SMT. ROOPA SONIversusKAMALNARAYAN SONI

                 [2023] 14 S.C.R. 871 : 2023 INSC 814



                            CASE DETAILS
                          SMT. ROOPA SONI
                                     v.
                       KAMALNARAYAN SONI
                     (Civil Appeal No. 5700 of 2023)
                         SEPTEMBER 06, 2023
         [SANJIV KHANNA AND M. M. SUNDRESH, JJ.]
                             HEADNOTES
      Issue for consideration: Whether the trial Court and High Court were
justified in adopting a hyper-technical and pedantic approach in declining
the decree of divorce, when both the parties had made serious allegations
against each other and were living separately for decade and half.
     Hindu Marriage Act, 1955 – The appellant-wife registered a
complaint u/s. 498A of IPC and ss.3 and 4 of the Dowry Prohibition Act,
1961 – The respondent-Husband had questioned the character of the
appellant-wife – Petition for divorce – Trial Court and the High Court
declined decree of divorce – Propriety:
      Held: For a decade and half, the parties have been living separately
– The marriage does not survive any longer, and the relationship was
terminated otherwise except by a formal decree of divorce – The Trial
Court and the High Court adopted a hyper-technical and pedantic approach
in declining the decree of divorce – It is not as if the respondent-husband
is willing to live with the appellant-wife – The allegations made by him
against her are as serious as the allegations made by her against him – Both
the parties have moved away and settled in their respective lives – There is
no need to continue the agony of a mere status without them living together
– The judgment of the Trial Court as confirmed by the High Court set aside.
[Paras 17, 19, 20]
     Hindu Marriage Act, 1955 – s.13(1)(ia) – Cruelty:
     Held: The word ‘cruelty’ under Section 13(1)(ia) of the Act of 1955
has got no fixed meaning, and therefore, gives a very wide discretion to the
Court to apply it liberally and contextually – What is cruelty in one case
                                   871
872          SUPREME COURT REPORTS                       [2023] 14 S.C.R.


may not be the same for another – It has to be applied from person to person
while taking note of the attending circumstances. [Para 5]

      Divorce – Bipin Chander Jaisinghbhai Shah v. Prabhawati –
Clarification of decision:

      Held: The decision rendered in Bipin Chander Jaisinghbhai Shah v.
Prabhawati, 1956 SCR 838 is clarified, it is not a proposition to hold that
the proof required from a petitioner in a matrimonial case alleging cruelty
is of beyond reasonable doubt, and not of preponderance of probability
– The Court in Bipin Chander was dealing with a case of desertion, and
therefore, more onus was fixed on the person who asserts it – The Court is
not deciding and adjudicating an offence, when a petition for divorce is a
civil remedy. [Para 12]

      Hindu Marriage Act, 1955 – s. 23 – Decree in proceedings –
Discussed. [Paras 13, 14]

      Divorce – Socio-economic stigma and issues attached to woman
– Discussed. [Para 8]
       LIST OF CITATIONS AND OTHER REFERENCES

      Shilpa Sailesh v. Varun Sreenivasan 2023 (6) SCALE 402 – followed.

      Vishwanath Agrawal v. Sarla Vishwanath Agrawal (2012) 7 SCC
288 : [2012] 7 SCR 607; Badshah v. Urmila Badshah Godse and Another
(2014) 1 SCC 188 : [2013] 10 SCR 259; N.G. Dastane v. Mrs. S. Dastane
(1975) 2 SCC 326 : [1975] 3 SCR 967; Sivasankaran v. Santhimeenal 2021
(10) SCALE 477; Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka
(1982) 2 SCC 544 : [1983] 1 SCR 49 – relied on.

      Reynold Rajamani and Another v. Union of India and Another (1982)
2 SCC 474; Dr. Bipin Chander Jaisinghbhai Shah v. Prabhawati 1956 SCR
838; Lachman Utamchand Kirpalani v. Meena alias Mota (1964) 4 SCR
331 – referred to.
       SMT. ROOPA SONI v. KAMALNARAYAN SONI                              873



