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“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6332-6333 OF 2009

Darshan Gupta … Appellant

Versus

Radhika Gupta … Respondent

J U D G M E N T

Jagdish Singh Khehar, J.

1. The  marriage  between  the  appellant-husband,  Darshan  Gupta  and  the  

respondent-wife, Radhika Gupta, was solemnized on 9.5.1997 at the Holiday Inn  

Hotel in Hyderabad, as per Hindu rights and customs.  This was not the first  

matrimonial alliance between the two families.  The husband’s elder brother was  

already married to the wife’s sister.  Both parties admittedly belong to well-to-do  

families.   At  the  time  of  marriage  between  the  parties,  Darshan  Gupta,  the  

husband was 22 years of age, and Radhika Gupta was 19.  Now the husband is  

35, and the wife 32.  The marriage between the parties was duly consummated,  

and their relationship blossomed into one full of love and affection.

2. The cordiality between the parties continued for a period of two years, till  

the  wife  conceived  for  the  first  time  in  February  1999.   The  aforestated  

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conception was aborted when Radhika Gupta was in the fourth month of  her  

pregnancy, as she had commenced to suffer from hypertension resulting into fits,  

extreme morning sickness and general  weakness.   The decision to abort  the  

pregnancy in June, 1999, was based on medical advice.  

3. The wife Radhika Gupta conceived for the second time in February 2000.  

During the instant pregnancy, she had similar symptoms, as she had suffered on  

the earlier occasion.  For the aforesaid reason, and on medical advice, when the  

pregnancy  was  in  its  eighth  month,  a  caesarian  operation  was  performed  in  

September, 2000.  At the time of birth of the child, the wife, Radhika Gupta, was  

unconscious.  Even after  the child was delivered, she remained unconscious.  

The child born to Radhika Gupta survived for only eight days.

4. Since Radhika Gupta had developed serious medical complications, she  

was treated at the best hospitals at Hyderabad, amongst others at the Apollo  

Hospital, as an indoor patient.  Doctors from across the country were consulted.  

They had attended upon her, at the behest of her husband Darshan Gupta.  To  

ensure that there was no deficiency in her medical upkeep, she was shifted to  

the Leelavathi Hospital at Mumbai.  At Mumbai, further tests were conducted and  

surgeries  were  performed.   She  also  sought  consultations  from the  National  

Institute of Medical Health and Neuroscience, Bangalore (NIMHANS).

5. During  the treatment  of  Radhika  Gupta,  neurologists  and gynecologists  

looking after her believed, that she had suffered brain damage.  On that account,  

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she is stated to have lost her memory, so much so, that she could not even  

recognize persons of close affinity.  Her speech was also stated to have been  

substantially impaired. It was averred, that the condition of the wife was such,  

that  she could  not  even discharge her  personal  obligations.   She had to  be  

assisted by an attendant.  According to the contention of Darshan Gupta, the  

condition of Radhika Gupta was no better than a child of five years.  He also  

alleged,  that  Radhika  Gupta’s  condition  was such,  that  she could  not  be left  

alone in the room, nor could she be permitted to use the bathroom by herself.  

Gynecologists, who examined Radhika Gupta had opined, that she was not fit for  

discharging her matrimonial obligations.  They also felt, that she could not bear a  

child.  Neurologists believed, that it was impossible for the husband to live with  

Radhika  Gupta.   On  the  subject  of  their  marital  relationship,  the  husband  

contends, that his wife did not allow him to touch her physically, even to please  

her.  It is the husband’s assertion, that at times Radhika Gupta would wake up in  

the middle of the night, and thereafter, would not allow him to sleep.  Darshan  

Gupta even accused his wife, for shouting and screaming without any reason.   

6. For the upkeep, maintenance and sustenance of  his wife, the appellant  

Darshan Gupta, is stated to have created a trust with a corpus of Rs.10,00,000/-.  

For his wife’s residence, the appellant Darshan Gupta persuaded his father to  

execute a lease deed of a flat in a posh locality, at a nominal rent, in favour of the  

trust.  Besides the aforesaid, the appellant Darshan Gupta has been paying his  

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wife  Radhika  Gupta  a  sum  of  Rs.25,000/-  per  month  towards  maintenance,  

during the pendency of the proceedings.

7. In response, the case set up by Radhika Gupta has been, that after her  

first conception was aborted in June, 1999, the attending gynecologist at Apollo  

Hospital, had cautioned the couple against any further conception for at least two  

years.  The couple had been advised, that pregnancy of Radhika Gupta during  

this period could lead to serious medical complications.  Despite having been  

forewarned by the gynecologist, Radhika Gupta alleges, that her husband had  

proceeded with unsafe cohabitation,  resulting in a second pregnancy within a  

short period of eight months (after the termination of the first pregnancy), i.e.,  

well within the unsafe period.  According to Radhika Gupta, true to the advice of  

the  attending  gynecologist,  the  second  pregnancy  resulted  in  the  same  

symptoms as she had suffered during her first pregnancy.  It was her assertion,  

that she had again started to suffer from hypertension resulting in fits, extreme  

morning sickness and general weakness.  Despite the precarious condition of the  

wife,  she  was  persuaded  by  her  husband,  Darshan  Gupta,  to  carry  on  the  

pregnancy till the eighth month.  The wife acknowledges the caesarian operation  

conducted on 20.9.2000, as also the fact, that the child born to her surviving for  

only  eight  days.   In this  behalf  her  assertion is,  that  her  husband was to be  

blamed  for  the  same,  as  he  did  not  heed  to  the  medical  advice  of  the  

gynecologist.  According to Radhika Gupta, the fall out of the second pregnancy,  

specially the effect thereof to her health, was the real cause of the turn around of  

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the  matrimonial  relationship,  between  the  parties.   For  that,  Radhika  Gupta  

blames her husband.

8. Despite  the  factual  position  noticed  hereinabove,  Radhika  Gupta  –  the  

wife, claims to be hale and hearty.  Before the Family Court, she had expressed,  

that she was ready and willing for any medical evaluation, at the Court’s behest.  

According to Radhika Gupta, after the death of the new born, her husband did  

not extend, the care that she deserved from him.  This had happened after the  

termination of the first pregnancy also.  At that juncture, her parents had taken  

her to neurologists, psychologists and occupational therapists of national repute.  

After the caesarian surgery,  Radhika Gupta had remained unconscious.   She  

used to suffer series of fits.  It is therefore, that she had to be shifted to the Apollo  

Hospital.  After treatment, she had regained her consciousness, and had become  

more oriented.  It is the wife’s assertion, that yet again after the episode of the  

second pregnancy, the husband did not extend any emotional or moral support to  

her.  Rather than taking care of her, she was shifted to her parents’ house in May  

2002.  It is the wife’s contention, that her parents again took good care of her.  

They  had again  sought  advice  from specialists  of  different  medical  fields,  as  

before.  The undisputed factual position between the parties is, that ever since  

she was shifted to her parents house in May 2002, Radhika Gupta has remained  

at her parents’ house, except for a few days (from 29.9.2011 to 3.10.2011), that  

also, in compliance with the desire and directions of this Court.

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9. It has been, and it still is, the wife’s case, that she is intensely concerned  

about  her  future  relationship  with  her  husband,  and  that,  her  greatest  and  

paramount desire is to rejoin her husband, and to live with him normally in a  

matrimonial  relationship,  once  again.   According  to  the  respondent-wife,  all  

efforts  made by  her  have failed,  only  on  account  of  the  rigid  attitude  of  her  

husband.

10. On the above facts, OP No.926 of 2002 was filed by the appellant-husband  

before the Family Court seeking dissolution of marriage under clauses (ia) and  

(iii) of Section 13(1) of the Hindu Marriage Act, 1955.  As against the aforesaid,  

OP No.629 of 2003 was filed by Radhika Gupta, before the same Court, seeking  

restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955.  

Both the cases were clubbed together.  Evidence was recorded in OP No.926 of  

2002, and the same was treated as evidence for the determination of OP 629 of  

2003 as well.   

11. Darshan Gupta examined four witnesses in all.  He examined himself as  

PW1.  He examined his maternal aunt Nirmala Devi as PW2.  Darpan Gupta, the  

twin elder brother of the appellant-Darshan Gupta was examined as PW3.  Dr. M.  

