# Shri Vishnu Shankar Pandey v. Smt. Maya Pandey

- **Citation:** (2020) 2 ILRA 1011
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-20
- **Case number:** First Appeal No. 780 of 2017
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-vishnu-shankar-pandey-v-smt-maya-pandey-45310
- **Pages:** 16

## Headnote

A. Hindu Marriage Act (25 of 1955) -
S.13(1)(ia),
S.13(1)(ib)
-
Divorce
-
Fulfilment of any one of the grounds
mentioned in Section 13 by itself is
sufficient to grant divorce - cruelty and
desertion are independent grounds of
divorce & are not inter-dependant and
have to be proved independently by
direct evidence (Para 12)

B. Hindu Marriage Act (25 of 1955) -
S.13(1)(ia) - Divorce - Cruelty - Plaintiff
must plead specific instances of 'cruelty'
or make such allegations of 'cruelty'
which if considered cumulatively, lead to
a reasonable apprehension in the mind of
other that it would be harmful or
injurious to reside with other spouse
1012 INDIAN LAW REPORTS ALLAHABAD SERIES
Allegations in plaint do not spell out any
specific
instances
of
'cruelty'
but
only
allegations of 'cruelty' - No such allegations of
cruelty which lead to reasonable apprehension
that it would be harmful or injurious to reside
with wife (Para 24)

C. Hindu Marriage Act (25 of 1955) -
S.13(1)(ib) - Divorce - Desertion - Prerequisite for grant of divorce on ground of
desertion - Plaintiff required to plead that
defendant deserted plaintiff for a continuous
period of not less than two years immediately
preceding the presentation of the petition -
Period subsequent to institution of suit
cannot be taken into consideration for
determining
desertion
on
the
part
of
respondent in a suit for divorce

Husband alleged that wife deserted him on
10.11.2008 - Divorce suit instituted on 21.03.2009 -
Held - Husband was required to plead that wife
deserted him for a continuous period of not less
than
two
years
immediately
preceding
the
presentation of the petition - husband failed to
establish desertion on part of wife for continuous
period of two years prior to institution of suit -
Husband not entitled to divorce (Para 12, 26, 27)

First Appeal dismissed. (E-5)

List of cases cited :

## Text

_Characters 0–39,903 of 54,527. This is a partial read: ask again with offset=39903 for what follows._

2 All. Shri Vishnu Shankar Pandey Vs. Smt. Maya Pandey
1011
complete go bye by Court below and in
absence of ascertaining as to which
document is admissible, we find no option
but to remand the matter by setting aside
the judgement dated 10.9.2008 and decree
dated 24.9.2008, directing Court below to
first observe the procedure of admission of
documents in evidence and thereafter
decide the matter afresh, in accordance
with law. The point for determination
formulated above is answered by holding
that the judgement and decree passed by
Court below is not founded on valid
evidence and Court below has erred in law
in not following the procedure prescribed
for admitting documents in evidence."

22. In the present case also,
documents filed by parties have not
been marked, 'exhibits'. There is no
endorsement
made
personally
by
Presiding Judge of Court below on the
documents so filed, admitting them in
evidence. Thus, what was the evidence
which was relied upon by Court below
is shrouded in obscurity. Therefore,
Judgment passed by Court below is
upon basis of such documents which
did not form part of documentary
evidence adduced by parties. In fact,
there was no such document which was
legally admitted in evidence. Procedure
adopted by court below is in total
ignorance of Order 13, Order 8 C.P.C.
as well as Rules 40 to 69 of Chapter 3
Part C of General Rules (Civil). In the
result, trial of Original Suit No. 15 of
2010 (Gulabpati Vs. Smt. Pushpa Rani
Pandey is held to be erroneous.

23. Consequently, present First
Appeal
succeeds
and
is
allowed.
Judgment dated 28.10.2005 and decree
dated 30.10.2005 passed by Principal
Judge, Family Court, Basti in O.S. No.
626 of 2015 (Gulabpati Vs. Smt.
Pushpa Rani Pandey and others) are
hereby set aside. Matter is remanded to
Court
below
for
decision
afresh
keeping in mind the observations made
hereinabove.

