# Shailendra Kumar Singh v. Smt. Reeta Singh & Anr

- **Citation:** (2019) 4 ILRA 1043
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-19
- **Case number:** First Appeal No. 151 of 2012
- **Bench:** Anil Kumar, Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shailendra-kumar-singh-v-smt-reeta-singh-anr-44917
- **Pages:** 29

## Headnote

A. Civil Law - Hindu Marriage Act, 1955 -
Section
13
-
Divorce
-
Irretrievable
breakdown of marriage - it is the duty of
the Court while deciding an issue of divorce
whether the marriage between the parties
has broken down irretrievably or it is dead
emotionally & practically and there is no
chance of its being retrieved, before
compelling the parties to live with each
other - long separation tantamount to a
mental/physical cruelty. Divorce petition by
husband - Ground, husband and wife living
separately since 1998/99 and serious allegations
levelled against respondent wife of having illicit
relationship - Though husband failed to establish
his allegation of adultery - however as parties
living separately for the last two decades, for all
practical purposes, the marriage between the
parties is dead. Marriage broken down irretrievably
- Decree of divorce granted. (Para 54)

B. Pleadings and proof - Plaintiff can
succeed on the strength of his own case
and not on the correctness of the
defence - contradiction in the statement
given by respondent during her crossexamination. Yet, plaintiff cannot get
any benefit because plaintiff through his
evidence failed to prove the facts stated
in his plaint. (Para 34)

First Appeal allowed. (E-5)

List of cases cited: -

1.Naveen Kohli Vs Neelu Kohli AIR 2006 SC
1675; (2006) 4 SCC 558: JT 2006 (3) SC 491:
(2006) 3 SCALE 252

## Text

_Characters 0–39,905 of 96,993. This is a partial read: ask again with offset=39905 for what follows._

4 All. Shailendra Kumar Singh Vs. Smt. Reeta Singh & Anr.
1043

25. The appeal is allowed with the
aforesaid observation.
----------
(2019)12 ILR A1043

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.12.2019

BEFORE
THE HON'BLE ANIL KUMAR, J.
THE HON'BLE SAURABH LAVANIA, J.

First Appeal No. 151 of 2012

Shailendra Kumar Singh ...Appellant
Versus
Smt. Reeta Singh & Anr. ...Respondents

Counsel for the Appellant:
Manish Tripathi, Brij Mohan Sahai, Raj
Priya Srivastava, Rajiv Raman Srivastava,
Ravi Singh

Counsel for the Respondents:
Sahab Tiwari, Vyomkesh Chandra Shukla

A. Civil Law - Hindu Marriage Act, 1955 -
Section
13
-
Divorce
-
Irretrievable
breakdown of marriage - it is the duty of
the Court while deciding an issue of divorce
whether the marriage between the parties
has broken down irretrievably or it is dead
emotionally & practically and there is no
chance of its being retrieved, before
compelling the parties to live with each
other - long separation tantamount to a
mental/physical cruelty. Divorce petition by
husband - Ground, husband and wife living
separately since 1998/99 and serious allegations
levelled against respondent wife of having illicit
relationship - Though husband failed to establish
his allegation of adultery - however as parties
living separately for the last two decades, for all
practical purposes, the marriage between the
parties is dead. Marriage broken down irretrievably
- Decree of divorce granted. (Para 54)

B. Pleadings and proof - Plaintiff can
succeed on the strength of his own case
and not on the correctness of the
defence - contradiction in the statement
given by respondent during her crossexamination. Yet, plaintiff cannot get
any benefit because plaintiff through his
evidence failed to prove the facts stated
in his plaint. (Para 34)

First Appeal allowed. (E-5)

List of cases cited: -

1.Naveen Kohli Vs Neelu Kohli AIR 2006 SC
1675; (2006) 4 SCC 558: JT 2006 (3) SC 491:
(2006) 3 SCALE 252

2. Samar Ghosh Vs Jaya Ghosh (2007) 4 SCC
511: JT 2007 (5) 569: (2007) 5 SCALE 1:
(2007) 4 SCR 428

3. V. Bhagat Vs D. Bhagat (1994) 1 SCC 337
345

4. Saroj Rani Vs Sudarshan Kumar Chadha
(1984) 4 SCC 90

5. Romesh Chander Vs Savitri (1995) 2 SCC 7

6. Naveen Kohli Vs Neelu Kohli (2006) 4 SCC
558

7. Rishikesh Sharma Vs Saroj Sharma (2007) 2
SCC 263

8. Geeta Jagdish Mangtani Vs Jagdish
Mangtani (2008) 5 SCC 177

9. Satish Sitole Vs Smt. Ganga (2008) 7 SCC
734

10. Mohit Tandon Vs Preeti Tandon 2010 (2)
All CJ 1108

11. Sukhendu Das Vs Rita Mukherjee, 2017 (9)
SCC 432

12. Smt. Dr. Sarita Vs Dr. Vikas Kanaujia, First
Appeal No.31 of 2007, 22.08.2019

13. Girish Chandra Srivastava Vs Reeta
Srivastava reported 2019 SCC Online All 3554

14. Ravinder Kaur Vs Manjeet Singh, (2019) 8
SCC 308; 2019 SCC Online SC 1069 313
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
15. R. Srinivas Kaumar Vs R. Shametha,
(2019) 9 SCC 409

(Delivered by Hon'ble Anil Kumar,J.)

