Vishwanat Vs Sau. Sarla Vishwanath Agrawal

04 July 2012
Supreme Court
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VISHWANAT Vs SAU. SARLA VISHWANATH AGRAWAL

Bench: DEEPAK VERMA,DIPAK MISRA
Case number: C.A. No.-004905-004905 / 2012
Diary number: 19003 / 2007
Advocates: CHANDAN RAMAMURTHI Vs C. G. SOLSHE

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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4905 OF 2012 (Arising out of S.L.P. (Civil) No. 16528 of 2007)

Vishwanath S/o Sitaram Agrawal .....……..Appellant

Versus

Sau. Sarla Vishwanath Agrawal ………Respondent

J U D G M E N T

DIPAK MISRA, J.

Leave granted.

2. The marriage between the appellant and the respondent was

solemnized on the 30th of April, 1979 as per the Hindu rites at

Akola. In the wedlock, two sons, namely, Vishal and Rahul, were

born on 23.9.1982 and 1.11.1984 respectively. As the appellant-

husband felt that there was total discord in their marital life and

compatibility looked like a mirage, he filed a petition for divorce

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under Section 13(1) (ia) of The Hindu Marriage Act, 1955 (for

brevity ‘the Act’).

3. It was the case of the appellant before the court of first

instance that the respondent-wife did not know how to conduct

herself as a wife and daughter-in-law and despite persuasion, her

behavioural pattern remained unchanged. The birth of the

children had no impact on her conduct and everything worsened

with the efflux of time. The behaviour of the respondent with the

relatives and guests who used to come to their house was far

from being desirable and, in fact, it exhibited arrogance and lack

of culture and, in a way, endangered the social reputation of the

family. That apart, she did not have the slightest respect for her

mother-in-law. Despite the old lady being a patient of diabetes

and hyper tension, it could not invoke any sympathy from the

respondent and hence, there was total absence of care or

concern.

4. As pleaded, in the month of March, 1990, there was a

dacoity in the house where the appellant was staying and,

therefore, they shifted to the ginning factory and eventually, on

17.3.1991, shifted to their own three storeyed building situate in

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Gandhi Chowk. Even with the passage of time, instead of

bringing maturity in the attitude of the respondent, it brought a

sense of established selfishness and non-concern for the

children. Whim and irrationality reigned in her day-to-day

behaviour and frequent quarrels became a daily affair. As

misfortune would have it, on 23.1.1994, the mother of the

appellant died and the freer atmosphere at home gave immense

independence to the respondent to make the life of the appellant

more troublesome. The appellant and his father were compelled

to do their personal work as the entire attention of the servants

was diverted in a compulsive manner towards her. Her immature

perception of life reached its zenith when on certain occasions

she used to hide the keys of the motorcycle and close the gate so

that the appellant could not go to the office of the factory to look

after the business. Frequent phone calls were made to the

factory solely for the purpose of abusing and causing mental

agony to the appellant. As asserted, the appellant and his sons

used to sleep on the second floor whereas the respondent used to

sleep in the bedroom on the third floor and their relationship

slowly but constantly got estranged. As the cruelty became

intolerable, the appellant visited his in-laws and disclosed the

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same but it had no effect on her behaviour. Eventually, on

1.5.1995, the respondent was left at the house of her parents at

Akola and the appellant stayed in his house with the two sons.

As the factual matrix would unveil, on 24.7.1995, a notice issued

by her advocate was published in the daily “Lokmat” stating,

inter alia, that the appellant is a womaniser and addicted to

liquor. On 11.10.1995, at 4.00 p.m., the respondent came to the

house of the appellant at Gandhi Chowk and abused the father,

the children and the appellant. She, in fact, created a violent

atmosphere in the house as well as in the office by damaging the

property and causing mental torture to the appellant and also to

the family members which compelled the appellant to lodge a

complaint at the Police Station, Chopda. It was alleged that she

had brought gundas and certain women to cause that incident.

The said untoward incident brought the A.S.P., Jalgaon, to the

spot. The publication in the newspaper and the later incident

both occurred during the pendency of the divorce petition and

they were incorporated by way of amendment. On the aforesaid

basis, it was contended that the respondent had treated the

appellant with cruelty and hence, he was entitled to a decree for

divorce.

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5. The asseverations made in the petition were controverted by

the respondent stating that she was always respectful and cordial

to her in-laws, relatives and the guests as was expected from a

cultured daughter-in-law. They led a happy married life for 16

years and at no point of time she showed any arrogance or any

behaviour which could remotely suggest any kind of cruelty. She

attended to her mother-in-law all the time with a sense of

committed service and at no point of time there was any

dissatisfaction on her part. She disputed the allegation that she

had hidden the keys of the motorcycle or closed the gate or

repeatedly called the appellant on phone at the office to abuse

him or to disturb him in his work. It is her stand that the

appellant owns an oil mill, ginning factory and a petrol pump at

Chopda and had sold certain non-agricultural land by

demarcating it into small plots. The appellant, as alleged, joined

the computer classes which were run by one Neeta Gujarathi in

the name and style of “Om Computer Services” and gradually the

appellant started spending much of his time at the computer

centre instead of attending to his own business in the factory.

