NON­REPORTABLE                   

  IN THE SUPREME COURT OF INDIA

  CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO. 2021 OF 2010

Ravinder Kaur                 .…Appellant(s)

Versus

Manjeet Singh (Dead) Through Lrs.       ….  Respondent(s)

J U D G M E N T

A.S. Bopanna,J.                

1.   The appellant herein is the  wife of the original

respondent who died during the pendency of this appeal.

Since the order impugned passed by the High Court of

Punjab and Haryana dated 23.08.2006 in F.A.O.No.101­

M  of 1999  had allowed the appeal and  dissolved the

marriage, the marital status of the appellant is in issue

notwithstanding the death of respondent.   As such, the

cause of action has continued to subsist and the legal

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representatives  namely, the daughter and sons of the

deceased respondent were allowed to be brought on

record by this Court through the order dated 05.09.2014

passed in IA  No.3  of  2012.   In that light, the instant

appeal was heard in that backdrop.     In that situation

the reference made during the course of the order to the

respondent would in effect refer to the original

respondent, namely the deceased husband of the

appellant.

2. The respondent herein instituted the proceedings

in H.M.A. File No.133 of 16.12.1995 through the petition

filed under Section 13 of the Hindu Marriage Act seeking

dissolution of the marriage which was solemnized

between the appellant and respondent during December,

1970 as per the Sikh rites.   As on the date of filing the

petition the parties had spent 25 years of married life and

had be gotten two sons and a daughter from the wedlock,

who were also grown up.   At that stage the petition was

filed by the respondent­husband seeking dissolution of

the marriage alleging mental cruelty inflicted upon him

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by the appellant herein.   The parties herein though had

resided  in Ludhiana till  1988, had shifted  to Bathinda

thereafter.   When this was the position, since the

respondent  was serving in the  Armed  Forces, he  was

posted at Nagaland in the year 1989 and was thereafter

posted at Manipur till 1992.   From the pleading as put

forth before the District Court in the petition, the trigger

for the  dispute  between  the  parties  arose  at the  point

when the appellant  and the children had gone over to

stay with the respondent at Manipur.   According to the

respondent herein he was suffering from gastric and

related problems and due to his illness, a Punjabi family

of  Capt.  Inderjit  Singh  looked after  the petitioner.  In

that  circumstance due to the affinity  of the  family the

said Capt. Inderjit Singh is said to have sent his wife and

children along with the respondent to Bathinda and they

remained there while the respondent had taken

treatment.  Subsequent thereto all of them including the

appellant and the children had also gone back to

Manipur.  Though the families were known to each other

in that manner, according to the respondent the

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appellant herein started levelling baseless allegations

against the respondent herein and his father.  The wife of

Capt. Inderjit  Singh had conveyed this  aspect to Capt.

Inderjit Singh who thereafter told the respondent.   The

said incident is stated to have been raised by the

respondent  herein in the  presence of the  appellant to

clarify the situation, but the appellant herein started

shouting at the respondent and also alleged that the

respondent herein had illegitimate relationship with the

wife of Capt. Inderjit Singh.   

3. The further details which led to the

misunderstanding between the appellant and the

respondent is adverted to in the petition filed before the

court  below.  The respondent  was thereafter  posted at

Amritsar and according to the respondent even at that

point  whenever the  respondent  visited  Bathinda  where

the appellant and two sons were staying, the appellant

again raised  the  said  issue and made  false  allegations

and also had sent the sons and a friend to keep a watch

over the activities of the respondent.   Certain other

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incidents which had taken place in Amritsar are referred

to in the petition, which need not be elaborated herein.

Apart from the same, the respondent has contended that

the appellant had intentionally lodged a false report

against the respondent to the S.P.(Operations) Bathinda

due to which a case under Section 107/151 of  Cr.PC.

was registered and the father of the respondent as also

the respondent were arrested and the proceedings were

held.   In addition, the appellant herein is stated to have

filed  a  suit  against the  respondent  seeking  declaration

and permanent injunction with regard to the House

No.22, Kamla Nehru Colony, Bathinda wherein she had

alleged that the respondent had defrauded her.   In that

view the respondent herein had contended in the petition

that the said acts of the appellant had amounted to

mental cruelty and therefore had sought for dissolution of

the marriage.   

4. The appellant herein who was the respondent had

filed detailed objections disputing the averments put

forth by the respondent herein in his petition.  Insofar as

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the incident relating to House No.22, Kamla Nehru

Colony,  Bathinda it  was contended that the plot  was

allotted  to the  appellant in  1987 and  the  construction

was put up after obtaining money from the father of the

appellant, after which they were residing along with their

two sons.   The appellant has further referred to the

nature of relationship the respondent herein was

maintaining with Mrs. Nirmaljit Kaur wife of Capt.