      OTHER CASE DETAILS INCLUDING IMPUGNED
             ORDER AND APPEARANCES
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5700 of 2023.
    From the Judgment and Order dated 13.02.2014 of the High Court of
Chhattisgarh at Bilaspur in FA No.115 of 2011.
     Appearances:
    Dushyant Parashar, Dinesh Pandey, Manu Parashar, Advs. for the
Appellant.
     Shantanu Sagar, Adv. for the Respondent.
      JUDGMENT / ORDER OF THE SUPREME COURT
                             JUDGMENT
     M. M. SUNDRESH, J.
     Leave granted.
     2. Section 13(1) and 13(1A) of theHindu Marriage Act, 1955
(hereinafter referred to as Act of 1955) provide for various grounds for
granting divorce:
     “13. Divorce.—(1) Any marriage solemnized, whether before or after
     the commencement of this Act, may, on a petition presented by either
     the husband or the wife, be dissolved by a decree of divorce on the
     ground that the other party—

     (i) has, after the solemnization of the marriage, had voluntary sexual
          intercourse with any person other than his or her spouse; or
          (ia) has, after the solemnization of the marriage, treated the
          petitioner with cruelty; or
          (ib) has deserted the petitioner for a continuous period of not
          less than two years immediately preceding the presentation of
          the petition; or
     (ii) has ceased to be a Hindu by conversion to another religion; or
874          SUPREME COURT REPORTS                        [2023] 14 S.C.R.


      (iii) has been incurably of unsound mind, or has been suffering
            continuously or intermittently from mental disorder of such a
            kind and to such an extent that the petitioner cannot reasonably
            be expected to live with the respondent.
      Explanation.—In this clause,—
           (a) the expression “mental disorder” means mental illness,
           arrested or incomplete development of mind, psychopathic
           disorder or any other disorder or disability of mind and includes
           schizophrenia;
           (b) the expression “psychopathic disorder” means a persistent
           disorder or disability of mind (whether or not including sub-
           normality of intelligence) which results in abnormally aggressive
           or seriously irresponsible conduct on the part of the other party,
           and whether or not it requires or is susceptible to medical
           treatment; or
                         ×××         ×××          ×××
           (v) has been suffering from venereal disease in a communicable
           form; or
           (vi) has renounced the world by entering any religious order; or
           (vii) has not been heard of as being alive for a period of seven
           years or more by those persons who would naturally have heard
           of it, had that party been alive;
           [Explanation.—In this sub-section, the expression “desertion”
           means the desertion of the petitioner by the other party to the
           marriage without reasonable cause and without the consent
           or against the wish of such party, and includes the wilful
           neglect of the petitioner by the other party to the marriage, and
           its grammatical variations and cognate expressions shall be
           construed accordingly].
           (1A) Either party to a marriage, whether solemnized before or
           after the commencement of this Act, may also present a petition
           for the dissolution of the marriage by a decree of divorce on the
           ground—
        SMT. ROOPA SONI v. KAMALNARAYAN SONI                               875
                  [M. M. SUNDRESH, J.]

              (i) that there has been no resumption of cohabitation as
              between the parties to the marriage for a period of one year or
              upwards after the passing of a decree for judicial separation
              in a proceeding to which they were parties; or
              (ii) that there has been no restitution of conjugal rights as
              between the parties to the marriage for a period of one year
              or upwards after the passing of a decree for restitution of
              conjugal rights in a proceeding to which they were parties.”
      3. The Amending Act of 1976 (Act 68 of 1976) had introduced clauses
(ia) and (ib) to Section 13 and Section 13A etc. to liberalize grant of divorce.
The Statement of Objects and Reasons, when the Bill was introduced, clearly
spells out the reasons in the following words:
     “Statementof Objects and Reasons for the Marriage Laws (Amendment)
     Bill, 1976:
           “(1) To liberalise the provisions relating to divorce;
           (2) to enable expeditious disposal of proceedings under the Act;
           and
           (3) to remove certain anomalies and handicaps that have come
           to light after the passing of the Acts.”
      4. Preceding the Bill, the Minister of Law and Justice and Company
Affairs addressed a communication to the Chairman of the Law Commission
of India on 17.01.1974, seeking his view towards liberalizing divorce
proceedings, which resulted in the 59th Report of the Law Commission
of India. The Amending Act of 1976 substantially amended Section 13
of the Act of 1955, while adding some more clauses. Suffice to state that
the intendment of the Parliament is very clear, which is to liberalize the
provision of divorce, while being conscious of the protection required for
the estranged wife. While applying the sub-clauses to Section 13(1) of the
Act of 1955, one needs to have a proper understanding of the position of
the spouse opposing the petition for grant of divorce as the consequences
and impact may differ from person to person, based upon factors such as
social setting, educational qualification(s), financial status, employment,
caste, community, age and place.
876          SUPREME COURT REPORTS                        [2023] 14 S.C.R.