1. Heard Sri Brij Mohan Sahai and
Sri Raj Priya Srivastava, learned counsel
for the appellant. None is present on
behalf of the respondents.

2. By means of the instant appeal
under Section 19 of the Family Courts
Act, 1984 (in short "Act, 1984"), the
appellant has challenged the judgment
and order dated 05.09.2012, passed by the
Family Court, Faizabad in Suit No. 105 of
2000 (Shailendra Kumar Singh v. Smt.
Reeta Singh), whereby the
divorce
petition under Section 13 of the Hindu
Marriage Act, 1955 (in short "Act, 1955")
moved by the appellant was dismissed.

3. Facts, in brief, of the present case
as submitted by the learned counsel for
the appellant are to the effect that the
marriage between appellant-Shailendra
Kumar Singh and respondent-Smt. Reeta
Singh was solemnized as per the Hindu
Rites and Rituals on 18.04.1987. In the
year 1993, out of their wedlock, a
daughter namely Ankita was born.

4. It is further submitted by the
learned counsel for the appellant that in
the
meantime
the
appellant
got
appointment at District- Bahraich, so he
had to leave his home situated at
Dharupur, Ambedkar Nager leaving there
his wife and minor daughter.

5. Learned counsel for the appellant
further submitted that when appellant
returned to his home, he came to know
that his wife has made illicit relationships
with Sri Sunil Kumar Shahi @ Pappu and
one Sri Ram Shakal Singh. So, in view of
the said facts, some hot talks took place
between the appellant-Shailendra Kumar
Singh and respondent-Smt. Reeta Singh,
as a result of which, in the month of
September, 1998, the respondent-Smt.
Reeta Singh left her matrimonial house
and started living at her parental house in
District- Azamgarh.

6. Learned counsel for the appellant
further submitted that thereafter, the
appellant tried his best to pacify the issue,
however all the efforts went in vain, as
such, having no other alternative option
left, the appellant filed a petition on
06.03.2000 in the Court of Principal
Judge/ Family Court, Faizabad for divorce
under Section 13 (1)(i) of the Act, 1955,
which was registered as Regular Suit No.
105 of 2000 (Shailendra Kumar Singh v.
Smt. Reeta Singh).

7. Section 13 (1)(i) of the Act, 1955
reads as 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 of the wife,
be dissolved by a decree of divorce on the
ground that the other party-

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

8. On 04.01.2001, respondent-Smt.
Reeta Singh filed her written statement
and
thereafter,
she
also
filed
the
additional
written
statement
dated
16.11.2002/10.01.2003 on 10.01.2003.
The rebuttal was filed by the appellant on
10.11.2019.
4 All. Shailendra Kumar Singh Vs. Smt. Reeta Singh & Anr.
1045

9. Leaned counsel for the appellant
further submitted that thereafter, an
application for amendment of the plaint
was filed by the appellant and the same
was allowed and accordingly, the plaint
was amended and Sri Ram Shakl Singh
was impleaded as respondent No. 2 in the
petition filed by the appellant under
Section 13 of the Act, 1955 as well as
certain amendments were incorporated in
the facts of the case. The written
statement was also amended by moving
the application for amendment dated
03.09.2008.

10. Learned counsel for the
appellant further submitted that in order to
prove his case, in addition to the
documentary evidence, which were letters
written by the appellant as well as
respondent-Smt. Reeta Singh, on behalf
of the appellant, P.W.-1-Shailendra Singh
was examined and on behalf of defendant,
D.W.-1/Smt. Reeta Singh and DW-2/ Sri
Satya Prakash Singh were examined and
the evidence of Sri Ram Shakal Singh,
who was impleaded as respondent No. 2
was filed in the petition by way of an
affidavit.

11. Vide order dated 05.09.2012, the
Principal Judge, Family Court, Faizabad
dismissed the Regular Suit No. 105 of
2000 (Shailendra Kumar Singh v. Smt.
Reeta Singh).

12. Aggrieved by the order dated
05.09.2012, the present appeal has been
filed by the appellant-Sri Shailendra
Kumar Singh under Section 19 of the Act,
1984.

13. Learned counsel for the
appellant has pressed the present appeal
on the following grounds:-

(a) that the Court below has wrongly
dismissed the petition on the ground that
the appellant-Sri Shailendra Kumar Singh
failed to prove that the respondent-Smt.
Reeta Singh was living in adultery.

