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        REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.7114-7115 OF 2014

Suman Singh                ….Appellant(s)

VERSUS

Sanjay Singh        …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) These appeals are filed by the appellant (wife)

against  the  final  judgment  and  order  dated

23.05.2013 passed by the High Court  of  Delhi  at

New  Delhi  in  F.A.O.  No.108  of  2013  and  F.A.O.

No.109 of 2013 by which the High Court dismissed

the appeals filed by the appellant and confirmed the

judgment dated 14.12.2010 of the Principal Judge,

Family Courts, Rohini which had granted decree for

dissolution of marriage in favour of the respondent

(husband)  and,  in  consequence,  also  affirmed the

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order dismissing the petition filed by the appellant

(wife) for restitution of conjugal rights.

2) Facts,  in  brief,  to  appreciate  the  controversy

involved in the appeals need mention infra.

3) The marriage  between the  appellant  and the

respondent was solemnized on 26.02.1999 at Delhi

as per the Hindu rites.  The respondent-husband is

working as "Caretaker" in the Government of NCT of

Delhi whereas the appellant is a housewife. Out of

this wedlock, one daughter was born on 15.06.2002

and the second daughter was born on 10.02.2006.

Both daughters are living with the appellant.  

4) On 11.07.2010, the respondent (husband) filed

a petition for dissolution of marriage under Section

13  of  the  Hindu  Marriage  Act,  1955  (hereinafter

referred  to  as  "The  Act”)  in  the  Family  Courts,

Rohini,  Delhi  against  the  appellant  (wife).  The

respondent  sought  decree  for  dissolution  of

marriage essentially on the ground of "cruelty”.  

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5) In substance, the respondent, in his petition,

pleaded  9  instances  which,  according  to  him,

constituted "cruelty” within the meaning of Section

13(1)(i-a)  of  the  Act  entitling  him  to  claim

dissolution of marriage against the appellant.

6) The first ground of cruelty was related to wife's

behavior  on  the  next  day  of  marriage,  i.e.,

27.02.1999. It was alleged that the appellant came

out of the bedroom in night dress and that too late

when  the  close  relatives  of  the  respondent  were

sitting in the house. It was alleged that she did not

pay respect and wishes to the elders. (Para 9 of the

plaint)

7) The second ground of cruelty was again about

the appellant's behavior with the respondent on the

eve  of  New  Year.  However,  the  year  was  not

mentioned.  According to the respondent, he agreed

to celebrate the new year with the appellant on her

parental house as the parents of the appellant gave

repeated calls.  After  reaching  her  parental  house,

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most of the time the appellant was busy with her

family members and left him alone in the drawing

room.   Even  at  the  time  of  dinner,  the  family

members of the appellant did not behave properly.

(Para 10).     

8) The  third  ground  of  cruelty  was  that  the

appellant  did  not  show  any  inclination  or

enthusiasm to attend any important family function

or  festivals  at  the  respondent’s  house  whenever

held. However, no details were given about the date

and the function held.  The allegations are general

in nature (Para 11).

9) The fourth ground of cruelty was again about

the indecent behavior of the appellant towards the

respondent’s  family members.  However,  no details

were  pleaded  except  making  general  averments

(Para 12).

10) The fifth ground of cruelty was in relation to

an  incident  which,  according  to  the  respondent,

occurred  in  July  1999.  It  was  alleged  that  the

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appellant,  on  that  day,  insisted  that  the  couple

should live separately from the respondent's parents

(Para 13).

11) The sixth ground of cruelty was again general

with  no  details.  It  was  alleged  that  the  appellant

was not interested in doing any household work nor

was interested in preparing meals and used to insist

the  respondent  to  have  his  lunch  from  outside.

(Para 14).

12) The seventh ground of cruelty was in relation

to one incident which, according to the respondent,

occurred on Diwali  day in the year 2000.  It  was

again about the behavior of the appellant with the

family members of the respondent which, according

to the respondent, was rude (Para 16).  

13) The eighth ground of cruelty was in relation to

one  isolated  incident  which,  according  to  the

respondent,  occurred on 15.04.2001. It  was again

about the behavior of the appellant with the friends

of the respondent who had come to the respondent's

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house.  According  to  the  respondent,  the  family

members did not like it (Para 17).

14) The ninth ground of cruelty was that one day

in year 2010, the appellant visited the respondent's

office and misbehaved with the respondent in the

presence of other officials (Para 27).

15) The respondent also alleged some instances in

the petition. They, however, again essentially relate

to  the  appellant’s  behaviour  with  the  respondent

and his family members.  

16) The appellant filed her written statement and

denied these allegations. The appellant also applied

for  restitution  of  conjugal  rights  against  the

respondent  in  the  same  proceedings  by  filing

petition under  Section 9 of  the Act  and  inter  alia

alleged in her petition that  it  was the respondent

who  has  withdrawn  from  her  company  without

there  being  a  reasonable  cause.  She  also  while

denying the case set up by the respondent justified

her case for restitution of conjugal rights.

