U. SREEversusU. SRINIVAS

                        [2012) 11 S.C.R. 256


A                             U. SREE
                                 v.
                             U. SRINIVAS
               (Civil Appeal Nos. 8927-8928 of 2012)
                       DECEMBER 11, 2012
B
        [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

        Hindu Marriage Act, 1955 - s.13(1)(ia) - Divorce - Grant
  of - In favour of husband - On ground of "mental cruelty" -
C Justification - Held: Justified - Respondent-husband, who
  pursued a career in music, clearly deposed about the
  constant and consistent ill-treatment meted out to him by the
  wife as she showed her immense dislike to his "sadhna"
  (routine practice and teaming of music under the guidance
o of his father who was a/so his "guru" in "the Guru-Sishya
  Parampara" i.e. the tradition of teacher and disciple), and
  exhibited total indifference and, in a way, contempt to the
  tradition of teacher and disciple - Graphical demonstration
  given by husband that the wife did not show the slightest
E concern for his public image on many occasions by putting
  him in a situation of embarrassment leading to humiliation -
  She made wild a/legations about conspiracy in the family of
  her husband to get him re-married for the greed of dowry
  without an iota of evidence on record to substantiate the same
F - This was an aspersion not only on the character of the
  husband but also a maladroit effort to malign the reputation
  of his family - Respondent-husband clearly proved his case
  of mental cruelty which was the foundation for seeking
  divorce.
G        Hindu Marriage Act, 1955 - s.25 - Permanent alimony -
    Grant of - Held: While granting permanent alimony, no
    arithmetic formula can be adopted - It shall depend upon the
    status of the parties, their respective social needs, the

H                               256
                U. SREE v. U. SRINIVAS                      257

financial capacity of the husband and other obligations - The A
duty of the Court is to see that the wife lives with dignity and
comfort and not in penury - The living need not be luxurious
but simultaneously the wife should not be left to live in
discomfort - .The Court has to act with pragmatic sensibility -
On facts, respondent-husband himself asserted that he had B
earned name and fame in the world of music and had been
performing concerts in various parts of India and abroad -
Regard being ,had to the status of the husband, the social
strata to which the parties belong and further taking note of
earlier orders of Supreme Court in this case, permanent c
alimony fixed at Rs.50 lacs, to be deposited before the trial
court, out of which Rs. 20 lacs to be kept in a fixed deposit in
the'name of the minor child of the parties in a nationalized
bank - Clarification given trat any amount deposited earlier
shall stand excluded.                                            D
      Practice and Procedure - Divorce petition by husband -
On ground of cruelty - Conclusion recorded by courts below
relating to desertion by the wife - Held: Uable to be overturned, .
since there was no prayer or pleading with regard to desertion
in the divorce petition.                                            E
     Evidence Act, 1872 - s.65 - Secondary evidence relating
to contents of a document - Admissibility - Discussed.

    Constitution of India, 1950 - Article 136 - Interference
under, with concurrent findings of fact - Scope - Discussed.       F
    The appellant-wife had instituted a petition under
Section 9 of the Hindu Marriage Act, 1955 for restitution
of conjugal rights against the respondent-husband. The
respondent-husband on the other hand filed a petition              G
under Sections 13(1)(ia), 26 and 27 of the Hindu Marriage
Act read with Section 7 of the Family Courts Act, 1984
inter alia praying for dissolution of marriage.

     The respondent-husband, in his petition for divorce           H
   258      SUPREME COURT REPORTS               [2012) 11 S.C.R.

A and while resisting the stand taken by the appellant-wife
    in her petition for restitution of conjugal rights, inter alia
    pleaded that after abandoning formal education, he
    pursued a career in music treating it as a concept of
  · 'bhakti' (devotion); that he had to continue his 'sadhana'
B (practice and learning of music) as a daily routine under
    the guidance of his father who was also his "guru" in "the
    Guru-Sishya Parampara" (tradition of teacher and
    disciple); that the aforesaid aspect of his life was not liked
    by his wife and she always interrupted the practice
c sessions hurling abuses at him; that despite his best
    efforts to make his wife understand the family tradition
    and show reverence to the seniors in the sphere of music,
    she remained obstinate in her attitude and chose to
    cause him not only embarrassment in public but also
    humiliation which affected his reputation and self respect
0
    and that she had communicated with her friends that she
    would like to see her husband behind bars on the ground
    of dowry harassment.

       The trial court held that the wife had treated the
E husband with cruelty; that she had not taken any steps
  for re-union and had deserted him for thirteen years
  without any valid reason and, hence, the husband was
  entitled for a decree of divorce and the wife was not
  entitled to have a decree for restitution of conjugal rights.
F The trial court, while passing the decree fc,>r dissolution
  of marriage, directed to pay permanent alimony of Rs. 5
  lacs each to the wife and the minor child.
      Dissatisfied, the appellant-wife preferred application
G in the High Court which affirmed the decree of
  dissolution of marriage. The High Court held that the
  material brought on record showed that the wife had
  gone to the parental home and made no efforts to get
  reunited with the husband and that her depositions were
H contradictory inasmuch as on one hand she had stated
               U. SREE v. U. SRINIVAS                   259

that she had been ill-treated and on the other that there A
was cordial relationship. The High Court referred to the
xerox copy of the letter Exhibit R-8 written in her
handwriting to her parents and held that when the said
letter was summoned from her father she stated that there
was no such letter and on that ground the admissibility B
_lNas called in question. The High Court held that when
the efforts were made to get the primary evidence and it
could not be obtained, the secondary evidence could be
adduced and that would be admissible under Section 65
of the Evidence Act. The English translation. of the said c
letter was marked as Exhibit R-9 which, according to the
High Court, indicated that the wife had clearly stated that
she had spoken ill of her mother-in-law and others and
had expressed her desire to seek divorce as she could
not stay any longer in the matrimonial home. It was held
                                                            0
by the High Court that the conduct of the wife clearly
established desertion and her behaviourial pattern
exhibited mental cruelty meted out to the husband. Apart
from concurring with the grant of permanent alimony, the
High Court further directed the respondent-husband to E
pay a sum of maintenance amounting to Rs.12,500/- to
the appellant-wife and the minor child.

    In the instant appeal, it was inter alia contended by
the appellant that Exh. R-8 and R-9 were not admissible
in evidence inasmuch as they could not be treated as           F
secondary evidence as envisaged under Section 65 of
the Evidence Act, 1872 and that the trial court as well as
the High Court had failed to appreciate that neither mental
cruelty nor desertion had been established as per the
I~.                                                            G
     Dismissing the appeals, the Court

      HELD: 1.1. Section 65 of the Evidence Act, 1872
· permits the parties to adduce secondary evidence, yet
  such a course is subject to a large number of limitations.   H
   260 - SUPREME COURT REPORTS                [2012] 11 S.C.R.

