Holding

The decree of divorce on the ground of mental cruelty is affirmed, and the husband is ordered to pay Rs.5 lakh to the wife for remarrying before the SLP period.

Summary

The husband filed a petition for divorce under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, alleging mental cruelty and desertion, which the trial court upheld on the ground of mental cruelty and the High Court confirmed. The wife appealed, contending that the alleged acts did not constitute mental cruelty and that the husband’s remarriage before the expiry of the 90‑day period for filing a Special Leave Petition under Article 136 prejudiced her. The Supreme Court held that the lower courts' finding of mental cruelty was supported by the evidence and not infirm, thereby confirming the decree of divorce. While the Court declined to set aside the decree, it observed that the husband should not have remarried before the SLP period expired and ordered him to pay Rs.5,00,000 to the wife. The appeal was dismissed and the parties were each to bear their own costs.

Issues considered

The validity of the finding of mental cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955.
Whether the husband's remarriage before the expiry of the 90‑day period for filing a Special Leave Petition under Article 136 warrants any relief.
Whether the decree of divorce should be set aside on the ground of error in law or fact.
Whether monetary compensation is appropriate in view of the husband's conduct.

Legislation cited

Constitution of Indias. Article 136
Hindu Marriage Act, 1955s. 13(1)(ia), s. 13(1)(ib)

Subjects

mental crueltyHindu Marriage ActdivorceremarriageSpecial Leave PetitionArticle 136compensationmarital obligations

Judgment

[2008] 15 S.C.R. 972
......
".
A SUMAN KAPUR · ~

v.
SUDHIR KAPUR
(Civil Appeal No. 6582 of 2008) L
I
~

NOVEMBER 7, 2008 I
B
[C.K. THAKKER AND D.K. JAIN, JJ.] \.- t-
.~
j..
'-·

Hincju Marriage Act, 1955 - s. 13 (1) (ia) - Divorce
i--
sought by husband - On the ground of mental cruelty ,. . . '
c Decreed by courts below - Wife alleging that the husband
remarried a third party before expiry of period of limitation
for filing SLP - Held: The finding relating to mental cruelty
by courts below does not suffer from any infirmity - Hence I

,,, r-,'
confirmed - However, husband should not have remarried
D before expiry.of limitation period- Though filing petition under
Article 136 of Constitution is not a right of party - But since }
;

constitution allows party to approach Supreme court within a
specified period, no precipitate action could have been taken
by the husband - Constitution of India, 19!50 - Article 136; l
E Words and Phrases ...;.. 'Cruelty' - Meaning of, in the
context of Hindu Marriage Act, 1955.

Respondent;.husband filed petition u/s.13 (1) (ia) and .,._
(ib) of Hindu Marriage Act, 1955 seeking divorce on the ·
F grounds of cruelty and desertion. He alleged that the
appellant-wife was only concerned about her career and
l·
thus deprived him of conjugal· rights and matrimonial
obligations. She treated the respondent as well as
members of his family with cruelty. She got her .
-1·
/~

G pregnancy terminated twice without his consent or
knowledge. She also did not tell him about her
miscarriage. She had told him that she did not want to t 0--

be a mother at the cost of her career. She had issued a
notice to him for peaceful separation. Appellant-wife
H 972
SUMAN KAPUR v. SUDHIR KAPUR 973
f
r ,1

denied the allegations. Trial court denied the divorce on A
the ground of desertion but passed decree of divorce on
the ground of cruelty. High Court confirmed the decree.

In appeal to this court, appellant contended that
allegations against her did not amount to mental cruelty,
they were in the nature of 'normal wear and tear'; and that
a
~
... she was also entitled to appropriate relief in as much the
respondent-husband entered into re-marriage with a third
party before expiry of limitation period for filing Special
Leave Petition and out of that wedlock, he was also
h~ving an issue.
c
Disposing of the appeal, the Court

HELD: 1. It cannot be said that by recording a finding
~ as to mental cruelty by the wife against the husband, the D
,
'....
. ' ,' Courts below had committed any illegality. Sub-section
(1) of Section 13 of Hindu Marriage Act, 1955 declares that
' 3 decree of divorce may be passed by a Court on the
ground that after the solemnization of marriage, the
opposite party has treated the petitioner with cruelty. The
4 E
expression 'cruelty' includes both (i) physical cruelty; and
(ii) mental cruelty. [Paras 19, 20 and 21] [982-C, D, E, F]

N.G. Dastane v. S. Dastane 1975 (2) SCC 326;
Sirajmohmedkhan Janmohamadkhan v. Haizunnisa
Yasinkhan and Anr. 1981 (4) SCC 250; Shobha Rani v. F
Ma.dhukar Reddi 1988 (1) SCC 105; V. Bhagat v. D. Bhagat
(Mrs.) 1994 (1) SCC 337; Chetan Dass v. Kam/a Devi 2001
(4) SCC 250; Parveen Mehta v. lnderjit Mehta 2002 (5) SCC
706; A. Jayachandra v. Aneel Kaur 2005 (2) SCC 22; Vinita
Saxena v. Pankaj Pandit 2006 (3) SCC 778; Samar Ghosh G
't··
...; v. Jaya Ghosh 2007 (4) SCC 511, relied on .
f
Gal/ins V. Gal/ins 1964 AC 644: 1963 (2) All ER 966;
Russell v. Russell (1897) AC 395: (1895-99) All ER Rep 1,
referred to. H
974 SUPREME COURT REPORTS [2008] 15 S.C.R.

A Halsbury's Laws of England Vol.13, 4th Edition Para
1269, referred to.