     5. The word ‘cruelty’ under Section 13(1)(ia) of the Act of 1955 has
got no fixed meaning, and therefore, gives a very wide discretion to the
Court to apply it liberally and contextually. What is cruelty in one case may
not be the same for another. As stated, it has to be applied from person to
person while taking note of the attending circumstances.
    6. In Vishwanath Agrawal v. Sarla Vishwanath Agrawal, (2012) 7
SCC 288this Court sufficiently sets out:
      “22. The expression “cruelty” has an inseparable nexus with human
      conduct or human behaviour. It is always dependent upon the social
      strata or the milieu to which the parties belong, their ways of life,
      relationship, temperaments and emotions that have been conditioned
      by their social status.
                         ×××          ×××          ×××
      25. After so stating, this Court observed in Shobha Rani case
      [(1988) 1 SCC 105 : 1988 SCC (Cri) 60] about the marked change
      in life in modern times and the sea change in matrimonial duties and
      responsibilities. It has been observed that: (SCC p. 108, para 5)
           “5. … when a spouse makes a complaint about the treatment
           of cruelty by the partner in life or relations, the court should
           not search for standard in life. A set of facts stigmatised as
           cruelty in one case may not be so in another case. The cruelty
           alleged may largely depend upon the type of life the parties are
           accustomed to or their economic and social conditions. It may
           also depend upon their culture and human values to which they
           attach importance.”
      26. Their Lordships in Shobha Rani case [(1988) 1 SCC 105 : 1988
      SCC (Cri) 60] referred to the observations made in Sheldon v. Sheldon
      [1966 P 62 : (1966) 2 WLR 993 : (1966) 2 All ER 257 (CA)] wherein
      Lord Denning stated, “the categories of cruelty are not closed”.
      Thereafter, the Bench proceeded to state thus: (Shobha Rani case
      [(1988) 1 SCC 105 : 1988 SCC (Cri) 60] , SCC p. 109, paras 5-6)
           “5. … Each case may be different. We deal with the conduct
           of human beings who are not generally similar. Among the
  SMT. ROOPA SONI v. KAMALNARAYAN SONI                             877
            [M. M. SUNDRESH, J.]

     human beings there is no limit to the kind of conduct which may
     constitute cruelty. New type of cruelty may crop up in any case
     depending upon the human behaviour, capacity or incapability
     to tolerate the conduct complained of. Such is the wonderful
     (sic) realm of cruelty.
     6. These preliminary observations are intended to emphasise
     that the court in matrimonial cases is not concerned with ideals
     in family life. The court has only to understand the spouses
     concerned as nature made them, and consider their particular
     grievance. As Lord Reid observed in Gollins v. Gollins [1964
     AC 644 : (1963) 3 WLR 176 : (1963) 2 All ER 966 (HL)] : (All
     ER p. 972 G-H)
        ‘… In matrimonial affairs we are not dealing with objective
        standards, it is not a matrimonial offence to fall below the
        standard of the reasonable man (or the reasonable woman).
        We are dealing with this man or this woman.’ ”
                  ×××          ×××           ×××
32. In Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511], this Court,
after surveying the previous decisions and referring to the concept
of cruelty, which includes mental cruelty, in English, American,
Canadian and Australian cases, has observed that: (SCC pp. 545-46,
paras 99-100)
     “99. … The 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 the other case. The concept
     of cruelty differs from person to person depending upon his
     upbringing, level of sensitivity, educational, family and cultural
     background, 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; it is bound to change with the passage of time, impact of
     modern culture through print and electronic media and value
878          SUPREME COURT REPORTS                         [2023] 14 S.C.R.


