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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9036 OF 2014 (Arising out of S.L.P.(c) No.25056 of 2012)

VIDHYA VISWANATHAN ... APPELLANT

VERSUS

KARTIK BALAKRISHNAN                       …   RESPONDENT

J U D G M E N T

PRAFULLA C.PANT,J.

1. Leave granted.

2. This appeal is directed against the judgment and order dated  

13.2.2012 passed in CMA No.2862 of 2011 by the High Court  

of Judicature at Madras whereby the said Court has allowed the

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appeal filed by the husband under Section 19 of Family Courts  

Act, 1986, and dissolved the marriage between the parties.

3.    Brief  facts  of  the  case  are  that  the  appellant,  Vidhya  

Viswanathan  got  married  to  the  respondent,  Karthik  

Balakrishnan on 6.4.2005 in Chennai following the Hindu rites.  

After  the  marriage,  the  couple  went  to  London  where  the  

respondent  (husband)  was working,  and  they  lived  there  for  

some eight months. In December, 2005, the appellant and the  

respondent came back to India. However, the appellant went  

back to England all alone, and his wife did not go there though  

her  husband  had  purchased  a  return  ticket  for  her.  On  

13.9.2008, the husband filed a petition under Section 13 (1) (ia)  

of the Hindu Marriage Act, 1955 for dissolution of marriage. It is  

pleaded by the respondent (husband) that while the appellant  

was with him in London, she used to insult him. It is alleged by  

him that at times she used to get violent and hysterical. The  

husband further  pleaded that  even after  his  best  efforts,  the  

appellant did not allow him to consummate the marriage.  It is  

further stated that in November, 2005 i.e. about seven months  

after the marriage  the wife ( the present appellant) fell sick, and  

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she was taken to a Medical Specialist who diagnosed that she  

was suffering from tuberculosis. According to the husband, he  

provided  the  best  possible  treatment  to  his  wife.  After  the  

couple came back to India in December, 2005, the wife stayed  

back in Chennai and continued her treatment. It is alleged by  

the present respondent (husband) that his wife used to send  

him e-mails which were derogatory and in bad taste. It is also  

alleged  by  the  respondent  that  his  wife  refused  to  join  his  

company even after his best efforts.  With the above pleadings,  

the present respondent filed a petition for  divorce before the  

Family Court, Chennai on the ground of cruelty.  

4. The appellant  contested the divorce petition,  and filed her  

written statement. She denied the allegations made against her.  

She stated that she went with her husband to London with great  

expectations. She alleged that her husband and his mother did  

not treat her well. She admitted that she came back with her  

husband to India in December, 2005. She further pleaded that  

though the respondent purchased the return ticket for her but  

he  himself  instructed  not  to  return  to  England  without  his  

permission. It is also stated by her that marriage could not be  

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consummated for the reason that her husband wanted to have  

children after one or two years of marriage. She did not deny  

having sent e-mails but stated that she only responded to the  

respondent as he wanted divorce decree based on her consent.  

She admitted that she received legal notice from her husband  

but stated that the allegations therein are false.  She prayed for  

counter-claim directing the respondent to restore the conjugal  

rights between the parties.  

5. On the basis of the pleadings of the parties, the trial court  

framed the following issues:

“ (1) Whether the petitioner/husband is entitled  for divorce on the ground of cruelty ?

 (2) Whether the respondent/ wife is entitled  for conjugal rights as prayed for in the counter  claim? ”

6. The parties led their oral and documentary evidence before  

the trial  court.  The First  Additional  Family  Court  at  Chennai,  

after  hearing  the  parties  vide  its  judgment  and  order  dated  

11.8.2011, dismissed the petition for divorce, and allowed the  

counter-claim  of  the  wife.  Aggrieved  by  said  judgment  and  

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order the husband (Karthik Balakrishnan) filed an appeal (CMA  

No.2862 of 2011 with M.P.No.1 of 2011) before the High Court.  

The High Court  after hearing the parties allowed the appeal,  

and set aside the judgment and order dated 11.8.2011 passed  

by the trial court.  The High Court allowed the divorce petition,  

and dissolved the marriage between the parties.  Hence,  this  

appeal with special leave petition before this Court.

7. We have heard learned counsel for the parties, and perused  

the papers on record.

8.     Admittedly,  the appellant  got  married to respondent  on  

6.4.2005. It is also admitted that there is no issue born out of  

the wedlock. This Court has now to examine whether the High  

Court  has  rightly  come  to  the  conclusion  or  not  that  the  

husband was treated with cruelty by the wife, if so, is he entitled  

to decree of divorce.

