U.SREE Vs U.SRINIVAS
Bench: K.S. RADHAKRISHNAN,DIPAK MISRA
Case number: C.A. No.-008927-008928 / 2012
Diary number: 5845 / 2012
Advocates: K. SARADA DEVI Vs
SHOBHA RAMAMOORTHY
Page 1
Page 2
Page 3
Page 4
Page 5
Page 6
Page 7
Page 8
Page 9
Page 10
Page 11
Page 12
Page 13
Page 14
Page 15
Page 16
Page 17
Page 18
Page 19
Page 20
Page 21
Page 22
Page 23
Page 24
Page 25
Page 26
Page 27
Page 28
Page 29
Page 30
Page 31
Page 32
Page 33
Page 34
Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 8927-8928 OF 2012 [Arising out of S.L.P. (Civil) Nos. 37449-37450 of 2012
( CC.5877-5878 of 2012)]
U. Sree ... Appellant
Versus
U. Srinivas ... Respondent
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. The appellant-wife instituted F.C.O.P. No. 568 of 1997
under Section 9 of the Hindu Marriage Act, 1955 (for
brevity ‘the Act’) in the Principal Family Court,
Chennai for restitution of conjugal rights. The
respondent-husband filed F.C.O.P. No. 805 of 1998
under Sections 13(1)(i-a), 26 and 27 of the Act read
with Section 7 of the Family Courts Act, 1984 praying
Page 2
for dissolution of marriage, custody of the child and
return of jewellery and other items. The learned
Family Judge jointly tried both the cases and, on the
basis of the evidence brought on record, dismissed
the application for restitution of conjugal rights
preferred by the wife and allowed the petition of the
husband for dissolution of marriage and held that the
child would remain in the custody of the mother on
the principle that welfare of the child is paramount,
and further the husband was not entitled to return of
jewels or any other item from the wife in the absence
of any cogent evidence in that regard. The learned
Family Judge, while passing the decree for dissolution
of marriage, directed to pay permanent alimony of
Rs. 5 lacs each to the wife and her minor son within a
month.
3. Being dissatisfied by the common order, the
appellant-wife preferred C.M.A. No. 1656 of 2010 and
C.M.A. No. 1657 of 2010 in the High Court of
Judicature at Madras and the Division Bench
concurred with the conclusion as regards the decree
2
Page 3
of dissolution of marriage as a consequence of which
both the appeals had to meet the fate of dismissal.
However, the Bench, apart from concurring with the
grant of permanent alimony, directed the
respondent-husband to pay a sum of maintenance
amounting to Rs.12,500/- to the appellant-wife and
her son from the date of order passed by the Chief
Metropolitan Magistrate at Hyderabad till the date of
the order passed by the High Court. Hence, the
present two appeals have been preferred by special
leave assailing the common judgment passed by the
High Court in both the appeals.
4. The facts requisite to be stated for adjudication of the
appeals are that the marriage between the appellant
and the respondent was solemnized on 19.11.1994 at
Tirupathi according to Hindu rites and customs. After
entering into wedlock, they lived together at
Vadapalani, Chennai. As tradition would warrant, she
went to her parental home for delivery where a male
child was born on 30th of May, 1995. The respondent
celebrated the child’s birth in his in-law’s house and
3
Page 4
thereafter, the wife stayed with her parents for
sometime. She returned to Chennai on 4.10.1995
and there she lived with her husband till 3.1.1996.
The case of the wife in her application for restitution
of marriage is that on 3.1.1996, her father-in-law,
without her consent, took her to her parental home
and, thereafter, the husband without any justifiable
reason withdrew from her society. All efforts made
by her as well as by her parents to discuss with her
husband and his family members to find out a
solution went in vain. In this backdrop, a prayer was
made for restitution of conjugal rights.