(b)
that
the
appellant-Sri
Shailendra
Kumar
Singh
and
the
respondent-Smt. Reeta Singh have got no
matrimonial relation since September,
1998 and they are living separately, as
such there is no possibility to live together
as husband and wife, so on the said
ground, the divorce petition should be
allowed.

14. Sri. Raj Priya Srivastava, learned
counsel for the appellant while pressing
the first point submitted that in the present
case, it is categorically stated by the
appellant way of pleadings that the
respondent-Smt. Reeta Singh had an illicit
relationship with Sri Sunil Kumar Shahi
@ Pappu. In this regard, he placed
reliance on paragraph No. 8 of the plaint.

15. In addition to the above facts,
learned counsel for the appellant also
submitted that the respondent-Smt. Reeta
Singh had also got an illicit relationship
with her Brother-in-Law (Jija)/husband of
her sister. In this regard, he placed
reliance on paragraph No. 6 of the petition
and on the basis of the averments made in
paragraph No. 9 of the petition, it is also
submitted by Sri. Raj Priya Srivastava,
learned counsel for the appellant that the
respondent-Smt. Reeta singh and Sri Ram
Shakal Singh were seen by her Bhabhi in
compromising position/situation.

16. It is also submitted by learned
counsel for the appellant that from the
letters which were written by the
appellant and the respondent-Smt. Reeta
Singh, it is clearly established that
respondent-Smt. Reeta singh had illicit
1046 INDIAN LAW REPORTS ALLAHABAD SERIES
relationships with Sri Sunil Kumar Shahi
@ Pappu and with Ram Shakal Singh.

17. In this regard, learned counsel
for the appellant placed reliance on the
statement given by DW-1/respondentSmt. Reeta Singh and submitted that in
view of the said statement given by
respondent-Smt. Reeta Singh in her cross
examination, the order which has been
passed by the trial Court on the basis of
evidence led by the parties, thereby
dismissing the petition of the appellant, is
contrary to law and, as respondent-Smt.
Reeta Singh gave contradictory statement
as D.W. 1, as such her evidence cannot be
considered as reliable.

18. The relevant portion of the
statement given by DW-1/respondentSmt.
Reeta
Singh
in
her
crossexamination is quoted below:-

Þ;g dguk xyr gS fd og xHkZikr
uktk;t FkkA ;g dguk xyr gS fd eq>s
uktk;t xHkZ Fkk ftls fNikus ds fy, xHkZikr
djk;kA eSusa 'kknh ds ckn vius ifr dks vusdksa
i= fy[kk gSA xokg us i=koyh esa nkf[ky
dkxt la0&65@x i= dks ns[kdj dgk ;g esjs
}kjk esjs ifr dks fy[kk x;k gSA

;g dguk xyr gS fd esjs o jke
'kdy ds lEcU/k ls xHkZ gks x;k Fkk vkSj jke
'kdy flag us xHkZikr djk;k FkkA xHkZikr esjs
cgu us djk;k ;g ckr ogh crk ldrh gSA eSa
xHkZikr vLirky dk uke ugha crk ldrhA jkts
lqyrkuiqj esa esjk xHkZikr ugha gqvk FkkAÞ

19. Learned counsel for the
appellant while pressing the second point
submitted that from the material available
on record, it is clearly established that the
appellant and respondent-Smt. Reeta
Singh
are
living
separately
since
September 1998, as pleaded by the
appellant in his petition and the same is
also supported by the statement given by
the respondent-Smt. Reeta Singh in her
statement that they are living separately
since 1999. Learned Counsel for the
appellant
submitted
that
there
is
irretrievable
breakdown
of
marriage
between the parties, it is on the ground of
serious allegation of adultery and separate
living admittedly since the year 1999, as
such the trial Court should have granted
the decree of divorce on the said ground.
In support of his argument, learned
counsel for the appellant placed reliance
on the judgments of Hon'ble Apex Court
in the case of Naveen Kohli v. Neelu
Kohli reported in AIR 2006 SC 1675 :
(2006) 4 SCC 558 : JT 2006 (3) SC 491 :
(2006) 3 SCALE 252 and Samar Ghosh
v. Jaya Ghosh reported in (2007) 4 SCC
511 : JT 2007 (5) 569 : (2007) 5 SCALE
1 : (2007) 4 SCR 428.

20. Accordingly, it is submitted by
the learned Counsel for the appellant that
the judgment and decree passed by the
trial Court may be set aside and divorce
petition may be allowed.

