# Deepak Bose v. Shrabonee Bose

- **Citation:** (2022) 4 ILRA 184
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-14
- **Case number:** Second Appeal No. 612 of 2013
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepak-bose-v-shrabonee-bose-48283
- **Pages:** 18

## Headnote

Hindu Marriage Act,1955 - Section 13
1(ib)- Divorce - Desertion - Mental Cruelty
- Whether desertion without a reasonable
cause and without the consent of the
party
aggrieved
during
the
wedlock
amount to cruelty u/s 13 of the Hindu
Marriage Act ? - Held - long desertion and
separation of a spouse constitute mental
cruelty within the meaning of Section 131
(ib) of the Hindu Marriage Act - Where
there has been a long period of continuous
separation, it may fairly be concluded that
the matrimonial bond is beyond repair -
marriage
becomes
a
fiction
though
supported by a legal tie - In such like
situations, it may lead to mental cruelty
(Para 31, 32, 33)

Hindu Marriage Act, 1955 - Section 13 -
Divorce
-
irretrievable
breakdown
of
marriage - Grant of divorce on the ground
of 'irretrievable breakdown of marriage'
i.e. where the repair of broken marriage
becomes
impossible
-
Held
-
Hindu
Marriage
Act
does
not
provide
for
irretrievable breakdown of marriage as a
ground for divorce - High Court or any
other court has no power to grant a
decree of divorce u/s 13 of the Hindu
Marriage
Act
on
the
ground
of
irretrievable breakdown of marriage -
That power can only be exercised by the
Supreme Court under Article 142 of the
Constitution (Para 38, 40, 42)

Appellant (husband) and Respondent (wife)
married on 11.07.2001- Wife did not serve the
appellant's (husband) old, ailing mother &
exerted pressure upon the husband to forsake
his mother - respondent wife suddenly left her
matrimonial home on 22.11.2007 - Held -
separation between parties has been fourteen
long years after the respondent left the
matrimonial home - long separation of fourteen
years between parties would lead to an
inference of mental cruelty within the meaning
of Section 131 (ib) of the Hindu Marriage Act,
1955 - relationship between parties is extinct - it
is a dead marriage - divorce petition allowed -
marriage between the appellant and the
respondent dissolved forthwith.

Allowed. (E-5)

List of Cases cited:-

## Text

_Characters 0–39,855 of 62,081. This is a partial read: ask again with offset=39855 for what follows._

184 INDIAN LAW REPORTS ALLAHABAD SERIES

18. We set aside the order of the Court
below and decree the suit holding that the
demand is bad in eye of law. The appellant
-plaintiffs would be obliged pay the
remaining amount with 8% rate of interest.
Record and proceeding be sent back to the
Tribunal forthwith. Fresh modified decree
be passed.

19. We are thankful to learned counsel
for the parties for assisting the Court very
ably whereas we are pained to mention that
the respondent in one matter pressed into
service the order of the Apex Court
directing 14% whereas in this matter they
contended that it was in peculiar facts of
the case there are two matters where the
precedent was granting 8% interest.
----------
(2022)04ILR A184
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.03.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 612 of 2013

Deepak Bose ...Appellant
Versus
Shrabonee Bose ...Respondent

Counsel for the Appellant:
Sri Chandan Sharma, Sri Anand Kumar
Srivastava, Sushmita Mukherjee

Counsel for the Respondent:
Sri Ajay Kumar Srivastava, Sri Virendra
Kumar

Hindu Marriage Act,1955 - Section 13
1(ib)- Divorce - Desertion - Mental Cruelty
- Whether desertion without a reasonable
cause and without the consent of the
party
aggrieved
during
the
wedlock
amount to cruelty u/s 13 of the Hindu
Marriage Act ? - Held - long desertion and
separation of a spouse constitute mental
cruelty within the meaning of Section 131
(ib) of the Hindu Marriage Act - Where
there has been a long period of continuous
separation, it may fairly be concluded that
the matrimonial bond is beyond repair -
marriage
becomes
a
fiction
though
supported by a legal tie - In such like
situations, it may lead to mental cruelty
(Para 31, 32, 33)

