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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 8927-8928 OF 2012 [Arising out of S.L.P. (Civil) Nos. 37449-37450 of  2012  

( CC.5877-5878 of 2012)]

U. Sree      ... Appellant

Versus

U. Srinivas         ... Respondent

J U D G M E N T   

Dipak Misra, J.

Leave granted.

2. The appellant-wife instituted F.C.O.P. No. 568 of 1997  

under Section 9 of the Hindu Marriage Act, 1955 (for  

brevity  ‘the  Act’)  in  the  Principal  Family  Court,  

Chennai  for  restitution  of  conjugal  rights.   The  

respondent-husband filed  F.C.O.P.  No.  805 of  1998  

under Sections 13(1)(i-a), 26 and 27 of the Act read  

with Section 7 of the Family Courts Act, 1984 praying

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for dissolution of marriage, custody of the child and  

return  of  jewellery  and  other  items.   The  learned  

Family Judge jointly tried both the cases and, on the  

basis of the evidence brought on record, dismissed  

the  application  for  restitution  of  conjugal  rights  

preferred by the wife and allowed the petition of the  

husband for dissolution of marriage and held that the  

child would remain in the custody of the mother on  

the principle that welfare of the child is paramount,  

and further the husband was not entitled to return of  

jewels or any other item from the wife in the absence  

of any cogent evidence in that regard.  The learned  

Family Judge, while passing the decree for dissolution  

of marriage, directed to pay permanent alimony of  

Rs. 5 lacs each to the wife and her minor son within a  

month.    

3. Being  dissatisfied  by  the  common  order,  the  

appellant-wife preferred C.M.A. No. 1656 of 2010 and  

C.M.A.  No.  1657  of  2010  in  the  High  Court  of  

Judicature  at  Madras  and  the  Division  Bench  

concurred with the conclusion as regards the decree  

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of dissolution of marriage as a consequence of which  

both the appeals had to meet the fate of dismissal.  

However, the Bench, apart from concurring with the  

grant  of  permanent  alimony,  directed  the  

respondent-husband  to  pay  a  sum of  maintenance  

amounting to Rs.12,500/-  to the appellant-wife and  

her son from the date of order passed by the Chief  

Metropolitan Magistrate at Hyderabad till the date of  

the  order  passed  by  the  High  Court.   Hence,  the  

present two appeals have been preferred by special  

leave assailing the common judgment passed by the  

High Court in both the appeals.

4. The facts requisite to be stated for adjudication of the  

appeals are that the marriage between the appellant  

and the respondent was solemnized on 19.11.1994 at  

Tirupathi according to Hindu rites and customs.  After  

entering  into  wedlock,  they  lived  together  at  

Vadapalani, Chennai.  As tradition would warrant, she  

went to her parental home for delivery where a male  

child was born on 30th of May, 1995.  The respondent  

celebrated the child’s birth in his in-law’s house and  

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thereafter,  the  wife  stayed  with  her  parents  for  

sometime.   She returned to  Chennai  on 4.10.1995  

and there she lived with her husband till  3.1.1996.  

The case of the wife in her application for restitution  

of  marriage  is  that  on  3.1.1996,  her  father-in-law,  

without her consent, took her to her parental home  

and, thereafter, the husband without any justifiable  

reason withdrew from her society.  All efforts made  

by her as well as by her parents to discuss with her  

husband  and  his  family  members  to  find  out  a  

solution went in vain.  In this backdrop, a prayer was  

made for restitution of conjugal rights.

5. The husband resisted the aforesaid stand contending,  

inter alia, that there was total incompatibility in the  

marital relationship inasmuch as she found fault with  

his life style, his daily routine, his likes and dislikes  

and picked up quarrels on trivial issues.  She threw  

tantrums only  with  the  exclusive purpose that  she  

should dominate the relationship and have her own  

way.  At the time of practising and learning music in  

the presence of his father, who was also his “Guru”,  

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she  hurled  abuses  and  screamed  which  invariably  

followed with arguments and quarrels.  Though she  

was expected, as per the customs, to show respect  

towards elders and to the senior artists, yet, throwing  

all  traditional  values  to  the  wind,  she  would  walk  

away  by  creating  a  scene  to  his  utter  

embarrassment.  His public image was totally ruined  

and reputation was mutilated.   It was also alleged  

that she called her parents and threatened to initiate  

proceedings under the Indian Penal Code, 1860 with  

the help of her father, who was an I.A.S. officer in the  

Vigilance Department in the Government of Andhra  

Pradesh.   With  the  efflux  of  time,  the  discord  

aggravated  and  the  wife  became more  aggressive  

and did not allow her husband to go near her or the  

child.   On  3.1.1996,  when  the  wife  expressed  her  

desire to go to her parental home, he could not dare  

to object and she went with costly gifts received by  

him  in  India  and  abroad  in  recognition  of  his  

performance  in  music.   Regard  being  had  to  the  

physical  safety  of  the  wife  and  the  child,  he  

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requested his  father  to  escort  them to  Hyderabad.  

