# Puja Suri v. Bijoy Suri

- **Citation:** (2016) 5 ILRA 120
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-26
- **Bench:** Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/puja-suri-v-bijoy-suri-43762
- **Pages:** 9

## Text

120 INDIAN LAW REPORTS ALLAHABAD SERIES
25. We find no infirmity in the view taken by the CIT Appeals and the Tribunal nor
illegality any has been pointed out by learned Counsel for the appellant. If deductions under subsection (3) of Section 40A of the Act is not allowed then the same would have adjusted to the
profits of the undertaking as a result of which it will be entitled to seek deductions under Section
80IB of the Act.

26. Thus for all the reasons stated above the questions of law framed by the appellant are
answered against the revenue and in favour of the assessee.

27. The appeal is, accordingly, dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.05.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Second Appeal No.- 258 Of 2012

Puja Suri ...Appellant
Versus
Bijoy Suri ...Respondent

Counsel for Appellant:
Vivek Kumar Birla, Shishir Prakash

Counsel for Respondent:
Amit Kumar Srivastava, M.K. Gupta

Held:

Mental cruelty under Section 13(1)(i-a) of the Hindu Marriage Act includes conduct which causes such
mental pain and suffering that the aggrieved spouse cannot reasonably be expected to live with the
other spouse.

False criminal accusations, repeated litigation, public humiliation, threats of arrest, and
continued prosecution constitute mental cruelty, even if physical cruelty is absent.

Mental cruelty need not be proved beyond reasonable doubt; it is sufficient if established on the
preponderance of probabilities, which is the applicable standard in matrimonial disputes.

Concurrent findings of fact by the trial court and first appellate court on cruelty, based on proper
appreciation of evidence, cannot be interfered with in second appeal.
5 All. Puja Suri Vs Bijoy Suri

121
Irretrievable breakdown of marriage is not an independent statutory ground for divorce under
Section 13 of the Hindu Marriage Act and cannot be invoked by High Courts; it lies exclusively within
the jurisdiction of the Supreme Court under Article 142.

However, facts showing long separation, failed mediation, absence of cohabitation, bitterness, and criminal
litigation may be relevant while assessing cruelty, though irretrievable breakdown alone cannot be the
ground.

Where marriage has practically become dead, and continuance would only prolong agony, decree of
divorce on the ground of cruelty is justified.

The decree of divorce granted by the trial court and affirmed by the first appellate court is confirmed.

Case Law discussed:

V. Bhagat v. D. Bhagat, (1994) 1 SCC 337
Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1. This is another case where a marriage has gone sour. The appellant and the opposite party
fell in love, had courtship of about four years, got married, lived together for about two months,
and thereafter living separately, quarrelling as well as litigating in matrimonial and criminal cases
for about 14 years. In meantime four years ago in year 2012, when second appeal was dismissed in
default and before its restoration, the the respondent-husband had solemnized second marriage.
Parties have no child from their first marriage, but the respondent-husband had two children from
his second marriage. The attempts of mediation between the parties had been made several times,
which failed. Parties knew that their matrimonial relations had been damaged beyond repairs, but
on one hand wife-appellant had prosecuting several criminal cases against respondent for sending
him to jail and on other hand she is prosecuting this appeal for restoration of matrimonial bonds.

2. The applicant Bijoy Suri had filed petition (Original suit no. 22/2004 Bijoi Suri v. Puja
Suri) under Section-13 of the Hindu Marriage Act in which it was pleaded that parties had friendly
relationship from the time of their studies in New Delhi and had agreed for marriage after
completion of studies. Their marriage was solemnized on 12.10.2002 and they live together till
27.12.2002 in New Delhi and Mumbai. The O.P.-Puja Suri was employed in Economic Times,
New Delhi while petitioner was employed in bank in Mumbai. When petitioner asked his wife to
start carrier in Mumbai, then she had threatened to break the matrimonial relationship. She had also
treated the petitioner with cruelty and also stopped co-habitation with him. She had threatened and
insulted the petitioner before other persons and informed that she cannot live separately from her
mother, who is more important than the petitioner's job. On the ground of cruelty, petitioner had
sought relief of divorce in his petition filed after about 2 years of the marriage.

3. The opposite party Puja Suri had filed written statement, in which she admitted her
marriage with petitioner, but denied the other allegations made in the divorce petition and further
122 INDIAN LAW REPORTS ALLAHABAD SERIES
pleaded that she had always being trying to preserve the matrimonial relationship with petitioner
and had got her job transferred to Mumbai. Later on, her job was again transferred to Delhi. She
had never treated the petitioner or his family members with cruelty. The parents of petitioner were
not happy with their marriage and they were willing to break matrimonial bonds of the parties. The
petition has been filed on incorrect facts and is liable to be dismissed.