Veera Raghava Reddy, a practicing neurologist  was examined as PW4.  The  

testimony of the husband Darshan Gupta who appeared before the Family Court  

as PW1, was in consonance with the factual position indicated in the pleadings,  

as also, in the factual  narration recorded hereinabove.   PW2 and PW3 being  

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close  family  relations  supported  the  statement  of  Darshan Gupta-PW1,  in  all  

material  particulars.   While  deposing  before  the  Family  Court,  Dr.  M.  Veera  

Raghava Reddy-PW4 stated, that he had referred the respondent-wife Radhika  

Gupta  to  Dr.  Nagaraja  for  a  second  opinion.   The  said  second  opinion  was  

sought by the appellant-husband Darshan Gupta, and his relations.  Even though  

Dr. M. Veera Raghava Reddy-PW4, somewhat towed the line of the appellant-

husband  Darshan  Gupta  during  the  course  of  his  examination-in-chief,  he  

acknowledged  during  the course  of  his  cross-examination,  that  when he  had  

visited Radhika Gupta at her residence, her physical condition was normal.  He  

also accepted, that he had not prescribed any medicine to the respondent-wife,  

for the effect of eclampsia on the brain, as there was no medicine for it.   He  

admitted, that he did not advise or refer Radhika Gupta to any psychiatrist  or  

clinical physiologist, for evaluating her physical and mental functions, nor did he  

prescribe her any treatment to improve the said functions.  He however opined,  

from his experience, that even if treatment had been taken by Radhika Gupta  

from  psychiatrists/clinical  physiologists,  her  improvement  would  have  been  

limited to 4-5%.  He also acknowledged, that he had never given any opinion to  

the appellant-husband, that Radhika Gupta was suffering from loss of cognitive  

deficiency,  or  that  she  was not  fit  for  conjugal  life.   It  would  be  pertinent  to  

mention, that it stands noticed in the order of the Family Court, that when Dr. M.  

Veera Raghava Reddy-PW4, appeared before the Family Colurt to depose in the  

matter, Radhika Gupta was sitting in the court–hall observing court proceedings.  

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During their interaction Dr. M. Veera Raghava Reddy-PW4, had enquired about  

her welfare.  She had responded by stating, “I am fine sir, thank you.”.

12. It would be pertinent to mention, that Radhika Gupta chose not to examine  

herself as a witness, in either of the two cases before the Family Court.  She only  

examined Dr. C.R. Mukundan-RW1, in her defence.  During the course of his  

deposition, Dr. C.R. Mukundan-RW1 had produced three documents Exhibits R1  

to R3.  As per his deposition, when he had examined Radhika Gupta, he was  

working  as  Professor  of  clinical  psychiatry  in  the  neuro-psychology  unit,  at  

NIMHANS, in Bangalore.  Consequent upon the respondent-wife’s evaluation by  

him, he had issued reports Exhibits R1 and R2.  As per the said reports, Radhika  

Gupta had undergone intensive cognitive re-training using brain function therapy,  

and  that,  she  was  provided  with  graded  re-training  in  alphabet  and  number  

recognition  and  delayed  recall,  recognition  and  recall  of  words  and  figures,  

different levels of working memory, etc.  It was duly noted in Exhibit R2, that at  

the first neuro-psychological assessment of Radhika Gupta at NIMHANS in June  

2002,  as  also,  in  the  second  assessment  made  in  July  2002,  there  was  

considerable improvement in her medical condition.  It is also recorded in Exhibit  

R2,  that  as  per  the  follow  up  report,  she  was  currently  showing  significant  

improvement  in  all  cognitive  areas,  and  that,  her  word  finding  difficulty  was  

reduced by 60-70%.  It also stands duly noted, that she could not spontaneously  

name household articles, and food materials, or recall the names of persons and  

objects  seen  in  movies  or  read  in  books.   The  report  (Exhibit-R2)  however  

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indicates,  that  when  she  had  difficulty  to  spontaneously  name  an  article  or  

person, she would succeed to do so with a little effort.  The report (Exhibit R2)  

also notices, that her working memory had improved so much, that the same  

could  be described as “near  normal”,  because she was able  to  execute  and  

complete, working memory tasks.  Thereafter, Radhika Gupta was subjected to a  

third  neuro-psychological  assessment  in  October,  2002.   Again  marked  

improvement was found in her conceptual organization of numbers, and ability  

for arithmetic operations.  On this occasion it was found, that her writing skills still  

required further improvement.  The said third assessment expressly notices, that  

Radhika  Gupta  was  capable  of  all  normal  emotional  experiences  and  

expressions,  and  that,  she  was  intimately  desirous  of  restoring  her  future  

relationship with her husband.  She was found to be fully capable of a happy  

marital  life.   Interestingly,  the  aforesaid  report  underlines  the  fact,  that  her  

improvement would have been a lot more significant and faster, if her husband  

had been with her, and had cared for her in her journey to recovery.   It  was  

however, pointed out, that Radhika Gupta still lacked in self-confidence.  Yet, she  

was  found  to  be  highly  motivated  for  further  improvement,  and  her  logical  

thinking  and  expressive  abilities  were  described  as  excellent.   Exhibit  R3  

produced by Dr. C.R. Mukundan-RW1, was on the same lines as the earlier two  

exhibits.  Dr. C.R. Mukundan-RW1, deposed, that Radhika Gupta was not a case  

of mental disorder.  Her case was of severe cognitive deficiencies, on account of  

brain  damage.   She had suffered,  the aforesaid brain  damage on account  of  

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eclampia during the course of  her  second pregnancy.   According to Dr.  C.R.  

Mukundan-RW1,  in  some  areas  of  deficiency,  she  was  found  to  have  fully  

recovered.  In some areas of cognitive deficiencies her improvement was about  

60-70%.  According to Dr. C.R. Mukundan-RW1, Radhika Gupta had recovered  

her working memory by more than 80%.  It was further pointed out, that cognitive  

deficiency is recoverable, but is dependant on the degree of damage to the brain,  

as  also,  the  emotional  support  the  patient  gets  from family  members  at  the  

relevant  time.  In his examination-in-chief,  Dr.  C.R. Mukundan-RW1 deposed,  

that during her treatment he had requested Radhika Gupta to bring her husband  

along with her.  But her husband had never accompanied her.  It was sought to  

be explained, that the presence of Darshan Gupta, would have given emotional  

support  to  her.   This  position  remained  uncontested  during  his  cross-

examination.  On the issue of cognitive deficiencies, it was sought to be clarified,  

that even though the same would affect the quality of life of Radhika Gupta, yet  

the same would have no effect on her matrimonial obligations.  During the course  

of his cross-examination, Dr. C.R. Mukundan-RW1, denied the suggestion, that  

Radhika Gupta was not in a position to discharge her normal day to day functions  

of life, like bolting a door after entering the bathroom, or opening a door after  

bolting it.  He acknowledged, that he himself had given the reports at Exhibits R2  

and R3.  At this juncture, it would be necessary to notice, that after consulting Dr.  

C.R. Mukundan-RW1, the appellant-husband Darshan Gupta desired a second  

opinion, for which he obtained a letter from Dr. M. Veera Raghava Reddy-PW4,  

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addressed to Dr. Nagaraja.  Thereafter, the appellant-husband Drashan Gupta  

visited Dr. Nagaraja for a second opinion, but while seeking the same, he did not  

admittedly take the respondent-wife Radhika Gupta for examination at the hands  

of Dr. Nagaraja.   

