# Girish Chandra Srivastava v. Smt. Reeta Srivastava

- **Citation:** (2020) 2 ILRA 948
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-20
- **Case number:** First Appeal No. 448 of 2015
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/girish-chandra-srivastava-v-smt-reeta-srivastava-45326
- **Pages:** 20

## Headnote

A. Civil Law-Hindu Marriage Act (25 of
1955) - S.12(2)(a)(i) - Marriage - Fraud -
Consent obtained by fraud - Annulment of
marriage - no petition for annulling a
marriage on the ground of fraud shall be
entertained if the petition is presented
2 All. Girish Chandra Srivastava Vs. Smt. Reeta Srivastava
949
more than one year after the fraud had
been discovered.

Allegation of husband that wife is elder to him
but said fact was concealed at time of marriage
- Husband not detailed in his marriage petition
as to when factum that age of wife is more
than him was discovered - In absence of
pleading in that regard in plaint itself, suit filed
by husband barred under S. 12(2)(a)(i) (Para
10)

B. Civil Law-Hindu Marriage Act (25 of
1955) - S.13(1)(ia) - Divorce - Cruelty -
Merely on the allegation of cruelty
without
giving
specific
instances
in
support of such allegation, same cannot
be considered by Court - Necessary to
plead specific instances of cruelty

Held - Plaintiff-husband pleaded commission of
cruelty upon his parents by wife - However
husband failed to plead any specific instance of
'cruelty' - Further, parents of plaintiff-husband
were the best persons to prove commission of
'cruelty' upon them by defendant-wife -
However, Plaintiff did not adduce his own
parents to prove commission of cruelty by
defendant-wife - Husband failed to prove
cruelty.(Para 13)

C. Civil Law-Hindu Marriage Act (25 of
1955) - S.13 - Divorce - Irretrievable
breakdown
of
marriage
-
Husband
conduct forced the wife to live separately
- Wife filed suit for restitution of conjugal
rights - Held - it is established that the
wife has not herself abandoned the
husband - it cannot be said that marriage
between
parties
has
broken
down
irretrievably (Para 27)

D. Civil Law-Hindu Marriage and Divorce
Rules, 1956 - Rule 6 - Necessary Parties -
Mandatory to implead alleged adulterer
or adulteress a co-respondent to the
divorce petition - Rule 6 mandatory in
nature - Fact - Plaintiff - Husband
pleaded that wife is in illegitimate
relationship with her 'Jija' - Held -
Plaintiff- was obliged to implead 'Jija' of
Defendant-wife
as
a
party
to
the
marriage
petition
-
Plaintiff-husband
committed
procedural
error
by
not
impleading 'Jija' of Defendant as a party
to the Divorce Petition (Para 25)

E. Matrimonial dispute - Hindu Marriage
Act (25 of 1955) - S.13 - Infidelity of wife
- legitimacy of child - DNA test - Held -
once infidelity of wife was challenged
alleging that a son was born out of
cohabitation
with
her
'Jija',
it
was
incumbent
upon
Plaintiff-husband
to
apply for D.N.A. - DNA testing is the most
legitimate
and
scientifically
perfect
means, which the husband could use, to
establish
his
assertion
of
infidelity
infidelity (Para 24)

Appeal Dismissed. (E-5)

List of cases cited:-

## Text

_Characters 0–39,982 of 67,903. This is a partial read: ask again with offset=39982 for what follows._

948 INDIAN LAW REPORTS ALLAHABAD SERIES

39. The Hon'ble Apex Court in the
case of G.Amalorpavam and others
Versus R.C.Diocese of Madurai and
others; (2006) 3 SCC 224 has held that
non-compliance with the provisions may
not vitiate the judgment and make it
wholly void, and may be ignored if there
has been substantial compliance with it
and the second appellate court is in a
position to ascertain the findings of the
lower appellate court.

40. In view of above merely because
the points of determination have not
specifically been stated, the judgment may
not vitiate because it can be ignored if
there has been substantial compliance with
the provisions i.e. Order 41 Rule 31 CPC
and the higher appellate court is able to
ascertain the findings of the lower
appellate court.

41. Learned counsel for the appellant had
also failed to disclose as to which issue has not
been framed and evidence has not been
considered and only submitted that the points
of determination have not been framed while
the judgment has been passed after considering
the submissions of the parties and the evidence
and also the case laws specifically considering
the pleadings and evidence in regard to issues
on which the arguments were advanced.
Therefore, this court is of the view that there is
substantial compliance of Order 41 Rule 31
CPC and the judgment does not vitiate on this
ground.