4. After affording opportunity of hearing to parties, the trial court namely, IIIrd Additional
Civil Judge, Senior Division (/ACJM), Gautam Buddha Nagar had decreed the divorce petitioner
by its judgment dated 22.1.2011. In this judgment the trial court had given finding that petitioner
had proved his case, and it is proved from the evidences that O.P.-Puja Suri had treated the
petitioner with cruelty in form of screaming and insulting before others, hurting and complaining in
police. Trial court had also found there is evidence to the effect that that before filing of the
petition, O.P.-wife had admitted her guilt and confessed to have ill treated the petitioner. This
confession was made by her through her e-mail. Trial court had also found that reconciliation
proceedings between the parties had failed and there is irretrievable breakdown of marriage, which
cannot be saved. On these grounds, trial court had allowed the petition of divorce and dissolved the
marriage of the parties.

5. Against the judgment of trial court, Civil Appeal No. 12/2011, Puja Suri vs. Bijoy Suri, was
preferred by O.P.-wife, which was heard and dismissed by the judgment dated 14.12.2011 of
Additional District Judge/Special Judge (SC/ST Act), Gautam Buddha Nagar. In this judgment,
lower appellate court had independently appreciated the evidences and held that parties are living
separately from year 2002 and during the very short period of living together, their relationship was
not normal. During this period, the wife Pu

6. ja Suri had treated her husband with cruelty. First appellate court had held that from 2002
parties have no physical relationship and the appellant-wife had not tried for restitution of
matrimonial bonds. Lower appellate court had also held that there is no evidence to show that
appellant is forced to live separately from her husband, and that she herself had not discharged
those matrimonial duties, which were expected from her and had treated her husband with cruelty.
With these findings, the first appellate court had confirmed the judgment dated 22.1.2011 of trial
court and dismissed the appeal.

7. Against the judgment of trial court as well as first appellate court, present second appeal has
been preferred by the O.P.-wife of the original suit.

8. At the time of admission of appeal, following substantial questions of law were framed:-

"(i) Whether on the basis of the evidence on record the plaintiff was entitled to a
decree of divorce on the ground of cruelty?

(ii) Whether the courts below exceeded their jurisdiction in granting a decree of
divorce on the ground of irretrievable breakdown of marriage between the parties?"
5 All. Puja Suri Vs Bijoy Suri

123

9. Learned counsel for the appellant contended that that there has been no evidence that any
cruelty has been committed by wife against the petitioner-husband or his family members. Even in
his statement the petitioner-husband had not pointed out any particular incident of misbehaviour,
except one incident of snubbing and saying 'shut-up'. He contended that alleged apology through
forged e-mail was managed by husband-respondent who had knowledge of pass-word his wife, but
these facts we facts were not properly appreciated by lower courts. He further contended that
criminal case was lodged on correct facts, and in accordance with legal rights of appellant. The
exercise of such legal rights cannot be considered against him. He also contended that it is the
petitioner-respondent who has deserted her, therefore appeal should be allowed.

10. Learned counsel for the petitioner-respondent contended that petitioner is facing trial for
incarceration in criminal case filed against him by appellant-wife. Apart from it she has been
publicly insulting and misbehaving with the petitioner which amount to cruelty. He also contended
that burden of proving the fact that e-mail sent from the respondent was forged or was managed by
respondent was on O.P.-appellant; and such burden to prove this fact which cannot be shifted on
respondent. Therefore in absence of any such evidence, the available evidences were rightly
appreciated by lower courts. In these circumstances judgment of lower courts are not erroneous and
appeal should be dismissed.

11. The word ''Cruelty' has not been defined anywhere in the Act. The word appears to have
been used in the Section in context of human behaviour in relation to or in respect of matrimonial
obligations or duties. Cruelty can be termed as behaviour or conduct of one spouse which adversely
affects the other. Thus broadly speaking ''cruelty' as a ground for the purpose of divorce under
Section 13(1)(i-a) can be taken as a behaviour of one spouse towards the other which causes
reasonable apprehension in his or her mind that it is not safe to continue the matrimonial
relationship. Cruelty can be physical or mental or even intentional or unintentional. The mental
cruelty is difficult to establish by direct evidence. It is a matter of inference to be drawn from facts
and circumstances of the case. A feeling of anguish and frustration in one spouse caused by the
conduct of other can be appreciated on the assessment of facts and circumstances in which the two
of them have been living. The inference has to be drawn from overall facts and circumstances
considered cumulatively. The allegation of dowry demand and criminal misappropriation of her
property (through criminal cases) made by the appellant-wife against the respondent-husband is
nothing but mental cruelty of such a nature that respondent-husband cannot be reasonably asked to
live with the wife. It cannot be doubted that the appellant-husband must have suffered traumatic
experience because of the apprehension of arrest and confinement in prison and the probable loss of
reputation and prestige of the husband and his family in the society. The mental agony would also
amount to cruelty.

