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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5862 OF 2014 (Arising out of S.L.P. (C) No. 17 of 2010)

Dr. (Mrs.) Malathi Ravi, M.D. ... Appellant

Versus

Dr. B.V. Ravi, M.D.      ...Respondent

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. Marriage as a social institution is an affirmance of  

civilized  social  order  where  two  individuals,  capable  of  

entering  into  wedlock,  have  pledged  themselves  to  the  

institutional norms and values and promised to each other  

a  cemented  bond  to  sustain  and  maintain  the  marital  

obligation.  It stands as an embodiment for continuance of  

the human race.   Despite  the pledge and promises,  on  

certain  occasions,  individual  incompatibilities,  attitudinal

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differences  based  upon  egocentric  perception  of  

situations, maladjustment phenomenon or propensity for  

non-adjustment  or refusal for adjustment gets eminently  

projected  that  compels  both  the  spouses  to  take  

intolerable positions abandoning individual responsibility,  

proclivity  of  asserting  superiority  complex,  betrayal  of  

trust  which is  the cornerstone of  life,  and sometimes a  

pervert sense of revenge, a dreadful diet, or sheer sense  

of envy bring the cracks in the relationship when either  

both  the  spouses  or  one  of  the  spouses  crave  for  

dissolution  of  marriage –  freedom from the institutional  

and individual  bond.  The case at hand initiated by the  

husband for  dissolution of  marriage was viewed from a  

different  perspective by the learned Family  Court  Judge  

who declined to grant divorce as the factum of desertion  

as  requisite  in  law was not  proved but  the High Court,  

considering certain facts and taking note of subsequent  

events  for  which  the  appellant  was  found  responsible,  

granted divorce.  The High Court perceived the acts of the  

appellant as a reflection of attitude of revenge in marriage  

or for vengeance after the reunion pursuant to the decree  

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for  restitution  of  marriage.  The  justifiability  of  the  said  

analysis  within  the  parameters  of  Section  13(1)  of  the  

Hindu Marriage Act,  1955  (for  brevity  “the  Act”)  is  the  

subject-matter of assail  in this appeal,  by special  leave,  

wherein  the  judgment  and  decree  dated  11.09.2009  

passed by the High Court  of Karnataka in MFA No. 9164 of  

2004 reversing the decree for restitution of conjugal rights  

granted in  favour  of  the  wife  and passing a  decree for  

dissolution  of  marriage  by  way  of  divorce  allowing  the  

petition preferred by the respondent-husband, is called in  

question.

3. The respondent-husband, an Associate Professor in  

Ambedkar Medical College, Kadugondanahalli, Bangalore,  

filed a petition, M.S. No. 5 of 2001 under Section 13(1) the  

Act  seeking  for  a  decree  for  judicial  separation  and  

dissolution  of  marriage.  However,  in  course  of  the  

proceeding  the  petition  was  amended  abandoning  the  

prayer for judicial separation and converting the petition  

to  one  under  Section  13(1)(ib)  of  the  Act  seeking  

dissolution of marriage by way of divorce.

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4. In the petition filed before the Family court, it was  

averred  by  the  respondent-husband  that  the  marriage  

between the parties was solemnized in accordance with  

Hindu  Rites  and  customs  on  23.11.1994.   After  the  

marriage the husband and wife stayed together for one  

and a half years in the house of the father of the husband  

but from the very first  day the appellant-wife  was non-

cooperative,  arrogant  and  her  behaviour  towards  the  

family  members  of  the  husband  was  unacceptable.  

Despite the misunderstanding, a male child was born in  

the wedlock and thereafter, the wife took the child and left  

the house and chose not to come back to the husband or  

his family for a period of three years.  It was pleaded that  

there  had  been  a  marital  discord  and  total  non-

compatibility, and she had deserted him severing all ties.  

It was also alleged that she had left the tender child in the  

custody of her parents and joined a post graduate course  

in the Medical College of Gulbarga. All the efforts by the  

husband to bring her back became an exercise in futility  

inasmuch as the letters written by him were never replied.  

Despite  the  non-responsive  attitude  of  the  wife,  he,  

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without abandoning the hope for reconciliation for leading  

a normal married life, went to the house of his in-laws, but  

her parents ill treated him by forcibly throwing him out of  

the house.  

5. It was the assertion of the husband that after she  

completed  her  course,  she  started  staying  with  her  

parents along with the child at Bangalore and neither he  

nor his family members were invited for the naming giving  

ceremony of the child.   As set forth, the conduct of the  

wife  caused  immense  mental  hurt  and  trauma,  and  he  

suffered  unbearable  mental  agony  when  the  family  

members of his wife abused and ill treated him while he  

had  gone  to  pacify  her  and  bring  her  back  to  the  

matrimonial home.  All his solicitations and beseechments  

through  letters  to  have  normalcy  went  in  vain  which  

compelled him to issue a notice through his counsel but  

she  chose  not  to  respond  to  the  same.   Under  these  

circumstances, the petition was filed for judicial separation  

and  thereafter,  as  has  been  stated  earlier,  prayer  was  

amended seeking dissolution of marriage on the ground of  

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desertion since she had deliberately withdrawn from his  

society.  

