# Smt. Monika Gupta v. Jitendra Gandhi

- **Citation:** (2020) 2 ILRA 921
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-06-27
- **Case number:** First Appeal No. 60 of 2016
- **Bench:** Pradeep Kumar Singh Baghel, Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-monika-gupta-v-jitendra-gandhi-45325
- **Pages:** 18

## Headnote

A. Civil Law-Hindu Marriage Act (25 of
1955) - S. 9 - Restitution of Conjugal
Rights
-
Case
filed
by
respondenthusband for restitution of conjugal rights
922 INDIAN LAW REPORTS ALLAHABAD SERIES
- husband made wild allegations against
wife of having illicit relationship - Held -
As there are allegations and counter
allegations from both the sides, no decree
under Section 9 could have been passed
(Para 39)

B. Civil Law-Hindu Marriage Act (25 of
1955) - S.13(1)(ia) - Divorce - Mental
Cruelty - demand of dowry, husband
forcing appellant-wife to share bed with his
friends & colleagues and making allegation
against wife of having illicit relationship
with her brother-in law - Held - coercing
wife to do such act which cannot be
justified and expected from any husband -
amounts to mental cruelty (Para 45)

C. Civil Law- Hindu Marriage Act (25 of
1955) - S.13(1)(ia) - Divorce - Cruelty -
Irretrievable breakdown of marriage -
divorce
on
ground
of
irretrievable
breakdown of marriage can be granted -
where both parties level such grave
allegations against each other - that the
marriage appears to be practically dead &
completely broken down - and no chance of
survival of marriage remains

Serious charges against each other regarding
character - parties living separately for last nine
years - married life existed for brief period -
despite efforts of the Trial Court as well as High
Court - reconciliation failed - Held - Appellant -
wife subjected to mental cruelty by the husband -
marriage completely broken down & no chance of
survival remains - wife entitled for a decree of
divorce - Order of Family Court, set aside -
Divorce granted (Para 46)

D. Civil Law-Hindu Marriage Act (25 of
1955) - S. 25 - Permanent alimony -
Neither any application for permanent
alimony filed by the appellant- wife nor any
oral prayer made during the course of
argument, or at the time of reconciliation -
Permanent alimony not granted
(Para 50)

E. Civil Law-Hindu Marriage Act (25 of
1955) - S.13(1)(ia) - Divorce - Limitation -
petition for divorce on the ground of mental
cruelty may be presented even within two
years of marriage (Para 48)

F. Civil Law-Hindu Marriage Act (25 of
1955) - Matrimonial proceedings - Practice
& Procedure - Matrimonial proceedings
cannot be simply decided on the basis of
mere evidence on record - Court has to
decide on the circumstances which led to
the filing of the case - grave allegation
made by wife that her husband forced her
to share bed with his friends & colleagues -
cannot be proved by the wife by any
evidence except her testimony (Para 37, 38,
41)

First Appeal allowed. (E-5)

List of cases cited :

## Text

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2 All. Smt. Monika Gupta Vs. Jitendra Gandhi
921

16. Thus, what follows from the above is
that a person can be termed as 'Goonda' and
clamped with a show cause notice under
Section 3(3) of the Act when there is material
indicating that he either by himself or as a
member or leader or a gang, habitually
commits or attempts to commit, or abet the
commission of the offences punishable under
Sections 153, 153(b) or Section 294 I.P.C. or
Chapter XV, or Chapter XVI, Chapter XVII or
Chapter XXII of the I.P.C. or has been
convicted for an offence punishable under the
Suppression of Immoral Traffic in Women and
Girls Act, 1956 or under the U.P. Excise Act,
1910 or the Public Gambling Act, 1867 or
Section 25, Section 27 or Section 29 of the
Arms Act, 1959 is generally reputed to be a
person who is desperate and dangerous to the
community or has been habitually passing
indecent remarks or teasing women or girls as
tout.

17. In the present case, the show cause
notice was issued by the O.P. No.3 against the
petitioner on the basis of his involvement in
only one case, namely Case Crime No. 772 of
2018, Section 384 I.P.C., P.S. Bita-2, District
Gautam Budh Nagar. The show cause notice
also refers to a beat information report no.43
dated 27.06.2019 recorded without any detail
with regard to the subject matter of the beat
information.

