Holding

The Supreme Court held that the husband’s paranoid schizophrenia rendered him incapable of matrimonial obligations and that the wife suffered mental and physical cruelty, thereby satisfying the requirements of Sections 13(1)(i‑a) and 13(1)(iii) for dissolution of marriage.

Summary

Vinita Saxena married Pankaj Pandit in 1993, but the marriage lasted only five months and was never consummated because the husband suffered from paranoid schizophrenia, rendering him incapable of performing matrimonial duties. The wife alleged mental and physical cruelty, including abuse by the husband and his mother, and filed for divorce under Sections 13(1)(i‑a) and 13(1)(iii) of the Hindu Marriage Act. The trial court dismissed the petition and the Delhi High Court affirmed, holding that the evidence of schizophrenia was insufficient and the cruelty not grave. On appeal, the Supreme Court held that the medical evidence conclusively proved the husband's mental disorder and the wife's suffering of cruelty, satisfying the statutory requirements for divorce. The Court emphasized that a mental disorder of such a kind and degree, coupled with non‑consummation and cruelty, justifies dissolution of marriage. Consequently, the appeal was allowed and a decree of divorce was granted in favour of the appellant.

Issues considered

The applicability of Section 13(1)(i‑a) of the Hindu Marriage Act on the ground of cruelty in the present facts.
The applicability of Section 13(1)(iii) of the Hindu Marriage Act on the ground of mental disorder, specifically whether the husband's paranoid schizophrenia is of a kind and degree that the wife cannot be expected to live with him.
Whether the evidence produced by the appellant, including medical records and expert testimony, is sufficient to establish the mental disorder and cruelty.
Whether the lower courts erred in rejecting the divorce petition.

Legislation cited

Hindu Marriage Act, 1955s. 13(1)(i-a), s. 13(1)(iii)

Subjects

divorcecrueltymental disorderschizophreniaHindu Marriage Actnon‑consummationSection 13marital obligations

Judgment

y
'

A VIN ITA SAXENA
v.
PANKAJ PANDIT

MARCH 21, 2006

B [RUMA PAL AND DR. AR. LAKSHMANAN, JJ.)

Hindu law:

Hindu Marriage Act, 1955: Section 13(/)(i-a) and (iii).
c
Divorce-Cruelty and mental disorder-Non-consummation of
marriage-Marriage solemnized in 1993-Marriage lasted only for jive months
but was never consummated as the husband was incapable of performing his
matrimonial obligations-Wife was treated with utmost cruelty both mental
D and physical by husband's mother-Husband was a case of Paranoid
Schizophrenia and under constant medical treatment even prior to marriage-
Wife filed a petition for divorce on grounds of mental and physical cruelty-
The wife's case was that on account of Paranoid Schizophrenia that the
husband was suffering from, she could not be reasonably expected to live with
him-Trial Court dismissed the petition-High Court affirmed the decision
E holding that the husband was not suffering from schizophrenia and that there
was insufficient material on record to establish cause of cruelty-Correctness
of-Held· To beget children from a Hindu wedlock is one of the principal
aims of Hindu Marriage where 'sanskar' of marriage is advised for progeny
and offspring-Ifprocreation of children is not possible it may famish a good
ground for nullifying the marriage-In the instant case, the husband's mental
F disorder is such that he is incapable ofperforming his matrimonial ob/igations-
The marriage between the parties was not consummated-A workable solution
is certainly not possible and the wife's stay with her husband is injurious to
her health-Hence, decree of divorce granted

Words and Phrases:
G
"Cruelty"-Meaning of-In the context of S. I 3(l)(i-a) of the Hindu
Marriage Act, 1955.

"Mental disorder"-Meaning of-In the context of S. 13(/)(iii) of the
H 116
VINITA SAXENA v. PANKAJ PANDIT 117

Hindu Marriage Act, 1955. A
''Schizophrenia' '-Meaning of-Explained

The marriage between the appellant-wife and the respondent-
husband was solemnized in the year 1993. The marriage lasted for five
months but was never consummated on account of the fact that the B
respondent was incapable of performing his matrimonial obligations. It
was alleged that the respondent's mother treated the appellant with utmost
cruelty both mental and physical. The respondent's case was a case of
Paranoid Schizophrenia and he was under constant treatment and
observations of different doctors even prior to the marriage for the said
ailment.
c
The appellant filed a petition for divorce under Section 13(1)(i-a) and
(iii) of the Hindu Marriage Act, 1955 on the grounds of mental and
physical cruelty before the District Court. The appellant's case was that
on account of Paranoid Schizophrenia that the respondent was suffering
D
from, the appellant could not be reasonably expected to live with the
respondent.

The trial court dismissed the petition filed by the appellant. The High
Court dismissed the appeal filed by the appellant holding that the
testimonies of the do~tors examined by the appellant to prove that the
respondent was suffering from Schizophrenia could not be looked into for
the reason· that the respondent was not under the treatment of the said
disorder. Hence the appeal.

Allowing the appeal, the Court

HELD: 1.1. It is not in dispute that the marriage has lasted hardly
for five months and was never consummated on account of the fact that
the respondent was incapable of performing his matrimonial obligations.
The appellant has examined herself as PW-I. She has specifically stated
in her deposition that the marriage was not consummated at all. It has
further come out in her deposition that she accompanied the respondent
to the hospital and met the Sexologist and Marriage Counsellor. In her
deposition, it had also come out that the said· doctor informed her that
the respondent cannot perform the marital obligations. She was also
informed by the said doctor that the respondent was a Psychopathic case
and he has no power of concentration. She was also informed that the
...\
118 SUPREME COURT REPORTS [20061 3 S.C.R.

A disease is uncurable in nature. The appellant has further deposed that the
respondent kept on sleeping for three days immediately after solemnization
of marriage and the appellant was told that she should not disturb him.
It was further stated in her evidence that the appellant was blamed for
the respondent's illness and was mercilessly beaten up and on the same
B day the respondent attempted to commit suicide and he was taken to the
hospital by the appellant and her brother. (133-G, H; 134-A-Cj

1.2. In her cross-examination, the appellant has stated that though
they were studying together in the Engineering College, however, there
were no special meetings between them except meeting in the class. It has
C also come on record that there was no intimacy between the appellant and
the respondent. The appellant has emphatically denied the allegation about
the intimacy between the appellant and the respondent prior to the
marriage. She also stated on oath that it was a marriage though of her
choice but solemnized only after her parents had given the consent. In the
cross-examination, the respondent has not been able to shake or destroy
D the case of the appellant. (134-D-El

2.1. With regard to cruelty, there is deposition of the appellant and
her father on record which clearly establishes and proves that the
appellant was treated with cruelty by the respondent and his mother. With •
E regard to the plea of mental insanity i.e. Section 13(1 )(iii) of the Hindu
Marriage Act, 1955 the appellant adduced the evidence of doctors.
According to the medical record, the respondent was admitted with
reference to a case of Psychopathic and depression. The evidence of the
doctors also establishes the case of mental insanity and the fact that the
respondent was a case of Paranoid Schizophrenia. The said doctors
p produced the original record and made necessary deposition and it is
recorded that the respondent had visited the Psychiatric Ward along with
his mother. It was also recorded that the respondent suffers from delusion
of persecution and reference effect and on the physical examination it had
been observed that the respondent has clear ~ystematized delusion of
persecution and reference and, therefore, on the review it is clear that the
G respondent is suffering from Paranoid Schizophrenia. The medical record
of the respondent maintained by the hospital has established that the
respondent visited the hospital and was advised for psychological testing.
It was observed in a medical sheet that the respondent was initially
diagnosed for psychosis. However, on subsequent visits and after detailed
H examination it has been confirmed that he suffers from Paranoid
(