When the respondent became aware of the intimacy, she took

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serious objection to the same and therefrom their relationship

became bitter.

6. It was alleged by the respondent that she was disturbed

after knowing about the involvement of the appellant with

another lady despite having an established family life and two

adolescent sons and, therefore, she was compelled to make

phone calls to make enquiries about his whereabouts. As the

interference by the respondent was not appreciated by the

appellant, he took the respondent on 1.5.1995 to Akola and left

her at her parental house and never cared to bring her back to

her matrimonial home. Her willingness to come back and stay

with the husband and children could not get fructified because of

the totally indifferent attitude shown by the appellant. Her

attempts to see the children in the school became an exercise in

futility, as the husband, who is a trustee of the school, managed

to ensure that the boys did not meet her. It was further alleged

that the said Neeta lived with him as his mistress and when the

respondent came to know about it, she went to Chopda to

ascertain the same and coming to know that Neeta was in the

house of the appellant, she made an effort to enter into the house

but she was assaulted. This resulted in gathering of people of

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the locality and the appellant-husband, as a counter-blast,

lodged a complaint at the police station. The Deputy

Superintendent of Police arrived at the scene and found that

Neeta was inside the house and thereafter she was taken back to

her house by the police. Because of the involvement of the

appellant with the said Neeta, he had concocted the story of

cruelty and filed the petition for divorce.

7. The learned trial Judge framed as many as four issues. The

two vital issues were whether the appellant had been able to

prove the alleged cruelty and whether he was entitled to take

disadvantage of his own wrong. The appellant, in order to prove

the allegation of cruelty, examined ten witnesses and on behalf of

the respondent, eight witnesses were examined. The learned trial

Judge, analysing the evidence on record, came to hold that there

was conjugal relationship till 1.5.1995; that there was no

substantial material on record to demonstrate that the

respondent had behaved with immaturity immediately after

marriage; that in the absence of cogent evidence, it was difficult

to hold that the respondent had troubled the husband and his

parents; that the evidence of PW-3, Ramesh, was not worthy of

acceptance as he is close and an interested witness; that the

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allegation that whenever she used to go to her parental home,

she was granting leave to the servants was not acceptable; that

the appellant should have examined some of the servants

including the maid servant but for some reason or other had

withheld the best evidence; that the plea that the respondent was

not looking after her mother-in-law who was suffering from

paralysis from 1984 has not been proven; that the allegation that

the respondent was hiding the uniforms of the children and not

treating them well had not been proven because the version of

Vishal could not be accepted as he was staying with the father

and, therefore, it was natural for him to speak in favour of the

father; that the stand that the respondent was hiding the keys of

the motorcycle and crumpling the ironed clothes of the appellant

did not constitute mental cruelty as the said acts, being childish,

were enjoyed by the appellant-husband; that the factum of abuse

by the respondent on telephone had not been established by

adducing reliable evidence; that the respondent and the appellant

were sleeping on the third floor of the house and hence, she was

sleeping with him in the bedroom and the allegation that he was

deprived of sexual satisfaction from 1991 was unacceptable; that

from the witnesses cited on behalf of the respondent, it was

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demonstrable that her behaviour towards her sons and in-laws

was extremely good; that even if the allegations made by the

appellant were accepted to have been established to some extent,

it could only be considered as normal wear and tear of the

marital life; that the plea of mental cruelty had not been proven

as none of the allegations had been established by adducing

acceptable, consistent and cogent evidence; that the notice

published in the daily “Lokmat” on 28.7.1995 and the later

incident dated 11.10.1995 being incidents subsequent to the

filing of the petition for divorce, the same were not to be taken

into consideration.

8. The learned trial Judge further returned the finding that the

appellant was going to learn computer and taking instructions

from Neeta Gujarathi and the plea that she was engaged as a

Computer Operator in his office was not believable as no

appointment letter was produced; that the stand that she was

paid Rs.1200/- per month was not worthy of any credence as she

was operating a computer centre; that from the evidence of the

witnesses of the respondent, namely, RW-3 to RW-5, it was clear

that Neeta Gujarathi was living with the appellant in his house

and he had developed intimacy with her and, therefore, the

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subsequent events, even if analysed, were to be so done on the

said backdrop; that the allegation that there was a gathering and

they were violent and broke the windows was really not proven by

adducing credible evidence; that the testimony of the witnesses of

the respondent clearly reveal that Neeta was inside the house of

the appellant and effort was made to bring her out from the

house and no damage was caused to the property; that on that

day, the police had come in the mid night hours and taken out

Neeta from the house of the appellant and left her at her house;