6. The  wife  filed  objections  contending,  inter  alia,  

that when she was residing in the matrimonial home, the  

sister and brother-in-law of the husband, who stayed in  

the  opposite  house,  were  frequent  visitors  and  their  

interference  affected  the  normal  stream  of  life  of  the  

couple.  They influenced the husband that he should not  

allow  his  wife  to  prosecute  her  studies  and be  kept  at  

home as an unpaid servant of the house.  The husband, as  

pleaded, was torn in conflict as he could not treat the wife  

in the manner by his sister and brother-in-law had desired  

and also could not openly express disagreement.  At that  

juncture,  as  she  was  in  the  family  way,  as  per  the  

customs, she came to her parental home and by the time  

the child was born the sister and brother-in-law had been  

successful  in  poisoning  the  mind  of  the  husband  as  a  

result  of  which  neither  he  nor  his  relatives,  though  

properly invited, did not turn up for the naming ceremony.  

All her attempts to come back to the matrimonial home  

did not produce any result since the husband was acting  

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under the ill-advice of his sister and brother-in-law.  It was  

put  forth  that  he  had without  any  reasonable  cause or  

excuse refused to  perform his  marital  obligations.   The  

plea of mental hurt and trauma was controverted on the  

assertion that she had never treated him with cruelty nor  

was he summarily thrown out of the house of her parents.

7. Be it stated, the wife in the same petition filed an  

application under  Section 9 of  the Act  for  restitution of  

conjugal  rights  to  which  an  objection  was  filed  by  the  

husband stating, inter alia, that no case had been made  

out for restitution of conjugal rights but, on the contrary,  

vexatious  allegations  had  been  made.   It  was  further  

averred that the wife had deserted him for more than five  

years  and  she  had  been  harassing  him  constantly  and  

consistently.

8. In  support of their  respective pleas the husband  

and wife filed evidence by way of affidavit and were cross-

examined at length by the other side.  On behalf of the  

husband 12 documents were exhibited as Exts. P-1 to P-12  

and  the  wife  examined  one  witness  and  exhibited  four  

documents, Exts. R-1 to R-4.

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9. The family  court  formulated  the  following points  

for consideration: -

“(1) Whether  the  petitioner  proves  that  respondent assaulted him for a continuous  period  of  not  less  than  2  years  immediately  proceeding  the  presentation  of the petition?

(2) Whether  the  respondent  proves  that  the  petitioner  without  reasonable  excuse  withdrawn from the society?

(3) Whether  the  petitioner  is  entitled  for  decree of divorce as prayed for?

(4) Whether  the  respondent  is  entitled  for  decree  of  restitution  of  conjugal  right  as  prayed for?

(5) What order?”

10. The  learned  Principal  Judge  of  the  family  court,  

appreciating the oral and documentary evidence on record  

came  to  hold  that  the  material  on  record  gave  an  

impression that there was no scuffle between the husband  

and the wife;  that  even after  the birth of  the child  the  

husband and his family members used to visit the wife at  

her  parental  home to  see  the  child;  that  there  was  no  

material on record to show that when he went to his in-

laws  house  to  see  the  child,  he  was  ill-treated  in  any  

manner; that after the child was born he had taken the  

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child along with her for vaccination and spent sometime;  

that though the husband and his relatives were invited for  

naming ceremony of the child, they chose not to attend;  

that the husband was able to recognize his son from the  

photograph in Ext. R-2; that the plea of the husband that  

he  was  not  allowed  to  see  the  child  did  not  deserve  

acceptation; that the circumstances did not establish that  

wife had any intention to bring the conjugal relationship to  

an  end  but,  on  the  contrary,  she  was  residing  in  her  

parents’  house  for  delivery  and  then  had  to  remain  at  

Gulbarga for prosecuting her higher studies; that while she  

was studying at Gulbarga, as is evident from Ext. R-4, the  

husband stayed there for  two days,  i.e.,  27.5.1999 and  

28.5.1999;  that from the letters vide Exts.  P-3,  P-7,  P-9  

and P-11 nothing was discernible  to  the effect  that  the  

wife  went  to  Gulbarga  for  her  studies  without  his  

permission and she had deserted him; that the husband  

had not disclosed from what date he stopped visiting the  

house of the wife’s parents after the birth of the child; that  

the letters written by the husband did not reflect the non-

cooperative  conduct  of  the  wife;  that  there  was  no  

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sufficient evidence to come to a definite conclusion that  

the wife had deserted the husband with an intention to  

bring  the  matrimonial  relationship  to  an  end;  that  

assuming there was desertion yet the same was not for a  

continuous period of two years immediately preceding the  

presentation of the petition; that the husband only wrote  

letters after 15.9.1999 and nothing had been brought on  

record to show what steps he had taken for resumption of  

marital ties with the wife if she had deserted him; that the  

wife  was  not  allowed to  come back  to  the  matrimonial  

home because of intervention of his sister and brother-in-

law; that the explanation given by the wife to her non-

response to the letters was that when she was thinking to  

reply the petition had already been filed was acceptable;  

that  as  the husband was working at  Ambedkar  Medical  

College in the Department of Biochemistry and wife had  

joined in the Department of Pathology which would show  

that she was willing to join the husband to lead a normal  

marital  life;  and  that  it  was  the  husband  who  had  

withdrawn  from  the  society  of  the  wife  without  any  

reasonable cause.  Being of this view, the learned Family  

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Judge dismissed the application for  divorce and allowed  

the application of the wife filed under Section 23(a) read  

with Section 9 of the Act for restitution of conjugal rights.