13. Dr. M Gauri Devi, Superintendent, Institute of Mental Health, Erragadda,  

Hyderabad, was examined as Court Witness 1(CW1).  Dr. M. Gauri Devi-CW1  

constituted a medical board, at the asking of the Family Court, for examining and  

evaluating the medical condition of Radhika Gupta.  The aforesaid medical board  

comprised  of  Dr.  Ch.  Venkata  Suresh,  Assistant  Professor  of  Psychiatry  of  

Institute of Mental Health, Hyderabad, Dr. K. Ashok Reddy, Associate Professor  

of Psychiatry of Institute of Mental Health and Dr. S. Bhaskara Naidu, Professor  

of  Clinical  Psychology of  Institute  of  Mental  Health  Hyderabad.   The medical  

board having examined Radhika Gupta, submitted its report (Exhibit C1) to the  

Family Court.  A perusal of the medical report indicates, that the medical board  

had  recorded  its  conclusions  on  the  basis  of  the  medical  history  of  Radhika  

Gupta, as also, the observations and examination of the respondent-wife.  The  

medical board expressed the opinion, that the Radhika Gupta was suffering from  

cognitive  deficiencies,  in  the  form  of  difficulty  in  comprehension,  attention,  

concentration,  orientation,  perceptual  ability,  memory  retrieval,  word  finding  

difficulty  and organization  ability.   The said  effects,  according  to  the  medical  

board, could influence her day to day functioning.  The defects were, however,  

found to be on account of brain damage involving predominately the parietal-

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temporal  region  of  the brain.   It  was concluded,  that  Radhika  Gupta  did  not  

manifest  any  signs  of  major  mental  disorder,  and  that,  she  exhibits  normal  

adequate emotional  responses.   It  was opined,  that  she would further benefit  

from  neuro-psychological  rehabilitation  measures,  which  are  available  at  

NIMHANS.   

14. Dr. Bhaskar Naidu, one of the members of the medical board, deposed  

before the Court as CW2.  He was cross-examined first by the learned counsel  

representing the respondent-wife Radhika Gupta, and thereafter, by the learned  

counsel representing the appellant-husband, Darshan Gupta.  On being cross-

examined at  the behest  of  the respondent-wife,  he stated that  he was of  the  

opinion that Radhika Gupta was suffering from some deficiency of intelligence.  

He further stated, that the average intelligence quotient of a human is between  

92  to  110  points.   He  opined  that  Radhika  Gupta  possessed  the  intelligent  

quotient between 50 to 55 points.  It was sought to be explained, that a person  

having between 70 to 90 points is called a slow learner or border line person, and  

a  person  having  between  50  to  70  points  is  described  as  one  of  moderate  

intelligence.  In the aforesaid view of the matter, he accepted that Radhika Gupta  

could be described as an individual of “moderate intelligence”.  He also opined,  

that by undergoing therapy training, there is a likelihood of Radhika Gupta to  

further  improve her cognitive deficiency.   When Dr.  Bhaskar  Naidu-CW2 was  

cross-examined  by  the  learned  counsel  representing  the  appellant-husband  

Darshan  Gupta,  he  asserted  that  Radhika  Gupta  was  suffering  from mild  to  

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moderate cognitive deficiency.  He also expressed, that the aforesaid deficiency  

would not come in her way in discharging her matrimonial obligations.

15. Based on the evidence led by the rival parties, and also, through the court  

witnesses,  the  Family  Court  arrived  at  the  conclusion,  that  the  husband  had  

failed to establish,  that  he was subjected  to  cruelty  at  the hands  of  Radhika  

Gupta.  On the issue of aggressive and abnormal behavior of the wife, the Family  

Court felt, that there was no evidence before the Court, except the deposition of  

interested witnesses, namely, the appellant-husband himself, his maternal aunt  

Nirmala Devi and his elder twin brother Darpan Gupta.  The Court was of the  

view,  that  such  behavior,  if  it  was  actually  there,  could  have  easily  been  

established through nurses and attendants of Radhika Gupta.  But these, or such  

like witnesses were withheld, even though they could have been easily available  

to the appellant-husband.  It was also concluded, that Darshan Gupta had not  

been able to prove, that his wife was suffering from any incurable unsoundness  

of mind and/or mental disorder.  Insofar as the solitary expert witness produced  

by the appellant-husband Darshan Gupta is concerned, Dr. M. Veera Raghawa  

Reddy-PW4,  had  admitted  that  while  examining  Radhika  Gupta,  he  did  not  

observe any signs of aggressiveness in the respondent-wife.  On the contrary, he  

affirmed, that she was having a smiling face, and also, observed a calm and cool  

conduct.   

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16. The  Family  Court,  on  the  basis  of  oral  and  documentary  evidence  

produced before it, arrived at the conclusion that Radhika Gupta did not suffer  

from any mental disorder or unsoundness of mind.  She merely suffered from  

cognitive deficiency.  The aforesaid cognitive deficiency was acquired during her  

second  pregnancy.   She was  found  to  have  substantially  improved  from her  

cognitive deficiency, during the course of her treatment.  The Family Court also  

expressed the opinion, that Radhika Gupta could have improved even further,  

had there been moral and emotional support to her by her husband, Darshan  

Gupta.  In fact, the trial Court felt, that the appellant-husband Darshan Gupta had  

never given the respondent, moral or emotional support, during the time of her  

distress.  Despite the request of her treating doctor, he never accompanied her  

during the course of her consultations with doctors.  The Family Court expressed  

the view, that the appellant husband Darshan Gupta himself, was responsible for  

the state of affairs of his wife-Radhika Gupta, inasmuch as, he did not heed the  

advise of the gynecologist, after the abortion of her first pregnancy in June 1999.  

The consulting Gynecologist had advised the couple against planning any further  

conception,  for  a period of  at  least  two years.   Despite the aforesaid  advice,  

Darshan Gupta impregnated his wife Radhika Gupta, just after eight months of  

the  said  abortion.   His  desires  had  overridden,  the  health  advisory  of  the  

gynecologist.  The Family Court also concluded, that the appellant-husband had  

failed to establish, that the mental unsoundness of mind or mental disorder of the  

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respondent-wife was of such degree, that he could not be expected to live with  

her.   

17. Having regard to the aforesaid conclusions, the Family Court  dismissed  

OP No.926 of 2002 filed by the appellant-husband Darshan Gupta on the ground  

that he had not been able to prove the ingredients of either clause (ia) or clause  

(iii) of Section 13(1) of the Hindu Marriage Act, 1955.  On the other hand, OP  

No.629 of 2003 was allowed holding that the respondent-wife was entitled to the  

relief  of  restitution  of  conjugal  rights.   Her  husband  Darshan  Gupta  was  

accordingly directed to receive her back into his house within three months, and  

to give her moral and emotional support.  On his failure to do so, he was directed  

to continue to pay the interim maintenance amount fixed by the Family Court, till  

he finally accepts her back into his house.  At this juncture, and in the context  

under reference, it would be sufficient to record, that the parties have not been  

able to reside together till date.

18. Dissatisfied with the common order dated 2.2.2006 passed by the Family  

Court, Hyderabad, the appellant husband filed FCA No.36 of 2006 to assail the  

order passed in OP No.629 of 2003.  Similarly, he filed FCA No.37 of 2006 to  

impugn the order passed in OP No.926 of 2002.  The High Court disposed of  

FCA No.36 of 2006 and FCA No.37 of 2006 by a common order dated 6.7.2009.  

By  the  aforesaid  common order,  the  High  Court  dismissed  both  the  appeals  

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preferred by the appellant-husband, by accepting and re-endorsing each finding  

of fact, recorded by the Family Court, Hyderabad.

19. The common order passed in FCA No.36 of 2006 and FCA No.37 of 2006  

by the High Court on 6.7.2009 was assailed by the appellant-husband Darshan  

Gupta by filing Petitions for Special Leave to Appeal being SLP (C) Nos.22571-

22572 of 2009.  On 14.9.2009, this Court granted leave, in the above mentioned  

petitions.

20. On 27.7.2011, this Court directed both parties with their family members to  

appear before the Hon’ble Judges hearing the matter, in chamber.  Accordingly,  

on  23.8.2011,  the  parties  appeared,  and  were  heard  in  chambers.   While  

adjourning  the  matter  to  19.9.2011,  the  Hon’ble  Judges  who  had  heard  the  

parties in chamber recorded, that the parties were not in a position to arrive at an  

amicable settlement.   Despite the above, on the next date of hearing, i.e.,  on  

19.9.2011, learned counsel representing the rival parties informed this Court, that  

the appellant, as well as, the respondent had expressed their mutual willingness  

to live together in a separate flat, initially for a period of at least six months.  This  

Court, being desirous of an amicable settlement, permitted the appellant and the  

respondent to live together.  While granting the said liberty, the bench hearing  

the matter,  recorded its earnest hope,  that there would be no interference by  

other family members.   The parties were required to inform this Court,  of the  

outcome of their effort.   