that the notice which was published in “Lokmat” was to protect

the interest of the sons in the property and basically pertained to

the appellant’s alienating the property; that the public notice was

not unfounded or baseless and the question of defaming him and

thereby causing any mental cruelty did not arise; that the

allegations made in the application for grant of interim alimony

that the appellant is a womaniser and is addicted to liquor

cannot be considered for the purpose of arriving at the

conclusion that the husband was meted with cruelty; that the

allegations made in the written statement having been found to

be truthful, the same could not be said to have caused any

mental cruelty; that the cumulative effect of the evidence brought

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on record was that no mental cruelty was ever caused by the

respondent; and that the husband could not take advantage of

his own wrong. Being of this view, the learned trial Judge

dismissed the application with costs and also dismissed the

application of the respondent-wife for grant of permanent

alimony.

9. Grieved by the aforesaid decision, the appellant-husband

preferred Civil Appeal No. 23 of 1999. The first appellate court

appreciated the evidence, dealt with the findings returned by the

trial court and eventually came to hold that the cumulative effect

of the evidence and the material brought on record would go a

long way to show that the appellant had failed to make out a case

of mental cruelty to entitle him to obtain a decree for divorce.

The aforesaid conclusion by the appellate court entailed

dismissal of the appeal.

10. Being dissatisfied with the judgment and decree passed by

the learned appellate Judge, the husband preferred Second

Appeal No. 683 of 2006 before the High Court. The learned

single Judge of the High Court came to hold that there were

concurrent findings of fact and no substantial question of law

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was involved. However, the learned single Judge observed that

the sons of the parties had grown up and have been married;

that the parties had no intention to patch up the matrimonial

discord; and that the marriage had been irretrievably broken but

that could not be considered by the High Court but only by the

Apex Court under Article 142 of the Constitution. Expressing the

aforesaid view, he did not admit the appeal and dismissed the

same.

11. We have heard Mr. Arvind V. Sawant, learned senior

counsel for the appellant-husband, and Mr. Vivek C. Solshe,

learned counsel for the respondent-wife.

12. At the very outset, we would like to make it clear that

though the learned single Judge of the High Court has expressed

the view that the parties are at logger heads and have shown no

inclination to patch the matrimonial rupture and the sons have

grown up and got married and with the efflux of time, the

relationship has been further shattered and hence, the marriage

is irretrievably broken and only this Court can grant divorce in

exercise of power under Article 142 of the Constitution, yet we

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are not going to take recourse to the same and only address

ourselves whether a case for divorce has really been made out.

13. At this juncture, we may note with profit that the learned

senior counsel for the appellant exclusively rested his case on the

foundation of mental cruelty. It is his submission that if the

evidence of the husband and other witnesses are scrutinized in

an apposite manner along with the stand and stance taken in the

written statement, it will clearly reveal a case of mental cruelty

regard being had to the social status of the appellant. It is urged

by him that the trial court as well as the appellate court have not

given any credence to the evidence of some of the witnesses on

the ground that they are interested witnesses though they are the

most natural witnesses who had witnessed the cruel behaviour

meted to the appellant.

14. It is the submission of the learned senior counsel for the

appellant that the court of first instance as well as the appellate

court have failed to take into consideration certain material

aspects of the evidence and the appreciation of evidence being

absolutely perverse, the High Court would have been well advised

to scan and scrutinize the same but it declined to admit the

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appeal on the ground that there are concurrent findings of fact.

It is canvassed by him that this Court, in exercise of power under

Article 136 of the Constitution, can dislodge such concurrent

findings of facts which are perverse, baseless, unreasonable and

contrary to the material on record.

15. The learned counsel for the respondent, resisting the

aforesaid submissions, contended that the view expressed by the

High Court cannot be found fault with as the courts below have,

at great length, discussed the evidence and appreciated the same

with utmost prudence and objectivity and there is nothing on

record to show that any material part of the evidence has been

ignored or something extraneous to the record has been taken

into consideration. It is highlighted by him that the stand put

forth by the wife in her written statement having been

established, the same cannot be construed to have constituted

mental cruelty. Lastly, it is put forth that the appellant has

created a dent in the institution of marriage and made a

maladroit effort to take advantage of his own wrong which should

not be allowed.

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16. First, we shall advert to what actually constitutes ‘mental

cruelty’ and whether in the case at hand, the plea of mental

cruelty has been established and thereafter proceed to address

whether the courts below have adopted an approach which is

perverse, unreasonable and unsupported by the evidence on

record and totally unacceptable to invite the discretion of this

Court in exercise of power under Article 136 of the Constitution

to dislodge the same.