42. In the present case the suit for
permanent injunction was filed by the
appellant/plaintiffs with the allegation that
Smt. Raji had re-married after the death of
jagesar, therefore, they had become the owner
of her property in view of Section 172 of the
U.P.Z.A.& L.R.Act. As discussed above the
plaintiff-appellants have failed to prove the remarriage of Smt. Raji and possesson over the
property, therefore, the decree passed by the
learned trial court has rightly been set aside
and suit has been dismissed in accordance with
law.

43. In view of above this court is of the
considered opinion that there is no illegality or
error in the judgment and order dated
05.03.2011 passed by the First Appellate
Court. The substantial questions of law framed
by this court are accordingly decided against
the appellants.

44. This second appeal is hereby
dismissed. No order as to costs.

45. The lower Court record shall be
remitted to the concerned court forthwith.
----------
(2020)02ILR A948

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

First Appeal No. 448 of 2015

Girish Chandra Srivastava ...Appellant
Versus
Smt. Reeta Srivastava ...Respondent

Counsel for the Appellant:
Sri Sriprakash Dwivedi

Counsel for the Respondent:
Sri Ratnesh Khare

A. Civil Law-Hindu Marriage Act (25 of
1955) - S.12(2)(a)(i) - Marriage - Fraud -
Consent obtained by fraud - Annulment of
marriage - no petition for annulling a
marriage on the ground of fraud shall be
entertained if the petition is presented
2 All. Girish Chandra Srivastava Vs. Smt. Reeta Srivastava
949
more than one year after the fraud had
been discovered.

Allegation of husband that wife is elder to him
but said fact was concealed at time of marriage
- Husband not detailed in his marriage petition
as to when factum that age of wife is more
than him was discovered - In absence of
pleading in that regard in plaint itself, suit filed
by husband barred under S. 12(2)(a)(i) (Para
10)

B. Civil Law-Hindu Marriage Act (25 of
1955) - S.13(1)(ia) - Divorce - Cruelty -
Merely on the allegation of cruelty
without
giving
specific
instances
in
support of such allegation, same cannot
be considered by Court - Necessary to
plead specific instances of cruelty

Held - Plaintiff-husband pleaded commission of
cruelty upon his parents by wife - However
husband failed to plead any specific instance of
'cruelty' - Further, parents of plaintiff-husband
were the best persons to prove commission of
'cruelty' upon them by defendant-wife -
However, Plaintiff did not adduce his own
parents to prove commission of cruelty by
defendant-wife - Husband failed to prove
cruelty.(Para 13)

C. Civil Law-Hindu Marriage Act (25 of
1955) - S.13 - Divorce - Irretrievable
breakdown
of
marriage
-
Husband
conduct forced the wife to live separately
- Wife filed suit for restitution of conjugal
rights - Held - it is established that the
wife has not herself abandoned the
husband - it cannot be said that marriage
between
parties
has
broken
down
irretrievably (Para 27)

D. Civil Law-Hindu Marriage and Divorce
Rules, 1956 - Rule 6 - Necessary Parties -
Mandatory to implead alleged adulterer
or adulteress a co-respondent to the
divorce petition - Rule 6 mandatory in
nature - Fact - Plaintiff - Husband
pleaded that wife is in illegitimate
relationship with her 'Jija' - Held -
Plaintiff- was obliged to implead 'Jija' of
Defendant-wife
as
a
party
to
the
marriage
petition
-
Plaintiff-husband
committed
procedural
error
by
not
impleading 'Jija' of Defendant as a party
to the Divorce Petition (Para 25)

E. Matrimonial dispute - Hindu Marriage
Act (25 of 1955) - S.13 - Infidelity of wife
- legitimacy of child - DNA test - Held -
once infidelity of wife was challenged
alleging that a son was born out of
cohabitation
with
her
'Jija',
it
was
incumbent
upon
Plaintiff-husband
to
apply for D.N.A. - DNA testing is the most
legitimate
and
scientifically
perfect
means, which the husband could use, to
establish
his
assertion
of
infidelity
infidelity (Para 24)

Appeal Dismissed. (E-5)

List of cases cited:-

1. Smt. Sarita Devi Vs Sri Ashok Kumar Singh
2018 (3) AWC 2328

2. Dipanwita Roy Vs Ronobroto Roy 2015 (1)
SCC 365

3. Sukhendu Das Vs Rita Mukherjee 2007 (9)
SCC 632

(Delivered by Hon'ble Rajeev Misra, J).)

1. This is plaintiff's appeal under
section 19 of Family Court's Act 1984
(hereinafter referred to as "Act, 1984")
arising out of judgement dated 16.7.2015
and decree dated 23.7.2015, passed by
Principal Judge, Family Court, Varanasi in
Marriage Petition No. 536 of 2013 (Girish
Chandra
Srivastava
Vs.
Smt.
Reeta
Srivastava) under section 13 of Hindu
Marriage Act , 1955 (hereinafter referred
to as "Act, 1955") whereby, Court below
has dismissed marriage petition filed by
plaintiff-appellant for divorce on the
grounds of cruelty, adultery and desertion.