Hindu Marriage Act, 1955 - Section 13 -
Divorce
-
irretrievable
breakdown
of
marriage - Grant of divorce on the ground
of 'irretrievable breakdown of marriage'
i.e. where the repair of broken marriage
becomes
impossible
-
Held
-
Hindu
Marriage
Act
does
not
provide
for
irretrievable breakdown of marriage as a
ground for divorce - High Court or any
other court has no power to grant a
decree of divorce u/s 13 of the Hindu
Marriage
Act
on
the
ground
of
irretrievable breakdown of marriage -
That power can only be exercised by the
Supreme Court under Article 142 of the
Constitution (Para 38, 40, 42)

Appellant (husband) and Respondent (wife)
married on 11.07.2001- Wife did not serve the
appellant's (husband) old, ailing mother &
exerted pressure upon the husband to forsake
his mother - respondent wife suddenly left her
matrimonial home on 22.11.2007 - Held -
separation between parties has been fourteen
long years after the respondent left the
matrimonial home - long separation of fourteen
years between parties would lead to an
inference of mental cruelty within the meaning
of Section 131 (ib) of the Hindu Marriage Act,
1955 - relationship between parties is extinct - it
is a dead marriage - divorce petition allowed -
marriage between the appellant and the
respondent dissolved forthwith.

Allowed. (E-5)

List of Cases cited:-

1. Savitri Pandey Vs Prem Chandra Pandey,
(2002) 2 SC 73
4 All. Deepak Bose Vs. Shrabonee Bose
185
2. K.N. Nagarajappa & ors. Vs H. Narsimha
Reddy, AIR 2021 SC 4259

3. Samar Ghosh Vs Jaya Ghosh, (2007) 4 SCC
511

4. Shashi Bala Vs Rajendrapal Singh, 2020 (2)
AWC 149

5. Puneet Kumar Trivedi Vs Smt. Nikita Pathak,
First Appeal No.76 of 2014, dt 29.04.2020

6. Shailendra Kumar Singh Vs Reeta Singh &
anr., 2019 SCCOnline All 5316

7. Munish Kakkar Vs Nidhi Kakkar, (2020) 14
SCC 657

8. Pooja Suri Vs Bijoy Suri, 2016 SCC OnLine All
300

9. n Reeta Vs Ankit Kumar, AIR 2021 All 225

(Delivered by Hon'ble J.J. Munir, J.)

1. The husband, who has failed before
the two Courts below to secure a decree of
divorce, has appealed under Section 100 of
the Code of Civil Procedure, 1908, asking
those decrees to be overturned and a decree
of divorce granted.

2. The fact giving rise to this appeal
are these:

3. Deepak Bose, the appellant here,
instituted a petition for divorce against Smt.
Shrabonee Bose, the sole respondent,
before the Civil Judge (Senior Division),
Ghaziabad, seeking a decree for divorce
under Section 13 of the Hindu Marriage
Act, 1955. The petition was registered as
Marriage Petition No.1098 of 2010. It was
pleaded in the petition, inter alia, that
Deepak Bose and Shrabonee Bose were
married according to Hindu rites on
11.07.2001. In course of time, two sons
were born to the parties. Deepak Bose, who
shall hereinafter be referred to as ''the
appellant', says that he discharged his
duties as a husband faithfully. It is asserted
by the appellant that at the time of
marriage, it was represented that Shrabonee
Bose, who shall hereinafter be called ''the
respondent', was of the same age as that of
the appellant. It was also represented to the
appellant
that
the
respondent
was
unmarried, though, in fact, she is a
divorcee. The appellant came to know of
the fact that the respondent was a divorcee
six years after the parties' marriage in the
year 2001.

4. It was pleaded that the respondent
is three years' older to the appellant. Upon
further inquiry, it came to the appellant's
knowledge that the respondent was first
married in the year 1990, and she and the
man she had earlier married, divorced in
the year 1996. It was asserted that in the
aforesaid manner, the appellant and his
family
members
were
defrauded
by
falsehood into marrying the respondent.
The respondent was also castigated as a
woman of questionable character, inasmuch
as after the appellant would go to sleep, she
would be busy on her phone until late in the
night and exchange e-mails and SMSs. It is
said that when the appellant asked the
respondent to desist from this kind of
interaction, she refused and remained firm
on her stand. It is pleaded that the
respondent wants to stay away from the
appellant. The respondent did not serve the
appellant's old, ailing and dependent
mother in any way. The respondent is said
to have exerted pressure upon the appellant
to forsake his mother and in that endeavour
of hers, she had the support of her family.