12. In V. Bhagat v. D. Bhagat, (1994) 1 SCC 337 the Apex Court had held:

"Mental cruelty in Section 13(1)(i-a) 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. In other words, mental cruelty must be of such a nature that the parties
124 INDIAN LAW REPORTS ALLAHABAD SERIES
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
is not necessary to prove that the mental cruelty is such as to cause injury to the health of the
petitioner. While arriving at such conclusion, 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 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 a matter to be determined in each case having regard to the
facts and circumstances of that case. If it is a case of accusations and allegations, regard must also
be had to the context in which they were made."

13. Mental cruelty and its effect cannot be stated with arithmetical accuracy. It varies from
individual to individual, from society to society and also depends on the status of the persons. What
would be mental cruelty in the life of two individuals belonging to a particular stratum of the
society may not amount to mental cruelty in respect of another couple belonging to a different
stratum of society. The agonized feeling or for that matter a sense of disappointment can take place
by certain acts causing a grievous dent at the mental level. The inference has to be drawn from the
attending circumstances.

14. The original petition of divorce was filed on ground of cruelty. So far as this point of
concerned, one proof of cruelty was the e-mail sent from the email address of appellant to email
address of her husband, in which she had apologized for her overt acts like several times hurting,
insulting and hitting husband on road and creating scenes. Its details are quoted in judgment of trial
court. The counsel for the appellant had contended that respondent-husband had knowledge of
password of his wife and he himself had e-mailed that letter of apology for creating evidences. He
contended that respondent-husband could not deny specifically as to whether he had knowledge of
email account of his wife or not. So this is proof of his mala fide and overt act.

15. Section 102 of Indian Evidence Act provides that the burden of proof lies on the person
who would fail if no evidence is adduced by either side. This particular point was taken by the
O.P.-wife that it was a forged and fabricated e-mail emanated from her e-mail account. Sending
such e-mailed letter was never denied. In present matter, it was burden on the appellant-wife to
prove that said e-mail was sent from her email account was, in fact, not sent by her, but was
fraudulently sent by respondent-husband. This fact could not be proved by her. Even for the sake of
argument, if it is considered that her husband had knowledge of her pass-word, in that case also
there is no evidence to prove that it was husband-respondent who had, in fact, sent that mail. The
concurrent finding of fact by the trial court as well as first appellate court regarding cruelty
committed by wife-appellant against her husband is based on meticulous scruitiny and appreciation
of evidences, which are not infirm or perverse. Such findings cannot be interfered in second appeal
without any sufficient reason.

16. The burden lies upon the respondent to establish the charge of cruelty, the question is as to
what is the standard of proof to be applied in order to judge whether the burden has been
5 All. Puja Suri Vs Bijoy Suri

125
discharged or not. The rule which will govern in matrimonial petitions is, that a fact could be
established, if it is proved by a preponderance of probabilities. Proof beyond a reasonable doubt is
a proof of a higher standard, which generally governs criminal trials or trials involving inquiry into
issues of a quasi criminal nature. Such proof beyond a reasonable doubt could not be imported in
matters of pure civil nature especially matrimonial matters.

17. In present matter living separately of the parties for long time, public insult,
embarrassment the appellant, the agony and humiliation suffered, charging him with allegations
and still facing prosecution for conviction amounts to cruelty by the appellant towards her husband.
On the basis of above discussion and considering the facts and circumstances of this matter, it
appears that relationship of parties had been deteriorated to the extent that there is no possibility of
any reconciliation. Their relationship have reached to the point from where there appears no
possibility of any harmonious conjugal relations or their being living together as husband and wife
and discharging matrimonial duties. It would mean that apart from other problems that had come in
their way, the main problem is the failure of sexual or matrimonial life, and no party appears eager
to restore those things. Even the mediation proceedings between the parties have failed.

18. The foundation of a sound marriage is tolerance, adjustment and respecting one another.
Taking out faults is expected and is bearable to a certain extent, but petty differences should not be
exaggerated or magnified to such an extent to destroy the fabric of marriage of what is supposedly
made in heaven. Such differences eventually lead to absence of mutual respect. Such absence of
mutual respect, in matrimonial matters would amount to cruelty. Cruelty in matrimonial matters
cannot be judged by any predetermined rigid formula. There can be any types of cruelty in
matrimonial matters. It may be indirect or atrocious. It can be by gestures or by words. It appear
that the categories of cruelty can never be defined.

