# Smt. Dr. Sarita v. 930 INDIAN LAW REPORTS ALLAHABAD SERIES Sri Dr. Vikas Kanaujia

- **Citation:** (2019) 2 ILRA 929
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-22
- **Case number:** First Appeal No. 31 of 2007
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-dr-sarita-v-930-indian-law-reports-allahabad-series-sri-dr-vikas-kanaujia-44807
- **Pages:** 19

## Headnote

A. Practice & Procedure - Pleading - Rule
- No amount of evidence can be looked
into unless a fact is pleaded.

Factum with regard to commission of cruelty
by wife upon husband on account of initiation
of false criminal case was not pleaded initially
nor plaint was got amended subsequently -
Documents filed by husband in respect of
criminal cases initiated by wife could not be
looked into by Court below - Held - Decree
passed by Court below is nonest as it is based
upon facts not pleaded in plaint nor argued by
counsel for husband before Court below -
Further, documents relating to criminal cases
initiated by wife were never admitted in
evidence. Consequently, the same could not
be relied upon by Court. (Para 30 & 31)

B. Hindu Marriage Act, 1955 - Section 12
-Divorce - Irretrievable breakdown of
marriage.

Parties have not been living separately on
account of their own free will - It is plaintiff-
husband, who has refused to keep defendantwife with him. Wife has herself not deserted
husband -Decree of divorce was not prayed
for on ground of irretrievable break down of
marriage - Argument raised by learned
counsel for husband that there has been an
irretrievable break down of marriage has no
factual foundation - For a period of fourteen
long years, plaintiff-husband kept quiet and
now for the first time, this issue is being raised
- Plaintiff-husband is estopped from raising
this plea. (Para 41)

First Appeal Allowed (E-5)
List of cases cited: -
1.Smt. Archana Vs Dr. P.K. Tomar (2003) 2
AWC 1119
2.Deepika Alias Baby Vs Naresh Chandra
Singhnia (2000) 0 AIR (All) 148
3.A. Jayachandra Vs Aneel Kaur (2005) 2 SCC 22
4.Kiran Singh Vs Shiv Kumar (2013) 10 ADJ
560

## Text

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2 All. Smt. Dr. Sarita Vs Sri Dr. Vikas Kanaujia
929

16. An order for maintenance pendente
lite or for costs of the proceedings is
conditional on the circumstance that the wife
or husband who makes a claim for the same
has no independent income sufficient for her
or his support or to meet the necessary
expenses of the proceeding. It is no answer to
a claim of maintenance that the wife is
educated and could support herself. Likewise,
the financial position of the wife's parents is
also immaterial. The court must take into
consideration the status of the parties and the
capacity of the spouse to pay maintenance
and
whether
the
applicant
has
any
independent income sufficient for her or his
support. Maintenance is always dependent
upon factual situation; the court should,
therefore, mould the claim for maintenance
determining the quantum based on various
factors brought before the court."

17. Upon perusal of impugned
judgement in the backdrop of judgements
referred to above, we find that Court below
has not adverted itself to the undisputed facts
that salary of plaintiff-respondent is Rs.
10,603/- and he also has recorded tenure in
his
favour.
The
plaintiff-respondent
deliberately
concealed
his
Agricultural
income from Court below. Court below
ought to have taken into consideration the
aforesaid factors and in that situation,
amount of interim maintenance awarded to
defendant-appellant would certainly have
been more than Rs. 3000/-.

18. There is another aspect of
matter. A sum of Rs. 3,200/- has been
awarded towards interim maintenance to
defendant appellant and her minor son in
proceedings under section 125 Cr.P.C. It
is impossible even to imagine as to how a
mother and a minor son can meet their
daily expenses with a meagre amount of
Rs. 3,200/-.

19. Considering the law laid down in
Neeta Rakesh Jain (Supra), and undisputed
facts of the present case as detailed above, we
are of the view that Court below has erred in
law in awarding a sum of Rs. 3000/- towards
interim maintenance to defendant-appellant
and her minor child under section 24 of Act
1955. Court below has further directed that
amount payable pursuant to order passed
under section 125 Cr.P.C. shall be adjusted.
The result of same is that no amount of
interim maintenance has been awarded to
defendant-appellant and her minor son.