2. According to plaint allegations,
marriage
of
plaintiff-appellant
was
950 INDIAN LAW REPORTS ALLAHABAD SERIES
solemnized with Reeta Srivastava on
30.11.2001 in a very simple manner. It is
the
case
of
plaintiff-appellant
that
defendant-respondent,
without
taking
consent of plaintiff-appellant, left her
marital home in January, 2002 and is
residing at her parental home since then.
When all attempts by plaintiff-appellant
for conciliation between parties failed and
defendant-respondent did not return to her
matrimonial home to live along plaintiffappellant, Marriage Petition No. 536 of
2013 (Girish Chandra Srivastava Vs. Smt.
Reeta Srivastava) under section 13 of Act,
1955 was filed by plaintiff-appellant for
decree of divorce on grounds of cruelty,
adultery and desertion. Apart from factual
pleas in respect of aforesaid grounds, it
was also pleaded in plaint that marriage
between parties has been got solemnized
by playing fraud. At the time of marriage,
age of plaintiff was 43 years, whereas
defendant-respondent was aged about 47
years.
However,
aforesaid
fact
was
concealed
and
age
of
defendantrespondent was disclosed as 32 years. It
was also alleged that at time of marriage
defendant-respondent is younger to her
brother Pankaj Khare, whereas true and
correct fact is even at the time of marriage,
defendant-respondent
was
elder
to
plaintiff-appellant.
In
elaboration
of
aforesaid ground, it was also pleaded that
mensuration
cycle
of
defendantrespondent has come to an end on account
of her age. As such, defendant-respondent
is incapable of reproducing a child. It was
then pleaded that defendant-respondent
committed cruelty both physical and
mental upon plaintiff-appellant and his
family members. Defendant-respondent
was alleged to possess M.A. Degree,
whereas, plaintiff-appellant is just High
School. On account of such disparity,
defendant-respondent
used
to
make
objectionable comments against plaintiffappellant.
It
was
also
stated
that
defendant-respondent
has
failed
to
discharge her spousal obligations as well
as her marriage obligations causing
physical and mental cruelty to plaintiffappellant.
Defendant-respondent
has
refused to perform household jobs and has
further entered into a scuffle with parents
of plaintiff-appellant. False allegation
regarding
plaintiff-appellant
being
drunkard were also leveled by defendantrespondent causing mental agony to
plaintiff-appellant. On the question of
adulteress
character
of
defendantrespondent, it was pleaded by plaintiffappellant that defendant-respondent is in
illegitimate relationship with Mahesh
Khare her 'Jija' (husband of sister) and out
of aforesaid illegal relationship, son has
been born aged about 12 years. With
respect
to
desertion
by
defendantrespondent, it was alleged by plaintiffappellant that defendant-respondent has
left house of plaintiff-appellant in January,
2002 without consent of plaintiff-appellant
and inspite of best efforts for conciliation
and request made by plaintiff-appellant
requesting defendant-respondent to return
to her marital home and co-habitate with
plaintiff-appellant having failed, plaintiffappellant filed matrimonial petition for
grant of divorce.

3.

Summons
were
issued
to
defendant-respondent but in spite of that,
defendant-respondent
did
not
appear.
Consequently, service upon defendantrespondent
was
affected
through
substituted serviced by way of publication
in daily news paper 'Aaj'. Inspite of
aforesaid, defendant-respondent did not
appear to contest marriage petition filed by
plaintiff-appellant.
Accordingly,
Court
below held service upon defendant-
2 All. Girish Chandra Srivastava Vs. Smt. Reeta Srivastava
951
respondent to be sufficient. Consequently,
marriage
petition
filed
by
plaintiffappellant
proceeded
ex-parte
against
defendant-respondent.

4. Plaintiff-appellant, in order to
prove his case, adduced only himself as
P.W.1. He also filed six documentary
evidence i.e. paper Nos. 8-Ga (I) to 8-Ga
(VI) vide list of documents (Paper No. 7
Ga), in proof of his case.

5. To adjudicate marriage petition
filed by plaintiff-appellant, Court below
did
not
frame
specific
issues
but
independently considered grounds pleaded
in plaint for grant of a decree of divorce.

6.

Court
below
considered
allegations made in plaint, oral testimony
of plaintiff-appellant and documentary
evidence adduced by plaintiff-appellant,
while evaluating grounds for divorce
pleaded in plaint. Upon consideration and
evaluation
of
same,
Court
below
concluded that none of the grounds raised
by plaintiff-appellant are cogent enough to
allow marriage petition filed by plaintiffappellant and consequently, declined to
grant a decree of divorce as prayed for.