5. It is the appellant's further case that
despite
persuasion
by
him
that
the
respondent ought to take care of his
186 INDIAN LAW REPORTS ALLAHABAD SERIES
mother, she stuck course. After the
appellant would go away to work, the
respondent never served meals to his
mother on time or gave her medicines. Any
persuasion would lead the respondent to
fight the appellant. It is the appellant's case
that the daily bickerings mounted so much
of anxiety that it resulted in him suffering
from diabetes. It is the appellant's further
case that it was heightened pain for him
when the respondent and her family asked
him to resign his job and move over to
Jamshedpur forsaking his old mother. The
appellant is employed with a company, that
manufactures
computers,
on
a
good
position. He draws a handsome salary. He
takes care of his mother and cannot forsake
her. It is pleaded that any attempt by the
appellant to persuade the respondent to be
amiable towards him and his mother would
lead her to fight the appellant, to the extent
of
assaulting
him.
The
respondent's
behaviour is claimed to be casting an illeffect upon the parties' sons.

6. It is the appellant's further case that
in the backdrop of all that has been
indicated, the respondent suddenly left her
matrimonial home on 22.11.2007, along
with her father and brother, quietly and
without informing the appellant. The
appellant went over to the respondent,
asking her to come back along with her
children a number of times, but to no avail.
The appellant, upon visiting his in-laws,
was insulted and turned away. The
appellant had also addressed letters to the
respondent, which have led to no positive
answer. It is also pleaded that on
22.11.2007 the respondent fought the
appellant on the foot of unreasonable
demands and refused to continue in
matrimony, that is before she left the
appellant along with her father and brother.
It is on these facts that the appellant asked
for a decree of divorce petitioning the
Court under Section 13 of the Hindu
Marriage Act.

7. The respondent put in a written
statement
and
denied
the
appellant's
allegations. She has pleaded that parties'
marriage was solemnized according to
Hindu rites, with the appellant being
lavished with gifts etc. The parties have
two sons, who were then aged six years and
five years . The respondent dutifully
discharged her obligations as a wife, but the
appellant was an aggressive man. In the
evenings, he would return home drunk and
beat up the respondent. It is also pleaded
that the parties' marriage was solemnized
according to the socially acceptable form of
an arranged marriage, where the respondent
had clearly disclosed her age and the
factum of her previous marriage to the
appellant.
It
is
elaborated
that
the
respondent had informed the appellant
about her previous marriage in all detail as
also her age. It is only after the appellant
had agreed that the family members spoke
about settling the matrimonial alliance. It is
also pleaded that the appellant is a drunkard
and a man described in her pleadings by the
respondent as "बुरे चररत्र का व्यण्डक्त", that
would most closely translate into English,
for a philanderer. He would abuse the
respondent in vulgar language.

8. It is also pleaded by the respondent
that the appellant has a number of women
friends who have been described in the
pleadings as "Mahila Mitra". The appellant
would bring them home along and upon the
respondent asking him not to do so, would
beat her up. It is also pleaded that the
appellant
is
an
experienced
hand
at
computers and has doctored e-mails in her
account to serve his purpose. The respondent
has blamed the appellant and his mother of
4 All. Deepak Bose Vs. Shrabonee Bose
187
demanding dowry from her father and in
connection with the demand, treating the
respondent
to
vulgar
abuses,
besides
inflicting violence. It is pleaded that fed up
with
the
appellant's
behaviour,
the
respondent called her father over telephone
to Ghaziabad and on 22.11.2007, lodged a
report with the Indirapuram Police Station.
It is also pleaded that the respondent
requested the appellant a number of times to
permit her and the children to stay with him,
but he refused. Left with no other option, the
respondent has brought proceedings for
maintenance
before
the
Court
at
Jamshedpur, that were pending until the
respondent put in her pleadings.

9. The Trial Court on the pleadings of
parties
framed
the
following
issues
(translated into English from Hindi):

"(1) Whether the opposite party
tortured the petitioner physically and
mentally, amounting to cruel behaviour, on
account of which, it is not possible for the
petitioner to stay together with the opposite
party?

(2) Whether the petitioner is
entitled to a decree of divorce against the
opposite party?

(3)
Whether
the
case
is
undervalued
and
the
court-fee
paid
insufficient?

(4) Whether the petitioner is
entitled to any other relief?"