21. We have heard learned counsels
for the appellant and perused the record.

22. As per the admitted facts of the
present case, the marriage between the
appellant and respondent-Smt. Reeta
Singh was solemnized on 18.4.1987, as
per the Hindu Rights and Rituals. In the
year 1993, out of the wedlock of appellant
and respondent-Smt. Reeta Singh, one
baby girl namely Ankita was born.
Thereafter, the matrimonial relations
between the appellant and respondentSmt. Reeta Singh became estranged, as
such respondent-Smt. Reeta Singh/wife of
the appellant, as admitted by her, started
living separately since 1999. Thereafter,
4 All. Shailendra Kumar Singh Vs. Smt. Reeta Singh & Anr.
1047
the appellant filed a divorce petition under
Section 13(1)(i) of the Act, 1955 on the
ground
of
illicit
relationship
of
respondent-Smt. Reeta Singh with other
persons, which was registered as petition
No. 105 of 2000 (Shailendra Singh v.
Smt. Reeta Singh) before the Principal
Judge/Family Court, Faizabad and was
dismissed on 5.09.2012.

23. During the pendency of the
present appeal, learned counsel for the
parties submitted that there is a likelihood
that the dispute may be amicably settled
between the parties. So in view of the said
facts, this Court took steps for settlement
of dispute between the parties amicably
settled, however, the dispute could not be
settled amicably settled between the
parties at the behest of respondent-Smt.
Reeta Singh.

24. So far as the first argument
which has been raised by learned Counsel
for the appellant, on the ground of
adultery, is
concerned,
we feel
it
appropriate to have the meaning of word
"Adultery", provided under Section 497
of CPC, which reads as under:-

"497.
Adultery.--Whoever
has
sexual intercourse with a person who is and
whom he knows or has reason to believe to be
the wife of another man, without the consent
or connivance of that man, such sexual
intercourse not amounting to the offence of
rape, is guilty of the offence of adultery, and
shall be punished with imprisonment of either
description for a term which may extend to
five years, or with fine, or with both. In such
case the wife shall not be punishable as an
abettor."

Clause (i) : Adultery as per Mulla,
Hindu Law,21st Edition 2010 P. 906
under chapter IV, Nullity of Marriage
And Divorce.

25. By way of amendment in the Act
of 1976, Section 13(1)(i) has been
introduced in the Act, 1955 and as per the
same, a petition of divorce can lie at the
instance of the husband or the wife , if the
other party has after the solemnization of
the marriage committed even a single act
of adultery. It must also be noticed that to
bring a case under this section it is not
necessary
now
to
show
that
the
respondent is living in adultery. The
benefit of this liberalized provision can be
availed of even in an appeal pending at
the commencement of the amending act.
It must also been noticed that the
expression ''adultery' has not been used in
the cause and instead the word are ''had
voluntary sexual intercourse with any
other person other than his or her spouse'.
Adultery in matrimonial law is one of the
principal grounds for relief, and has been
defined as consensual sexual intercourse
between a married person and another
person of the opposite sex during the
subsistence of the marriage. An attempt to
commit adultery must be distinguished fro
adultery, and will not of itself be
sufficient ground for relief.

26. Direct proof of adultery is not
imperative. It would be unreasonable to
expect direct evidence and such evidence
if bought before the court, must be
suspected and is at to be disbelieved. The
accepted
rule,
therefore,
is
that
circumstantial evidence is all that can
normally be expected in proof of the
charge. The circumstances must be such
as to lead to fair inference, as a necessary
conclusion; and unless thiswas so, no
protection whatever could be given to
marital rights. It is impossible to indicate
those circumstances universally, because
1048 INDIAN LAW REPORTS ALLAHABAD SERIES
they might be infinitely diversified by the
situation and character of the parties, by the
state of the general manners, and by many
other incidental circumstances, apparently
slight and delicate in themselves, but which
may have important bearing upon the
particular case. The only general rule upon the
subject is, that the circumstances must be such
as would lead the guarded judgment of a
reasonable and just man to the conclusion.
The facts usually are not of a complicated
nature, nut determinable upon common
grounds of reason, it is in consequence of this
rule that it is not necessary to prove a fact of
adultery in time and place. Nor is it absolutely
incumbent on the petitioner to prove the
identity of the person with whom the alleged
act of adultery took place. A spouse is not
entitled to a decree on allegations arising out
of
suspicion
created
by
surrounding
circumstances, for such allegations would
have to be proved. Mere suspicion is not
enough to avail of a remedy under the section.
The High Court of Madhya Pradesh
distinguishing the judgment of the Supreme
Court in V. Bhagat v. D. Bhagat, and
Chetandass v. Kamladevi, and the decision of
Chanralekha Trivedi has held that when
alleged serious allegation about the character
of the spouse were not proved and he has also
not
cooperated
in
the
reconciliation
proceedings, no decree of divorce could be
passed.