5. The husband resisted the aforesaid stand contending,
inter alia, that there was total incompatibility in the
marital relationship inasmuch as she found fault with
his life style, his daily routine, his likes and dislikes
and picked up quarrels on trivial issues. She threw
tantrums only with the exclusive purpose that she
should dominate the relationship and have her own
way. At the time of practising and learning music in
the presence of his father, who was also his “Guru”,
4
Page 5
she hurled abuses and screamed which invariably
followed with arguments and quarrels. Though she
was expected, as per the customs, to show respect
towards elders and to the senior artists, yet, throwing
all traditional values to the wind, she would walk
away by creating a scene to his utter
embarrassment. His public image was totally ruined
and reputation was mutilated. It was also alleged
that she called her parents and threatened to initiate
proceedings under the Indian Penal Code, 1860 with
the help of her father, who was an I.A.S. officer in the
Vigilance Department in the Government of Andhra
Pradesh. With the efflux of time, the discord
aggravated and the wife became more aggressive
and did not allow her husband to go near her or the
child. On 3.1.1996, when the wife expressed her
desire to go to her parental home, he could not dare
to object and she went with costly gifts received by
him in India and abroad in recognition of his
performance in music. Regard being had to the
physical safety of the wife and the child, he
5
Page 6
requested his father to escort them to Hyderabad.
While she was at Hyderabad, she spread rumours
among the relatives and friends pertaining to his
fidelity, character and habits. It was further asserted
by the husband that she had filed the petition only to
harass him and, in fact, the manner in which he had
been treated clearly exhibited mental cruelty and,
therefore, the said relief should not be granted. It
was averred that in view of the treatment meted out
to the husband, dissolution of marriage was the only
solution and not restitution of conjugal rights.
6. The respondent, in his petition for divorce, pleaded
that after abandoning formal education, he pursued
his career in music treating it as a concept of ‘bhakti’
or devotion. He had to continue his ‘sadhana’ as a
daily routine under the guidance of his father as it
was necessary to understand the nuances and the
subtleties of music which could only be gathered by
experience and acquisition of knowledge at the feet
of a “guru” and also to keep alive “the Guru-Sishya
Parampara”. The aforesaid aspect of his life was not
6
Page 7
liked by his wife and she always interrupted hurling
abuses at him. Despite his best efforts to make his
wife understand the family tradition and show
reverence to the seniors in the sphere of music, she
remained obstinate in her attitude and chose to walk
away causing him not only embarrassment in public
but also humiliation which affected his reputation and
self respect. That apart, whenever the husband
visited her at the parental home, he was deprived of
conjugal rights and physically prevented from playing
with the child. In spite of his sacrifice and efforts to
adjust with her mental attitude, she remained
adamant and her behavioural pattern remained
painfully consistent. Gradually, her behaviour
became very cruel and, eventually, he was compelled
to file a case for judicial separation to which, as a
counterblast, she filed a case for restitution of
conjugal rights. She had communicated with her
friends that she would like to see her husband behind
bars on the ground of dowry harassment. She had
also threatened that if he took part in any musical
7
Page 8
concert at Hyderabad, his life shall be endangered.
Put in such a situation, left with no other alternative,
he was compelled to file a petition for dissolution of
marriage.
7. As the factual narration would unfurl, the wife in the
written statement asserted that she was aware of the
importance of music, its traditional values and clearly
understood the devotion and dedication as she
herself was a `Veena’ player and because of her
sacrifice, her husband had gained reputation and
popularity which also enhanced his financial status,
but, with the rise, he failed to perform his duties as a
husband. She denied the interruption in the practice
sessions and controverted the factum of
maltreatment. It was averred that as the husband
had gained reputation, his parents and other
relatives thought of a second marriage so that he
could get enormous dowry. She denied the
scandalous allegations and stated that she was proud
of her husband’s accomplishments. She justified her
filing of petition before the Chief Metropolitan
8
Page 9
Magistrate for grant of maintenance as he was
absolutely careless and negligent to look after her
and the child. It was further pleaded that the
grounds mentioned in the petition were vexatious
and frivolous and, therefore, there was no
justification for grant of a decree of divorce.
8. The learned Family Judge framed seven issues and,
considering the oral and documentary evidence
brought on record, came to hold that the wife had
treated the husband with cruelty; that she had not
taken any steps for re-union and had deserted him
for thirteen years without any valid reason and,
hence, the husband was entitled for a decree of
divorce and she was not entitled to have a decree for
restitution of conjugal rights. The learned Family
Judge directed that the custody of the child should
remain with the mother and the husband had
miserably failed to make out a case for return of
jewels and other items. He granted permanent
alimony as stated earlier.
9
Page 10
9. Being grieved by the aforesaid decision of the
learned Family Judge, the wife preferred two appeals.