24. In the facts and circumstances
of the case, we make the cost easy.
----------
(2020)02ILR A1011

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.12.2019

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

First Appeal No. 780 of 2017

Shri Vishnu Shankar Pandey ...Appellant
Versus
Smt. Maya Pandey ...Respondent

Counsel for the Appellant:
Sri Harish K. Yadav, Sri Harish Kr. Yadav

Counsel for the Respondent:
Sri Brijesh Shukla, Sri Arvind Kumar Tiwari

A. Hindu Marriage Act (25 of 1955) -
S.13(1)(ia),
S.13(1)(ib)
-
Divorce
-
Fulfilment of any one of the grounds
mentioned in Section 13 by itself is
sufficient to grant divorce - cruelty and
desertion are independent grounds of
divorce & are not inter-dependant and
have to be proved independently by
direct evidence (Para 12)

B. Hindu Marriage Act (25 of 1955) -
S.13(1)(ia) - Divorce - Cruelty - Plaintiff
must plead specific instances of 'cruelty'
or make such allegations of 'cruelty'
which if considered cumulatively, lead to
a reasonable apprehension in the mind of
other that it would be harmful or
injurious to reside with other spouse
1012 INDIAN LAW REPORTS ALLAHABAD SERIES
Allegations in plaint do not spell out any
specific
instances
of
'cruelty'
but
only
allegations of 'cruelty' - No such allegations of
cruelty which lead to reasonable apprehension
that it would be harmful or injurious to reside
with wife (Para 24)

C. Hindu Marriage Act (25 of 1955) -
S.13(1)(ib) - Divorce - Desertion - Prerequisite for grant of divorce on ground of
desertion - Plaintiff required to plead that
defendant deserted plaintiff for a continuous
period of not less than two years immediately
preceding the presentation of the petition -
Period subsequent to institution of suit
cannot be taken into consideration for
determining
desertion
on
the
part
of
respondent in a suit for divorce

Husband alleged that wife deserted him on
10.11.2008 - Divorce suit instituted on 21.03.2009 -
Held - Husband was required to plead that wife
deserted him for a continuous period of not less
than
two
years
immediately
preceding
the
presentation of the petition - husband failed to
establish desertion on part of wife for continuous
period of two years prior to institution of suit -
Husband not entitled to divorce (Para 12, 26, 27)

First Appeal dismissed. (E-5)

List of cases cited :

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

2. Ravi Kumar Vs Julmi Devi 2010 (4) SCC 476

3. Srinivas Rao Vs D. A. Deepa 2013 (5) SCC 226

4. N.G. Dastane Vs S. Dastane (1975) 2 SCC 326

5. A. Jaya Chandra Vs Aneel Kaur 2005 (2) SCC 22

6. K. Srinivas Rao Vs D.A. Deepa (2013) 5 SCC 226

7. Neelam Kumar Vs Dayarani 2010 (13) SCC 298

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

1. Challenge in this appeal under Section
19 of Family Courts Act, 1984 (hereinafter
referred to as 'Act, 1984') is to the judgement
dated 25.8.2014 and decree dated 17.9.2014,
passed by Additional Principal Judge, Family
Court/Additional District and Sessions Judge
(Court
No.
3),
Allahabad,
dismissing
Matrimonial Petition No. 239 of 2009 (Sri
Vishnu Shanker Pandey Vs. Smt. Maya
Pandey) under section 13 of Hindu Marriage
Act, 1955 (hereinafter referred to as 'Act,
1955')
filed
by
plaintiff-appellant
for
dissolution of marriage of the parties.