VINITA SAXENA v. PANKAJ PANDIT 119
Schizophrenia. [134-F, G; 135-B, D-GI A
2.2. There is no evidence whatsoever adduced by the respondent or
on his behalf. In fact, after recording of the examination-in-chief and part
cross-examination, the respondent refused to come in the witness box and
ran away. The observation has been made by the trial court in the
proceedings. (136-A-BI B
3.1. The trial Court failed to appreciate the uncontroverted evidence
of the appellant who had proved the case on every count. It has been
established beyond doubt by the medical doctors who had deposed as
witnesses and brought the original medical record of the respondent that C
the respondent is suffering from mental disorder. Further, ground for
grant of divorce on the plea of mental insanity/mental disorder is different
than cruelty. The appellant had proved beyond doubt that the respondent
suffered from mental disorder and that the appellant suffered cruelty by
and at the behest of the respondent. [139-B-C)
D
3.2. The High Court failed to appreciate that in the absence of any
evidence led by the respondent, the appellant's evidence had to be relied
upon and, on the basis of the evidence, the decree for divorce was bound
to be granted in favour of the appellant. The appellant had also given
specific instances of cruelty which clearly establish that she had a
reasonable apprehension that it will be harmful or injurious for her to E
live with the respondent. [139-D]

4.1. It is settled by catena of decisions that mental cruelty can cause
even more serious injury than the physical harm and create in the mind
of injured appellant such apprehension as is contemplated in the Section.
It is to be determined on whole facts of the case and the matrimonial F
relations between the spouses. To amount to cruelty, there must be such
wilful treatment of the party which caused suffering in body or mind either
as an actual fact or by way 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. (139-E, F] G
4.2. The word 'cruelty' has not been defined and it has been used in
relation to human conduct or human 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 H
120 SUPREME COURT REPORTS [2006] 3 S.C.R.

A 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. (139-G, H; 140-Af

4.3. The cruelty alleged may largely depend upon the type of life the
B parties are accustomed to or their economic and social conditions, their
culture and human values to which they attach importance. Judged by
the stand~rd of modern civilization in the background of the cultural
heritage and traditions of our society, a young and well educated woman
like the appellant is not expected to endure the harassment in domestic
C life whether mental, physical, intentional or unintentional. Her sentiments
have to be respected, her ambition and aspiration taken into account in
making adjustment and her basic needs provided, though grievances may
arise from temperamental disharmony. (140-8-Cf

5. The legal concept of cruelty which is not defined by statute is
D generally described as conduct of such character as to have caused danger
to life, limb or health (bodily and mental) or to give rise to a reasonable
apprehension of such danger. The general rule in all questions of cruelty
is that the whole matrimonial relations 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
E such as indifference and frigidity towards wife, denial of company to her,
hatred and abhorrence for wife or physical, like acts of violence and
abstinence from sexual intercourse without reasonable cause. It must be
proved that one partner in the marriage however mindless of the
consequences had behaved in a way which the other spouse could not in
p the circumstances be called upon to endure and that misconduct has caused
injury to health or a reasonable apprehension of such injury. There are
two sides to be considered in case of cruelty. From the appellant's side,
ought this appellant to be called on to endure the conduct? From the
respondent's side, was this conduct excusable? The court has then to decide
whether the sum total of the reprehensible conduct was cruel. That
G 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 which the respondent might have in the circumstances, the conduct
is such that the petitioner ought not to be called upon to endure.
(140-F-H; 141-A-C)
H 6. t. As to what constitutes the required mental cruelty for the
VINITA SAXENA v. PANKAJ PANDIT 121
. purposes of Section 13(1)(i-a) will not depend upon the numerical count A
-of such incidents or only on the continuous course of such conduct but
really go by the intensity, gravity and stigmatic impact of it when meted
out even once and the deleterious effect of it on the mental attitude
necessary for maintaining a conducive matrimonial home. (141-C, DJ

6.2. If the taunts, complaints and reproaches are of ordinary nature B
only, the court perhaps need consider the further question as to whether
their continuance or persistence over a period of time render, what
normally would, otherwise, not be so serious an act to be so injurious and
painful as to make the spouse charged with them genuinely and reasonably
conclude that the maintenance of matrimonial home is not possible any C
longer. (141-D, El

Dastane v. Dastane, AIR (1975) SC 1575 and Shobha Rani v.
Madhukar Reddi, AIR (1988) SC 121, relied on.

Sheldon v. Sheldon, (1966) 2 All ER 257, referred to.
D
Halsbury Laws of England Vol. 12, 3rd Edn. P. 270, referred to.

7. Section 13(1)(iii) 'mental disorder' as a ground of divorce is only
where it is of such a kind and degree that the appellant cannot reasonably
be expected to live with the respondent. Where the parties are young and E
the mental disorder is of such a type that sexual act and procreation of
children is not possible it may furnish a good ground for nullifying the
marriage because to beget children from a Hindu wedlock is one of the
principal aims of Hindu Marriage where 'sanskar' of marriage is advised
for progeny and offspring. 1142-E, Fl
F
Smt. Uma Wanti v. Arjan Dev, AIR (1995) P and H 312, Harbhajan
Singh Monga v. Amarjeet Kaur, AIR (1986) M.P. 41, Rita Nijhawan v. Shri
Balkishan Nijhawan, AIR (1973) Del 200 and Rita Roy v. Sitesh Chandra,
AIR (1982) Cal 138, approved.

8. Spouses owe right and duties each to the other and in their G
relationship they must act reasonably. In every case where cruelty exists
it is possible to say that the spouse at fault has been unreasonable. The
list of cruelty, therefore, should be breach of the duty to act reasonably,
whether in omission or commission, causing injury to health. Such a list
avoids imputing on intention where in fact none may exist. Further all H
122 SUPREME COURT REPORTS [20061 3 S.C.R.

A such matters are foresight, desires, wishes, intention, motive, perception,
obtuseness, persistence and indifference would remain relevant but merely
as matters of evidence bearing upon the requirement to act reasonably
or as aggravation of the matters charged. I143-C-EI

Shrikant Anandrao Bhusale v. State of Maharashtra, 1200217SCC748,
B A. Jayachandra v. Anne! Kaur, 120051 2 SCC 22, Yuvraj Digvijay Singh v.
Yuvrani Pratap Kumari, AIR (1970) SC 137, Vijay Kumar Ramchandra Bhate
v. Neela Vijaykumar Bhate, AIR (2003) SC 2462, Ram Narain Gupta v. Smt.
Rameshwari Gupta, 119881 4 SCC 247, Rakesh K. Gupta v. Ram Gopal
Agarwala, AIR (2005) SC 2426, Shin Etsu Chemical Company v. Aksh
C Optifibre ltd, 120051 7 SCC 234, Union of India v. Popular Construction,
1200118SCC470, Savitri Pandey v. Prem Chandra Pandey, 120021 2 SCC
73 and B.N. Panduranga Shet v. N. Vijaylaxmi, AIR (2003) Kar 357, referred
to.