7. It was pleaded by plaintiffappellant that marriage of parties has been
solemnized by playing fraud inasmuch as
age of defendant-respondent was more
than plaintiff-appellant at time of marriage
but
the
said
fact
was
deliberately
concealed.

8. Court below took the view that on
the aforesaid ground, marriage petition
ought to have been filed within a period of
one year from date of marriage or from
date of knowledge of aforesaid fact.
Admittedly, marriage of plaintiff-appellant
with
defendant-respondent
was
solemnized
on
30.11.2001,
whereas
Marriage Petition has been filed in the
year 2013 vide plaint dated 30.5.2013,
without disclosing date on which plaintiffappellant discovered aforesaid fact. As
such, marriage petition filed by plaintiffappellant on aforesaid ground is barred by
limitation.

9. We have considered the finding
recorded by Court below in respect of
ground urged by plaintiff-appellant that
fraud has been played inasmuch as
defendant-respondent is elder to plaintiffappellant but said fact was concealed at
time of marriage between parties. As such,
same has been got solemnized by playing
fraud. Section 12 of Act 1955 relates to
voidable marriages. For ready reference
Section 12 of Act 1955 is reproduced
herein below:

"12 Voidable marriages . (1)
Any marriage solemnised, whether before
or after the commencement of this Act,
shall be voidable and may be annulled by
a decree of nullity on any of the following
grounds, namely:-

(a) that the marriage has not
been
consummated
owing
to
the
impotence of the respondent; or]

(b) that the marriage is in
contravention of the condition specified
in clause (ii) of section 5; or

(c) that the consent of the
petitioner, or where the consent of the
guardian in marriage of the petitioner 13
[was required under section 5 as it stood
immediately before the commencement of
the
Child
Marriage
Restraint
(Amendment) Act, 1978 (2 of 1978)], the
consent of such guardian was obtained by
force or by fraud as to the nature of the
ceremony or as to any material fact or
952 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstance concerning the respondent;
or

(d) that the respondent was at
the time of the marriage pregnant by
some person other than the petitioner.

(2) Notwithstanding anything
contained in sub-section (1), no petition
for annulling a marriage:-

(a) on the ground specified in
clause (c) of sub-section (1) shall be
entertained if-

(i) the petition is presented more
than one year after the force had ceased
to operate or, as the case may be, the
fraud had been discovered; or

(ii) the petitioner has, with his
or her full consent, lived with the other
party to the marriage as husband or wife
after the force had ceased to operate or, as
the case may be, the fraud had been
discovered;

(b) on the ground specified in
clause (d) of sub-section (1) shall be
entertained unless the court is satisfied

(i) that the petitioner was at the
time of the marriage ignorant of the facts
alleged;

(ii) that proceedings have been
instituted in the case of a marriage
solemnised before the commencement of
this Act within one year of such
commencement and in the case of
marriages
solemnised
after
such
commencement within one year from the
date of the marriage; and

(iii) that marital intercourse with
the consent of the petitioner has not taken
place since the discovery by the petitioner
of the existence of the said ground."

(Emphasis added)

10. When finding recorded by Court
below on the question that marriage of
parties was got solemnized by playing
fraud is examined in the light of provisions
contained in Section 12 of Act, 1955, it is
explicitly clear that finding recorded by
Court below on the aforesaid question is
perfectly just and legal. Plaintiff-appellant
has himself not detailed in his marriage
petition as to when the factum that age of
Defendant-respondent
is
more
than
Plaintiff-appellant was discovered by him.
In the absence of pleading in that regard in
plaint itself, suit filed by Plaintiffappellant stood clearly barred under
Section 12(2) (a) (i) of the Act, 1955.

11. Plaintiff-appellant also pleaded
commission of cruelty upon his parents by
Defendant-respondent. Divorce can be
granted on the ground of cruelty as per
section 13 (1) (i-a). For ready reference,
same is reproduced herein below:

"(1) Any marriage solemnized,
whether before or after the commencement
of this Act, may, on a petition presented by
either the husband or the wife, be
dissolved by a decree of divorce on the
ground that the other party--

(i-a) has, after the solemnization
of the marriage, treated the petitioner with
cruelty; or "

12. Said issue was considered by
Court below but refused to be accepted.
Court below concluded that in order to
prove 'cruelty', Plaintiff-appellant has not
produced any supporting documentary
evidence nor has adduced any independent
witness to prove the same.