2. However, the respondent-husband should not
have re-married, before the expiry of period stipulated for
filling Special Leave to Appeal in this Court by the wife.
B
It is true that filing of appeal under Article 136 of the
Constitution is not a right of the party. It is the discretion ~
.
J ...
conferred on this Court to grant leave to the applicant to
file appeal in appropriate cases. But, since the
c Constitution allows a party to approach this Court within
a period of ninety days from an order passed by the High ~

Court, no precipitate action could have been taken by the
respondent-husband by creating the situation of fait
accompli. [Paras 47 and 48] (999-B-F]

D 3. Considering the matter in its entirety, ends of -r
justice would be met if the respondent-husband is
directed to pay an amount of Rs. Five lakhs to the \.--
I

appellant-wife. [Para 48]
I
Case Law Reference: .._
E
1975 (2) sec 326 Relied on. Para 25
r
:-
1981 (4) sec 250 Relied on. Para 26
} \
1988 (1) sec 105 Relied on. Para 27 >--
F
1994 (1) sec 337 Relied on. Para 28
2001 (4) sec 250 Relied on. Para 29
20~2 (5) sec 106 Relied on. Para 30
G 2005 (2) sec 22 Relied on. Para 31
,"--.
2006 (3) sec 778 Relied on. Para 32
' 'I.
2001 (4) sec 511 Relied on. Para 34 ..
'
H

!
SUMAN KAPUR v. SUDHIR KAPUR 975

;.
> CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6582 A
of 2008.

From the final Judgment and Order dated 29.1.2007 of the
High Court of Delhi at New Delhi in Matrimonial Application No.
62 of 2004. B
Kamini Jaiswal, Shamila Bakshi and Sunita Dwivedi for the
41 Appellant.
....
"

T.S. Doabia, Sr. Adv., Manish Sharma, Vishal Malhotra and
Anil Nag, for the Respondent. c
The Judgment of the Court was delivered by

C.K. THAKKER, J. 1. Leave granted.

2. The present appeal is filed by the appellant-wife being D
aggrieved and dissatisfied with the decree of divorce dated
August 07, 2004 passed by the Additional District Judge, Delhi
in HMA No. 322/2001/96 and confirmed by the High Court of
Delhi on January 29, 2007 in Matrimonial Appeal No. 62 of
2004. E
3. The facts in nutshell are that the appellant Suman Kapur
is the wife and respondent Sudhir Kapur is the husband. The
matrimonial alliance was entered into between the parties as
~ per Hindu rites and rituals in Delhi on March 04, 1984. It was
the case of the appellant that both the parties were friends from F
childhood and were knowing each other since 1966. They had
also studied together in the same school. They were very close
since 1974 and after a friendship of more than a decade, they
decided to marry. The marriage was inter-caste marriage.
Though initially parents of both the parties were opposed to the G
marriage, subsequently, they consented. The parties have no
1 issue from the said wedlock.

4. The appellant has a brilliant academic record and has
been the recipient of the prestigious Lalor Foundation H
I

976 SUPREME .COURT REPORTS [2008] 15 S.C.R.

A Fellowship of United States of America (USA), offered to young
scientists for outstanding performance in the area of research. " ..(. _,,

According to her, at the time of her marriage, she was in
employment with the Department of Bio-chemistry in the All
India Institute of Medical Sciences (AllMS) and was also
B pursuing her Ph.D.

5. It is the case of the appellant that she conceived for the
first time in 1984, within a period of about one month of the )o.
~·
marriage, but on account of being exposed to harmful radiations
as a part of lab work of her Ph.D. thesis, she decided to
c terminate the pregnancy. The appellant asserted that it was
done with the knowledge and consent of the respondent-
husband.

6. Again, in 1985, she conceived. But even that pregnancy
D was required to be terminated on the ground of an acute kidney
infection for which she had to undergo an IVP, which entailed -r
six abdominal X-rays and radiometric urinary reflect test with
I
radioactive drinking dye. She claimed that even the second ~

pregnancy was terminated with the knowledge and consent of
E the respondent-husband.
'
7. According to the appellant, third time she became
pregnant in 1989, but she suffered natural abortion on account
of having a congenitally small uterus and thus prone to recurrent ·~
I
miscarriages. 1"
F '
I-
8. It is the case of the appellant that though she was well-
placed and having good job in AllMS in Delhi, only with a view . I
to accompany her husband who was serving in Bombay, she·
left the job. In 1988, the parties together left for USA. The
G appellant was awarded Lalor Foundation Fellowship in.USA for
which she had to move to Kansas city and could not join the
,I·
respondent-husband at the place of his work.
·~
9. The case of the respondent-husband, on the other hand
was that since solemnization of marriage between the parties,
,H
SUMAN KAPUR v. SUDHIR KAPUR [C.K. THAKKER, J.] 977

).
~ the attitude, conduct and behaviour of the appellant-wife A
towards the respondent as well as his family members was
indignant and rude. It was alleged by him that first pregnancy
was terminated in 1984 by the appellant-wife without consent
and even without knowledge of the respondent. Same thing was
repeated at the time of termination of second pregnancy in B
1985. H.e was kept in complete dark about the so-called
...( miscarriage by the appellant-wife in 1989. The. respondent was
~ thus very much aggrieved since he was denied the joy of feeling
of fatherhood and the parents of the respondent were also
deprived of grand-parenthood of a new arrival. It was .also c
contended by the respondent that the attitude of the appellant-
wife towards her in-laws was humiliating. Several instances
were cited in support of the said conduct and behaviour by the
husband ..