A In a case where the original documents are not produced
  at any time, nor has any factual foundation been laid for
  giving secondary evidence, it is not permissible for the
  court to allow a party to adduce secondary evidence.
  Thus, secondary evidence relating to the contents of a
B document is inadmissible, until the non-production of the
  original is accounted for, so as to bring it within one or
  other of the cases provided for in the section. The
  i;econdary evidence must be authenticated by
  foundational evidence that the alleged copy is in fact a
C true copy of the original. Mere admission of a document
  in evidence does not amount to its proof. Therefore, it is
  the obligation of the Court to decide the question of
  admissibility of a document in secondary evidence before
  making endorsement thereon. [Para 17] (276-F-G; 277-A-
D B]
       1.2. In the case at hand, the trial court has really not
  discussed anything relating to foundational evidence.
  The High Court has only mentioned that when the letter
  (alleged to. have been written by the wife to her father)
E was summoned and there was a denial, the secondary
  evidence is admissible. Such a view is neither legally
  sound nor in consonance with the pronouncements of
  this Court. Consequently, the photostat copy of the said
  letter is not admissible in evidence and the question as
F to whether the appellant had treated her husband with
  mental cruelty has to be dwelled upon, keeping the
  photostat copy of the said letter out of consideration.
  [Paras 18, 19] (277-C-E]
      Ashok Dulichand v. Madahav/a/ Dube· (1975) 4 SCC
G 664: 1976 (1) SCR 246; J. Yashoda v. K. Shobha Rani (2007)
  5 SCC 730: 2007 (5) SCR 367; M. Chandra v. M.
  Thangamuthu and Other (2010) 9 sec 712: 2010 (11) SCR
  38 and H. Siddiqui (Dead) by Lrs. v. A. Ramalingam (2011)
H 4 sec 240: 2011 (5) SCR 587 - relied on.
               U. SREE v. U. SRINIVAS                    261

     2.1. The conception of cruelty has inseparable nexus       A
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,
temperament and emotions that have been conditioned
by the social status. When the evidence brought on              B
record clearly establish a sustained attitude of causing
humiliation and calculated torture on the part of the wife
to make the life of the husband miserable, it would
amount to mental cruelty. Emphasis is to be laid on the
behavioral pattern of the wife whereby a dent is created        c
in the reputation of the husband, regard being had to the
fact that reputation is the salt of life. [Para 22) [279-A·EJ

     2.2. In the case at hand, the husband has clearly
deposed about the constant and consistent ill-treatment
meted out to him by the wife inasmuch as she had shown          D
her immense dislike to his "sadhna" in music and had
exhibited total indifference and, in a way, contempt to the
tradition of teacher and disciple. It has graphically been
demonstrated that she had not shown the slightest
concern for the public image of her husband on many an          E
occasion by putting him in a situation of embarrassment
leading to humiliation. She has made wild allegations
about the conspiracy in the family of her husband to get
him re-married for the greed of dowry and there is no iota
of evidence on record to substantiate the same. This, in        F
fact, is an aspersion not only on the character of the
husband but also a maladroit effort to malign the
reputation of the family. The trial court as well as the High
Court have clearly analysed the evidence and recorded
a finding that the wife had treated the husband with            G
mental cruelty. True it is, there is some reference in that
regard to the photostat copy of the letter (allegedly written
by the wife to her father) which is not admissible in
evidence but the other evidence brought on record
clearly support the findings recorded by the Family             H
    262       SUPREME COURT REPORTS           [2012] 11 S.C.R.


A Judge and the High Court. [Para 23] [279-E-F; 280-A-C]

       Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 : 2007
  (4) SCR 428; Ravi Kumar v. Julmidevi (2010) 4 SCC 476:
  2010 (2) SCR 545 and Vishwanath Agrawal, s/o Sitaram
B Agrawal v. Sar/a Vishwanath Agrawal (2012) 7 SCC 288 -
  relied on.

         Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa
    Yasikhan (1981) 4 SCC 250: 1982 (1) SCR 695; Shobha
    Rani v. Madhukar Reddi (1988) 1 SCC 105: 1988 (1) SCR
C   1010; V. Bhagat v. D. Bhagat (1994) 1 SCC 337: 1993 (3)
    Suppl. SCR 796; Vijaykumar Ramchandra Bhate v. Nee/a
    Vijaykumar Bhate (2003) 6 SCC 334: 2003 (3) SCR 607; A.
    Jayachandra v. Aneel Kaur (2005) 2 SCC 22: 2004 (6)
    Suppl. SCR 599; Vinita Saxena v. Pankaj Pandit (2009) 1
D   SCC 422; Suman Kapur v. Sudhir Kapur (2009) 1 SCC 422:
    2008 (15) SCR 972; N.G. Dastane v. S. Dastane (1975) 2
    SCC 326: 1975 (3) SCR 967; Rajani v. Subramaniam AIR
    1990 Kera la 1; Parveen Mehta v. lnderjit Mehta (2002) 5
    SCC 706; Gananath Pattnaik v. State of Orissa (2002) 2 SCC
E   619: 2002 (1) SCR 845; Manisha Tyagi v. Deepak Kumar
    (2010) 4 sec 339: 2010 (2) SCR 554; Sujata Uday Patil v.
    Uday Madhukar Patil (2006) 13 SCC 272: 2006 (10) Suppl.
    SCR 955; Chanderka/a Trivedi v. Dr. S.P. Trivedi (1993) 4
    SCC 232: 1993 (1) Suppl. SCR 796 and Pranay Majumdar
F   v. Bina Majumdar (2007) 9 SCC 217: 2007 (1) SCR 1089 -
    referred to.

          Sheldon v. Sheldon (1966) 2 WLR 993 - referred to.

      Halsbury's Laws of England, 4th Edn., Vol. 13, para
G 623 - referred to.