           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 straitjacket 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 its peculiar facts and circumstances….”
                                                       (emphasis supplied)
      7. We would like to emphasize that an element of subjectivity has to
be applied albeit, what constitutes cruelty is objective. Therefore, what is
cruelty for a woman in a given case may not be cruelty for a man, and a
relatively more elastic and broad approach is required when we examine a
case in which a wife seeks divorce. Section 13(1) of the Act of 1955 sets
contours and rigours for grant of divorce at the instance of both the parties.
Historically, the law of divorce was predominantly built on a conservative
canvas based on the fault theory. Preservation of marital sanctity from a
societal perspective was considered a prevailing factor. With the adoption of
a libertarian attitude, the grounds for separation or dissolution of marriage
have been construed with latitudinarianism.
      8. Even with such a liberal construction of matrimonial legislations,
the socio-economic stigma and issues attached to a woman due to divorce or
separation are raised. Justice O.Chinnappa Reddy, in his concurring opinion
in Reynold Rajamani and Another v.Union of India and Another, (1982) 2
SCC 474 (see paragraph 14), took note of the position of women in a marital
relationship and the consequent social and economic inequalities faced by
the female spouse in view of divorce. The resultant stigmatization hinders
societal reintegration, making a woman divorcee socially and economically
dependent. Courts must adopt a holistic approach and endeavor to secure
some measure of socio-economic independence, considering the situation,
case and persons involved. An empathetic and contextual construction of
the facts may be adopted, to avert the possibilities of perpetuating trauma -
mental and sometimes even physical - on the vulnerable party. It is needless
to say that the courts will be guided by the principles of equity and may
consider balancing the rights of the parties. The Court, while applying these
provisions, must adopt ‘social-context thinking’, cognisant of the social
and economic realities, as well as the status and background of the parties.
       SMT. ROOPA SONI v. KAMALNARAYAN SONI                                879
                 [M. M. SUNDRESH, J.]

      9. This concept of “social justice adjudication” has been elaborately
dealt with by this Court in Badshah v. Urmila Badshah Godse and Another,
(2014) 1 SCC 188:
          “14. Of late, in this very direction, it is emphasised that the courts
     have to adopt different approaches in “social justice adjudication”,
     which is also known as “social context adjudication” as mere
     “adversarial approach” may not be very appropriate. There are number
     of social justice legislations giving special protection and benefits to
     vulnerable groups in the society. Prof. Madhava Menon describes it
     eloquently:
                 “It is, therefore, respectfully submitted that ‘social context
           judging’ is essentially the application of equality jurisprudence
           as evolved by Parliament and the Supreme Court in myriad
           situations presented before courts where unequal parties
           are pitted in adversarial proceedings and where courts are
           called upon to dispense equal justice. Apart from the social-
           economic inequalities accentuating the disabilities of the poor
           in an unequal fight, the adversarial process itself operates to
           the disadvantage of the weaker party. In such a situation, the
           Judge has to be not only sensitive to the inequalities of parties
           involved but also positively inclined to the weaker party if the
           imbalance were not to result in miscarriage of justice. This result
           is achieved by what we call social context judging or social
           justice adjudication.” [ Keynote address on “Legal Education in
           Social Context” delivered at National Law University, Jodhpur
           on October 12, 2005, available on http://web.archive.org/
           web/20061210031743/http:/www.nlujodhpur.ac.in/ceireports.
           htm [last visited on 25-12-2013]]
           15. The provision of maintenance would definitely fall in this
     category which aims at empowering the destitute and achieving social
     justice or equality and dignity of the individual. While dealing with
     cases under this provision, drift in the approach from “adversarial”
     litigation to social context adjudication is the need of the hour.
           16. The law regulates relationships between people. It prescribes
     patterns of behaviour. It reflects the values of society. The role of the
880           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


      court is to understand the purpose of law in society and to help the
      law achieve its purpose. But the law of a society is a living organism.
      It is based on a given factual and social reality that is constantly
      changing. Sometimes change in law precedes societal change and is
      even intended to stimulate it. In most cases, however, a change in law
      is the result of a change in social reality. Indeed, when social reality
      changes, the law must change too. Just as change in social reality is
      the law of life, responsiveness to change in social reality is the life of
      the law. It can be said that the history of law is the history of adapting
      the law to society’s changing needs. In both constitutional and
      statutory interpretation, the court is supposed to exercise discretion
      in determining the proper relationship between the subjective and
      objective purposes of the law.
                          ×××          ×××           ×××
            18. The court as the interpreter of law is supposed to supply
      omissions, correct uncertainties, and harmonise results with justice
      through a method of free decision — libre recherché scientifique i.e.
      “free scientific research”. We are of the opinion that there is a non-
      rebuttable presumption that the legislature while making a provision
      like Section 125 CrPC, to fulfil its constitutional duty in good faith,
      had always intended to give relief to the woman becoming “wife”
      under such circumstances. This approach is particularly needed while
      deciding the issues relating to gender justice. We already have examples
      of exemplary efforts in this regard. Journey from Shah Bano [Mohd.
      Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556 : 1985 SCC
      (Cri) 245 : AIR 1985 SC 945] to Shabana Bano [Shabana Bano v.
      Imran Khan, (2010) 1 SCC 666 : (2010) 1 SCC (Civ) 216 : (2010) 1
      SCC (Cri) 873 : AIR 2010 SC 305] guaranteeing maintenance rights
      to Muslim women is a classical example.”
                                                        (Emphasis supplied)
      10. On the question of burden in a petition for divorce, burden of proof
lies on the petitioner. However, the degree of probability is not one beyond
reasonable doubt, but of preponderance.
       SMT. ROOPA SONI v. KAMALNARAYAN SONI                               881
                 [M. M. SUNDRESH, J.]