10. The respondent-husband, therefore, filed HMA No. D
322/200·1 /96 in the Court of Additional District Judge, Delhi
under Section 13(1)(ia) and (ib) of the Hindu Marriage Act,
1955 (hereinafter referred to as 'the Act') for getting divorce
from the appellant-wife. Two grounds were taken by the
respondent-husband in the said petition, i.e. (i) cruelty and (ii) 'E
desertion. It was alleged by the husband that the wife was all
throughout conscious, mindful and worried of one thing and that
was her career. In view of her thinking only in one direction, she
~
deprived the respondent-husband of conjugal rights and
matrimonial obligations. She also treated the family members F
of the respondent-husband with cruelty. She, without consent or
even knowledge of the respondent-husband, got her pregnancy
terminated twice in 1984 as well as in 1985 and falsely stated
that there was natural miscarriage at the time of third pregnancy
in· 1989. At no point of time, she had taken consent of the G
husband nor even she had informed about the termination of
pregnancy or about miscarriage to the respondent. At several
·1
occasions, she had stated that she was not interested at all in
living with the respondent-husband and to perform marital
obligations. She had made it explicitly clear to the respondent- H
978 SUPREME COURT REPORTS [2008] 15 S.C.R.

A husband that she was not willing to be a mother at the cost of
her career. She had specifically told the respondent-husband
that if he was very much interested and eager to be a father
and his mother (respondent's mother) wanted to be a grand-
mother, he could enter into marriage tie with any other woman,
B but the appellant-wife would not give up her career. She had
also stated that she had no objection if the respondent adopts
a child which action would not adversely affect her career. She
had issued a notice to the respondent-husband that it would be
better that they would peacefully separate from each other so
c that the respondent-husband may be able to fulfil the wishes of
his parents and the appellant-wife may pursue her future career. ·
The respondent-husband, therefore, submitted that the case
attracted both the provisions, viz. (i) cruelty on the part of the
wife under clause (ia) of sub-section (1) of Section 13 and (ii)
desertion of matrimonial home and refusal to perform marital
0
obligations falling under clause (ib) of sub-section (1) of
Section 13 of the Act. On both the grounds, the respondent-
husband was entitled to a decree of divorce.

11. The appellant-wife in her objections denied the
E allegations ofthe husband. According to her, she was doing
her best to please her husband as well as her in-laws. Precisely
for that purpose, she had left her service in Delhi and joined
the husband. It was admitted that she was in service and was
also interested in career as she was well-educated lady and ~
F wanted to contribute to the society. But that did not mean that
she was not performing her marital obligations. It was an
admitted fact that immediately after her marriage, she
conceived and she was very happy about it. Unfortunately,
however, for the circumstances beyond her control, she was
G compelled to get the pregnancy terminated with the knowledge
and consent of her husband. The same thing was repeated in
1985. In 1989, there was natural miscarriage. She also
contended that she had to go to USA for receiving prestigious
award of Lalor Foundation Fellowship. According to her,
H instead of being happy about the progress of the wife, the
SUMAN KAPUR v. SUDHIR KAPUR [C.K. THAKKER, J.] 979

f
_>.-
husband had initiated the present proceedings with jealousy A
and hence, he was not entitled to a decree of divorce. Even
otherwise, there was no cruelty on her part. According to the
wife, during regular intervals, the parties used to stay together
and the appellant had never refused_ to perform her matrimonial
obligations or even had shown her intention to deprive the 8
husband of conjugal rights. It was, therefore, submitted that the
• --< husband was not entitled to the relief sought by him and the
-~
petition was liable to be dismissed.

12. ""fhe trial Court after hearing the parties held that the
husband was not entitled to a decree of divorce on the ground
c
that the wife had deserted the husband for a continuous period
of :iot less than two years immediately preceding the
presentation of the petition. He, however, held that it was fully
established by the husband that there was cruelty on the part
of the wife. The wife without the knowledge and consent of the D
husband got her pregnancy terminated twice - firstly in_ 1984
and secondly in 1985. The husband was also not informed
about natural miscarriage in 1989. A finding was also recorded
by the trial Court that the wife was not ready and willing to
perform matrimonial obligations and she always attempted to E
stay away from her husband by depriving conjugal rights of the
husband. It was, therefore, a case of mental cruelty. The trial
Court also referred to several letters written by wife to the
husband, and notice issued by the wife through an advocate
which went to show that she was not interested in performing F
marital obligations and continuing marital relations with the
husband. The Court also relied upon various entries made by
the appellant-wife in her diary which suggested that all
throughout she was worrying about her future and her career.
For wife, according to the trial Court, her career was the most G
important factor and not matrimonial obligations. The trial Court,
-1 therefore, held that the case was covered by mental cruelty
which was shown by the wife towards the husband and the
husband was entitled to a decree of divorce on that ground.
H
980 SUPREME COURT REPORTS [2008] 15 S.C.R. "

A 13. Being aggrieved by the decree passed by the trial
Jo,
---!,. -
Court, the wife preferred an appeal in the High Court of Delhi.
The High Court again appreciated the evidence on record and
confirmed the decree of divorce passed by the trial Court. The.·.
High Court, however, held that it was not necessary for the Court.·
B to consider mental cruelty so far as termination of pregnancy
was concerned, since in the opinion of the High Court, even
otherwise from the letters and entries in diary, it was proved )...~
that there was mental cruelty on the part of the wife. Accordingly, +'\-
the decree of divorce passed by the trial Court was confirmed
c by the High Court.

14. The said order has been challenged in the present
proceedings. On July 16, 2007, notice was issued by this Court.
The respondent appeared and affidavit-in-reply and affidavit-
in-rejoinder were thereafter filed. Considering the nature of
D controversy, the Registry was directed ~to place the matter for
final hearing and accordingly, the matter has been placed
before us.