18. From the above facts and discussion,
it appears that the respondent no.3 without
applying his judicial mind and observing the
provision of law has issued the show cause
notice under the Act in routine, casual and
mechanical manner and passed the impugned
order dated 25.09.2019. The Appellate
authority i.e. Commissioner Meerut Division,
Meerut (O.P. No.2) also did not consider these
facts and dismissed the appeals filed by the
petitioner affirming the order passed by O.P.
No.3.

19. There is nothing in show cause
notice which may indicate that the petitioner
fall within the ambit of 'Goonda' as defined
under Section 2(b) of the Act. Thus, the
impugned orders dated 25.09.2019 and
30.10.2019
passed
by
the
Courts
below/Authorities concerned suffer from
inherent infirmity and illegality and cannot be
sustained.

20. The writ petition succeeds and is
allowed.
The
impugned
orders
dated
25.09.2019 and 30.10.2019 are hereby
quashed.

21. No order as to costs.
----------
(2020)02ILR A921

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2019

BEFORE

THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
THE HON'BLE ROHIT RANJAN AGARWAL, J.

First Appeal No. 60 of 2016
with
First Appeal No. 61 of 2016

Smt. Monika Gupta ...Appellant
Versus
Jitendra Gandhi ...Respondent

Counsel for the Appellant:
Sri Rajesh Khare, Sri Jitendra Kumar
Chakraborty

Counsel for the Respondent:
Sri Gulab Chandra

A. Civil Law-Hindu Marriage Act (25 of
1955) - S. 9 - Restitution of Conjugal
Rights
-
Case
filed
by
respondenthusband for restitution of conjugal rights
922 INDIAN LAW REPORTS ALLAHABAD SERIES
- husband made wild allegations against
wife of having illicit relationship - Held -
As there are allegations and counter
allegations from both the sides, no decree
under Section 9 could have been passed
(Para 39)

B. Civil Law-Hindu Marriage Act (25 of
1955) - S.13(1)(ia) - Divorce - Mental
Cruelty - demand of dowry, husband
forcing appellant-wife to share bed with his
friends & colleagues and making allegation
against wife of having illicit relationship
with her brother-in law - Held - coercing
wife to do such act which cannot be
justified and expected from any husband -
amounts to mental cruelty (Para 45)

C. Civil Law- Hindu Marriage Act (25 of
1955) - S.13(1)(ia) - Divorce - Cruelty -
Irretrievable breakdown of marriage -
divorce
on
ground
of
irretrievable
breakdown of marriage can be granted -
where both parties level such grave
allegations against each other - that the
marriage appears to be practically dead &
completely broken down - and no chance of
survival of marriage remains

Serious charges against each other regarding
character - parties living separately for last nine
years - married life existed for brief period -
despite efforts of the Trial Court as well as High
Court - reconciliation failed - Held - Appellant -
wife subjected to mental cruelty by the husband -
marriage completely broken down & no chance of
survival remains - wife entitled for a decree of
divorce - Order of Family Court, set aside -
Divorce granted (Para 46)

D. Civil Law-Hindu Marriage Act (25 of
1955) - S. 25 - Permanent alimony -
Neither any application for permanent
alimony filed by the appellant- wife nor any
oral prayer made during the course of
argument, or at the time of reconciliation -
Permanent alimony not granted
(Para 50)

E. Civil Law-Hindu Marriage Act (25 of
1955) - S.13(1)(ia) - Divorce - Limitation -
petition for divorce on the ground of mental
cruelty may be presented even within two
years of marriage (Para 48)

F. Civil Law-Hindu Marriage Act (25 of
1955) - Matrimonial proceedings - Practice
& Procedure - Matrimonial proceedings
cannot be simply decided on the basis of
mere evidence on record - Court has to
decide on the circumstances which led to
the filing of the case - grave allegation
made by wife that her husband forced her
to share bed with his friends & colleagues -
cannot be proved by the wife by any
evidence except her testimony (Para 37, 38,
41)

