# Smt. Neelam Devi v. Vikas Singh

- **Citation:** (2020) 12 ILRA 579
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-15
- **Case number:** First Appeal No. 305 of 2017
- **Bench:** Shashi Kant Gupta, Vipin Chandra Dixit
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-neelam-devi-v-vikas-singh-45467
- **Pages:** 13

## Headnote

Civil Law -Hindu Marriage Act (25 of 1955)
- Section 13(1)(ia) - Divorce - On grounds
of 'cruelty'
- Cruelty in relation to
matrimonial matters consists of acts
where one spouse has so treated the other
& manifested such feelings towards her or
him as to have inflicted bodily injury, or to
have caused reasonable apprehension of
bodily injury, suffering - Cruelty consists
of conduct of such nature as to cause a
reasonable apprehension in petitioner's
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 - Mere trivial irritations,
quarrels, which happens in day to day life
would not be adequate for grant of
divorce - Ill-conduct must be persistent
for a fairly lengthy period, where the
relationship has deteriorated to an extent
that the wronged party finds it extremely
difficult to live with the other party (Para
9, 14)

Husband filed divorce petition on the ground of
cruelty and desertion by wife - allegation that
wife had not performed her matrimonial
obligations for last 6 years, putting pressure
upon him to live separately, regularly talked on
telephone to some unknown person and on
being queried she used to quarrel - Family court
disbelieved allegations of adultery however the
divorce petition was allowed on the ground that
wife used to live at her parental house & made
allegations against her husband without any
basis amounting to cruelty - Held - Wife not
living separately on account of her own free-will
but always ready and is still ready to live with
husband but husband refused to live with wife -
Husband failed to establish that wife committed
cruelty or deserted him without any sufficient
reasons - Decree of divorce set aside. (Para 17
18 19)

Appeal allowed. (E-5)

List of Cases cited: -

## Text

_Characters 0–39,973 of 45,631. This is a partial read: ask again with offset=39973 for what follows._

12 All. Smt. Neelam Devi Vs. Vikas Singh
579
performance of statutory duty by the party,
against whom mandamus is prayed for. In
other words, in the absence of a judicially
enforceable or a legally protected right, no
writ in the nature of mandamus can be
issued. The petitioner has no such right.

10. In view of the above, the
application filed by the petitioner on behalf
of accused-son is not at all maintainable, as
the State respondent is not duty bound to
decide
the
application
filed
by
the
petitioner.

11.

Therefore,
the
preliminary
objection so raised by the learned A.G.A.
has force and is sustained.

12. The present writ petition is totally
misconceived
and
is,
accordingly,
dismissed as not maintainable.
----------
(2020)12ILR A579
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.10.2020

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE VIPIN CHANDRA DIXIT, J.

First Appeal No. 305 of 2017

Smt. Neelam Devi ...Appellant
Versus
Vikas Singh ...Respondent

Counsel for the Appelant:
Sri Arun K. Singh Deshwal

Counsel for the Respondent:
Sri Manoj Kumar Tripathi, Sri Namit
Srivastava, Sri Naresh Chandra Tripathi

Civil Law -Hindu Marriage Act (25 of 1955)
- Section 13(1)(ia) - Divorce - On grounds
of 'cruelty'
- Cruelty in relation to
matrimonial matters consists of acts
where one spouse has so treated the other
& manifested such feelings towards her or
him as to have inflicted bodily injury, or to
have caused reasonable apprehension of
bodily injury, suffering - Cruelty consists
of conduct of such nature as to cause a
reasonable apprehension in petitioner's
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 - Mere trivial irritations,
quarrels, which happens in day to day life
would not be adequate for grant of
divorce - Ill-conduct must be persistent
for a fairly lengthy period, where the
relationship has deteriorated to an extent
that the wronged party finds it extremely
difficult to live with the other party (Para
9, 14)

Husband filed divorce petition on the ground of
cruelty and desertion by wife - allegation that
wife had not performed her matrimonial
obligations for last 6 years, putting pressure
upon him to live separately, regularly talked on
telephone to some unknown person and on
being queried she used to quarrel - Family court
disbelieved allegations of adultery however the
divorce petition was allowed on the ground that
wife used to live at her parental house & made
allegations against her husband without any
basis amounting to cruelty - Held - Wife not
living separately on account of her own free-will
but always ready and is still ready to live with
husband but husband refused to live with wife -
Husband failed to establish that wife committed
cruelty or deserted him without any sufficient
reasons - Decree of divorce set aside. (Para 17
18 19)

