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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO 3483 of 2011 Ramchander …Appellant

Vs. Ananta          ...Respondent

J U D G M E N T

C. NAGAPPAN, J.

1.       The appellant-husband in this civil appeal  

has assailed the judgment dated 24.11.2008 passed  

by the High Court of Calcutta Circuit Bench at Port  

Blair in F.A. No.003 of  2008, wherein the Division  

Bench  of  the  High  Court  set  aside  the  decree  of  

divorce  dated  14.7.2008  granted  by  the  District

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Judge,  A  &  N  Islands,  to  the  appellant  herein,  in  

Matrimonial Suit No.27 of 2005.

2. Shorn of  unnecessary details the facts  

in brief which give rise to the appeal herein are as  

follows:   The appellant-husband is an engineer and  

the respondent-wife is a draftsman, both working in  

the office of Andaman Public Works Department and  

their marriage took place on 2nd March 1994 and a  

son was born in the wedlock on 24.1.1996. It is an  

admitted fact that the respondent-wife had filed a  

complaint  under  Section  498-A  IPC  against  the  

husband and it was subsequently withdrawn by her.  

It is also admitted fact that during their cohabitation  

the couple had changed their residence thrice.  In  

1997,  the  respondent-wife  left  the  matrimonial  

home and started to live with her parents and upon  

legal notice sent by her husband she returned back  

to  the  matrimonial  home.   Then  again  in  March

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2003,  the  wife  left  the  matrimonial  home to  live  

with her parents and has not come back since.

3.       The  appellant-husband  filed  a  suit  for  

divorce  on  the  ground  of  cruelty  and  desertion  

under Section 13(1)(i-a) and 13(1)(i-b) of the Hindu  

Marriage  Act,  1955.   He  has  alleged  that  

immediately  after  marriage  the  relationship  

between the spouses was not cordial and the wife  

did  not  want  to  live  with  husband’s  family  and  

wanted to live separately.  She insulted and abused  

the husband calling him ‘dhobi’ and the minor child  

as ‘dhobi’s son’ and because of her rude behaviour  

with landlord and neighbours they had to change  

the residence thrice.   The wife refused to perform  

any household work and did not take proper care of  

their minor child and the husband had to bring food  

from outside and ultimately in the month of March  

2003,  she left  the matrimonial  home and did not

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return, leading to the filing of the divorce petition  

by the husband.

4.      The respondent-wife contested the suit by  

filing her written statement alleging that since her  

father  was working as ‘chowkidar’,  her  husband’s  

family was ill-disposed towards her and they used  

to taunt her for not bringing enough dowry. She has  

specifically denied the allegations in the plaint and  

asserted  that  she  had  never  behaved  improperly  

and  she  took  good  care  of  her  child.   She  also  

leveled an allegation of extra marital affair against  

her husband with a woman who was working under  

him.   According  to  her  whenever  she  confronted  

him in this respect  the husband would shout and  

abuse her.

5.      The appellant-husband besides examining  

himself as PW1, examined the minor child as PW2

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and  the  servant  as  PW3  on  his  side.   The  

respondent-wife examined herself  and her mother  

as  DW1  and  DW5  respectively  and  further  

examined  three  persons  working  in  municipal  

council as DWs 2 to 4 on her side.    

6.      The trial court on a consideration of oral and  

documentary  evidence  held  that  the  plaintiff-

husband proved the ground of cruelty and desertion  

and granted the decree of  divorce as prayed for.  

Challenging the same the defendant-wife preferred  

the  appeal  and  the  High  Court  on  an  elaborate  

consideration  held  that  the  trial  court  was  not  

justified  in  decreeing  the  suit  by  dissolving  the  

marriage  between  the  spouses  and  allowed  the  

appeal.   Aggrieved by the same the husband has  

preferred the present appeal.