First Appeal allowed. (E-5)

List of cases cited :

1. Vishnu Dutt Sharma Vs Manju Sharma
2009(6) SCC 379

2. Darshan Gupta Vs Radhika Gupta, 2013
(9) SCC 1

3. Samar Ghosh Vs Jaya Ghosh 2007 (4)
SCC 511

4. Sirajmohmedkhan Janmohamadkhan Vs
Hafizunnisa Yasinkhan and another (1981)
4 SCC 250

5. V. Bhagat Vs D. Bhagat (1994) 1 SCC
337

6. Dr. N.G. Dastane Vs Mrs. S. Dastane
(1975) 2 SCC 326

7. Savitri Pandey Vs Prem Chandra Pandey
(2002) 2 SCC 73

8. A. Jayachandra Vs Aneel Kaur (2005) 2
SCC 22

9. Naveen Kohli Vs Neelu Kohli 2006 (4)
SCC 558
10. Ms. Jorden Diengdeh Vs S.S. Chopra
AIR 1985 SC 935

11. Geeta Mullick Vs Brojo Gopal Mullick,
IR 2003 Calcutta 331
2 All. Smt. Monika Gupta Vs. Jitendra Gandhi
923
12. Tapan Kumar Chakraborty Vs Jyotsna
Chakraborty, AIR 1997 Calcutta 134

(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. Both the appeals arise out of
common order of Principal Judge, Family
Court, Jhansi dated 18.1.2016 passed in
Case No.205 of 2011 filed by the appellant
(Smt. Monika Gupta Vs. Jitendra Gandhi),
under Section 13 of the Hindu Marriage
Act and Case No.94 of 2011 (Jitendra
Gandhi Vs. Smt. Monika Gupta), under
Section 9 of the Hindu Marrigate Act.

2. Case No.205 of 2011 was filed by
appellant, Smt. Monika Gupta against the
defendant/respondent under Section 13 of
the Hindu Marriage Act for annulling
marriage on 15.4.2011 before the Principal
Judge, Family Court, Jhansi. Case No.94
of 2011 was filed by respondent, Jitendra
Gandhi under Section 9 of the Hindu
Marriage Act for restitution of conjugal
rights before the Court of Additional
Senior Civil Judge at Gandhi Dham
(Gujarat). The said case was transferred to
the Court of Principal Judge, Family Court
at Jhansi by orders of the Supreme Court
of India dated, 23.4.2012 passed on
Transfer Petition (C) No.166 of 2012.
Both the cases were tried together by the
Court below and was decided by common
order.

3. Plaintiff/appellant filed Case
No.205 of 2011 under Section 13 of the
Hindu Marriage Act for annulling the
marriage on the ground that she was
married to the defendant/respondent on
12.12.2009 according to Hindu rites and
custom
at
Dabra,
District
Gwalior
(Madhya Pradesh). It was contended that
when she was 7 years old, both her parents
died, and she was brought up along with
her two brothers by her maternal uncle and
aunt (Mausa and mausi). It is they who
had performed the ceremony of 'Kanyadan'
and gave dowry as per their status. It was
contended that after marriage, there was
constant demand for dowry by the in-laws
and appellant was not treated well. For
three weeks, she stayed at her in-laws
house and, thereafter came to her maternal
home along with her brother and after
living for 15 days, she again went back to
her in-laws house from where her husband
took her to Gandhi Dham, Gujarat.

4. In paragraph no.5 of the plaint, it
has been specifically stated that at Gandhi
Dham (Gujarat), the respondent started
pressurising the appellant for sharing bed
and having physical relation with his
friends, on refusing to do so, she was
beaten by her husband. In paragraph 6 of
the plaint it is stated that appellant had
intimated this to her in laws, but they were
not helpful and scolded her saying wife
has to obey her husband. It is further stated
in paragraph no.8 that she lived at Gandhi
Dham till 7.11.2010 and, thereafter, she
returned with her brother to her maternal
home at Jhansi.