Appeal allowed. (E-5)

List of Cases cited: -

1. Savitri Pandey Vs Prem Chandra Pandey,
(2002) 2 SCC 73, AIR 2002 SC 591

2. Hitesh Bhatnager Vs Deepa Bhatnagar AIR
2011 SC1637

3. Smt.Sarita Devi Vs Sri Ashok Kumar Singh
2018 (3) AWC 2328
580 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Kusum Lata Vs Kamta Prasad AIR 1965 All
280

5. Narayan Ganesh Dastane Vs Sucheta Narayan
Dastane AIR 1975 SC 1534

6. Manjeet Kaur Vs Avtar Singh 2001 Hindu Law
Report 614.

(Delivered by Hon'ble V.C. Dixit, J.)

1. This first appeal has been filed by
defendant appellant under Section 19 of
Family Courts Act, 1984 (hereinafter
referred as Act, 1984) against the judgment
and decree dated 25.3.2017 passed by
Principal Judge, Family Court, Hapur in
Case No. 487 of 2011 (Vikas Singh Vs.
Smt. Neelam Devi) filed under Section 13
of Hindu Marriage Act, 1955 (hereinafter
referred as Act, 1955), by which the
divorce suit filed by plaintiff respondent
was decreed.

2. The divorce petition was filed by
respondent husband with the allegation that
his marriage was solemnized with the
defendant
appellant
on
20.6.2002
in
accordance with Hindu rituals without
dowry at village Nayazpur Khaiya, Pargana
and Tehsile Garh Mukteshwer, Ghaziabad,
the parental house of the defendant
appellant. After marriage the plaintiff
respondent brought defendant appellant to
his house at Garh Road, Kuvesher Chaupla,
Pargana and Tehsile Hapur, Ghaziabad. He
performed his obligations of being a
husband and led a happy married life and
fulfilled all genuine demand of his wife
according to his status. Their daughter
namely Km. Lavi was born on 1.1.2004. It
is alleged that after two years of marriage
the relationship of the parties strained and
defendant started creating trouble asking to
live separately with the family. It is further
alleged that the defendant wife was not
ready to do household chores and had
starting
quarreling
with
the
plaintiff
husband. It is further alleged that she
started frequently visiting her parental
house without plaintiff's permission. Apart
from this she regularly talked on telephone
to some unknown person and on being
queried she used to quarrel. On 27.3.2010
when plaintiff was out of his house, the
defendant was talking on telephone to some
unknown person and on reaching home the
plaintiff inquired with whom she was
talking to, the defendant annoyingly
threatened to murder him. On the very
same day her father and brother came to the
plaintiff's house to beat him and his mother.
The father and brother took the defendant
wife and Km. Lavi to her maternal home
and while leaving removed Rs. 60,000/-
and 20 'tola' gold from plaintiff's house. It
is further submitted that the wife had not
performed her matrimonial obligations for
last 6 years. It is further alleged that the
wife had lodged a false case which was
registered as Case Crime 23 of 2010 in
Mahila
Thana,
Meerut
which
was
subsequently withdrawn on the intervention
of respected people and relatives. parties
agreed to pursue divorce by mutual
consent. Divorce petition was filed under
Section 13 B of Act, 1955 on 9.4.2010
which was registered as Case No. 176 of
2010 but the same was subsequently
withdrawn on 16.8.2011 on the application
filed by the defendant appellant. When the
defendant
appellant
refused
to
live
together, under compelling circumstances
the present divorce petition was filed
seeking divorce on the ground of cruelty.