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7.      The  learned  counsel  for  the  appellant-

husband  submitted  that  the  High  Court  failed  to  

consider and appreciate the cumulative instances of  

mental  cruelty  as  pleaded  and  proved  but  

considered every instance  separately and held that  

each by itself  would not entitle the husband to a  

decree for divorce and said approach is erroneous  

and contrary to law.  It is his further submission that  

the High Court erred in not placing reliance on the  

child’s  testimony  and  fell  into  a  grave  error  in  

reversing the well considered judgment of the trial  

court.  It is also submitted that mental cruelty was  

clearly established and in any event the marriage  

has  broken  down  irretrievably  and  on  that  score  

alone  the  decree  for  divorce  should  have  been  

passed.  In support of the submissions the learned  

counsel  relied  on  the  following  decisions  :  (1)  

Parveen Mehta Vs.  Inderjit Mehta (2002) 5 SCC

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706; (2)  A. Jayachandra Vs. Aneel Kaur (2005) 2  

SCC  22);  (3)   Samar  Ghosh  Vs.  Jaya  Ghosh  

(2007) 4 SCC 511; and (4) K.Srinivas Rao Vs. D.A.  

Deepa (2013) 5 SCC 226).

8.      The learned counsel for the respondent-wife  

contended  that  the  High  Court  examined  the  

instances of mental cruelty pleaded in this case on  

the  parameters  laid  down  by  this  Court  in  the  

decision  in  Samar  Ghosh case  (Supra),  and  

concluded that the ground of mental cruelty has not  

been  established  by  the  plaintiff-husband.   It  is  

further submitted that  the wife  was compelled to  

live  separately  on  account  of  the  conduct  of  the  

husband.   The  further  submission  was  that  the  

impugned judgment does not suffer from any legal  

infirmity warranting interference.

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9.     The appellant-husband and the respondent-

wife are educated and working in the office of the  

Andaman  Public  Works  Department.   They  got  

married on 2.3.1994 and son was born to them on  

24.1.1996.  The appellant-husband filed the suit on  

18.7.2005  seeking  for  divorce  on  the  grounds  of  

cruelty and desertion.   

10.      The expression ‘cruelty’ has not been defined  

in the Hindu Marriage Act.  Cruelty for the purpose  

of Section 13(1)(i-a) is to be taken as a behaviour  

by one spouse towards the other, which causes a  

reasonable apprehension in the mind of the latter  

that  it  is  not  safe for  him or  her  to  continue the  

matrimonial relationship with the other.  Cruelty can  

be physical or mental.  In the present case there is  

no  allegation  of  physical  cruelty  alleged  by  the  

plaintiff.  What is alleged is mental cruelty and it is  

necessarily a matter of inference to be drawn from

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the  facts  and  circumstances  of  the  case.   It  is  

settled law that the instances of cruelty are not to  

be taken in isolation  but  to take the cumulative  

effect  of  the  facts  and  circumstances  emerging  

from the evidence on record and then draw a fair  

inference whether the plaintiff has been subjected  

to  mental  cruelty  due  to  conduct  of  the  other  

spouse.    In  the  decision  in  Samar Ghosh case  

(supra), this Court set out illustrative cases where  

inference of ‘mental cruelty’ can be drawn and they  

are only illustrative and not exhaustive.  

11.       The plaintiff-husband alleged that after their  

marriage the defendant-wife did not like to live in  

the joint family and that led to shifting to separate  

residence and even there due to quarrels, the wife  

had with the respective landlords and neighbours,  

there was frequent shifting of residence. According  

to the defendant-wife the shifting was necessitated

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once because the husband desired so and on two  

other occasions due to increase in rent demanded  

by the landlord and absence of sufficient quantity of  

water to the rented premises.   Neither the family  

members  of  the  plaintiff  nor  the  landlords  and  

neighbours  of  the  tenanted  premises  were  

examined, and as rightly held by the courts below,  

there  is  no  evidence  adduced  by  the  plaintiff  to  

substantiate this allegation.   

12.      The next instance alleged by the plaintiff-

husband is that the defendant-wife used to abuse  

him as  ‘Dhobi’  and  the son  as  ‘Dhobi’s  son’  and  

such utterances had adverse effect on them.  PW1,  

plaintiff  and PW2, the son have stated so in their  

testimonies.  Of  course  the  defendant-wife  has  

specifically  denied  the  said  allegation.   PW2,  the  

child,  when examined  in  September,  2007  in  the  

court was 11 years old and was studying in 6th class.