20. In view of the discussions, made
herein above, we are of the view that
impugned judgement and order passed by
Court below needs to be modified to do
complete
justice
between
the
parties.
Accordingly, we allow this appeal, modify the
impugned judgement and decree passed by
Court below by directing that defendantappellant shall be entitled to a sum of Rs.
6,000/-
per
month
towards
interim
maintenance i.e. Rs. 4000/- for herself and Rs.
2,000/- for minor son. However, the amount
of maintenance paid and awarded under
section 125 Cr.P.C. shall be adjusted.

21. Appeal is, accordingly, allowed.
----------

(2019)10ILR A 929

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.08.2019

BEFORE

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

First Appeal No. 31 of 2007

Smt. Dr. Sarita ...Appellant
Versus
930 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Dr. Vikas Kanaujia ...Respondent

Counsel for the Appellant:
Sri Sujeet Kumar

Counsel for the Respondent:
Sri Ravi Kiran Jain, Sri A.K. Srivastava, Sri
A.P. Paul, Sri B.B. Paul, Deba Siddiqui, Sri
Gautam, Sri Mohd. Shamim, Sri Sumit
Srivastava

A. Practice & Procedure - Pleading - Rule
- No amount of evidence can be looked
into unless a fact is pleaded.

Factum with regard to commission of cruelty
by wife upon husband on account of initiation
of false criminal case was not pleaded initially
nor plaint was got amended subsequently -
Documents filed by husband in respect of
criminal cases initiated by wife could not be
looked into by Court below - Held - Decree
passed by Court below is nonest as it is based
upon facts not pleaded in plaint nor argued by
counsel for husband before Court below -
Further, documents relating to criminal cases
initiated by wife were never admitted in
evidence. Consequently, the same could not
be relied upon by Court. (Para 30 & 31)

B. Hindu Marriage Act, 1955 - Section 12
-Divorce - Irretrievable breakdown of
marriage.

Parties have not been living separately on
account of their own free will - It is plaintiff-
husband, who has refused to keep defendantwife with him. Wife has herself not deserted
husband -Decree of divorce was not prayed
for on ground of irretrievable break down of
marriage - Argument raised by learned
counsel for husband that there has been an
irretrievable break down of marriage has no
factual foundation - For a period of fourteen
long years, plaintiff-husband kept quiet and
now for the first time, this issue is being raised
- Plaintiff-husband is estopped from raising
this plea. (Para 41)

First Appeal Allowed (E-5)
List of cases cited: -
1.Smt. Archana Vs Dr. P.K. Tomar (2003) 2
AWC 1119
2.Deepika Alias Baby Vs Naresh Chandra
Singhnia (2000) 0 AIR (All) 148
3.A. Jayachandra Vs Aneel Kaur (2005) 2 SCC 22
4.Kiran Singh Vs Shiv Kumar (2013) 10 ADJ
560
5. G V N Kameswara Rao Vs G Jabilli (2002) 2
SCC 296
6.Parveen Mehta Vs Inderjit Mehta (2002) 5
SCC 706
7. Naveen Kohli Vs Neetu Kohli (2006) 4 SCC
558
8. Samar Ghosh Vs Jaya Ghosh (2007) 4 SCC
511
9.K Srinivas Rao Vs D A Deepa 2(013) 5 SCC 226
10.K Srinivas Vs K Sunita (2014) 16 SCC 34
11. Smt. Kavita Sharma Vs Neeraj Sharma,
First Appeal No. 525 of 2006 decided on
7.2.2018
12.First Appeal No. 792 of 2008 (Ashwani
Kumar Kohli Vs Smt. Anita) decided on
17.11.2016

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

1. This is defendant's appeal under
Section 19 of Family Courts Act, 1984
(hereinafter refereed to as 'Act 1984'),
challenging judgement and decree dated
20.12.2006, passed by Principal Judge,
Family Court, Meerut in Matrimonial
Case No. 123 of 2003 (Dr. Vikas
Kannaujia Vs. Smt. (Dr.) Sarita), under
section 13 (I) of Hindu Marriage Act
1955 (hereinafter referred to as 'Act
1955'), whereby Court below has decreed
suit
of
plaintiff
respondent
and
2 All. Smt. Dr. Sarita Vs Sri Dr. Vikas Kanaujia
931
consequently,
annulled
marriage
of
parties from the date of judgement i.e.
20.12.2006.