3. The defendant appellant on being
notice had contested the divorce petition by
filing
written
statement
denying
the
allegations of the divorce petition. It was
stated that her father had spent Rs.15 lakhs
12 All. Smt. Neelam Devi Vs. Vikas Singh
581
and had provided all house hold articles at
the time of marriage but the family of
husband were not happy with the dowry
furthermore they demanded a car and Rs. 2
lakhs cash. This illegal demand of dowry
was not fulfilled by her father and as such
the family members of husband had started
abusing
and
harassing
the
appellant
defendant. It is further alleged that the
husband had an illicit relation with a
married woman of the locality and was
leading an adulterous life. When the illegal
demand of dowry was not fulfilled she was
beaten by the husband and his family
members and was thrown out of the house
along with her daughter Km. Lavi on
27.3.2010. She lodged a first information
report in Mahila Thana which was
registered as Case Crime No. 23 of 2010
under Sections 498A, 323 I.P.C and 3/4
Dowry Act. A meeting was held at the
residence of brother in law (Jija) of the
plaintiff husband at Hapur on 4.4.2010 in
absence of defendant and the plaintiff
husband had refused to keep the defendant
as his wife. He asked for the divorce and
was ready to pay Rs.8 lakhs to the
defendant as permanent alimony and Rs.12
lakhs for maintenance of Km. Lavi. On the
pressure of father and other family
members the criminal case was withdrawn
by her. A divorce petition was filed under
Section 13B of Act, 1955 on 9.4.2010
which was registered as Case No. 176 of
2010, but even after filing of divorce
petition earlier filed with mutual consent
the plaintiff respondent neither paid agreed
amount to the defendant appellant nor
deposited the amount in the name of Km.
Lavi and as such divorce petition earlier
filed with mutual consent was withdrawn
subsequently
on
her
application
on
16.8.2011. It is also pleaded that she never
deserted the plaintiff respondent but the
plaintiff respondent himself had deserted
her for such a long period without any
sufficient reason and is not ready to keep
her as his wife. The allegations alleged in
the plaint regarding cruelty was specifically
denied and it was stated that she was
always ready and is still ready to live with
the plaintiff respondent and prayed that the
divorce suit filed by plaintiff respondent is
liable to be dismissed.

4. On the pleadings of the parties
following 2 issues were framed by the
learned Family Court:

1. Whether on the grounds
mentioned in the plaint, the marriage dated
20.06.2002 is liable to be dissolved ?

2. Relief ?

5. Both the parties had led their
evidence in support of their case. Plaintiff
respondent himself had appeared as P.W.1
and also produced copy of divorce petition
filed under section 13 B of Act, 1955 and
order passed therein whereas defendant
appellant herself had appeared as D.W. 1.

6. The learned Family Court had
allowed the divorce petition vide judgment
and decree dated 25.3.2017, which is
impugned in the present appeal.

7. Heard learned counsels for the
parties and perused the record as well as
written submissions and case laws filed by
respective parties.

8. The plaintiff-respondent had filed
the divorce petition seeking divorce on the
ground of cruelty alleging therein that the
wife frequently visited her parental house
without his permission and had put
pressure to live separately with the family
of plaintiff-respondent. Apart from this she
regularly talked on telephone to some
582 INDIAN LAW REPORTS ALLAHABAD SERIES
unknown person whereas the defendant
appellant had denied these allegation. It
was pleaded that on account of nonfulfilment of dowry, the husband and the
family members had harassed the appellant.
It was also alleged that the plaintiff
respondent had an illicit relationship with a
married women of the locality and was
living an adulterous life. Learned family
court had disbelieved the allegations of
adultery alleged by both the husband and
the wife against each other but the divorce
petition was allowed by the judgment and
decree dated 25.3.2017 on the ground that
behaviour of wife is not like an ideal lady
as she used to live at her parental house and
make allegations against her husband
without any basis which amounting to
cruelty.

9. The decree of divorce has been
challenged in the present appeal by the
defendant appellant on the ground that the
learned family court has not recorded any
finding regarding persistent or repeated
cruelty on the part of appellant as required
by Section 13-(ia) of Hindu Marriage Act,
1955. The learned court below had wrongly
shifted the burden to prove the ground of
cruelty on the appellant-defendant rather it
was to be proved by plaintiff-respondent.
The counsel for the appellant-wife relied
upon the para-6 of the judgment of Hon'ble
Supreme Court in the case of Savitri
Pandey vs. Prem Chandra Pandey reported
in AIR 2002 SC 591, which is quoted
herein below:

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.

10. Learned counsel for the appellant
has further submitted that the court below
had failed to consider that the wife wants to
12 All. Smt. Neelam Devi Vs. Vikas Singh
583
live with her husband and has erroneously
ignored the specific averment in written
statement as well as the oral statement of
the wife in this regard before the court
below. It has further been argued by the
learned counsel for the appellant-defendant
that the impugned judgment was also
passed on the ground of irretrievable
breakdown of marriage eventhough it is not
the statutory ground under Section 13 of
the Hindu Marriage Act, 1955, infact
husband himself had denied to keep the
appellant with him. The reliance has been
placed on para 7, 7A, 13 & 16 of Savitri
Pandey's case (supra).

