Shri Rakesh Raman vs Smt. Kavita

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2012 OF 2013

SHRI RAKESH RAMAN … APPELLANT

Versus

SMT. KAVITA …RESPONDENT

JUDGMENT

SUDHANSHU DHULIA, J.

1. This appeal arises out of a divorce proceeding initiated by

the appellant under Section 13 of the Hindu Marriage Act,

1955, (hereinafter referred to as the “Act”), in the Court of

Additional District Judge (North), Tis Hazari Courts, Delhi. His

suit was decreed and the marriage was dissolved by the Order

Signature Not Verified of the Additional District Judge (North) dated 02.05.2009. The Digitally signed by NIRMALA NEGI Date: 2023.04.26 17:44:57 IST Reason: respondent/wife, then, filed an appeal before the Delhi High

Court which has set aside the order of the Trial Court and Page 1 of 17 dismissed the petition of the husband. Aggrieved by the said

Order, the appellant/husband has filed a Special Leave

Petition before this Court, in which leave was granted on

26.02.2013.

2. The appellant and the respondent were married under

Hindu rituals and customs in Delhi, on 16.04.1994.

Regrettably, it did not take long for the marital discord to set

in their marital life. The appellant’s case is that his wife was

not happy in their small dwelling, and used offensive, even

abusive language against him. It has also been alleged that in

September, 1994, she got her pregnancy terminated, without

any prior intimation to her husband (this allegation was

denied by the wife and could never be proved against her). It

was in September 1994, again when she left her matrimonial

home, but due to the efforts made by the well­wishers and

relatives, they started living together from March 1995

onwards. This again did not last long, as on 16.02.1998 she

left her matrimonial house, and lodged a complaint with the

local police on 16/17.02.1998. In March 1998, she agreed to

Page 2 of 17 join her husband, on the condition that the appellant would

take another accommodation and consequently in April, 1998

another house was taken on rent, and the two started living

together in the new house. But then, on 24.08.1998, the

appellant alleges that he was beaten by his wife and her

brother. On 29.11.1998, he was kept out of his own house for

the entire night. On 17.12.1998 she left her matrimonial

house and lodged an FIR against the appellant and his

brother, under Section 498A/406 of the Indian Penal Code, at

Anand Parbat Police Station, New Delhi. The appellant and

his brother were arrested the same day, while they were

attending a marriage ceremony, and this was done in the

presence of 15 to 20 of his friends. Later the two were

released on bail, though the wife persisted with the matter and

even moved an application for cancellation of their bail. The

wife then filed a complaint under Sections 323 and 324 read

with Section 34 IPC against the appellant/husband and his

family members, however, they were subsequently discharged

from the case. The respondent also initiated proceedings

against appellant under Section 107 read with Section 150 of Page 3 of 17 the Code of Criminal Procedure. She then filed a petition,

under Section 18 of Hindu Adoption and Maintenance Act,

1956, for her maintenance.

3. Left by his wife and burdened with multiple litigations

slapped on him, the appellant took the decision to end the

matrimonial relations. He thus moved his petition for

dissolution of marriage under Section 13(1) (ia) & (ib) of Hindu

Marriage Act, 1955, before the Additional District Judge, North

Delhi on 20.09.2002, inter alia, on the facts, as narrated in the

preceding paragraph.

4. The respondent denies that she ever ‘deserted’ her

husband or inflicted any cruelty on him. Her counsel would

submit that she only took recourse to legal avenues available

to her under the law. She alleges that her ornaments which

were her ‘stridhan’, were taken away and were never returned,

and how she was forced to file a case against her husband

under Sections 498A & 406 of the Indian Penal Code (IPC). It

was also her case that she had made every possible effort for

reconciliation, but due to the non­cooperation of the appellant,

Page 4 of 17 all efforts towards mediation and settlement resulted in

failure. She has denied that she had terminated her

pregnancy.

5. The Family Court on 15.10.2003 framed issues on

cruelty and desertion. The Trial Court gave the findings on

cruelty as well as desertion in favour of the husband and a

decree for the dissolution of marriage was passed.

6. The High Court in appeal, came to the conclusion that

the mere fact that the respondent did not allow her husband

to enter his house on 29.11.1998, would not prove that it was

her intention to bring cohabitation permanently to an end and

therefore the ground of dissolution of marriage on desertion

were not made out. As far as filing of various complaints under

Sections 323, 324 and 498A IPC are concerned, the High

Court was of the view that mere filing of such complaints, or

their result in acquittal would not amount to cruelty, as the

wife was only exercising her options available to her under the

law. Moreover, what has to be seen are also the circumstances

under which these complaints were filed. Page 5 of 17

7. We have heard Mr. S.K. Rungta, learned Senior Advocate

for the appellant/husband and Mr. S.K. Bhalla learned

Advocate for the respondent/wife at length and perused the

material on record.