On behalf of the appellant-wife, it was urged before
the High court that the judgment and decree passed
by the Family Court regarding grant of divorce was
passed on assumptions and presumptions; that she
had suffered immense humiliation and hardship at
the hands of the family members of the husband but
the Family Court did not appreciate the said facet in
proper perspective; that the finding relating to
desertion by the wife was contrary to the evidence
on record and, in fact, it was the case that the
husband had left the wife in the lurch at her parental
home and did not think for a moment to bring her
back; that the allegation with regard to the
interruption in the music learning sessions and her
dislike of her husband had been deliberately stated
to make out a case of mental cruelty; that certain
documents had been placed reliance upon by the
learned Family Judge though they were not
admissible in evidence and further the documents
10
Page 11
produced by the wife had not been properly
appreciated and dealt with; and that the court below
would have been well advised, in the obtaining
factual matrix, to direct restitution of conjugal rights.
It is worth noting that alternatively it was urged that
the trial Court had committed an error in granting
permanent alimony of Rs. 10 lacs in toto, regard
being had to the income of the husband.
10. In appeal, the High Court, after noting the respective
contentions advanced by the learned counsel for the
parties, proceeded to appreciate the essential
ingredients which are necessary to be established to
sustain a petition under Section 9 of the Act. After
referring to certain decisions in the field and the
concept of mental cruelty as stated in Halsbury’s
Laws of England, 4th Edn., Vol. 13, para 623 and
American Jurisprudence and the dictum laid down in
N.G. Dastane v. S. Dastane1, Rajani v.
Subramaniam2, Parveen Mehta v. Inderjit
1 (1975) 2 SCC 326 2 AIR 1990 Kerala 1
11
Page 12
Mehta3, Gananath Pattnaik v. State of Orissa4,
Shobha Rani v. Madhukar Reddi5, Manisha
Tyagi v. Deepak Kumar6, Sujata Uday Patil v.
Uday Madhukar Patil7, Chanderkala Trivedi v.
Dr. S.P. Trivedi8 and Pranay Majumdar v. Bina
Majumdar9, the High Court came to hold that the
material brought on record showed that the wife had
gone to the parental home on 3.1.1996 and made no
efforts to get reunited with the husband and, as per
the evidence on record, she had admitted in the
testimony recorded in O.P. No. 568 of 1995 that the
relations between her and her husband were cordial
till she left the matrimonial home. The High Court
found that her depositions were contradictory
inasmuch as on one hand she had stated that she
had been ill-treated and on the other that there was
cordial relationship. As is noticeable, the High Court
referred to the xerox copy of the letter Exhibit R-8
dated 18.10.1995 written in her handwriting to her 3 (2002) 5 SCC 706 4 (2002) 2 SCC 619 5 (1988) 1 SCC 105 6 (2010) 4 SCC 339 7 (2006) 13 SCC 272 8 (1993) 4 SCC 232 9 (2007) 9 SCC 217
12
Page 13
parents and observed that when the said letter was
summoned from her father she stated that there was
no such letter and on that ground the admissibility
was called in question. The High Court opined that
when the efforts were made to get the primary
evidence and it could not be obtained, the secondary
evidence could be adduced and that would be
admissible under Section 65 of the Evidence Act. Be
it noted, the English translation of the said letter was
marked as Exhibit R-9 which indicated that the wife
had clearly stated that she had spoken ill of her
mother-in-law and others and had expressed her
desire to seek divorce as she could not stay any
longer in the matrimonial home. It was observed by
the Bench that the conduct of the wife clearly
established desertion and her behaviourial pattern
exhibited mental cruelty meted out to the husband.
The High Court also took note of the fact that a stage
had reached where it had become well nigh
impossible for the couple to live together. Regard
being had to the totality of the circumstances, the
13
Page 14
High Court gave the stamp of approval to the
common judgment and decree passed by the learned
Family Court.
11. We have heard Mrs. K. Sarada Devi, learned counsel
for the appellant, and Mr. K. Ramamoorthy, learned
senior counsel for the respondent. It is contended by
Mrs. Sarada Devi that the learned Family Judge as
well as the High Court had failed to appreciate that
neither mental cruelty nor desertion had been
established as per the law. It is contended by her
that Exh. R-8 and R-9 were not admissible in
evidence inasmuch as they could not be treated as
secondary evidence as envisaged under Section 65
of the Evidence Act. It is further urged that the whole
decision for granting divorce and denying restitution
of conjugal rights has been based regard being had
to the total break down of marriage but the said
ground is not a legally permissible one to grant
divorce.