10. The appellant, in support of his
case, filed fourteen documents through a
list, Paper No.7ग and another twelve
through a separate list, bearing Paper
No.43ग. The appellant examined himself as
PW-1, filing for his examination-in-chief a
duly
sworn
affidavit,
marked
Paper
No.27क1. He appeared in the dock to face
cross-examination.

11. The respondent examined herself
in support of her defence as DW-1, and in
lieu of her examination-in-chief in the
witness-box, filed an affidavit bearing
Paper No.41क1. She entered the witnessbox to face cross-examination as DW-1.
Likewise, another witness, DW-2, Gajendra
Tyagi was also examined, who filed his
evidence on affidavit that he supported in
the witness-box under the grill of crossexamination.

12. The Trial Court did not find on
Issue No.1 a case of cruelty established and
while returning finding on Issue No.2, held
that a case for annulling the marriage on
ground that the respondent's consent to it
was secured by fraud as to a material fact
concerning the respondent, to be not open
in view of the bar of limitation under
Section 12(2)(i) & (ii) read with Section
12(1)(c) of the Hindu Marriage Act, 1955.
So far as the ground urged under Section
13(1)(i) of the Hindu Marriage Act is
concerned, the Trial Court opined that there
was no evidence to show that the
respondent had violated the aforesaid
mandate of the law. On these findings
broadly, the Trial Court dismissed the
petition.

13. The appellant carried an appeal to
the District Judge under Section 28 of the
Hindu Marriage Act, 1955. The appeal was
numbered on the file of the District Judge,
Ghaziabad as Civil Appeal No.167 of 2012,
where in the grounds of appeal together
with cruelty, a case of desertion on the
pleaded facts was also raised. It appears
that when the appeal was argued before the
Lower Appellate Court, a case for divorce
as also a decree of annulment was argued,
based on act(s) of adultery by the
respondent under Section 13(1)(i); a case
based on cruelty and desertion under
188 INDIAN LAW REPORTS ALLAHABAD SERIES
Sections 13(1)(ia) and 13(1)(1b) of the
Hindu Marriage Act; a case for annulment
based on fraud practiced by the respondent
in obtaining the appellant's consent to the
marriage under Section 12 of the Hindu
Marriage Act; and, a case for divorce based
on irretrievable breakdown of marriage on
foot of the provisions of Section 13(1)(1A)
of the Hindu Marriage Act. It is on the
aforesaid grounds that the Lower Appellate
Court extensively examined the evidence
led by parties, both oral and documentary,
and dismissed the appeal.

14. Aggrieved, this appeal from the
appellate decree has been preferred.

15. The appeal was admitted to
hearing vide order dated 28.05.2013, when
the following two substantial questions of
law were formulated:

"(A) Whether the opposite party
leaving the Matrimonial home for more
than five years amounts also to leaving the
appellant, thereby amounting to desertion
under Section 13(1)(b) of Hindu Marriage
Act, 1955?

(B) Whether desertion without a
reasonable cause and without the consent
of the party aggrieved during the wedlock
shall amount to cruelty under Section 13 of
the Hindu Marriage Act?"

16. Before commencement of hearing,
a further substantial question of law,
marked (C) was formulated on 06.08.2021.
It reads:

"(C) Whether it is open to the
High Court to pass a decree of divorce on
the ground of irretrievable break down of
marriage in a petition brought for divorce
under Section 13 of the Hindu Marriage
Act, 1955?"

17. The respondent, despite all efforts
to serve her, did not appear. Those efforts
included substituted service by publication.
Service was held sufficient vide order dated
04.07.2019. From 2019 till the appeal
proceeded to hearing, no one appeared on
behalf of the respondent. The appeal was,
therefore, heard ex parte and judgment
reserved.