While  she  was  at  Hyderabad,  she  spread  rumours  

among  the  relatives  and  friends  pertaining  to  his  

fidelity, character and habits.  It was further asserted  

by the husband that she had filed the petition only to  

harass him and, in fact, the manner in which he had  

been  treated  clearly  exhibited  mental  cruelty  and,  

therefore, the said relief should not be granted.  It  

was averred that in view of the treatment meted out  

to the husband, dissolution of marriage was the only  

solution and not restitution of conjugal rights.

6. The respondent, in his petition for divorce, pleaded  

that after abandoning formal education, he pursued  

his career in music treating it as a concept of ‘bhakti’  

or devotion.   He had to continue his ‘sadhana’ as a  

daily routine under the guidance of his father as it  

was necessary  to  understand the nuances and the  

subtleties of music which could only be gathered by  

experience and acquisition of knowledge at the feet  

of a “guru” and also to keep alive “the Guru-Sishya  

Parampara”.  The aforesaid aspect of his life was not  

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liked by his wife and she always interrupted hurling  

abuses at him.  Despite his best efforts to make his  

wife  understand  the  family  tradition  and  show  

reverence to the seniors in the sphere of music, she  

remained obstinate in her attitude and chose to walk  

away causing him not only embarrassment in public  

but also humiliation which affected his reputation and  

self  respect.   That  apart,  whenever  the  husband  

visited her at the parental home, he was deprived of  

conjugal rights and physically prevented from playing  

with the child.  In spite of his sacrifice and efforts to  

adjust  with  her  mental  attitude,  she  remained  

adamant  and  her  behavioural  pattern  remained  

painfully  consistent.    Gradually,  her  behaviour  

became very cruel and, eventually, he was compelled  

to file a case for  judicial  separation to which, as a  

counterblast,  she  filed  a  case  for  restitution  of  

conjugal  rights.   She  had  communicated  with  her  

friends that she would like to see her husband behind  

bars on the ground of dowry harassment.  She had  

also threatened that if  he took part in any musical  

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concert at Hyderabad, his life shall be endangered.  

Put in such a situation, left with no other alternative,  

he was compelled to file a petition for dissolution of  

marriage.

7. As the factual narration would unfurl, the wife in the  

written statement asserted that she was aware of the  

importance of music, its traditional values and clearly  

understood  the  devotion  and  dedication  as  she  

herself  was  a  `Veena’  player  and  because  of  her  

sacrifice,  her  husband  had  gained  reputation  and  

popularity which also enhanced his financial status,  

but, with the rise, he failed to perform his duties as a  

husband.  She denied the interruption in the practice  

sessions  and  controverted  the  factum  of  

maltreatment.  It was averred that as the husband  

had  gained  reputation,  his  parents  and  other  

relatives  thought  of  a  second marriage so  that  he  

could  get  enormous  dowry.   She  denied  the  

scandalous allegations and stated that she was proud  

of her husband’s accomplishments.  She justified her  

filing  of  petition  before  the  Chief  Metropolitan  

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Magistrate  for  grant  of  maintenance  as  he  was  

absolutely  careless  and negligent  to  look after  her  

and  the  child.   It  was  further  pleaded  that  the  

grounds  mentioned  in  the  petition  were  vexatious  

and  frivolous  and,  therefore,  there  was  no  

justification for grant of a decree of divorce.  

8. The learned Family Judge framed seven issues and,  

considering  the  oral  and  documentary  evidence  

brought on record, came to hold that the wife had  

treated the husband with cruelty; that she had not  

taken any steps for re-union and had deserted him  

for  thirteen  years  without  any  valid  reason  and,  

hence,  the  husband  was  entitled  for  a  decree  of  

divorce and she was not entitled to have a decree for  

restitution  of  conjugal  rights.   The  learned  Family  

Judge directed that the custody of the child should  

remain  with  the  mother  and  the  husband  had  

miserably  failed  to  make  out  a  case  for  return  of  

jewels  and  other  items.    He  granted  permanent  

alimony as stated earlier.  

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9. Being  grieved  by  the  aforesaid  decision  of  the  

learned Family Judge, the wife preferred two appeals.  