27. The Hon'ble Apex Court in the
case of V. Bhagat v. D. Bhagat, reported
in (1994) 1 SCC 337 345, after taking
into consideration other judgments on the
point in issue in para Nos. 13 to 18 held
as under:-

"13. Cruelty contemplated by
the sub-clause is both physical and
mental. We are concerned herein with the
latter. It is not possible to define ''mental
cruelty' exhaustively. As observed by Lord
Reid in Gollins v. Gollins [1964 AC 644 :
(1963) 2 All ER 966] :

 "No one has ever attempted to
give a comprehensive definition of cruelty
and I do not intend to try to do so. Much
must depend on the knowledge and
intention of the respondent, on the nature
of his (or her) conduct, and on the
character
and
physical
or
mental
weaknesses of the spouses, and probably
no general statement is equally applicable
in all cases except the requirement that
the party seeking relief must show actual
or probable injury to life, limb or health.

It is easy to see that the origin
of this requirement is the decision in the
well-known case of Russell v. Russell
[(1895-99) All ER Rep 1 : (1897) AC 395]
."

To the same effect are the
observations of Lord Pearce (at p. 695;
All ER p. 992):

"It is impossible to give a
comprehensive definition of cruelty, but
when reprehensible conduct or departure
from the normal standards of conjugal
kindness causes injury to health or an
apprehension of it, it is, I think, cruelty if
a reasonable person, after taking due
account of the temperament and all the
other particular circumstances would
consider that the conduct complained of is
such that this spouse should not be called
on to endure it.

***

I agree with Lord Merriman
whose practice in cases of mental cruelty
was always to make up his mind first
whether there was injury or apprehended
injury to health. In the light of that vital
fact the court has then to decide whether
the sum total of the reprehensible conduct
was cruel. That depends on whether the
4 All. Shailendra Kumar Singh Vs. Smt. Reeta Singh & Anr.
1049
cumulative
conduct
was
sufficiently
weighty to say that from a reasonable
person's
point
of
view,
after
a
consideration of any excuse which this
respondent
might
have
in
the
circumstances, the conduct is such that
this petitioner ought not to be called on to
endure it.

***

The particular circumstances of
the home, the temperaments and emotions
of both the parties and their status and
their way of life, their past relationship
and almost every circumstance that
attends the act or conduct complained of
may all be relevant."

The reference to "injury to life,
limb or health" in the above passages
must be understood in the context of the
requirements of the divorce law then
obtaining in the United Kingdom.

14. The change of law brought
about by the Hindu Marriage Laws
(Amendment) Act, 1976 deserves notice.
Prior to the said Amendment Act, cruelty
was not a ground for claiming divorce
under the Hindu Marriage Act. It was a
ground
only
for
claiming
judicial
separation under Section 10. By the said
Amendment Act, cruelty was made a
ground for divorce as well -- evidently in
recognition of the changing mores of the
society. While doing so, it is significant,
the words "as to cause a reasonable
apprehension in the mind of the petitioner
that it will be harmful or injurious for the
petitioner to live with the other party,"
qualifying the expression "cruelty" in
Section
10(1)(b),
were
omitted
by
Parliament. It is, therefore, not necessary
for the party claiming divorce to prove
that the cruel treatment is of such a
nature as to cause an apprehension -- a
reasonable apprehension -- in his/her
mind that it will be harmful or injurious
for him/her to live with the other party.
Now what does this change mean? Surely,
the deletion of the said words could not
have been without a purpose. The cruelty
of the nature described in Section
10(1)(b) has been explained in this
Court's decision in N.G. Dastane v. S.
Dastane [(1975) 2 SCC 326 : AIR 1975
SC 1534] . Chandrachud, J. speaking for
the Bench, held that where an allegation
of cruelty is made, the enquiry has to be -

"... whether the conduct charged
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".

The learned Judge held further:
(SCC pp. 337-38, paras 30-31)

"It is not necessary, as under the
English law, that the cruelty must be of such a
character as to cause ''danger' to life, limb or
health or as to give rise to a reasonable
apprehension of such a danger. Clearly,
danger to life, limb or health or a reasonable
apprehension of it is a higher requirement
than a reasonable apprehension that it is
harmful or injurious for one spouse to live
with the other. ... But under Section 10(1)(b),
harm or injury to health, reputation, the
working-career or the like, would be an
important
consideration
in
determining
whether the conduct of the respondent
amounts to cruelty. Plainly, what we must
determine is not whether the petitioner has
proved the charge of cruelty having regard to
the principles of English law, but whether the
petitioner proves that the respondent has
treated him with such cruelty as to cause a
reasonable apprehension in his mind that it
will be harmful or injurious for him to live
with the respondent."

This requirement is no longer
present in Section 13(1)(i-a).
1050 INDIAN LAW REPORTS ALLAHABAD SERIES

15. If so, the question arises
what kind of cruel treatment does clause
(i-a) contemplate? In particular, what is
the kind of mental cruelty that is required
to be established? While answering these
questions, it must be kept in mind that the
cruelty mentioned in clause (i-a) is a
ground now for divorce as well as for
judicial separation under Section 10.
Another circumstance to be kept in mind
is that even where the marriage has
irretrievably broken down, the Act, even
after the 1976 (Amendment) Act, does not
permit dissolution of marriage on that
ground. This circumstance may have to be
kept in mind while ascertaining the type
of cruelty contemplated by Section
13(1)(i-a).