12. Mr. K. Ramamoorthy, learned senior counsel
appearing for the respondent, per contra, would
14
Page 15
submit that the said observation is one of the facets,
but the High Court has, after due deliberations,
returned findings relating to cruelty and desertion
and the same being founded on proper appreciation
of the material on record, this Court should not
interfere in exercise of appeal entertained by grant of
leave under Section 136 of the Constitution of India.
13. At this juncture, we may note with profit that as a
matter of fact, the High Court has observed that it
has become well nigh impossible for the husband and
the wife to live together and the emotional bond
between the parties is dead for all purposes. We
have noted this aspect for completeness, but we will
not address the said facet and will restrict our
delineation only towards the justifiability of the
conclusions pertaining to mental cruelty and
desertion.
14. Before we dwell upon the tenability of the
conclusions of desertion and mental cruelty, we think it
condign to deal with the submission whether the
photostat copy of the letter alleged to have been written
15
Page 16
by the wife to her father could have been admitted as
secondary evidence. As the evidence on record would
show, the said letter was summoned from the father who
had disputed its existence. The learned Family Court
Judge as well as the High Court has opined that when the
person is in possession of the document but has not
produced the same, it can be regarded as a proper
foundation to lead secondary evidence. In this context,
we may usefully refer to the decision in Ashok
Dulichand v. Madahavlal Dube10 wherein it has been
held that according to clause (a) of Section 65 of the
Indian Evidence Act, secondary evidence may be given of
the existence, condition or contents of a document when
the original is shown or appears to be in the possession or
power of the person against whom the document is
sought to be proved, or of any person out of reach of, or
not subject to, the process of the court, or of any person
legally bound to produce it, and when, after the notice
mentioned in Section 66, such person does not produce it.
Thereafter, the Court addressed to the facts of the case
and opined thus: - 10 (1975) 4 SCC 664
16
Page 17
“In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on July 4, 1973, before Respondent 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed photostat copy. Prayer was also made by the appellant that in case Respondent 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was, however, nowhere stated in the affidavit that the original document of which the photostat copy had been filed by the appellant was in the possession of Respondent 1. There was also no other material on the record to indicate that the original document was in the possession of Respondent 1. The appellant further failed to explain as to what were the circumstances under which the photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent 1 in his affidavit denied being in possession of or having anything to do with such a document.”
Be it noted, in this backdrop, the High Court had recorded
a conclusion that no foundation had been laid by the
appellant for leading secondary evidence in the shape of
the photostat copy and this Court did not perceive any
error in the said analysis.
17
Page 18
15. In J. Yashoda v. K. Shobha Rani11, after analyzing
the language employed in Sections 63 and 65 (a), a two-
Judge Bench held as follows:-
“Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non- production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the section.”
16. In M. Chandra v. M. Thangamuthu and Other12,
It has been held as follows:-
”It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasised that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a
11 (2007) 5 SCC 730 12 (2010) 9 SCC 712
18
Page 19
party is genuinely unable to produce the original through no fault of that party.”
17. Recently, in H. Siddiqui (Dead) by Lrs. v. A.
Ramalingam13, while dealing with Section 65 of the
Evidence Act, this Court opined though the said provision
permits the parties to adduce secondary evidence, yet
such a course is subject to a large number of limitations.
In a case where the original documents are not produced
at any time, nor has any factual foundation been laid for
giving secondary evidence, it is not permissible for the
court to allow a party to adduce secondary evidence.
Thus, secondary evidence relating to the contents of a
document is inadmissible, until the non-production of the
original is accounted for, so as to bring it within one or
other of the cases provided for in the section. The
secondary evidence must be authenticated by
foundational evidence that the alleged copy is in fact a
true copy of the original. It has been further held that
mere admission of a document in evidence does not
amount to its proof. Therefore, it is the obligation of the
Court to decide the question of admissibility of a
13 (2011) 4 SCC 240
19
Page 20
document in secondary evidence before making
endorsement thereon.
18. In the case at hand, the learned Family Judge has
really not discussed anything relating to foundational
evidence. The High Court has only mentioned that when
the letter was summoned and there was a denial, the
secondary evidence is admissible. In our considered
opinion, such a view is neither legally sound nor in
consonance with the pronouncements of this Court and,
accordingly, we have no hesitation in dislodging the
finding on that score.