       3.1. The jurisprudence under Article 136 stands out
  to ~e extremely wide but that does not, however, warrant
  intervention in a situation having concurrent set of facts
H and an appeal therefrom on the factual issue. The article
              U. SREE v. U. SRINIVAS                   263

has been engrafted by the foundi11g fathers of the            A
Constitution for the purposes of avoiding mischief and
injustice on the wrong assumption of law. The justice
deliver}' system of the country prompts this Court to
interfere under Article 136 of the Constitution when the
need of the society stands established and the judgment,      8
if left outstanding, would not only cream prejudice but
would also have an otherwise adverse effect on the
society. [Para 25] [280-G; 281-A-C]

    3.2. When there is infirmity in the decision because
of excluding, ignoring and overlooking the abundant           C
materials and the evidence, if considered in proper
perspective, would have led to conclusion contrary to the
one taken by both the High Court as well as the fora
below, it would be open to this Court to interfere with the
concurrent findings of fact. [Para 27] [282-F]                D

      3.3. In the case at hand, the finding returned by the
trial court which has been given the stamp of approval
by the High Court relating to mental cruelty cannot be
said to be in ignorance of material evidence or exclusion     E
of pertaining materials or based on perverse reasoning.
The conclusion on that score clearly rests on proper
appreciation of facts and, hence, the same is concurred
with. [Para 28] [282-G; 283-A]

    State of U.P. v. Babu/ Nath (1994) 6 sec 29: 1994 (2) F
Suppl. SCR 598; Bharat Coking Coal Ltd. v. Karam Chand
Thapar & Bros. Pvt. Ltd. (2003) 1 SCC 6: 2002 (4) Suppl.
SCR 165; Ganga Kumar Srivastava v. State of Bihar (2005)
6 SCC 211 and Dubaria v. Har Prasad and Another (2009)
9 SCC 346: 2009 (14) SCR 348 - relied on.                 G

    4. In regard to the finding recorded by the trial court
and the High Court relating to desertion by the wife, as
the factual matrix would reveal, both the Courts
proceeded on the base that the wife had not endeavored        H
    264    SUPREME COURT REPORTS            [2012] 11 S.C.R.


A to reunite herself with the husband and there had long
  lapse of time since they had lived together as husband
  and wife. On the aforesaid foundation, conclusion has
  been drawn that there is an animus descerendi on the
  part of the wife. From the divorce petition, it is evident
8 that there is no pleading with regard to desertion. The
  petition was not filed seeking divorce on the ground of
  desertion but singularly on cruelty. In the absence of a
  prayer in that regard, the conclusion arrived at as regards
  desertion by the trial court which has been concurred
C with by the High Court is absolutely erroneous and,
  accordingly, the same is overturned. [Para 29] [283-B-E]

       5. The husband has proved his case of mental
  cruelty which was the foundation for seeking divorce.
  Therefore, despite dislodging of the finding of desertion,
D it is held that the respondent husband has rightly been
  granted a decree of divorce. The decree for dissolution
  of marriage is affirmed on the ground of mental cruelty.
  [Paras 30, 35] [283-F; 286-C]

E      6.1. As a decree is passed, the wife is entitled to
  permanent alimony for her sustenance. While granting
  permanent alimony, no arithmetic formula can be
  adopted as there cannot be mathematical exactitude. It
  shall depend upon the status of the parties, their
F respective social needs, the financial capacity of the
  husband and other obligations. The Court is required to
  take note of the fact that the amount of maintenance fixed
  for the wife should be such as she can live in reasonable
  comfort considering her status and the mode of life she
  was used to when she lived with her husband. At the
G same time, the amount so fixed cannot be excessive or
  affect the living condition of the other party. [Para 33]
  [285-8-E]
      6.2. In the case at hand, the respondent himself has
H asserted that he has earned name and fame in the world of
              U. SREE v. U. SRINIVAS                  265

music and has been performing concerts in various parts A
of India and abroad. The duty of the Court is to see that the
wife lives with dignity and comfort and not in penury. The
living need not be luxurious but simultaneously she
should not be left to live in discomfort. The Court has to act
with pragmatic sensibility. Regard being had to the status B
of the respondent-husband, the social strata to which the .
parties belong and further taking note of the orders of this
Court on earlier occasions, it is appropriate to fix the
permanent alimony at Rs 50 lacs which shall be deposited
before the trial court out of which Rs.20 lacs shall be kept c
in a fixed deposit in the name of the child in a nationalized
bank which would be utilised for his benefit. The deposit
shall be made in such a manner so that the wife would· be
in a position to draw maximum quarterly interest. It is
clarified that any amount deposited earlier shall stand 0
excluded. [Para 34] [285-E-F-G; 286-A-C]

    Vinny Parmvir Parmar v. Parmvir Parmar (2011) 13 SCC
112: 2011 (9) SCR 371 - relied on.

                    Case Law Reference:                     E
   1.975 (3) SCR 967         referred to       Para 10

   AIR 1990 Kerala 1         referred to       Para 10

   (2002) 5 sec 106           referred to   Para 10, 22      F

   2002 (1) SCR 845          referred to       Para 10

   1988 (1) SCR 1010          referred to      Para 10

   2010 (2) SCR 554           referred to      Para 10      G

   2006 (10) Suppl. SCR 955referred to         Para 10

   1993 (1) Suppl. SCR 796 referred to         Para 10

   2007 (1) SCR 1089          referred to      Para 10       H
    266    SUPREME COURT REPORTS              [2012) 11 S.C.R.


A     1976 (1) SCR 246           relied on         Para 14

      2007 (5) SCR 367           relied on     Para 15, 22

      2010 (11) SCR 38           relied on         Para 16

B     2011 (5) SCR 587           relied on         Para 17

      2007 (4) SCR 428           relied on         Para 20

      2010 (2) SCR 545           relied on         Para 21

c     (2012) 1 sec 288           relied on         Para 22

      1982 (1) SCR 695          referred to        Para 22

      (1966) 2 WLR 993          referred to        Para 22
D     1993 (3) Suppl. SCR 796 referred to          Para 22

      2003 (3) SCR 607          referred to        Para 22

      2004 (6) Suppl. SCR 599 referred to          Para 22
E
      (2009) 1 sec 422          referred to        Para 22

      2008 (15) SCR 972         referred to        Para 22

      1994 (2) Suppl. SCR 598   relied on          Para 24
F
      2002 (4) Suppl. SCR 165   relied on          Para 25

      (2005) s sec 211          relied on          Para 26

      2009 (14) SCR 348         relied on          Para 27
G
      2011 (9) SCR 371          relied on          Para 33

        CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
    8927-8928 of 2012.
H
                U. SREE v. U. SRINIVAS                        267

    From the Judgment & Order dated 26.09.2011 of the High            A
Court of Madras in MP of No. 1 of 2010, CMA No. 1656 of
2010, CMA No. 1657 of 2010.
     K. Sarada Devi for the Appellant.

    K.Ramamoorthy, N. Shoba, Sri ~am J. Thalapathy, S.                B
Subbaiah, V. Adihmoolam for the Respondent.