13. Admittedly, Plaintiff-appellant
only made allegations of cruelty being
committed by Defendant-respondent in the
plaint. However, Plaintiff-appellant failed
to plead any specific instance of 'cruelty'.
Once it was alleged by Plaintiff-appellant
2 All. Girish Chandra Srivastava Vs. Smt. Reeta Srivastava
953
that 'cruelty' was committed by Defendantrespondent upon his parents, then plaintiffappellant ought to have detailed specific
instances of 'cruelty' alleged to have been
committed by defendant-respondent. Apart
from above, parents of plaintiff-appellant
were the best persons to prove commission
of 'cruelty' upon them by defendantrespondent. However, for reasons best
known to Plaintiff-appellant he did not
adduce
his
own
parents
to
prove
commission of cruelty by defendantrespondent as alleged by him. We
therefore find no illegality in the finding
recorded by Court below on aforesaid
issue. Consequently, we affirm the same.

14. It was then pleaded by plaintiffappellant that defendant-respondent does
not perform household jobs which is
unbecoming of a wife. On this factual
premise plaintiff-appellant pleaded for
grant of a decree of divorce. However,
Court below has considered the aforesaid
plea raised by plaintiff-appellant but
concluded that same by itself is not
sufficient to grant decree of divorce as
prayed for by plaintiff-appellant.

15. Section 13 of Act, 1955 provides
for grounds of divorce. For ready
reference Section 13 of Act, 1955 is
reproduced herein-under

" 13 Divorce. --(1) Any marriage
solemnized, whether before or after the
commencement of this Act, may, on a
petition presented by either the husband or
the wife, be dissolved by a decree of
divorce on the ground that the other party-
-

[(i) has, after the solemnization
of the marriage, had voluntary sexual
intercourse with any person other than his
or her spouse; or

(i-a) has, after the solemnization
of the marriage, treated the petitioner with
cruelty; or

(i-b) has deserted the petitioner
for a continuous period of not less than
two years immediately preceding the
presentation of the petition; or]

(ii) has ceased to be a Hindu by
conversion to another religion; or

[(iii) has been incurably of
unsound mind, or has been suffering
continuously or intermittently from mental
disorder of such a kind and to such an
extent
that
the
petitioner
cannot
reasonably be expected to live with the
respondent.

Explanation.--In this clause,--

(a)
the
expression
"mental
disorder" means mental illness, arrested
or incomplete development of mind,
psychopathic disorder
or
any
other
disorder or disability of mind and includes
schizophrenia;

(b) the expression "psychopathic
disorder" means a persistent disorder or
disability of mind (whether or not
including sub-normality of intelligence)
which results in abnormally aggressive or
seriously irresponsible conduct on the part
of the other party, and whether or not it
requires or is susceptible to medical
treatment; or]

(iv) has, [***] been suffering
from a virulent and incurable form of
leprosy; or

(v) has, [***] been suffering
from venereal disease in a communicable
form; or

(vi) has renounced the world by
entering any religious order; or

(vi) has not been heard of as
being alive for a period of seven years or
more by those persons who would
naturally have heard of it, had that party
been alive; [***]
954 INDIAN LAW REPORTS ALLAHABAD SERIES

[ Explanation. -In this subsection, the expression "desertion" means
the desertion of the petitioner by the other
party to the marriage without reasonable
cause and without the consent or against
the wish of such party, and includes the
wilful neglect of the petitioner by the other
party to the marriage, and its grammatical
variations and cognate expressions shall
be construed accordingly.]

(viii) [***]

(ix) [***]

[(1-A)
Either
party
to
a
marriage, whether solemnised before or
after the commencement of this Act, may
also present a petition for the dissolution
of the marriage by a decree of divorce on
the ground--

(i) that there has been no
resumption of cohabitation as between
the parties to the marriage for a period
of 22 [one year] or upwards after the
passing
of
a
decree
for
judicial
separation in a proceeding to which they
were parties; or

(ii) that there has been no
restitution of conjugal rights as between
the parties to the marriage for a period
of 22 [one year] or upwards after the
passing of a decree for restitution of
conjugal rights in a proceeding to which
they were parties.]

(2) A wife may also present a
petition for the dissolution of her
marriage by a decree of divorce on the
ground,---

(i) in the case of any marriage
solemnised before the commencement of
this Act, that the husband had married
again before such commencement or that
any other wife of the husband married
before such commencement was alive at
the time of the solemnisation of the
marriage of the petitioner: Provided that
in either case the other wife is alive at
the time of the presentation of the
petition; or

(ii) that the husband has, since
the solemnisation of the marriage, been
guilty of rape, sodomy or [bestiality; or]

[(iii) that in a suit under section
18
of
the
Hindu
Adoptions
and
Maintenance Act, 1956 (78 of 1956), or in
a proceeding under section 125 of the
Code of Criminal Procedure, 1973 (2 of
1974) [or under the corresponding section
488 of the Code of Criminal Procedure,
1898 (5 of 1898)], a decree or order, as
the case may be, has been passed against
the husband awarding maintenance to the
wife notwithstanding that she was living
apart and that since the passing of such
decree or order, cohabitation between the
parties has not been resumed for one year
or upwards; or

[(iv) that her marriage (whether
consummated or not) was solemnised
before she attained the age of fifteen years
and she has repudiated the marriage after
attaining that age but before attaining the
age of eighteen years.]