5. The said case was contested by the
defendant/respondent by filing his written
statement and in the additional pleas, it
was stated that the appellant did not want
to live at Gandhi Dham and was forcing
the respondent to live at Jhansi. It was
further averred that appellant and her two
brothers are not in control of her maternal
uncle and aunt. It is further stated that
appellant would quarrel and fight for petty
things and she was not interested in doing
domestic work and she did not want to live
along with family members of the
respondent and was always pressurizing
924 INDIAN LAW REPORTS ALLAHABAD SERIES
him to live separately. It has also been
contended that she had been pressurizing
the respondent for claiming his share in
the family property, consequence of which
the parents of the respondent after, giving
his share had snapped ties with the
respondent and the appellant. It was
further stated that the appellant was having
extra marital relation with her brother-inlaw (Jija).

6. The defendant/respondent filed
Case No.94 of 2011 under Section 9 of the
Hindu Marriage Act, for restitution of
conjugal rights before the Additional
Senior Civil Judge at Gandhi Dham. In the
said case, he made the same allegation that
appellant displayed strange behaviour after
returning from her parental house. The
said case, after being transferred from
Gandhi Dham to the Court of Principal
Judge, Family Court at Jhansi was
contested by the appellant who filed her
written statement denying the said facts
and reiterated the case set up by her in her
case under Section 13 of the Hindu
Marriage Act in the additional pleas.

7. As in both the cases, the parties
were same, as such the Principal Judge,
Family Court proceeded to decide the
same together and following issues were
framed :-

"1& D;k ;kph Jherh eksfudk xqIrk
dks foi{kh ftrsUnz xa/kh ls vyx jgus dk ;qfDr
;qDr ,oa vkSfpR;iw.kZ vk/kkj gS\

2& D;k ;kph Jherh eksfudk xqIrk
viuh ;kfpdk esa of.kZr rF;ksa ds vk/kkj ij
foi{kh ftrsUnz xa/kh ls fookg foPNsn dh vkKfIr
izkIr dh vf/kdkfj.kh gS\"

8. The Court below, thereafter
considering the oral and documentary
evidence proceeded to hold that appellant
has failed to prove her case for cruelty, nor
she could prove her case beyond doubt as
far as the allegation of sharing bed and
making physical relation with other men,
the Court below dismissed the case of the
appellant under Section 13 of the Hindu
Marriage Act and allowed the application
of the defendant/respondent under Section
9 for the restitution of conjugal rights.
Against the order dated 18.1.2016 passed
by the Principal Judge, Family Court,
Jhansi two appeals, First Appeal No.60
2016 filed by the appellant against the
order under Section 9 of the Hindu
Marriage Act and First Appeal No.61 of
2016 has been preferred against the
dismissal of the case under Section 13 of
the Hindu Marriage Act.

9. Both the appeals are being heard
and decided together as the same arises out
of common order of the Court below. This
Court before hearing the case on merits
had made an effort for reconciliation
between the parties on 25.4.2019, but the
effort for reconciliation failed.

10. From the pleadings of the parties
and from the perusal of the records of the
Court below, the question which emerges
for consideration is,

(i) whether the appellant is
entitled to a decree of divorce on the
ground of cruelty.

(ii)Whether
there
is
an
irretrievable break down of marriage
between the parties.

11. It is contended by the appellant
that court below while dealing with the
issue failed to record just, cogent and
reasonable finding disbelieving the fact of
allegation made by the appellant as far as
that
she
was
pressurized
by
2 All. Smt. Monika Gupta Vs. Jitendra Gandhi
925
defendant/respondent to share bed with
friends and colleagues. The Court below
should have visualized that lady like
appellant whose parents had passed away
in her childhood and was brought up by
her maternal uncle and aunt and she
having no source of livelihood would not
make such allegations against her husband
which could land her in a dangerous zone
unless
and
until
the
circumstances
compelled her to do so and the Principal
Judge, Family Court should not have taken
her allegations made in the plaint so
lightly and disbelieve for want of any
specific evidence. Further the allegations
made by the respondent in the additional
pleas of the written statement filed in
proceedings under Section 13, as well as in
petition under Section 9 of the Hindu
Marriage Act that appellant was having an
illicit relationship with her brother in law
also amounted to mental as well as legal
cruelty.