19. The next facet which is to be dwelled upon is whether
the appellant had treated her husband with mental
cruelty. The legal sustainability of the said conclusion has
to be tested keeping the photostat copy of the letter out of
consideration. At the very outset, we may state that there
is no cavil over the proposition as to what cruelty includes.
Regard being had to the same, we shall refer to certain
authorities.
20
Page 21
20. In Samar Ghosh v. Jaya Ghosh14, a three-Judge
Bench, after dealing with the concept of mental cruelty,
has observed thus:-
“99. … The human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in the other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.
100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances….”
21. In Ravi Kumar v. Julmidevi15, this Court has
expressed thus: -
14 (2007) 4 SCC 511 15 (2010) 4 SCC 476
21
Page 22
“In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty.
20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial cases can be of infinite variety —it may be subtle or even brutal and may be by gestures and words.”
22. Recently, this Court, in Vishwanath Agrawal, s/o
Sitaram Agrawal v. Sarla Vishwanath Agrawal16,
while dealing with the conception of cruelty, has stated
that it has inseparable nexus with human conduct or
human behaviour. It is always dependent upon the social
strata or the milieu to which the parties belong, their ways
of life, relationship, temperament and emotions that have
been conditioned by the social status. The two-Judge 16 (2012) 7 SCC 288
22
Page 23
Bench referred to the decisions in Sirajmohmedkhan
Janmohamadkhan v. Hafizunnisa Yasikhan17,
Shobha Rani (supra), Sheldon v. Sheldon18, V.
Bhagat v. D. Bhagat19, Parveen Mehta (supra),
Vijaykumar Ramchandra Bhate v. Neela Vijaykumar
Bhate20, A. Jayachandra v. Aneel Kaur21, Vinita
Saxena v. Pankaj Pandit22, Samar Ghosh (supra) and
Suman Kapur v. Sudhir Kapur23, and opined that when
the evidence brought on record clearly establish a
sustained attitude of causing humiliation and calculated
torture on the part of the wife to make the life of the
husband miserable, it would amount to mental cruelty.
Emphasis was laid on the behavioral pattern of the wife
whereby a dent is created in the reputation of the
husband, regard being had to the fact that reputation is
the salt of life.
23. In the case at hand, the husband has clearly deposed
about the constant and consistent ill-treatment meted out 17 (1981) 4 SCC 250 18 (1966) 2 WLR 993 19 (1994) 1 SCC 337 20 (2003) 6 SCC 334 21 (2005) 2 SCC 22 22 (2009) 1 SCC 422 23 (2009) 1 SCC 422
23
Page 24
to him by the wife inasmuch as she had shown her
immense dislike to his “sadhna” in music and had
exhibited total indifference and, in a way, contempt to the
tradition of teacher and disciple. It has graphically been
demonstrated that she had not shown the slightest
concern for the public image of her husband on many an
occasion by putting him in a situation of embarrassment
leading to humiliation. She has made wild allegations
about the conspiracy in the family of her husband to get
him re-married for the greed of dowry and there is no iota
of evidence on record to substantiate the same. This, in
fact, is an aspersion not only on the character of the
husband but also a maladroit effort to malign the
reputation of the family. The learned Family Judge as well
as the High Court has clearly analysed the evidence and
recorded a finding that the wife had treated the husband
with mental cruelty. True it is, there is some reference in
that regard to the photostat copy of the letter which we
have not accepted as admissible in evidence but the other
evidence brought on record clearly support the findings
24
Page 25
recorded by the learned Family Judge and the High Court
and the said finding remains in the realm of fact.
24. This Court, in State of U. P. v. Babul Nath24, while
considering the scope of Article 136 as to when this Court
is entitled to upset a finding of fact, has observed thus: -
“5. At the very outset we may mention that in an appeal under Article 136 of the Constitution this Court does not normally reappraise the evidence by itself and go into the question of credibility of the witnesses and the assessment of the evidence by the High Court is accepted by the Supreme Court as final unless, of course, the appreciation of evidence and finding is vitiated by any error of law of procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the evidence on record.”