Inderjit Singh, regarding which she had raised objections

and despite the same they were living in the same room

of the house belonging to the appellant.   Certain

incidents in that regard are referred to in her objection

statement so as to justify her action.   Insofar as the

action initiated by the appellant by lodging a complaint to

the police, it is contended that in July, 1995 the

respondent along with the relations came to the house of

the appellant, began to attack her, removed the articles

from the house and was forcing her to vacate the house.

It is in that view she had approached the police

authorities pursuant to which the action was taken.   In

that light it was contended by the appellant that the act

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of the respondent herein in fact would amount to

inflicting cruelty on the appellant herein and not as

alleged by the respondent.   

5. The trial court in that light proceeded to consider

as to whether the appellant herein had treated the

respondent with cruelty and as to whether the appellant

had deserted the petitioner for a continuous period of two

years.  While taking note of the same the trial court has

referred to the pleadings of both sides and has taken note

of the nature of allegations that were in fact made by the

respondent­husband against the appellant­wife by

securing the evidence of the witness Sri Daya Singh as

PW­1, to state that the appellant herein had illegitimate

relations with the driver named Swarna.   To that effect

the plea taken by the respondent about such relationship

when they were residing in Ludhiana has been referred

and  the incident  was sought to  be raised  through  the

evidence of the said Sri Daya Singh­PW­1.  The trial court

has thereafter referred to the evidence of another witness

on behalf of the respondent herein namely Col.  M.S.

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Sidhu, a colleague and in that regard having referred to

his evidence has indicated that his evidence is not

trustworthy going  by the very  nature  in  which he  has

referred to every aspect as if he was privy to all matters of

the family. In that background the trial court had

thought it fit to rely on the evidence of Pritam Singh who

was examined as RW­1, a resident of Gobindgarh as also

the evidence of Gurudayal who was examined as RW­2.   

6. The incident as stated by the respondent herein as

the petitioner before the court below by examining

himself  as  PW­6 was referred and the entire  narration

relating to relationship with Smt. Nirmaljit Kaur was

taken note.   In addition the trial court has  made a

detailed  reference to the  evidence  of the  other  witness

who had been examined before  it, the details  of  which

need not be adverted to herein.  However, it is seen that

the trial  court  on such basis  had  taken note that the

entire issue revolves around the allegations said to have

been made by the appellant against the respondent by

calling the relationship as an illegitimate affair.   To that

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extent the evidence of one of the sons of the parties Shri

Iqbaal Singh who was examined as RW­6 was taken note,

wherein he has stated that the respondent herein and the

said Smt.Nirmaljit Kaur were behaving like husband and

wife.  Insofar as the incident relating to the house which

had resulted in filing the complaint with the police under

Section  107/151 of  Cr.PC it  was taken  note that the

appellant  had  to take  recourse  to  such proceedings to

protect  her right.   In that light the trial court  having

assessed the totality of the facts and circumstances and

also having taken note about the allegations of

illegitimate affair made by the respondent herein against

the appellant by introducing the name of a person who

did not exist, was of the view that in the existing state of

affairs the incidents as stated by the respondent cannot

be treated as a ground to dissolve the marriage on the

allegations of mental cruelty.   Hence, the trial court has

dismissed the petition.

7. In the appeal filed by the respondent herein before

the  High  Court,  as rightly  pointed  out  by the learned

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counsel for the appellant herein the High Court in fact,

has   proceeded in the matter with the preconceived

notion that the marriage is irretrievably broken down and

that the dispute is between a couple who have grown up

married children, which has influenced its decision.   In

fact, the High Court while finding fault with the judgment

of the trial court has taken exception to the observations

made  by the trial court that the  parties  were living  a

happy married life till the third lady intruded in the life of

the appellant and spoiled the whole family atmosphere.

In that regard it is commented by the High Court that the

trial court has not appreciated the allegations made by

the respondent herein regarding the illegitimate

relationship of the appellant­wife with the so­called

driver.   The High Court has further observed that it  is

noticeable that the appellant had not sought divorce on

the ground of appellant­wife having illegitimate relations

with the driver, but this fact has been mentioned in the

petition, which would indicate that the respondent had

condoned.  Having taken note of such observations made

by the High Court it gives the impression that the High

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Court has proceeded on the footing as if the allegations

made by the respondent husband against the appellant

wife had been proved before the trial court.   