11. After the said judgment and decree was passed by  

the learned Family Judge, the respondent did not prefer an  

appeal immediately.  He waited for the wife to join and for  

the said purpose he wrote letters to her and as there was  

no response, he sent a notice through his counsel.  The  

wife, eventually, joined on 22.8.2004 at the matrimonial  

house  being  accompanied  by  her  relative  who  was  

working in the Police Department.  As the turn of events  

would  uncurtain,  the  wife  lodged  an  FIR  No.  401/2004  

dated 17.10.2004 at Basaveshwaranagar alleging demand  

of  dowry  against  the  husband,  mother  and  sister  as  a  

consequence of which the husband was arrested being an  

accused for the offences under Section 498A and 506 read  

with Section 34 of the Indian Penal Code and also under  

the provisions of Dowry Prohibition Act.  He remained in  

custody  for  a  day  until  he  was  enlarged  on  bail.   His  

parents were compelled to hide themselves and moved an  

application  under  Section  438  of  the  Code  of  Criminal  

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Procedure  and,  ultimately,  availed  the  benefit  of  said  

provision. After all these events took place, the husband  

preferred an appeal along with application for condonation  

of delay before the High Court which formed the subject-

matter  of  M.F.A.  No.  9164/04  (FC).   The  High  Court  

condoned the delay, took note of the grounds urged in the  

memorandum  of  appeal,  appreciated  the  subsequent  

events that reflected the conduct of the wife and opined  

that the attitude of the wife confirmed that she never had  

the  intention  of  leading  a  normal  married  life  with  the  

husband and, in fact, she wanted to stay separately with  

the husband and dictate terms which had hurt his feelings.  

The High Court further came to the conclusion that the  

husband had made efforts to go to Gulbarga on many an  

occasion, tried to convince the wife to come back to the  

matrimonial  home,  but  all  his  diligent  efforts  met  with  

miserable  failure.   As  the  impugned  judgment  would  

reflect,  the  behaviour  of  the  wife  established  that  she  

deliberately  stayed  away  from  the  marital  home  and  

intentionally caused mental agony by putting the husband  

and his family to go through a criminal  litigation.   That  

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apart,  the  High  Court  took  the  long  separation  into  

account  and,  accordingly,  set  aside  the  judgment  and  

decree  for  restitution  of  conjugal  rights  and  passed  a  

decree for dissolution of marriage between the parties.

12. We  have  heard  Mr.  Shanth  Kumar  V.  Mohale,  

learned counsel for the appellant and Mr. Balaji Srinivasan,  

learned counsel for the respondent.

13. Assailing the legal sustainability of the judgment of  

the  High  Court,  Mr.  Shanth  Kumar,  learned  counsel  

appearing  for  the  appellant,  submitted  that  when  the  

petition for divorce was founded solely on the ground of  

desertion and a finding was returned by the family court  

that the ingredients stipulated under Section 13(1)(ib) of  

the Act were not satisfied making out a case of desertion  

on  the  part  of  the  wife,  the  High  Court  should  have  

concurred with the same and not proceeded to make out a  

case  for  the  respondent-husband  on  the  foundation  of  

mental cruelty.  It is urged by him that the High Court has  

taken  note  of  subsequent  events  into  consideration  

without  affording  an  opportunity  to  the  appellant  to  

controvert  the  said  material  and  that  alone  makes  the  

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decision vulnerable in law.  Learned counsel would submit  

that the High Court has erroneously determined the period  

of communication of letters and the silence maintained by  

the  wife  which  is  factually  incorrect  and,  in  fact,  the  

concept of desertion, as is understood in law, has not been  

proven by way of adequate evidence but, on the contrary,  

the analysis  of  evidence on record by the Family  Court  

goes  a  long  way  to  show  that  there  was,  in  fact,  no  

desertion on the part of the wife to make out a case for  

divorce.  It is his further submission that the High Court  

has  opined  that  the  marriage  between  the  parties  had  

irretrievably been broken and, therefore, it was requisite  

to grant a decree for dissolution of marriage by divorce  

which cannot be a ground for grant of divorce.  Learned  

counsel has placed reliance on the decisions in Lachman  

Utamchand  Kirpalani  v.  Meena  @  Mota1,  K.  

Narayanan  v.  K.  Sreedevi2,  Mohinder  Singh  v.  

Harbens  Kaur3 and  Smt.  Indira  Gangele  v.  

Shailendra Kumar Gangele4.

1 AIR 1964 SC 40 2 AIR 1990 Ker 151 3 AIR 1992 P&H 8 4 AIR 1993 MP 59

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14. Mr.  Balaji  Srinivasan,  learned  counsel  for  the  

respondent-husband, has urged that if the petition filed by  

the husband is read in entirety, it would be clear that the  

husband had clearly pleaded about the mental hurt and  

trauma that  he  had  suffered  because  of  the  treatment  

meted out to him by his wife and her family members. He  

has drawn our attention to the evidence to show that for a  

long seven and a half  years despite the best efforts he  

could not get marital cooperation from his wife and as the  

High  Court  has  accepted  the  same,  the  impugned  

judgment is flawless. He has highlighted about the non-

responsive proclivity of the wife when she chose not to  

reply to the letters of the husband beseeching her to join  

his company while she was staying at Gulbarga.  He has  

also drawn our attention to the cross-examination of the  

husband where he has deposed that after the delivery of  

the son on 12.1.1998 when she was discharged, he and  

his mother had gone to bring the wife and the child to  

their home but she went to her parental home and further  

neither he nor  his  family  members were invited for  the  

naming ceremony which was performed in October, 1998.  

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Learned  counsel  has  drawn  our  attention  to  the  

subsequent events which have been brought on record by  

way  of  affidavit  as  well  as  the  rejoinder  filed  by  the  

appellant-wife  to  the  counter  affidavit  to  highlight  the  

subsequent conduct for the purpose of demonstrating the  

cruel treatment of the wife.  It is canvassed by him that  

the  subsequent  events  can  be  taken  note  of  for  the  

purpose of mental cruelty by this Court and the decree of  

divorce  granted  by  the  High  Court  should  not  be  

disturbed.