12. It has also been argued that the
Court below had not recorded any finding
in respect of specific pleadings as well as
testimony put forward and the court below
while coming to the conclusion that no
mental cruelty has been established by the
appellant, as such was not entitled to a
decree of divorce.

13. Sri Gulab Chand, counsel
appearing for the husband submitted that
the appellant failed to prove cruelty, as
alleged by her and the trial court was
correct in dismissing her case for divorce.
It was submitted that appellant was a
highly qualified lady and she had ample
opportunity to make complaint directly or
through electronic process/message, but
she did not availed the same and there was
no evidence on record to establish the
charge of cruelty. It was further contended
that
defendant
(husband)
had
got
examined the landlord before the court
below who adduced that the appellant was
never subjected to any cruelty at hands of
the respondent-husband.

14. Sri Gulab Chand, counsel for the
respondent vehemently argued that this
Court has got no jurisdiction to grant a
decree of divorce on the ground of
irretrievable break down of marriage, as
Section 13(1)of the Hindu Marriage Act
does not mandate, as a ground for
annulling the marriage. He relied upon two
judgments of the Apex Court in the case of
Vishnu
Dutt
Sharma
vs.
Manju
Sharma, 2009(6) SCC 379 and Darshan
Gupta vs. Radhika Gupta, 2013 (9) SCC
1 wherein the Apex Court has held that
irretrievable break down of marriage is not
a ground for divorce under the Hindu
Marriage Act.

15. Further reliance was placed upon
the provisions of sub-Section (1) (i-b) of
Section 13 of the Hindu Marriage Act
1955 whereby petition for divorce could
not be presented unless two years have
passed since either of the parties has
deserted.

16. We have heard Sri Jitendra
Kumar Chakraborty and Sri Rajesh Khare,
learned Counsel for the appellant and Sri
Gulab Chandra, learned Counsel for
respondents and have perused the records
of the case.

17. In the present case, appellant had
filed case under Section 13 of the Hindu
Marriage Act for annulling the marriage
on the ground of cruelty. The Apex Court
in depth had examined the word "cruelty"
in the case of Samar Ghosh Vs. Jaya
Ghosh, 2007 (4) SCC 511 in Paragraph
926 INDIAN LAW REPORTS ALLAHABAD SERIES
nos.38, 39, 40, 41, 42 and 43 which are as
under:-

"38.
Before
we
critically
examine both the judgments in the light of
settled law, it has become imperative to
understand and comprehend the concept
of cruelty.

39.
The
Shorter
Oxford
Dictionary defines 'cruelty' as 'the quality
of being cruel; disposition of inflicting
suffering; delight in or indifference to
another's
pain;
mercilessness;
hardheartedness'.

40. The term "mental cruelty"
has been defined in the Black's Law
Dictionary [8th Edition, 2004] as under:

"Mental Cruelty - 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."

41. 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."

42.
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."

43. In the instant case, our
main endeavour would be to define
broad parameters of the concept of
'mental cruelty'. Thereafter, we would
strive
to
determine
whether
the
instances of mental cruelty enumerated
in this case by the appellant would
cumulatively be adequate to grant a
decree of divorce on the ground of
mental cruelty according to the settled
legal position as crystallized by a
2 All. Smt. Monika Gupta Vs. Jitendra Gandhi
927
number of cases of this Court and
other Courts."

18. The concept of legal cruelity has
been dealt with by the Supreme Court in
case
of
Sirajmohmedkhan
Janmohamadkhan
Vs.
Hafizunnisa
Yasinkhan and another, (1981) 4 SCC
250, which is as under :-

"29. In Sm. Pancho v. Ram
Prasad, Roy, J. while dealing with the
Hindu Married Women's Right to Separate
Residence and Maintenance Act (19 of
1946) expounded the concept of 'legal
cruelty' and observed thus:

"In advancement of a remedial
statute, everything is to be done that can
be done consistently with a proper
construction of it even though it may be
necessary to extend enacting words
beyond their natural import and effect.

Conception
of
legal
cruelty
undergoes changes according to the
changes and advance of social concept
and
standards
of
living.
With
the
advancement 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."