9. On going through the evidence on record, we find that the  

husband (petitioner before the trial court), in his evidence has  

narrated in detail,  the incidents of alleged cruelty suffered by  

him.  The  relevant  paragraphs  from  the  statement  of  the  

husband are being reproduced below:

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“  7)  ……  the marriage was solemnized on  April  6th 2005,  as  stated  above.   But  quite  surprisingly, the respondent was very moody  did not  speak at  all  throughout  the wedding  day.  The respondent was not even interested  to pose for photographs, along with me.  What  more worried me was that even for wedding  lunch, the respondent had to be convinced to  sit next to me to have lunch.  Initially thought  that this was because she was put in a new  atmosphere.  However, I could not realize that  the respondent was not interested either in my  self or the marriage itself.  

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8)      …... inspite of the above odd things, I  was  able  to  get  a  visa  to  UK  for  the  respondent.  I further submit that I had made  extensive arrangements for the Honey moon  to Scotland.  Even during the Honeymoon, the  respondent was very moody, emotionless and  abnormally quiet.  I was at  loss to understand  as to what was hovering around in her mind.  However, I was very patiently waiting on the  fond hope that things would become normal in  due course.  However, all my dreams to lead  a very happy married life with the respondent  were shattered by the intolerable behaviour of  the  respondent.   I  further  submit  that  after  returning from Scotland to London, I took the  respondent to various places so as to make  her  to  become  a  normal  woman,  but  was  taken aback by her sarcastic remarks about  the London city  itself.   The respondent  was  very  lethargic,  disinterested  and  showering  lack  of  interest  in  any  of  the  events.   Only  thereafter,  I  stared  thinking  that  the  

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respondent was not interested in solemnizing  the marriage itself.

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9)    ……..between April, 2005 to December  2005,  I  could  infer  that  the  respondent  was  always  moody,  throwing  tantrums,  showing  faces  openly,  showing  anger  and  hatred  insulting me when my self and the respondent  were  alone  and  in  front  others.   The  respondent  reacted  violently  by  getting  aggressive  and  making  sarcast  remarks  or  locking  herself  in  the  room  and  stopped  talking for days together without any reason.  When  I  questioned  about  the  same,  the  respondent used to get even more aggressive  and  shout  hysterically  and  thereafter  would  start  crying.    This  behaviour  became more  and more frequent over the time and made it  impossible  to  handle  the  respondent  during  such  violent  outbursts  of  anger  and  hatred.  The  respondent  was  totally  unapproachable  and this left me with a deep sense of anguish  and  material  agony.   The  attitude  of  the  respondent was becoming worse day by day,  resulted  in  pulling  of  the  days  with  the  respondent became a nightmare.  

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10)…………..the respondent did not show any  intention at all in consummating the marriage.  The respondent evinced no interest in having  physical contact with me.  A times, I  myself  had tried to have sexual relationship with the  respondent  as  a  normal  husband would  do.  

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However,  since  the  respondent  showed  no  intention,  I  convinced myself  that  she would  mend  her  ways.   However,  there  was  no  attitudinal changes in her life.   

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13)………… the respondent deliberately used  to  wake  me  up  rudely  sometimes  by  even  kicking me when I was asleep and used to ask  me to talk to her saying that she was getting  bored.   Without  minding  the  respondent’s  abominable attitude, I would try to encourage  the  respondent  as  possible  as  I  could.  Further,  the  respondent  used  to  bang  her  head against the walls of the bedroom for no  reason  and  when  I  asked  the  reason  the  respondent  would  deliberately  remain  silent,  having  me spending  sleepless  nights.   This  has caused great mental agony and torture to  me when there was no fault on me.

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17)………..during  November  2005,  the  respondent  fell sick with high fever.  Despite  the adamancy,  not  to  take treatment,  I  took  the  respondent  to  a  leading  specialist  who  diagnosed that the respondent suffered from  Tuberculosis and got-months antibiotic course  started in London……..

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18)……….. In December 2005, I came down  to Chennai  with the respondent,  took her  to  my family doctor, who referred the respondent  to a top TB specialist.  The doctor at Chennai  also opined the same as that of the doctor in  London  and  advised  the  respondent  to  continue with the antibiotic prescribed by the  doctor in London.

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19)……………..I came back to London, after  buying a return flight ticket to the respondent  from  Chennai  to  London  for  July  2006,  presuming that the TB treatment at Chennai  for the respondent would be completed by this  time.