15. We have heard the learned counsel for the parties.
E
16. The learned counsel for the appellant contended that
both the courts had committst't'8f+error of law in granting a
decree of divorce against the appellant-wife. It was submitted
that the courts below ought not to have held that there was
mental cruelty on the· part of the appellant-wife and the ~
F respondent-husband was entitled to a decree of divorce on that
ground. It was also submitted that once the High Court has not
considered the allegation as to termination of pregnancy without
the consent of the husband, no decree for divorce on the ground
of mental cruelty could have been passed·by it. Even if all the
G allegations leveled against the wife had been accepted, they
were in the nature of 'normal wear and tear' in a matrimonial
life of a couple which would not fall within the mischief of clause
~
(ia) of sub-section ( 1) of Section 13 of the Act and the orders
passed by the courts below are liable to be set aside. It was
H further submitted that even otherwise, the wife is entitled to an
..
SUMAN KAPUR v. SUDHIR KAPUR [C.K. THAKKER, J.] 981

,.
~ }-
appropriate relief from this Court inasmuch as from the A
evidence, it is clearly established that the High Court confirmed
the decree passed by the trial Court on January 29, 2007 and
before the period of filing Special Leave to Appeal to this Court
expires, the respondent-husband entered into re.;.marriage with
a third party and from the said wedlock, he is having an issue. B
It was, therefore, submitted that the husband has created a
...... situation which had seriously prejudiced the appellant and the
-4c Court may not allow the respondent-husband to take undue
advantage of the situation created by him.

17. The learned counsel for the respondent-husband, on
c
the other hand, supported the decree passed by the trial Court
and confirmed by the High Court. It was urged that the trial Court
on the basis of evidence adduced by the parties recorded a
finding of fact that the conduct and behaviour of the wife was
in the nature of mental cruelty and accordingly allowed the D
... petition filed by the husband. The High Court, though convinced,
on all grounds, did not think it fit to enter into correctness or!
otherwise of the finding recorded with regard to illegali
termination of pregnancy by wife without the knowledge and
consent of the husband since it was convinced. that even E
otherwise on the basis of evidence on record, mental cruelty
of the wife was established. It was not necessary for the High
Court to consider and to record a finding as to illegal
termination of pregnancy by wife since the decree passed by·
the trial Court could be confirmed. As far as mental cruelty is F
·concerned, on the basis of other evidence and material on
·record, a finding had been recorded by the trial Court. The said·
finding was a finding of fact which was confirmed by the High
· Court. In exercise of jurisdiction under Article 136 of the
Constitution, this Court will not interfere with the said finding and G
hence the appeal deserves· to be dismissed.
I

1 18. Regarding re-marriage by the husband, it was stated
that after the decree of divorce passed by the trial Court, the
husband did not re-marry. But the decree of divorce was
H
982 SUPREME COURT REPORTS [2008] 15 S.C.R.

A confirmed by the High Court. The husband thereafter had taken
the action which cannot be said to be illegal or otherwise
unlawful. The wife, therefore, cannottake a technical contention
that the husband should have waited till the period of filing
Special Leave to Appeal to this Court would expire. It was,
B therefore, submitted that the appeal deserves to be dismissed.

19. Having heard the learned counsel for the parties, on
the facts and in the circumstances of the case, in our opinion,
it cannot be said that by recording a finding as to mental cruelty
C by the wife against the husband, the Courts below had
committed any ill~gality.

20. Section 13 of the Hindu Marriage Act provides for grant
of divorce in certain cases. It enacts that any marriage
solemnized whether before or after the commencement of the
D Act may be dissolved on a petition presented either by the
;.-,
husband or by the wife on any of the grounds specified therein.
Clause (ia) of sub-section (1) of Section 13 declares that a
decree of divorce may be passed by a Court on the ground
that after the solemnization of marriage, the opposite party has
E treated the petitioner with cruelty. ·

21. Now, it is well-settled that the expression 'cruelty'
includes both (i) physical cruelty; and (ii) mental cruelty. The
parties in this connection, invited our attention to English as well
as Indian authorities. We will refer to some of them.
F
Mental Cruelty

22. The concept of cruelty has been dealt with in
Halsbury's Laws of England [Vol.13, 4th Edition Para 1269]
G as under;

"The general rule in all cases of cruelty is that the entire
matrimonial relationship must be considered, and that rule
is of special value when the cruelty consists not of violent
acts but of injurious reproaches, complaints, accusations
H
}.
SUMAN KAPUR v. SUDHIR KAPUR [C.K. THAKKER, J.] -983
>-
or taunts. In cases where no violence is averred, it is A
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 in all circumstances of amounting to
cruelty; for it is the effect of the conduct rather than its B
~
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 c
the parties as well as their social 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
D
of the complainant's capacity for endurance and the extent
to which that capacity is known to the other spouse".

23. In Gollins V. Gollins 1964 AC 644: (19.63}2 All ER
966, Lord Reid stated:
E
"No one has ever attempted to give a comprehensive
definition of cruelty and I do not intend to try to do so. Much
must depend on the knowledge and intention of the
~
respondent, on the nature of his (or her) conduct, and on
the character and physical or mental weakness of the F
spouses, and probably no general statement is equally
applicable in all cases except the requirement that the party
seeking relief must show actual or probable injury to life,
limb or health".

24. Lord Pearce also made similar observations; G
...\
~
"It is impossible to give a comprehensive definition of
cruelty, but when reprehensible conduct or departure from
normal standards of conjugal kindness causes injury to
health or an apprehension of it, is, I think, cruelty if a H
984 -SUPREME COURT REPORTS [2008] 15 S.C.R.