On behalf of the appellant-wife, it was urged before  

the High court  that the judgment and decree passed  

by the Family Court regarding grant of divorce was  

passed on assumptions and presumptions;  that she  

had suffered  immense  humiliation  and hardship  at  

the hands of the family members of the husband but  

the Family Court did not appreciate the said facet in  

proper  perspective;   that  the  finding  relating  to  

desertion by the wife was contrary to the evidence  

on  record  and,  in  fact,  it  was  the  case  that  the  

husband had left the wife in the  lurch at her parental  

home and did not think for a moment to bring her  

back;  that  the  allegation  with  regard  to  the  

interruption in the music learning sessions and her  

dislike of  her husband had been deliberately stated  

to make out a case of mental cruelty;  that certain  

documents  had  been  placed  reliance  upon  by  the  

learned  Family  Judge  though  they  were  not  

admissible  in  evidence  and  further  the  documents  

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produced  by  the  wife  had  not  been  properly  

appreciated and dealt with; and that the court below  

would  have  been  well  advised,  in  the  obtaining  

factual matrix, to direct restitution of conjugal rights.  

It is worth noting that alternatively it was urged that  

the trial  Court  had committed an error  in  granting  

permanent  alimony  of  Rs.  10  lacs  in  toto,  regard  

being had to the income of the husband.    

10. In appeal, the High Court, after noting the respective  

contentions advanced by the learned counsel for the  

parties,  proceeded  to  appreciate  the  essential  

ingredients which are necessary to be established to  

sustain a petition under Section 9 of the Act.  After  

referring  to  certain  decisions  in  the  field  and  the  

concept  of  mental  cruelty  as  stated  in  Halsbury’s  

Laws  of  England,  4th Edn.,  Vol.  13,  para  623  and  

American Jurisprudence and the dictum laid down in  

N.G.  Dastane  v.  S.  Dastane1,  Rajani  v.  

Subramaniam2,  Parveen  Mehta  v.  Inderjit   

1 (1975) 2 SCC 326 2 AIR 1990 Kerala 1

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Mehta3, Gananath Pattnaik v. State of Orissa4,  

Shobha  Rani  v.  Madhukar  Reddi5,  Manisha  

Tyagi v. Deepak Kumar6,  Sujata Uday Patil  v.  

Uday Madhukar  Patil7,  Chanderkala Trivedi  v.  

Dr. S.P. Trivedi8 and  Pranay Majumdar v. Bina  

Majumdar9, the High Court came to hold that the  

material brought on record showed that the wife had  

gone to the parental home on 3.1.1996 and made no  

efforts to get reunited with the husband and, as per  

the  evidence  on  record,  she  had  admitted  in  the  

testimony recorded in O.P. No. 568 of 1995 that the  

relations between her and her husband were cordial  

till  she left the matrimonial home.  The High Court  

found  that  her  depositions  were  contradictory  

inasmuch as on one hand she had stated that she  

had been ill-treated and on the other that there was  

cordial relationship.  As is noticeable, the High Court  

referred to the xerox copy of the letter Exhibit R-8  

dated 18.10.1995 written in her handwriting to her  3 (2002) 5 SCC 706 4 (2002) 2 SCC 619 5 (1988) 1 SCC 105 6 (2010) 4 SCC 339 7 (2006) 13 SCC 272 8 (1993) 4 SCC 232 9 (2007) 9 SCC 217

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parents and observed that when the said letter was  

summoned from her father she stated that there was  

no such letter and on that ground the admissibility  

was called in question.  The High Court opined that  

when  the  efforts  were  made  to  get  the  primary  

evidence and it could not be obtained, the secondary  

evidence  could  be  adduced  and  that  would  be  

admissible under Section 65 of the Evidence Act.  Be  

it noted, the English translation of the said letter was  

marked as Exhibit R-9 which indicated that the wife  

had  clearly  stated  that  she  had  spoken  ill  of  her  

mother-in-law  and  others  and  had  expressed  her  

desire  to  seek  divorce  as  she  could  not  stay  any  

longer in the matrimonial home.  It was observed by  

the  Bench  that  the  conduct  of  the  wife  clearly  

established  desertion  and  her  behaviourial  pattern  

exhibited mental cruelty meted out to the husband.  

The High Court also took note of the fact that a stage  

had  reached  where  it  had  become  well  nigh  

impossible for  the couple to live together.   Regard  

being had to the totality of the circumstances,  the  

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High  Court  gave  the  stamp  of  approval  to  the  

common judgment and decree passed by the learned  

Family Court.

11. We have heard Mrs. K. Sarada Devi, learned counsel  

for the appellant, and Mr. K. Ramamoorthy, learned  

senior counsel for the respondent.  It is contended by  

Mrs.  Sarada Devi  that  the learned Family Judge as  

well as the High Court had failed to appreciate that  

neither  mental  cruelty  nor  desertion  had  been  

established as per the law.  It  is contended by her  

that  Exh.  R-8  and  R-9  were  not  admissible  in  

evidence inasmuch as they could not be treated as  

secondary evidence as envisaged under Section 65  

of the Evidence Act.  It is further urged that the whole  

decision for granting divorce and denying restitution  

of conjugal rights has been based regard being had  

to  the  total  break  down  of  marriage  but  the  said  

ground  is  not  a  legally  permissible  one  to  grant  

divorce.   