19. Considering the subsequent events, it is found that the parties cohabited for a short
duration of about two and a half month. Then for the last 14 years, they are living separately. The
relationship has embittered as appellant had filed criminal cases, which are pending. They are still
hurling accusation against each other. Such accusation indicates in no uncertain terms that the spark
of love, affection or for that matter, infatuation, has evaporated. There is absence of mutual respect.
The behaviour of both the parties indicates the embittered relationship. Both are still undergoing
traumatic experience. It is, therefore, held that continuance of such relationship would amount to
mental cruelty.

20. For all practical purpose, it has become a dead marriage. In such a situation, the agony of
continuing the marriage should not be prolonged. Couple are still not old. A whole life is ahead of
them. They can start and build their lives afresh for which respondent had already started. It would
be a travesty of justice, if in such a situation, the parties are directed to live together for which no
one appears eager. Such direction would only bring more misery in their lives. The wife-appellant
is living separately for the last 14 years and nothing has been stated by her that during this period
she was laughed at or secluded by his family and friends. The possibility of hypothetical thought of
the appellant that he would be socially ostracized if the divorce is misconceived. Such
126 INDIAN LAW REPORTS ALLAHABAD SERIES
apprehension is an afterthought. The people's memory is short and one tends to forget the past.
Considering the age of the appellant she can still make a fresh start and raise a family. Appellant is
in apparently decent job and is not dependent financially or otherwise on anyone else.

21. Marriage is a delicate human relationship in which time flies with love and mutual respect,
but in present case the these elements had flied away with time. The marriage of parties had
become dead. In view of the aforesaid, considering the facts and peculiar circumstances of this
case, continuance of marriage would constitute cruelty. Consequently, the marriage cannot
continue any further and is dissolved. Therefore, it is held that the respondent is entitled to the
decree for dissolution of marriage under Section 13(1)(i-a) of the Hindu Marriage Act.

22. The orders of the trial court as well as first appellate court on point of cruelty committed
by wife-appellant against husband-respondent also are found correct which are hereby confirmed.
Therefore on the basis of the forgoing discussion, the decree for dissolution of marriage should be
granted on the ground of mental cruelty. The first substantial question of law is decided
accordingly in affirmative, against appellant and in favour of respondent. Accordingly the appeal is
liable to be dismissed on this ground alone.

23. Learned counsel for the appellant contended that the ground of ''irretrievable breakdown of
marriage' is not sustainable. He submitted that the ground of irretrievable breakdown of marriage
can be taken for granting the divorce by Supreme Court only in exercise powers under Article 142
of the Constitution of India, and this ground cannot be taken by any other Court including High
Court for granting relief of divorce, because such ground is not mentioned in Section 13 of the
Hindu Marriage Act. This legal plea was not denied by learned counsel for the respondent, who
contended that though parties had reached to the point of no return and their marriage had been
irretrievably broken down, which cannot be repaired, but such ground is not mentioned in Section
13 of the Hindu Marriage Act.

24. Hon'ble Apex Court had held in Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558 as
under:

"66. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu
Marriage Act, 1955. Because of the change of circumstances and for covering a large number of
cases where the marriages are virtually dead and unless this concept is pressed into service, the
divorce cannot be granted. Ultimately, it is for the legislature whether to include irretrievable
breakdown of marriage as a ground of divorce or not but in our considered opinion the legislature
must consider irretrievable breakdown of marriage as a ground for grant of divorce under the
Hindu Marriage Act, 1955."

25. Thus it is clear that the ground of irretrievable breakdown of marriage cannot be sustained
as ground for granting relief of divorce in matrimonial petition by the courts, except the Supreme
Court. This is a case wherein the parties had intimate friendship of a few years, then just before
their marriage their differences surfaced, but their marriage was solemnized anyhow on
5 All. Puja Suri Vs Bijoy Suri