15. To appreciate the rivalised submissions raised at  

the Bar, we have carefully perused the petition and the  

evidence adduced by the parties and the judgment of the  

Family Court and that of the High Court.  The plea that  

was raised for grant of divorce was under Section 13(1)(ib)  

of the Act. It provides for grant of divorce on the ground of  

desertion for a continuous period of not less than two year  

immediately  preceding  the  presentation  of  the  petition.  

The aforesaid provision stipulates that a husband or wife  

would be entitled to a dissolution of marriage by decree of  

divorce if the other party has deserted the party seeking  

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the divorce for a continuous period of not less than two  

years  immediately  preceding  the  presentation  of  the  

petition.  Desertion, as a ground for divorce, was inserted  

to Section 13 by Act 68/1976.  Prior to the amendment it  

was only a ground for judicial separation. Dealing with the  

concept  of  desertion,  this  Court  in  Savitri  Pandey  v.  

Prem Chandra Pandey5 has ruled thus:-

“Desertion”, for the purpose of seeking divorce  under  the  Act,  means  the  intentional  permanent forsaking and abandonment of one  spouse  by  the  other  without  that  other’s  consent and without reasonable cause. In other  words it is a total repudiation of the obligations  of  marriage.  Desertion  is  not  the  withdrawal  from  a  place  but  from  a  state  of  things.  Desertion, therefore, means withdrawing from  the matrimonial obligations i.e. not permitting  or  allowing  and  facilitating  the  cohabitation  between the parties. The proof of desertion has  to be considered by taking into consideration  the concept of marriage which in law legalises  the  sexual  relationship  between  man  and  woman in the society for the perpetuation of  race, permitting lawful indulgence in passion to  prevent  licentiousness  and  for  procreation  of  children. Desertion is not a single act complete  in itself, it is a continuous course of conduct to  be  determined  under  the  facts  and  circumstances of each case. After referring to a  host  of  authorities  and  the  views  of  various  authors, this Court in  Bipinchandra Jaisinghbai   Shah v.  Prabhavati1 held  that  if  a  spouse  abandons  the  other  in  a  state  of  temporary  passion, for example, anger or disgust without  

5 (2002) 2 SCC 73

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intending permanently to cease cohabitation, it  will not amount to desertion.

16. In  the  said  case,  reference  was  also  made  to  

Lachman Utamchand Kirpalani’s  case wherein it  has  

been  held  that  desertion  in  its  essence  means  the  

intentional permanent forsaking and abandonment of one  

spouse  by  the  other  without  that  other’s  consent,  and  

without reasonable cause. For the offence of desertion so  

far  as the deserting spouse is  concerned,  two essential  

conditions must be there (1) the factum of separation, and  

(2) the intention to bring cohabitation permanently to an  

end  (animus  deserendi).  Similarly  two  elements  are  

essential so far as the deserted spouse is concerned: (1)  

the absence of consent, and (2) absence of conduct giving  

reasonable cause to the spouse leaving the matrimonial  

home  to  form  the  necessary  intention  aforesaid.  For  

holding desertion as proved the inference may be drawn  

from  certain  facts  which  may  not  in  another  case  be  

capable of leading to the same inference; that is to say  

the facts have to be viewed as to the purpose which is  

revealed by those acts or by conduct and expression of  

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intention, both anterior and subsequent to the actual acts  

of separation.

17. In the case at hand, the Family Court, on the basis  

of the evidence brought on record, has recorded a finding  

that there was no desertion for a continuous period of two  

years.  The High Court has reversed it by emphasizing on  

certain aspects of conduct.   Analysing the evidence, we  

are of the considered opinion that it is not established that  

the  appellant-wife  had  deserted  the  husband  for  a  

continuous period of not less than two years immediately  

preceding the presentation of the petition.  It is because  

the petition was presented in the year 2001 and during  

the  cross-examination  of  the  husband  it  has  been  

admitted by him that he had gone to Gulbarga in May,  

1999  for  two  days.   The  Family  Court,  on  the  basis  of  

material  brought on record, has opined that there is no  

sufficient evidence to come to a definite conclusion that  

the  wife  deserted  him  with  intention  to  bring  the  

matrimonial relationship to an end and further the period  

of  two years  was not  completed.  The High Court,  as  it  

seems  to  us,  has  not  dealt  with  this  aspect  in  an  

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appropriate  manner  and  opined  that  the  wife  had  no  

intention to lead a normal married life with the husband.  

Therefore, the allegation of desertion, as enshrined under  

Section 13(1)(ib) has not been established.  The finding on  

that  score  as  recorded  by  the  learned  Principal  Judge,  

Family Court, deserves to be affirmed and we so do.

18. Presently to the factual matrix in entirety and the  

subsequent events.  We are absolutely conscious that the  

relief of dissolution of marriage was sought on the ground  

of desertion. The submission of the learned counsel for the  

appellant is that neither subsequent events nor the plea of  

cruelty could have been considered.  There is no cavil over  

the fact that the petition was filed under Section 13(1)(ib).  

However,  on a  perusal  of  the petition it  transpires  that  

there  are  assertions  of  ill-treatment,  mental  agony  and  

torture suffered by the husband.    