     11. In Dr. N.G. Dastane v. Mrs. S. Dastane, (1975) 2 SCC 326, it
was held:
     “25. Proof beyond reasonable doubt is proof by a higher standard
     which generally governs criminal trials or trials involving inquiry into
     issues of a quasi-criminal nature. A criminal trial involves the liberty
     of the subject which may not be taken away on a mere preponderance
     of probabilities. If the probabilities are so nicely balanced that a
     reasonable, not a vacillating, mind cannot find where the preponderance
     lies, a doubt arises regarding the existence of the fact to be proved and
     the benefit of such reasonable doubt goes to the accused. It is wrong
     to import such considerations in trials of a purely civil nature.
     26. Neither Section 10 of the Act which enumerates the grounds on
     which a petition for judicial separation may be presented nor Section
     23 which governs the jurisdiction of the court to pass a decree in any
     proceeding under the Act requires that the petitioner must prove his
     case beyond a reasonable doubt. Section 23 confers on the court the
     power to pass a decree if it is “satisfied” on matters mentioned in
     clauses (a) to (e) of the section. Considering that proceedings under
     the Act are essentially of a civil nature, the word “satisfied” must
     mean “satisfied on a preponderance of probabilities” and not “satisfied
     beyond a reasonable doubt”. Section 23 does not alter the standard of
     proof in civil cases.
     27. The misconception regarding the standard of proof in matrimonial
     cases arises perhaps from a loose description of the respondent›s
     conduct in such cases as constituting a “matrimonial offence”. Acts of
     a spouse which are calculated to impair the integrity of a marital union
     have a social significance. To marry or not to marry and if so whom,
     may well be a private affair but the freedom to break a matrimonial
     tie is not. The society has a stake in the institution of marriage and
     therefore the erring spouse is treated not as a mere defaulter but as an
     offender. But this social philosophy, though it may have a bearing on
     the need to have the clearest proof of an allegation before it is accepted
     as a ground for the dissolution of a marriage, has no bearing on the
     standard of proof in matrimonial cases.”
882              SUPREME COURT REPORTS                                   [2023] 14 S.C.R.


      12. While quoting the aforesaid decision with respectful approval,
we would like to clarify that the decision rendered in Bipin Chander
Jaisinghbhai Shah v. Prabhawati1, 1956 SCR 838, is not a proposition
to hold that the proof required from a petitioner in a matrimonial case
alleging cruelty is of beyond reasonable doubt, and not of preponderance
of probability. The Court in Bipin Chander (supra) was dealing with a case
of desertion, and therefore, more onus was fixed on the person who asserts
it. The Court is not deciding and adjudicating an offence, when a petition
for divorce is a civil remedy.
      13. Though Section 23(1)2 of the Act of 1955 speaks of condonation of
cruelty by the petitioner in a divorce petition filed on the ground of cruelty,
and thus non-suiting a decree of divorce, it has to be seen in context with
the position of a man and woman in a marital relationship. In other words,
Section 23(1) of the Act of 1955 is a word of caution to check cases of abuse
and misuse of law to get relief. To elaborate, due to her unenviable position,
a wife may not be in a state to raise her voice and express her dissent, which
cannot be construed as a passive consent.