18. Heard Mr. Anand Kumar
Srivastava,
learned
Counsel
for
the
appellant.

19. So far as Substantial Question of
Law (A) is concerned, it is to be seen
whether the five years that the respondent
completely forsook her matrimonial home
amounts to desertion within the meaning of
Section 13(ib) of the Hindu Marriage Act.
The Lower Appellate Court in examining
the question of desertion, coupled with
cruelty, has assessed it on five parameters,
to wit, (i) the factum of separation; (ii)
animus deserendi or intention to desert; (iii)
desertion should be without consent of the
appellant; (iv) desertion should be without
any reasonable cause; and, (v) the statutory
period of two years of desertion, should
elapse
immediately
preceding
the
presentation of the petition. The Lower
Appellate Court has held, on appreciation
of evidence, that the factum of separation,
desertion being without the consent of the
appellant and the desertion continuing
across a period of more than two years
preceding the presentation of the petition
are well established. The Lower Appellate
Court, however, has held that animus
diserendi and further that the desertion is
one that is without reasonable cause, are
not
established.
In
reaching
those
conclusions, the Lower Appellate Court has
evaluated the conduct of the respondent to
hold that she did not harbour an intention to
4 All. Deepak Bose Vs. Shrabonee Bose
189
desert and was impelled by the appellant's
conduct
into
withdrawing
from
his
company. What conduct of the appellant,
the Lower Appellate Court and the Trial
Court too have taken into account, in order
to reach that conclusion, would be shortly
noticed.

20. Before the substantial question of
law involved is answered, it is imperative
to examine the law governing actionable
desertion under the Hindu Marriage Act,
1955 and the standard by which it is
required to be proved. There is a classic
statement about the law relating to
desertion to be found in Savitri Pandey v.
Prem Chandra Pandey, (2002) 2 SC 73,
where it has been held:

"8. "Desertion", for the purpose
of seeking divorce under the Act, means the
intentional
permanent
forsaking
and
abandonment of one spouse by the other
without that other's consent and without
reasonable cause. In other words it is a total
repudiation of the obligations of marriage.
Desertion is not the withdrawal from a
place but from a state of things. Desertion,
therefore, means withdrawing from the
matrimonial obligations i.e. not permitting
or allowing and facilitating the cohabitation
between the parties. The proof of desertion
has to be considered by taking into
consideration the concept of marriage
which
in
law
legalises
the
sexual
relationship between man and woman in
the society for the perpetuation of race,
permitting lawful indulgence in passion to
prevent licentiousness and for procreation
of children. Desertion is not a single act
complete in itself, it is a continuous course
of conduct to be determined under the facts
and circumstances of each case. After
referring to a host of authorities and the
views of various authors, this Court in
Bipinchandra
Jaisinghbai
Shah
v.
Prabhavati [AIR 1957 SC 176] held that if
a spouse abandons the other in a state of
temporary passion, for example, anger or
disgust without intending permanently to
cease cohabitation, it will not amount to
desertion. It further held : (AIR pp. 183-84,
para 10)

"For the offence of desertion, so
far as the deserting spouse is concerned,
two essential conditions must be there,
namely (1) the factum of separation, and
(2) the intention to bring cohabitation
permanently to an end (animus deserendi).
Similarly two elements are essential so far
as the deserted spouse is concerned : (1) the
absence of consent, and (2) absence of
conduct giving reasonable cause to the
spouse leaving the matrimonial home to
form the necessary intention aforesaid. The
petitioner for divorce bears the burden of
proving those elements in the two spouses
respectively. Here a difference between the
English law and the law as enacted by the
Bombay Legislature may be pointed out.
Whereas under the English law those
essential
conditions
must
continue
throughout the course of the three years
immediately preceding the institution of the
suit for divorce, under the Act, the period is
four years without specifying that it should
immediately precede the commencement of
proceedings for divorce. Whether the
omission of the last clause has any practical
result need not detain us, as it does not call
for decision in the present case. Desertion
is a matter of inference to be drawn from
the facts and circumstances of each case.
The inference may be drawn from certain
facts which may not in another case be
capable of leading to the same inference;
that is to say, the facts have to be viewed as
to the purpose which is revealed by those
acts or by conduct and expression of
intention, both anterior and subsequent to
190 INDIAN LAW REPORTS ALLAHABAD SERIES
the actual acts of separation. If, in fact,
there has been a separation, the essential
question always is whether that act could
be attributable to an animus deserendi. The
offence of desertion commences when the
fact of separation and the animus deserendi
coexist. But it is not necessary that they
should commence at the same time. The de
facto separation may have commenced
without the necessary animus or it may be
that
the
separation
and
the
animus
deserendi coincide in point of time; for
example, when the separating spouse
abandons the marital home with the
intention, express or implied, of bringing
cohabitation permanently to a close. The
law in England has prescribed a three years'
period and the Bombay Act prescribed a
period of four years as a continuous period
during which the two elements must
subsist. Hence, if a deserting spouse takes
advantage of the locus poenitentiae thus
provided by law and decide to come back
to the deserted spouse by a bona fide offer
of resuming the matrimonial home with all
the implications of marital life, before the
statutory period is out or even after the
lapse of that period, unless proceedings for
divorce have been commenced, desertion
comes to an end and if the deserted spouse
unreasonably refuses the offer, the latter
may be in desertion and not the former.
Hence it is necessary that during all the
period that there has been a desertion, the
deserted spouse must affirm the marriage
and be ready and willing to resume married
life on such conditions as may be
reasonable. It is also well settled that in
proceedings for divorce the plaintiff must
prove the offence of desertion, like and
other matrimonial offence, beyond all
reasonable
doubt.
Hence,
though
corroboration is not required as an absolute
rule of law the courts insist upon
corroborative evidence, unless its absence
is accounted for to the satisfaction of the
court."