    The Judgment of the Court was delivered by

     DIPAK MISRA, J. 1. Leave granted.
                                                                      c
    2. The appellant-wife instituted F.C.O.P. No. 568 of 1997
under Section 9 of the Hindu Marriage Act, 1955 (for brevity
'the Acf) in the Principal Family Court, Chennai for restitution
of conjugal rights. The respondent-husband filed F.C.0.P. No.
805 of 1998 under Sections 13(1 )(i-a), 26 and 27 of the Act          D
read with Section 7 of the Family Courts Act, 1984 praying for
dissolution of marriage, custody of the child and return of
jewellery and other items. The learned Family Judge jointly tried
both the cases and, on the basis of the evidence brought on
record, dismissed the application for restitution of conjugal         E
rights preferred by the wife and allowed the petition of the
husband for dissolution of marriage and held that the child would
remain in the custody of the mother on the principle that welfare
of the child is paramount, and further the husband was not
entitled to return of jewels or any other item from the wife in the   F
absence of any cogent evidence in that regard. The learned
Family Judge, while passing the decree for dissolution of
marriage, directed to pay permanent alimony of Rs. 5 lacs each
to the wife and her minor son within a month.

     3. Being dissatisfied by the common order, the appellant-        G
wife preferred C.M.A. No. 1656 of 2010 and C.M.A. No. 1657
of 2010 in the High Court of Judicature at Madras and the
Division Bench concurred with the conclusion as regards the
decree of dissolution of marriage as a consequence of which
hoth the aooeals had to meet the fate of dismissal. However,          H
    268      SUPREME COURT REPORTS                 [2012] 11 S.C.R.

A the Bench, apart from concurring with the grant of permanent
  alimony, directed the respondent-husband to pay a sum of
  maintenance amounting to Rs.12,500/- to the appellant-wife and
  her son from the date of order passed by the Chief Metropolitan
  Magistrate at Hyderabad till the date of the order passed by
B the High Court. Hence, the present two appeals have been
  preferred by special leave assailing the common judgment
  passed by the High Court in both the appeals.

          4. The facts requisite to be stated for adjudication of the
    appeals are that the marriage between the appellant and the
C   respondent was solemnized on 19.11.1994 at Tirupathi
    according to Hindu rites and customs. After entering into
    wedlock, they lived together at Vadapalani, Chennai. As
    tradition would warrant, she went to her parental home for
    delivery where a male child was born on 30th of May, 1995.
D   The respondent celebrated the child's birth in his in-law's house
    and thereafter, the wife stayed with her parents for sometime.
    She returned to Chennai on 4.10.1995 and there she lived with
    her husband till 3.1.1996. The case of the wife in her application
    for restitution of marriage is that on 3.1.1996, her father-in-law,
E   without her consent, took her to her parental home and,
    thereafter, the husband without any justifiable reason withdrew
    from her society.· All er.arts made by her as well as by her
    parents to discuss with her husband and his family members
    to find out a solution went in vain. In this backdrop, a prayer
F   was made for restitution of conjugal rights.

         5. The husband resisted the aforesaid stand contending,
  inter alia, that there was total incompatibility in the marital
  relationship inasmuch as she found fault with his life style, his
  daily routine, his likes and dislikes and picked up quarrels on
G trivial issues. She threw tantrums only with the exclusive purpose
  that she should dominate the relationship and have her own way.
  At the time of practising and learning music in the presence of
  his father, who was also his "Guru", she hurled abuses and
  screamed which invariably followed with arguments and
H quarrels. Though she was expected, as per the customs, to
                  U. SREE v. U. SRINIVAS                       269
                     [DIPAK MISRA, J.]
 show respect towards elders and to the senior artists, yet,           A
 throwing all traditional values to the wind, she would walk away
 by creating a scene to his utter embarrassment. His public
 image was totally ruined and reputation was mutilated. It was
 also alleged that she called her parents and threatened to
 initiate proceedings under the Indian Penal Code, 1860 with           B
 the help of her father, who was an I.AS. officer in the Vigilance
 Department in the Government of Andhra Pradesh. With the
 efflux of time, the discord aggravated and the wife became
 more aggressive and did not allow her husband to go near her
 or the child. On 3.1.1996, when the wife expressed her desire         c
 to go to her parental home, he could not dare to object and she
 went with costly gifts received by him in India and abroad in
 recognition of his performance in music. Regard being had to
 the physical safety of the wife and the child, he requested his
 father to escort them to/Hyderabad. While she was at                  0
 Hyderabad, she spread rumours among the relatives and
 friends pertaining to his fidelity, character and habits. It was
 further asserted by the husband that she had filed the petition
 only to harass him and, in fact, the manner in which he had been
 treated clearly exhibited mental cruelty and, therefore, the said     E
 relief should not be granted. It was averred that in view of the
 treatment meted out to the husband, dissolution of marriage
 was the only solution and not restitution of conjugal rights.

        6. The respondent, in his petition for divorce, pleaded that
  after abandoning formal education, he pul"Sued his career in         F
  music treating it as a concept of 'bhakti' or devotion. He had
· to continue his 'sadhana' as a daily routine under the guidance
  of his father as it was necessary to understand the nuances and
  the subtleties of music which could only be gathered by
  experience and acquisition of knowledge at the feet of a "guru"      G
  and also to keep alive "the Guru-Sishya Parampara". The
  aforesaid aspect of his life was not liked by his wife and she
  always interrupted hurling abuses at him. Despite his best efforts
  to make his wife understand the family tradition and show
  reverence to the seniors in the sphere of music, she remained        H
    270       SUPREME COURT REPORTS                  (2012) 11 S.C.R.


A obstinate in her attitude and chose to walk away causing him
  not only embarrassment in public but also humiliation which
  affected his reputation and self respect. That apart, whenever
  the husband visited her at the parental home, he was deprived
  of conjugal rights and physically prevented from playing with the
B child. In spite of his sacrifice and efforts to adjust with her mental
  attitude, she remained adamant and her behavioural pattern
  remained painfully consistent. Gradually, her behaviour became
  very cruel and, eventually, he was compelled to file a case for
  judicial separation to which, as a counterblast, she filed a case
c for restitution of conjugal rights. She had communicated with
  her friends that she would like to see her husband behind bars
  on the ground of dowry harassment. She had also threatened
  that if he took part in any musical concert at Hyderabad, his
  life shall be endangered. Put in such a situation, left with no
  other alternative, he was compelled to file a petition for
0
  dissolution of marriage.