2. We have heard Mr. Sujeet Kumar,
learned counsel for defendant-appellant,
Mr. Ravi Kiran Jain, learned Senior
Counsel assisted by Mr. A.P. Paul,
learned counsel appearing for plaintiffrespondent.

3. According to plaint allegations,
marriage of plaintiff respondent, was
solemnized with defendant-appellant on
20.2.2002 at Delhi in accordance with
Hindu Rites and Customs. After marriage
defendant-appellant came to her marital
home i.e. house of plaintiff-respondent
situate at Tope Khana Bazar, Meerut
Cant, District Meerut. It is the case of
plaintiff-respondent that consummation of
marriage took place on the first night of
defendant-appellant at her marital home.
It is alleged by plaintiff-respondent that
subsequently, relationship between the
parties became strained as according to
plaintiff-respondent, defendant-appellant
refused to perform her marital obligations
to the satisfaction of plaintiff-respondent.
It was also alleged that defendantappellant, misbehaved with mother of
plaintiff-respondent,
when
she
was
requested to touch feet of elder relatives
and obtain their blessings. On 22nd
February, 2002, younger brother of
defendant-appellant and her maternal aunt
(mami) are alleged to have visited house
of
plaintiff-respondent
for
taking
defendant-appellant to her parental home.
According
to
plaintiff-respondent,
behaviour
of
younger
brother
of
defendant-appellant
as
well
as
her
maternal aunt was neither friendly nor
cordial
and
they
started
to
allege
complaint
on
behalf
of
defendantappellant. Ultimately, they all left marital
home of defendant-appellant and went to
parental home of defendant-appellant at
Delhi along with defendant-appellant.
Plaintiff-respondent, brought defendantrespondent back to her marital home on
4.3.2002. In the evening of 4.3.2002, they
both went to Udhampur (Jammu and
Kashmir) where plaintiff was working as
an eye surgeon at Kishan Lal Sharma
Memorial,
Rotary
Eye
Hospital
Udhampur,
However,
according
to
plaintiff-respondent,
behaviour
of
defendant-appellant
with
plaintiff
respondent at Udampur was neither
cheerful nor congenial. So much so, that
according to plaintiff-respondent, though
they were in cohabitation, yet there was
no establishment of conjugal relations
between the parties in their seven days of
stay on account of cold and indifferent
attitude
of
defendant-respondent.
Accordingly, parties returned in the
morning of 11.3.2002. The thirteenth day
function (Terahi Ceremony) of elder
brother of father of plaintiff-respondent
was scheduled on 17.3.2002 as he expired
on
10.3.2002.However,
according
to
plaintiff-respondent, defendant appellant
left her marital home in the evening of
17.3.2002, which conduct is unbecoming
of a good daughter-in-law. Since then
defendant-respondent is residing at her
parental home. Repeated attempts are
alleged to have been made by plaintiffrespondent to bring back defendantappellant to her marital home but all went
in vain. Plaintiff-respondent also filed a
suit under section 9 of Act 1955, which
was registered as Suit No. 598 of 2002
(Dr. Vikas Kannaujia Vs. Smt. Dr. Sarita)
for restitution of conjugal rights. The
defendant-appellant appeared in aforesaid
suit and filed an application under section
24
of
Act
1955
claiming
interim
932 INDIAN LAW REPORTS ALLAHABAD SERIES
maintenance and litigation expenses.
According to plaintiff-respondent, inspite
of
initiation
of
above
mentioned
proceedings, defendant-appellant refused
to reside along with plaintiff-respondent
at her marital home, which is situate at
Meerut. On the aforesaid factual premise,
plaintiff-respondent alleged commission
of 'cruelty' by defendant-appellant upon
him and consequently prayed for grant of
a decree of divorce on the ground of
cruelty as contemplated under section 13
(1) (i-a) of Act 1955.