2. Plaintiff-appellant Sri Vishnu
Shanker Pandey (hereinafter referred to as
'appellant') filed Matrimonial Petition No.
239 of 2009 (Sri Vishnu Shanker Pandey
Vs. Smt. Maya Pandey) for divorce on the
grounds
of
cruelty
and
desertion.
According to plaint allegations, marriage
of parties was solemnized 28-29 years
prior to institution of above mentioned
matrimonial petition. From wedlock of
parties, three children namely, Sarita
Pandey- Date of Birth 9.12.1984, Surya
Prakash Pandey- Date of Birth 2.11.1987
and Ved Prakash Pandey- Date of Birth
5.11.1989, were born. Appellant retired
from post of Honorary Lieutenant from
Indian Army and started residing at 6/5
Madhuwan Vihar Colony, Umarpur Niva,
P.S. Dhoomanganj, District Allahabad. All
three children have become major and are
residing with appellant. Eldest daughter of
appellant Km. Sarita Pandey is working in
a private institute at Civil Lines Allahabad.
Plaintiff alleged that defendant respondent
Maya
Pandey,
wife
of
appellant
(hereinafter referred to as 'respondent'), is
also residing with him. However, since last
three years, conduct of respondent has
gone bad and she indulges in garrulous
talking, which has disturbed peace of
house. Aforesaid conduct of respondent
amounts to commission of mental cruelty
upon appellant. Contrary to her spousal
2 All. Shri Vishnu Shankar Pandey Vs. Smt. Maya Pandey
1013
obligations, respondent by her conduct and
behaviour has totally dissolved peace and
tranquillity of house. Whenever appellant
tried to persuade respondent to give up her
such conduct, she always behaved rudely
and
with
arrogance
and
thereby,
committing mental cruelty upon appellant.
Consequently,
it
is
impossible
for
appellant to live with respondent. For the
last three years, respondent has miserably
failed to discharge her spousal obligations
even though plaintiff has all along been
faithful, nor ever committed such act
which may cause pain and agony to
respondent.
Inspite
of
aforesaid,
respondent has continuously by her false
and frivolous allegations degraded prestige
of appellant by alleging that appellant is
not maintaining respondent and further
commits physical atrocities upon her.
Appellant alleged that on 10.11.2008, he
again persuaded respondent to mend her
ways but in vain. To the contrary, on the
basis of false, fabricated and incorrect
allegations, respondent started residing
separately from plaintiff. In furtherance of
aforesaid respondent filed an application
under
section
125 Cr.P.C.
claiming
maintenance. Thoug parties are living
together in same house but they are not in
conjugal relationship or in co-habitation.
As such, in the same house parties are
living separately. Cause of action was
pleaded to be continuous since 10.11.2008.
On the aforesaid factual foundation,
appellant filed Matrimonial Petition No.
239 of 2009 (Sri Vishnu Shanker Pandey
Vs. Smt. Maya Pandey) under section 13
of Act, 1955 for dissolution of marriage.