          7. As the factual narration would unfurl, the wife in the
    written statement asserted that she was aware of the
    importance of music, its traditional values and clearly
E   understood the devotion and dedication as she herself was a
    ·veena' player and because of her sacrifice, her husband had
    gained reputation and popularity which also enhanced his
    financial status, but, with the rise, he failed to perform his duties
    as a husband. She denied the interruption in the practice
F   sessions and controverted the factum of maltreatment. It was
    averred that as the husband had gained reputation, his parents
    and other relatives thought of a second marriage so that he
    could get enormous dowry. She denied the scandalous
    allegations and stated that she was proud of her husband's
G   accomplishments. She justified her filing of petition before the
    Chief Metropolitan Magistrate for grant of maintenance as he
    was absolutely careless and negligent to look after her and the
    child. It was further pleaded that the grounds mentioned in the
    petition were vexatious and frivolous and, therefore, there was
H   no justification for grant of a decree of divorce.
                 U. SREE v. U. SRINIVAS                        271
                    [DIPAK MISRA, J.]
     8. The learned Family Judge framed seven issues and, A
considering the oral and documentary evidence brought on
record, came to hold that the wife had treated the husband with
cruelty; that she had not taken any steps for re-union and had
deserted him for thirteen years without any valid reason and,
hence, the husband was entitled for a decree of divorce and B
she was not entitled to have a decree for restitution of conjugal
rights. The learned Family Judge directed that the custody of
the child should remain with the mother and the husband had
miserably failed to make out a case for return of jewels and
other items. He granted permanent alimony as stated earlier. c

     9. Being grieved by the aforesaid decision of the learned
Family Judge, the wife preferred two appeals. On behalf of the
appellant-wife, it was urged before the High court that the
judgment and decree passed by the Family Court regarding
grant of divorce was passed on assumptions and                         D
presumptions; that she had suffered immense humiliation and
hardship at the hands of the family members of the husband
but the Family Court did not appreciate the said facet in proper
perspective; that the finding relating to desertion by the wife was
contrary to the evidence on record and, in fact, it was the case       E
that the husband had left the wife in the lurch at her parental
home and did not think for a moment to bring her back; that
the allegation with regard to the interruption in the music learning
sessions and her dislike of her husband had been deliberately
stated to make out a case of mental cruelty; that certain              F
documents had been placed reliance upon by the learned
Family Judge though they were not admissible in evidence and
further the documents produced by the wife had not been
properly appreciated and dealt with; and that the court below
would have been well advised, in the obtaining factual matrix,         G
to direct restitution of conjugal rights. It is worth noting that
alternatively it was urged that the trial Court had committed an
error in granting permanent alimony of Rs. 10 lacs in tote,
 regard being had to the· income of the husband.
                                                                       H
    272        SUPREME COURT REPORTS               [2012] 11 S.C.R.

A         10. In appeal, the High Court, after noting the respective
    contentions advanced by the learned counsel for the parties,
    proceeded to appreciate the essential ingredients which are
    necessary to be established to sustain a petition under Section
    9 of the Act. After referring to certain decisions in the field and
    the concept of mental cruelty as stated in Halsbury's Laws of
8
    England, 4th Edn., Vol. 13, para 623 and American
    Jurisprudence and the dictum lald down in N.G. Dastane v. S.
    Dastane 1, Rajani v. Subramaniarn2, Parveen Mehta v. lndeljit
    Mehta 3, Gananath Pattnaik v. State of Orissa4, Shobha Rani
    v. Madhukar Reddi5 , Manisha Tyagi v. Deepak Kuma~.
C   Sujata Uday Patil v. Uday Madhukar Pqti/7, Chanderkala
    Trivedi v. Dr. S.P. Trivedi-a and Pranay Majumdar v. Bina
    Majumdar9, 1he High Court came to hold that the material
    brought on record showed that the wife had gone to the parental
    home on 3.1.1996 and made no efforts to get reunited with the
D   husband and, as per the evidence on record, she had admitted
    in the testimony recorded in O.P. No. 568 of 1995 that the
    relations between her and her husband were cordial till she left
    the matrimonial home. The High Court found that her
    depositions were contradictory inasmuch as on one hand she
E   had stated that she had been ill-treated and on the other that
    there was cordial relationship. As is noticeable, the High Court
    referred to the xerox copy of the letter Exhibit R-8 dated
    18.10.1995 written in her handwriting to her parents and
    observed that when the said letter was summoned from her
F   father she stated that there was no such letter and on that

    1.   (1975) 2 sec 326.
    2.   AIR 1990 Kerala 1.
    3.   (2002) s sec 100.
G 4. (2002) 2 sec 619.
    5.   (1988) 1 sec 105.
    0.   (201 o) 4 sec 339.
    1.   (2000) 13 sec 212.
    s.   (1993) 4 sec 232.
H 9. (2007) 9 SCC217.
                U. SREE v. U. SRINIVAS                       273
                   [DIPAK MISRA, J.] .
ground the admissibility was called in question. The High Court A
opined that when the efforts were made to get the primary
evidence and it could not be obtained, the secondary evidence
could be adduced and that would be admissible under Section
65 of the Evidence Act. Be it noted, the English translation of
the said letter was marked as Exhibit R-9 which indicated that B
the wife had clearly stated that she had spoken ill of her mother-
in-law and others and had expressed her desire to seek
divorce as she could not stay any longer in the matrimonial
home. It was observed by the Bench that the conduct of the wife
clearly established desertion and her behavio!lrial pattern c ·
exhibited mental cruelty meted out to the husband. The High
Court also took note of the fact that a stage had reached where
it had become well nigh impossible for the couple to live
together. Regard being had to the totality of the circumstances,
the High Court gave the stamp of approval to the common D
judgment and decree passed by the learned Family Court.
      11. We have heard Mrs. K. Sarada Devi, learned counsel
for the appellant, and Mr. K. Ramamoorthy, learned senior
counsel for the respondent. It is contended by Mrs. Sarada Devi
that the learned Family Judge as well as the High Court had          E
failed to appreciate that neither mental cruelty nor desertion had
been established as per the law. It is contended by her that Exh.
R-8 and R-9 were not admissible in evidence inasmuch as they
could not be treated as secondary evidence as envisaged
under Section 65 of the Evidence Act. It is further urged that       F
the whole decision for granting divorce and denying restitution
of conjugal rights has been ba~ct regard being had to the total
break down of marriage but the said ground is not a legally
permissible one to grant divorce.
                                                                     G
     12. Mr. K. Ramamoorthy, learned senior counsel appearing
for the respondent, per contra, would submit that the said
observation is one of the facets, but the High Court has, after
due deliberations, returned findings relating to cruelty and
                                                                     H
    274       SUPREME COURT REPORTS                [2012] 11 S.C.R.


A desertion and the same being founded on proper appreciation
  of the material on record, this Court should not interfere in
  exercise of appeal entertained by grant of leave under Section
  136 of the Constitution of India.
B       13. At this juncture, we may note with profit that as a matter
  of fact, the High Court has observed that it has become well
  nigh impossible for the husband and the wife to live together
  and the emotional bond between the parties is dead for all
  purposes. We have noted this aspect for completeness, but we
  will not address the said facet and will restrict our delineation
C only towards the justifiability of the conclusions pertaining to
  mental cruelty and desertion.