19. Supreme Court in case of V. Bhagat
Vs. D. Bhagat, (1994) 1 SCC 337 in Para 16,
while dealing with mental cruelty held as
under :-

"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. "

20. Further the Apex Court in case of
Dr. N.G. Dastane Vs. Mrs. S. Dastane,
(1975) 2 SCC 326 Para 30 has observed as
under :-

"30. An awareness of foreign
decisions could be a useful asset in
interpreting our own laws. But it has to be
remembered that we have to interpret in
this case a specific provision of a specific
enactment, namely, section 10(1) (b) of the
Act. What constitutes cruelty must depend
upon the terms of this statute which
provides :

"10(1)
Either
party
to
a
marriage, whether solemnized before or
928 INDIAN LAW REPORTS ALLAHABAD SERIES
after the commencement of this Act, may
present a petition to the district court
praying
for
a
decree
for
judicial
separation on the ground that the other
party-

(b) has treated the petitioner
with such cruelty as to cause areasonable
apprehension in the mind of the petitioner
that it will be harmful or injurious for the
petitioner to live with the other party;"

The inquiry therefore has to be
whether the conduct charged a,.- 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. 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."

21. In Savitri Pandey Vs. Prem
Chandra Pandey, (2002) 2 SCC 73, the
Apex Court while dealing with cruelty in
Para 6 held as under :-

"6. Treating the petitioner with
cruelty is a ground for divorce under Section
13(1)(ia) of the Act. Cruelty has not been
defined under the Act but in relation to
matrimonial matters it is contemplated as a
conduct of such type which endangers the
living of the petitioner with the respondent.
Cruelty consists of acts which are dangerous
to life, limb or health. Cruelty for the purpose
of the Act means where one spouse has so
treated the other and manifested such feelings
towards her or him as to have inflicted bodily
injury, or to have caused reasonable
apprehension of bodily injury, suffering or to
have injured health. Cruelty may be physical
or mental. Mental cruelty is the conduct of
other spouse which causes mental suffering or
fear to the matrimonial life of the other.
"Cruelty", therefore, postulates a treatment of
the petitioner with such cruelty as to cause a
reasonable apprehension in his or her mind
that it would be harmful or injurious for the
petitioner to live with the other party. Cruelty,
however, has to be distinguished from the
ordinary wear and tear of family life. It cannot
be decided on the basis of the sensitivity of the
petitioner and has to be adjudged on the basis
of the course of conduct which would, in
general, be dangerous for a spouse to live with
the other. In the instant case both the trial
court as well as the High Court have found on
facts that the wife had failed to prove the
allegations of cruelty attributed to the
respondent. Concurrent findings of fact
arrived at by the courts cannot be disturbed by
this Court in exercise of powers under Article
136 of the Constitution of India. Otherwise
also the averments made in the petition and the
evidence led in support thereof clearly shows
that the allegations, even if held to have been
proved, would only show the sensitivity of the
appellant with respect to the conduct of the
respondent which cannot be termed more than
ordinary wear and tear of the family life."

22. In A. Jayachandra Vs. Aneel
Kaur, (2005) 2 SCC 22 in Paragraph
nos.10, 12 and 13, the Apex Court held as
under :-

"10. The expression "cruelty"
has not been defined in the Act. Cruelty
can be physical or mental. Cruelty which
is a ground for dissolution of marriage
may be defined as willful and unjustifiable
conduct of such character as to cause
danger to life, limb or health, bodily or
2 All. Smt. Monika Gupta Vs. Jitendra Gandhi
929
mental, or as to give rise to a reasonable
apprehension of such a danger. 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, environment in which they
live. Cruelty, as noted above, includes
mental cruelty, which falls within the
purview of a matrimonial wrong. Cruelty
need not be physical. If from the conduct
of his spouse same is established and/or
an inference can be legitimately 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 this conduct amounts
to cruelty. In delicate human relationship
like matrimony, one has to see the
probabilities of the case. The concept, a
proof beyond the shadow of doubt, is to be
applied to criminal trials and not to civil
matters and certainly not to matters of
such delicate personal relationship as
those of husband and wife. Therefore, one
has to see what are the probabilities in a
case and legal cruelty has to be found out,
not merely as a matter of fact, but as the
effect on the mind of the complainant
spouse because of the acts or omissions of
the other. Cruelty may be physical or
corporeal or may be mental. In physical
cruelty, there can be tangible and direct
evidence, but in the case of mental cruelty
there may not at the same time be direct
evidence. In cases where there is no direct
evidence, Courts are required to probe
into the mental process and mental effect
of incidents that are brought out in
evidence. It is in this view that one has to
consider the evidence in matrimonial
disputes.