1     This judgment has been quoted with approval by a five Judge Bench of this Court
      in Lachman Utamchand Kirpalani v. Meena alias Mota, (1964) 4 SCR 331, which
      relates to ‘desertion’, whereas the present case involves ‘cruelty’.
2     23. Decree in proceedings. – (1) In any proceeding under this Act, whether defended
      or not, if the court is satisfied that –
      (a) any of the grounds for granting relief exists and the petitioner except in cases where
      the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or
      sub-clause (c) of clause (ii) of section 5 is not in any way taking advantage of his or
      her own wrong or disability for the purpose of such relief, and
      (b) where the ground of the petition is the ground specified in clause (i) of sub-section
      (1) of section 13, the petitioner has not in any manner been accessory to or connived
      at or condoned the act or acts complained of, or where the ground of the petition is
      cruelty the petitioner has not in any manner condoned the cruelty, and
      (bb) when a divorce is sought on the ground of mutual consent, such consent has not
      been obtained by force, fraud or undue influence, and
      (c) the petition (not being a petition presented under section 11) is not presented or
      prosecuted in collusion with the respondent, and
      (d) there has not been any unnecessary or improper delay in instituting the proceeding,
      and
      (e) there is no other legal ground why relief should not be granted, then, and in such a
      case, but not otherwise, the court shall decree such relief accordingly.
        SMT. ROOPA SONI v. KAMALNARAYAN SONI                                              883
                  [M. M. SUNDRESH, J.]

      14. Section 23(2)3 of the Act of 1955 postulates that the court before
granting any relief under the Act shall, in the first instance, where it is
possible in the nature and circumstances of the case, make every endeavour
to bring about reconciliation between the parties. The proviso carves out
certain exceptions with which we are not concerned. This aspect is also
referred to in sub-section (3)4 of Section 23. The object and purpose of these
provisions is to check any party taking advantage of social and economic
inequalities between the sexes given the fact that on many occasions a
divorce may solve one problem, but create another when the woman is
separated both socially and economically. Keeping these aspects in mind,
recently this Court in Sivasankaran v. Santhimeenal, 2021 (10) SCALE
477, while exercising the power under Article 142 of the Constitution of
India, had highlighted various facets which have to be kept in mind while
granting divorce:
      “6. The ground which is often taken to oppose such a decree of
      divorce, apart from the absence of legislative mandate, is that the
      very institution of marriage is distinctly understood in different
      countries. Under the Hindu Law, it is sacramental in character
      and is supposed to be an eternal union of two people - society at
      large does not accept divorce, given the heightened importance of
      marriage as a social institution in India. Or at least, it is far more
      difficult for women to retain social acceptance after a decree of
      divorce. This, coupled with the law’s failure to guarantee economic


3    S.23(2) – Before proceeding to grant any relief under this Act, it shall be the duty of
    the court in the first instance, in every case where it is possible so to do consistently
    with the nature and circumstances of the case, to make every endeavour to bring about
    a reconciliation between the parties:
    Provided that nothing contained in this sub-section shall apply to any proceeding
    wherein relief is sought on any of the grounds specified in clause (ii), clause (iii),
    clause (iv), clause (v), clause (vi) or clause (vii) of sub-section (1) of section 13.
4    S.23(3) – For the purpose of aiding the court in bringing about such reconciliation,
    the court may, if the parties so desire or if the court thinks it just and proper so to do,
    adjourn the proceedings for a reasonable period not exceeding fifteen days and refer
    the matter to any person named by the parties in this behalf or to any person nominated
    by the court if the parties fail to name any person, with directions to report to the
    court as to whether reconciliation can be and has been, effected and the court shall in
    disposing of the proceeding have due regard to the report.
884          SUPREME COURT REPORTS                        [2023] 14 S.C.R.


      and financial security to women in the event of a breakdown of
      marriage; is stated to be the reason for the legislature’s reluctance
      to introduce irretrievable breakdown as a ground for divorce - even
      though there may have been a change in social norms over a period
      of time. Not all persons come from the same social background, and
      having a uniform legislative enactment is thus, stated to be difficult.
      It is in these circumstances that this court has been exercising its
      jurisdiction, despite such reservations, under Article 142 of the
      Constitution of India.
      7. A marriage is more than a seemingly simple union between
      two individuals. As a social institution, all marriages have legal,
      economic, cultural, and religious ramifications. The norms of a
      marriage and the varying degrees of legitimacy it may acquire are
      dictated by factors such as marriage and divorce laws, prevailing
      social norms, and religious dictates. Functionally, marriages are seen
      as a site for the propagation of social and cultural capital as they
      help in identifying kinship ties, regulating sexual behaviour, and
      consolidating property and social prestige. Families are arranged
      on the idea of a mutual expectation of support and amity which is
      meant to be experienced and acknowledged amongst its members.
      Once this amity breaks apart, the results can be highly devastating
      and stigmatizing. The primary effects of such breakdown are felt
      especially by women, who may find it hard to guarantee the same
      degree of social adjustment and support that they enjoyed while they
      were married.”
      15. Secondly, the court must also keep in mind that the home which is
meant to be a happy and loveable place to live, becomes a source of misery
and agony where the partners fight. When there are children they become
direct victims of the said fights, though they may practically have no role in
the breakdown of marriage. They suffer irreparable harm especially when
the couple at loggerheads, remain unmindful and unconcerned about the
psychological and mental impact it has on her/him. Way back in 1982, this
Court in Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, (1982)
2 SCC 544, observed:
       SMT. ROOPA SONI v. KAMALNARAYAN SONI                               885
                 [M. M. SUNDRESH, J.]