19. First we intend to state the subsequent events.  As  

has been narrated earlier, after the application of the wife  

was  allowed  granting  restitution  of  conjugal  rights,  the  

husband communicated to her to join him, but she chose  

not  to  join him immediately and thereafter  went to  the  

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matrimonial  home along with a relative who is  a  police  

officer.   After  she  stayed  for  a  brief  period  at  the  

matrimonial  home,  she left  her  husband and thereafter  

lodged FIR No. 401/2004 on 17.10.2004 for the offences  

under Sections 498A and 506/34 of the Indian Penal Code  

and  the  provisions  under  Dowry  Prohibition  Act,  1961  

against the husband, his mother and the sister.  Because  

of  the  FIR  the  husband  was  arrested  and  remained  in  

custody  for  a  day.   The  ladies  availed  the  benefit  of  

anticipatory bail.  The learned trial Magistrate, as we find,  

recorded a judgment of acquittal.  Against the judgment of  

acquittal,  the  appellant  preferred  an  appeal  before  the  

High  Court  after  obtaining  special  leave  which  was  

ultimately dismissed as withdrawn since in the meantime  

the  State  had  preferred  an  appeal  before  the  Court  of  

Session.  At this juncture, we make it absolutely clear that  

we will not advert to the legal tenability of the judgment of  

acquittal as the appeal, as we have been apprised, is sub-

judice.  However, we take note of certain aspects which  

have  been  taken  note  of  by  the  High  Court  and  also  

brought on record for a different purpose.  

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20. The seminal question that has to be addressed is  

whether under these circumstances the decree for divorce  

granted by the High Court should be interfered with. We  

must immediately state that the High Court has referred  

to certain grounds stated in the memorandum of appeal  

and taken note of certain subsequent facts.  We accept  

the submission of  the learned counsel  for  the appellant  

that  the  grounds  stated  in  the  memorandum of  appeal  

which were not established by way of evidence could not  

have been pressed into service or taken aid of.   But,  it  

needs no special emphasis to state that the subsequent  

conduct of the wife can be taken into consideration.  It  

settled  in  law  that  subsequent  facts  under  certain  

circumstances can be taken into consideration.   

21. In A. Jayachandra  v.  Aneel Kaur6 it  has been  

held thus: -

“If acts subsequent to the filing of the divorce  petition  can  be  looked  into  to  infer  condonation  of  the  aberrations,  acts  subsequent to the filing of the petition can be  taken  note  of  to  show  a  pattern  in  the  behaviour and conduct.”

6 (2005) 2 SCC 22

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22. In Suman Kapur v. Sudhir Kapur7 this Court had  

accepted what the High Court had taken note of despite  

the fact that it was a subsequent event.  It is necessary to  

reproduce  the  necessary  paragraphs  from  the  said  

decision to perceive the approach of this Court: -

“46. The  High  Court  further  noted  that  the  appellant  wife  sent  a  notice  through  her  advocate to the respondent husband during the  pendency of mediation proceedings in the High  Court wherein she alleged that the respondent  was having another wife in USA whose identity  was concealed. This was based on the fact that  in  his  income  tax  return,  the  husband  mentioned  the  social  security  number  of  his  wife as 476-15-6010, a number which did not  belong  to  the  appellant  wife,  but  to  some  American lady (Sarah Awegtalewis).

47. The  High  Court,  however,  recorded  a  finding of fact accepting the explanation of the  husband that there was merely a typographical  error in giving social security number allotted to  the  appellant  which  was  476-15-6030.  According  to  the  High  Court,  taking  undue  advantage  of  the  error  in  social  security  number,  the  appellant  wife  had  gone  to  the  extent  of  making  serious  allegation  that  the  respondent  had  married  an  American  woman  whose  social  security  number  was  wrongly  typed  in  the  income  tax  return  of  the  respondent husband.”

23. From the acceptance of the reasons of the High  

Court  by  this  Court,  it  is  quite  clear  that  subsequent  

events which are established on the basis of non-disputed  7 (2009) 1 SCC 422

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material  brought  on  record  can  be  taken  into  

consideration.  Having held that,  the question would be  

whether  a  decree  for  divorce  on  the  ground  of  mental  

cruelty can be granted.  We have already opined that the  

ground  of  desertion  has  not  been  proved.   Having  not  

accepted  the  ground  of  desertion,  the  two  issues  that  

remain  for  consideration  whether  the  issue  of  mental  

cruelty deserves to be accepted in the obtaining factual  

matrix in the absence of a prayer in the relief clause, and  

further whether the situation has become such that it can  

be held that under the existing factual scenario it would  

not be proper to keep the marriage ties alive.  Learned  

counsel for the appellant has urged with vehemence that  

when dissolution of marriage was sought on the ground of  

desertion alone, the issue of mental cruelty can neither be  

raised nor can be addressed to.  Regard being had to the  

said submission, we are constrained to pose the question  

whether in a case of the present nature we should require  

the respondent-husband to amend the petition and direct  

the learned Family Judge to consider the issue of mental  

cruelty or we should ignore the fetter of technicality and  

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consider the pleadings and evidence brought on record as  

well as the subsequent facts which are incontrovertible so  

that the lis is put to rest.  In our considered opinion the  

issue of  mental  cruelty  should  be  addressed to  by  this  

Court for the sake of doing complete justice.  We think, it  

is the bounden duty of this Court to do so and not to leave  

the  parties  to  fight  the  battle  afresh  after  expiry  of  

thirteen  years  of  litigation.   Dealing  with  the  plea  of  

mental cruelty which is perceptible from the material on  

record  would  not  affect  any  substantive  right  of  the  

appellant.  It would be only condoning a minor technical  

aspect.   Administration  of  justice  provokes  our  judicial  

conscience that  it  is  a  fit  case  where the  plentitude of  

power conferred on this Court under Article 142 deserves  

to  be invoked,  more  so,  when the  ground is  statutorily  

permissible.  By such exercise we are certain that it would  

neither be supplanting the substantive law nor would it be  

building  a  structure  which  does  not  exist.   It  would  be  

logical to do so and illogical to refrain from doing so.   