12. Mr.  K.  Ramamoorthy,  learned  senior  counsel  

appearing  for  the  respondent,  per  contra,  would  

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submit that the said observation is one of the facets,  

but  the  High  Court  has,  after  due  deliberations,  

returned  findings  relating  to  cruelty  and  desertion  

and the same being founded on proper appreciation  

of  the  material  on  record,  this  Court  should  not  

interfere in exercise of appeal entertained by grant of  

leave under Section 136 of the Constitution of India.

13. At this juncture, we may note with profit that as a  

matter of fact, the High Court has observed that it  

has become well nigh impossible for the husband and  

the  wife  to  live  together  and  the  emotional  bond  

between the  parties  is  dead for  all  purposes.   We  

have noted this aspect for completeness, but we will  

not  address  the  said  facet  and  will  restrict  our  

delineation  only  towards  the  justifiability  of  the  

conclusions  pertaining  to  mental  cruelty  and  

desertion.         

14. Before  we  dwell  upon  the  tenability  of  the  

conclusions of desertion and mental cruelty,  we think it  

condign  to  deal  with  the  submission  whether  the  

photostat copy of the letter alleged to have been written  

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by the wife  to  her  father  could have been admitted as  

secondary  evidence.  As  the  evidence  on  record  would  

show, the said letter was summoned from the father who  

had  disputed  its  existence.   The  learned  Family  Court  

Judge as well as the High Court has opined that when the  

person  is  in  possession  of  the  document  but  has  not  

produced  the  same,  it  can  be  regarded  as  a  proper  

foundation to lead secondary evidence.   In this context,  

we  may  usefully  refer  to  the  decision  in  Ashok  

Dulichand v. Madahavlal Dube10 wherein it has been  

held  that  according  to  clause  (a)  of  Section  65  of  the  

Indian Evidence Act, secondary evidence may be given of  

the existence, condition or contents of a document when  

the original is shown or appears to be in the possession or  

power  of  the  person  against  whom  the  document  is  

sought to be proved, or of any person out of reach of, or  

not subject to, the process of the court, or of any person  

legally bound to produce it,  and when,  after  the notice  

mentioned in Section 66, such person does not produce it.  

Thereafter, the Court addressed to the facts of the case  

and opined thus: - 10 (1975) 4 SCC 664

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“In  order  to  bring  his  case  within  the  purview  of  clause  (a)  of  Section  65,  the  appellant filed applications on July 4, 1973,  before Respondent 1 was examined as a  witness, praying that the said respondent  be  ordered  to  produce  the  original  manuscript  of  which,  according  to  the  appellant,  he  had  filed  photostat  copy.  Prayer  was  also  made  by  the  appellant  that in case Respondent 1 denied that the  said manuscript had been written by him,  the photostat copy might be got examined  from a handwriting expert.  The appellant  also  filed  affidavit  in  support  of  his  applications.  It  was,  however,  nowhere  stated  in  the  affidavit  that  the  original  document of which the photostat copy had  been  filed  by  the  appellant  was  in  the  possession  of  Respondent  1.  There  was  also  no  other  material  on  the  record  to  indicate that the original document was in  the  possession  of  Respondent  1.  The  appellant  further  failed  to  explain  as  to  what were the circumstances under which  the photostat copy was prepared and who  was in possession of the original document  at  the  time  its  photograph  was  taken.  Respondent 1 in his affidavit denied being  in possession of or having anything to do  with such a document.”

Be it noted, in this backdrop, the High Court had recorded  

a  conclusion  that  no  foundation  had  been  laid  by  the  

appellant for leading secondary evidence in the shape of  

the photostat copy and this Court did not perceive any  

error in the said analysis.   

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15. In  J. Yashoda v. K. Shobha Rani11, after analyzing  

the language employed in Sections 63 and 65 (a), a two-

Judge Bench held as follows:-  

“Section  65,  however  permits  secondary  evidence  to  be  given  of  the  existence,  condition or contents of documents under the  circumstances mentioned. The conditions laid  down  in  the  said  section  must  be  fulfilled  before secondary evidence can be admitted.  Secondary  evidence  of  the  contents  of  a  document cannot be admitted without non- production  of  the  original  being  first  accounted for in such a manner as to bring it  within one or other of the cases provided for  in the section.”

16. In M. Chandra v. M. Thangamuthu and Other12,  

It has been held as follows:-    

”It  is  true  that  a  party  who  wishes  to  rely  upon  the  contents  of  a  document  must  adduce  primary  evidence  of  the  contents,  and  only  in  the  exceptional  cases  will  secondary evidence be admissible. However,  if  secondary evidence is  admissible,  it  may  be adduced in any form in which it may be  available,  whether by production of a copy,  duplicate copy of a copy, by oral evidence of  the  contents  or  in  another  form.  The  secondary  evidence  must  be  authenticated  by  foundational  evidence  that  the  alleged  copy is in fact a true copy of the original. It  should be emphasised that the exceptions to  the  rule  requiring  primary  evidence  are  designed to provide relief in a case where a  

11 (2007) 5 SCC 730 12 (2010) 9 SCC 712

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party  is  genuinely  unable  to  produce  the  original through no fault of that party.”