8. This case has travelled from the Family Court to the High

Court and now finally to this Court. The decision of Delhi High

Court is of 08.04.2011, which goes back to twelve years. We

have to take into consideration all the facts which are before

us as of now. To our mind the facts which we must take into

account are: (i) that the “couple” is now living separately for

the last almost 25 years, and all these years there has been no

cohabitation between them. (ii) That there is no child out of

the wedlock, and the couple lived together as husband and

wife for barely 4 years. (iii) That repeated efforts by the Courts

for reconciliation or settlement have resulted in failure.

9. At the very initial stage the Trial Court had sent the

parties for mediation, which did not succeed. This Court had

also sent the two for mediation, which failed. The case was

again sent for settlement in the Lok Adalat but with no results. Page 6 of 17 On 11.04.2015, this Court again requested the parties to

explore possibilities of living together, but nothing

materialised. Then on 09.05.2015, this Court asked the

parties to come to some mutual settlement, but in vain. In

other words, every single effort of the Court and the mediators,

towards a compromise or settlement has led to a blind alley.

Even now, before giving a formal hearing to the parties we

tried to gather the current situation from the parties. The

appellant has unequivocally stated that there is no room for

any compromise or settlement and he requests that a decision

be made in this case on its merits, whereas the counsel for the

respondent apprised this Court that the respondent would like

to save her marriage and he prays for mediation once again.

He would also submit that no ground for divorce has been

made out and the well­considered decision of Delhi High Court

should be upheld.

10. The husband and wife, who are before us have been

living separately since the last 25 years. There is no child out

of the wedlock. There are bitter allegations of cruelty and

Page 7 of 17 desertion from both the sides and multiple litigations between

the two in the last more than 25 years. This embittered

relationship between the appellant and the respondent which

has not witnessed any moment of peace for the last 25 years is

a marital relationship only on paper. The fact is that this

relationship has broken down irretrievably long back.

11. The High Court has taken a view that mere filing of

criminal cases against the appellant­husband would not

constitute cruelty. All the same, the number of criminal cases

filed by the respondent­wife against the appellant­husband are

far too many which have been discussed above. All these

cases have either resulted in discharge or acquittal of the

appellant­husband, if not before the pronouncement of the

Judgment of the Delhi High Court but definitely after the

pronouncement of the Judgment of the Delhi High Court.

Moreover, a three Judge Bench of this Court in Naveen Kohli

v. Neelu Kohli1 held that repeatedly filing of criminal cases by

one party against the other in a matrimonial matter would

1 (2006) 4 SCC 558 Page 8 of 17 amount to cruelty and the same was reiterated by a Division

Bench of this Court in K. Srinivas Rao v. D.A. Deepa2.

12. Other aspect which we must consider is the fact that for

the last 25 years the appellant and respondent, are living

separately, and have not cohabitated. There is absolutely no

scope of reconciliation between the parties. There is in fact no

bond between the two and as the Law Commission in its 71st

report said about such a marriage, which is a marriage which

has de facto broken down, and only needs a de jure

recognition by the law. The same was reiterated by the Law

Commission in its 217th report.

13. Under similar circumstances, this Court in R. Srinivas

Kumar v. R. Shametha3, Munish Kakkar v. Nidhi Kakkar4

and Neha Tyagi v. Lieutenant Colonel Deepak Tyagi5 has

held that an irretrievable marriage is a marriage where

husband and wife have been living separately for a

2 (2013) 5 SCC 226

3 (2019) 9 SCC 409 4 (2020) 14 SCC 657 5 (2022) 3 SCC 86 Page 9 of 17 considerable period and there is absolutely no chance of their

living together again. In all the above cited three cases, this

Court in exercise of its power under Article 142 of the

Constitution of India has dissolved the marriage on the ground

of irretrievable breakdown as a ground, which otherwise does

not exist under the Hindu Marriage Act.

14. In Naveen Kohli (supra), a strong recommendation has

been made by this Court to the Union of India to consider

adding irretrievable breakdown down of a marriage as a

ground for divorce under the Hindu Marriage Act.

15. The multiple Court battles between them and the

repeated failures in mediation and conciliation is at least

testimony of this fact that no bond now survive between the

couple, it is indeed a marriage which has broken down

irretrievably.