A reasonable person, after taking due account of the
temperament and all the other particular circumstances
would considered that the conduct complained of is such
that this spouse should not be called on to endure it".

[see also Russell v. Russell, (1897) AC 395: (1895-99)
B
All ER Rep 1}.

25. Thelest of cruelty has been laid down by this court in
the leading case of N.G. Dastane v. S. Dastane, (1975)2 SCC
326 thus:
c
"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
D respondent. ... "

26. In Sirajmohmedkhan Janmohamadkhan v.
Haizunnisa Yasinkhan & Anr., (1981) 4 SCC 250, this Court
stated that the concept of legal c_ruelty -~_hanges according to
the changes and advancement of social concept and standards
E of living. It was further stated that to establish legal cruelty, it is
not necessary that physical violence should be used. Continuous
cessation of marital intercourse or total indifference on the part
of the husband towards marital obligations would lead to legal
cruelty.
F
27. In Shobha Rani v. Madhukar Reddi, (1988) 1 SCC
105, this Court examined the concept of cruelty. It was observed
that the term 'cruelty' has not been defined in the Hindu Marriage
Act. It has . been used in Section 13( 1)(ia) of the Act in the
G context of human conduct and behavior in relation to or in
respect of matrimonial duties or obligations. It is a course of
conduct of one spouse which adversely affects the other
spouse. The cruelty may be mental or physical, intentional or
unintentional. If it is physical, it is a question of degree which
H is relevant. If it is mental, the enquiry must begin as to the nature
SUMAN KAPUR v. SUDHIR KAPUR [C.K. THAKKER, J.] 985
~
>-
of the cruel treatment and then as to the impact of such A
treatment on the mind of the other 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 B
... ~ cases where the conduct complained of itself is bad enough
_,
and per se unlawful or illegal. Then the impact or the injurious
effect on the other spouse need not be enquired into or
considered. In such cases, the cruelty will be established if the
conduct itself is proved or admitted. The absence of intention c
should not make any difference in the case, if by ordinary sense
in human affairs, the act complained of could otherwise be
regarded as cruelty. Mens rea is not a necessary element in
cruelty. The relief to the party cannot be denied on the ground
~ that there has been no deliberate or wilful ill-treatment.
D
28. In V. Bhagat v. D. Bhagat (Mrs.), (1994) 1 SCC 337,
the Court observed;

"Mental Cruelty in Section 13(1)(ia) can broadly be defined
as that conduct which inflicts upon the other party such E,
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 F
asked to put up with such 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 treatment on the mind of the
spouse. Whether it caused reasonable apprehension that
G
J 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 per se
H
986 SUPREME COURT REPORTS [2008] 15 S.C.R.
.\
..{

A 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
B ordinary sense in human affairs, the act complained of
could otherwise be regarded as cruelty. Intention is not a )...

necessary element in cruelty. The relief to the party cannot ~
be denied on the ground that there has been no deliberate
or wilful ill-treatment or conduct and continue to live with
c 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
-
D ~
apart and all other relevant facts and circumstances which
it is neither possible nor desirable to set out exhaustive.ly.
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.
E If it is a case of accusations and allegations, regard must
also be had to the context in which they were made".

29. This Court in Chetan Dass v. Kam/a Devi, (2001) 4
'sec 250, stated;
F
"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
G
conduct has now come to be governed by statute framed,
keeping in view such norms and changed social order. It A
'
is sought to be controlled in the interest of the individuals
as well as in broader perspective, for regulating
matrimonial norms for making of a well-knit, healthy and
H not a disturbed and porous society. The institution of
SUMAN KAPUR v. SUDHIR KAPUR [C.K. THAKKER, J.] 987
)
>-
-; marriage occupies an important place and role to play in A
the society, in general. 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 8
case".
~
~
30. Mental cruelty has also been examined by this Court
in Parveen Mehta v. lnderjit Mehta (2002) 5 SCC 706 thus;

"Cruelty for the purpose of Section 13(1)(ia) is to be taken c
as a behavior by one spouse towards the other, which
causes reasonable apprehension in the mind of the latter
that it is not safe for him or her to continue the matrimonial
relationship with the other. Mental Cruelty is a state of mind
and feeling with one of the spouses due to the behavior D
or behavioral 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 E
spouse caused by the conduct of the other can only be
appreci'ated 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 taken cumulatively. In F
case of mental cruelty it will not be a correct approach to
take an instance of misbehavior in isolation and then pose
the question whether such behavior is sufficient by itself
to cause mental cruelty. The approach should be to take
the cumulative effect of the facts and circumstances
G
emerging from the evidence on record and then draw a
-1 fair inference whether the petitioner in the divorce petition
has been subjected to mental cruelty due to conduct of the
other."
H
988 SUPREME COURT REPORTS [2008] 15 S.C.R.
.--

A 31. In A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22, """' '
. .
... ___

...I-
the Court observed 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
B
unjustifiable conduct of such character as to cause d;:mger
to life, limb or health, bodily or mental, 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
c parties belong, their social values, status, environment in
which they live. Cruelty, as noted above, includes mental
cruelty, which falls within the 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
D be legitimately drawn that the treatment of the spouse is
such that it causes an apprehension in the mind of the
.>
other spouse, about his or her mental welfare then this
conduct amounts to cruelty. In a delicate human
relationship like matrimony, one has to see the
E probabilities of the case. The concept proof beyond the
shpdow 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. .,.. I
Therefore, one has to see what are the probabilities in a
F case and legal cruelty has to be found out, not 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 ~
G evidence, but in the case of mental crue_lty there may not
at the same time be direct evidence. In cases where there
is no direct evidence, Courts are required to probe into t- /
j

the mental process and mental effect of incidents that are ...
brought out in evidence. It is in this view that one has to
consider the evidence in matrimonial dispute."
'
H
SUMAN KAPUR v. SUDHIR KAPUR [Cf.K. THAKKER, J.) 989