4. Suit filed by plaintiff-respondent
was contested by defendant-appellant.
She filed a written statement whereby, not
only the plaint allegations were denied but
also
additional
pleas
were
raised.
According to defendant-appellant, she is a
well educated lady and never even
attempted to break matrimonial life. It is
the parents and other relatives of plaintiffrespondent
who
want
to
break
matrimonial life of defendant-appellant so
that
plaintiff-respondent
could
be
remarried and their lust for dowry could
be satisfied. The filing of petition under
section 9 of Act 1955 was admitted to
defendant-appellant.
However,
she
pleaded that in the petition under section
9 of Act 1955 date was fixed for
conciliation.
However,
plaintiffrespondent did not appear before Court on
date fixed for conciliation. Ultimately,
suit under section 9 of Act 1955 was
withdrawn by plaintiff-respondent and
thereafter suit for divorce has been filed.
According to defendant-appellant, the
above
conduct
clearly
establishes
malicious motive of plaintiff-respondent
to bring married life of parties to an end
without any valid cause. Defendantappellant clearly denied commission of
any physical or mental cruelty upon
plaintiff-respondent
or
her
family
members. It was thus prayed that the suit
is liable to be dismissed.

5. The parties went to trial. Plaintiffrespondent, in support of his case ,
adduced himself as P.W.1. and one
Mahendra Singh Kannaujia as P.W.2.
Plaintiff filed 39 documents vide list of
documents (paper no. 31 Ga to 32 Ga),
bringing on record the proceedings of
different cases pending in Courts at Delhi.
Defendant-appellant in proof of her
defence adduced herself as D.W. 1 and
her brother Sandeep as D.W.2. However,
no documentary evidence was filed by
her.

6. Court below on basis of pleadings
raised by parties, framed following issues
for determination:

a) Whether plaintiff-respondent is
entitled to decree of annulment of
marriage solemnized on 22.2.2002 on the
ground of 'cruelty' against defendantappellant?

b)
Whether
Court
has
j1.50
"urisdiction to try the suit?
c) Whether plaintiff-respondent is entitled
to any relief?

7. In respect of Issue no.1, Court
below concluded that there is no evidence
with regard to giving of dowry or
harassment of defendant-appellant on
account of additional demand of dowry.
The proceedings for cruelty against wife
punishable under section 498 A IPC and
for criminal breach of trust punishable
under section 406 IPC have been initiated
by defendant appellant one year after the
institution of divorce suit. Court below
further recorded a finding that even
though defendant appellant is working as
2 All. Smt. Dr. Sarita Vs Sri Dr. Vikas Kanaujia
933
a junior Doctor in Lady Harding Hospital,
New Delhi, yet she has filed a complaint
under section 125 Cr.P.C. in the Court of
A.C.M.M, New Delhi. As such, intention
of defendant appellant is not to have
maintenance in case of despair and
destitution
but
to
harass
plaintiffrespondent. The case of defendantappellant that plaintiff-respondent and his
family members caused physical and
mental cruelty upon defendant-appellant
was
disbelieved
by
Court
below.
Defendant-appellant herself admitted in
her cross-examination that she had no
quarrel with mother-in-law. Her motherin-law only scolded her but except for the
aforesaid, there was no dispute with any
member in the family of her in-laws.
There were no differences between
defendant-appellant
and
plaintiffrespondent upto 17.3.2000. It may be
noted here that except for the solitary
incident which took place on 17.3.2002,
when defendant-appellant is alleged to
left her matrimonial home in the evening
even though the thirteenth day function
(terahi) of elder brother of father-in-law
was going on, no other instance of cruelty
was pleaded in plaint. However, this
particular
conduct
on
the
part
of
defendant-appellant was not considered
by Court below to be sufficient enough to
constitute 'cruelty' as a single instance
does not constitute 'cruelty'.

8. Plea raised by plaintiff respondent
that there was complete indifference and
cold attitude on behalf of defendantappellant
towards
plaintiff-respondent
resulting in deprivation of physical
pleasure was not accepted by Court
below.