9. Humane aspects which this Court considered are as follows:-
D
(a) The appellant was 24 years of age when she got married.
1144-DI

(b) The marriage lasted for four to five months only when she was
compelled to leave the matrimonial home. 1144-EI
E
(c) The marriage between the parties was not consummated as the
respondent was not in a position to fulfil the matrimonial obligation.
1144-E)

(d) The parties have been living separately since 1993. 13 years have
F passed they have never seen each other. 1144-F)

(e) Both the parties have crossed the point of no return. 1144-F)

(f) A workable solution is certainly not possible. 1144-GI

(g) Parties at this stage cannot reconcile themselves and live together
G forgetting their past as a bad dream. 1144-GI
(h) The situation between the parties would lead to an irrefutable
conclusion that the appellant and the respondent can never ever stay as
husband and wife and the wife's stay with the respondent is injurious to -
her health. (144-H; 145-AI
H (i) The appellant has done her Ph.D. The respondent, according to
VINITA SAXENA v. PANKAJ PANDIT [LAKSHMANAN. J.] 123

the appellant, is not gainfully employed anywhere. 1145-A] A
(k) As a matter of fact, after leaving his deposition incomplete during
the trial, the respondent till date has neither appeared before the trial court
nor before the High Court. 1145-B]

10. The facts and circumstances of the case as well as all aspects B
pertain to humanity and life would give sufficient cogent reasons for this
Court. to allow the appeal and receive the appellant from the shackles and
chain of the respondent and let her live her own life, if nothing less but
like a human being. [145-CI

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1687 of 2006. C
From the Judgment and Final Order dated 10.9.2004 of the Delhi High
Court in F.A.O. No. 235 of 2002.
I
Ms. Kamini Jaiswal, Mrs. S. Bakshi, MJ. Sunita Dwivedi and Ms. Rani
for the Appellant. D
Dhruv Mehta and S. Rajappa for the Respondent.

The Judgment of the Court was delivered by

DR. AR. LAKSHMANAN, J. Leave granted. E
The above appeal was filed by the appellant, wife of the respondent
herein, against the judgment and final order dated 10.9.2004 passed by the
High Court of Delhi in F.A.O. No. 235 of 2002 whereby the Civil Writ
Petition filed by the appellant was dismissed.
F
The short facts are as follows:

The marriage between the appellant-Vinita Saxena and the respondent-
Pankaj Pandit was soleminzed on 7.2.1993 as per Hindu rites and customs.
No child was born out of wedlock. The marriage, according to the appellant,
lasted for five months and was never consummated on account of the fact G
that the respondent was incapable of performing his matrimonial obligations.
According to the appellant, from the first day of the marriage, the respondent's
mother treated the appellant with utmost cruelty both mental and physical
and that the reason for cruelty was the respondent's mental disorder. The
respondent's case is a case of Paranoid Schizophrenia and the appellant H
124 SUPREME COURT REPORTS [2006] 3 S.C.R.

A discovered only after the marriage that the respondent was under constant
treatment and observations of different doctors even prior to the marriage for
the said ailment. Though the appellant knew the respondent prior to her
marriage, in fact, it is only after the marriage. the appellant realised and
discovered the mental disorder of the respondent. The appellant was never
B told by the respondent nor his parents that he was suffering from such serious
mental disorder and that he was under the treatment and used to take strong
medicines before the marriage. According to Dr. C.R. Samanta, who was a
consultant psychiatrist at Aashlok Hospital, the respondent was a case of
Schizophrenia and depression. On 4.7.1993, the appellant tried to discuss
regarding the problems she was facing with the respondent and her mother-
C in-law, who objected strongly and accused the appellant of defaming the
respondent. At her instance, the appellant was beaten mercilessly by the
respondent, which made him nervous to the extent that he consumed "Baygon
Spray" to commit suicide. The appellant and her brother immediately took
the respondent to the hospital in order to save the respondent's life. Again,
Dr. C.R. Samantha prescribed certain medicines i.e. (I) Triperidol (2) Pacitane
D (3) Prodep to the respondent. The respondent was hospitalised for four days
at Aashlok Hospital, Safdarjung Enclave and was discharged after giving
proper treatment on 7. 7.1993. According to the appellant, Triperidol is given
in case of acute and chronic psychoses anxiety disorders, mania, Schizophrenia
as per the medical advise. The situation further became worse on 8. 7.1993
E and 9.7.1993. Again on the instigation of the respondent's mother, the
respondent slapped and abused the appellant mercilessly and she was not
even allowed to have food that day and the next day morning i.e. on 9.7.1993.
On 9.7.1993, the appellant was pushed and kicked out of the matrimonial
home by her mother-in-law and the respondent and thereafter, the appellant
was not permitted to return again.
F
The appellant filed H.M.A. Petition on 30.6.1994 against the respondent
for dissolution of marriage under Secti"On 13( 1)(I-a) and (iii) of the Hindu
Marriage Act, 195 5 hereinafter referred to as "the Act" on the grounds of
mental and physical cruelty and insanity before the Court of District Judge
G at Delhi.

The trial Court vide its order dated 15.5.1993, relying on the facts and
averments made by the parties as well as taking the medical documents
placed on record observed that a letter of request should be written to the
Medical Superintendent, L.N.J.P. Hospital to constitute a panel of doctors to
H examine the respondent and to report about his mental state. However, this
VINITA SAXENA v. PANKA.I PANDIT [LAKSHMANAN. J.] 125
order was subsequently set aside by the High Court in a Revision Petition A
filed by the respondent. After the marriage had broken down the appellant
pursued further studies and completed M.S. (Structural Engineering) from
!IT Delhi and in 1996, left for her Ph.D. programme to U.S.A. Father of the
appellant. J.S. Saxena. deposed as PW-II and the appellant as PW-I and Dr.
D.S. Arora, Medical Superintendent, Aashlok Hospital and Dr Kuldeep Kumar B
of Safdarjung Hospital recorded their statement as PW-III and PW-IV
respectively supporting the case of the appellant.

The respondent, however, got only his statement recorded and before
his cross-examination could be concluded, deliberately did not appear in the
witness box to complete his deposition. The trial Court, vide order dated C
19.3.2001, dismissed the petition filed by the appellant under Section 13(1)(1-
. a) and (iii) of the Act for the grant of decree of divorce. Being aggrieved by
the said order, the appellant filed an appeal before the High Court. The High
Court vide order dated 10.9.2004 dismissed the appeal filed by the appellant
holding that the respondent is not suffering from Schizophrenia and that
there is insufficient material on record to establish the cause of cruelty and D
further held that the incidents of cruelty is not so grave which come within
the scope of concept of cruelty. The High Court also held that the testimonies
of the doctors examined by the appellant to prove that the respondent was
suffering froni Schizophrenia cannot be looked into for the reason that the
respondent was not under the treatment of the above doctors. Aggrieved by E
the said order, the appellant filed this appeal by way of special leave petition
before this Court.

The respondent filed a counter affidavit. It is stated in the counter
affidavit that the special leave petition is devoid of any merit. inasmuch as the
Courts below have given findings of fact in favour of the respondent and the p
Courts below have rejected the pleas of the appellant on the ground that she
has not made out any case for grant of divorce. It was submitted that the
appellant even before the marriage was having intimacy with the respondent
from 1986 to 1993 and she did not find any abnormality in the behaviour of
the respondent. It was also submitted that the appellant has not made out any
case seeking divorce on the ground of causing cruelty to her inasmuch as she G
has failed to prove any instance leading to causing such cruelty to her by the
respondent. It was submitted that the respondent is willing to take the appellant
and keep her happy to the fullest and it is the desire of the respondent that
the marriage should not break on the ground that she is building up her career
in America for the past I 2 years. Since concurrent findings of fact is in H
126 SUPREME COURT REPORTS [2006] 3 S. C.R.