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17) The Trial Court framed the following issues on

the basis of pleadings in the case:

1. Whether  after  solemnization  of marriage,  the  Respondent  has  treated  the Petitioner with cruelty? OPP 2. Whether  the  Petitioner  is  entitled  to the decree of divorce as prayed? OPP

  3. Relief

The following issues were framed based on the pleadings in the petition under Section 9 of the Act:

1. Whether  the  Petitioner  is  entitled  to the restitution of conjugal rights as prayed? OPP 2. Relief

18) Parties adduced the evidence. By order dated

14.12.2012, the Family Court allowed the petition

filed  by  the  respondent.  It  was  held  that  the

grounds  alleged  by  the  respondent  amounted  to

mental cruelty within the meaning of Section 13(1)

(ia) of the Act and the same having been proved by

the respondent, he was entitled to claim a decree for

dissolution  of  marriage  against  the  appellant.

Accordingly,  the  Trial  Court  granted  decree  for

dissolution of marriage in favour of the respondent

and  dissolved  the  marriage.  Since  the  decree  for

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dissolution  of  marriage  was  passed  against  the

appellant, the petition filed by the appellant against

the respondent seeking restitution of conjugal rights

was dismissed.

19) The appellant,  felt  aggrieved by the aforesaid

order, filed first appeals before the High Court. In

appeals, the question was whether the Trial Court

was  justified  in  granting  decree  for  dissolution  of

marriage  to  the  respondent  (husband)  and,  in

consequence,  was  justified  in  dismissing  the

petition for restitution of conjugal rights filed by the

appellant (wife).

20) By  impugned  judgment,  the  High  Court

dismissed  the  appeals  and  affirmed  the

judgment/decree of  the Trial  Court. The appellant

(wife),  felt  aggrieved,  has  filed  these  appeals  by

special  leave  against  the  judgment  of  the  High

Court.   

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21) Heard  Mr.  D.N.  Goburdhan,  learned  counsel

for  the  appellant  and  Mr.  Gaurav  Goel,  learned

counsel for the respondent.

22) Having  heard  the  learned  counsel  for  the

parties and on perusal of the record of the case, we

are inclined to allow the appeals and while setting

aside  the  impugned  order,  dismiss  the  divorce

petition  filed  by  the  respondent(husband)  against

the  appellant  and,  in  consequence,  allow  the

petition filed by the appellant(wife) for restitution of

conjugal rights against the respondent (husband).

23) The word "cruelty” used in Section 13(1)(ia) of

the Act is not defined under the Act.  However, this

expression was the subject matter of interpretation

in  several  cases  of  this  Court.  What  amounts  to

“mental  cruelty”  was  succinctly  explained  by  this

Court  (three  Judge  Bench)  in  Samar  Ghosh vs.

Jaya Ghosh [(2007)  4 SCC 511].  Their  Lordships

speaking  through  Justice  Dalveer  Bhandari

observed that no uniform standard can ever be laid

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down  for  guidance,  yet  it  is  appropriate  to

enumerate  some  instances  of  human  behavior

which may be considered relevant in dealing with

the cases of “mental cruelty”.  

24) Their  Lordships then broadly enumerated 16

category  of  cases  which  are  considered  relevant

while  examining  the  question  as  to  whether  the

facts alleged and proved constitute “mental cruelty”

so as to attract the provisions of Section 13 (1) (ia)

of the Act for granting decree of divorce.

25) Keeping in view the law laid down in  Samar

Ghosh’s case  (supra),  when  we  examine  the

grounds taken by the respondent in his petition for

proving  the  mental  cruelty  for  grant  of  divorce

against  the  appellant,  we  find  that  none  of  the

grounds  satisfies  either  individually  or  collectively

the test laid down in Samar Ghosh’s case (supra) so

as  to  entitle  the  respondent  to  claim a  decree  of

divorce.        

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26) This we hold for more than one reason. First,

almost all the grounds taken by the respondent in

his petition were stale or/and isolated and did not

subsist to enable the respondent to seek a decree

for  dissolution  of  marriage.  In  other  words,  the

incidents of  cruelty alleged had taken place even,

according  to  the  respondent,  immediately  after

marriage.  They  were  solitary  incidents  relating  to

the  behavior  of  the  appellant.  Second,  assuming

that  one  or  more  grounds  constituted  an  act  of

cruelty, yet we find that the acts complained of were

condoned  by  the  parties  due  to  their  subsequent

conduct inasmuch as admittedly both lived together

till  2006  and  the  appellant  gave  birth  to  their

second  daughter  in  2006.  Third,  most  of  the

incidents of alleged cruelty pertained to the period

prior  to  2006  and  some  were  alleged  to  have

occurred after 2006. Those pertained to period after

2006 were founded on general allegations with no

details  pleaded  such  as  when  such  incident

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occurred  (year,  month,  date  etc.),  what  was  its

background,  who  witnessed,  what  the  appellant

actually said etc.  

27) In our view, the incidents which occurred prior

to  2006  could  not  be  relied  on  to  prove  the

instances of  cruelty because they were deemed to

have been condoned by the acts of the parties. So

far  as  the  instances  alleged  after  2006  were

concerned,  they  being  isolated  instances,  did  not

constitute an act of cruelty.  