25. In Bharat Coking Coal Ltd. v. Karam Chand
Thapar & Bros. Pvt. Ltd.25, this Court opined that the
jurisprudence under Article 136 stands out to be
extremely wide but that does not, however, warrant
intervention in a situation having concurrent set of facts
and an appeal therefrom on the factual issue. The article
24 (1994) 6 SCC 29 25 (2003) 1 SCC 6
25
Page 26
has been engrafted by the founding fathers of the
Constitution for the purposes of avoiding mischief and
injustice on the wrong assumption of law. The justice
delivery system of the country prompts this Court to
interfere under Article 136 of the Constitution when the
need of the society stands established and the judgment,
if left outstanding, would not only create prejudice but
would also have an otherwise adverse effect on the
society. Further elaborating, the Bench ruled thus:-
“The jurisdiction under Article 136 stands out to be extremely wide but that does not, however, warrant intervention having concurrent set of facts and an appeal therefrom on the factual issue. The article has been engrafted by the founding fathers of the Constitution for the purposes of avoiding mischief of injustice on the wrong assumption of law. The justice delivery system of the country prompts this Court to interfere under Article 136 of the Constitution when the need of the society stands established and the judgment, if left outstanding, would not only create prejudice but would have an otherwise adverse effect on to the society — it is this solemn objective of administration of justice with which the Constitution-makers thought it prudent to confer such a power on to the Apex Court of the country. It is the final arbiter but only when the dispute needs to be settled by the Apex Court so as to avoid injustice and infraction of law.”
26
Page 27
26. In Ganga Kumar Srivastava v. State of Bihar26,
after referring to the earlier authorities, this Court culled
out certain principles which would invite exercise of power
of this Court under Article 136 of the Constitution:-
(i) The powers of this Court under Article 136 of the Constitution are very wide but in criminal appeals this Court does not interfere with the concurrent findings of fact save in exceptional circumstances.
(ii) It is open to this Court to interfere with the findings of fact given by the High Court, if the High Court has acted perversely or otherwise improperly.
(iii) It is open to this Court to invoke the power under Article 136 only in very exceptional circumstances as and when a question of law of general public importance arises or a decision shocks the conscience of the Court.
(iv) When the evidence adduced by the prosecution fell short of the test of reliability and acceptability and as such it is highly unsafe to act upon it.
(v) Where the appreciation of evidence and finding is vitiated by any error of law of procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the evidence on record.
26 (2005) 6 SCC 211
27
Page 28
27. In Dubaria v. Har Prasad and Another27, it has
been held that when there is infirmity in the decision
because of excluding, ignoring and overlooking the
abundant materials and the evidence, if considered in
proper perspective, would have led to conclusion contrary
to the one taken by both the High Court as well as the fora
below, it would be open to this Court to interfere with the
concurrent findings of fact.
28. Tested on the touchstone of the aforesaid principles,
we have no trace of doubt that the finding returned by the
Family Judge which has been given the stamp of approval
by the High Court relating to mental cruelty cannot be said
to be in ignorance of material evidence or exclusion of
pertaining materials or based on perverse reasoning. In
our view, the conclusion on that score clearly rests on
proper appreciation of facts and, hence, we concur with
the same.
29. Presently, we shall advert to the finding recorded by
the learned Family Judge and the High Court relating to
desertion by the wife. As the factual matrix would reveal,
27 (2009) 9 SCC 346
28
Page 29
both the Courts have proceeded on the base that the wife
had not endeavored to reunite herself with the husband
and there had long lapse of time since they had lived
together as husband and wife. On the aforesaid
foundation, the conclusion has been drawn that there is an
animus descerendi on the part of the wife. To test the
tenability of the said conclusion, we have perused the
petition for divorce from which it is evident that there is no
pleading with regard to desertion. It needs no special
emphasis to state that a specific case for desertion has to
be pleaded. It is also interesting to note that the petition
was not filed seeking divorce on the ground of desertion
but singularly on cruelty. In the absence of a prayer in
that regard, we are constrained to hold that the conclusion
arrived at as regards desertion by the learned Family
Judge which has been concurred with by the High Court is
absolutely erroneous and, accordingly, we overturn the
same.
30. From the foregoing analysis, it is established that the
husband has proved his case of mental cruelty which was
the foundation for seeking divorce. Therefore, despite
29
Page 30
dislodging the finding of desertion, we conclude and hold
that the respondent husband has rightly been granted a
decree of divorce.