A favour of the respondent, the appellant ought not to be stated that the
respondent and his mother were involved in causing cruelty to her and that
the Courts below have also disbelieved the version of the appellant that the
cruelty was caused by the respondent due to his mental disorder. It was
further contended that the appellant did not lead any evidence to prove as a
matter of fact that the respondent was suffering from Schizophrenia and that
B the appellant has filed the petition deliberately and wilfully and with a view
to harass the respondent and his mother. It was also contended that the mere
branding of spouse as Schizophrenic is not sufficient and that the degree of
mental disorder of the spouse must be proved to be such that the appellant
spouse cannot be reasonably be expected to live with the other. It was also
C submitted that from the evidence and pleadings, it has clearly been stated that
the appellant was having sex with the respondent without any problem and
there is no truth in the allegation made by the appellant. The other allegations
mentioned in the Divorce Petition have not been proved at all and that the
appeal filed by the appellant deserves to be rejected.

D We heard Ms. Kamini Jaiswal, learned counsel appearing for the
appellant-wife and Mr. Dhruv Mehta, learned counsel appearing for the
respondent-husband.

We have perused the pleadings, annexures filed along with the appeal
E and the orders passed by the courts below and the grounds of appeal.

Learned counsel for the appellant while reiterating the averments made
in the appeal submitted the following grounds for granting divorce as prayed
for by the appellant-wife :

(I) Non-consummation of the marriage itself would constitute mental
F cruelty to a married woman.
(2) The respondent attempted to commit suicide also amounts to
mental cruelty and harassment.
(3) The appellant has lived only for five months after the marriage
and she was mercilessly beaten by the respondent and his mother.
G
(4) There was absolutely nothing to show that the documents and
prescription given by the doctors have been concocted. They are
the official records of the Hospital.
(5) The medical prescriptions and the evidence of doctors clearly
H illustrate that the respondent was under the treatment of Dr.
r-
'

VINITA SAXENA v. PANKAJ PANDIT [LAKSHMANAN, J.] 127

Samantha and was a case of Paranoid Schizophrenia. A
(6) The respondent, before his cross examination could be concluded,
deliberately did not appear in the witness box to complete his
deposition and his evidence had to be closed.
(7) The appellant was denied the matrimonial bliss of physical relation
by the respondent because of his incompetency which itself B
constitute cruelty for a married woman.
(8) The threat to commit suicide by the respondent amounts to cruelty
and the Courts below took cognizance of the fact that the
respondent consumed "Baygon spray".
(9) Because Dr. Samantha was not alive, the medical record authored
c
by him can only be proved by secondary evidence though Dr.
D.S. Arora, medical Superintendent who certified on oath that
the respondent was admitted in Aashlok Hospital and stated that
he had brought the records in respect of Pankaj Pandit. He also
identified the signatures of Dr. Samantha and the medical D
prescriptions of his having treated the respondent have also been
produced and proved by him where it had been categorically
stated that the respondent is· suffering from Paranoid
Schizophrenia.
(10) Likewise on the ground_ of non-availability of Dr. Abhyankar, E
who had authored the medical prescription as he was no more in
service of the hospital cannot be fatal to disregard the evidence
of the other doctor, who produced and proved the entire record.
{I I) The marriage between the appellant and the respondent hardly
lasted for five months and both of them are living separately for F
the last 13 years.

Learned counsel appearing for the appellant cited the following decisions:
.
{I) Shrikant Anandrao Bhosa/e v. State of Maharashtra, [2002] 7
sec 748, G
(2) A. Jayachandra v. Anee/ Kaur, [2005] 2 SCC 22,
(3) Smt. Uma Wanti v. Arjan Dev. AIR (1995) P&H 312
(4) Harbhajan Singh Monga v. Amarjeet Kaur, AIR (1986) MP 41
(5) Mrs. Rita Nijhawan v. Shri Ba/kishan Nijhawan, AIR (1973) H
128 SUPREME COl'RT RFPORTS [20061 3 S.l'.R.

A Delhi 200
(6) Yuvraj Digvijay Singh v. Yuvrani Prutap l\.umari. AIR ( 1970)
SC 137.
(7) Vijay Kumar Ramchandra Bhate v. ,l>v.eela rijaykumar Bhate, AIR
(2003) SC 2462
B
(8) B..V. Panduranga Shel v. X I'ijay/axmi. AIR (2003) Karnataka
357

Mr. Dhruv Mehta, learned counsel appearing for the respondent. per
contra, after referring to the grounds of divorce and the findings recorded by
C the trial Court and the High Court which has afiirmed the findings of the trial
Court, submitted that in order to make out a ground for divorce under Section
13( I )(iii) of the Act. it is not necessary to establish that the respondent is
suffering continuously or intermittently from mental disorder but it must
further be established that it is of such a kind and co such an extent that the
appellant cannot be reasonably be expected to live with the respondent. In
D other words. the burden is not discharged by men::y establishing that the
respondent is suffering from mental disorder which in the present case would
include Schizophrenia by virnte of the Explanation to the said provision but
the appellant must further lead evidence to establish that the mental disorder
is of such a kind and to such an extent that the appellant cannot reasonably
E be expected to live with the respondent.

According to learned counsel for the respondent. the above contention
finds support from a decision of this Court in Ram Narain Gupta v. Smt.
Rameshwari Gupta. [ 1988] 4 SCC 24 7. For ready reference, the relevant
paras from the said judgment are as under:
F
"20. The context in which the ideas of unsoundness of 'mind'
and 'mental disorder' occur in the section as grounds for dissolution
of a marriage. require the assessment of the degree of the 'mental
disorder'. Its degree must be such that the spouse seeking relief cannot
reasonably be expected to live with the other. All mental abnormalities
G are not recognised as grounds for grant of decree. If the mere existence
of any degree of mental abnormality could justify dissolution of a
marriage few marriages would, indeed, survive in law.

xx xx xx

H 28. The reasoning of the High Court is that the requisite degree
VINITA SAXENA v. PANKAJ PANDIT [LAKSHMANAN, J.] 129

of the mental disorder which alone would justify dissolution of the A
marriage has not been established. This, it seems to us, to be not an
unreasonable assessment of the situation - strong arguments of Shri
Goel to the contrary notwithstanding.

xx xx xx
B
30 ...... the burden of proof of the existence of the requisite degree
of mental disorder is on the spouse basing the claim on that state of
facts.

33. This medical concern against too readily reducing a human
being into a functional non entity and as a negative unit in family or C
society is law's concern also and is reflected, at least partially, in the
requirements of Section 13(1 )(iii). In the last analysis, the mere
branding of a person as schizophrenic will not suffice. For purposes
of Section 13(l)(iii) 'schizophrenia' is what schizophrenia does."