3. Suit filed by appellant was
contested by respondent. She filed written
statement dated 14.9.2009, whereby not
only plaint allegations were denied but
additional pleas were also raised. Except
for paragraphs 1 and 2 of plaint, remaining
paragraphs were denied. In additional
pleas respondent admitted that from
wedlock of parties, three children namely,
Km. Sarita Pandey, Surya Prakash Pandey
and Ved Prakash Pandey were born.
Appellant retired from Indian Army from
the post of Honorary Lieutenant. All three
children are still studying and preparing
for their examinations. However, appellant
does not bear their expenses, as such all
expenses
are
borne
by
father
of
respondent. Eldest daughter Km. Sarita
Pandey has still not completed her studies
and she is continuing the same. However,
she is working in a private institute at Civil
Lines,
Allahabad.
Respondent
never
behaved with appellant in a manner which
is unbecoming of a pious and faithful wife
nor she ever displayed such conduct on
basis of which, it could be alleged that
respondent has caused physical/mental
cruelty to appellant. To the Contrary, it is
appellant who has committed cruelty upon
her
by
continuously
assaulting
her
physically. On account of aforesaid
conduct, respondent disclosed the same to
her father upon which he repeatedly
requested appellant to give up his rude and
immoral behaviour which is unbecoming
of a caring husband and ideal father.
However, irrespective of above, inhuman
conduct of appellant continued unabated
and on 20.12.2008, appellant in a drunken
position, assaulted respondent, ousted her
from house, forcing respondent to reside in
a room outside her matrimonial home. No
maintenance was paid by appellant on
account of which it was impossible for
respondent
to
reside
with
plaintiff.
Respondent was always performing her
spousal obligations but inspite of above,
appellant committed cruelty upon her by
his deed and conduct and further failed to
maintain her. She never insulted appellant.
1014 INDIAN LAW REPORTS ALLAHABAD SERIES
It was on account of aforesaid action of
appellant that respondent faced despair
and destitution forcing her to initiate
proceedings under section 125 Cr.P.C. for
grant of maintenance. From 20.12.2008,
parties are living separately in the same
house. Three children are residing with
respondent and expenses for maintaining
the respondent and her three children are
being borne by father of respondent. It is
on account of aforesaid that respondent is
unable
to
discharge
her
spousal
obligations. On the aforesaid defence,
respondent prayed for dismissal of suit for
divorce.

4. Appellant filed a rejoinder
affidavit (Paper No. 16 Ga) to the written
statement filed by respondent whereby,
Appellant
reiterated
and
reaffirmed
allegations made in plaint.

5. On the above pleading of parties,
Court below framed following issues for
determination:

(I)
Whether
appellant
was
married to respondent in the year 1980.

(ii) Whether respondent is not
having marital co-habitation with appellant
since January, 2006.

(iii) Whether respondent is not
discharging her marital obligations since
February, 2006.

(iv)
Whether
respondent
is
committing physical and mental cruelty
upon appellant since February, 2006 and
without any reason is maintaining distance
from appellant since February, 2006.

(v)
Whether
on
10.11.2008
inspite of pursuation made by appellant
requesting respondent not to cause cruelty,
respondent threatened appellant that she
will not reside with him but live
separately.

(vi) Whether appellant always
committed
physical
cruelty
upon
respondent in a drunkard position and
further committed mental cruelty upon her.
On
20.12.2008,
appellant
physically
assaulted respondent as such, respondent
along with her three children is residing
separately. No amount of maintenance is
being paid by appellant to respondent as
such, entire expenses are being borne by
father
of
respondent,
yet
appellant
repeatedly, extends threat to respondent of
killing her.

6. After aforesaid issues were
framed, parties went to trial. Appellant in
support of his case adduced himself as
P.W.1.
Further
appellant
also
filed
documentary evidence which is detailed in
paragraph 6 of impugned judgement.
Respondent adduced herself as D.W. 1 to
establish her defence. Respondent also
adduced documentary evidence as detailed
in paragraph 6 of impugned judgement.

.

7. Court below on the basis of
pleadings of parties, oral and documentary
evidence adduced, as well as submissions
urged on behalf of parties, examined the
issues so framed. Court below accordingly
re-framed the issues which arose for
determination i.e:

(I)
Whether
respondent
has
deserted appellant without any valid
reason.

(ii) Whether respondent has
displayed
cruel
behaviour
against
appellant.

(iii) Whether appellant is entitled
to any relief.