17.   Recently,  in  H.  Siddiqui  (Dead)  by  Lrs.  v.  A.  

Ramalingam13,  while  dealing  with  Section  65  of  the  

Evidence Act, this Court opined though the said provision  

permits  the  parties  to  adduce  secondary  evidence,  yet  

such a course is subject to a large number of limitations.  

In a case where the original documents are not produced  

at any time, nor has any factual foundation been laid for  

giving  secondary evidence,  it  is  not  permissible  for  the  

court  to  allow  a  party  to  adduce  secondary  evidence.  

Thus,  secondary  evidence  relating  to  the  contents  of  a  

document is inadmissible, until the non-production of the  

original is accounted for, so as to bring it within one or  

other  of  the  cases  provided  for  in  the  section.   The  

secondary  evidence  must  be  authenticated  by  

foundational  evidence that the alleged copy is  in fact a  

true copy of the original.   It  has been further held that  

mere  admission  of  a  document  in  evidence  does  not  

amount to its proof.  Therefore, it is the obligation of the  

Court  to  decide  the  question  of  admissibility  of  a  

13 (2011) 4 SCC 240

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document  in  secondary  evidence  before  making  

endorsement thereon.    

18. In the case at hand,  the learned Family Judge has  

really  not  discussed  anything  relating  to  foundational  

evidence.  The High Court has only mentioned that when  

the  letter  was  summoned  and  there  was  a  denial,  the  

secondary  evidence  is  admissible.   In  our  considered  

opinion,  such  a  view  is  neither  legally  sound  nor  in  

consonance with the pronouncements of this Court and,  

accordingly,  we  have  no  hesitation  in  dislodging  the  

finding on that score.   

19. The next facet which is to be dwelled upon is whether  

the  appellant  had  treated  her  husband  with  mental  

cruelty.  The legal sustainability of the said conclusion has  

to be tested keeping the photostat copy of the letter out of  

consideration.  At the very outset, we may state that there  

is no cavil over the proposition as to what cruelty includes.  

Regard being had to the same, we shall refer to certain  

authorities.    

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20. In  Samar  Ghosh v.  Jaya  Ghosh14,  a  three-Judge  

Bench, after dealing with the concept of mental cruelty,  

has observed thus:-  

“99.  …  The  human  mind  is  extremely  complex  and  human  behaviour  is  equally  complicated.  Similarly  human ingenuity  has  no bound, therefore, to assimilate the entire  human behaviour in one definition is almost  impossible. What is cruelty in one case may  not amount to cruelty in the other case. The  concept  of  cruelty  differs  from  person  to  person depending upon his upbringing, level  of sensitivity, educational, family and cultural  background, financial  position, social  status,  customs, traditions, religious beliefs,  human  values and their value system.

100.  Apart from this, the concept of mental  cruelty  cannot remain static;  it  is  bound to  change with the passage of time, impact of  modern culture through print and electronic  media and value system, etc. etc. What may  be  mental  cruelty  now  may  not  remain  a  mental cruelty after a passage of time or vice  versa.  There  can  never  be  any  straitjacket  formula or fixed parameters for determining  mental  cruelty  in  matrimonial  matters.  The  prudent  and  appropriate  way  to  adjudicate  the  case  would  be  to  evaluate  it  on  its  peculiar facts and circumstances….”

21. In  Ravi  Kumar  v.  Julmidevi15, this  Court  has  

expressed thus: -

14 (2007) 4 SCC 511 15 (2010) 4 SCC 476

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“In matrimonial relationship, cruelty would  obviously mean absence of mutual respect  and  understanding  between  the  spouses  which embitters the relationship and often  leads  to  various  outbursts  of  behaviour  which can be termed as cruelty. Sometime  cruelty  in  a  matrimonial  relationship  may  take the form of violence, sometime it may  take a different form. At times, it may be  just an attitude or an approach. Silence in  some situations may amount to cruelty.

20. Therefore,  cruelty  in  matrimonial  behaviour  defies  any  definition  and  its  categories  can  never  be  closed.  Whether  the husband is cruel to his wife or the wife  is  cruel  to  her  husband  has  to  be  ascertained  and  judged  by  taking  into  account the entire facts and circumstances  of  the  given  case  and  not  by  any  predetermined  rigid  formula.  Cruelty  in  matrimonial cases can be of infinite variety —it may be subtle or even brutal and may  be by gestures and words.”  