24. Before we proceed to deal with the issue of mental  

cruelty, it is appropriate to state how the said concept has  

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been viewed by this Court.  In  Vinit Saxena  v.  Pankaj  

Pandit8,  while dealing with the issue of mental  cruelty,  

the Court held as follows: -

“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.

Xxx xxx xxx

35. Each case depends on its own facts and  must be judged on these facts. The concept  of cruelty has varied from time to time, from  place  to  place  and  from  individual  to  individual  in  its  application  according  to  social  status  of  the  persons  involved  and  their economic conditions and other matters.  The question whether the act complained of  was a cruel act is to be determined from the  whole  facts  and  the  matrimonial  relations  between the parties.  In this connection, the  culture, temperament and status in life and  many other things are the factors which have  to be considered.”

8 (2006) 3 SCC 778

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25. In  Samar Ghosh v. Jaya Ghosh9, this Court has  

given certain illustrative examples wherefrom inference of  

mental  cruelty  can  be  drawn.   The  Court  itself  has  

observed that they are illustrative and not exhaustive.  We  

think it appropriate to reproduce some of the illustrations:  

-

“(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.

(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.

xxx xxx xxx (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.

xxx xxx xxx (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.

xxx xxx xxx

9 (2007) 4 SCC 511

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(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.

xxx xxx xxx  (xiv) Where there has been a long period of  continuous  separation,  it  may  fairly  be  concluded  that  the  matrimonial  bond  is  beyond  repair.  The  marriage  becomes  a  fiction  though  supported  by  a  legal  tie.  By  refusing  to  sever  that  tie,  the  law  in  such  cases,  does  not  serve  the  sanctity  of  marriage;  on  the  contrary,  it  shows  scant  regard for the feelings and emotions of the  parties. In such like situations, it may lead to  mental cruelty.”

26. In the said case the Court has also 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  

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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….”

27. In  Vishwanath Agrawal, s/o Sitaram Agrawal  

v.  Sarla  Vishwanath  Agrawal10,  while  dealing  with  

mental cruelty, it has been opined thus: -

“22. The  expression  “cruelty”  has  an  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,  temperaments  and  emotions  that  have  been  conditioned by their social status.”

28. In the said case, analyzing the subsequent events  

and  the  conduct  of  the  wife,  who  was  responsible  for  

publication  in  a  newspaper  certain  humiliating  aspects  

about the husband, the Court held as follows: -

“In our considered opinion, a normal reasonable  man  is  bound  to  feel  the  sting  and  the  pungency.  The  conduct  and  circumstances  make  it  graphically  clear  that  the  respondent  wife  had  really  humiliated  him  and  caused  mental  cruelty.  Her  conduct  clearly  exposits  that  it  has  resulted  in  causing  agony  and  anguish in the mind of the husband. She had  publicised  in  the  newspapers  that  he  was  a  

10 (2012) 7 SCC 288

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womaniser and a drunkard. She had made wild  allegations about his character. She had made  an effort to prosecute him in criminal litigations  which  she had failed to  prove.  The feeling  of  deep  anguish,  disappointment,  agony  and  frustration of the husband is obvious.”

29. In U. Sree v. U. Srinivas11, the Court, taking note  

of  the  deposition  of  the  husband  that  the  wife  had  

consistently ill  treated him inasmuch as she had shown  

her immense dislike towards his “sadhna” in music and  

had  exhibited  total  indifference  to  him,  observed  as  

follows: -

“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 remarried  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.”

30. In  K.  Srinivas  Rao  v.  D.A.  Deepa12,  while  

dealing  with  the  instances  of  mental  cruelty,  the  court  

opined that to the illustrations given in the case of Samar  

Ghosh certain  other  illustrations  could  be  added.   We  

think it seemly to reproduce the observations: - 11 (2013) 2 SCC 114 12 (2013) 5 SCC 226

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“Making  unfounded  indecent  defamatory  allegations  against  the  spouse  or  his  or  her  relatives in the pleadings, filing of complaints or  issuing notices or news items which may have  adverse impact on the business prospect or the  job  of  the  spouse  and  filing  repeated  false  complaints and cases in the court against the  spouse would, in the facts of a case, amount to  causing mental cruelty to the other spouse.”

31. Presently,  we  shall  advert  to  the  material  on  

record.   It  is  luminous  from it  that  the  wife  has  made  

allegations  that  the  sister  and  brother-in-law  of  the  

husband used to interfere in the day-to-day affairs of the  

husband and he was caught in conflict.  The said aspect  

has really not been proven.  It has been brought on record  

that the sister and brother-in-law are highly educated and  

nothing has been suggested to the husband in the cross-

examination that he was pressurized by his sister in any  

manner whatsoever.  It is her allegation that the sister and  

brother-in-law of the husband were pressurizing him not to  

allow the wife to prosecute higher studies and to keep her  

as  an  unpaid  servant  in  the  house.   On  a  studied  

evaluation of the evidence and the material  brought on  

record  it  is  demonstrable  that  the  wife  herself  has  

admitted that the husband had given his consent for her  

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higher  education  and,  in  fact,  assisted  her.   Thus,  the  

aforesaid allegation has not been proven.  The allegation  

that the husband was instigated to keep her at home as  

an unpaid  servant is  quite  a disturbing allegation when  

viewed from the spectrum of gender sensitivity and any  

sensitive  person  would  be  hurt  when  his  behavior  has  

remotely not reflected that attitude.   The second aspect  

which has surfaced from the evidence is that the wife had  

gone to the parental home for delivery and therefrom she  

went to the hospital where she gave birth to a male child.  