8. In respect of issue no.1, Court
below concluded that since factum of
marriage between parties is admitted, date
2 All. Shri Vishnu Shankar Pandey Vs. Smt. Maya Pandey
1015
of marriage, therefore, is irrelevant. Issue
nos. 1, 2 and 3 as originally framed were
considered together. Court below opined
that three issues reframed subsequently are
included in Original Issue No.3. Upon
evaluation of pleadings on record, Court
below held that plaintiff has instituted the
suit on 23.3.2009. Cause of action for
desertion pleaded in plaint is 10.11.2008,
which was said to be continuous. As per
mandate of Section 13 (i-b), a period of
two years must have lapsed from date of
desertion up to the date of filing of suit for
pleading divorce on the ground of
desertion. Aforesaid pre-condition is not
satisfied in present case. It was thus held
by Court below that appellant has failed to
establish desertion on part of respondent.
Court
below
further
concluded
that
respondent is residing separately along
with her three children. Conduct of
appellant
towards
respondent
is
unbecoming of a good husband, as he
repeatedly commits physical assault upon
respondent in a drunken position and
therefore,
respondent
started
residing
separately from 20.12.2008. Appellant
himself has forced respondent to live
separately, as such, there is a valid reason
for respondent in residing separately.
Consequently, it cannot be said that
respondent has deserted appellant. Issue
Nos. 4, 5 and 6 were decided together by
Court below. Upon evaluation of evidence
of parties, as well as pleadings on record,
Court below concluded that appellant has
failed to establish commission of physical
and mental cruelty by respondent upon
appellant. Court below further concluded
that since plaintiff has failed to prove the
grounds of desertion and cruelty upon
which plaintiff claimed decree of divorce,
no relief prayed for by plaintiff can be
granted. On the aforesaid findings, Court
below dismissed suit of plaintiff vide
judgement dated 25.8.2014 and decree
dated 17.9.2014. Thus feeling aggrieved
by aforesaid judgement and decree passed
by Court below, plaintiff has now come to
this Court by means of present first appeal.

9. We have heard Mr. Harish K.
Yadav, learned counsel for appellant.
Though cause list was revised, none
appeared for respondent even though
names of Brijesh Shukla and Arvind
Kumar Tiwari, Advocates, were duly
printed in the cause list as counsel for
respondent. As such we proceeded with
hearing of present first appeal by hearing
learned counsel for appellant.

10. Mr. Harish K. Yadav, learned
counsel for appellant, in challenge to
impugned judgement and decree passed by
Court below has submitted that the same
are manifestly illegal and liable to be
quashed by this Court. He further submits
that findings recorded by court below on
twin issues namely, cruelty and desertion
are wholly illegal, perverse and erroneous.
On the basis of material on record,
commission of cruelty by respondent upon
appellant and further her act of deserting
appellant are duly proved. Consequently,
judgement and decree passed by Court
below are liable to be set aside and suit
filed by appellant for divorce on grounds
of cruelty and desertion is liable to be
decreed by this Court.

11. Before proceeding to examine the
submissions urged by learned counel for
appellant, it would be appropriate to
reproduce Section 13 of Act 1955, which
provides for grounds of divorce:

""
13
Divorce.
--(1)
Any
marriage solemnized, whether before or
after the commencement of this Act, may,
1016 INDIAN LAW REPORTS ALLAHABAD SERIES
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;

[ Explanation. -In this sub-section,
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) deleted

(ix) deleted

[(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
2 All. Shri Vishnu Shankar Pandey Vs. Smt. Maya Pandey
1017

(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
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"."

12. From perusal of above quoted
Section 13 of Act,1955, it is explicit that
cruelty
and
desertion
are
grounds
recognised in law for granting a decree of
divorce. While cruelty as a ground of
divorce is duly provided for in Section 13
(1) (i-a) of Act, 1955, desertion as a
ground of divorce is duly provided for in
Section 13 (1) (i-b) of Act, 1955. Under
scheme of Act, 1955, grounds of divorce
mentioned in Section 13 are independent
grounds. Fulfilment of one of the grounds
mentioned in Section 13 of Act, 1955 by
itself is sufficient to grant divorce. It may
also be noted that cruelty and desertion are
independent grounds of divorce and have
to be proved independently by direct
evidence. They are not inter-dependant.
However,
one
important
factor
distinguishing the aforesaid grounds of
divorce is that while there is no prerequisite for pleading cruelty but in case a
plea of desertion is pleaded then a period
of two years from date of desertion must
have elapsed prior to the date of institution
of suit by plaintiff. Period subsequent to
institution of suit cannot be taken into
consideration for determining desertion on
the part of respondent in a suit for divorce.
1018 INDIAN LAW REPORTS ALLAHABAD SERIES

13. The term 'cruelty' has not been
defined in the Act of 1956 and therefore,
same has been subject matter of debate for
long. Different Courts in India have tried
to explain meaning of term 'cruelty' and
also crystalize the actions which can
constitute cruelty. In doing so varied
aspects of human nature in the changing
vicissitudes of time have been taken into
consideration.