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21. It  is  submitted  by  learned  counsel  representing  the  rival  parties,  that  

Radhika  Gupta  joined  her  husband  Darshan  Gupta  in  a  separate  flat  at  

Hyderabad,  on  29.9.2011.   Darshan  Gupta  and  Radhika  Gupta,  however,  

remained together only for a few days.  During the said period, the parties could  

not persuade themselves to maintain a relationship of cordiality, nor was there  

any physical relationship between them.  Radhika Gupta left the company of the  

appellant-husband  Darshan  Gupta  on  3.10.2011.   On  the  said  date  itself,  

Radhika Gupta addressed a letter to the Registry of this Court.  The said letter  

read thus :

“The Hon’ble Supreme Court, by the order dated 19.09.2011 directed us to  live happily for a period of six months.  In pursuance to the directions of the  Hon’ble  Supreme  Court,  my  husband  taken  me  into  his  matrimonial  company on 29.09.2011 and kept me separately at his row (sic) house  situated at Jubilee Hills.

However, I am reporting from that day i.e. 29.09.2011 my husband is not  behaving properly with me.  Instead of showing love and affection, he is  abusing  me with filthy  language without  any reason.   He is  calling me  “PAGAL” as and when he is addressing me.  He is further saying that I  have no sense and intelligence.  Further he repeating me to leave him by  taking money.  He is further saying that even though his appeal before  Supreme Court is dismissed he is not going to live with me.  My in-laws  also compelling me to agree for divorce by accepting money.  My husband  threatening me to agree for Divorce.  The torture of my husband is beyond  my tolerance.   Hence under  the above compelling  circumstances  I  am  leaving to my mothers’ place.”

It  is  apperant  from the above,  that  the efforts  of  the parties  to convince one  

another, of settling the matter amicably, did not yield to any fruitful results.

22. It  is  thus,  that  the  matters  came  to  be  relisted  for  hearing.   Learned  

counsel representing the rival parties expressed their desire, that the appeals be  

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heard  and  disposed  of  on  merits.   It  is  therefore,  that  we have  resolved  to  

adjudicate upon the matters.   We may only  record,  that it  is  routine to settle  

issues of law, but it is formidably cumbersome, and distressingly painful to decide  

issues of relationship.  All the same, having heard learned counsel for the rival  

parties, we shall record our conclusions, on the issues canvassed.  

23. The appellant-husband has sought dissolution of marriage on two grounds.  

First and foremost, he claims to have been subjected to cruelty on account of the  

intemperate behaviour of his wife.  For the instant prayer, he relies on clause (ia)  

of Section 13(1) of the Hindu Marriage Act, 1955.  The second ground on which  

the  appellant-husband  seeks  dissolution  of  marriage  is,  that  his  wife  is  of  

incurable  unsound  mind,  and  suffers  from  such  a  mental  disorder,  that  the  

appellant cannot be reasonably expected to live with her.  For the instant second  

prayer, the appellant-husband relies on clause (iii) of Section 13(1) of the Hindu  

Marriage Act, 1955.  The two provisions on the basis whereof the husband seeks  

annulment of marriage are being extracted hereunder for facility of reference:-

“13. Divorce (1) Any  marriage  solemnised,  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—

1[(ia) has,  after  the  solemnisation  of  the  marriage,  treated  the  petitioner with cruelty; or

(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-

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(a) the expression “mental disorder” means mental illness, arrested or  incomplete development of mind, psychopathic disorder or any other  disorder or disability of mind and includes schizophrenia;

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

24.  Insofar as the allegation of cruelty levelled against the wife is concerned,  

the same did not constitute a serious challenge at the hands of the appellant on  

the basis of the facts pleaded and proved during the course of hearing.  Being  

conscious of  the fact,  that the Family Court,  as well  as,  the High Court  were  

unanimously of the view, that the appellant had failed to discharge the onerous  

responsibility  of  substantiating  even  a  single  fact  to  demonstrate  any  erratic  

behaviour of Radhika Gupta, which would constitute and establish cruelty at the  

hands  of  the  wife  towards  the  husband,  recourse  was  advisedly  taken  to  

cumulatively  project  the  factual  position  for  both  the  grounds,  on  the  basis  

whereof  annulment  of  marriage  was  sought,  i.e.,  on  account  of  intemperate  

behavior, as well as, on account of the alleged mental condition of the wife.  This  

is how we understood the submissions advanced at the hands of the learned  

counsel for the appellant-husband.  And therefore, that is the manner in which  

the same will be considered.  We shall, therefore, first briefly record the factual  

basis constituting the foundation of the challenge.

25. On  the  attitude  of  Radhika  Gupta,  the  respondent-wife,  towards  the  

appellant-husband, specially after September,  2000, it  was submitted that she  

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was  totally  disoriented,  after  she  regained  consciousness.   She  could  not  

distinguish right from wrong.  She was no better than a child of five years.  She  

would wake up in the middle of the night and would start shouting without any  

reason.  She would not allow the appellant-husband Darshan Gupta to sleep,  

after  she had woken up.   Even otherwise,  her shouting and screaming could  

occur  at  any  time  of  the  day  (or  night)  without  any  cause.   She  was  

unpredictable.  Neurologist had opined, that it was impossible for Darshan Gupta,  

the appellant-husband, to live with his wife Radhika Gupta.  On the subject of her  

mental  condition,  it  was sought to be asserted, that after the tragedy wherein  

Radhika  Gupta,  lost  her  new born only  eight  days after  the child’s  birth;  the  

appellant-husband, as also his family members, left no stone unturned for the  

restoration of her health.  For that, she was taken to the best hospitals, which  

specialized in the very disorder, she suffered from.  Specialists in all the relevant  

fields  including  neurologists,  gynecologists,  psychologists,  occupational  

therapists, and the like, were duly consulted.  When advised, second opinions of  

experts were also sought.  Yet the condition of Radhika Gupta, did not improve to  

an extent, as would render her competent, even to take care of herself.  In this  

behalf, it was submitted, that it was not safe to leave the respondent-wife alone in  

her  bedroom.   Likewise,  she could  not  be permitted to  use the bathroom by  

herself.  Accordingly, an attendant was engaged to help Radhika Gupta, even for  

her  personal  day  to  day  activities.   Insofar  as  the  mental  condition  of  the  

respondent-wife is concerned, based on the testimony of Dr. M. Veera Raghava  

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Reddy-PW4, it was submitted that there was no likelihood of any improvement in  

her mental framework, inasmuch as, her improvement (as per the testimony of  

PW4) would be limited to 4-5%.  It was submitted, that she was forgetful, and had  

lost her memory.  She could not name household articles or food materials.  She  

could also not recall  the names of  persons and incidents,  she was otherwise  

well-versed with.  Her working memory was sub-normal, and therefore, she could  

not be expected to execute day to day tasks, or to perform ordinary obligations,  

towards  her  husband and the other  family  members.   Her mental  deficiency,  

according to the learned counsel  representing the appellant-husband,  was on  

account of brain damage suffered by her, at the time of the caesarian operation  

performed upon her, in September, 2000.  The said brain damage, according to  

the learned counsel, was irreparable.  It was pointed out, that the behaviour of  

Radhika Gupta,  thereafter was proof in itself,  for the aforesaid assertion.   On  

account  of  the aforesaid brain damage,  even her speech was stated to have  

been substantially impaired.  On the subject of their marital relationship, it was  

contended,  that  the same was just out  of  the question.   In this behalf  it  was  

sought to be pointed out, that Radhika Gupta would not allow the appellant to  

touch her  physically,  even to please her.   The enjoyment  of  marital  life was,  

therefore,  unimaginable.   According  to  the opinion tendered by Dr.  M.  Veera  

Raghava  Reddy-PW4,  on  account  of  the  cognitive  deficiency  suffered  by  

Radhika Gupta, she was not fit for conjugal life.  With great emphasis, learned  

counsel representing the appellant-husband pointed out, that Radhika Gupta was  

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no longer fit to bear a child.  This position, according to the learned counsel, was  

acknowledged unanimously by specialists treating her.  It was, therefore sought  

to be suggested, that the mental disorientation of Radhika Gupta was of an order  

and extent, that the appellant-husband could not reasonably be expected to live  

with her.  Living with her would result in subjecting himself to cruelty.