9. Following the decision in
Bipinchandra case [AIR 1957 SC 176] this
Court again reiterated the legal position in
Lachman Utamchand Kirpalani v. Meena
[AIR 1964 SC 40] by holding that in its
essence desertion means the intentional
permanent forsaking and abandonment of
one spouse by the other without that other's
consent, and without reasonable cause. For
the offence of desertion so far as the
deserting
spouse
is
concerned,
two
essential conditions must be there (1) the
factum of separation, and (2) the intention
to bring cohabitation permanently to an end
(animus deserendi). Similarly two elements
are essential so far as the deserted spouse is
concerned : (1) the absence of consent, and
(2) absence of conduct giving reasonable
cause to the spouse leaving the matrimonial
home to form the necessary intention
aforesaid. For holding desertion as proved
the inference may be drawn from certain
facts which may not in another case be
capable of leading to the same inference;
that is to say the facts have to be viewed as
to the purpose which is revealed by those
acts or by conduct and expression of
intention, both anterior and subsequent to
the actual acts of separation.

10.
To
prove
desertion
in
matrimonial matter it is not always
necessary that one of the spouses should
have left the company of the other as
desertion could be proved while living
under the same roof. Desertion cannot be
equated with separate living by the
parties to the marriage. Desertion may
also be constructive which can be
inferred
from
the
attending
circumstances. It has always to be kept in
mind that the question of desertion is a
matter of inference to be drawn from the
facts and circumstances of each case."
4 All. Deepak Bose Vs. Shrabonee Bose
191

21. The Lower Appellate Court, while
appreciating the evidence of parties, has
acknowledged the fact that it is a case
where the parties have traded allegations of
immorality and soiling the marital bond
against each other. It is true that these
allegations have figured in the evidence of
both parties. But the Courts below,
particularly the Lower Appellate Court, has
accepted it for a reasonable cause for the
wife to leave her matrimonial home, her
case about the husband being a drunkard, a
wife-beater and a man given to the vice of
illicit relations with women. The Lower
Appellate Court has been impressed by the
fact that some women have been named by
the wife, who were brought home by the
appellant to gratify his immoral needs.

22. There are allegations, on the other
hand,
by
the
appellant
against
the
respondent about speaking to men over
social
networking
sites
etc.
These
allegations have been discarded, for the
documentary evidence about them being
not proved according to Section 65-B(4) of
the Indian Evidence Act, 1872. The
respondent has emphasized somewhere that
up to the month of August, 2007, it was the
respondent alone, who was at the receiving
end of the appellant's beating, but the
children were not the victims of it.
Therefore, the respondent was suffering the
violence until then. Later on, the children
too would be beaten up. From all this
evidence, the Courts below have concluded
that the respondent had reasonable cause to
leave her matrimonial home.