17. 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. In

Sirajmohamedkhan Janmohamadkhan v. Hafizunnisa

Yasinkhan and another1, a two-Judge Bench approved the

concept of legal cruelty as expounded in Sm. Pancho v. Ram

Prasad2 wherein it was stated thus: -

“Conception of legal cruelty undergoes changes according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions, this feature has obtained

1 (1981) 4 SCC 250 2 AIR 1956 All 41

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legislative recognition that a second marriage is a sufficient ground for separate residence and separate maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used.

Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which may undermine the health of a wife.”

It is apt to note here that the said observations were made

while dealing with the Hindu Married Women’s Right to Separate

Residence and Maintenance Act (19 of 1946). This Court, after

reproducing the passage, has observed that the learned Judge

has put his finger on the correct aspect and object of mental

cruelty.

18. In Shobha Rani v. Madhukar Reddi3, while dealing with

‘cruelty’ under Section 13(1)(ia) of the Act, this Court observed

that the said provision does not define ‘cruelty’ and the same

could not be defined. The ‘cruelty’ may be mental or physical,

intentional or unintentional. If it is physical, the court will have

no problem to determine it. It is a question of fact and degree. If

it is mental, the problem presents difficulty. Thereafter, the

Bench proceeded to state as follows: - 3 (1988) 1 SCC 105

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“First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.”

19. After so stating, this Court observed about the marked

change in life in modern times and the sea change in

matrimonial duties and responsibilities. It has been observed

that when a spouse makes a complaint about treatment of

cruelty by the partner in life or relations, the court should not

search for standard in life. A set of facts stigmatized as cruelty in

one case may not be so in another case. The cruelty alleged may

largely depend upon the type of life the parties are accustomed to

or their economic and social conditions. It may also depend

upon their culture and human values to which they attach

importance. Their Lordships referred to the observations made in

Sheldon v. Sheldon4 wherein Lord Denning stated, “the 4 (1966) 2 All ER 257

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categories of cruelty are not closed”. Thereafter, the Bench

proceeded to state thus: -

“Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty.

These preliminary observations are intended to emphasise that the court in matrimonial cases is not concerned with ideals in family life. The court has only to understand the spouses concerned as nature made them, and consider their particular grievance. As Lord Ried observed in Gollins v. Gollins5 :

In matrimonial affairs we are not dealing with objective standards, it is not a matrimonial offence to fall below the standard of the reasonable man (or the reasonable woman). We are dealing with this man or this woman.”

20. In V. Bhagat v. D. Bhagat (Mrs.)6, a two-Judge Bench

referred to the amendment that had taken place in Sections 10

and 13(1)(ia) after the Hindu Marriage Laws (Amendment) Act,

1976 and proceeded to hold that the earlier requirement that

such cruelty has caused a reasonable apprehension in the mind

5 (1963) 2 All ER 966 6 (1994) 1 SCC 337

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of a spouse that it would be harmful or injurious for him/her to

live with the other one is no longer the requirement. Thereafter,

this Court proceeded to deal with what constitutes mental cruelty

as contemplated in Section 13(1)(ia) and observed that mental

cruelty in the said provision can broadly be defined as that

conduct which inflicts upon the other party such mental pain

and suffering as would make it not possible for that party to live

with the other. To put it differently, the mental cruelty must be

of such a nature that the parties cannot reasonably be expected

to live together. The situation must be such that the wronged

party cannot reasonably be asked to put up with such conduct

and continue to live with the other party. It was further

observed, while arriving at such conclusion, that regard must be

had to the social status, educational level of the parties, the

society they move in, the possibility or otherwise of the parties

ever living together in case they are already living apart and all

other relevant facts and circumstances. What is cruelty in one

case may not amount to cruelty in another case and it has to be

determined in each case keeping in view the facts and

circumstances of that case. That apart, the accusations and

allegations have to be scrutinized in the context in which they are

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made. Be it noted, in the said case, this Court quoted extensively

from the allegations made in the written statement and the

evidence brought on record and came to hold that the said

allegations and counter allegations were not in the realm of

ordinary plea of defence and did amount to mental cruelty.

21. In Praveen Mehta v. Inderjit Mehta7, it has been held that

mental cruelty is a state of mind and feeling with one of the

spouses due to behaviour or behavioural pattern by the other.

Mental cruelty cannot be established by direct evidence and it is

necessarily a matter of inference to be drawn from the facts and

circumstances of the case. A feeling of anguish, disappointment,

and frustration in one spouse caused by the conduct of the other

can only be appreciated on assessing the attending facts and

circumstances in which the two partners of matrimonial life have

been living. The facts and circumstances are to be assessed

emerging from the evidence on record and thereafter, a fair

inference has to be drawn whether the petitioner in the divorce

petition has been subjected to mental cruelty due to the conduct

of the other.