14. A Division Bench of this Court in
Smt. Sarita Devi Vs. Sri Ashok Kumar
Singh reported in 2018 (3) AWC 2328 has
considered the concept of 'cruelty' in detail
by referring to the meaning assigned to the
term in different dictionaries and text.
Following
has
been
observed
in
paragraphs 16, 17, 18 and 19:-

"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. Plaintiff
must show a course of conduct on the part
of Defendant which so endangers the
physical or mental health of Plaintiff as to
render continued cohabitation unsafe or
improper, although Plaintiff need not
establish actual instances of physical
abuse. "
2 All. Shri Vishnu Shankar Pandey Vs. Smt. Maya Pandey
1019

15. In Vishwanath Sitram
Agarwal Vs. San. Sarle Vishwanath
Agarwal, 2012 (7) SCC 288, Supreme
Court considered various earlier decisions
with regard to meaning of term 'cruelty'.
Their Lordships observed as follows in
paragraphs 22 to 32:-

22.The expression "cruelty" has
an inseparable nexus with human conduct
or
human
behaviour.
It
is
always
dependent upon the social strata or the
milieu to which the parties belong, their
ways of life, relationship, temperaments
and emotions that have been conditioned
by their social status.

23.
In
Sirajmohmedkhan
Janmohamadkhan v. Hafizunnisa

Yasinkhan [(1981) 4 SCC 250 :
1981 SCC (Cri) 829] , a two-Judge Bench
approved the concept of legal cruelty as
expounded inPancho v. Ram Prasad [AIR
1956 All 41] wherein it was stated thus:
(Pancho case [AIR 1956 All 41] , AIR p. 43,
para 3)

"3. ... Conception of legal cruelty
undergoes changes according to the changes
and advancement of social concept and
standards of living. With the advancement of
our social conceptions, this feature has
obtained legislative recognition that a second
marriage is a sufficient ground for separate
residence
and
separate
maintenance.
Moreover, to establish legal cruelty, it is not
necessary that physical violence should be
used.

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

It is apt to note here that the said
observations were made while dealing with the
Hindu Married Women's Right to Separate
Residence and Maintenance Act (19 of 1946).
This Court, after reproducing the passage, has
observed that the learned Judge has put his
finger on the correct aspect and object of
mental cruelty.

24. In Shobha Rani v. Madhukar
Reddi [(1988) 1 SCC 105 : 1988 SCC (Cri)
60] , while dealing with "cruelty" under
Section 13(1)(i-a) of the Act, this Court
observed that the said provision does not
define "cruelty" and the same could not be
defined. "Cruelty" may be mental or physical,
intentional or unintentional. If it is physical,
the court will have no problem to determine it.
It is a question of fact and degree. If it is
mental, the problem presents difficulty.
Thereafter, the Bench proceeded to state as
follows: (SCC p. 108, para 4)

"4. ... 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."

25.After so stating, this Court
observed inShobha Rani case[(1988) 1
SCC 105 : 1988 SCC (Cri) 60] about the
marked change in life in modern times and
the sea change in matrimonial duties and
responsibilities. It has been observed that:
(SCC p. 108, para 5)

"5. ... when a spouse makes a
complaint about the treatment of cruelty
1020 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

26. Their Lordships in Shobha
Rani case [(1988) 1 SCC 105 : 1988 SCC
(Cri) 60] referred to the observations
made inSheldon v.Sheldon [1966 P 62 :
(1966) 2 WLR 993 : (1966) 2 All ER 257
(CA)] wherein Lord Denning stated, "the
categories of cruelty are not closed".
Thereafter, the Bench proceeded to state
thus: (Shobha Rani case [(1988) 1 SCC
105 : 1988 SCC (Cri) 60] , SCC p. 109,
paras 5-6)

"5. ... 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.