7. No decree of divorce could be
granted on the ground of desertion in the
absence of pleading and proof. Learned
counsel for the appellant submitted that
even in the absence of specific issue, the
parties had led evidence and there was
sufficient material for the Family Court to
return a verdict of desertion having been
proved. In the light of the submissions
made by the learned counsel, we have
opted to examine this aspect of the matter
despite the fact that there was no specific
issue framed or insisted to be framed.

7A. "Desertion", for the purpose
of seeking divorce under the Act, means the
intentional
permanent
forsaking
and
abandonment of one spouse by the other
without that other's consent and without
reasonable cause. In other words it is a
total repudiation of the obligations of
marriage. Desertion is not the withdrawal
from a place but from a state of things.
Desertion, therefore, means withdrawing
from the matrimonial obligations, i.e., not
permitting or allowing and facilitating the
cohabitation between the parties. The proof
of desertion has to be considered by taking
into consideration the concept of marriage
which
in
law
legalises
the
sexual
relationship between man and woman in
the society for the perpetuation of race,
permitting lawful indulgence in passion to
prevent licentiousness and for procreation
of children. Desertion is not a single act
complete in itself, it is a continuous course
of conduct to be determined under the facts
and circumstances of each case. After
referring to host of authorities and the
views of various authors, this Court in
Bipinchandra
Jaisinghbhai
Shah
v.
Prabhavati [AIR 1957 SC 176] held that if
a spouse abandons the other in a state of
temporary passions, for example, anger or
disgust without intending permanently to
cease cohabitation, it will not amount to
desertion. It further held:

"For the office of desertion, so far as
the deserting spouse is concerned, two
essential conditions must be there, namely
(1) the factum of separation, and (2) the
intention to bring cohabitation permanently
to an end (animus deserendi). Similarly two
elements are essential so far as the
deserted spouse is concerned: (1) the
absence of consent, and (2) absence of
conduct giving reasonable cause to the
spouse leaving the matrimonial home to
form the necessary intention aforesaid. The
petitioner for divorce bears the burden of
proving those elements in the two spouses
respectively. Here a different between the
English law and the law as enacted by the
Bombay Legislature may be pointed out.
Whereas under the English law those
essential
conditions
must
continue
throughout the course of the three years
immediately preceding the institution of the
suit for divorce, under the Act, the period is
four years without specifying that it should
immediately precede the commencement of
proceedings for divorce. Whether the
omission of the last clause has any
practical result need not detain us, as it
does not call for decision in the present
584 INDIAN LAW REPORTS ALLAHABAD SERIES
case. Desertion is a matter of inference to
be drawn from the facts and circumstances
of each case. The inference may be drawn
from certain facts which may not in another
case be capable of leading to the same
inference; that is to say, the facts have to
be viewed as to the purpose which is
revealed by those acts or by conduct and
expression of intention, both anterior and
subsequent to the actual acts of separation.
If, in fact, there has been a separation, the
essential question always is whether that
act could be attributable to an animus
deserendi.
The
offence
of
desertion
commences when the fact of separation and
the animus deserendi co-exist. But it is not
necessary that they should commence at the
same time. The de facto separation may
have commenced without the necessary
animus ort it may be that the separation
and the animus deserendi coincide in point
of time; for example, when the separating
spouse abandons the marital home with the
intention, express or implied, of bringing
cohabitation permanently to a close. The
law in England has prescribed a three
years
period
and
the
Bombay
Act
prescribed a period of four years as a
continuous period during which the two
elements must subsist. Hence, if a deserting
spouse takes advantage of the locus
poenitentiae thus provided by law and
decide to come back to the deserted spouse
by a bona fide offer of resuming the
matrimonial home with all the implications
of marital life, before the statutory period
is out or even after the lapse of that period,
unless proceedings for divorce have been
commenced, desertion comes to an end and
if the deserted spouse unreasonably refuses
to offer, the latter may be in desertion and
not the former. Hence it is necessary that
during all the period that there has been a
desertion, the deserted spouse must affirm
the marriage and be ready and willing to
resume married life on such conditions as
may be reasonable. It is also well settled
that in proceedings for divorce the plaintiff
must prove the offence of desertion, like
and other matrimonial offence, beyond all
reasonable
doubt.
Hence,
though
corroboration is not required as an
absolute rule of law the courts insist upon
corroborative evidence, unless its absence
is accounted for to the satisfaction of the
court."