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On the date of  alleged desertion in  2003 he was  

only about 7 years old.  Prior to 2003 he was an  

infant and it is unlikely he would remember in detail  

his early life.  Even if the version of the child that  

the  mother  used  to  call  him  Dhobi’s  son  is  

accepted, such scolding is the common reaction to  

discipline him and it denotes lack of culture on the  

part of the mother.    

13.      It is further alleged that the defendant-wife  

was reluctant to do any household work and was  

not cooking food for the plaintiff and the child which  

necessitated  the  bringing  of  food  from  outside,  

amounting  to  mental  cruelty.   Being  working  

mother, she could not spare enough time to be with  

the child resulting in the feeling of not being cared  

for.  In this context it is relevant to point out that  

the child was residing with his father since alleged  

separation in 2003.  The expression of the child is

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due to attitudinal problem and it can be addressed  

to.   The  trial  court  placed  much  reliance  on  the  

testimony of the child and the High Court termed it  

as  misplaced.    The  learned  counsel  for  the  

appellant  found  fault  with  the  High  Court  in  not  

placing reliance on the child testimony.  We are not  

able to appreciate this contention.  In the facts of  

the case we are  of  the  considered  view that  the  

High Court has rightly done so.

14.      The next instance is the allegation made by  

the wife in the case filed by her under Section 498-A  

of  IPC against  the husband.   Admittedly the case  

was withdrawn by the wife and she continued to live  

with  the  husband.   In  fact  the  High  Court  has  

observed  in  the  impugned  judgment  that  though  

the date of  filing of  the criminal  complaint  is  not  

mentioned  in  the  plaint,  from  the  sequence  of  

narration of events therein it appears to have been

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filed prior to the birth of the child.   The aberration  

on the part of the wife has been condoned by the  

husband  by  resuming  cohabitation  and  they  

continued to  live together  till  the date of  alleged  

separation in 2003.  

15.      The last instance of cruelty alleged by the  

husband is the allegation made by the wife that he  

has been involved in an extra marital affair with the  

daily rated mazdoor lady working under him.   It is  

true  that  the  defendant-wife  has  named the  said  

lady with whom her husband allegedly was having  

an  affair.   The  plaintiff-husband  though  admitted  

that  the  said  lady  was  working  under  him,  has  

specifically denied the said allegation.  The courts  

below have concurrently found that the wife has not  

substantiated the said allegation.   Mere failure to  

prove such allegation would not entitle the husband  

to a decree of divorce as rightly held by the High

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Court.   The  conduct  of  the  wife  that  had  been  

complained  of  appears  to  be  not  so  grave  and  

weighty that it can be treated to be more serious  

than ordinary wear and tear of married life.  

16.      What remains to be considered is the ground  

of  desertion alleged by the plaintiff-husband,  it  is  

averred that the defendant-wife left the company of  

the  plaintiff  in  March,  2003  and  date  is  not  

mentioned.  The child was only 7 years old in 2003  

and his  testimony in this  regard will  not  advance  

the case of the plaintiff.   DWs 2 to 4 have testified  

that they had seen the plaintiff and the defendant  

together as spouses even during 2005.  It is pointed  

out that there is no denial against such contention  

in cross examination.  It is relevant to point out that  

DW2 is working in Marine Department and DW3 and  

DW4 are working in the Municipal Council and there  

is no reason for them to falsely depose against the

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plaintiff.  The trial court has not indicated with any  

clarity in its judgment as to how the testimonies of  

the above witnesses were not found reliable by it.  

The High Court on going through their testimonies  

has concluded that it does not find their evidence  

unworthy of credence.  We are in agreement with  

the  said  view  expressed  by  the  High  Court.  

Resultantly the ground of desertion alleged is also  

not established.   

17.      We also find no merit in the contention of the  

learned counsel for the appellant that the marriage  

between  the  plaintiff  and  defendant  has  

irretrievably broken down.   

18.      In the result there is no merit in the appeal  

and the same is dismissed. No costs      

……………..………………………….J. (Vikramajit Sen)

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…………….……………………………J.                                     (C.  

Nagappan)

New Delhi; February 24, 2015