Explanation.
--This
clause
applies
whether
the
marriage
was
solemnised
before
or
after
the
commencement of the Marriage Laws
(Amendment) Act, 1976 (68 of 1976).]
STATE AMENDMENT

Uttar
Pradesh.--
In
its
application to Hindus domiciled in Uttar
Pradesh and also when either party to the
marriage was not at the time of marriage
a Hindu domiciled in Uttar Pradesh, in
section 13--

(i) in sub-section (1), after
clause (i) insert (and shall be deemed
always to have been inserted) the
following

"(1-a)
has
persistently
or
repeatedly treated the petitioner with such
cruelty
as
to
cause
a
reasonable
2 All. Girish Chandra Srivastava Vs. Smt. Reeta Srivastava
955
apprehension in the mind of the petitioner
that it will be harmful or injurious for the
petitioner to live with the other party; or",
and

(ii) for clause (viii) (since
repealed) substituted and deem always to
have been so substituted for following.

"
(viii)
has
not
resumed
cohabitation after the passing of a decree
for judicial separation against that party
and--

(a) a period of two years has
elapsed since the passing of such decree, or

(b) the case is one of exceptional
hardship to the petitioner or of exceptional
depravity on the part of other party; or"."

16. Section 13 (I) (i-a) of Act, 1955
provides for grant of decree of divorce on the
ground of cruelty. The term 'cruelty' has not
been defined in Act, 1955. Consequently, same
has been subject-matter of debate for long.

17. Recently a Division Bench of this
Court in Smt. Sarita Devi Vs. Sri Ashok
Kumar Singh reported in 2018 (3) AWC
2328 has considered the question of cruelty in
detail in paragraphs 16, 17, 18, 19, 20, 21, 22,
23, 24, 25, 27 and 29 which reads as under:-

"16. In Samar Ghosh vs. Jaya
Ghosh (2007) 4 SCC 511 Court considered the
concept of cruelty and referring to Oxford
Dictionary defines 'cruelty' as 'the quality of
being cruel; disposition of inflicting suffering;
delight in or indifference to another's pain;
mercilessness; hard-heartedness'.

17. In Black's Law Dictionary, 8th
Edition, 2004, term "mental cruelty" has been
defined as, "a ground for divorce, one spouse's
course of conduct (not involving actual
violence) that creates such anguish that it
endangers the life, physical health, or mental
health of the other spouse."

18. The concept of cruelty has been
summarized in Halsbury's Laws of England,
Vol.13, 4th Edition Para 1269, as under:

"The general rule in all cases of
cruelty is that the entire matrimonial
relationship must be considered, and that rule
is of special value when the cruelty consists not
of violent acts but of injurious reproaches,
complaints, accusations or taunts. In cases
where no violence is averred, it is undesirable
to consider judicial pronouncements with a
view to creating certain categories of acts or
conduct as having or lacking the nature or
quality which renders them capable or
incapable in all circumstances of amounting to
cruelty; for it is the effect of the conduct rather
than its nature which is of paramount
importance in assessing a complaint of cruelty.
Whether one spouse has been guilty of cruelty
to the other is essentially a question of fact and
previously decided cases have little, if any,
value. The court should bear in mind the
physical and mental condition of the parties as
well as their social status, and should consider
the impact of the personality and conduct of
one spouse on the mind of the other, weighing
all incidents and quarrels between the spouses
from that point of view; further, the conduct
alleged must be examined in the light of the
complainant's capacity for endurance and the
extent to which that capacity is known to the
other spouse. Malevolent intention is not
essential to cruelty but it is an important
element where it exits."