32. In Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778, A
the Court said;

"It is settled by a catena of decisions that mental cruelty
can cause even more serious injury than the physical harm
and create in the mind of the injured appellant such 8
apprehension as is contemplated in the section. It is to be
determined on whole facts of the case and the matrimonial
relations between the spouses.To amount to cruelty, there
must be such willful treatment of the party which caused
suffering in body or mind either as an actual fact or by way C
of apprehension in such a manner as to render the
continued living together of spouses harmful or injurious
having regard to the circumstances of the case.

The word "cruelty" has not been defined and it has
been used in relation to human conduct or human D
behaviour. It is the conduct in relation to or in respect of
matrimonial duties and obligations. It is a course of conduct
and one which is adversely affecting the other. The cruelty
may be mental or physical, intentional or unintentional.
There may be cases where the conduct complained of E
itself is bad enough and per se unlawful or illegal. Then the
impact or the injurious effect on the other spouse need not
be enquired into or considered. In such -cases, the cruelty
will be established if the conduct itself is proved or
admitted".
F
33. It was further stated:

"Each case depends on its own facts and must be judged .
on these facts. The concept of cruelty has varied from time
to time, from place to place and from individual to G
. -1 individual in its application according to social status of the
persons involved and their economic conditions and other
matters. The question whether the act complained of was
a cruel act is to be determined from the whole facts and
the matrimonial relations between the parties. In this H
SUPREME COURT REPORTS [2008] 15 S.C.R

A connection, the culture, temperament and status in life and
. many other things are the factors which have to be
cqosidered.'

· The legal concept of cruelty which is not defined by
the statute is generally described as conduct of such
B
character as to have caused danger to ltfe, limb or health
, ,(bodily and mental) or to give rise to reasonable
1
apprehension of such danger. The general rule in all
. questkms of cruelty is that the whole matrimonial relations
C , ;.,~ must be considered, that rule is of a special value when
. the cruelty consists not of violent act but of injurious
reproaches, complaints, accusations or taunts. It may be
mental such as indifference and frigidity towards the wife,
denial of a company to her, hatred and abhorrence for wife,
or physical, like acts of violence and abstinence from
D .sexual intercourse without reasonable cause. It must be
.. proved that one partner in the marriage however mindless
· . 9f the consequences has behaved in a way which the other
spouse could not in the circumstances be called upon to
· endure, and that misconduct has caused injury to health
. E or a reasonable apprehension of such injury. There are two
sides to be considered in case of apprehension of such
injury. There are two sides to be considered in case of
· cruelty. From the appellants, ought this appellant to be
called on to endure the conduct? From the respondent's .;
.;
F side, was this conduct excusable? The Court has then to \

decide whether the sum total of the reprehensible conduct
was cruel. That depends on whether the cumulative conduct
was sufficiently serious to say that from a reasonable
person's point of view after a consideration of any excuse
G which the respondent might have in the circumstances, the
conduct is such that the petitioner ought not be called upon t-- .
to' endure."

34. Recently, in Samar Ghosh v. Jaya Ghosh, (2007) 4
SCC 511, this Court held;
H
SUMAN KAPUR v. SUDHIR KAPUR [C.K. THAKKER, J.] 991'

"No uniform standard can ever be laid down for guidance, A
yet we deem it appropriate to enumerate some instances
of human behavior which may be relevant in dealing with
the cases of 'mental cruelty'. The instances indicated in the
succeeding paragraphs are only illustrative and not
exhaustive. 8
(i) 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.
c

(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 0
up with such conduct and continue to live with other
pCl.rty.

(iii) Mere coldness ·or lack of affection cannot amount
to cruelty, fr~quent rudeness, of language, petulance
E
of manner, indifference and neglect may reach such
a degree that it makes the married life for the other
spouse absolutely intolerable.

(iv) Mental Cruelty is a state of mind. The feeling of
deep anguish, disappointment, frustration in one F
spouse caused by the conduct of other for a long
time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating
treatment calculated to torture, discommode or G
render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behavior of one
spouse actually affecting physical and mental health
of the other sp;Ouse. The treatment complained of
H
992 SUPREME COURT REPORTS [2008] 15 S.C.R.

A and the resultant danger or apprehension must be
. very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect,
indifference or total departure from the normal .
standard of conjugal kindness causing injury to
B
mental health or deriving sadistic pleasure can also
amount to mental cruelty.

(viii) The conduct must be much more than jealousy,
selfishness, possessiveness, which causes
c unhappiness and dissatisfaction and emotional
upset may not be a ground for grant of divorce on
the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and
D 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
E not amount to cruelty. The ill-conduct mus.t be
persistent for a fairly lengthy period, wher~ the
relationship has deteriorated to an extent that
because of the acts and behavior of a spouse,.the
wronged party finds it extremely difficult to live with
F the other party any longer, may amount to mental
· cruelty.

(xi) If a husband submits himself for an operation of
sterilization
.
without medical reasons and without the
~

G 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 rnental cruelty.
H
.- SUMAN KAPUR v. SUDHIR KAPUR [C.K. THAKKER, J.J 993

(xii) Unilateral decision of refusal to have intercourse for A
considerable period without there being any
physical incapacity or valid reason may amount to
mental cruelty.