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20)…………even though, I  was in London, I  used to get in touch with the respondent and  used to send emails on the fond hope that my  unconditional love would make the respondent  change her mind and behaviour and make her  correct  herself.   However,  the  respondent  continued  to  act  irritationally  and  showed  anger in all the telephone calls by slamming  down the receiver”.

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P.W.1  Karthik  Balakrishnan  (husband)  who  made  above  

statement,  was  subjected  to  lengthy  cross-examination  but  

nothing has come out which creates doubt in his testimony.  

10.    The  appellant  Vidhya  Viswanathan  had  also  filed  her  

evidence before the trial court, in the form of affidavit, and she  

also  got  herself  cross-examined  as  D.W.1.  She  denied  the  

allegations made by her husband but in cross-examination she  

admits that the marriage was not consummated.  The relevant  

portion from her cross-examination is being reproduced below:

“    ….    ..    It  is  wrong to  state  that  normally  I  used to  hit  the petitioner   by  my  legs and wake him up and that I used to throw  the objects on the petitioner and that through  this  I  had  harassed the  petitioner  physically  and mentally.  If  it  is  asked that  whether the  marriage was consummated, no it is not. The  petitioner  said  that  we  can  beget  the  child  after  one  or  two  years.  I  and  the  petitioner  were close. As the petitioner joined  the new  job  he  was  under  stress  and  tension.  The  petitioner had thyroid  infection frequently. The  petitioner  said  that  the  starting  of  the  matrimonial life shall be post-poned. It was not  taken  as  an  issue.  After  8  months  of  the  marriage,  I  became  ill.  Hence,  I  came  to  Chennai. It is wrong to state that  there is no  connection between thyroid infection, and the  physical relationship and that I  am adducing  falsely.

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My passport is lying with me. It  is correct to  state that in the passport, a seal is made for  visa. If  it is asked when my U.K. visa would  expire, it is for 5 years.

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Before my husband could file this case, I did  not file any case for the restitution of conjugal  rights.  It  is  wrong to  state  that  as  I  had no  intention to live together, I did not file such a  case. ”

11.    The High Court while rejecting the explanation given by  

the  wife  as  to  why  the  marriage  was  not  consummated  

observed as under:

“ 44.  It  has  to  be  further  pointed  out  that  while P.W.1 was cross examined by the  respondent,  it  has  not  been  suggested  to  P.W.1  that  he  suggested  to  the  respondent  that  they should have a child only after  two  years. Thus it appears that this explanation of  the respondent for non consummation of the  marriage  is  only  an  afterthought.  Even  assuming  for  a  moment  that  the  appellant  wanted to have a child  only after  two years  that does not mean that the appellant and the  

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respondent  cannot  and  should  not  have  sexual  intercourse.  Admittedly,  both  of  them  are  well  educated  and  there  are  so  many  contraceptives available and they could have  used  such  contraceptives  and  avoided  pregnancy if they had wanted.   Xx  xx.”

12. Undoubtedly,  not  allowing a spouse for  a long time,  to  

have sexual intercourse by his or her partner, without sufficient  

reason, itself amounts mental cruelty to such spouse. A Bench  

of Three Judges of this Court in Samar Ghosh vs. Jaya Ghosh  

(2007) 4 SCC 511 has enumerated some of the illustrations of  

mental  cruelty.  Paragraph  101  of  the  said  case  is  being  

reproduced below:

“101. No uniform standard can ever be laid down  for  guidance,  yet  we  deem  it  appropriate  to  enumerate  some  instances  of  human  behaviour  which may be relevant in dealing with the cases of  “mental  cruelty”.  The  instances  indicated  in  the  succeeding paragraphs are only illustrative and not  exhaustive:

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

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(ii)  On  comprehensive  appraisal  of  the  entire  matrimonial  life  of  the  parties,  it  becomes  abundantly  clear  that  situation  is  such  that  the  wronged party cannot reasonably be asked to put  up with such conduct and continue to live with other  party.

(iii)  Mere  coldness  or  lack  of  affection  cannot  amount to cruelty, frequent rudeness of language,  petulance of manner, indifference and neglect may  reach such a degree that it makes the married life  for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling  of deep anguish, disappointment, frustration in one  spouse caused by the conduct of other for a long  time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating  treatment  calculated  to  torture,  discommode  or  render miserable life of the spouse.

(vi)  Sustained  unjustifiable  conduct  and  behaviour of one spouse actually affecting physical  and  mental  health  of  the  other  spouse.  The  treatment complained of and the resultant danger or  apprehension must be very grave, substantial and  weighty.