        14. Before we dwell upon the tenability of the conclusions
  of desertion and mental cruelty, we think it condign to deal with
D the submission whether the photostat copy of the letter alleged
  to have been written by the wife to her father could have been
  admitted as secondary evidence. As the evidence on record
  would show, the said letter was summoned from the father who
   had disputed its existence. The learned Family Court Judge as
E well as the High Court has opined that when the person is in
  possession of the document but has not produced the same,
   it can be regarded as a proper foundation to lead secondary
  evidence. In this context, we may usefully refer to the decision
  in Ashok Dulichand v. Madahav/al Dube 10 wherein it has been
F held that according to clause (a) of Section 65 of the Indian
  Evidence Act, secondary evidence may be given of the
  existence, condition or contents of a document when the
  original is shown or appears to be in the possession or power
  of the person against whom the document is sought to be
G proved, or of any person out of reach of, or not subject to, the
  process of the court, or of any person legally bound to produce
  it, and when, after the notice mentioned in Section 66, such
  person does not produce it. Thereafter, the Court addressed
  to the facts of the case and opined thus: -
H 1o. c1 s1s1 4 sec 664.
                 U. SREE v. U. SRINIVAS                      275
                    [DIPAK MISRA, J.]
     "In order to bring his case within the purview of clause (a) A
     of Section 65, the appellant filed applications on July 4, .
      1973, before Respondent 1 was examined as a witness,
     praying that the said respondent be ordered to produce
     the original manuscript of which, according to the appellant,
      he had filed photostat copy. Prayer was also made by the B
     appellant that in case Respondent 1 denied that the said
     manuscript had been written by him, the photostat copy
      might be got examined from a handwriting expert. The
      appellant also filed affidavit in support of his applications.
      It was, however, nowhere stated in the affidavit that the C
      original document of which the photostat copy had been
     filed by the appellant was in the possession of Respondent
      1. There was also no other material on the record to
      indicate that the original document was in the possession
      of Respondent 1. The appellant further failed to explain as
      to what were the circumstances under which the photostat 0
      copy was prepared and who was in possession of the
      original document at the time its photograph was taken.
      Respondent 1 in his affidavit denied being in possession
      of or having anything to do with such a document."
                                                                     E
Be it noted, in this backdrop, the High Court had recorded a
conclusion that no foundation had been laid by the appellant
for leading secondary evidence in the shape of the photostat
copy and this Court did not perceive any error in the said
analysis.                                                            F
    15. In J. Yashoda v. K. Shobha Ram11 , after analyzing the
language employed in Sections 63 and 65 (a), a two-Judge
Bench held as follows:-
     "Section 65, hoV{ever permits secondary evidence to be        G
     given of the existence, condition or contents of documents
     under the circumstances mentioned. The conditions laid
     down in the said section must be fulfilled before secondary

11. c2007) 5 sec 730.                                               H
    276       SUPREME COURT REPORTS                 [2012] 11 S.C.R.


A         evidence can be admitted. Secondary evidence of the
          contents of a document cannot be admitted without non-
          production of the original being first accounted for in such
          a manner as to bring it within one or other of the cases
          provided for in the section."
B       16. In M. Chandra v. M. Thangamuthu and Other12 , It has
    been held as follows:-

          "It is true that a party who wishes to rely upon the contents
          of a document must adduce primary evidence of the
c         contents, and only in the exceptional cases will secondary
          evidence be admissible. However, if secondary evidence
          is admissible, it may be adduced in any form in which it
          may be available, whether by production of a copy,
          duplicate copy of a copy, by oral evidence of the contents
D         or in another form. The secondary evidence must be
          authenticated by foundational evidence that the alleged
          copy is in fact a true copy of the original. It should be
          emphasised that the exceptions to the rule requiring
          primary evidence are designed to provide relief in a case
E         where a party is genuinely unable to produce the original
          through no fault of that party."

       17. Recently, in H. Siddiqui (Dead) by Lrs. v. A.
  Ramalingam 13 , while dealing with Section 65 of the Evidence
  Act, this Court opined though the said provision permits the
F parties to adduce secondary evidence, yet such a course is
  subject to a large number of limitations. In a case where the
    original documents are not produced at any time, nor has any
  factual foundation been laid for giving secondary evidence, it
  is not permissible for the court to allow a party to adduce
G secondary evidence. Thus, secondary evidence relating to the
  contents of a document is inadmissible, until the non-production
  of the original is accounted for, so as to bring it within one or

    12. c201oi g sec 112.
H 13. c2011i 4 sec 240.
                 U. SREE v. U. SRINIVAS                        277
                    [DIPAK MISRA, J.]
other of the cases provided for in the section. The secondary          A
evidence must be authenticated by foundational evidence that
the alleged copy is in fact a true copy of the original. It has been
further held that mere admission of a document in evidence
does not amount to its proof. Therefore, it is the obligation of
the Court to decide the question of admissibility of a document        B
in secondary evidence before making endorsement thereon.

      18. In the case at hand, the learned Family Judge has really
not discussed anything relating to foundational evidence. The
High Court has only mentioned that when the letter was C
summoned and there was a denial, the secondary evidence is
admissible. In our considered opinion, such a view is neither
legally sound nor in consonance with the pronouncements of
this Court and, accordingly, we have no hesitation in dislodging
the finding on that score.
                                                                   D
      19. The next facet which is to be dwelled upon is whether
the appellant had treated her husband with mental cruelty. The
legal sustainability of the said conclusion has to be tested
keeping the photostat copy of the letter out of consideration.
At the very outset, we may state that there is no cavil over the E
proposition as to what cruelty includes. Regard being had to
the same, we shall refer to certain authorities.

    20. In Samar Ghosh v. Jaya Ghosh' 4 , a three-Judge
Bench, after dealing with the concept of mental cruelty, has           F
observed thus:-
     "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. G
     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

14. c2001i 4 sec s11.                                                  H
    278       SUPREME COURT REPORTS                [2012] 11 S.C.R.


A         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
B         remain static; it is bound to change with the passage of
          time, impact of modern culture through print and electronic
          media and value system, etc. etc. What may be mental
          cruelty now may not remain a mental cruelty after a
          passage of time or vice versa. There can never be any
          straitjacket formula or fixed parameters for determining
c         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 .... "

       21. In Ravi Kumar v. Ju/midev/15, this Court has expressed
D thus: -

          "In matrimonial relationship, cruelty would obviously mean
          absence of mutual respect and understanding between the.
          spouses which embitters.the relationship and often leads
E         to various outbursts of behaviour which can be termed as
          cruelty. Sometime cruelty in a matrimonial relationship may
          take the form of violence, sometime it may take a different
          form. At times, it may be just an attitude or an approach.
          Silence in some situations may amount to cruelty.
F      20. Therefore, cruelty in matrimonial behaviour defies any
  definition and its categories can never be closed. Whether the
  husband is cruel to his wife or the wife is cruel to her husband
  has to be ascertained and judged by taking into account the
  entire facts and circumstances of the given case and not by any
G predetermined rigid formula. Cruelty in matrimonial cases can
  be of infinite variety-it may be subtle or even brutal and may
  be by gestures and words."