9. However, Court below concluded
that commission of cruelty by defendantappellant upon plaintiff-respondent is
established from the fact that defendantappellant has initiated false criminal cases
against
plaintiff-respondent
and
her
family members. Placing reliance upon
judgement of this Court in Smt. Archana
Vs. Dr. P.K. Tomar, 2003 (2) AWC
1119, Court below concluded that such
act
falls
within
the
category
of
commission of cruelty. As such suit for
divorce filed by plaitiff-respondent was
decreed on the ground of cruelty vide
judgement and decree dated 20.12.2006.

10. Thus, feeling aggrieved by
aforesaid
judgement
and
decree,
defendant-appellant has come to this
Court by means of present first appeal.

11. Mr. Sujeet Kumar, learned
counsel
for
defendant-appellant
in
challenge to impugned judgement and
decree passed by Court below has
submitted with vehemence that impugned
judgement and decree passed by Court
below are liable to be set aside, as the
same are manifestly illegal and in excess
of jurisdiction. According to learned
counsel for defendant-appellant criminal
proceedings were initiated by defendantappellant after expiry of a period of one
year from date of institution of divorce
suit. The plaint of divorce suit was not got
amended to plead that divorce is also
being prayed on account of initiation of
false criminal cases. He, further, submits
that once the aforesaid factum was not
pleaded in plaint, then evidence in that
regard could not be looked into as no
amount of evidence can be looked into
unless a fact has been pleaded. As there
was no pleading regarding commission of
cruelty by defendant-appellant on account
of initiation of false criminal cases by
defendant-appellant, pleadings of criminal
934 INDIAN LAW REPORTS ALLAHABAD SERIES
cases, or documents relating thereto as
well as judgement rendered therein could
not be looked into. As such, Court below
has erred in law in concluding that cruelty
was committed by defendant-appellant
upon plaintiff-respondent by initiating
false criminal cases. As such, conclusion
drawn by Court below to grant decree of
divorce in favour of plaintiff-respondent
on aforesaid basis is unsustainable.

12. He next contends that in the plaint,
except for solitary incident which took place
in the evening of 17.3.2002, when
defendant-appellant left her matrimonial
home when the thirteenth day function
(terahi) of elder brother of father-in-law of
defendant-appellant was being performed,
no other instance of cruelty has been
detailed. Thus decree of divorce could not
have been granted even on the ground of
cruelty as a single incident, does not by
itself constitute cruelty.

13. He lastly, submits that allegation
made by plaintiff-respondent with regard
to failure of defendant-appellant to
perform her obligations as wife and denial
of
physical
pleasure
to
plaintiffrespondent to his satisfaction on account
of her indifferent attitude could neither be
established nor proved in evidence and
therefore not taken as a ground by Court
below to award decree of divorce. On
cumulative
strength
of
aforesaid
submissions, it is urged by appellant's
counsel that decree of divorce granted by
Court below is liable to be set aside by
this Court. To lend legal support to his
submissions, he has referred to judgement
in Deepika Alias Baby Vs. Naresh
Chandra Singhnia, 2000 (0) AIR (All)
148; A. Jayachandra Vs. Aneel Kaur,
2005 (2) SCC 22; Kiran Singh Vs. Shiv
Kumar, 2013 (10) ADJ 560.

14. Mr. Ravi Kiran Jain, learned
Senior Counsel assisted by Mr. A.P. Paul,
learned counsel for plaintiff-respondent
has
supported
impugned
judgement.
According to learned Senior Counsel, it is
established from record that defendantappellant
has
deprived
plaintiffrespondent of sexual pleasure. He has
relied upon paragraphs 4, 5, and 10 of
plaint. According to learned Senior
Counsel, there is no denial of aforesaid by
plaintiff-respondent
in
her
written
statement. The findings recorded by Court
below at page 73 of respondent's paper
book has been referred to in support of
aforesaid submission. He then submits
that admittedly, defendant-appellant is
daughter-in-law of family. Therefore, it
was obligatory on her part to behave in
such a manner which is not unbecoming
of an obedient daughter-in-law. However,
contrary to same, defendant-appellant
misbehaved with her mother-in-law. The
finding to that effect has been recorded by
Court below, which is at page 77 of
respondent's paper book. He further
submits that commission of physical and
mental cruelty by defendant-appellant
upon
plaintiff-respondent
is
well
established. To buttress his submission he
has referred to findings recorded by Court
below which is at page 74 of respondent's
paper book. Lastly it is urged that parties
have
been
living
separately
since
17.3.2002 and therefore, there has been an
irretrievable break down of marriage. As
such, in view of aforesaid, the decree of
divorce granted by Court below is not
liable to be set-aside. Mr. Ravi Kiran Jain
in support of aforesaid submissions has
relied upon judgements of Supreme Court
: G V N Kameswara Rao V/s G Jabilli,
2002 (2) SCC 296; Parveen Mehta V/s
Inderjit Mehta, 2002 5 SCC 706; Naveen
Kohli V/s Neetu Kohli, 2006 (4) SCC
2 All. Smt. Dr. Sarita Vs Sri Dr. Vikas Kanaujia
935
558; Samar Ghosh V/s Jaya Ghosh, 2007
(4) SCC 511; K Srinivas Rao V/s D A
Deepa, 2013 (5) SCC 226; K Srinivas V/s
K Sunita, 2014 (16) SCC 34