7 AIR 2002 SC 2582

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22. In Vijaykumar Ramchandra Bhate v. Neela Vijaykumar

Bhate8, it has been opined that a conscious and deliberate

statement levelled with pungency and that too placed on record,

through the written statement, cannot be so lightly ignored or

brushed aside.

23. In A. Jayachandra v. Aneel Kaur9, it has been ruled that

the question of mental cruelty has to be considered in the light of

the norms of marital ties of the particular society to which the

parties belong, their social values, status and environment in

which they live. If from the conduct of the spouse, it is

established and/or an inference can legitimately be drawn that

the treatment of the spouse is such that it causes an

apprehension in the mind of the other spouse about his or her

mental welfare, then the same would amount to cruelty. While

dealing with the concept of mental cruelty, enquiry must begin as

to the nature of cruel treatment and the impact of such

treatment in the mind of the spouse. It has to be seen whether

the conduct is such that no reasonable person would tolerate it.

8 AIR 2003 SC 2462 9 (2005) 2 SCC 22

Page 22

24. In Vinita Saxena v. Pankaj Pandit10, it has been ruled

that as to what constitutes mental cruelty for the purposes of

Section 13(1)(ia) will not depend upon the numerical count of

such incident or only on the continuous course of such conduct

but one has to really go by the intensity, gravity and stigmatic

impact of it when meted out even once and the deleterious effect

of it on the mental attitude necessary for maintaining a

conducive matrimonial home.

25. In Samar Ghosh v. Jaya Ghosh11, this Court, after

surveying the previous decisions and referring to the concept of

cruelty, which includes mental cruelty, in English, American,

Canadian and Australian cases, has observed that 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

10 (2006) 3 SCC 778 11 (2007) 4 SCC 511

Page 23

belief, human values and their value system. 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 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.

26. In Suman Kapur v. Sudhir Kapur12, after referring to

various decisions in the field, this Court took note of the fact that

the wife had neglected to carry out the matrimonial obligations

and further, during the pendency of the mediation proceeding,

had sent a notice to the husband through her advocate alleging

that he had another wife in USA whose identity was concealed.

The said allegation was based on the fact that in his income-tax

return, the husband mentioned the “Social Security Number” of

his wife which did not belong to the wife, but to an American

lady. The husband offered an explanation that it was merely a

12 AIR 2009 SC 589

Page 24

typographical error and nothing else. The High Court had

observed that taking undue advantage of the error in the “Social

Security Number”, the wife had gone to the extent of making

serious allegation that the husband had married an American

woman whose “Social Security Number” was wrongly typed in the

income-tax return of the husband. This fact also weighed with

this Court and was treated that the entire conduct of the wife did

tantamount to mental cruelty.

27. Keeping in view the aforesaid enunciation of law pertaining

to mental cruelty, it is to be scrutinized whether in the case at

hand, there has been real mental cruelty or not, but, a significant

one, the said scrutiny can only be done if the findings are

perverse, unreasonable, against the material record or based on

non-consideration of relevant materials. We may note here that

the High Court has, in a singular line, declined to interfere with

the judgment and decree of the courts below stating that they are

based on concurrent findings of fact. The plea of perversity of

approach though raised was not adverted to.

28. It is worth noting that this Court, in Kulwant Kaur v.

Gurdial Singh Mann (dead) by L.Rs. and others13, has held

13 AIR 2001 SC 1273

Page 25

that while it is true that in a second appeal, a finding of fact,

even if erroneous, will generally not be disturbed but where it is

found that the findings stand vitiated on wrong test and on the

basis of assumptions and conjectures and resultantly there is an

element of perversity involved therein, the High Court will be

within its jurisdiction to deal with the issue. An issue pertaining

to perversity comes within the ambit of substantial question of

law. Similar view has been stated in Govindaraju v.

Mariamman14.

29. In Major Singh v. Rattan Singh (Dead) by LRs and

others15, it has been observed that when the courts below had

rejected and disbelieved the evidence on unacceptable grounds, it

is the duty of the High Court to consider whether the reasons

given by the courts below are sustainable in law while hearing an

appeal under Section 100 of the Code of Civil Procedure.

30. In Vidhyadhar v. Manikrao and another16, it has been

ruled that the High Court in a second appeal should not disturb

the concurrent findings of fact unless it is shown that the

findings recorded by the courts below are perverse being based

14 (2005) 2 SCC 500 15 AIR 1997 SC 1906 16 (1999) 3 SCC 573

Page 26

on no evidence or that on the evidence on record, no reasonable

person could have come to that conclusion. We may note here

that solely because another view is possible on the basis of the

evidence, the High Court would not be entitled to exercise the

jurisdiction under Section 100 of the Code of Civil Procedure.

This view of ours has been fortified by the decision of this Court

in Abdul Raheem v. Karnataka Electricity Board & Ors. 17.