It was further submitted that the aforesaid judgment of this Court has D
been followed by the Karnataka High Court in the case of B.N. Panduranga
Shet v. N. Vijayalaxmi, (supra). Learned counsel also relied on the decision
of the Calcutta High Court in the case of Rita Roy v. Sitesh Chandra, AIR
(1982) Calcutta 138 and the decision of the Himachal Pradesh High Court
reported in (1995) DMC 71 (DB).
E
Learned counsel also cited the judgment of this Court in Rakesh K.
Gupta v. Ram Copa! Agarwala & Ors., AIR (2005) SC 2426 for the
proposition that even in a custody dispute between the husband and wife
wherein it was alleged by the husband that the wife is suffering from Paranoid
Schizophrenia, this Court still awarded custody of the child to the mother. F
According to the learned counsel, the evidence which has been brought
on record by the appellant is wholly insufficient to infer that the respondent
was suffering from the said mental disorder and the doctors who are alleged
to have treated the respondent have not been examined as witnesses by the
appellant and what has been brought on record are certain prescriptions made G
by the said doctors and the same are sought to be proved by examining the
Medical Superintendent of Aashlok Hospital, Safdarjung Enclave. Therefore,
he submitted that in view of the above fact, no inference can be drawn that
the respondent was suffering from Paranoid Schizophrenia and that the
appellant has not been discharged of the burden as required by the statutory
provision. Learned counsel contended that the words used in sub-clause (iii) H
130 SUPREME COURT REPORTS (2006] 3 S.C.R.

A of Section 13( I) to the effect that '"mental disorder of such a kind and to
such an extent that the appellant cannot reasonab(v be expected to live with
the respondent" must be given full effect as it is a well accepted principle of
statutory interpretation that a Court must make every effort to give effect to
all words in a statute since Parliament cannot be held to have been wasting
B its words or saying something in vain. Learned counsel, for this proposition,
relied on the following two decisions of this Court;

(a) Shin Etsu Chemical Company Ltd. v. Aksh Optifibre Ltd., [2005]
1 sec 234.
(b) Union of India v. Popular Construction, [2001] 8 SCC 470
c Concluding his submissions, learned counsel submitted that the appellant -
having failed to establish the aforementioned requirement of the statute, the
appeal must fail on this ground.

In Re : Cruelty
D It was submitted that in order to make out a ground for divorce under
Section 13( I)( i-a) of the Act, the conduct complained of should be grave and
weighty so as to come to the conclusion that the appellant spouse cannot be
reasonably expected to live with the other spouse. It must be something more
serious than "ordinary wear and tear of married life". For this proposition, he
E relied on the judgment of this Court in A. Jayachandra v. Aneel Kaur, (supra).
Para 13 of the aforementioned judgment is as under:

"13 ...but before the conduct can be called cruelty, it must touch a
certain pitch of severity. It is for the Court to weigh the gravity. It has
to be seen whether the conduct was such that no reasonable person
F would tolerate it"

It was argued that the trial Court, after examining the evidence, has
come to the conclusion that the acts complained of are not such as would
constitute cruelty and in any event the ground for divorce under Section
13( I)(i-a) is not made out. It was submitted that the trial Court had occasioned
G to see the demeanour of witnesses and, therefore, the view taken by the trial
Court unless it can be said to be perverse should not be faulted with. It was
also contended that the approach in such cases should be to perverse the
matrimonial home. The judgment in the case of Savitri Pandey v. Prem

H
Chandra Pandey, [2002] 2 SCC 73 was relied on for this ·purpose.
--
VINITA SAXENA v. PANKAJ PANDIT [LAKSHMANAN, J.] 131
Answering the contention raised by the counsel for the appellant that A
the parties have not lived together for a long time and therefore, this is a fit
case to pass a decree of divorce, learned counsel for the respondent, submitted
that this is a wholly untenable argument and has to be rejected by this Court.
For this, he relied on the ruling of this Court in the case of A. Jayachandra
v. Anee/ Kaur, (supra).
B
Concluding his arguments, learned counsel appearing for the respondent
submitted that both the trial Court and the High Court have recorded concurrent
findings and have rejected the prayer of the appellant to grant decree of
divorce under Section 13(1)(i-a) and (iii) of the Act and, therefore, this Court
under Article 136 of the Constitution of India cannot interfere with the said C
findings unless it is established that the findings recorded by the trial Court
and the High Court are perverse.

Arguing further, he submitted that the findings of the trial Court are ·
based on the consideration of the entire evidence and well reasoned and in
similar circumstances, this Court refused to interfere with the concurrent D
findings of fact arrived at by the Courts in Savitri Pandey v. Prem Chandra
Pandey, (supra).

We have given our thoughtful and anxio~s consideration for the rival
submissions made by the respective counsel appearing on either side.
E
The appellant filed a petition for divorce under Section 13( I)(i-a) and
(iii) of the Act on the ground of 'ihental and physical cruelty. It is also her
case that on account of Paranoid Schizophrenia that the respondent was
suffering from, the appellant could not be reasonably expected to live with
the respondent. Section 13 (l)(i-a) and (iii) are reproduced hereunder:
F
"13. Divorce - (I) Any marriage solemnized, whether before or
after the commencement of this Act, may, on a petition presented by
either the husband or the wife, be dissolved by a decree of divorce
on the ground that the other party-

( i) has, after the solemnization of the marriage, had voluntary G
sexual intercourse with any person other than his or her spouse; or

(i-a) has, after the solemnization of the marriage, treated the
petitioner with cruelty; or

••*** H
132 SUPREME COCR1 REPORTS [2006] 3 S.C.R.

A (iii) has been incurably of unsound mind, or has been suffering
continuously or intermittently from mental disorder of such a kind
and to such an extent that the petitioner cannot reasonably be expected
to live with the respondent.

Explanation - In this clause, -
B
(a) the expression "mental disorder' means mental illness, arrested
or incomplete development of mind, psychopathic disorder or any
other disorder or disability of mind and includes schizophrenia;

(b) the expression "psychopathic disorder" means a persistent
C disorder or disability of mind (whether or not including sub-normality
of intelligence) which results in abnormally aggrc%ive or seriously
irresponsible conduct on the part of the other party, and whether or
not it requires or is susceptible to medical treatment; or

(iv) has been suffering from a virulent and incurable form of
D leprosy; or

(v) has been suffering from venereal dise:isc in a communicabk
form: or

(vi) has renounced the world by entering any religious order; or

E (vii) has not been heard of as being alive for a period of seven
years or more by those persons who would naturally have heard of
it, had that party been alive.

Explanation - In this sub-section, the expression "desertion" means
the desertion of the petitioner by the other party to the marriage
F without reasonable cause and without the consent or against the wish
of such party, and includes the wilful neglect of the petitioner by the
other party to the marriage, and its grammatical variations and cognate
expressions shall be construed accordingly.

(l-AJ Either party to a marriage, whether solemnized before or
G after the commencement of this Act may also present a petition for
the dissolution of the marriage by a decree of divorce on the ground

(i) that there has been no resumption of cohabitation as between
the parties to the marriage for a period of one year or upwards after
the passing of a decree for judicial separation in a proceeding to
H which they were parties; or
VINITA SAXENA v. PANKAJ PANDIT (LAKSHMANAN. J.] 133

(ii) that there has been no restitution of conjugal rights as between A
the parties to the marriage for a period of one year or upwards after
the passing of a decree for restitution of conjugal rights in a proceeding
to which they were parties.

(2) A wife may also present a petition for the dissolution of her
marriage by a decree of divorce on the ground - B
(i) in the case of any marriage solemnized before the
commencement of this act, that the husband had married again before
such commencement or that any other wife of the husband married
before such commencement was alive at the time of the solemnization
of the marriage of the petitioner: c
Provided that in either case the other wife is alive at the time of
the presentation of the petition; or

(ii) that the husband has, since the solemnization of the marriage,
been guilty of rape, sodomy or bestiality; or D
(iii) that in a suit under section 18 of the Hindu Adoptions and
Maintenance Act, 1956 (78 of 1956), or in a proceeding under section
125 of the Code of Criminal Procedure, I 973 (2 of 1974) (or under
the corresponding section 488 of the Code of Criminal Procedure,
1898 (5 of 1898), a decree or order, as the case may be, has been E
passed against the husband awarding maintenance to the wife
notwithstanding that she was living apart and that since the passing
of such decree or order, cohabitation between the parties has not been
resumed for one year or upwards; or

(iv) that her marriage (whether consummated or not) was F
solemnized before she attained the age of fifteen years and she has
repudiated the marriage after attaining that age but before attaining
the age of eighteen years.