15. We shall refer to the aforesaid
judgements at appropriate place in the
subsequent part of this judgement.

16. After hearing counsel for parties,
and upon perusal of record, following
points of determination arise in this
appeal:

A) Whether on the basis of allegations
made in the plaint, it can be said with
certainty that plaintiff-respondent has duly
pleaded
and
proved
commission
of
physical/mental
cruelty
by
defendantappellant upon him and therefore, entitled to
grant of a decree of divorce under section
13 (i)(a) of Act 1955.

B) Whether proceedings of criminal
case could be looked into or referred to by
Court
below
even
when
criminal
proceedings were initiated one year after
the institution of divorce suit and plaint
was not amended to enlarge the ground of
cruelty by pleading initiation of false
criminal proceedings.

C) Whether in the absence of any
application filed under Order 41 Rule 27
C.P.C. any document filed by the parties
in appeal has to be ignored mandatorily as
it is not part of evidence.

D) Whether impugned judgement
and decree passed by Court below has to
be judged on the reasons recorded in
judgement or independently of the same.

E) Whether judgement and decree
passed by Court below can be sustained
on the ground of irretrievable marriage.

17. Before proceeding to consider
the points of determination involved in
this appeal, it shall be useful to consider
meaning of the term "cruelty" in the
context of Act 1955

18. The term 'cruelty' has not been
defined in Act 1955. Consequently, this
term has been the subject matter of debate
for long. However, recently a Division
Bench of this Court in Smt. Sarita Devi
Vs. Sri Ashok Kumar Singh reported in
2018 (3) AWC 2328 has considered the
question of cruelty in detail in paragraphs
16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27
and 29 which read as under:-

"16. In Samar Ghosh vs. Jaya Ghosh
(2007) 4 SCC 511 Court considered the
concept of cruelty and referring to Oxford
Dictionary defines 'cruelty' as 'the quality
of being cruel; disposition of inflicting
suffering; delight in or indifference to
another's
pain;
mercilessness;
hardheartedness'.
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
936 INDIAN LAW REPORTS ALLAHABAD SERIES
conduct as having or lacking the nature
or quality which renders them capable or
incapable
in
all
circumstances
of
amounting to cruelty; for it is the effect of
the conduct rather than its nature which
is of paramount importance in assessing a
complaint of cruelty. Whether one spouse
has been guilty of cruelty to the other is
essentially a question of fact and
previously decided cases have little, if
any, value. The court should bear in mind
the physical and mental condition of the
parties as well as their social status, and
should consider the impact of the
personality and conduct of one spouse on
the mind of the other, weighing all
incidents and quarrels between the
spouses from that point of view; further,
the conduct alleged must be examined in
the light of the complainant's capacity for
endurance and the extent to which that
capacity is known to the other spouse.
Malevolent intention is not essential to
cruelty but it is an important element
where it exits."

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

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

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

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

21.
In
Sirajmohmedkhan
Janmohamadkhan
v.
Haizunnisa
Yasinkhan and Anr. (1981) 4 SCC 250
Court said that a concept of legal cruelty
changes according to the changes and
advancement of social concept and
standards of living. With the advancement
of our social conceptions, this feature has
obtained legislative recognition, that a
second marriage is a sufficient ground for
separate residence and maintenance.
Moreover, to establish legal cruelty, it is
not necessary that physical violence
should be used. Continuous ill-treatment,
cessation of marital intercourse, studied
neglect, indifference on the part of the
husband, and an assertion on the part of
the husband that the wife is unchaste are
all factors which lead to mental or legal
cruelty.