16. Matrimonial cases before the Courts pose a different

challenge, quite unlike any other, as we are dealing with

human relationships with its bundle of emotions, with all its

Page 10 of 17 faults and frailties. It is not possible in every case to pin

point to an act of “cruelty” or blameworthy conduct of the

spouse. The nature of relationship, the general behaviour of

the parties towards each other, or long separation between the

two are relevant factors which a Court must take into

consideration. In Samar Ghosh v. Jaya Ghosh6 a three

judge Bench of this Court had dealt in detail as to what would

constitute cruelty under Section 13 (1) (ia) of the Act. An

important guideline in the above decision is on the approach

of a Court in determining cruelty. What has to be examined

here is the entire matrimonial relationship, as cruelty may not

be in a violent act or acts but in a given case has to be

gathered from injurious reproaches, complaints, accusations,

taunts, etc. The Court relied on the definition of cruelty in

matrimonial relationships in Halsbury’s Laws of England (Vol

13, 4th Edn, Para 1269, Pg 602) which must be reproduced

here:

“The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, 6 (2007) 4 SCC 511 Page 11 of 17 accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exists.”

The view taken by the Delhi High Court in the present

case that mere filing of criminal cases by the wife does not

constitute cruelty as what has also to be seen are the

circumstances under which cases were filed, is a finding we do

not wish to disregard totally, in fact as a pure proposition of

law it may be correct, but then we must also closely examine

the entire facts of the case which are now before us. When we

take into consideration the facts as they exist today, we are

Page 12 of 17 convinced that continuation of this marriage would mean

continuation of cruelty, which each now inflicts on the other.

Irretrievable breakdown of a marriage may not be a ground for

dissolution of marriage, under the Hindu Marriage Act, but

cruelty is. A marriage can be dissolved by a decree of divorce,

inter alia, on the ground when the other party “has, after the

solemnization of the marriage treated the petitioner with

cruelty”7. In our considered opinion, a marital relationship

which has only become more bitter and acrimonious over the

years, does nothing but inflicts cruelty on both the sides. To

keep the façade of this broken marriage alive would be doing

injustice to both the parties. A marriage which has broken

down irretrievably, in our opinion spells cruelty to both the

parties, as in such a relationship each party is treating the

other with cruelty. It is therefore a ground for dissolution of

marriage under Section 13 (1) (ia) of the Act.

17. Cruelty has not been defined under the Act. All the

same, the context where it has been used, which is as a

ground for dissolution of a marriage would show that it has to 7 Section 13 (1) (ia) of the Hindu Marriage Act, 1955 Page 13 of 17 be seen as a ‘human conduct’ and ‘behavior” in a matrimonial

relationship. While dealing in the case of Samar Ghosh

(supra) this Court opined that cruelty can be physical as well

as mental: ­

“46…If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse.

Cruelty can be even unintentional: ­

…The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill­treatment.”

This Court though did ultimately give certain

illustrations of mental cruelty. Some of these are as follows:

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

Page 14 of 17

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

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

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair.

The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.

(emphasis supplied)

18. We have a married couple before us who have barely

stayed together as a couple for four years and who have now

been living separately for the last 25 years. There is no child

out of the wedlock. The matrimonial bond is completely

broken and is beyond repair. We have no doubt that this

relationship must end as its continuation is causing cruelty on

both the sides. The long separation and absence of

cohabitation and the complete breakdown of all meaningful Page 15 of 17 bonds and the existing bitterness between the two, has to be

read as cruelty under Section 13(1) (ia) of the 1955 Act. We

therefore hold that in a given case, such as the one at hand,

where the marital relationship has broken down irretrievably,

where there is a long separation and absence of cohabitation

(as in the present case for the last 25 years), with multiple

Court cases between the parties; then continuation of such a

‘marriage’ would only mean giving sanction to cruelty which

each is inflicting on the other. We are also conscious of the

fact that a dissolution of this marriage would affect only the

two parties as there is no child out of the wedlock.

19. Under these circumstances, we uphold the Order of the

Trial Court, though for different grounds given by us in our

order, and we set aside the Order of the High Court and grant

a decree of divorce to the appellant/husband. Their marriage

shall stand dissolved.

20. However, considering the fact that the

appellant/husband is an employee in Life Insurance

Corporation, as we have been informed at the Bar and his Page 16 of 17 present salary is more than Rs.1,00,000/­ (One Lakh Rupees)

per month, we deem it fit and proper that he gives an amount

of Rs.30,00,000/­ (Thirty Lakh Rupees) to the respondent/wife

as permanent alimony. This amount of Rs.30,00,000/­ (Thirty

Lakh Rupees) shall be deposited in the name of the

respondent, within a period of four weeks from today with the

Registry of this Court. The decree of divorce shall be made

effective only from the date of such a deposit. On the event of

such deposit, the Registry after verifying the credentials of the

respondent/wife shall disburse the amount to the

respondent/wife without further reference to this Court.

With the aforesaid directions, the appeal stands allowed.

..……….………………….J. [SUDHANSHU DHULIA]

...………………………….J. [J. B. PARDIWALA] New Delhi.

April 26, 2023.

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