     “29…. A broken home, however, has a different tale to tell for the
     children. When parents fall out and start fighting, the peace and
     happiness of home life are gone and the children become the worst
     sufferers. It is indeed sad and unfortunate that parents do not realise the
     incalculable harm they may do to their children by fighting amongst
     themselves. The husband and the wife are the persons primarily
     responsible for bringing the children into this world and the innocent
     children become the worst victims of any dispute between their father
     and the mother. Human beings with frailties common to human nature,
     may not be in a position to rise above passion, prejudice and weakness.
     Mind is, indeed, a peculiar place and the working of human mind is
     often inscrutable. For very many reasons it may unfortunately be not
     possible for the husband and wife to live together and they may be
     forced to part company. Any husband and wife who have irreconcilable
     differences, forcing them to part company, should, however, have sense
     enough to understand and appreciate that they have their duties towards
     their children. In the interest of the children whom they have brought
     into existence and who are innocent, every husband and wife should
     try to compose their differences. Even when any husband and wife
     are not in a position to reconcile their differences and are compelled
     to part, they should part in a way as will cause least possible mischief
     to the children.
                                                         (emphasis supplied)
      16. We have very little to say on facts, especially upon hearing the
learned counsels at the Bar. They do speak for themselves. The marriage
was solemnized in the year 2002. It fell into rough weather after the birth
of their child. Disputes started between the parties from 2006 onwards. The
appellant–Wife registered a complaint under Section 498A of Indian Penal
Code, 1860 and Sections 3 and 4 of the Dowry Prohibition Act, 1961. The
respondent-Husband had questioned the character of the appellant-Wife. A
plea was also taken in the counter affidavit filed in the petition for divorce.
Incidentally, it was contended that it was she who had fled the matrimonial
home. The respondent-Husband also demanded a medical examination of the
appellant–Wife, alleging she was living in adultery and had given birth to a
886          SUPREME COURT REPORTS                        [2023] 14 S.C.R.


child during the period of non-cohabitation. The said request was nullified
by the Order of the High Court.
      17. For a decade and half, the parties have been living separately. As
fairly stated at the Bar, the marriage does not survive any longer, and the
relationship was terminated otherwise except by a formal decree of divorce.
The status quo continues, awaiting an approval from this Court.
      18. The aforesaid facts would certainly make out a case for divorce
and thus, the ratio laid down by a Constitution Bench of this Court in Shilpa
Sailesh v. Varun Sreenivasan, 2023 (6) SCALE 402 would be applicable
on all fours:
            “26. V. Bhagat v. D. Bhagat [(1994) 1 SCC 337], which was
      pronounced in 1993, 18 years after the decision in N.G. Dastane
      [(1975) 2 SCC 326], gives a life-like expansion to the term ‘cruelty’.
      This case was between a husband who was practicing as an Advocate,
      aged about 55 years, and the wife, who was the Vice President in a
      public sector undertaking, aged about 50 years, having two adult
      children - a doctor by profession and an MBA degree holder working
      abroad, respectively. Allegations of an adulterous course of life, lack
      of mental equilibrium and pathologically suspicious character were
      made against each other. This Court noticed that the divorce petition
      had remained pending for more than eight years, and in spite of the
      directions given by this Court, not much progress had been made.
      It was highlighted that cruelty contemplated under Section 13(1)
      (i-a) of the Hindu Marriage Act is both mental and physical, albeit
      a comprehensive definition of what constitutes cruelty would be
      most difficult. Much depends upon the knowledge and intention of
      the defending spouse, the nature of their conduct, the character and
      physical or mental weakness of the spouses, etc. The sum total of
      the reprehensible conduct or departure from normal standards of
      conjugal kindness that causes injury to health, or an apprehension of
      it, constitutes cruelty. But these factors must take into account the
      temperament and all other specific circumstances in order to decide
      that the conduct complained of is such that a petitioner should not
      be called to endure it. It was further elaborated that cruelty, mental
  SMT. ROOPA SONI v. KAMALNARAYAN SONI                              887
            [M. M. SUNDRESH, J.]