31. Having stated the law relating to mental cruelty and the

dictum of this Court in respect of the jurisdiction of the High

Court where concurrent findings of fact are assailed, as advised

at present, we will scan the evidence whether the High Court has

failed to exercise the jurisdiction conferred on it despite the plea

of perversity being raised. Any finding which is not supported by

evidence or inferences is drawn in a stretched and unacceptable

manner can be said to be perverse. This Court in exercise of

power under Article 136 of the Constitution can interfere with

concurrent findings of fact, if the conclusions recorded by the

High Court are manifestly perverse and unsupported by the

evidence on record. It has been so held in Alamelu and

17 AIR 2008 SC 956

Page 27

another v. State, Represented by Inspector of Police18 and

Heinz India Pvt. Ltd. & Anr. v. State of U.P. & Ors.19

32. Presently, to the core issue, viz, whether the appellant-

husband had made out a case for mental cruelty to entitle him to

get a decree for divorce. At this juncture, we may unhesitantly

state that the trial court as well as the first appellate court have

disbelieved the evidence of most of the witnesses cited on behalf

of the husband on the ground that they are interested witnesses.

In a matrimonial dispute, it would be inappropriate to expect

outsiders to come and depose. The family members and

sometimes the relatives, friends and neighbours are the most

natural witnesses. The veracity of the testimony is to be tested

on objective parameters and not to be thrown overboard on the

ground that the witnesses are related to either of the spouse.

Exception has been taken by the courts below that the servants

of the house should have been examined and that amounts to

suppression of the best possible evidence. That apart, the

allegations made in the written statement, the dismissal of the

case instituted by the wife under Section 494 of the Indian Penal

Code, the non-judging of the material regard being had to the

18 AIR 2011 SC 715 19 (2012) 3 SCALE 607 = (2012) 2 KLT (SN) 64

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social status, the mental make-up, the milieu and the rejection of

subsequent events on the count that they are subsequent to the

filing of the petition for divorce and also giving flimsy reasons not

to place reliance on the same, we are disposed to think, deserve

to be tested on the anvil of “perversity of approach”. Quite apart

from the above, a significant question that emerges is whether

the reasons ascribed by the courts below that the allegations

made in the written statement alleging extra marital affair of the

appellant-husband with Neeta Gujarathi has been established

and, therefore, it would not constitute mental cruelty are

perverse and unacceptable or justified on the basis of the

evidence brought on record. These are the aspects which need to

be scrutinized and appositely delved into.

33. The appellant-husband, examining himself as PW-1, has

categorically stated that the wife used to hide the pressed clothes

while he was getting ready to go to the factory. Sometimes she

used to crumple the ironed clothes and hide the keys of the

motorcycle or close the main gate. In the cross-examination, it is

clearly stated that the wife was crumpling the ironed clothes,

hiding the keys of the motorcycle and locking the gate to trouble

him and the said incidents were taking place for a long time.

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This being the evidence on record, we are at a loss to find that

the courts below could record a finding that the appellant used to

enjoy the childish and fanciful behaviour of the wife pertaining to

the aforesaid aspect. This finding is definitely based on no

evidence. Such a conclusion cannot be reached even by

inference. If we allow ourselves to say so, even surmises and

conjectures would not permit such a finding to be recorded. It is

apt to note here that it does not require Solomon’s wisdom to

understand the embarrassment and harassment that might have

been felt by the husband. The level of disappointment on his

part can be well visualised like a moon in a cloudless sky.

34. Now we shall advert to the allegation made in the written

statement. The respondent-wife had made the allegation that the

husband had an illicit relationship with Neeta Gujarathi. The

learned trial Judge has opined that the said allegation having

been proved cannot be treated to have caused mental cruelty. He

has referred to various authorities of many High Courts. The

heart of the matter is whether such an allegation has actually

been proven by adducing acceptable evidence. It is worth noting

that the respondent had filed a complaint, RCC No. 91/95, under

Section 494 of the Indian Penal Code against the husband. He

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was discharged in the said case. The said order has gone

unassailed. The learned trial Judge has expressed the view that

Neeta Gujarathi was having a relationship with the husband on

the basis that though the husband had admitted that she was

working in his office yet he had not produced any appointment

letter to show that she was appointed as a computer operator.

The trial Judge has relied on the evidence of the wife. The wife in

her evidence has stated in an extremely bald manner that

whenever she had telephoned to the office in the factory, the

husband was not there and further that the presence of Neeta

Gujarathi was not liked by her in-laws and the elder son Vishal.