26. The response of the learned counsel, to the factual averments canvassed  

at the hands of the learned counsel for the appellant-husband, constituted a two-

pronged attack.   First  and foremost  it  was sought  to be averred,  that  it  was  

Darshan Gupta, the appellant-husband, who was pointedly responsible for the  

medical  condition of  the respondent-wife.   It  was therefore submitted,  that  he  

ought to squarely accept his fault for the same.  Accordingly it was contended,  

that it  was not open to him to press a claim for dissolution of marriage under  

Section 13(1) of the Hindu Marriage Act, 1955, by making accusations, for which  

he himself was blameworthy.  In this behalf it was submitted, that after the first  

conception  of  Radhika  Gupta  was  aborted  in  June,  1999,  the  attending  

gynecologist  at  Apollo Hospital,  had cautioned the couple  against  any further  

conception, for at least two years.  The couple had been made aware of the fact,  

that  any  pregnancy  during  this  period  would  lead  to  serious  medical  

complications.  Despite having been conscious of the disastrous consequences  

of  Radhika  Gupta’s  conception,  Darshan  Gupta  had  proceeded  with  unsafe  

cohabitation, resulting in her pregnancy within a short period of eight months i.e.,  

well  within the risk period.   It  was submitted, that the advice of  the attending  

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gynecologist,  had proved to be correct,  inasmuch as, Radhika Gupta suffered  

hypertension resulting in fits, extreme morning sickness and general weakness.  

It  was pointed out,  that  the situation could still  have been saved,  but  for  the  

extreme desire of the husband Darshan Gupta, to have a child.  It is, therefore,  

that  the  second  pregnancy  was  not  terminated.   Radhika  Gupta,  therefore,  

suffered  torturous  health  conditions,  during  the  eight  months  of  her  second  

pregnancy.   The  forbidden  pregnancy  eventually  resulted  in  brain  damage,  

leading  to  the  consequences  on  the  basis  whereof  Darshan  Gupta  presently  

seeks dissolution of marriage.  In this behalf it was also sought to be vehemently  

contended, that the appellant-husband was not truly interested in the recovery of  

Radhika Gupta, inasmuch as, he never extended any emotional support to her,  

despite  the  trauma  that  she  had  gone  through  after  she  lost  her  baby  in  

September,  2000.   It  was  submitted,  that  according  to  the  experts  who  had  

examined  her,  her  improvement  would  have  been  a  lot  more  significant  and  

faster, if her husband had been with her, and had cared for her, in her journey to  

recovery.  Even though her attending doctor is stated to have repeatedly asked  

Radhika Gupta to bring her husband alongwith her, Darshan Gupta had never  

accompanied her during the course of her consultations with Dr. C.R. Mukundan-

RW1.  It was, therefore submitted, that the appellant cannot be granted relief, for  

a wrong for which he himself was responsible.

27. Learned counsel representing Radhika Gupta even contested the factual  

premise, on which the appellant-husband had based his claim for dissolution of  

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marriage.  Insofar as the factual position is concerned, Radhika Gupt contended,  

that she was hale and hearty.  Even though she acknowledged, that she was  

mentally  disoriented  immediately  after  she  had  undergone  the  cesarean  

operation  in  September,  2000,  it  was  averred,  that  she  had  regained  her  

consciousness and had become normal.   Relying on the reports  prepared by  

experts  during  the course of  her  treatment  as far  back as in June,  July  and  

October, 2002, it was submitted that she had shown significant improvement in  

all cognitive areas.  Even her working memory had improved, so much so, that  

experts had evaluated the same as normal.   It  was pointed out, that Radhika  

Gupta was fully capable of enjoying a happy marital life, and that, there was no  

evidence on the record of the case to establish, that her mental condition would  

have any effect on her matrimonial obligations.  On her abilities to discharge her  

matrimonial obligations, it was submitted that Radhika Gupta was assessed as  

possessing  normal  and  adequate  emotional  responses.   During  the  entire  

traumatic  period,  in  the  course  whereof  the  parties  had  separated  from one  

another, she had persistently expressed that she was intensely concerned with  

her future relationship with her husband, and that, her greatest and paramount  

desire was to rejoin her husband, and to live with him normally in a matrimonial  

relationship once again.  Based on expert opinion tendered by the medical board  

constituted by the Family Court, the statement of Dr. C.R. Mukundan-RW1, as  

also,  the testimony  of  Dr.  Bhaskara  Naidu-CW2, it  was submitted,  that  there  

could  be no doubt,  that  the respondent-wife was possessed of  all  necessary  

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ingredients,  mental  as  well  as,  physical,  for  effectively  discharging  her  

matrimonial  obligations.   On the  above  averments  it  was submitted,  that  the  

Family Court, as well as, the High Court had justly adjudicated the controversy,  

by expressing the same opinion concurrently.

28. We  have  given  our  thoughtful  consideration  to  the  rival  submissions  

advanced at the hands of the learned counsel for the parties.  First and foremost,  

we must  record,  that  the  respondent-wife  Radhika  Gupta  admittedly  suffered  

brain damage after her cesarean operation in September, 2000.  It is not a matter  

of dispute, that she had remained unconscious for some time even after having  

delivered  a  baby  on  20.9.2000.   It  appears,  that  at  the  time  of  regaining  

consciousness, she was totally disoriented, having lost her memory.  The extent  

to which she had lost her memory is not discernible from the evidence available  

on the record of the case.  It was most definitely substantial, as it is clear, that  

she could not even recognize persons of  close affinity.   She could not  name  

household articles and food materials.  She could not remember the names of  

persons known to her.  She could also not recall the objects and incidents seen  

by her.  She was unable to execute and complete, working memory tasks.  Even  

her conceptual organization of numbers, and ability for arithmetic operations, was  

limited.  Not only that, even her speech was substantially impaired.

29. To deal with her medical condition, her husband Darshan Gupta seems to  

have initially extended full financial support, by seeking consultation of specialists  

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in fields wherein Radhika Gupta needed assistance.  He also ensured, that such  

treatment  was  provided  to  her  at  premium  hospitals.   Material  on  record  

demonstrates,  that  she was admitted  at  the Apollo  Hospital,  Hyderabad,  and  

thereafter,  at  the  Leelavathi  Hospital,  Mumbai.   Her  treatment  at  NIMHANS,  

Bangalore, also emerges from the record of the case.  There can, therefore, be  

no doubt about the initial commitment of Darshan Gupta towards the welfare of  

his wife Radhika Gupta.   

30. It,  however,  seems,  that the appellant-husband was skeptical  about  the  

outcome  of  her  recovery.   His  assessment  of  her  medical  condition,  in  the  

background of the inputs from the doctors attending on her, probably created the  

impression,  that  she  would  henceforth  be  a  liability  on  him.   Dr.  M.  Veera  

Raghava Reddy-PW4 may have been responsible for the said impression.  Even  

during  the  course  of  his  testimony  before  the  Family  Court,  Dr.  M.  Veera  

Raghava Reddy-PW4 had opined, that from his experience he could state, that  

even if  the respondent  Radhika Gupta was treated by psychiatrists  or clinical  

physiologists, her improvement would be limited to 4-5%.  Keeping in mind the  

hopeless  condition  of  Radhika  Gupta,  the  appellant-husband  could  not  have  

expected any kind of positive relationship with Radhika Gupta.  It was natural for  

him  to  infer,  that  his  wife  would  henceforth  be  a  useless  burden.   It  is  not  

reasonable to blame him for  his impressions.   In 2000,  when the unfortunate  

incident occurred, he was merely 25 years old.  One would expect, that all his  

dreams of a happy married life, came to be shattered after seeing the medical  

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condition of his wife, specially in the background of the assessment made by the  

experts  being  consulted.   The  aforesaid  impression  in  his  mind,  clearly  

demonstrates  the  reason  of  his  responses  towards  Radhika  Gupta,  in  the  

aftermath of her medical tragedy.  He was absolutely sure, that she would never  

be able to lead a normal life, and that, there was no question of her being able to  

perform her matrimonial obligations.  It is in the aforesaid background, that it is  

easier to understand why he had refrained from extending emotional or moral  

support to Radhika Gupta.  But the inescapable truth is, that factually Darshan  

Gupta did not extend emotional or moral support to his wife, after her medical  

episode.  The distress of Darshan Gupta, and the distance that he started to  

keep from his wife, emerge from the statement of Dr. C.R. Mukundan-RW1.  Dr.  