6.
These
preliminary
observations are intended to emphasise
that the court in matrimonial cases is not
concerned with ideals in family life. The
court has only to understand the spouses
concerned as nature made them, and
consider their particular grievance. As
Lord Reid observed in Gollinsv. Gollins
[1964 AC 644 : (1963) 3 WLR 176 :
(1963) 2 All ER 966 (HL)] : (All ER p. 972
G-H)

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

8. (emphasis in original)

9. 27. In V. Bhagat v. D. Bhagat
[(1994) 1 SCC 337] , a two-Judge Bench
referred to the amendment that had taken
place in Sections 10 and 13(1)(i-a) after
the (Hindu) Marriage Laws (Amendment)
Act, 1976 and proceeded to hold that the
earlier requirement that such cruelty has
caused a reasonable apprehension in the
mind of a spouse that it would be harmful
or injurious for him/her to live with the
other one is no longer the requirement.
Thereafter, this Court proceeded to deal
with what constitutes mental cruelty as
contemplated in Section 13(1)(i-a) and
observed that mental cruelty in the said
provision can broadly be defined as that
conduct which inflicts upon the other party
such mental pain and suffering as would
make it not possible for that party to live
with the other. To put it differently, mental
cruelty must be of such a nature that the
parties cannot reasonably be expected to
live together. The situation must be such
that the wronged party cannot reasonably
be asked to put up with such conduct and
continue to live with the other party. It was
further observed, while arriving at such
conclusion, that regard must be had to the
social status, educational level of the
parties, the society they move in, the
possibility or otherwise of the parties ever
living together in case they are already
living apart and all other relevant facts
and circumstances. What is cruelty in one
case may not amount to cruelty in another
case and it has to be determined in each
case keeping in view the facts and
circumstances of that case. That apart, the
accusations and allegations have to be
scrutinised in the context in which they are
2 All. Shri Vishnu Shankar Pandey Vs. Smt. Maya Pandey
1021
made. Be it noted, in the said case, this
Court
quoted
extensively
from
the
allegations made in the written statement
and the evidence brought on record and
came to hold that the said allegations and
counter-allegations were not in the realm
of ordinary plea of defence and did
amount to mental cruelty.

28. In Parveen Mehta v. Inderjit
Mehta [(2002) 5 SCC 706 : AIR 2002 SC
2582] , it has been held that mental cruelty
is a state of mind and feeling with one of
the
spouses
due
to
behaviour
or
behavioural pattern by the other. Mental
cruelty cannot be established by direct
evidence and it is necessarily a matter of
inference to be drawn from the facts and
circumstances of the case. "A feeling of
anguish, disappointment and frustration in
one spouse caused by the conduct of the
other can only be appreciated on assessing
the attending facts and circumstances in
which the two partners of matrimonial life
have
been
living."
(Parveen
Mehta
case[(2002) 5 SCC 706 : AIR 2002 SC
2582] , SCC p. 716, para 21) The facts
and circumstances are to be assessed
emerging from the evidence on record and
thereafter, a fair inference has to be drawn
whether the petitioner in the divorce
petition has been subjected to mental
cruelty due to the conduct of the other.

29. In Vijaykumar Ramchandra
Bhate v. Neela Vijaykumar Bhate [(2003)
6 SCC 334 : AIR 2003 SC 2462] , it has
been opined that a conscious and
deliberate
statement
levelled
with
pungency and that too placed on record,
through the written statement, cannot be
so lightly ignored or brushed aside.