However,  as  the  evidence  would  show,  the  husband  

despite all his co-operation as a father, when had gone to  

the hospital to bring the wife and child to his house, she  

along with the child had gone to her parental house.  This  

aspect  of  the  evidence  has  gone  totally  unchallenged.  

Perceived  from  a  social  point  of  view,  it  reflects  the  

egocentric attitude of the wife and her non-concern how  

such an act is likely to hurt the father of the child.  The  

next  thing  that  has  come  in  evidence  is  that  the  

respondent  was  not  invited  at  the  time  of  naming  

ceremony.  He has categorically disputed the suggestion  

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that  he  and  his  family  members  were  invited  to  the  

ceremony.  It is interesting to note that a suggestion has  

been given that they did not attend the ceremony as in  

the  invitation  card  the  names  of  the  parents  of  the  

husband had not been printed.  It has been asserted by  

the  husband  that  the  said  incident  had  caused  him  

tremendous mental pain.  View from a different angle, it  

tantamounts to totally ignoring the family of the husband.  

32. Another incident deserves to be noted.  The wife  

went to Gulbarga to join her studies and the husband was  

not aware of it and only come to know when one professor  

told about it.  Thereafter he went to Gulbarga and stayed  

in a hotel and met the wife in the hostel on both the days.  

Despite  his  request  to  come  to  the  house  she  showed  

disinclination.  When he enquired about the child, he was  

told that the child was in her mother’s house.  These are  

the  incidents  which  are  antecedent  to  the  filing  of  the  

petition.

33. We  have  already  stated  the  legal  position  that  

subsequent  events  can  be  taken  note  of.   After  the  

judgment and decree was passed by the learned Family  

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Judge,  the  husband  sent  a  notice  through  his  counsel  

dated 14.7.2004 and intimated her as follows: -

“According to the operative portion of the order,  my client has to welcome you to join him with  the  child  within  three  months  which  please  note.

My client’s address is Dr. B.V. Ravi, M.D.,  residing  in  No.  428.  2nd Across,  6th Main,  3rd  

Stage,  3rd Block,  Basaveshwaranagar,  Bangalore-79 and his Telephone No. 23229865.  In  obedience  to  the  Hon’ble  Court  order,  you  called upon to join Dr. B.V. Ravi to the above  said address any day after 18th of July, 2004, as  this period upto 17th is inauspicious because of  “Ashada”.”

34. As it  appears,  she did not join and the husband  

was  compelled  to  send  a  telegram.   Thereafter,  on  

13.8.2004 a reply was sent on her behalf that she would  

be  joining  after  15.8.2004  but  the  exact  date  was  not  

intimated.  Thereafter, on 14.8.2004 a reply was sent to  

the legal notice dated 14.7.2004 sent by the husband.  It  

is appropriate to reproduce the relevant two paragraphs: -

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“In this context, we hereby inform you that our  client will  be coming to join your client in the  above  said  address  along  with  the  child  on  Sunday the 22nd August 2004 as the auspicious  NIJASHRAVANA  MONTH  commences  from  16th  

August 2004.

Further  our  client  expects  reasonable  amount of care and cordiality from your client’s  side.  Please ensure the same.”

35. The purpose of referring to these communications  

is that despite obtaining decree for restitution of conjugal  

rights the wife waited till the last day of the expiration of  

the period as per the decree to join the husband.  There  

may be no legal fallacy, but the attitude gets reflected.  

The  reply  also  states  that  there  is  expectation  of  

reasonable amount of  care and cordiality.   This  reflects  

both, a sense of doubt and a hidden threat.  As the facts  

unfurl, the wife stays for two months and then leaves the  

matrimonial home and lodges the first information report  

against  the  husband  and  his  mother  and  sister  for  the  

offences punishable under Sections 498A, 506/34 of the  

Indian  Penal  Code  and  under  the  provisions  of  Dowry  

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Prohibition Act.  The husband suffers a day’s custody and  

the mother and the sister availed anticipatory bail.

36. The High Court has taken note of all these aspects  

and held that the wife has no intention to lead a normal  

marital  life.   That  apart,  the High Court  has returned a  

finding that  the marriage has  irretrievably  been broken  

down.  Of course, such an observation has been made on  

the  ground  of  conduct.   This  Court  in  certain  cases,  

namely,  G.V.N.  Kameswara  Rao  v.  G.  Jabilli13,  

Parveen Mehta  v.  Inderjit Mehta14, Vijayakumar R.  

Bhate  v.  Neela  Vijayakumar  Bhate15,  Durga  

Prasanna Tripathy  v.  Arundhati Tripathy16, Naveen  

Kohli  v.  Neelu  Kohli17 and  Samar  Ghosh  v.  Jaya  

Ghosh (supra), has invoked the principle of irretrievably  

breaking down of marriage.

37. For the present, we shall restrict our delineation to  

the  issue  whether  the  aforesaid  acts  would  constitute  

mental  cruelty.   We  have  already  referred  to  few  

authorities to indicate what the concept of mental cruelty  13 (2002) 2 SCC 296 14 (2002) 5 SCC 706 15 (2003) 6 SCC 334 16 (2005) 7 SCC 353 17 (2006) 4 SCC 558

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means.  Mental cruelty and its effect cannot be stated with  

arithmetical  exactitude.   It  varies  from  individual  to  

individual, from society to society and also depends on the  

status of the persons.  What would be a mental cruelty in  

the life of two individuals belonging to particular strata of  

the society may not amount to mental cruelty in respect of  

another couple belonging to a different stratum of society.  