C.R. Mukundan-RW1 placed on the record of the Family Court three documents  

(Exhibits R1 to R3).  The aforesaid documents pertain to the treatment of Radhia  

Gupta during 2002.  In our view, those are the safest documents to be relied  

upon,  for  truly  assessing  the  medical  conditions  of  Radhika  Gupta.   These  

reports cannot be said to have been created, at the asking of one or the other.  

They were honest  impressions expressed about  the state of  mental  health of  

Radhika  Gupta.   The  attending  doctor  of  Radhika  Gupta  considered  it  

appropriate to expressly record in one of these reports, that during her treatment,  

he had requested Radhika Gupta to bring her husband along with her.  He also  

noted,  that  the  husband  had  never  accompanied  her,  despite  his  aforesaid  

indication to Radhika Gupta.  The consequence of non-participation of Darshan  

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Gupta in the course of treatment of Radhika Gupta, is also recorded in the report.  

The report notices, that her improvement would have been a lot more significant  

and faster, if her husband had been with her and had cared for her in her journey  

to recovery.  The reasons which may have weighed in the young husband’s mind  

may be any, but the harsh reality is, that Darshan Gupta did not extend due care  

and support to his wife, nor did he participate in her journey to recovery.

31. Shorn  of  the  participation  and  support  of  Darshan  Gupta  to  his  wife  

Radhika Gupta, it is still material to determine the extent of her recovery.  An  

assessment of the mental condition of Radhika Gupta, would render it possible  

for  us to determine whether or  not  in terms of  Section 13(1)(iii)  of  the Hindu  

Marriage Act, 1955, her mental disorder is of such a kind, and to such an extent,  

that Darshan Gupta cannot reasonably be expected to live with her.  Insofar as  

the instant aspect of the matter is concerned, it would be just and appropriate to  

refer  to and rely  upon,  the three reports  prepared at  the relevant  time.   The  

aforesaid  reports  were placed on the record of  the Family  Court  by Dr.  C.R.  

Mukundan-RW1.  The said  reports  were prepared in June,  July  and October  

2002.  The reports reveal, that Radhika Gupta had undergone intensive cognitive  

re-training using brain function therapy, and she was provided with graded re-

training in alphabet and number recognition and delayed recall, recognition and  

recall of words and figures, different levels of working memory, etc.  In the first  

neuro-psychological assessment of Radhika Gupta at NIMHANS in June, 2002,  

as  also,  in  the  second  assessment  made  in  July,  2002,  considerable  

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improvement was found in the medical condition of Radhika Gupta.  She was  

found to have shown significant  progress in all  cognitive areas,  and that,  her  

word finding difficulty was reduced by 60-70%.  Even though the report records,  

that she could not spontaneously name household articles and food materials, or  

recall the names of persons and objects seen in movies or read in books, yet  

was noticed, that she could do so with some effort.  The report also records, that  

her  working  memory  had  improved  to  an  extent,  that  the  same  could  be  

described as “near normal”.  In her aforesaid assessment, she was found to be  

able  to  execute  and  complete,  working  memory  tasks.   Radhika  Gupta  was  

subjected to a third neuro-psychological  assessment in October,  2002.  Again  

marked improvement was found in her conceptual organization of numbers and  

ability for arithmetic operations.  The instant third assessment expressly records,  

that  Radhika  Gupta  was  capable  of  all  normal  emotional  experiences  and  

expressions.  Her eager and earnest desire about her future reunion with her  

husband, is also indicated in the report.  She has been assessed as fully capable  

of shouldering the responsibilities of a happy marital life.  Dr. C.R. Mukundan-

RW1  categorically  testified,  that  Radhika  Gupta  was  not  a  case  of  mental  

disorder.  He clarified, that her case was of cognitive deficiency, on account of  

brain damage.  According to RW1, Radhika Gupta had recovered her working  

memory  by  more  than  80%.   He also  explained,  that  cognitive  deficiency  is  

recoverable, but the recovery is dependent on the degree of damage to the brain,  

as also, the emotional support the patient gets from the family members, at the  

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relevant time.  It would be pertinent to mention, that this is the testimony of the  

same doctor,  who had been requiring Radhika Gupta to bring Darshan Gupta  

along with her, during the course of her consultations.  During the course of his  

cross-examination, Dr. C.R. Mukunan-RW1 denied the suggestion, that Radhika  

Gupta was not in a position to discharge her normal day to day functions of life.

32. Besides the testimony of Dr. C.R. Mukundan-RW1, it would be relevant to  

mention, that the Family Court had directed Radhika Gupta to appear before a  

medical board.  It would be appropriate to refer to the findings and conclusions  

recorded in the report submitted by the said medical board, which comprised of  

eminent specialists in psychiatry and clinical psychology.  In the aforesaid report  

(Exhibit  C1) submitted to the Family Court,  conclusions were recorded on the  

basis of  the medical  history of  Radhika Gupta,  as also,  the observations and  

examinations of the respondent-wife.  The medical board expressed the opinion,  

that  Radhika  Gupta  was  suffering  from  cognitive  deficiencies  in  the  form  of  

difficulty  in  comprehension,  attention,  concentration,  orientation,  perceptual  

ability, memory retrieval, word finding difficulty and organization ability.  The said  

effects, according to the Board, could influence her day to day functioning.  It was  

however  concluded,  that  Radhika  Gupta  did  not  manifest  any  signs of  major  

mental disorder, and that, she exhibited normal adequate emotional responses.  

It  was  also  opined,  that  she  would  further  benefit  from  neuro-psychological  

rehabilitation measures, which are available at NIMHANS.  Dr. Bhaskar Naidu,  

one of the members of the medical  board,  was also examined by the Family  

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Court,  as a court witness.  During the course of his deposition,  Dr. Bhaskara  

Naidu-CW2, expressed the opinion that Radhika Gupta could be described as a  

person of moderate intelligence.  He also expressed, that by undergoing therapy  

training, there was a further likelihood of improving her cognitive deficiencies.  He  

also clarified, that the deficiencies suffered by Radhika Gupta, would not come in  

her way to discharge her matrimonial obligations.   

33. The  aforesaid  material,  in  our  considered  view,  would  be  sufficient  in  

recording our conclusions,  in  respect  of  the mental  health  of  Radhika Gupta.  

Based on the evidence discussed hereinabove, it is not possible for us to record,  

that Radhika Gupta suffers from any incurable unsoundness of mind.  It is also  

not possible for us to hold, that she suffers from such mental disorder, that it  

cannot be reasonably expected of her husband to live with her.  The evidence  

produced before the Family Court leaves no room for us but to conclude, that  

Radhika Gupta merely suffers from mild to moderate cognitive deficiencies.  She  

is  categorized  by  medical  experts  as  an  individual  of  moderate  intelligence.  

Material on the record of the case reveals, that she would further benefit from  

neuro-psychological rehabilitation measures, which are available at NIMHANS.  

Even though the said deficiencies could influence her day to day functioning, but  

expert  opinion  is  unanimous  that  the  same  would  not  come  in  her  way  to  

discharge her matrimonial obligations.  It cannot also be overlooked, that experts  

have  clearly  expressed  that  Radhika  Gupta  exhibits  normal  and  adequate  

emotional responses.  She has right from the beginning, fervently expressed the  

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desire to restore her relationship with her husband, and to live a normal life, in a  

matrimonial relationship with him.  In the aforesaid view of the matter, it is not  

possible for us to conclude, that the mental condition of Radhika Gupta is such  

as would persuade us to accept the appeal preferred by Darshan Gupta under  

Section 13(1)(iii) of the Hindu Marriage Act, 1955.