12. To constitute cruelty, the
conduct complained of should be "grave
and weighty" so as to come to the
conclusion that the petitioner spouse
cannot be reasonably expected to live with
the other spouse. It must be something
more serious than "ordinary wear and tear
of married life". The conduct, taking into
consideration
the
circumstances
and
background has to be examined to reach
the conclusion whether the conduct
complained of amounts to cruelty in the
matrimonial law. Conduct has to be
considered, as noted above, in the
background of several factors such as
social status of parties, their education,
physical and mental conditions, customs
and traditions. It is difficult to lay down a
precise definition or to give exhaustive
description of the circumstances, which
would constitute cruelty. It must be of the
type as to satisfy the conscience of the
Court that the relationship between the
parties had deteriorated to such an extent
due to the conduct of the other spouse that
it would be impossible for them to live
together without mental agony, torture or
distress, to entitle the complaining spouse
to secure divorce. Physical violence is not
absolutely essential to constitute cruelty
and a consistent course of conduct
inflicting immeasurable mental agony and
torture may well constitute cruelty within
the meaning of Section 10 of the Act.
Mental cruelty may consist of verbal
abuses and insults by using filthy and
abusive language leading to constant
disturbance of mental peace of the other
party.

13. The Court dealing with the
petition for divorce on the ground of
cruelty has to bear in mind that the
problems before it are those of human
beings and the psychological changes in a
spouse's conduct have to be borne in mind
before disposing of the petition for
divorce. However insignificant or trifling,
such conduct may cause pain in the mind
930 INDIAN LAW REPORTS ALLAHABAD SERIES
of another. But before the conduct can be
called cruelty, it must touch a certain pitch
of severity. It is for the Court to weigh the
gravity. It has to be seen whether the
conduct was such that no reasonable
person would tolerate it. It has to be
considered
whether
the
complainant
should be called upon to endure as a part
of normal human life. Every matrimonial
conduct, which may cause annoyance to
the other, may not amount to cruelty. Mere
trivial
irritations,
quarrels
between
spouses, which happen in day-to-day
married life, may also not amount to
cruelty. Cruelty in matrimonial life may be
of unfounded variety, which can be subtle
or brutal. It may be words, gestures or by
mere silence, violent or non-violent."

23. Further the Apex Court in case of
Samar Ghosh (supra) laid down the
guidelines to enumerate some instances of
human behaviour which may be relevant
in dealing with the case of 'mental cruelty',
paragraph no.101 of the judgment is
extracted herein as under :-

"101. No uniform standard can
ever be laid down for guidance, yet we
deem it appropriate to enumerate some
instances of human behaviour which may
be relevant in dealing with the cases of
'mental cruelty'. The instances indicated in
the succeeding paragraphs are only
illustrative and not exhaustive.

(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 behaviour 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
2 All. Smt. Monika Gupta Vs. Jitendra Gandhi
931
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
behaviour 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 (xiii)
Unilateral decision of either husband or
wife after marriage not to have child from
the marriage may amount to cruelty.

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

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

24. Section 13 of the Hindu Marriage
Act, 1955 provides for grounds on which
petition can be presented for divorce.
Cruelty is one of the ground on which, a
petition for divorce can be filed, but where
there
is
irretrievable
breakdown
of
marriage, no petition can be filed. The
Law Commission of India in its 71st report
titled "The Hindu Marriage Act, 1955 -
Irretrievable Break Down Of Marriage as
a Ground of Divorce" recommended
amendments in the Hindu Marriage Act as
a new ground for granting divorce among
the Hindus. But the recommendation of
the Law Commission of India was not
accepted.