The  agonized  feeling  or  for  that  matter  a  sense  of  

disappointment can take place by certain acts causing a  

grievous dent at the mental level.  The inference has to be  

drawn  from the  attending  circumstances.   As  we  have  

enumerated the incidents, we are disposed to think that  

the  husband  has  reasons  to  feel  that  he  has  been  

humiliated,  for allegations have been made against him  

which  are  not  correct;  his  relatives  have  been dragged  

into  the  matrimonial  controversy,  the  assertions  in  the  

written statement depict him as if he had tacitly conceded  

to have harboured notions of gender insensitivity or some  

kind of male chauvinism, his parents and he are ignored in  

the naming ceremony of the son, and he comes to learn  

from  others  that  the  wife  had  gone  to  Gulbarga  to  

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prosecute her studies.  That apart, the communications,  

after the decree for restitution of conjugal rights, indicate  

the  attitude of  the  wife  as  if  she  is  playing a  game of  

Chess.   The  launching  of  criminal  prosecution  can  be  

perceived  from the  spectrum of  conduct.   The  learned  

Magistrate has recorded the judgment of acquittal.   The  

wife had preferred an appeal before the High Court after  

obtaining leave.  After the State Government prefers an  

appeal in the Court of Session, she chooses to withdraw  

the appeal.  But she intends, as the pleadings would show,  

that the case should reach the logical  conclusion.   This  

conduct manifestly shows the widening of the rift between  

the parties.  It has only increased the bitterness.  In such a  

situation, the husband is likely to lament in every breath  

and the vibrancy of life melts to give way to sad story of  

life.

38. From this kind of attitude and treatment it can be  

inferred that the husband has been treated with mental  

cruelty  and  definitely  he  has  faced  ignominy  being  an  

Associate  Professor  in  a  Government  Medical  College.  

When one enjoys social status working in a Government  

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hospital,  this  humiliation  affects  the  reputation.   That  

apart,  it  can  be  well  imagined  the  slight  he  might  be  

facing.  In fact, the chain of events might have compelled  

him  to  go  through  the  whole  gamut  of  emotions.   It  

certainly  must  have  hurt  his  self-respect  and  human  

sensibility.  The sanguine concept of marriage presumably  

has become illusory and it would not be inapposite to say  

that the wife has shown anaemic emotional disposition to  

the husband.  Therefore, the decree of divorce granted by  

the High Court deserves to be affirmed singularly on the  

ground of mental cruelty.   

39. Presently, we shall  proceed to deal with grant of  

maintenance.  Both the appellant and the respondent are  

doctors and have their respective jobs.  The son is hardly  

sixteen  years  old  and  definitely  would  require  financial  

support for education and other supportive things to lead  

a  life  befitting his  social  status.   The High Court,  while  

granting a decree for divorce should have adverted to it.  

However, we do not think it appropriate to keep anything  

alive in this regard between the parties.  The controversy  

is to be put to rest on this score also.  Considering the  

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totality of circumstances, the status the appellant enjoys  

and the strata to which the parties belong, it becomes the  

bounden  duty  of  the  respondent  to  provide  for  

maintenance  and  education  for  the  son  who  is  sixteen  

years old.  At this juncture, we may note that a proceeding  

was  initiated  before  the  learned  Principal  Judge,  Family  

Court, Bangalore and in the said proceeding the learned  

Principal Judge passed the following order: -

“Matter  is  settled  before  the  mediation  centre  where  in  parties  have  entered  into  a  memorandum of settlement.

Contents  of  the  Memorandum  of  Settlement are admitted by the Parties.  Court  is satisfied that the same is voluntary.

As  per  the  terms  of  settlement  para  5  clause (i) petitioner has deposited Rs.3,00,000/-  in the name of minor child in Karnataka Bank,  copy of fixed deposit receipt and R.D. Account  pass  book  are  filed  along  with  memo.  Hence  petition is allowed in terms of settlement.   

Memorandum of settlement shall be a part  of the decree.”

40. Learned counsel for the respondent would submit  

that the amount has been settled.  Though there has been  

a settlement of Rs.3,00,000/- yet that was at a different  

time  and  under  different  circumstances.   The  present  

appeal was pending. The duty of this Court is to see that  

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the young son born in the wedlock must get acceptable  

comfort as well as proper education.  It is the duty of the  

Court  also  to  see  that  a  minor  son  should  not  live  in  

discomfort  or  should  be  deprived  of  requisite  modern  

education.  We are conscious, the appellant is earning but  

that does not necessarily mean that the father should be  

absolved of his liability.  Regard being had to the social  

status and strata and the concept of effective availing of  

education we fix a sum of Rs.25,00,000/- (twenty five lacs)  

excluding  the  amount  already  paid  towards  the  

maintenance and education of the son.  The said amount  

shall be deposited by the respondent within a period of six  

months before the learned Principal Judge, Family Court at  

Bangalore and the amount shall be kept in a fixed deposit  

in a nationalized bank in the joint account of the appellant  

and the minor son so that she can draw quarterly interest  

and expend on her son.  After the son attains majority the  

joint account shall continue and they would be at liberty to  

draw the amount for the education or any urgent need of  

the son.

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41. With the aforesaid directions, we affirm the decree  

for divorce passed by the High Court.  The appeal stands  

disposed of accordingly but without any order as to costs.

.....................................................J. [Sudhansu Jyoti Mukhopadhaya]

.....................................................J. [Dipak Misra]

New Delhi; June 30, 2014.

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