16. 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 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.

17. At this stage, we may refer
to a few decisions of this Court rendered
under Section 13(1)(i-a). In Shobha Rani
v. Madhukar Reddi [(1988) 1 SCC 105 :
1988 SCC (Cri) 60] , Justice K.
Jagannatha Shetty, speaking for the
Division Bench, held: (SCC pp. 108-09,
paras 4 and 5)

"Section 13(1)(i-a) uses the
words
''treated
the
petitioner
with
cruelty'. The word ''cruelty' has not been
defined. Indeed it could not have been
defined. It has been used in relation to
human conduct or human behaviour. It is
the conduct in relation to or in respect of
matrimonial duties and obligations. It is a
course of conduct of one which is
adversely affecting the other. The cruelty
may be mental or physical, intentional or
unintentional. If it is physical the court
will have no problem to determine it. It is
a question of fact and degree. If it is
mental the problem presents difficulty.
First, the enquiry must begin as to the
nature of the cruel treatment. Second, the
impact of such treatment on the mind of
the spouse. Whether it caused reasonable
apprehension that it would be harmful or
injurious
to
live
with
the
other.
Ultimately, it is a matter of inference to
be drawn by taking into account the
nature of the conduct and its effect on the
complaining spouse. There may, however,
be cases where the conduct complained of
itself is bad enough and per se unlawful
or illegal. Then the impact or the
injurious effect on the other spouse need
not be enquired into or considered. In
such cases, the cruelty will be established
if the conduct itself is proved or admitted.
4 All. Shailendra Kumar Singh Vs. Smt. Reeta Singh & Anr.
1051

It will be necessary to bear in
mind that there has been marked change
in the life around us. In matrimonial
duties and responsibilities in particular,
we find a sea change. They are of varying
degrees from house to house or person to
person. Therefore, when a spouse makes
complaint about the treatment of cruelty
by the partner in life or relations, the
court should not search for standard in
life. A set of facts stigmatised as cruelty in
one case may not be so in another case.
The cruelty alleged may largely depend
upon the type of life the parties are
accustomed to or their economic and
social conditions. It may also depend
upon their culture and human values to
which they attach importance. We, the
judges and lawyers, therefore, should not
import our own notions of life. We may
not go in parallel with them. There may
be a generation gap between us and the
parties. It would be better if we keep aside
our customs and manners. It would be
also better if we less depend upon
precedents. Because as Lord Denning
said in Sheldon v. Sheldon [(1966) 2 All
ER 257, 259 : (1966) 2 WLR 993] ''the
categories of cruelty are not closed'. Each
case may be different. We deal with the
conduct of human beings who are not
generally similar. Among the human
beings there is no limit to the kind of
conduct which may constitute cruelty.
New type of cruelty may crop up in any
case
depending
upon
the
human
behaviour, capacity or incapability to
tolerate the conduct complained of. Such
is the wonderful (sic) realm of cruelty."

It was a case where the wife was
a postgraduate in biological sciences
while the husband was a doctor. The wife
moved the court for divorce on the ground
of cruelty. According to her, she had an
amount of Rupees two lakhs in fixed
deposit in a bank apart from a house
property, that her mother-in-law used to
make constant demands of money, and
that the respondent-husband supported
his mother therein. She did not report the
same to her parents because she was
afraid that if she informed her parents,
something may be done to her. The
respondent-husband himself admitted in a
letter written to the wife that the demand
for dowry by his parents was nothing
wrong. On the above facts, it was held
that the ground of cruelty was established
and divorce was granted. The following
further observations of Shetty, J. appear
to us relevant: (SCC pp. 114-15, para 18)

"Section 13(1)(i-a) of the Hindu
Marriage Act provides that the party has
after solemnization of the marriage
treated the petitioner with cruelty. What
do these words mean? What should be the
nature of cruelty? Should it be only
intentional, wilful or deliberate? Is it
necessary to prove the intention in
matrimonial offence? We think not. We
have earlier said that cruelty may be of
any kind and any variety. It may be
different in different cases. It is in relation
to the conduct of parties to a marriage.
That conduct which is complained of as
cruelty by one spouse may not be so for
the other spouse. There may be instances
of cruelty by the unintentional but
inexcusable conduct of any party. The
cruel treatment may also result by the
cultural conflict of the spouse. In such
cases, even if the act of cruelty is
established, the intention to commit
suicide
cannot
be
established.
The
aggrieved party may not get relief. We do
not think that that was the intention with
which the Parliament enacted Section
13(1)(i-a) of the Hindu Marriage Act. The
context and the set up in which the word
''cruelty' has been used in the section,
1052 INDIAN LAW REPORTS ALLAHABAD SERIES
seems to us, that intention is not a
necessary element in cruelty. That word
has to be understood in the ordinary
sense of the term in matrimonial affairs. If
the intention to harm, harass or hurt
could be inferred by the nature of the
conduct or brutal act complained of,
cruelty could be easily established. But
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. The relief to the
party cannot be denied on the ground that
there has been no deliberate or wilful illtreatment."