Explanation - This clause applies whether the marriage was
solemnized before or after the commencement of the Marriage Laws G
(Amendment) Act, 1976.

It is not in dispute that the marriage has lasted hardly for five months
and was never consummated on account of the fact that the respondent was
incapable of performing his matrimonial obligations. The appellant has
H
134 SUPREME COURT REPORTS [2006] 3 S.C.R.

A examined herself as PW-I. She has specifically stated in her deposition that
the marriage was not consummated at all. It has further come out in her
deposition that she accompanied the respondent at AllMS and met Prof. Dr.
Prema Bali, Sexologist and Marriage Counsellor. In her deposition, it had
also come out that the Doctor informed her that the respondent cannot perform
the marital obligations. She was also informed by the said Doctor that the
B respondent was a Psychopathic case and he has no power of concentration.
She was also informed that the disease is of incurable in nature. The appellant
has further deposed that respondent kept on sleeping for three days immediately
after solemnization of marriage and the appellant was told that she should not
disturb him. It was further stated in her evidence that on 4.7.1993, the appellant
C was blamed for the respondent's illness and was mercilessly beaten up and
on the same day the respondent consumed "Baygon Spray" to commit suicide
and he was taken to Aashlok Hospital, Safdarjung Enclave by the appellant
and her brother.

In her cross-examination, the appellant has stated that though they were
D studying together in the Engineering College, however, there were no special
meetings between them except meeting in the class. It has also come on
record that there was no intimacy between the appellant and the respondent.
The appellant has emphatically denied the allegation about the intimacy
between the appellant and the respondent prior to marriage w.e.f. 1987. She
E also stated on oath that it was a marriage though of her choice but solemnized
only after her parents had given the consent. In the cross-examination, the
respondent has not been able to shake or destroy the case of the appellant.

In support of her case, PW-2, J.S. Saxena father of the appellant, was
examined. He supported the appellant's case and corroborated her evidence.
F Even in the cross-examination of PW-2, there is no material change or
inconsistency.

With regard to the grant of cruelty, there is deposition of the appellant
and her father on record which clearly establishes and proves that the appellant
was treated with cruelty by the respondent and his mother. With regard to the
G plea of mental insanity i.e. Section 13( I )(iii), the appellant adduced the
evidence of Dr. D.S. Arora, Medical Superintendent, Aashlok Hospital as
well as Dr. Kuldeep Kumar of Safdarjung Hospital. Dr. D.S. Arora, a
summoned witness produced the entire record pertaining to the respondent.
He exhibited the case of the respondent maintained by Dr. C.R. Samantha.
H Dr. D.S. Arora identified the signatures of Dr. C.R. Samantha and proved Ex.
VINITA SAXENA v. PANKAJ PANDIT [LAKSHMANAN, J.] 135
PW-3/1. The original record of respondent was produced in the Court. Dr. A
D.S. Arora also proved the prescriptions Ex. PW-3/2 and Ex. PW-3/3. Ex.
PW-3/5 was the prescription written by Dr. D.S. Arora and it was bearing his
signatures. The entire medical history and record of the respondent pertaining
to his medical illness, his visit and admission to Aashlok Hospital on 4.7.1993
and discharge on 7. 7.1993 as well as the case history of the resp<mdent
L maintained by Dr.C.R. Samantha were duly proved and exhibited. According B
to the medical record, the respondent was admitted with reference to a case
of Psychopathic and depression for the last fortnight, now admitted ,for
disturbed consciousness. He was suggested to take Triperidol medicine. The
other prescription has been authored by Dr. D.S. Arora who stated that the
respondent had consumed "Baygon Spray". It was also specified that the C
respondent is a known case of depression. Medicine 'Triperidol' was suggested
to be administered to him. With regard to the consumption of"Baygon Spray",
a stomach wash was carried out upon the respondent and he was administered
injections 'Atropine', and 'Dextrose-JN and PAM I to IN. The evidence of
Dr. D.S. Arora and the record signed by Dr. C.R. Samantha are admissible
in evidence and has been legally proved. The evidence of Dr. Kuldeep Kumar D
of Safdarjung Hospital also establishes the case of mental insanity and the
fact that the respondent was a case of Paranoid Schizophrenia. The said
Doctor produced the original record and made necessary deposition. He had
brought the originals during his examination and it is recorded that the
respondent had visited the Psychiatric Ward on 12.12.1992 along with his E
mother. Dr. Abhyankar also recorded about the history ofrespondent's illness.
It was also recorded by the said Doctor that the respondent_ suffers from
delusion of persecution and reference effect and on the physical examination
it had been observed that the respondent has clear systematized delusion of
persecution and reference and, therefore on the review it is clear that the
respondent is suffering from Paranoid Schizophrenia. The medical record of F
the respondent maintained by the Safdarjung hospital (Outdoor Patient
Department) has been established that the respondent visited Hospital on
21.12.1992 and was advised for psychological testing. It was observed in a
medical sheet that the respondent was initially diagnosed for psychosis.
However, on subsequent visits and after detailed examination it has been G
confmned that he suffers from Paranoid Schizophrenia.

The appellant has also produced on record a. communication dated
9.5.1994 addressed by Professor Dr. Prema Bali, who was working in the
Institute of Sexology and Marriage Counselling. Dr. Prema Bali is the relative
of respondent and she has communicated to the appellant that the respondent H
136 SUPREME COllRT REPORTS [20061 3 S.C.R.

A has a psychiatric problem as his case is a case of Paranoid Schizophrenia.
It would be pertinent to observe that there is no evidence whatsoever
adduced by the respondent or on his behalf. In fact, after recording of the
examination-in-chief and part cross-examination. the respondent refused to
come in the witness box and ran away. The observation has been made by
B the trial Court in the proceedings. A

RESEARCH ON THE DISEASE

"Schizophernia is one of the most damaging of all mental disorders.
It causes its victims to lose touch with reality. They often begin to
c hear, see or feel things that aren't really there (hallucinations) or
become convinced of things that simply aren't true (delusions). In the
paranoid form of this disorder, they develop delusions of persecution
or personal grandeur. The first signs of paranoid schizophrenia usually
surface between the ages of 15 and 34. There is no cure. but the
disorder can be controlkd with medications. Severe attacks may require
D
hospitalization.

The appellant has filed Annexures L,M,N.O.P and Q which are
extracts about the aforesaid disease. The extracts are sum and substance
of the disease and on a careful reading it would be well established
E that the evidence and documents on record clearly make out a case
in favour of appellant and hence appellant was entitled to the relief
prayed. In the memorandum and grounds of Appeal, some salient
features of the disease have also been specified. Some of the relevant
part of the extracts from various medical publications are reproduced --·
herein below:
F
What is the disease and what one should know?