22. In Shobha Rani v. Madhukar
Reddi, (1988) 1 SCC 105, Court observed
that word 'cruelty' has not been defined in
Act, 1955 but legislature, making it a
ground
for
divorce
under
Section
13(1)(i)(a) of Act, 1955, has made it clear
that conduct of party in treatment of other
if amounts to cruelty actual, physical or
mental or legal is a just reason for grant
of divorce. Cruelty may be mental or
physical, intentional or unintentional. If it
is physical, it is a question of fact about
degree. If it is mental, the enquiry must
begin as to the nature of cruel treatment
and then as to the impact of such
treatment on the mind of the spouse.
Whether
it
caused
reasonable
apprehension that it would be harmful or
2 All. Smt. Dr. Sarita Vs Sri Dr. Vikas Kanaujia
937
injurious to live with the other, ultimately,
is a matter of inference to be drawn by
taking into account the nature of conduct
and its effect on the complaining spouse.
There may, however, be cases where
conduct complained of itself is bad
enough and per se unlawful or illegal.
Then the impact or injurious effect on the
other spouse need not be enquired into or
considered. In such cases, cruelty will be
established if conduct itself is proved or
admitted. The absence of intention should
not make any difference in the case, if by
ordinary sense in human affairs, the act
complained
of
could
otherwise
be
regarded as cruelty.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(xiv) Where there has been a long
period of continuous separation, it may
fairly be concluded that the matrimonial
bond is beyond repair. The marriage
becomes a fiction though supported by a
legal tie. By refusing to sever that tie, the
law in such cases, does not serve the
2 All. Smt. Dr. Sarita Vs Sri Dr. Vikas Kanaujia
939
sanctity of marriage; on the contrary, it
shows scant regard for the feelings and
emotions of the parties. In such like
situations, it may lead to mental cruelty."

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

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

21. Plaintiff-respondent filed suit for
divorce
on
ground
of
cruelty
as
contemplated under section 13 (1)(i-a) of
Act 1955. Burden to prove same was
upon plaintiff-respondent himself. From
perusal of plaint, it is apparent that
reference is made to a solitary instance of
cruelty and otherwise only allegations of
cruelty have been made. According to
plaintiff-appellant, thirteenth day function
(terahi ceremony) of elder brother of
father
of
plaintiff-respondent
was
schedule on 17.3.2002 as he expired on
10.3.2002.
According
to
plaintiffrespondent, defendant appellant left for
her marital home in the evening of
17.3.2002, which conduct does not
commensurate
with
her
status
as
daughter-in-law. Except for aforesaid
solitary instance, no other instance of
cruelty has been alleged in the plaint.
Court below has returned a finding that
departure of defendant-respondent from
her marital home on 17.3.2002 is proved.
However, Court below did not grant
decree of divorce in favour of plaintiffrespondent. It is well settled by now that a
solitary instance does not constitute
cruelty by itself as has been held in
G.V.N. Kameswara Rao Vs. G. Jabilli,
2002 (2) SCC 296. Paragraph 12 of
judgement is relevant for the controversy
in hand, which reads as under:

"12. The court has to come to a
conclusion whether the acts committed by
the counter-petitioner amount to cruelty,
and it is to be assessed having regard to
the status of the parties in social life, their
customs, traditions and other similar
circumstances. Having regard to the
sanctity and importance of marriages in a
community life, the court should consider
whether the conduct of the counterpetitioner is such that it has become
intolerable for the petitioner to suffer any
longer and to live together is impossible,
and then only the court can find that there
is cruelty on the part of the counterpetitioner. This is to be judged not from a
solitary incident, but on an overall
consideration
of
all
relevant
circumstances."
 (Emphasis added)

22. Thus suit of plaintiff-appellant
could be decreed on the ground of cruelty
only as pleaded in plaint and also proved
by plaintiff-appellant.