127
12.10.2002; but they lived only for about two and a half months together till 27.12.2002, and from
then till now, they are continuously residing separately, quarreling and litigating. Many attempts of
re-conciliation at different stages of litigation had failed. During this period, appellant had filed
criminal case of criminal misappropriation of her articles against the husband, then after dismissal
of second appeal in default, the respondent had solemnized second marriage and has children from
this marriage and, then after restoration of second appeal appellant had filed criminal case for
bigamy against husband-respondent. Apart from it the appellant's application under section 156 (3)
CrPC for initiation of criminal case under section 498-A IPC etc. was filed and rejected, and the
revision against the said rejection order was also dismissed, then writ petition in that regard is
pending before the High Court for initiation of criminal prosecution against husband. In spite of it
they are continuing with legal quarrel through this second appeal also. In every pending petition
now the appellant-wife is the complainant-petitioner-appellant and respondent-husband is at
receiving end, and in spite of failure of all mediation attempts, the appellant is trying to get the
decree of divorce cancelled. What for, only God knows, especially in view of the evidences and
concurrent finding of two lower courts that she had never attempted to restore her matrimonial
relations. Thus, after living together for about two and a half months, they are in conflict with each
other and litigating for about 14 years and there appears no chances of their marriage being
retrieved, because firstly, as there is finding of fact of lower courts that appellant herself had not
tried to repair the damage caused to her marriage and live with her husband; and secondly, that
respondent-husband had performed another marriage and living with his second wife and two
children from this marriage, and still there appears no willingness of appellant to live with her
husband-respondent. But in spite of this case being of irretrievable breakdown of marriage, such
ground cannot be a ground of divorce as held by Hon'ble Apex Court.

26. Although ''irretrievable breakdown of marriage' is not a ground specifically mentioned in
Section-13 of the Hindu Marriage Act, but it, in fact, is the basis of the principle underlying decree
of divorce under this provision, as is evident from the meticulous appreciation of the provisions of
this Section. The grounds like cruelty, desertion of not less than two years, conversion to another
religion, unsoundness of mind, mental disorder, suffering from incurable leprosy, or venereal
disease in a communicable form, or renouncement of world, not been heard of as being alive for
seven years; or (as incorporated by U.P. State Amendment) reasonable apprehension of harm or
injury, non-cohabitation after judicial separation mentioned in Section 13 of the Hindu Marriage
Act leads to inference that when such situation has arisen that parties cannot live as spouse and
there appears no chances of their re-conciliation, which means the marriage has irretrievably
broken down of marriage and there is no chance of it being repaired, then under provisions of
Section 13, divorce should be granted. But as Hon'ble Apex Court held that this cause, in its
isolation, being not mentioned in Section 13, cannot be taken as ground for granting the divorce.
Therefore, although the lower courts had granted the divorce on two independent grounds of
cruelty and irretrievable breakdown of marriage, but the second ground of irretrievable breakdown
of marriage is exclusive within jurisdiction of Hon'ble Apex Court and is beyond jurisdiction of
any other Court in India; therefore, second substantial question of law is decided in affirmative and
in favour of appellant.
128 INDIAN LAW REPORTS ALLAHABAD SERIES

27. When it is obvious that the marriage between the two cannot, under any circumstances,
continue any further and the marriage becomes practically dead, then considering the matters of
''irretrievable breakdown of marriage', or where the repair of broken marriage becomes impossible,
it appears appropriate that such grounds may be accepted as ground for divorce. Therefore, this
Court suggests the Law Commission of the State to take appropriate steps to consider for
incorporating the ground of ''irretrievable breakdown of marriage' as grounds of divorce in Section
13 of the Hindu Marriage Act.

28. The point to be decided in this dispute was as to whether the appellant-wife had treated her
husband with cruelty or not. This was not a question of law, but was a question of fact that could
have been decided on the basis of evidences. As discussed above, the evidences in such matter are
dependent on facts and circumstances of other case. In present matter, both the lower courts had
found that appellant-wife had treated her husband-respondent with cruelty, due to which their
marriage had broken down beyond repairs. Thus, the finding of cruelty by two lower courts, which
is based on appreciation of evidences, is apparently correct and acceptable. Such concurrent finding
should not be interfered in second appeal by re-appreciation of evidences.

29. On examination of the reasonings recorded by the trial court, which are affirmed by the
first appellate court, I am of the view that the judgments of the two courts are well reasoned, and
are based upon proper appreciation of the evidence on record. No perversity or infirmity is found in
the concurrent findings of fact recorded by the trial court that has been affirmed by the first
appellate court to warrant interference in this appeal.

30. In view of the above, this appeal is dismissed.

31. Let a copy of this judgment be sent to Uttar Pradesh State law Commission for taking
appropriate measures.
----------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.05.2016

BEFORE

THE HON'BLE SUDHIR KUMAR SAXENA, J.

Criminal Revision No.- 352 Of 2016

Deepak Kumar Raidas ...Revisionist
Versus
State Of U.P. & Ors. ...Opposite Parties

Counsel for Revisionist:
Akash Dikshit