13. In any proceedings under the Act
whether defended or not the court would
decline to grant relief to the petitioner if it
is found that the petitioner was taking
advantage of his or her own wrong or
disability for the purposes of the reliefs
contemplated under Section 23(1) of the
Act. No party can be permitted to carve out
the ground for destroying the family which
is the basic unit of the society. The
foundation of the family rests on the
institution of a legal and valid marriage.
Approach of the court should be to
preserve the matrimonial home and be
reluctant to dissolve the marriage on the
asking of one of the parties.

16. This Court in Ms.Jorden Diengdeh
v. S.S. Chopra [AIR 1985 SC 935]
suggested for a complete reform of law of
marriage and to make a uniform law
applicable to all people irrespective of
religion or caste. The Court observed:

"It appears to be necessary to
introduce irretrievable breakdown of marriage
and mutual consent as grounds of divorce in all
cases. .... There is no point or purpose to be
served by the continuance of a marriage which
has so completely and signally broken down.
We suggest that the time has come for the
intervention of legislature in these matters to
provide for a uniform code of marriage and
divorce and to provide by law for a way out of
the unhappy situation in which couples like the
present have found themselves."
12 All. Smt. Neelam Devi Vs. Vikas Singh
585

Marriage between the parties cannot
be dissolved only on the averments made by
one of the parties that as the marriage
between them has broken down, no useful
purpose would be served to keep it alive.
The legislature, in its wisdom, despite
observation of this Court has not thought it
proper to provide for dissolution of the
marriage on such averments. There may be
cases where, on facts, it is found that as the
marriage has become dead on account of
contributory acts of commission and
omission of the parties, no useful purpose
would be served by keeping such marriage
alive. The sanctity of marriage cannot be
left at the whims of one of the annoying
spouses. This Court in V. Bhagat v.
Mrs.D.Bhagat [AIR 1994 SC 710] held that
irretrievable breakdown of the marriage is
not a ground by itself to dissolve it.

11. It is also submitted by the learned
counsel for the appellant defendant that the
court below had relied upon the averment
of plaint that the petition for mutual divorce
under Section 13-B of Hindu Marriage Act,
1955 was filed, which proves readiness of
wife to seek divorce but had failed to
consider that the consent given by the
defendant appellant had already been
withdrawn before the stage of second
motion. Reliance has also been placed on
the paragraphs 7, 8 & 9 of the judgment of
Supreme Court in the case of Hitesh
Bhatnager vs. Deepa Bhatnagar reported in
AIR 2011 Supreme Court 1637, which are
reproduced herein below:

"7. The appellant, appearing inperson, submits that at the time of filing of
the petition, a settlement was reached
between the parties, wherein it was agreed
that he would pay her 3.5 lakhs, of which
he states he has already paid 1.5 lakhs in
three installments. He further states in his
appeal, as well as before us, that he is
willing to take care of the respondent's and
their daughter's future interest, by making
a substantial financial payment in order to
amicably settle the matter. However,
despite repeat efforts for a settlement, the
respondent is not agreeable to a decree of
divorce. She says that she wants to live with
the appellant as his wife, especially for the
future of their only child, Anamika.

8. The question whether consent once
given can be withdrawn in a proceeding for
divorce by mutual consent is no more res
integra. This Court, in the case of
Smt.Sureshta Devi vs. Om Prakash (1991)
2 SCC 25 : (AIR 1992 SC 1904), has
concluded this issue and the view expressed
in the said decision as of now holds the
field.

9. In the case of Sureshta Devi
(supra), this Court took the view:

"9. The 'living separately' for a period
of one year should be immediately
preceding the presentation of the petition.
It is necessary that immediately preceding
the presentation of petition, the parties
must have been living separately. The
expression 'living separately', connotes to
our mind not living like husband and wife.
It has no reference to the place of living.
The parties may live under the same roof
by force of circumstances, and yet they may
not be living in different houses and yet
they could live as husband and wife. What
seems to be necessary is that they have no
desire to perform marital obligations and
with that mental attitude they have been
living separately for a period of one year
immediately preceding the presentation of
the petition. The second requirement that
they 'have not been able to live together'
seems to indicate the concept of broken
down marriage and it would not be
possible to reconcile themselves. The third
requirement is that they have mutually
586 INDIAN LAW REPORTS ALLAHABAD SERIES
agreed that the marriage should be
dissolved.