30. In A. Jayachandra v. Aneel
Kaur [(2005) 2 SCC 22] , it has been
ruled that the question of mental cruelty
has to be considered in the light of the
norms of marital ties of the particular
society to which the parties belong, their
social values, status and environment in
which they live. If from the conduct of the
spouse, it is established and/or an
inference can legitimately be drawn that
the treatment of the spouse is such that it
causes an apprehension in the mind of the
other spouse about his or her mental
welfare, then the same would amount to
cruelty. While dealing with the concept of
mental cruelty, enquiry must begin as to
the nature of cruel treatment and the
impact of such treatment on the mind of
the spouse. It has to be seen whether the
conduct is such that no reasonable person
would tolerate it.

31. In Vinita Saxena v. Pankaj
Pandit [(2006) 3 SCC 778] , it has been
ruled that as to what constitutes mental
cruelty for the purposes of Section 13(1)(ia) will not depend upon the numerical
count of such incident or only on the
continuous course of such conduct but one
has to really go by the intensity, gravity
and stigmatic impact of it when meted out
even once and the deleterious effect of it
on the mental attitude necessary for
maintaining a conducive matrimonial
home.

32. In Samar Ghosh v. Jaya
Ghosh [(2007) 4 SCC 511] , this Court,
after surveying the previous decisions and
referring to the concept of cruelty, which
includes mental cruelty, in English,
American, Canadian and Australian cases,
has observed that: (SCC pp. 545-46, paras
99-100)

"99. ... The human mind is
extremely complex and human behaviour
is equally complicated. Similarly human
ingenuity has no bound, therefore, to
assimilate the entire human behaviour in
one definition is almost impossible. What
is cruelty in one case may not amount to
cruelty in the other case. The concept of
1022 INDIAN LAW REPORTS ALLAHABAD SERIES
cruelty differs from person to person
depending upon his upbringing, level of
sensitivity,
educational,
family
and
cultural background, financial position,
social status, customs, traditions, religious
beliefs, human values and their value
system.

100. Apart from this, the concept
of mental cruelty cannot remain static; it
is bound to change with the passage of
time, impact of modern culture through
print and electronic media and value
system, etc. etc. What may be mental
cruelty now may not remain a mental
cruelty after a passage of time or vice
versa. There can never be any straitjacket
formula
or
fixed
parameters
for
determining mental cruelty in matrimonial
matters. The prudent and appropriate way
to adjudicate the case would be to
evaluate it on its peculiar facts and
circumstances...."

16. In Ravi Kumar Vs. Julmi Devi
2010 (4) SCC 476, following was
observed in paragraphs 19 to 22:-

19.It may be true that there is no
definition of cruelty under the said Act.
Actually such a definition is not possible.
In matrimonial relationship, cruelty would
obviously mean absence of mutual respect
and understanding between the spouses
which embitters the relationship and often
leads to various outbursts of behaviour
which can be termed as cruelty. Sometime
cruelty in a matrimonial relationship may
take the form of violence, sometime it may
take a different form. At times, it may be
just an attitude or an approach. Silence in
some situations may amount to cruelty.

20.

Therefore,
cruelty
in
matrimonial
behaviour
defies
any
definition and its categories can never be
closed. Whether the husband is cruel to his
wife or the wife is cruel to her husband
has to be ascertained and judged by taking
into
account
the
entire
facts
and
circumstances of the given case and not by
any predetermined rigid formula. Cruelty
in matrimonial cases can be of infinite
variety--it may be subtle or even brutal
and may be by gestures and words. That
possibly explains why Lord Denning in
Sheldon v.Sheldon [(1966) 2 WLR 993 :
(1966) 2 All ER 257 (CA)] held that
categories of cruelty in matrimonial cases
are never closed.

21.This Court is reminded of
what was said by Lord Reid inGollins v.
Gollins[1964 AC 644 : (1963) 3 WLR 176
: (1963) 2 All ER 966 (HL)] about judging
cruelty in matrimonial cases. The pertinent
observations are: (AC p. 660)

"...