On a careful reading of the judgment of the trial court, it is

demonstrable that it has been persuaded to return such a finding

on the basis of the incident that took place on 11.10.1995. It is

worth noting that the wife, who examined herself as RW-1, stated

in her evidence that Vishal was deposing against her as the

appellant had given him a scooter. The learned trial Judge has

given immense credence to the version of the social worker who,

on the date of the incident, had come to the house of the

appellant where a large crowd had gathered and has deposed

that she had seen Neeta going and coming out of the house. The

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evidence of the wife, when studiedly scrutinized, would show that

there was more of suspicion than any kind of truth in it. As has

been stated earlier, the respondent had made an allegation that

her son was influenced by the appellant-husband. The learned

trial Judge as well as the appellate court have accepted the same.

It is germane to note that Vishal, the elder son, was

approximately 16 years of age at the time of examination in

court. There is remotely no suggestion to the said witness that

when Neeta Gujarati used to go to the house, his grandfather

expressed any kind of disapproval. Thus, the whole thing seems

to have rested on the incident of 11.10.1995. On that day, as the

material on record would show, at 4.00 p.m., the wife arrived at

the house of the husband. She has admitted that she wanted to

see her father-in-law who was not keeping well. After she went

in, her father-in-law got up from the chair and went upstairs.

She was not permitted to go upstairs. It is testified by her that

her father-in-law came down and slapped her. She has deposed

about the gathering of people and publication in the newspapers

about the incident. Vishal, PW-5, has stated that the mother had

pushed the grandfather from the chair. The truthfulness of the

said aspect need not be dwelled upon. The fact remains that the

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testimony of the wife that the father-in-law did not like the visit

of Neeta does not appear to be true. Had it been so, he would not

have behaved in the manner as deposed by the wife. That apart,

common sense does not give consent to the theory that both, the

father of the husband and his son, Vishal, abandoned normal

perception of life and acceded to the illicit intimacy with Neeta. It

is interesting to note that she has deposed that it was published

in the papers that the daughter-in-law was slapped by the father-

in-law and Neeta Gujarathi was recovered from the house but

eventually the police lodged a case against the husband, the

father-in-law and other relatives under Section 498A of the

Indian Penal Code. We really fail to fathom how from this

incident and some cryptic evidence on record, it can be

concluded that the respondent-wife had established that the

husband had an extra marital relationship with Neeta Gujarathi.

That apart, in the application for grant of interim maintenance,

she had pleaded that the husband was a womaniser and

drunkard. This pleading was wholly unwarranted and, in fact,

amounts to a deliberate assault on the character. Thus, we have

no scintilla of doubt that the uncalled for allegations are bound

to create mental agony and anguish in the mind of the husband.

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35. Another aspect needs to be taken note of. She had made

allegation about the demand of dowry. RCC No. 133/95 was

instituted under Section 498A of the Indian Penal Code against

the husband, father-in-law and other relatives. They have been

acquitted in that case. The said decision of acquittal has not

been assailed before the higher forum. Hence, the allegation on

this count was incorrect and untruthful and it can unhesitatingly

be stated that such an act creates mental trauma in the mind of

the husband as no one would like to face a criminal proceeding of

this nature on baseless and untruthful allegations.

36. Presently to the subsequent events. The courts below have

opined that the publication of notice in the daily “Lokmat” and

the occurrence that took place on 11.10.1995 could not be

considered as the said events occurred after filing of the petition

for divorce. Thereafter, the courts below have proceeded to deal

with the effect of the said events on the assumption that they can

be taken into consideration. As far as the first incident is

concerned, a view has been expressed that the notice was

published by the wife to safeguard the interests of the children,

and the second one was a reaction on the part of the wife relating

to the relationship of the husband with Neeta Gujrathi. We have

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already referred to the second incident and expressed the view

that the said incident does not establish that there was an extra

marital relationship between Neeta and the appellant. We have

referred to the said incident as we are of the considered opinion

that the subsequent events can be taken into consideration. In

this context, we may profitably refer to the observations made by

a three-Judge Bench in the case of A. Jayachandra (supra) :-

“The matter can be looked at from another angle. 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.”

37. We may also usefully refer to the observations made in

Suman Kapur (supra) wherein the wife had made a maladroit

effort to take advantage of a typographical error in the written

statement and issued a notice to the husband alleging that he

had another wife in USA. Thus, this Court has expressed the

opinion that the subsequent events can be considered.

38. Keeping in view the aforesaid pronouncement of law, we

shall first appreciate the impact of the notice published in the

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“Lokmat”. The relevant part of the said notice, as published in

the newspaper, reads as follows: -

“Shri Vishwanath Sitaram Agrawal is having vices of womanizing, drinking liquor and other bad habits. He is having monthly income of Rs.10 lacs, but due to several vices, he is short of fund. Therefore, he has started selling the property. He has sold some properties. My client has tried to make him understand which is of no use and on the contrary, he has beaten my client very badly and has driven her away and dropped her to Akola at her parent’s house.

In the property of Shri Vishwanath Sitaram Agrawal my client and her two sons are having shares in the capacity of members of joint family and Shri Vishwanath Sitaram Agrawal has no right to dispose of the property on any ground.”