18. In Chanderkala Trivedi v.
Dr S.P. Trivedi [(1993) 4 SCC 232 : 1993
SCC (Cri) 1154 : (1993) 3 Scale 541] the
husband sued for divorce on the ground
of cruelty by wife. The wife filed a written
statement wherein she attributed adultery
to the husband. In reply thereto the
husband put forward another allegation
against the wife that she was having
undesirable association with young boys.
Considering the mutual allegations, R.M.
Sahai, J. speaking for Division Bench,
observed: (SCC p. 233, para 2)

"Whether the allegation of the
husband that she was in the habit of
associating with young boys and the
findings recorded by the three courts are
correct or not but what is certain is that
once such allegations are made by the
husband and wife as have been made in
this case then it is obvious that the
marriage of the two cannot in any
circumstance be continued any further.
The marriage appears to be practically
dead as from cruelty alleged by the
husband it has turned out to be at least
intimacy of the husband with a lady
doctor and unbecoming conduct of a
Hindu wife. (also see: Chintala Syamala
v. Chintala Venkata Satyanarayana Rao,
(2008) 10 SCC 711 : (2009) 1 SCC (Cri)
90 and Vijaykumar Ramchandra Bhate
v. Neela Vijaykumar Bhate, (2003) 6
SCC 334 )."

28. Now, reverting to the facts of the
present case, as per the pleadings of the
appellant in this appeal, he has stated that
his wife has got illicit relationship with
(a) Sri Sunil Kumar Shahi @ Pappu and
(b) Ram Shakal Singh/respondent No.
2/Jija of respondent-Smt. Reeta Singh.

29. So far as the assertion made by
the appellant in respect to the illicit
relationship of respondent-Smt. Reeta
Singh with Sri Sunil Kumar Shahi @
Pappu and Ram Shakal Singh/respondent
No. 2/Jija of respondent-Smt. Reeta Singh
is concerned, as pleaded in the appeal, the
foundation laid down in this regard is to
the effect that Bhabi of respondent-Smt.
Reeta Singh seen her with Sri Sunil
Kumar Shahi @ Pappu, as pleaded in
paragraph 6. The said fact has to be
proved by the appellant, but the appellant
has not proved or established the said fact.

30. At this stage, it is relevant to
mention here that during the pendency of
the litigation Sri Sunil Kumar Shahi @
Pappu died and the appellant did not
produce his Bhabhi, who allegedly had
seen respondent-Smt. Reeta Singh with
Pappu @ Sunil Kumar, as pleaded in the
appeal.

31. So far as the matter in respect to
illicit relationship with Ram Shakal Singh
is concerned, as pleaded in the appeal, the
same is based on the letters of respondentSmt. Reeta Singh. However, a perusal of
the said letters which is on record, it is not
clearly established that the contents of the
4 All. Shailendra Kumar Singh Vs. Smt. Reeta Singh & Anr.
1053
said letter in any way establish that there
was illicit relationship of respondent-Smt.
Reeta Singh either with Sri Sunil Kumar
Shahi @ Pappu or with Ram Shakal Singh
rather the appellant was not able to prove
the said fact by way of any evidence.

32. Further in the matter in question,
Ram Shakal Singh, against whom the
appellant allegedly averred to have illicit
relationship with respondent-Smt. Reeta
Singh, has produced his evidence by way
of filing an affidavit on behalf of the
defendants,
but
he
was
not
cross
examined by the appellant in order to
establish the fact of illicit relationship of
his wife with Ram Shakal Singh.

33. In view of the aforesaid reasons,
we are of the view that the appellantShailendra Singh failed to establish his
case in regard to allegation of adultery, on
which ground he sought the divorce
decree.

34. So far as the argument as made
by learned counsel for the appellant that
the contradictory statement was given by
the respondent-Smt. Reeta Singh, when
examined as witness-D.W-1, as stated
hereinabove, we would like to say that no
doubt there is a contradiction in the
statement given by respondent-Smt. Reeta
Singh during her cross-examination, but
on the said score the appellant cannot get
any benefit because the appellant through
his evidence failed to prove the facts
stated in his plaint. In the instant case,
from the material available on record the
ground of adultery, which has been taken
by the appellant against Sri Sunil Kumar
Shahi @ Pappu and respondent No. 2Ram Shakal Singh has not been proved by
him on the basis of evidence which has
been
led
by
him
either
oral
or
documentary. Needless to say that it is a
principle that "plaintiff can succeed on the
strength of his own case and not on the
correctness of the defence."