19.
In
24
American
Jurisprudence 2d, the term "mental
cruelty" has been defined as under:

"Mental Cruelty as a course of
unprovoked conduct toward one's spouse
which causes embarrassment, humiliation,
and anguish so as to render the spouse's
life miserable and unendurable. The
plaintiff must show a course of conduct on
the part of the defendant which so
endangers the physical or mental health of
956 INDIAN LAW REPORTS ALLAHABAD SERIES
the plaintiff as to render continued
cohabitation unsafe or improper, although
the plaintiff need not establish actual
instances of physical abuse. "

20. One of the earliest decision
considering "mental cruelty" we find is,
N.G. Dastane v. S. Dastane (1975) 2 SCC
326, wherein Court has said:

"The enquiry therefore has to be
whether the conduct charges as cruelty is
of such a character as to cause in the mind
of
the
petitioner
a
reasonable
apprehension that it will be harmful or
injurious for him to live with the
respondent. "

21.
In
Sirajmohmedkhan
Janmohamadkhan
v.
Haizunnisa
Yasinkhan and Anr. (1981) 4 SCC 250
Court said that a concept of legal cruelty
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 legislative recognition, that a
second marriage is a sufficient ground for
separate
residence
and
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 lead to mental or legal
cruelty.

22. In Shobha Rani v. Madhukar
Reddi, (1988) 1 SCC 105, Court observed
that word 'cruelty' has not been defined in
Act, 1955 but legislature, making it a
ground
for
divorce
under
Section
13(1)(i)(a) of Act, 1955, has made it clear
that conduct of party in treatment of other
if amounts to cruelty actual, physical or
mental or legal is a just reason for grant
of divorce. Cruelty may be mental or
physical, intentional or unintentional. If it
is physical, it is a question of fact about
degree. If it is mental, the enquiry must
begin as to the nature of cruel treatment
and then as to 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, is a matter of
inference to be drawn by taking into
account the nature of conduct and its
effect on the complaining spouse. There
may, however, be cases where conduct
complained of itself is bad enough and per
se unlawful or illegal. Then the impact or
injurious effect on the other spouse need
not be enquired into or considered. In such
cases, cruelty will be established if
conduct itself is proved or admitted. The
absence of intention should not make any
difference in the case, if by ordinary sense
in human affairs, the act complained of
could otherwise be regarded as cruelty.

23. In V. Bhagat v. D. Bhagat
(Mrs.), (1994) 1 SCC 337 considering the
concept of "mental cruelty" in the context
of Section 13(1)(i)(a) of Act, 1984, Court
said that it can be defined as conduct
which inflicts upon the other party such
mental pain and suffering as would make
it not possible for that party to live with
other. In other words, 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 other party. It is not necessary
to prove that mental cruelty is such as to
cause injury to the health of other party.
While arriving at such conclusion, regard
must be had to the social status,
educational level of parties, the society
they move in, the possibility or otherwise
of the parties ever living together in case
2 All. Girish Chandra Srivastava Vs. Smt. Reeta Srivastava
957
they are already living apart and all other
relevant facts and circumstances which it
is neither possible nor desirable to set out
exhaustively. What is cruelty in one case
may not amount to cruelty in another case.
It is thus has to be determined in each case
having
regard
to
the
facts
and
circumstances of each case.

24. In Chetan Dass v. Kamla
Devi, (2001) 4 SCC 250, Court observed
that
matrimonial
matters
relates
to
delicate
human
and
emotional
relationship. It demands mutual trust,
regard, respect, love and affection with
sufficient play for reasonable adjustments
with spouse. The relationship has to
conform to the social norms as well. There
is no scope of applying the concept of
"irretrievably broken marriage" as a
straitjacket formula for grant of relief of
divorce but it has to be considered in the
backdrop of facts and circumstances of the
case concerned.

25. In Savitri Pandey v. Prem
Chandra Panadey, (2002) 2 SCC 73,
Court held that mental cruelty is the
conduct of other spouse which causes
mental suffering or fear to matrimonial
life
of
other.
Cruelty
postulates
a
treatment of party to marriage with such
conduct
as
to
cause a
reasonable
apprehension in his or her mind that it
would be harmful or injurious to live with
other
party.
Cruelty
has
to
be
distinguished from ordinary wear and tear
of family life.

27. In Vinita Saxena v. Pankaj
Pandit, (2006) 3 SCC 778 Court held that
complaints and reproaches, sometimes of
ordinary nature, may not be termed as
'cruelty'
but
their
continuance
or
persistence over a period of time may do
so which would depends on the facts of
each case and have to be considered
carefully by the Court concerned.

29. In Samar Ghosh vs. Jaya
Ghosh (supra) Court said that though no
uniform standard can be laid down but
there are some instances which may
constitute mental cruelty and the same are
illustrated as under:

"(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.

(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 behavior 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
958 INDIAN LAW REPORTS ALLAHABAD SERIES
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
behavior of a spouse, the wronged party
finds it extremely difficult to live with the
other party any longer, may amount to
mental cruelty.

(xi) If a husband submits himself
for an operation of sterilization without
medical reasons and without the consent
or knowledge of his wife and similarly if
the wife undergoes vasectomy or abortion
without medical reason or without the
consent or knowledge of her husband,
such an act of the spouse may lead to
mental cruelty.