          22. Recently, this Court, in Vishwanath Agrawal, slo
H 1s. (2010) 4 sec 476.
                 U. SREE v. U. SRINIVAS                     279
                    [DIPAK MISRA, J.]
Sitaram Agrawal v. Sar/a Vishwanath Agrawal16 , while dealing A
with the conception of cruelty, has stated that it has 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, temperament and
emotions that have been conditioned by the social status. The B
two-Judge Bench referred to the decisions in
Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa
Yasikhan' 7, Shobha Rani (supra), Sheldon v. She/don 18 , V.
Bhagat v. D. Bhagat19 , Parveen Mehta (supra), Vijaykumar:
Ramchandra Bhate v. Nee/a Vijaykumar Bhate 20 , A. c
Jayachandra v. Aneel Kaur2 1 , Vinita Saxena v. Pankaj
Pandit22 , Samar Ghosh (supra) and Suman Kapur v. Sudhir
Kapur23 , and opined that when the evidence brought on record
clearly establish a sustained attitude of causing humiliation and
calculated torture on the part of the wife to make the life of the
                                                                   0
husband miserable, it would amount to mental cruelty.
Emphasis was laid on the behavioral pattern of the wife
whereby a dent is created in the reputation of the husband,
regard being had to the fact that reputation is the salt of life.

     23. In the case at hand, the husband has clearly deposed       E
about the constant and consistent ill-treatment meted out to him
by the wife inasmuch as she had shown her immense dislike
to his "sadhna" in music and had exhibited total indifference
and, in a way, contempt to the tradition of teacher and disciple.
It has graphically been demonstrated that she had not shown         F
the slightest concern for the public image of her husband on

1e. c2012i 1 sec 288.
11. (1981) 4 sec 2so.
18. (1966) 2 WLR 993.                                               G
19. (1994) 1 sec 337.
20. (2003) a sec 334.
21. c2oosi 2 sec 22.
22. (2009) 1 sec 422.
23. (2009) 1 sec 422.                                               H
    280       SUPREME COURT REPORTS                [2012] 11 S.C.R.


A many an occasion by putting him in a situation of
  embarrassment leading to humiliation. She has made wild
  allegations about the conspiracy in the family of her husband
  to get him re-married for the greed of dowry and there is no
  iota of evidence on record to substantiate the same. This, in
B fact, is an aspersion not only on the character of the husband
  but also a maladroit effort to malign the reputation of the family.
  The learned Family Judge as well as the High Court has clearly
  analysed the evidence and recorded a finding that the wife had
  treated the husband with mental cruelty. True it is, there is some
c reference in that regard to the photostat copy of the letter which
  we have not accepted as admissible in evidence but the other
  evidence brought on record clearly support the findings
  recorded by the learried Family Judge and the High Court and
  the said finding remains in the realm of fact.
D         24. This Court, in State of U. P. v. Babu/ Nath 24 , while
    considering the scope of Article 136 as to when this Court is
    entitled to upset a finding of fact, has observed thus: -

          "5. At the very outset we may mention that in an appeal
E         under Article 136 of the Constitution this Court does not
          normally reappraise the evidence by itself and go into the
          question of credibility of the witnesses and the assessment
          of the evidence by the High Court is accepted by the
          Supreme Court as final unless, of course, the appreciation
F         of E;!Vidence and finding is vitiated by any error of law of
          procedure or found contrary to the principles of natural
          justice, errors of record and misreading of the evidence,
          or where the conclusions of the High Court are manifestly
          perverse and unsupportable from the evidence on record."
G       25. In Bharat Coking Coal Ltd. v. Karam Chand Thapar
    & Bros. Pvt. Ltd. 25 , this Court opined that the jurisprudence
    under Article 136 stands out to be extremely wide but that does

    24. (1994) 6 sec 20.
H 25. (2003) 1 sec s.
                 U. SREE v. U. SRINIVAS                        281
                    [DIPAK MISRA, J.]
not, however, warrant intervention in a situation having               A
concurrent set of facts and an appeal therefrom on the factual
issue. The article has been engrafted by the founding fathers
of the Constitution for the purposes of avoiding mischief and
injustice on the wrong assumption of law. The justice delivery
system of the country prompts this Court to interfere under            B
Article 136 of the Constitution when the need of the society
stands established and the judgment, if left outstanding, would
not only create prejudice but would also have an otherwise
adverse effect on the society. Further elaborating, the Bench
ruled thus:-                                                           c
     "The jurisdiction under Article 136 stands out to be
     extremely wide but that does not, however, warrant
     intervention having concurrent set of facts and an appeal
     therefrom on the factual issue. The article has been
     engrafted by the founding fathers of the Constitution for the     D
     purposes of avoiding mischief of injustice on the wrong
     assumption of law. The justice delivery system of the
     country prompts this Court to interfere under Article 136
     of the Cui1stitution when the need of the society stands
     established and the judgment, if left outstanding, would not      E
     only create prejudice but would have an otherwise adverse
     effect on to the society - it is this solemn objective of
     administration of justice with which the Constitution-makers
     thought it prudent to confer such a power on to the Apex
     Court of the country. It is the final arbiter but only when the   F
     dispute needs to be settled by the Apex Court so as to
     avoid injustice and infraction of law."

     26. In Ganga Kumar Srivastava v. State of Bihar6 , after
referring to the earlier authorities, this Court culled out certain    G
principles which would invite exercise of power of this Court
under Article 136 of the Constitution:-

           (i) The powers of this Court under Article 136 of the

2e. (2oosi a sec 211.                                                  H
    282        SUPREME COURT REPORTS                    (2012) 11 S.C.R.


A         Constitution are vel}' wide but in criminal appeals this Court
          does not interfere with the concurrent findings of fact save
          in exceptional circumstances.

                 (ii) It is open to this Court to interfere with the findings
B         of fact given by the High Court, if the High Court has acted
          peNersely or otherwise improperly.

                 (iii) It is open to this Court to invoke the power under
          Article 136 only in vel}' exceptional circumstances as and
          when a question of law of general public importance arises
c         or a decision shocks the conscience of the Court.

                 (iv) When the evidence adduced by the prosecution
          fell short of the test of reliability and acceptability and as
          such ii is highly unsafe to act upon it.
D
                  (v) Where the appreciation of evidence and finding
          is vitiated by any error of law of procedure or found contrary
          to the principles of natural justice, errors of record and
          misreading of the evidence, or where the conclusions of
          the High Court are manifestly perverse and
E         unsupportable from the evidence on record.