23. This Court is of opinion that
approach of the Courts below, particularly
the Lower Appellate Court, that has
attempted a more wholesome appraisal of
the evidence, suffers from fundamental
errors of a kind that bordering on
perversity. The reason is that the allegations
of the wife in the witness-box have been
accepted to be proof of themselves,
ignoring glaring circumstances that are
essential to judge the veracity of the parties'
statements in the dock in a matter like the
present one. It is a case where the strained
spouses have come up with nothing more
than allegations said on oath. The Courts
below have not been wrong in discarding
the
appellant's
allegations
about
the
respondent's fidelity; but they are wrong to
the extent of defiance of logic in accepting
every word that the respondent has said in
justification of her action in leaving the
matrimonial home. The most crucial point,
that appears to have been missed by the
Courts below, is that there is nothing on
record to suggest that there was any
particular event on 22.11.2007 when the
respondent left her matrimonial home and
went over to her parents. On that date, she
left an information with the Police, that was
never registered as a case, saying that she
was subjected to violence by the appellant,
not permitted to speak to anyone, even her
parents and had been attempted to be
throttled to death on two occasions.
Thereafter, she somehow managed to leave
her matrimonial home along with the two
sons, informing the Police. However, much
by contrast in her dock evidence during
cross-examination, the respondent has said
that she was thrown out of her matrimonial
home on 22.11.2007, and, therefore, while
leaving, she had informed the Police. It is
not this essential contradiction in evidence
that troubles this Court, for we are not a
Court of fact. The crucial point, that the
Courts below have completely ignored to
reach an illogical and perverse conclusion
from this evidence, is that about all these
violent happenings that the respondent
alleges, there is no circumstance or
contemporaneous evidence that may lend
192 INDIAN LAW REPORTS ALLAHABAD SERIES
any support to it. There is no evidence like
a complaint to any Authority at any time
prior to 22.11.2007 about all this physical
violence
or
even
some
kind of
a
correspondence, electronic or in ink,
exchanged by the respondent with her
parents about this distress in her life. Prior
to 22.11.2007, there is hardly anything on
record to show that the respondent was ever
battered or attempted to be throttled, or that
she was in great distress because the
appellant was a drunkard or a man given to
a lecherous way of life. There is not an iota
of evidence about all this. The only
inference, therefore, from the allegations
traded on both sides that can be drawn is
that the couple have not got along, despite
being blessed with two children and have
not been able to overcome the wear and
tear of married life. The fact that the
respondent and the appellant could not get
along in matrimony, is by itself not a
reasonable
cause,
justifying
the
respondent's
action
in
leaving
her
matrimonial home.

24. The way the evidence appears in
this case, there is not a hint of evidence to
show that the appellant has indulged in the
immoral way of life, as the respondent
alleges. The appellant in his crossexamination
has
stoutly
denied
any
amorous relationship with woman/women.
He has not been confronted with any fact
during his cross-examination, requiring him
to explain any circumstance going against
him on this count. It is well reputed that it
is difficult to prove a negative fact. In the
absence of the respondent placing on
record
some
evidence
to
show
the
waywardness she alleges for the appellant,
he cannot be saddled with the burden of
establishing that he is not a drunkard, or a
man of immoral character or a wife-beater.
In accepting the wife's oral testimony as
proof of itself, the Courts below have
virtually placed burden upon the husband
to prove the non-existence of these
blameworthy facts, that would justify the
wife's action in withdrawing from the
husband's company. This approach of the
Courts below is fundamentally flawed and
perverse.

25. On the other hand, the appellant's
case that the respondent has not been
serving meals to his mother on time or
giving her her medicines, may show a
mindset that does not accord well with
contemporary social values and the marital
roles for spouses. Likewise, the appellant
suspecting the respondent for interacting on
social media with a long list of friends, may
also be the pitfall of a value gap between
the spouses, or the appellant and the
respondent representing two different social
outlooks in a society that is in the throes of
transition about gender roles generally,
particularly, in matrimony. But, all these
differences, that have marred the parties'
marriage, would not, by a reasonable
standard, serve as a justification for the
wife to permanently forsake the husband's
company. These truly do not go beyond
what is conventionally called ''wear and
tear of marriage'.