22. Recently,  this Court,  in  Vishwanath Agrawal, s/o  

Sitaram  Agrawal   v.  Sarla  Vishwanath  Agrawal16,  

while dealing with the conception of cruelty,  has stated  

that  it  has  inseparable  nexus  with  human  conduct  or  

human behaviour.   It is always dependent upon the social  

strata or the milieu to which the parties belong, their ways  

of life, relationship, temperament and emotions that have  

been  conditioned  by  the  social  status.   The  two-Judge  16 (2012) 7 SCC 288

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Bench  referred  to  the  decisions  in  Sirajmohmedkhan  

Janmohamadkhan  v.  Hafizunnisa  Yasikhan17,  

Shobha  Rani  (supra),  Sheldon  v.  Sheldon18,  V.  

Bhagat  v.  D.  Bhagat19,  Parveen  Mehta  (supra),  

Vijaykumar Ramchandra Bhate v. Neela Vijaykumar   

Bhate20,  A.  Jayachandra  v.  Aneel  Kaur21,  Vinita  

Saxena v. Pankaj Pandit22, Samar Ghosh (supra) and  

Suman Kapur v. Sudhir Kapur23, and opined that when  

the  evidence  brought  on  record  clearly  establish  a  

sustained attitude of  causing humiliation and calculated  

torture on  the  part  of  the  wife  to  make the life  of  the  

husband  miserable,  it  would  amount  to  mental  cruelty.  

Emphasis was laid on the behavioral pattern of the wife  

whereby  a  dent  is  created  in  the  reputation  of  the  

husband, regard being had to the fact that reputation is  

the salt of life.   

23. In the case at hand, the husband has clearly deposed  

about the constant and consistent ill-treatment meted out  17 (1981) 4 SCC 250 18 (1966) 2 WLR 993 19 (1994) 1 SCC 337 20 (2003) 6 SCC 334 21 (2005) 2 SCC 22 22  (2009) 1 SCC 422 23 (2009) 1 SCC 422  

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to  him  by  the  wife  inasmuch  as  she  had  shown  her  

immense  dislike  to  his  “sadhna”  in  music  and  had  

exhibited total indifference and, in a way, contempt to the  

tradition of teacher and disciple.  It has graphically been  

demonstrated  that  she  had  not  shown  the  slightest  

concern for the public image of her husband on many an  

occasion by putting him in a situation of embarrassment  

leading  to  humiliation.   She  has  made  wild  allegations  

about the conspiracy in the family of her husband to get  

him re-married for the greed of dowry and there is no iota  

of evidence on record to substantiate the same.  This, in  

fact,  is  an  aspersion  not  only  on  the  character  of  the  

husband  but  also  a  maladroit  effort  to  malign  the  

reputation of the family.  The learned Family Judge as well  

as the High Court has clearly analysed the evidence and  

recorded a finding that the wife had treated the husband  

with mental cruelty.  True it is, there is some reference in  

that regard to the  photostat copy of the letter which we  

have not accepted as admissible in evidence but the other  

evidence brought on record clearly support  the findings  

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recorded by the learned Family Judge and the High Court  

and the said finding remains in the realm of fact.         

24. This Court, in State of U. P. v. Babul Nath24, while  

considering the scope of Article 136 as to when this Court  

is entitled to upset a finding of fact, has observed thus: -  

“5. At the very outset we may mention that  in  an  appeal  under  Article  136  of  the  Constitution  this  Court  does  not  normally  reappraise the evidence by itself and go into  the question of credibility of the witnesses  and the assessment of the evidence by the  High  Court  is  accepted  by  the  Supreme  Court  as  final  unless,  of  course,  the  appreciation  of  evidence  and  finding  is  vitiated by any error of law of procedure or  found contrary  to  the  principles  of  natural  justice,  errors  of  record  and misreading of  the  evidence,  or  where  the  conclusions  of  the High Court are manifestly perverse and  unsupportable from the evidence on record.”

25. In  Bharat  Coking  Coal  Ltd.  v.  Karam  Chand  

Thapar & Bros. Pvt. Ltd.25,  this Court opined that the  

jurisprudence  under  Article  136  stands  out  to  be  

extremely  wide  but  that  does  not,  however,  warrant  

intervention in a situation having concurrent set of facts  

and an appeal therefrom on the factual issue.  The article  

24 (1994) 6 SCC 29 25 (2003) 1 SCC 6

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has  been  engrafted  by  the  founding  fathers  of  the  