31. The next issue that emerges for consideration
pertains to the grant of permanent alimony. It is
noticeable that the wife had filed a case for grant of
maintenance and residence under the Hindu Adoptions
and Maintenance Act, 1956 at Hyderabad. The High Court
has granted Rs. 12,500/- per month from the date of filing
of the petition for maintenance and Rs.5 Lacs each to the
wife and son towards permanent alimony. Whether the
High Court should have granted Rs.12500/- as
maintenance need not be addressed by us inasmuch as
we are inclined to deal with this issue of grant of
permanent alimony in a different backdrop. As is evincible
from the orders of this Court when the matters were listed
on 9.4.2012, the Court had taken note of the fact that the
wife and son have been living separately at Hyderabad for
about 16 years and, in that context, the following order
was passed :-
30
Page 31
“Looking to the financial and social status of the parties, we request the learned senior counsel appearing for the respondent to ask his client to arrange for one flat for the petitioner and their so that they can live in the said flat comfortably. On this suggestion, being given by the Court, learned senior counsel appearing for the respondent prayed for time to seek instructions.”
32. On 30.4.2012, the following order came to be passed:-
“As per the Order passed by this Court on 09.04.2012, learned senior counsel appearing for the respondent-husband informed that respondent is ready and willing to buy a flat for the petitioner in Hyderabad, so that she will have a roof over her head for all the times to come.
However, the details of the same are required to be worked out.
It is, therefore, desirable that both the parties should remain present in this Court on 10.07.2012.
Without prejudice, a sum of Rs. 10 lakhs by way of Demand Draft is being paid by the respondent- husband to petitioner-wife. Other Rs. 10 lakhs is in deposit with the Family Court at Chennai. Petitioner will be at liberty to withdraw this amount.”
33. We have reproduced the aforesaid orders to highlight
that the husband had agreed to buy a flat at Hyderabad.
However, when the matter was listed thereafter, there
31
Page 32
was disagreement with regard to the locality of the flat
arranged by the husband and, therefore, the matter was
heard on merits. We have already opined that the
husband has made out a case for divorce by proving
mental cruelty. As a decree is passed, the wife is entitled
to permanent alimony for her sustenance. Be it stated,
while granting permanent alimony, no arithmetic formula
can be adopted as there cannot be mathematical
exactitude. It shall depend upon the status of the parties,
their respective social needs, the financial capacity of the
husband and other obligations. In Vinny Parmvir
Parmar v. Parmvir Parmar28, while dealing with the
concept of permanent alimony, this Court has observed
that while granting permanent alimony, the Court is
required to take note of the fact that the amount of
maintenance fixed for the wife should be such as she can
live in reasonable comfort considering her status and the
mode of life she was used to when she lived with her
husband. At the same time, the amount so fixed cannot
be excessive or affect the living condition of the other
party. 28 (2011) 13 SCC 112
32
Page 33
34. Keeping in mind the aforesaid broad principles, we
may proceed to address the issue. The respondent
himself has asserted that he has earned name and fame
in the world of music and has been performing concerts in
various parts of India and abroad. He had agreed to buy a
flat in Hyderabad though it did not materialise because of
the demand of the wife to have a flat in a different locality
where the price of the flat is extremely high. Be that as it
may, it is the duty of the Court to see that the wife lives
with dignity and comfort and not in penury. The living
need not be luxurious but simultaneously she should not
be left to live in discomfort. The Court has to act with
pragmatic sensibility to such an issue so that the wife
does not meet any kind of man-made misfortune. Regard
being had to the status of the husband, the social strata to
which the parties belong and further taking note of the
orders of this Court on earlier occasions, we think it
appropriate to fix the permanent alimony at Rs 50 lacs
which shall be deposited before the learned Family Judge
within a period of four months out of which Rs.20 lacs
shall be kept in a fixed deposit in the name of the son in a
33
Page 34
nationalized bank which would be utilised for his benefit.
The deposit shall be made in such a manner so that the
respondent wife would be in a position to draw maximum
quarterly interest. We may want to clarify that any
amount deposited earlier shall stand excluded.
35. On the basis of the forgoing discussion, the decree
for dissolution of marriage is affirmed only on the ground
of mental cruelty which eventually leads to dismissal of
the appeals. The parties shall bear their respective costs.
……………………………….J. [K. S. Radhakrishnan]
New Delhi; ……………………………….J. December 11, 2012 [Dipak Misra]
34