26. The course of events in this case
show that the respondent has not ever made
any effort or taken any step to resume her
matrimonial life with the appellant. She left
her matrimonial home on 22.11.2007, never
to return. We think that it would be
unreasonable to assume that the wife must
come back to her husband's home always,
as if it were the employers' premises. The
integrity of marriage lies in the husband
and wife being together, even if they are
separated by distance. The matrimonial
home has to remain intact to sustain a
4 All. Deepak Bose Vs. Shrabonee Bose
193
marriage and not a matrimonial house, as if
it were. Here, the animus deserdendi, by no
possible approach, can be found to be
wanting in the respondent's conduct, a
conclusion that the Lower Appellate Court
has drawn on a perverse approach to the
evidence. The respondent left home on
22.11.2007 and ever since, it has been a
complete disjunct between the spouses. The
appellant has said in his evidence during
cross-examination, in answer to a recorded
question, that during the six months after
the respondent left her matrimonial home,
he made efforts to re-unite, but ceased to do
so upon the respondent launching a
prosecution under Section 498A IPC etc.
against him. The Lower Appellate Court,
however,
has
concluded
against
the
appellant about the fact that he never
attempted a restoration of the parties'
matrimonial bond, going by the fact that he
admittedly did not bring a petition for
restitution of conjugal rights. It must be
remarked that mere failure to institute a
petition for restitution of conjugal rights is
no index of the lack of will or intention of a
party to the marriage, who says that he/ she
tried to restore the ruptured bond. The
appellant here has not been contradicted
about the assertion that during the six
months
before
commencement
of
prosecution by the respondent against him,
he made efforts towards reunion. The only
question put to him appears to be about his
failure to institute a petition for restitution
of conjugal rights, that he had not done.
The fact remains that by now, it has been a
period
of
fourteen
years
since
the
respondent withdrew from matrimonial life,
forsaking the appellant's company. Ever
since, there has been no resumption or
revival of the matrimonial ties. In the face
of all this evidence to conclude that there
has been no desertion within the meaning
of Section 13(ib) of the Hindu Marriage
Act, 1955, is an approach that is
fundamentally flawed and impossible to
countenance.

27. This Court, in the exercise of
powers under Section 100 of the Code of
Civil Procedure, 1908 is not completely
denuded of jurisdiction to go into questions
of fact, howsoever perversely determined
by the Courts below. Decisions that are
fundamentally flawed and illogical by all
demonstrable standards can be corrected by
this Court in exercise of jurisdiction under
Section 100 of the Code, as held by the
Supreme Court in K.N. Nagarajappa and
others v. H. Narsimha Reddy, AIR 2021
SC 4259.

28. In the circumstances, this Court is
of opinion that Substantial Question of Law
(A) has to be answered in the affirmative,
holding a case of desertion established
within the meaning of Section 13(ib) of the
Hindu Marriage Act, 1955.

29. The next question that falls for
consideration is Substantial Question of
Law (B), which is to the effect, "Whether
desertion without a reasonable cause and
without the consent of the party aggrieved
during the wedlock shall amount to cruelty
under Section 13 of the Hindu Marriage
Act?". To this, it may be added that this
question would have to be judged with
reference to the provisions of Section
13(ia) of the Hindu Marriage Act, 1955.

30. It has been mooted by the learned
Counsel for the appellant that an unduly
longed separation brought about by the
offending spouse, evidencing no concern
about the other, would qualify for mental
cruelty. This Court has found elsewhere
that the evidence is unmistakable that the
respondent is now staying away from the
194 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant for a period as long as fourteen
years. To this may be added the fact that
during these fourteen years, there has been
nothing of the kind happening that the
relationship of matrimony between parties
evidences. During all these fourteen years
the emotions that are the hallmark of a
marriage have become extinct, with the
parties not knowing what has become of
the other. It has been found elsewhere that
it is the respondent who walked away never
to return or resume the pious relationship.

31. The concept of 'mental cruelty'
has
received
a
most
comprehensive
consideration in the context of Section
13(ib) of the Hindu Marriage Act, 1955 by
the Supreme Court in Samar Ghosh v.
Jaya Ghosh, (2007) 4 SCC 511. In
expositing the concept of mental cruelty,
their Lordships of the Supreme Court in
Samar Ghosh (supra) have observed:

"98. On proper analysis and
scrutiny of the judgments of this Court and
other courts, we have come to the definite
conclusion
that
there
cannot
be
any
comprehensive definition of the concept of
"mental cruelty" within which all kinds of
cases of mental cruelty can be covered. No
court in our considered view should even
attempt to give a comprehensive definition of
mental cruelty.

99. 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 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 while
taking
aforementioned
factors
in
consideration.

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

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

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

(iii) Mere coldness or lack of
affection cannot amount to cruelty, frequent
rudeness of language, petulance of manner,
indifference and neglect may reach such a
degree that it makes the married life for the
other spouse absolutely intolerable.
4 All. Deepak Bose Vs. Shrabonee Bose
195

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

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

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

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

(viii) The conduct must be much
more
than
jealousy,
selfishness,
possessiveness, which causes unhappiness
and dissatisfaction and emotional upset
may not be a ground for grant of divorce on
the ground of mental cruelty.

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

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