(xii)
Unilateral
decision
of
refusal
to
have
intercourse
for
considerable period without there being
any physical incapacity or valid reason
may amount to mental cruelty.

(xiii)
Unilateral
decision
of
either husband or wife after marriage not
to have child from the marriage may
amount to cruelty.

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

18. The aforesaid Division Bench
judgement
clearly
explains
different
shades of 'cruelty' which by itself are
sufficient enough to dissolve the marriage
on the ground of cruelty. The aforesaid
judgement also prescribes the mode as to
how 'cruelty' has to be proved and in what
decree it has to be proved so as to grant of
decree of divorce on the ground of
'cruelty'.

19. With the aid of the aforesaid
material, Court has now to examine,
whether plaintiff-appellant was able to
successfully establish cruelty on the part of
defendant-
respondent
and
therefore,
entitled to the decree of divorce on the
aforesaid ground.

20. From perusal of plaint, we find
that allegation of cruelty made by plaintiffappellant is only allegation but does not
give any specific instance or instances of
cruelty
having
been
committed
by
Defendant-respondent. Merely on the
allegation
of
cruelty
having
been
committed
without
giving
specific
instances in support of such allegation,
same cannot be considered by Court. In
the present case, Plaintiff-appellant has
failed to plead specific instances of
cruelty. Plea raised by plaintiff-appellant is
not covered under judgement of Apex
Court in Samar Ghosh (Supra) wherein
2 All. Girish Chandra Srivastava Vs. Smt. Reeta Srivastava
959
Apex Court has given various instances of
mental cruelty. Plea raised by plaintiffappellant neither singularly nor when
considered cumulatively along with other
grounds pleaded in plaint, is sufficient
enough to grant decree of divorce.
Consequently, we do not find any error
much less an error on face of record in
conclusion drawn by Court below that
decree of divorce cannot be granted on
ground that wife has refused to perform
household job.

21. Plaintiff-appellant in support of
his divorce suit further pleaded that
defendant-respondent
was
in
illegal
relationship with her 'Jija' i.e. husband of
sister
namely
Mahesh
Khare.
From
aforesaid illegal relationship, a son aged
about 12 years was born. Court below
refused to entertain this ground as Rule 6
of The Hindu Marriage and Divorce Rules,
1956 (hereinafter referred to as "Rules,
1956") were not complied with inasmuch
as Mahesh Khare was not impleaded as a
party to the proceedings. Apart from above
bare pleading no cogent evidence has been
adduced
by
Plaintiff-appellant
to
substantiate aforesaid plea. Once infidelity
of wife of Defendantn-respondent i.e. wife
was challenged, it was incombent upon
Plaintiff-appellant to apply for D.N.A.
Test of the child as well as Mahesh Khare.
However, no such step was taken by
Plaintiff-appellant. Consequently, Court
below rejected the aforesaid ground for
grant of divorce prayed for by Plaintiffappellant. He has also not impleaded the
person allegedly involved in adultery with
defendant-respondent.

22. We have examined the finding
recorded by Court below with regard to
adulterous
character
of
Defendantrespondent
as
alleged
by
Plaintiffappellant. For ready reference Rule 6 of
Rules, 1956 is reproduced herein-under:-

"6. Necessary Parties- (a) In
every petition for divorce or judicial
separation on the ground that the
respondent is living in adultery or has
committed adultery with any person, the
petitioner shall make the alleged adulterer
or adulteress a co-respondent to the
petition unless he or she is excused by the
Court from doing so on any of the
following grounds:

(i) that the name of such person
is unknown to the petitioner although he
has made due efforts for discovery,

(ii) that such person is dead;

(iii) that the respondent if a
woman is leading the life of a prostitute
and that the petitioner knows of no person
with whom adultery has been committed;
or

(iv) Any other reason that the
Court considers sufficient.

(b) In every petition under
Sec.13 (1) and (2) of the Act, the petitioner
shall make 'the other wife' mentioned in
that section a co-respondent.

(c) In every petition under Sec.
11 of the Act on the ground that the
condition in Sec. 5 (1) is contravened the
petitioner shall make the spouse alleged to
be living at the time of the marriage a corespondent.

(d) If a petitioner does not make
the alleged adulterer or adulteress a corespondent he shall at the time of
presenting the petition file a separate
application supported by an affidavit
giving the reasons."

23. Admittedly, Rule 6 of Rules,
1956 is mandatory in nature and therefore,
Plaintiff-appellant was obliged to implead
Mahesh Khare i.e. 'Jija' of Defendant-
960 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent as a party to the marriage
petition.

24.