8. In  a  proceeding  of the  present  nature  when  the

respondent herein was contending that the allegations of

illegitimate relationship being made against him had

amounted to mental cruelty and in a situation where the

existence of  Smt.  Nirmaljit  Kaur  was not  a  fiction but

there were two versions to the nature of relationship,  the

same cannot  be  weighed in the same scale  when the

allegations against  the appellant­wife was made by the

respondent about a non­existent person.   If the

respondent­husband is to contend that the allegations of

illegitimate relations made against him has amounted to

mental  cruelty, in fact  as rightly  observed by the trial

court, the bald allegations made by the respondent

against the appellant­wife would also amount to the

same.  If that be the position insofar as the allegations to

that effect, the trial court had in fact referred to the

evidence in detail and has arrived at the conclusion that

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the ground of  mental cruelty in that regard so as to

dissolve the marriage cannot be accepted.   

9. Insofar as the action taken by the appellant herein

to  file  a police complaint  and the proceedings  initiated

under Section 107/151 of Cr.PC it  is  the natural  legal

course adopted by respondent to protect  her right  and

possession of the property.  It is not in dispute that at the

point  when a complaint  was  filed and a suit  was also

stated to have been filed by the appellant herein on

05.09.1995 there was misunderstanding brewing in the

marital life of the parties and in that circumstance the

appellant herein had adopted the legal course to protect

her rights.  Such action taken  in accordance with  law

cannot, in any event, be considered as inflicting cruelty

as the legal proceedings was used only as a shield

against the assault.   In this regard the decision of this

Court in the case of Ramchander vs. Ananta (2015) 11

SCC 539 relied on by the learned counsel for the

appellant would be relevant, wherein while taking note of

similar instances this Court has held that the same

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would not amount to cruelty and such instances would

not be convincing enough to lead to a conclusion that the

marriage is irretrievably broken down.

10. In the above background, keeping in view the

nature of allegations made and the evidence tendered in

that regard, we find that the consideration made by the

trial court with reference to the reliability of the evidence

is more appropriate.  As already noticed the High Court,

while taking note of the nature of allegations made has

proceeded on the basis that there is irretrievable

breakdown of the  marriage.  Needless to  mention  that

irretrievable breakdown of  marriage by itself is not a

ground provided under the statute for seeking dissolution

of marriage.  To this effect it would be apposite to refer to

the decision rendered by this Court to that effect in the

case of Vishnu Dutt Sharma vs. Manju Sharma (2009)

6 SCC 379 relied upon by the  learned counsel for the

appellant.  No doubt on taking note of the entire material

and evidence  available  on  record, in  appropriate  cases

the courts may have to bring to an end, the marriage so

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as not to prolong the agony of the parties.   However, in

the present facts, at this point in time even that situation

does not  arise in  view of the changed scenario  on the

death of the respondent herein.  

11. As already taken note,  the marriage between the

parties had taken place in the year 1970 and the

undisputed fact is also that the children of the parties are

grown up and the very incidents referred to by the

appellant regarding the illegitimate relationship were

from the point of time when the respondent was posted at

Manipur and the appellant  herein had shifted there  in

the year 1991.  By such time the marital bond was quite

mature and with regard to certain incidents where there

were allegations it can only be considered as a

misunderstanding between the parties which only

required a minor adjustment to reassure each other and

iron out the crease.   Hence, merely because certain

issues have been raised with regard to the same, even if it

be on a misunderstanding in the instant facts, it cannot

be considered as inflicting mental cruelty in the nature it

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is required for considering the petition under Section 13

of the  Hindu Marriage  Act for  dissolving the  marriage.

Though the learned counsel representing the respondents

referred to the incidents by which the appellant had

hurled false allegations against the respondent, presently

when the respondent  has  died  and in  a circumstance

where one of the legal representatives, namely Shri Iqbbal

Singh was examined as RW­6 in support of the case of

the appellant herein and the  legal  representatives No.1

and 3, though were majors had not been examined in the

proceedings, any contention raised on their behalf would

not be of any assistance to take any other view.

Therefore, if all these aspects are kept in perspective, we

are of the view that the High Court was not justified in

reversing the  well­considered judgment passed by the

trial court.

12. Accordingly, the judgment dated 23.08.2006

passed in  F.A.O.  No.101­M/1999 is set  aside  and the

judgment dated 08.04.1999 passed in H.M.A. File No.133

of 16.12.1995 by the Additional District Judge, Bathinda

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is restored.   The instant appeal is allowed with no order

as to costs.  All pending applications also stand disposed

of.

…………………….….J. (R. BANUMATHI)

……………………….J.                                               (A.S. BOPANNA)

New Delhi, August 21, 2019

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