34. It would also be relevant for us to refer to the alleged erratic behaviour of  

Radhika  Gupta.   In  this  behalf,  it  would  be  pertinent  to  mention,  that  it  was  

pointedly asserted at the behest of the appellant-husband, that Radhika Gupta  

would wake up in the middle of the night, and thereafter, would not allow him to  

sleep.  It  was  also  contended,  that  Radhika  Gupta  would  shout  and  scream  

without any provocation or cause, at any time of the day (or night).  Other similar  

allegations were also levelled by Darshan Gupta against his wife.  The Family  

Court,  while  dealing  with  the  said  allegations,  had rejected  the  same on the  

ground, that there was no evidence before the Court, except the deposition of  

interested witnesses, namely, the appellant-husband himself, his maternal aunt  

Nirmala Devi and his elder twin brother Drapan Gupta.  Since the husband did  

not produce independent witnesses available to him before the Family Court, it  

was concluded that the husband had failed to establish, that Radhika Gupta’s  

behaviour was aggressive, erratic or abnormal; or that he was subject to cruelty  

on account of such behaviour.  We are of the considered view, that the Family  

Court, as also, the High Court were fully justified in drawing their conclusions,  

insofar  as the alleged abnormal,  erratic  and aggressive behaviour of  Radhika  

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Gupta is concerned.  The courts below were fully justified in recording, that the  

said behaviour of Radhika Gupta could have easily been established through the  

testimony of the attendants who looked after Radhika Gupta, as also, the other  

staff, yet the said witnesses were not produced by the appellant, despite their  

availability.  Interestingly, however, the appellant-husband himself had produced  

Dr. M. Veera Raghava Reddy-PW4, to support his cause.  Dr. M. Veera Raghava  

Reddy-PW4 appearing for the appellant-husband, during his deposition asserted  

that  he did  not  observe  any signs  of  aggressiveness  in  the  respondent-wife.  

Since  Radhika  Gupta  was  under  the  care  and  treatment  of  Dr.  M.  Veera  

Raghava Reddy-PW4, he would have obviously known of her erratic behaviour, if  

the  allegations  of  the  husband  were  correct.   The  respondent-wife  had  also  

produced Dr.  C.R.  Mukundan-RW1 on her  behalf.   He too would  have been  

aware of such behaviour.  The appellant Darshan Gupta, however, chose not to  

examine Dr. C.R. Mukundan-RW1, on the said subject.  In fact, there is material  

on  the  record  of  the  case  to  draw  a  finding,  converse  to  the  submission  

advanced.  In this behalf, it would be pertinent to mention, that in the order of the  

Family  Court  it  is duly  noted,  that when Dr. M. Veera Raghawa Reddy-PW4,  

appeared to depose in the matter, Radhika Gupta was sitting in the court-hall  

observing court proceedings.  During his interaction with Radhika Gupta, PW4  

had enquired about her welfare, and she had responded by stating “I am fine sir,  

thank  you”.   The  very  court  which  Radhika  Gupta  had  repeatedly  visited,  

recorded  the  above  instance  to  demonstrate  that  her  behavior  was  far  from  

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erratic, as suggested by the husband.  The position, in our view, would be no  

different,  even  if  we  consider  these  facts  in  conjunction  with  her  medical  

condition.   We  are,  therefore,  satisfied  in  accepting  the  conclusion  drawn  

concurrently by the courts below, that there was no material on the record of the  

case, to substantiate the alleged aggressive, erratic or abnormal behaviour of  

Radhika Gupta.  In the aforesaid view of the matter, it is not possible to accept  

the appeal preferred by the appellant even under Section 13(1)(ia) of the Hindu  

Marriage Act, 1955.

35. Despite our aforesaid conclusions, it is necessary to examine the instant  

controversy  from another  point  of  view.   As  noticed  hereinabove,  it  was  the  

vehement contention of the learned counsel for the respondent-wife, based on  

the pleadings filed by Radhika Gupta, as also, the evidence produced by her,  

that  it  was the husband Darshan Gupta  alone,  who was blameworthy  of  the  

medical  condition  of  the  respondent.   It  was  submitted,  that  Darshan  Gupta  

desires  to encash on his  own fault,  by seeking dissolution of  marriage,  for  a  

consequence, of which he himself was blameworthy.  The instant submission,  

though not  canvassed in that  manner,  can be based on a legal  premise.   A  

perusal of the grounds on which divorce can be sought under Section 13(1) of  

the Hindu Marriage Act, 1955, would reveal, that the same are grounds based on  

the  ‘fault’  of  the  party  against  whom  dissolution  of  marriage  is  sought.   In  

matrimonial  jurisprudence,  such  provisions  are  founded  on  the  ‘matrimonial  

offence theory’ or the ‘fault theory’.  Under this jurisprudential principle, it is only  

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on the ground of  an opponent’s  fault,  that  a party  may approach a Court  for  

seeking annulment of his/her matrimonial alliance.  In other words, if either of the  

parties is guilty of committing a matrimonial offence, the aggrieved party alone is  

entitled to divorce.   The party seeking divorce under the “matrimonial  offence  

theory” / the “fault theory” must be innocent.  A party suffering “guilt” or “fault”  

disentitles  himself/herself  from  consideration.   Illustratively,  desertion  for  a  

specified continuous period, is one of the grounds for annulment of marriage.  

But the aforesaid ground for annulment is available only, if the desertion is on  

account of the fault of the opposite party, and not fault of the party which has  

approached the Court.  Therefore, if a husband’s act of cruelty, compels a wife to  

leave her matrimonial home, whereupon, she remains away from the husband for  

the stipulated duration, it would not be open to a husband to seek dissolution of  

marriage, on the ground of desertion.  The reason being, that it is the husband  

himself who was at fault, and not the wife.  This is exactly what the respondent  

has contended.  Her claim is, that in actuality the appellant is making out a claim  

for  a  decree  of  divorce,  on  the  basis  of  allegations  for  which  he  himself  is  

singularly  responsible.   On  the  said  allegations,  it  is  Darshan  Gupta,  who  

deserves to be castigated.  Therefore, he cannot be allowed to raise an accusing  

finger  at  the  respondent  on  the  basis  of  the  said  allegations,  or  to  seek  

dissolution of marriage, thereon.   

36. There is no dispute between the rival parties, that after Radhika Gupta’s  

first conception was aborted in June, 1999, the attending gynecologist at Apollo  

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Hospital, had cautioned the couple against any further conception for at least two  

years.  The couple had been advised, that pregnancy of Radhika Gupta during  

this period could lead to serious medical complications.  Radhika Gupta alleges,  

that her husband had proceeded with unsafe cohabitation, leading to her second  

pregnancy,  within  a  short  period  of  eight  months  (after  the abortion  in June,  

1999), i.e. well within the risk period.  Clearly contrary to the medical advisory.  

The  truth  of  the  second  conception,  cannot  be  disputed,  in  view  of  the  

overwhelming supporting evidence on the record of the case.  The conception  

could have only occurred because of, unprotected sexual indulgence by Darshan  

Gupta.   The medical  condition  of  Radhika  Gupta,  was for  one and only  one  

reason,  namely,  the second conception  of  Radhika  Gupta,  during  the unsafe  

period.  Clearly, the blame thereof, rests squarely on the shoulders of Darshan  

Gupta.   The instant conclusion is difficult to assimilate.  Yet, there can be no  

doubt  about  the truthfulness thereof.   It  is in this view of the matter,  that the  

submissions advanced at the hands of the learned counsel for Darshan Gupta,  

have been vehemently opposed.  The unambiguous contention of the learned  

counsel for the respondent is, that the grounds/facts on which divorce is sought  

by the appellant, are not at all available to him under the “fault theory” on which  

Section 13(1) of the Hindu Marriage Act, 1955, is founded.   