or physical, may be both intentional or unintentional. Matrimonial
obligations and responsibilities vary in degrees. They differ in each
household and to each person, and the cruelty alleged depends upon
the nature of life the parties are accustomed to, or their social and
economic conditions. They may also depend upon the culture and
human values to which the spouses assign significance. There may
be instances of cruelty by unintentional but inexcusable conduct of
the other spouse. Thus, there is a distinction between intention to
commit cruelty and the actual act of cruelty, as absence of intention
may not, in a given case, make any difference if the act complained
of is otherwise regarded as cruel. Deliberate and wilful intention,
therefore, may not matter. Paragraph 16 of the judgment in V. Bhagat
(supra) reads as under:
     “16. Mental cruelty in Section 13(1)(i-a) can broadly be defined
     as that conduct which inflicts upon the other party such mental
     pain and suffering as would make it not possible for that party
     to live with the other. In other words, mental cruelty must be of
     such a nature that the parties cannot reasonably be expected to
     live together. The situation must be such that the wronged party
     cannot reasonably be asked to put up with such conduct and
     continue to live with the other party. It is not necessary to prove
     that the mental cruelty is such as to cause injury to the health of
     the petitioner. While arriving at such conclusion, regard must
     be had to the social status, educational level of the parties, the
     society they move in, the possibility or otherwise of the parties
     ever living together in case they are already living apart and
     all other relevant facts and circumstances which it is neither
     possible nor desirable to set out exhaustively. What is cruelty
     in one case may not amount to cruelty in another case. It is a
     matter to be determined in each case having regard to the facts
     and circumstances of that case. If it is a case of accusations and
     allegations, regard must also be had to the context in which they
     were made.”
        ×××                       ×××                       ×××
888           SUPREME COURT REPORTS                          [2023] 14 S.C.R.


      33. Having said so, we wish to clearly state that grant of divorce on the
      ground of irretrievable breakdown of marriage by this Court is not a
      matter of right, but a discretion which is to be exercised with great care
      and caution, keeping in mind several factors ensuring that ‘complete
      justice’ is done to both parties. It is obvious that this Court should be
      fully convinced and satisfied that the marriage is totally unworkable,
      emotionally dead and beyond salvation and, therefore, dissolution
      of marriage is the right solution and the only way forward. That the
      marriage has irretrievably broken down is to be factually determined
      and firmly established. For this, several factors are to be considered
      such as the period of time the parties had cohabited after marriage;
      when the parties had last cohabited; the nature of allegations made
      by the parties against each other and their family members; the orders
      passed in the legal proceedings from time to time, cumulative impact
      on the personal relationship; whether, and how many attempts were
      made to settle the disputes by intervention of the court or through
      mediation, and when the last attempt was made, etc. The period of
      separation should be sufficiently long, and anything above six years
      or more will be a relevant factor. But these facts have to be evaluated
      keeping in view the economic and social status of the parties, including
      their educational qualifications, whether the parties have any children,
      their age, educational qualification, and whether the other spouse and
      children are dependent, in which event how and in what manner the
      party seeking divorce intends to take care and provide for the spouse
      or the children. Question of custody and welfare of minor children,
      provision for fair and adequate alimony for the wife, and economic
      rights of the children and other pending matters, if any, are relevant
      considerations. We would not like to codify the factors so as to curtail
      exercise of jurisdiction under Article 142(1) of the Constitution of
      India, which is situation specific. Some of the factors mentioned can
      be taken as illustrative, and worthy of consideration.”
      19. The Trial Court and the High Court adopted a hyper-technical
and pedantic approach in declining the decree of divorce. It is not as if
the respondent-Husband is willing to live with the appellant–Wife. The
allegations made by him against her are as serious as the allegations made
        SMT. ROOPA SONI v. KAMALNARAYAN SONI                              889
                  [M. M. SUNDRESH, J.]

by her against him. Both the parties have moved away and settled in their
respective lives. There is no need to continue the agony of a mere status
without them living together.
      20. For the reasons aforesaid, we are inclined to set aside the judgment
of the Trial Court as confirmed by the High Court of Chhattisgarh in F.A.
(M) No. 115 of 2011. Accordingly, they are set aside and the appeal stands
allowed by granting a decree of divorce.
      21. No costs.


Headnotes prepared by:                                          Appeal allowed.
Ankit Gyan