• A psychotic lacks insight, has the whole of his personality distorted
by illness, and constructs a false environment out of his subjective
experiences.
G
• It is customary to define 'delusion' more or less in the following
way. A delusion is a false unshakeable belief, which is out of keeping
with the patient's social and cultural background.' German psychiatrists
tend to stress the morbid origin of the delusion, and quite rightly so.
A delusion is the product of internal morbid processes and this is
H what makes it unamenable to external influences.
VINITA SAXENA v. PANKAJ PANDIT [LAKSHMANAN, J.] 137

* Apophanuous experiences which occur in acute schizophrenia and A
form the basis of delusions of persecution, but these delusions are
also the result of auditory h!lllucinations, bodily hallucinations and
experiences of passivity. Delusions of persecution can take many
forms. In delusions of reference, the patient feels that people are
talking about him, slandering him or spying on him. It may be difficult
to be certain if the patient has delusions of self-reference or if he has B
self-reference hallucinosis. Ideas of delusions or reference are not
confined to schizophrenia, but can occur in depressive illness and
psychogenic reactions.

Causes
c
The causes of schizophrenia are still under debate. A chemical
imbalance in the brain seems to play a role, but the reason for the
imbalance remains unclear. One is a bit more likely to become
schizophrenic if he has a family member with the illness. Stress does
not cause schizophrenia, but can make the symptoms worse. D
Risks
Without medication and therapy, most paranoid schizophrenics
are unable to function in the real world. If they fall victim to severe
hallucinations and delusions, they can be a danger to themselves and
those around them. E
What is schizophrenia?

Schizophrenia is a chronic, disabling mental illness characterized
by:

* Psychotic symptoms F
* Disordered thinking

* Emotional blunting

How does schizophrenia develop?
G
Schizophrenia generally develops in late adolescence or early adulthood,
most often:

* In the late teens or early twenties in men

* In the twenties to early thirties in women
H
138 SUPREME COURT REPORTS [2006) 3 S.C.R.

A What are the symptoms of schizophrenia?

Although schizophrenia is chronic, symptoms may improve at
times (periods of remission) and worsen at other times (acute episodes,
or period of relapse).

B Initial symptoms appear gfadually and can include:

* Feeling tense
• Difficulty concentrating
• Difficulty sleeping
C • Social withdrawal

What are psychotic symptoms?

Psychotic symptoms include:
Hallucinations: hearing voices or seeing things
D
* Delusions : bizarre beliefs with no basis in reality (for
example, delusions of persecution or delusions of grandeur)
These symptoms occur during acute or psychotic phases of the
illness, but may improve during periods of remission. A patient may
E experience
• A single psychotic episode during the course of the illness
• Multiple psychotic episodes over a lifetime
• Continuous psychotic episodes
F During a psychotic episode, the patient is not" completely out of
touch with reality. Nevertheless, he/she has difficulty distinguishing
distorted perceptions of reality (hallucinations, delusions) from reality,
contributing to feelings of fear, anxiety, and confusion.

The disorder can prove dangerous for some - especially when
G symptoms of paranoia combine with the delusional symptoms of
schizophrenia. In fact, doctors say paranoid schizophrenics are
notorious for discontinuing the treatments which help control their
symptoms.

The Indian Drug Review has specified the Drug Trifluoperidol as
H
VINITA SAXENA v. PANKAJ PAND!T [LAKSHMANAN, J.) 139
a sedative and tranquilizer. With regard to administration it has been A
suggested that it is given to patient suffering from Schizophrenia.
Incidentally this drug was being administered on medical advice to
the respondent."

In our view, the trial Court failed to appreciate the uncontroverted
evidence of the appellant who had proved the case on every count. It has B
been established beyond doubt by the Medical doctors who had deposed as
witnesses and brought the original medical record of the respondent that the
respondent is suffering from mental disorder. Further ground for grant of
divorce on the plea of mental insanity/mental disorder is different than cruelty.
The appellant, in our view, had proved beyond doubt that the respondent C
l suffered from mental disorder and that the appellant suffered cruelty by and
at the behest of the respondent.

Learned single Judge of the High Court failed to appreciate that in the
absi:nce of any evidence led by the respondent, the appellant's evidence had
to be relied upon and on the basis of the evidence, the decree for divorce was D
bound to be granted in favour of the appellant. The appellant had also given
specific instances of cruelty which clearly establish that she had a reasonable
apprehension that it will be harmful or injurious for her to live with the
respondent.

LEGAL PROPOSITION ON THE ASPECT OF CRUELTY E
It is settled by 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 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 wilful treatment F
of the party which caused suffering in body or mind either as an actual fact
or by way 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
G
to human conduct or human 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 itself is bad enough and per se unlawful or illegal. Then the H
140 SUPRl::MF. COURT REPORTS \20061 3 S.l'.R.

A 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 cruelty alleged may largely depend upon the type of life the parties
are accustomed to or their economic and social conditions. their culture and
B human values to which they attach importance. Judged by standard of modem
civilization in the background of the cultural heritage and traditions of our
society. a young and well educated woman like the appellant herein is not
expected to endun: the harassment in domestic life whether mental, physical.
intentional or unintentional. Her sentiments have to be respected, her ambition
C and aspiration taken into account in making adjustment and her basic needs
provided, though grievances arising from temperamental disharmony. This
view was taken by the Kerala High Court in the case reported in AIR 1991
Kerala I.

In 1993 (2) Hindu L.R. 637, the Court had gone to the further extent
D of observing as follows:

"Sometime even a gesture. the angry look. a sugar coated joke.
an ironic overlook may be more cruel than actual beating"

Each case depends on its own facts and must be judged on these facts.
E The concept of cruelty has varied from time to time, from place to place and
from individual to 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 connection, the culture. temperament and status in life and many other
F things are the factors which have to be considered.

The legal concept of cruelty which is not defined by statute is generally
described as conduct of such character as to have caused danger to life, limb
or health (bodily and mental) or to give rise to reasonable apprehension of
such danger. The general rule in all question of cruelty is that the whole
G matrimonial relations must be considered, that rule is of a special value when
the cruelty consists not of violent act but of injurious reproaches, complains
accusations or taunts. It may be mental such as indifference and frigidity
rowards wife, denial of a company to her, hatred and abhorrence for wife or
physical, like acts of violence and abstinence from sexual intercourse without
H reasonable cause. It must be proved that one partner in the marriage however
t-
VINITA SAXENA v. PANKAJ PANDIT [LAKSHMANAN, J.] 141

mindless of the consequences has behaved in a way which the other spouse A
could not in the circumstances be called upon to endure, and that misconduct
has caused injury to health or a reasonable apprehension of such injury.
There are two sides to be considered in case of cruelty. From the appellant's
side, ought this appellant to be called on to endure the conduct? From the
respondent's side, was this conduct excusable? The court has then to decide B
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 which
the respondent might have in the circumstances, the conduct is such that the
petitioner ought not be called upon to endure.

As to what constitute the required mental cruelty for purposes of the
c
said provision, will not depend upon the numerical count of such incidents
or only on the continuous course of such conduct but really go by the intensity,
gravity and stigmatic impact of it when meted out even once and the deleterious
effect of it on the mental attitude, necessary for maintaining a conducive
matrimonial home. D
If the taunts, complaints and reproaches are of ordinary nature only, the
court perhaps need consider the further question as to whether their continuance
or persistence over a period of time render, what normally would, otherwise,
not be so serious an act to be so injurious and painful as to make the spouse E
charged with them genuinely and reasonably conclude that the maintenance
of matrimonial home is not possible any longer.