(xiii) Unilateral decision of either husband or wife after B
marriage not to have child from the marriage may
amount to cruelty.

(xiv) Where there has been a long period of continuous
separation, it may fairly be concluded that the
matrimonial bond is beyond repair. The marriage C
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. In such like situations, it D
may lead to mental cruelty".

35. Now, coming to the facts of the case, from the evidence
of Smt. Vimal Kapur (mother-in-law of appellant-wife and
mother of respondent-husband) who is examined as PW 1 and E
Sudhir Kapur, husband-PW 2, the trial Court held that the wife
was interested in her career only and she had neglected
towards matrimonial obligations and exercise of conjugal rights
by the husband. The trial Court also held that termination of
pregnancy by wife was without consent or even knowledge of F
the husband which was in the nature of mental cruelty. But
keeping the said element of mental cruelty aside, the High
Court was convinced that the allegation of mental cruelty
towards the husband by the wife was clearly established from
the evidence on record adduced by the respondent-husband.
The High Court noted that the appellant-wife was constantly and G
continuously avoiding staying with the husband and preventing
him to have matrimonial relations. From the letters of the
appellant-wife also, the High Court held that it was the wife who
had stated that she had completely lost interest in the marriage
and she was willing to get divorce. The High Court further noted H
994 SUPREME COURT REPORTS [2008] 15 S.C.R. ..
;..

A that the appellant-wife sent a notice through her advocate to the •
~

respondent-husband during the pendency of mediation
proceedings in the High Court wherein she alleged that the
respondent was,havirig another wife in USA whose identity was
concealed. This was based on the fact that in his income-tax
8 return, the husband mentioned the Social Security Number of
his wife as 476-15-6010, a number which did not belong to the
appellant-wife, but to some American lady (Sarah -~
Awegtalewis). The High Court, ho~ever, recorded a finding of
fact accepting the explanation of fhe husband that there was
c merely a typographical error in giving Sociai Security Number
allotted_ to the appellant which was 4 76-15-6030. Accordin'g to
the High Court, taking undue advantage of the error in Social
. Security Number, the appellant wife had gG>ne to the extent of
making serious allegation that the respondent had married to
an American woman whose Social Security Number was
D ~
wrongly typed in the income tax return of the respondent-
husband.

36. The High Court also observed that the appellant
wanted to pursue her professional career to achieve success.
E In her written statement itself, she had admitted that she was
very much interested in her career; that she was independent
since 1979 and she was keen to live independen't life.

37. The High Court also took a serious note of an entry in \>--
\....
F the personal diary of the appellant-wife dated September 14,
1986 wherein she stated;

"I said, "we started this journey as two individuals and if
you can do so fine otherwise forget and don't bring the
ghost of parents in between the two of us. He did not like
G the use of words .ghosts and first cursed my vocabulary and
· then he said "you do not have any, but I. have better ties".
At this I told him you are given these 15 days and you can
.,..
find another wife for yourself. He has this notion that he will
go to USA (NY) and I will stay with his parents and I told
H him I will not and he says this was the deal in July and when
lf'v1AN KAPUR v. SUDHIR KAPUR [C .K. THAKKER, J.J 995

I refuted he said "no you had promised". I told him you A
have just now paid the fine and you are again using the
same tricks again. Naturally,.he did not like and said to me
"I am not and have never with you played tricks". I said
sorry- I do not trust you any further and he said it is your
fault. It may now be my fault but I think it is just quits. I don't B
think I will write to anybody back in Delhi now for 15 days
,
~ and if I can find myself work here any kind".
·~
38. Fr~m the above letter, it is clear that the appellant-wife
had described the parents of the husband as 'ghost'.
c
39. In the letter dat~d June 21, 1988, she stated;

"I really wish you would understand my urge in pursuing my
freedom away from the hawk eyes of your mother, sister
and all other relatives. But, as I am not ready to share the D
economic gains of this job with you and other family
members. I don't expect either you or them to understand
my need and commitment for this job, or any job. I am
bound to cause friction with so many people around me- I
was at war with just you around me in Bombay."
E
40. In another letter, she stated that the respondent-
husband should not make a condition for the wife of living
together. She stated;

"I am not a good person to waste all your potential, F
emotion on. I do not deserve it.

...
Please do not make living together a condition for the
coming few months. And do not read from these lines that G
I do not miss you- I do so individually and circumstantially-
~ but as is my way of working I am not ready to stop myself
for bonds and I believe the same for you. I wish the best
and topmost for you-the most perfect, one can hope to be
H
996 SUPREME COURT REPORTS [2ooa1 1s s.cl

A and wish that nothing becomes a barrier between you and
you and your achievements. Even me. It will be best if we
could help each other constructively; I also believe that we
can do so- it is just that we believe in different things.

B
If possible, stand :out of all this mess and try to work the
· best possible solution for us and your family. I do want you
to remember that you are only one son and your family
commitments. I would honour- but not at the cost of my
c spiritual search in life."
/ •
41. She further said that the respondent-husband should
not bring her marital status preventing her from pursuing her
career in the name of marriage. She stated that when she was
0 unable to give even a child to the respondent-husband, up to
what stage, they should live together. She clarified that she did
not want to close her avenues in life at least at that stage. She
also did not want to forego her chances whatever she would
believe about her chances. She did not pelieve in love any
E more. She expressly stated that she did not believe in Indian
social value system and she was very happy in the foreign
country.