37. We  are  persuaded  to  accept  the  submission  noticed  in  the  foregoing  

paragraph.  There can be no doubt, that all the grounds/facts on which divorce  

has been sought, emerge from the medical condition of Radhika Gupta, after her  

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cesarean  operation  in  September,  2000.   The  symptoms  during  her  first  

pregnancy were such, that the couple was advised not to conceive for a period of  

two years.  The husband did not heed to the advice tendered by the attending  

gynecologist.  We are, therefore, inclined to fully endorse the view expressed by  

the  Family  Court,  that  the  appellant-husband  Darshan  Gupta  himself,  was  

responsible for the state of affairs of his wife-Radhika Gupta, inasmuch as he did  

not heed the advice of gynecologist after the abortion of her first pregnancy in  

June  1999.   There  is  no  serious  dispute,  that  to  satisfy  his  desires,  he  

impregnated his wife within a period of eight months,  i.e.,  well  within the risk  

period.   Therefore,  she  suffered  the  predicted  consequences.   The  medical  

condition of Radhika Gupta, on which the appellant basis his claim for divorce, is  

of his own doing.  Even though at that juncture, Darshan Gupta was merely 25  

years of age, and it may well be difficult to blame him, yet there is no escape  

from the fact,  that the fault  rests on his shoulders.   In the above view of the  

matter, it is not possible for us to conclude, that Darshan Gupta did not suffer  

from any “guilt” or “fault” in the matter.  It is, accordingly, not possible for us to  

accept,  that he can be permitted to use his own fault  to his advantage.   His  

prayer for divorce on the facts alleged, is just not acceptable.  The party seeking  

divorce has to be innocent of blame.  We are satisfied, that the grounds/facts on  

which a claim for divorce can be maintained under Section 13(1) of the Hindu  

Marriage Act, 1955, are clearly not available to the appellant Darshan Gupta in  

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the facts and circumstances of this case.  For the instant reason also, the prayers  

made by the appellant must fail.   

38. Towards the same end, learned counsel for the appellant advanced yet  

another  submission.   Learned  counsel  representing  the  appellant,  sought  

dissolution  of  marriage  on  the  ground,  that  the  matrimonial  ties  between  the  

parties had irretrievably broken down.  It was, therefore, the contention of the  

learned counsel for the appellant, that this Court would be justified in annulling  

the marriage between the parties, specially when the parties have lived apart for  

more  than 12 years.   Inviting  this  Court’s  attention  to  the intervention  at  the  

instance of this Court, in compliance whereof the parties had made a last ditch  

effort to live together, and had actually taken up residence in an independent flat  

in  Hyderabad on 29.9.2011,  it  was pointed out,  that  they could not  persuade  

themselves  into  a  relationship  of  cordiality.   It  was,  therefore,  sought  to  be  

suggested,  that  there  was no likelihood of  the parties  ever  living together  as  

husband and wife.  It was accordingly submitted, that this Court should consider  

the  annulment  of  the matrimonial  ties between the parties,  on the  ground of  

irretrievable breakdown of marriage.

39. At the present juncture, it is questionable as to whether the relief sought by  

the learned counsel for the appellant, on the ground of irretrievable breakdown of  

marriage  is  available  to  him.   The  reason  for  us  to  say  so,  is  based  on  a  

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judgment  rendered  by  this  Court  in  Vishnu  Dutt  Sharma  vs.  Manju  Sharma,  

(2009) 6 SCC 379, wherein this Court has held as under:-

“10. On a bare reading of Section 13 of the Act, reproduced above, it is  crystal clear that no such ground of irretrievable breakdown of the  marriage  is  provided  by  the  legislature  for  granting  a  decree  of  divorce. This Court cannot add such a ground to Section 13 of the  Act as that would be amending the Act, which is a function of the  legislature.

11. Learned Counsel for the appellant has stated that this Court in some  cases  has  dissolved  a  marriage  on  the  ground  of  irretrievable  breakdown.  In  our  opinion,  those  cases  have  not  taken  into  consideration the legal  position which we have mentioned above,  and hence they are not precedents.  A mere direction of the Court  without considering the legal position is not a precedent.  

12. If we grant divorce on the ground of irretrievable breakdown, then  we shall by judicial verdict be adding a clause to Section 13 of the  Act to the effect that irretrievable breakdown of the marriage is also  a ground for divorce. In our opinion, this can only be done by the  legislature and not by the Court. It is for the Parliament to enact or  amend the law and not for the Courts. Hence, we do not find force in  the submission of the learned Counsel for the appellant.

13. Had both parties been willing we could, of course, have granted a  divorce by mutual consent as contemplated by Section 13-B of the  Act,  but  in  this  case  the  respondent  is  not  willing  to  agree  to  a  divorce.”

In this behalf, it would also be relevant to refer to another judgment rendered by  

this Court in Gurbax Singh vs. Harminder Kaur, (2010) 14 SCC 301.  Paragraph  

20  of  the  cited  judgment  is  relevant  to  the  issue,  and  is  accordingly  being  

extracted hereunder:-

“Finally,  a  feeble  argument  was  made  that  both  the  appellant  and  respondent were living separately from 2002 and it would be impossible for  their reunion, hence this Court exercising its jurisdiction under Article 142  of the Constitution, their marriage may be dissolved in the interest of both  parties.  Though,  on  a  rare  occasion,  this  Court  has  granted  the  

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order as is necessary for doing complete justice in any cause or matter pending  

before it…”.   The concept of justice, however, varies depending on the interest  

of  the  party.   On  most  occasions,  it  is  advisable  to  adjudicate  matters  in  

consonance with law.  Whenever it is possible to do so, on the touchstone of the  

courts  conscience,  the  determination  rendered  would  simultaneously  result  in  

doing justice between the parties.  All the same, since we have been called upon  

to annul the marriage between Darshan Gupta and his wife Radhika Gupta in  

order  to  do complete  justice to  the parties,  we have ventured  to  thoughtfully  

examine the matter from instant perspective as well.   

41. In the context of doing justice it was suggested, that the appellant would be  

ready and willing to pay the respondent, whatever was considered appropriate by  

this Court.  We are informed, that the appellant is financially well-to-do.  We shall,  

therefore,  keep  in  our  mind  the  appellant’s  offer  while  examining  the  instant  

issue.  We would, in our endeavour to determine the issue in hand, examine the  

matter, by reversing the roles of the parties.  We will examine the matter as if, the  

wife had approached the Family Court seeking divorce, on the ground that her  

husband  had  suffered  brain  damage  leading  to  cognitive  deficiencies.   Yet,  

despite the said deficiencies, his working memory had returned to “near normal”  

after treatment.  And his mental condition was such, that it would not have any  

effect on his matrimonial obligations.  And the wife’s family is agreeable to pay an  

amount to be determined by this Court (just as the husband-Darshan Gupta, has  

offered), so as to enable their daughter to break away, and find a more suitable  

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match.  Should she have been granted freedom from her matrimonial ties, in the  

given  facts,  in  order  to  do  complete  justice  to  the  parties?   We  would  ask  

ourselves, whether the husband would have accepted such a plea, in the facts  

denoted above?  In such situation, if this Court had, in exercise of its jurisdiction  

under  Article  142  of  the  Constitution  of  India,  granted  compensation  to  the  

husband, and had dissolved his marriage on the pretext of doing complete justice  

between the parties, would the same be acceptable to the husband?  We have  

no doubt in our mind, that on a reversal of roles, the husband, without any fault of  

his own, would have never accepted as just, the dissolution of his matrimonial  

ties, even if the couple had been separated for a duration, as is the case in hand.  

Specially, if the husband had, right from the beginning, fervently expressed the  

desire to restore his matrimonial relationship with his wife, and to live a normal  

life with her.   

42. We are of  the view, that the issue in hand should  be adjudged by the  

above standards, when the same prayer is made by the husband.  To constitute  

justice, the picture should appear to be the same, irrespective of the angle from  

which it is viewed.  If the same sequence of facts cannot be viewed as doing  

justice to the husband, they have to be likewise viewed for the wife as well.  It is,  

therefore, not possible for us to accept even the last plea advanced at the hands  

of the learned counsel for the appellant.

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43. For the reasons recorded hereinabove, we find no merit in these appeals,  

and the same are accordingly dismissed.

   …………………………….J.           (P. Sathasivam)

    …………………………….J.           (Jagdish Singh Khehar)

New Delhi; July 1, 2013.

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