23. However, in the present case
Court below has decreed suit on the
ground of cruelty holding that defendantrespondent has initiated false criminal
proceedings against plaintiff-respondent.
It may be noted here that criminal
940 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings were initiated by defendantappellant one year after institution of
divorce suit. The suit for divorce was filed
in the year 2003 but decided vide
judgement dated 20.12.2006. During this
entire period, no amendment application
was filed seeking amendment in plaint,
whereby, facts regarding initiation of false
criminal proceedings which have been
held to cause commission of cruelty could
be brought on record and therefore, could
also be taken as a ground of divorce.

24. The question is whether in
absence of any pleading in plaint, divorce
can be granted on the ground of
commission
of
cruelty
because
of
initiation of false criminal proceedings by
wife
against
husband.
Law
stands
crystallized
on
the
aforesaid
issue.
Reference in this regard be made to K.
Srinivas Rao Vs. D.A. Deepa, 2013 (5)
SCC 226, wherein it has been held that
initiation of false criminal cases by wife
against
husband
also
amounts
to
commission of cruelty.

25. However, from record we find
that during pendency of divorce suit,
plaintiff-respondent, filed paper no. 31
Ga, which is list of documents dated
30.8.2006.
By
means
of
aforesaid,
plaintiff-respondent
filed
following
documents
before
Court
below
to
establish commission of cruelty upon
himself
by
defendant-appellant
on
aforesaid ground:

(I) One certified copy of order dated
9.5.2005 passed by Additional Session
Judge New Delhi in case State Vs. Vikas
U/s 498A, 406 and 34 IPC. (paper no. 32Ga)

(ii) One certified copy of order dated
01.6.2005 passed by Member Secretary
Delhi Legal Aid Cell, Patiala Court in
case State Vs. Sumeri Lal Kanojia (paper
no. 33-Ga)

(iii) One certified copy of order dated
15.6.2005 passed by The Court of
Additional Session Judge New Delhi in
granting Anticipary Bail to Sumeri Lal
Kanojia and Smt. Prem Lata. (paper no.
34-Ga)

(iv) One certified copy of order dated
06.7.2005 passed by Additional Session
Judge New Delhi in case State Vs. Vikas
U/s 498A, 406 and 34 IPC. (paper no. 35Ga)

(v) One certified copy of order dated
12.8.2005 passed by Additional Session
Judge New Delhi in case State Vs. Vikas
U/s 498 A, 406 and 34 IPC. (paper no. 36Ga)

(vi) One certified copy of order dated
22.8.2005 passed by Additional Session
Judge New Delhi in case State Vs. Vikas
U/s 498A, 406 and 34 IPC. (paper no. 37Ga)

(vii) One certified copy of F.I.R. case
Crime No. 965 of 2004 dated 05.11.2004
lodged by Dr. Sarita defendant. (paper no.
38-Ga)

(viii) One certified copy of interim
application moved by the defendant in
case no. 928/1 of 2003 U/s 125 Cr.P.C. in
court of A.C.M.M New Delhi. (paper no.
39-Ga)

26. From perusal of order sheet of
Case No. 126 of 2003 (Dr. Vikas
Kannaujia Vs. Smt. (Dr) Sarita) it is
apparent that on 30.8.2006, Court below
passed following order:

"iqdkj djkbZ xbZ i{kdkj gkftj vk;s oknh dh
vksj ls lwph 31x 31d }kjk 32zx rk 39x isij
gkftj fd;s x;s rFkk lwph xokg 40x ds lkFk eq[;
ijh{kk 'kiFk i= ih0MCyw01 Mk0 fodkl dUuksft;k
41d rFkk ih0MCyw02 Jh egsUnz flag dUuksft;k 42d
2 All. Smt. Dr. Sarita Vs Sri Dr. Vikas Kanaujia
941
nkf[ky gq,s i=koyh okLrs ftjg 2-11-06 dks is'k
gksosA**

"Case was called out. Parties came
up. On behalf of the plaintiff, paper nos.
32Ga to 39 Ga have been produced vide
lists 31 Ga, 31 Ka. Along with the list of
witnesses being 40 Ga, affidavit at
examination-in-chief of P.W-1 Dr.