25. The Supreme Court in case of
Naveen Kohli Vs. Neelu Kohli, 2006 (4)
SCC 558, while considering the concept
of irretrievable breakdown of marriage
held as under:-

"80. Since there is no acceptable
way in which a spouse can be compelled to
resume life with the consort, nothing is
gained by trying to keep the parties tied
for ever to a marriage that in fact has
ceased to exist.

81. Some jurists have also
expressed
their
apprehension
for
introduction of irretrievable breakdown of
marriage as a ground for grant of the
decree of divorce. In their opinion, such
an amendment in the Act would put human
ingenuity at a premium and throw wide
open the doors to litigation, and will
create more problems then are sought to
be solved.

82. The other majority view,
which is shared by most jurists, according
to the Law Commission Report, is that
human life has a short span and situations
causing misery cannot be allowed to
continue indefinitely. A halt has to be
called at some stage. Law cannot turn a
blind eye to such situations, nor can it
932 INDIAN LAW REPORTS ALLAHABAD SERIES
decline to give adequate response to the
necessities arising therefrom.

88. Even at this stage, the
respondent does not want divorce by
mutual consent. From the analysis and
evaluation of the entire evidence, it is
clear that the respondent has resolved to
live in agony only to make life a miserable
hell for the appellant as well. This type of
adamant and callous attitude, in the
context of the facts of this case, leaves no
manner of doubt in our mind that the
respondent is bent upon treating the
appellant with mental cruelty. It is
abundantly
clear
that
the
marriage
between the parties had broken down
irretrievably and there is no chance of
their coming together, or living together
again.

89. The High Court ought to
have
appreciated
that
there
is
no
acceptable way in which the parties can be
compelled to resume life with the consort,
nothing is gained by trying to keep the
parties tied forever to a marriage that in
fact has ceased to exist.

90.
Undoubtedly,
it
is
the
obligation of the Court and all concerned
that the marriage status should, as far as
possible, as long as possible and whenever
possible, be maintained, but when the
marriage is totally dead, in that event,
nothing is gained by trying to keep the
parties tied forever to a marriage which in
fact has ceased to exist. In the instant case,
there has been total disappearance of
emotional substratum in the marriage. The
course which has been adopted by the
High Court would encourage continuous
bickering, perpetual bitterness and may
lead to immorality. "

.

26. Earlier in case of Samar Ghosh
(supra), the Supreme Court referred to
71st report of the Law Commission of
India on "Irretrievable breakdown of
marriage" with approval as follows:-

"90. We have examined and
referred to the cases from the various
countries. We find strong basic similarity
in adjudication of cases relating to mental
cruelty in matrimonial matters. Now, we
deem it appropriate to deal with the 71st
report of the Law Commission of India on
"Irretrievable Breakdown of Marriage".

91. The 71st Report of the Law
Commission of India briefly dealt with the
concept of irretrievable breakdown of
marriage. This Report was submitted to
the Government on 7th April, 1978. In this
Report, it is mentioned that during last 20
years or so, and now it would be around
50 years, a very important question has
engaged the attention of lawyers, social
scientists and men of affairs, should the
grant of divorce be based on the fault of
the party, or should it be based on the
breakdown of the marriage? The former is
known as the matrimonial offence theory
or fault theory. The latter has come to be
known as the breakdown theory. It would
be
relevant
to
recapitulate
recommendation of the said Report.

92. In the Report, it is mentioned
that the germ of the breakdown theory, so
far as Commonwealth countries are
concerned, may be found in the legislative
and judicial developments during a much
earlier period. The (New Zealand) Divorce
and Matrimonial Causes Amendment Act,
1920, included for the first time the
provision that a separation agreement for
three years or more was a ground for
making a petition to the court for divorce
and the court was given a discretion
(without guidelines) whether to grant the
divorce or not. The discretion conferred by
this statute was exercised in a case Lodder
v. Lodder Salmond, J., in a passage which
2 All. Smt. Monika Gupta Vs.