Constitution  for  the  purposes  of  avoiding  mischief  and  

injustice  on  the  wrong  assumption  of  law.   The  justice  

delivery  system  of  the  country  prompts  this  Court  to  

interfere under Article 136 of the Constitution when the  

need of the society stands established and the judgment,  

if  left  outstanding,  would  not  only  create  prejudice  but  

would  also  have  an  otherwise  adverse  effect  on  the  

society.   Further elaborating, the Bench ruled thus:-  

“The  jurisdiction  under  Article  136  stands  out to be extremely wide but that does not,  however,  warrant  intervention  having  concurrent  set  of  facts  and  an  appeal  therefrom on the factual issue. The article  has been engrafted by the founding fathers  of  the  Constitution  for  the  purposes  of  avoiding mischief of injustice on the wrong  assumption  of  law.  The  justice  delivery  system of the country prompts this Court to  interfere  under  Article  136  of  the  Constitution when the need of the society  stands established and the judgment, if left  outstanding,  would  not  only  create  prejudice  but  would  have  an  otherwise  adverse effect on to the society — it is this  solemn objective of administration of justice  with which the Constitution-makers thought  it prudent to confer such a power on to the  Apex  Court  of  the  country.  It  is  the  final  arbiter but only when the dispute needs to  be settled by the Apex Court so as to avoid  injustice and infraction of law.”

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26. In  Ganga Kumar Srivastava v. State of Bihar26,  

after referring to the earlier authorities, this Court culled  

out certain principles which would invite exercise of power  

of this Court under Article 136 of the Constitution:-  

(i) The powers of this Court under Article  136 of the Constitution are very wide but in  criminal  appeals  this  Court  does  not  interfere  with  the  concurrent  findings  of  fact save in exceptional circumstances.

(ii)  It  is  open to  this  Court  to  interfere  with the findings of fact given by the High  Court,  if  the  High  Court  has  acted  perversely or otherwise improperly.

(iii) It is open to this Court to invoke the  power  under  Article  136  only  in  very  exceptional  circumstances as  and when a  question  of  law  of  general  public  importance arises  or a decision shocks the  conscience of the Court.

(iv) When the evidence adduced by the  prosecution  fell  short  of  the  test  of   reliability and acceptability and as such it is  highly unsafe to act upon it.

(v)  Where  the  appreciation  of  evidence  and finding is vitiated by any error of law of  procedure  or  found  contrary  to  the  principles of natural justice, errors of record  and misreading of the evidence, or  where  the  conclusions  of  the  High  Court  are   manifestly  perverse  and  unsupportable   from the evidence on record.

26 (2005) 6 SCC 211

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27. In  Dubaria v. Har Prasad and Another27,  it  has  

been  held  that  when  there  is  infirmity  in  the  decision  

because  of  excluding,  ignoring  and  overlooking  the  

abundant  materials  and  the  evidence,  if  considered  in  

proper perspective, would have led to conclusion contrary  

to the one taken by both the High Court as well as the fora  

below, it would be open to this Court to interfere with the  

concurrent findings of fact.  

28. Tested on the touchstone of the aforesaid principles,  

we have no trace of doubt that the finding returned by the  

Family Judge which has been given the stamp of approval  

by the High Court relating to mental cruelty cannot be said  

to  be in  ignorance of  material  evidence or  exclusion of  

pertaining materials or based on perverse reasoning.  In  

our  view,  the  conclusion  on  that  score  clearly  rests  on  

proper appreciation of facts and, hence, we concur with  

the same.   

29. Presently, we shall advert to the finding recorded by  

the learned Family Judge and the High Court relating to  

desertion by the wife.  As the factual matrix would reveal,  

27 (2009) 9 SCC 346

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both the Courts have proceeded on the base that the wife  

had not endeavored to reunite herself with the husband  

and  there  had  long  lapse  of  time  since  they  had  lived  

together  as  husband  and  wife.   On  the  aforesaid  

foundation, the conclusion has been drawn that there is an  

animus descerendi  on the part of the wife.   To test the  

tenability  of  the  said  conclusion,  we  have  perused  the  

petition for divorce from which it is evident that there is no  

pleading  with  regard  to  desertion.   It  needs  no  special  

emphasis to state that a specific case for desertion has to  

be pleaded.  It is also interesting to note that the petition  

was not filed seeking divorce on the ground of desertion  

but singularly on cruelty.  In the absence of a prayer in  

that regard, we are constrained to hold that the conclusion  

arrived  at  as  regards  desertion  by  the  learned  Family  

Judge which has been concurred with by the High Court is  

absolutely  erroneous  and,  accordingly,  we  overturn  the  

same.  

30. From the foregoing analysis, it is established that the  

husband has proved his case of mental cruelty which was  

the  foundation  for  seeking  divorce.   Therefore,  despite  

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dislodging the finding of desertion, we conclude and hold  

that the respondent husband has rightly been granted a  

decree of divorce.   

