27.8.1990) the irresistible conclusion
would be that matrimonial bond has been ruptured beyond repair because of
the mental cruelty caused by the respondent.
103. The High Court in the impugned judgment seriously erred in
D reversing the judgment of the learned Additional Sessions Judge. The High
Court in the impugned judgment ought to have considered the most important
and vital circumstance of the case in proper perspective that the parties have ,
been living separately since 27th August, 1990 and thereafter, the parties did
not have any interaction with each other. When the appellant was seriously
E ill and the surgical intervention of bye-pass surgery had to be restored to,
even on that occasion, neither the respondent nor her father or any member
of her family bothered to enquire about the health of the appellant even on
telephone. This instance is clearly illustrative of the fact that now the parties
have no emotions, sentiments or feelings for each other at least since 27.8.1990.
This is a clear case of irretrievable breakdown of marriage. In our considered
F view, it is impossible to-preserve or save the marriage. Any further effort to ~-
keep it alive would prove to be totally counter-productive.
104. In the backdrop of the spirit of a number of. decided cases, the
learned Additional District Judge was fully justified in decreeing the appellant's
suit for divorce. In our view, in a case of this nature, no other logical view
G is possible.
105. On proper consideration of cumulative facts and circumstances of
this case, in our view, the High Court seriously erred in rever::1ing the judgment
of the learned Additional District Judge which is based on carefully watching
H the demeanour of the parties and their respective witnesses and the ratio and
SAMAR GHOSH v. JAY A GHOSH [DAL VEER BHANDARI, J.] 467
spirit of the judgments of this Court and other Courts. The High Court erred A
in setting aside a well-reasoned judgment of the trial court based on the
correct analysis of the concept of mental cruelty. Consequently, the impugned
judgment of the High Court is set aside and the judgment of the learned
Additional District Judge granting the decree of divorce is restored.
106. _This appeal is accordingly disposed of but, in the facts and B
circumstances of the case, we direct th~ parties to bear their own costs.
R.P. Appeal disposed of.
..1.
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