(vii)  Sustained  reprehensible  conduct,  studied  neglect,  indifference  or  total  departure  from  the  normal standard of conjugal kindness causing injury  to mental  health or  deriving sadistic  pleasure can  also amount to mental cruelty.

(viii)  The  conduct  must  be  much  more  than  jealousy,  selfishness,  possessiveness,  which  causes  unhappiness  and  dissatisfaction  and  

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emotional upset may not be a ground for grant of  divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear  and tear of the married life which happens in day-to- day life would not be adequate for grant of divorce  on the ground of mental cruelty.

(x)  The  married  life  should  be  reviewed  as  a  whole and a few isolated instances over a period of  years  will  not  amount  to  cruelty.  The  ill  conduct  must be persistent for a fairly lengthy period, where  the relationship has deteriorated to an extent  that  because of the acts and behaviour of a spouse, the  wronged party finds it extremely difficult to live with  the other party any longer, may amount to mental  cruelty.

(xi) If a husband submits himself for an operation  of sterilisation without medical reasons and without  the consent or knowledge of his wife and similarly, if  the wife undergoes vasectomy or abortion without  medical reason or without the consent or knowledge  of her husband, such an act of the spouse may lead  to mental cruelty.

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

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

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The above mentioned illustrations, No. (viii)  and (xii) given in  

Samar Ghosh case (supra), support the view taken by the High  

Court in holding that in the present case the wife has treated  

her husband with mental cruelty.

13. In  Vinita Saxena  vs.  Pankaj Pandit (2006) 3 SCC 778  

regarding legal proposition on aspect of cruelty has made the  

following observations:

“31.  It  is settled by a catena of decisions  that  mental  cruelty  can  cause  even  more  serious  injury  than  the  physical  harm  and  create  in  the  mind  of  the  injured  appellant  such apprehension as is contemplated in the  section. It is to be determined on whole facts  of  the  case  and  the  matrimonial  relations  between the spouses. To amount to cruelty,  there  must  be  such  wilful  treatment  of  the  party which caused suffering in body or mind  either  as  an  actual  fact  or  by  way  of  apprehension in such a manner as to render  the  continued  living  together  of  spouses  harmful  or  injurious  having  regard  to  the  circumstances of the case.

32. The  word  “cruelty”  has  not  been  defined  and it  has  been used  in  relation  to  human conduct or human behaviour. It is the  conduct  in  relation  to  or  in  respect  of  matrimonial  duties  and  obligations.  It  is  a  course of conduct and one which is adversely  

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affecting the other. The cruelty may be mental  or physical, intentional or unintentional. There  may be cases where the conduct complained  of itself is bad enough and per se unlawful or  illegal. Then the impact or the injurious effect  on the other spouse need not be enquired into  or considered. In such cases, the cruelty will  be established if the conduct itself is proved or  admitted.”

14. In view of  the above principle of  law laid down by this  

Court, and having considered the submissions of parties, and  

the evidence on record, we do not find any ground to interfere  

with the decree of  divorce passed by the High Court  on the  

ground of cruelty. However, we are conscious of the fact that  

the appellant,  as  stated by her,  was doing a  job before  her  

marriage, and she (Vidhya Vishwanathan)  has stated as D.W.1  

that at present  she is not doing any work. As such we think it  

just and proper to direct the respondent to pay to the appellant  

(wife) one time lump sum amount of alimony. We are of the  

view that in the facts and circumstances of the case keeping in  

mind  the  economic  status  of  the  parties,  a  direction  to  the  

respondent to pay Rs.40 lakhs (Rupees forty lakhs only) as one  

time alimony to the appellant, would meet the ends of justice, to  

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which learned counsel for the respondent during the arguments  

stated that the respondent is ready to pay the same.   

15. Accordingly,  we  dispose  of  this  appeal  affirming  the  

decree  of  divorce  granted  by  the  High  Court  dissolving  the  

marriage between the parties namely Karthik Balakrishnan and  

Vidhya Vishwanathan, with further direction under Section 25 of  

the Hindu Marriage Act, 1955 that the respondent shall pay to  

the appellant Rs.40 lakhs (Rupees forty lakhs only) as a lump  

sum amount  of  permanent  alimony,  within  a  period  of  three  

months from the date of this judgment. No order as to costs.

                              ………..……………………………….……J.                          (SUDHANSU JYOTI MUKHOPADHAYA)

…………………………………………..J (PRAFULLA C. PANT)

NEW DELHI, SEPTEMBER 22, 2014

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