Immense emphasis has been given on the fact that after

publication of the notice, the husband had filed a caveat in the

court. The factual matrix would reveal that the husband comes

from a respectable family engaged in business. At the time of

publication of the notice, the sons were quite grown up. The

respondent-wife did not bother to think what impact it would

have on the reputation of the husband and what mental

discomfort it would cause. It is manifest from the material on

record that the children were staying with the father. They were

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studying in the school and the father was taking care of

everything. Such a publication in the newspaper having good

circulation can cause trauma, agony and anguish in the mind of

any reasonable man. The explanation given by the wife to the

effect that she wanted to protect the interests of the children, as

we perceive, is absolutely incredible and implausible. The filing

of a caveat is wholly inconsequential. In fact, it can decidedly be

said that it was mala fide and the motive was to demolish the

reputation of the husband in the society by naming him as a

womaniser, drunkard and a man of bad habits.

39. At this stage, we may fruitfully reminisce a poignant

passage from N.G. Dastane v. S. Dastane20 wherein

Chandrachud, J. (as his Lordship then was) observed thus: -

“The court has to deal, not with an ideal husband and an ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go to a matrimonial court for, even if they may not be able to drown their differences, their ideal attitudes may help them overlook or gloss over mutual faults and failures.”

20 (1975) 3 SCR 967

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40. Regard being had to the aforesaid, we have to evaluate the

instances. 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 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. It can be stated

with certitude that the cumulative effect of 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. The husband felt humiliated

both in private and public life. Indubitably, it created a dent in

his reputation which is not only the salt of life, but also the

purest treasure and the most precious perfume of life. It is

extremely delicate and a cherished value this side of the grave. It

is a revenue generator for the present as well as for the posterity.

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Thus analysed, it would not be out of place to state that his brain

and the bones must have felt the chill of humiliation. The

dreams sweetly grafted with sanguine fondness with the passage

of time reached the Everstine disaster, possibly, with a vow not to

melt. The cathartic effect looked like a distant mirage. The cruel

behaviour of the wife has frozen the emotions and snuffed out the

bright candle of feeling of the husband because he has been

treated as an unperson. Thus, analysed, it is abundantly clear

that with this mental pain, agony and suffering, the husband

cannot be asked to put up with the conduct of the wife and to

continue to live with her. Therefore, he is entitled to a decree for

divorce.

41. Presently, we shall deal with the aspect pertaining to the

grant of permanent alimony. The court of first instance has

rejected the application filed by the respondent-wife as no decree

for divorce was granted and there was no severance of marital

status. We refrain from commenting on the said view as we have

opined that the husband is entitled to a decree for divorce.

Permanent alimony is to be granted taking into consideration the

social status, the conduct of the parties, the way of living of the

spouse and such other ancillary aspects. During the course of

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hearing of the matter, we have heard the learned counsel for the

parties on this aspect. After taking instructions from the

respective parties, they have addressed us. The learned senior

counsel for the appellant has submitted that till 21.2.2012, an

amount of Rs.17,60,000/- has been paid towards maintenance to

the wife as directed by the courts below and hence, that should

be deducted from the amount to be fixed. He has further

submitted that the permanent alimony should be fixed at Rs.25

lacs. The learned counsel for the respondent, while insisting for

affirmance of the decisions of the High Court as well as by the

courts below, has submitted that the amount that has already

been paid should not be taken into consideration as the same

has been paid within a span of number of years and the

deduction would affect the future sustenance. He has

emphasised on the income of the husband, the progress in the

business, the inflation in the cost of living and the way of life the

respondent is expected to lead. He has also canvassed that the

age factor and the medical aid and assistance that are likely to be

needed should be considered and the permanent alimony should

be fixed at Rs.75 lacs.

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42. In our considered opinion, the amount that has already

been paid to the respondent-wife towards alimony is to be

ignored as the same had been paid by virtue of the interim orders

passed by the courts. It is not expected that the respondent-wife

has sustained herself without spending the said money. Keeping

in view the totality of the circumstances and the social strata

from which the parties come from and regard being had to the

business prospects of the appellant, permanent alimony of Rs.50

lacs (rupees fifty lacs only) should be fixed and, accordingly, we

so do. The said amount of Rs.50 lacs (rupees fifty lacs only) shall

be deposited by way of bank draft before the trial court within a

period of four months and the same shall be handed over to the

respondent-wife on proper identification.

43. Consequently, the appeal is allowed, the judgments and

decrees of the courts below are set aside and a decree for divorce

in favour of the appellant is granted. Further, the husband shall

pay Rs.50 lacs (rupees fifty lacs only) towards permanent alimony

to the wife in the manner as directed hereinabove. The parties

shall bear their respective costs.

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............................................J. [Deepak Verma]

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

New Delhi; July 04, 2012