35. Now, the second point which is
to be considered in the present case is
whether the divorce decree can be granted
on the ground of irretrievable breakdown
of marriage keeping in view the facts that
the appellant and the respondent-Smt.
Reeta Singh are living separately since
1998/99 and serious allegations have been
levelled against respondent-Smt. Reeta
Singh.

36. From the material available on
record, the position which emerges out is
to the effect that, as per the case of the
appellant, the respondent-Smt. Reeta
Singh left her matrimonial house and
started living with her parents since
September, 1999.

37. However, in the statement,
respondent-Smt.
Reeta
Singh/D.W.-1
stated as under:-

ÞeSa lu~ 1999 esa llqjky ls vf[kjh
ckj ek;ds xbZA rc ls eSa ek;ds esa gwaA ek;ds
tkus o lu~ 2000 ds chp eSaus dksbZ izkFkZuk i=
ngst ds eqdnes ds igys ugha fn;kA esjh cgu
vk'kk jkts lqyrkuiqj esa v/;kfidk gSA eSa dgha
ugha i<+krh gwaA ;g dguk xyr gS fd esjk jke
'kdy flag ls uktk;t lEcU/k Fkk ftldh
otg ls uktk;t xHkZ Fkk mls eSus fxjk fn;kA
;g Hkh dguk xyr gS fd eSaus viuh pfj=
ghurk ds {kek ds lEcU/k esa ifr dks dbZ ckj
i= fy[kk cfYd lkl ls >xM+k gksus dh otg
ls ifr dks i= fy[kk FkkA ß

38. In view of the aforesaid facts,
the position which emerges out is to the
effect that the appellant and respondentSmt. Reeta Singh are living separately for
1054 INDIAN LAW REPORTS ALLAHABAD SERIES
the last 20 years and further between
them, various criminal proceedings were
taken place. So, now the question which
is to be considered is to the effect that
"can a suit of appellant be decreed for
divorce on the ground of irretrievable
breakdown of marriage due to long
separation, as the same tantamounts to a
mental/physical cruelty?"

39. The word 'cruelty' has not been
defined in the Hindu Marriage Act. It has
been used in Section 13 (1) (i-a) of the act
in the context of human conduct or
behaviour in relation to or in respect of
matrimonial duties or obligations. It is a
course of conduct of one which is
adversely affecting the other. The cruelty
may be mental or physical, intentional or
unintentional. If it is physical it is a
question of fact and degree. If it is mental,
the eqnuiry must begin as to the nature of
the cruel treatment and then as to the
impact of such treatment on the mind of
the spouse. 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.

40. Hon'ble the Apex Court in the
case of Saroj Rani Vs. Sudarshan Kumar
Chadha, (1984) 4 SCC 90, 98, where it
was held that court's satisfaction about
permanent breakdown of the marriage
may serve as an additional justification
for granting divorce. Where on facts the
marriage has broken down and the parties
can no longer live together the court
should have no compunction in granting
the divorce.

41. In the case of V. Bhagat v. D.
Bhagat, (1994) 1 SCC 337, the Apex
Court held that mental cruelty means 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, must be of such a
nature
that
the
parties
could
not
reasonably be expected to live together.
Regard must be had to the social status,
education level of the parties and the
society they move.

42. In Romesh Chander Vs. Savitri,
(1995) 2 SCC 7, Hon'ble Supreme Court
again held that when marriage is dead,
emotionally and practically, and there is
no
chance
of
its
being
retrieved,
continuance of it would be cruelty within
the meaning of Section 13 (1) (i-a) of the
Act.

43. In the case of Naveen Kohli Vs.
Neelu Kohli, (2006) 4 SCC 558, the
Hon'ble Supreme Court observed as
hereunder :-

"32. Both the parties have
levelled allegations against each other for
not maintaining the sanctity of marriage
and involvement with another person.
According
to
the
respondent,
the
appellant is separately living with another
woman "Shiva Nagi". According to the
appellant, the respondent was seen
indulging in an indecent manner and was
found in a compromising position with
one Biswas Rout. According to the
findings of the trial court both the parties
failed to prove the allegations against
each other. The High Court has of course
reached the conclusion that the appellant
was living with one "Shiva Nagi" for a
considerable number of years. The fact of
the matter is that both the parties have
been living separately for more than 10
years. A number of cases including
criminal complaints have been filed by the
4 All. Shailendra Kumar Singh Vs. Smt. Reeta Singh & Anr.
1055
respondent against the appellant and
every effort has been made to harass and
torture him and even to put the appellant
behind the bars by the respondent. The
appellant has also filed cases against the
respondent.

38. D.