        27. In Dubaria v. Har Prasad and Another27, ii has been
  held that when there is infirmity in the decision because of
  excluding, ignoring and overlooking the abundant materials and
F the evidence, if considered in proper perspective, would have
  led to conclusion contrary to the one taken by both the High
  Court as well as the fora below, it would be open to this Court
  to interfere with the concurrent findings of fact.
G         28. Tested on the touchstone of the aforesaid principles,
    we have no trace of doubt that the finding returned by the Family
    Judge which has been given the stamp of approval by the High
    Court relating to mental cruelty cannot be said to be '"1
    ignorance of material evidence or exclusion of pertaining
H 27. (2009) 9 sec 346.
                U. SREE v. U. SRINIVAS                       283
                   [DIPAK MISRA, J.)
materials or based on perverse reasoning. In our view, the           A
conclusion on that score clearly rests on proper appreciation
of facts and, hence, we concur with the same.

      29. Presently, we shall advert to the finding recorded by
the learned ·Family Judge and the High Court relating to
                                                                     8
desertion by the wife. As the factual matrix would reveal, both
the Courts have proceeded on the base that the wife had not
endeavored to reunite herself with the husband and there had
long lapse of time since they had lived together as husband and
wife. On the aforesaid foundation, the conclusion has been           C
drawn that there is an animus descerendi on the part of the
wife. To test the tenability of the said conclusion, we have
perused the petition for divorce from which it is evident that
there is no pleading with regard to desertion. It needs no special
emphasis to state that a specific case for desertion has to be
pleaded. It is also interesting to note that the petition was not    D
filed seeking divorce on the ground of desertion but singularly
on cruelty. In the absence of a prayer in that regard, we are
constrained to hold that the conclusion arrived at as regards
desertion by the learned Family Judge which has been
concurred with by the High Court is absolutely erroneous and,        E
accordingly, we overturn the same.

     30. From the foregoing analysis, it is established that the
husband has proved his case of mental cruelty which was the
foundation for seeking divorce. Therefore, despite dislodging        F
the finding of desertion, we conclude and hold that the
respondent husband has rightly been granted a decree of
divorce.

     31. The next issue that emerges for consideration pertains
to the grant of permanent alimony. It is noticeable that the wife    G
had filed a case for grant of maintenance and residence under
the Hindu Adoptions and Maintenance Act, 1956 at Hyderabad.
The High Court has granted Rs. 12,500/- per month from the
date of filing of the petition for maintenance and Rs.5 Lacs
each to the wife and son towards permanent alimony. Whether          H
    284       SUPREME COURT REPORTS                 (2012) 11 S.C.R.


A the High Court should have granted Rs.12500/- as maintenance
  need not be addressed by us inasmuch as we are inclined to
  deal with this issue of grant of permanent alimony in a different
  backdrop. As is evincible from the orders of this Court when
  the matters were listed on 9.4.2012, the Court had taken note
B of the fact that the wife and son have been living separately at
  Hyderabad for about 16 years and, in that context, the following
  order was passed :-

          "Looking to the financial and social status of the parties,
          we request the learned senior counsel appearing for the
c         respondent to ask his client to arrange for one flat for the
          petitioner and their so that they can live in the said flat
          comfortably.

          On this suggestion, being given by the Court, learn(!d
D         senior counsel appearing for the respondent prayed for
          time to seek instructions."

          32. On 30.4.2012, the following order came to be passed:-

          "As per the Order passed by this Court on 09.04.2012,
E         learned senior counsel appearing for the respondent-
          husband informed that respondent is ready and willing to
          buy a flat for the petitioner in Hyderabad, so that she will
          have a roof over her head for all the times to come.

F              However, the details of the same are required to be
          worked out.

               It is, therefore, desirable that both the parties should
          remain present in this Court on 10.07.2012.
G               Without prejudice, a sum of Rs. 10 lakhs by way of
          Demand Draft is being paid by the respondent- husband
          to petitioner-wife. Other Rs. 10 lakhs is in deposit with the
          Family Court at Chennai. Petitioner will be at liberty to
          withdraw this amount."
H
                U. SREE v. U. SRINIVAS                      285
                   [DIPAK MISRA, J.]
      33. We have reproduced the aforesaid orders to highlight A
that the husband had agreed to buy a flat at Hyderabad.
However, when the matter was listed thereafter, there was
disagreement with regard to the locality of the flat arranged by
the husband and, therefore, the matter was heard on merits.
We have already opined that the husband has made out a case B
for divorce by proving mental cruelty. As a decree is passed,
the wife is entitled to permanent alimony for her sustenance.
Be it stated, while granting permanent alimony, no arithmetic
formula can be adopted as there cannot be mathematical
exactitude. It shall depend upon the status of the par:ties, their c
respective social needs, the financial capacity of the husband
and other obligations. In Vinny Parmvir Parmar v. Parmvir
Parmar28 , while dealing with the concept of permanent alimony,
this Court has observed that while granting permanent alimony,
the Court is required to take note of the fact that the amount of
                                                                   0
maintenance fixed for the wife should be such as she can live
in reasonable comfort considering her status and the mode of
life she was used to when she lived with her husband. At the
same time, the amount so fixed cannot be excessive or affect
the living conditipn of the other party.
                ~-'              '   &   •   i
                                                                   E
     34. Keeping_ in mind the aforesaid broad principles, we
may proceed to address the issue. The respondent himself has
asserted that he has earned name and fame in the world of
music and has been performing concerts in various parts of
India and abroad. He had agreed to buy a flat in Hyderabad F
though it did not materialise because of the demand of the wife
to have a flat in a different locality where the price of the flat is
extremely high. Be that as it may, it is the duty of the Court to
see that the wife lives with dignity and comfort and not in penury.
The living need not be luxurious but simultaneously she should G
not be left to live in discomfort. The Court has to act with
pragmatic sensibility to such an issue so that the wife does not
meet any kind of man-made misfortune. Regard being had to
the status of the husband, the social strata to which the parties
2a. c2011i 13 sec 112                                              H
    286      SUPREME COURT REPORTS                [2012] 11 S.C.R.


A belong and further taking note of the orders of this Court on
  earlier occasions, we think it appropriate tq fix the permanent
  alimony at Rs 50 lacs which shall be deposited before the
  learned Family Judge within a period of four months out of
  which Rs.20 lacs shall be kept in a fixed deposit in.the name
B of the son in a nationalized bank which would be utilised for
  his benefit. The deposit shall be made in such a manner so that
  the appellant wife would be in a position to draw maximum
  quarterly interest. We may want to clarify that any amount
  deposited earlier shall stand excluded.
c        35. On the basis of the forgoing discussion, the decree for
    dissolution of marriage is affirmed only on,the ground of mental
    cruelty which eventually leads to dismissal of the appeals. The
    parties shall bear their respective costs.

D B.B.B.                                      Appeals dismissed.