The modem view of cruelty of one spouse to another in the eye of law
has been summarised as follows in (1977) 42 DRJ 270 Halsbury Laws of
England Vol.12, 3rd edition page 270:- p
"The general rule in all kinds of cruelty that the whole matrimonial
relations must be considered and that rule is of special value when
the cruelty consists not of violent acts, but of injurious reproaches,
complaints, accusations of taunts. Before coming to a conclusion, the
judge must consider the impact of the personality and conduct of one G
spouse on the mind of the other, and all incidents and quarrels between
the spouses must be weighed from the point of view. In determining
what constitutes cruelty, regard must be had to the circumstances of
each particular case, keeping always in view the physical and mental
condition of the parties, and their character and social status."
H
142 SUPREME COURT REPORTS [2006) 3 S.C.R.

A This Court in Dastane v. Dastane, AIR (1975) SC 1575 observed as
under:-

"The Court has to deal not with an ideal husband and an ideal
wife, (assuming any such exist) but with the particular man and women
before it. The ideal couple or a mere ideal one will probably have no
B occasion to go to a matrimonial court or, even if they may not be able
to drawn their differences, their ideal attitudes may help them overlook
or gloss over mutual fault and failures.

Marriage without sex

c The Division Bench in the case of Rita Nijhawan v. Balkrishan
Nijhawan, in AIR (1973) Delhi 200 at 209 observed as follows:

"Marriage without sex is an anathema. Sex is the foundation of
marriage and without a vigorous and harmonious sexual activity it
would be impossible for any marriage to continue for long. It cannot
D be denied that the sexual activity in marriage has an extremely
favourable influence on a woman's mind and body. The result being
that if she does not get proper sexual satisfaction it will lead to
depression and frustration. It has been said that the sexual relations
when happy and harmonious vivifres woman's brain, develops her
character and trebles her vitality. It must be recognized that nothing
E
is more fatal to marriage than disappointment in sexual intercourse."

Section 13(1 )(iii) 'mental disorder' as a ground of divorce is only where
it is of such a kind and degree that the appellant cannot reasonably be expected
to live with the respondent. Where the parties are young and the mental
F disorder is of such a type that sexual act and procreation of children is not
possible it may furnish a good ground for nullifying the marriage because to
beget children from a Hindu wedlock is one of the principal aim of Hindu
Marriage where sanskar of marriage is advised for progeny and offspring.
This view was taken in AIR 1991 MP 205.

G This Court in Digvijay Singh v. Pratap Kumari, AIR (1970) SC 137
has held as follows

"A party is impotent if his or her mental or physical condition makes
consummation of the marriage a practical impossibility. The condition
must be one, according to the statute, which existed at the time of the
H marriage and continued to be so until the institution of the proceedings.
.'.J:t-···

VINITA SAXENA v. PANKAJ PANDIT [LAKSHMANAN, J.] 143

In order to entitle the appellant to obtain a decree of nullity; establish· A
that his wife, the respondent, was impotent at the time of the marriage
and continued to be so until the institution of the proceedings."

Lord Denning in Sheldon v. Sheldon, [1966] 2 All ER 257,

"The categories of cruelty are not disclosed. Each case may be B
different. We deal with the conduct of human being who are not
generally similar. Among the human beings there is no limit to the
kind of conduct which may constitute cruelty. New type of cruelty
may crop up in any case depending upon the human behaviour,
capability to tolerate the conduct complained of. Such is the wonderful
realm of cruelty." C
Spouses owe rights and duties each to the other and in their relationship
they must act reasonably. In every case where cruelty exists it is possible to
say that the spouse at fault has been unreasonable. The list of cruelty, therefore,
should be breach of the duty to act reasonably, whether in omission or
commission, causing injury to health. Such a list avoids imputing on intention D
where in fact none may exist. Further all such matters are foresight, desires,
wishes, intention, motives, perception, obtuseness, persistence and indifference
would remain relevant but merely as matter of evidence bearing upon the
requirement to act reasonably or as aggravation of the matters charged.
E
We can also take note of the fact that the respondent had filed a revision
against the order of the trial Court's direction for setting up of a medical
Board to examine the respondent. At the time of hearing, this Court directed
the counsel for the respondent to ascertain from the respondent as to whether
he is willing to submit himself for medical examination. However, the
respondent refused to submit himself for medical examination and go before F
the medical Board. This would but confirm the contention of the appellant
that the respondent is suffering from Paranoid Schizophrenia and that this
Court can draw adverse inference in view of the conduct of the respondent.

In the case of Smt. Uma Rani v. Arjan Devi, (supra), it has been held
that unsoundness of mind may be held to be cruelty. G
In the case of Harbhajan Singh Monga v. Amarjeet Kaur, (Supra), it
has been held that attempt to commit suicide by one spouse has been found
to amount to cruelty to other.
H
144 SUPREME COURT REPORTS (2006) 3 S.C.R.

A The observation made by this Court in the case of Shobha Rani v.
Madhukar Reddi, AIR ( 1988) SC 12 l can be reproduced to appreciate the
facts and circumstances of the case on hand. It reads as follows:

"There has been a marked change in the life around us. In
matrimonial duties and responsibilities in particular, there is a sea
B change. They are of varying degrees from house to house or person
to person. Therefore, when a spouse makes complaint about the
treatment of cruelty by the partner in life or relations, the Court
should not search for standard in life. A set of facts stigmatized as
cruelty in one case may not be so in another case. The cruelty alleged
may largely depend upon the type of life the parties are accustomed
c to or their economic and social conditions. It may also depend upon
their culture and human values to which they attach importance. The
Judges and lawyers, therefore, should not import their own notions of
life. Judges may not go in parallel with them. There may be a
generation gap between the Judges and the parties. It would be better
D if the Judges keep aside their customs and manners. It would be also
better if Judges less depend upon precedents."

Humane uspects which this Court should consider: ')

* The appellant was 24 years of age when she got married. ?
E * The marriage lasted for four to five months only when she was
compelled to leave the matrimonial home. ?

* The marriage between the parties was not consummated as the
respondent was not in a position to fulfil the matrimonial
obligation.?
F
* The parties have been living separately since 1993. 13 years
have passed they have never seen each other. ?

* Both the parties have crossed the point of no return. ?

* A workable solution is certainly not possible. ?
G
* Parties at this stage cannot reconcile themselves and live together
forgetting their past as a bad dream. ?

* Parties have been fighting the legal battle from the year 1994. ?

H . * The situation between the parties would lead to a irrefutable
VINITA SAXENA v. PANKAJ PANDIT [LAKSHMANAN, J.] 145
conclusion that the appellant and the respondent can never ever A
stay as husband and wife and the wife's stay with the respondent
is injurious to her health. 1

* The appellant has done her Ph.d. The respondent, according to
the appellant, is not gainfully employed anywhere. ?
B
* As a matter of fact, after leaving his deposition incomplete during
the trial, the respondent till date has neither appeared before the
trial Court nor before the High Court.

The facts and circumstances of the case as well as all aspects pertain
to humanity and life would give sufficient cogent reasons for us to allow the C
appeal and relieve the appellant from shackles and chain of the respondent
and let her live her own life, if nothing less but like a human being.

In our view, the orders of the Courts below have resulted in grave
miscarriage of justice to the appellant who has been constrained into living
with a dead relationship for over I 3 years. The resultant agony and injustice D
that has been caused to the appellant, it is a fit case for interference under
Article 136 of the Constitution of India and reversal of findings.of the Courts
below which have resulted in grave miscarriage of justice.

In the result, the civil appeal stands allowed. There will be a decree for
divor~e in favour of the appellant-wife and against the respondent-husband. E
The order of the trial Court as affirmed by the High Court, stands set aside.
There will be no order as to costs.

V.S. Appeal allowed.