42. She stated;

F "Mujhe is vivah ke naam per apne _raste se mat roke. Ho
sakta he mein he galat hoon-per mujhe nahin lagta.
Dampati ke tarah hum saath ji /iye hein- purani quality
of life se kuch neechey hi star per jiye hein- ye aur koin
jaane ya na jaane- Cambridge school se ek dosre ko
bada hota dekh suman-sudhir achhey se jaante hein. Es
G
vivah mein aapko santan bhi na de saki- phir kahan tak
jaruri hai ki hum saath rahe? Aap mere vicharo se to
kabhi sahmat nahin honge per auron ki rai kar lein-jis
kisiki bhi- apni jindgi suljha /ein. Mujh se ye ummid
karma chod de ke kisi vyaktigat (per mujh se unrelated)
H
SUMAN KAPUR v. SUDHIR KAPUR [C.K. THAKKER, J.] 997

ya samajik karan se abhi mein apna rehne sochne ka A
tarika badloon. Jaisa maine pehle likha-jindagi ji kar
jaise bhi, job hi, jab bhi samajh aayega tabhi aayega,
jaise main apne liye chhot chahti hoon vaise he apni oar
se jitna mujhe adhikar hein aafJko bhi mukt karti hoon.
Meine to kareeb chheh page par hi ye patr samapt kar ~
diya-except for some help that I needed for car, etc-buy
your fax today was quite unsettling. I don't like to close my
avenues in life- at lease not yet. I was na·ive to believe
whatever I did for marriage as a constitution and marriage
to you. I am not ready to forgo my chances-whatever I c
believe to be chances for what I have experienced as
being married. I think the best alternative will be you stay
in India for some more time. Chances are that even if you
get an assignment outside Kansas we would be living
separately. So decide for yourself cause when time comes d
~ I am going to do so for myself. I will this time not make a
compromise and regret it a few months later and make
both our lives miserable. I have done that several times in
the past-at least you should have enough of it to stop trying
to push me against my belief.
E
My way of loving is not like that. I do not even believe
in love any more. There is no bigger lie that any one could
"""" tell another person. I do not even believe in the Indian
: ,....\ social value system. So I am better off being here away
from every person and every thing that I grew up with. F,
Whenever I have understood things to be a different shade
I will decide whether I want to be here or there."

43. The High Court, in contrast, referred to the letters
written by the respondent-husband. It noted that those letters
G'
were full of love and affection. According to the High Court, the
husband tried his level best to keep the marriage tie to subsist
.... and made all attempts to persuade the wife explaining and
convincing her about the sacred relations of husband and wife,
the need and necessity of child in their life and also feelings of
H
998 SUPREME COURT REPORTS [20081 15 s.c.R:

A his parents who wanted to become grand parents. According
to the High Court, however, nothing co_ uld persuade :the wife
. who was only after her career. In the light of the above facts and
circumstances, the Court held that the trial Court did riot commit
any error of fact or of law in passing .the decree for divorce on .
B the ground of mental cruelty. ' ·
,.
. ,
. 44. The High Court in paragra'ph 28 of the judgment stated;.

"Applying the above principles to the facts of the present
case, I feel the respondent has been able to establish and
C prove 'cruelty' under Section 13(1) (ia) of the }\ct. ·The
conduct bf the appellant has been examined above. I have
referred to the letters exchanged between the parties during
the period 1986 onwards till 1994. Some of the letters have
been written by the appellant herself. These letters reveal
·D the conflict and difference between the parties . The
present case also reveals that the respondent was
bending over his heels to placate and woo the appellant
till 1994 but thereafter gave up. The respondent was deeply
in love and was emotionally attached to her. ·He has
E however over the passage of time developed a hatred
. and ill-will for the appellant. There is no apparent ground
and reason for the same except the conduct of the
appellant."

F 45. We find no infirmity in the approach of the High Court.
The fin~ing relating to mental cruelty recorded by the trial Court
and confirmed ~y the High Court suffers from no infirmity and
we see no reason to interfere with the said finding.

46. The fact, however, remains and it has been brought to
G the notice of this Court that the respondent got re-married on
March 05, 2007 before the expiry of period of filing Special
Leave to Appeal to this Court under Article 136 of the
Constitution. It was also stated that a child was born from the
said wedlock on December 20, 2007. Thus, the marriage had
H been performed within a period of ninety days of the order
SUMAN KAPUR v. SUDHIR KAPUR [C.K. THAKKER, J.] 999

·impugned in the present appeal. A

47. Since, we are confirming the decree of divorce on the
ground of mental cruelty as held by both the courts, i.e. the trial
Court as we,11 as by the High Court, no relief can be granted so
far as the reversal of decree of the courts below is concerned.
8
At the same time,· however, in ou~ opinion, the respondent-
husband should not have re-married before the expiry of period
stipulated for filling Special Leave to Appeal in this Court by
the wife.

48. It is true that filing of appeal under Article 136 of the C
Constitution is not a right of the party. It is the discretion
conferred on this Court to grant leave to the applicant to file
appeal in appropriate cases. But, since the Constitution allows
a party to approach this Court within a period of ninety days
from an order passed by the High Court, we are of the view D
that no precipitate action could have been taken by the
respondent-husband by creating the situation of fait accompli.
Considering the matter in its entirety, though we are neither
allowing the appeal nor setting aside the decree of divorce
granted by the trial Court and confirmed by the appellate Court E
in favour of respondent-husband, on the facts and in the
circumstances of the case, in our opinion, ends of justice would
be met if we direct the respondent-husband to pay an ·amount
of Rs. Five lakhs to the appellant-wife. The said payment will
be made on or before 31st December, 2008. F

49. The appeal is disposed of accordingly. The parties will
bear their own costs all throughout.

- K.K.T. Appeal disposed of.