28) A  petition  seeking  divorce  on  some  isolated

incidents alleged to have occurred 8-10 years prior

to  filing  of  the  date  of  petition  cannot  furnish  a

subsisting cause of action to seek divorce after 10

years or so of  occurrence of  such incidents.   The

incidents alleged should be of  recurring nature or

continuing  one  and  they  should  be  in  near

proximity with the filing of the petition.  

29) Few isolated incidents of long past and that too

found to have been condoned due to compromising

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behavior of the parties cannot constitute an act of

cruelty within the meaning of Section 13 (1)(ia)of the

Act.

30) In  our  considered  opinion,  both  the  Courts

below failed to take note of this material aspect of

the case and thus committed jurisdictional error in

passing a decree for dissolution of marriage.

31) We  cannot,  therefore,  countenance  the

approach of the High Court because it did not, in

the first instance, examine the grounds taken in the

petition  to  find  out  as  to  whether  such  grounds

constitute  mental  cruelty  or  not?   The  finding,

therefore,  though  concurrent  does  not  bind  this

Court.

32) We are not impressed by the submission of the

learned counsel for the respondent that an incident

which  occurred  somewhere  in  2010  when  the

appellant  visited  the  office  of  the  respondent  and

alleged to have misbehaved with the respondent in

front  of  other  officers  would  constitute  an  act  of

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cruelty on the part of the appellant so as to enable

the respondent to claim divorce.  In the first place,

no decree for divorce on one isolated incident can be

passed. Secondly, there could be myriad reasons for

causing such isolated incident. Merely because both

exchanged some verbal conversation in presence of

others would not be enough to constitute an act of

cruelty  unless  it  is  further  supported  by  some

incidents of alike nature. It was not so.

33) We are also not impressed by the submission

of the learned counsel for the respondent that since

the  appellant  had  made  allegation  against  the

respondent of his having extra-marital relation and

hence such allegation would also constitute an act

of cruelty on the part of the appellant entitling the

respondent  to  claim  decree  for  dissolution  of

marriage.  

34) Similarly,  we  are  also  not  impressed  by  the

submission of  learned counsel  for  the  respondent

that since both have been living separately for quite

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some time and hence this may be considered a good

ground to give divorce.

35) In the first place, the respondent did not seek

a  decree  of  dissolution  of  marriage  on  these

grounds. Second, the grounds of cruelty taken by

the  respondent  in  his  petition  does  not  include

these grounds. Third, even if some stray allegations

were made by the wife in her pleading/evidence as

were relied upon by the learned counsel are of no

relevance  because,  as  mentioned  above,  these

ground  were  not  pleaded  in  the  petition  by  the

respondent for seeking a decree of divorce and nor

were put in issue; and lastly, the burden being on

the respondent,  the same could be discharged by

the respondent by pleading and then proving. It was

not  so  done.  It  is  for  these  reasons,  we  cannot

accept  the  aforementioned  two  submissions  for

affirming the decree of divorce.

36) This  takes  us  to  the  next  question  as  to

whether  the  appellant  was  able  to  make  out  any

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case  for  restitution  of  conjugal  rights  against  the

respondent.

37) Having perused her petition and evidence, we

are of the view that the appellant is entitled for a

decree for restitution of conjugal rights against the

respondent.  

38) In  our  considered  view,  as  it  appears  to  us

from  perusal  of  the  evidence  that  it  is  the

respondent  who  withdrew  from  the  appellant's

company without there being any reasonable cause

to do so. Now that we have held on facts that the

respondent failed to make out any case of cruelty

against the appellant, it is clear to us that it was the

respondent who withdrew from the company of the

appellant without reasonable cause and not the vice

versa.

39) In  view  of  foregoing  discussion,  the  appeals

succeed and are allowed. The impugned judgment is

set  aside.  As  a  result,  the  petition  filed  by  the

respondent (husband) under Section 13(1) of the Act

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seeking dissolution of marriage is dismissed. As a

consequence  thereof,  the  marriage  between  the

parties is held to subsist whereas the petition filed

by  the  appellant  against  the  respondent  under

Section 9 of the Act seeking restitution of conjugal

right is allowed. A decree for restitution of conjugal

right is, accordingly, passed against the respondent.

40) We hope and trust that the parties would now

realize  their  duties  and  obligations  against  each

other as also would realize their joint obligations as

mother  and  father  towards  their  grown  up

daughters. Both should, therefore, give quite burial

to their past deeds/acts and bitter experiences and

start living together and see that their daughters are

well settled in their respective lives.  Such reunion,

we  feel,  would  be  in  the  interest  of  all  family

members  in  the  long  run  and  will  bring  peace,

harmony  and  happiness.  We  find  that  the

respondent  is  working  as  a  "Caretaker"  in  the

Government Department (see Para 4 of his petition).

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He must, therefore, be the "Caretaker" of his own

family that being his first obligation and at the same

time attend to his Government duties to maintain

his family.

               ………...................................J.

[R.K. AGRAWAL]             

                        ….……..................................J.

        [ABHAY MANOHAR SAPRE] New Delhi; March 08, 2017  

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