31. The  next  issue  that  emerges  for  consideration  

pertains  to  the  grant  of  permanent  alimony.   It  is  

noticeable  that  the  wife  had  filed  a  case  for  grant  of  

maintenance  and  residence  under  the  Hindu  Adoptions  

and Maintenance Act, 1956 at Hyderabad.  The High Court  

has granted Rs. 12,500/- per month from the date of filing  

of the petition for maintenance and Rs.5 Lacs each to the  

wife and son towards permanent alimony.  Whether the  

High  Court  should  have  granted  Rs.12500/-  as  

maintenance need not be addressed by us inasmuch as  

we  are  inclined  to  deal  with  this  issue  of  grant  of  

permanent alimony in a different backdrop.  As is evincible  

from the orders of this Court when the matters were listed  

on 9.4.2012, the Court had taken note of the fact that the  

wife and son have been living separately at Hyderabad for  

about 16 years and, in that context, the following order  

was passed :-  

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“Looking  to  the  financial  and  social  status  of  the  parties,  we  request  the  learned senior counsel appearing for the  respondent to ask his client to arrange  for one flat for the petitioner and their  so  that  they  can  live  in  the  said  flat  comfortably. On this suggestion, being given by the  Court, learned senior counsel appearing  for  the  respondent  prayed  for  time  to  seek instructions.”

32. On  30.4.2012,  the  following  order  came  to  be  passed:-

“As per the Order passed by this Court  on  09.04.2012,  learned  senior  counsel  appearing  for  the  respondent-husband  informed that respondent is  ready and  willing to buy a flat for the petitioner in  Hyderabad, so that she will have a roof  over her head for all the times to come.

However,  the  details  of  the  same  are required to be worked out.  

It is, therefore, desirable that both  the parties should remain present in this  Court on 10.07.2012.

Without prejudice, a sum of Rs. 10  lakhs by way of Demand Draft is being  paid  by  the  respondent-  husband  to  petitioner-wife.  Other Rs. 10 lakhs is in  deposit  with  the  Family  Court  at  Chennai.  Petitioner will be at liberty to  withdraw this amount.”

33. We have reproduced the aforesaid orders to highlight  

that the husband had agreed to buy a flat at Hyderabad.  

However,  when  the  matter  was  listed  thereafter,  there  

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was disagreement with regard to the locality of the flat  

arranged by the husband and, therefore, the matter was  

heard  on  merits.    We  have  already  opined  that  the  

husband  has  made  out  a  case  for  divorce  by  proving  

mental cruelty.   As a decree is passed, the wife is entitled  

to permanent alimony for her sustenance.  Be it stated,  

while granting permanent alimony, no arithmetic formula  

can  be  adopted  as  there  cannot  be  mathematical  

exactitude.  It shall depend upon the status of the parties,  

their respective social needs, the financial capacity of the  

husband  and  other  obligations.   In  Vinny  Parmvir  

Parmar  v.  Parmvir  Parmar28,  while  dealing  with  the  

concept of permanent alimony,  this  Court has observed  

that  while  granting  permanent  alimony,  the  Court  is  

required  to  take  note  of  the  fact  that  the  amount  of  

maintenance fixed for the wife should be such as she can  

live in reasonable comfort considering her status and the  

mode of  life  she was  used to  when she lived  with  her  

husband.  At the same time, the amount so fixed cannot  

be  excessive  or  affect  the  living  condition  of  the  other  

party.   28 (2011) 13 SCC 112

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34.  Keeping in mind the aforesaid broad principles,  we  

may  proceed  to  address  the  issue.   The  respondent  

himself has asserted that he has earned name and fame  

in the world of music and has been performing concerts in  

various parts of India and abroad.  He had agreed to buy a  

flat in Hyderabad though it did not materialise because of  

the demand of the wife to have a flat in a different locality  

where the price of the flat is extremely high.   Be that as it  

may, it is the duty of the Court to see that the wife lives  

with dignity and comfort and not in penury.   The living  

need not be luxurious but simultaneously she should not  

be left to live in discomfort.   The Court has to act with  

pragmatic  sensibility  to  such  an  issue  so  that  the  wife  

does not meet any kind of man-made misfortune.  Regard  

being had to the status of the husband, the social strata to  

which the parties belong and further taking note of the  

orders  of  this  Court  on  earlier  occasions,  we  think  it  

appropriate to  fix the permanent alimony at  Rs 50 lacs  

which shall be deposited before the learned Family Judge  

within  a  period of  four  months out  of  which Rs.20 lacs  

shall be kept in a fixed deposit in the name of the son in a  

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nationalized bank which would be utilised for his benefit.  

The deposit shall be made in such a manner so that the  

respondent wife would be in a position to draw maximum  

quarterly  interest.   We  may  want  to  clarify  that  any  

amount deposited earlier shall stand excluded.    

35. On the basis of the forgoing discussion, the decree  

for dissolution of marriage is affirmed only on the ground  

of mental cruelty which eventually leads to dismissal of  

the appeals.  The parties shall bear their respective costs.  

   ……………………………….J. [K. S. Radhakrishnan]

New Delhi;    ……………………………….J. December 11, 2012          [Dipak Misra]

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