10. Under sub-section (2) the parties
are required to make a joint motion not
earlier than six months after the date of
presentation of the petition and not later
than 18 months after the said date. This
motion enable the court to proceed with the
case in order to satisfy itself about the
genuineness of the averments in the petition
and also to find out whether the consent
was not obtained by force, fraud or undue
influence. The court may make such inquiry
as it thinks fit including the hearing or
examination of the parties for the purpose
of satisfying itself whether the averments in
the petition are true. If the court is satisfied
that the consent of parties was not obtained
by force, fraud or undue influence and they
have mutually agreed that the marriage
should be dissolved, it must pass a decree
of divorce."

On the question of whether one of the
parties may withdraw the consent at any
time before the actual decree of divorce is
passed, this Court held:

"13. From the analysis of the
section, it will be apparent that the filing of
the petition with mutual consent does not
authorize the court to make a decree for
divorce. There is a period of waiting from 6
to 18 months. This interregnum was
obviously intended to give time and
opportunity to the parties to reflect on their
move and seek advice from relations and
friends. In this transitional period one of
the parties may have a second thought and
change the mind not to proceed with the
petition. The spouse may not be a party to
the joint motion under sub-section (2).
There is nothing in the section which
prevents such course. The section does not
provide that if there is a change of mind it
should not be by one party alone, but by
both. The High Courts of Bombay and
Delhi have proceeded on the ground that
the crucial time for giving mutual consent
for divorce is the time of filing the petition
and not the time when they subsequently
move for divorce decree. This approach
appears to be untenable. Tat the time of the
petition by mutual consent, the parties are
not unaware that their petition does not by
itself snap marital ties. They know that they
have to take a further step to snap marital
ties. Sub-section (2) of Section 13-B is
clear on this point. It provides that "on the
motion of both the parties. ...if the petition
is not withdrawn in the meantime, the court
shall ... pass a decree of divorce ...". What
is significant in this provision is that there
should also be mutual consent when they
move the court with a request to pass a
decree of divorce. Secondly, the court shall
be satisfied about the bona fides and the
consent of the parties. If there is no mutual
consent at the time of enquiry, the court
gets no jurisdiction to make a decree for
divorce. If the view is otherwise, the court
could make en enquiry and pass a divorce
decree even at the instance of one of the
parties and against the consent of the
other. Such a decree cannot be regarded as
decree by mutual consent.

12. Learned counsel for the plaintiff
respondent had supported the impugned
judgment of family court on the ground that
the court below had recorded the finding to
the effect that the wife does not have a
conduct of an ideal lady and she has
committed cruelty against the husband and
had made false allegations of adultery
against him but failed to prove by adducing
any cogent evidence. It is further submitted
by learned counsel for the plaintiff
respondent that the wife had left the house
of the husband without any sufficient
reason and was residing at her parental
house for last three years. There was no
12 All. Smt. Neelam Devi Vs. Vikas Singh
587
relationship of husband and wife between
the parties. The learned counsel for the
respondent had relied upon the following
case laws:

a. Kusum Lata vs. Kamta Prasad AIR
1965 All 280,

b. Narayan Ganesh Dastane vs.
Sucheta Narayan Dastane AIR 1975 SC
1534,
and

c. Manjeet Kaur vs. Avtar Singh 2001
Hindu Law Report 614.

13. The aforesaid judgments were
also relied by the learned Family Court,
while dealing with the terms 'cruelty'.

14. The Division Bench of this Court
in the case of Smt.Sarita Devi vs. Sri
Ashok Kumar Singh reported in 2018 (3)
AWC 2328 has considered very widely the
term 'cruelty' after relying the several
judgments of Hon'ble Apex Court. The
relevant paragraphs 18, 19, 20, 21, 22, 23,
24, 25, 27 and 29 of the judgment are
reproduced herein below:

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. 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
588 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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
12 All. Smt. Neelam Devi Vs. Vikas Singh
589
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:

"(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
590 INDIAN LAW REPORTS ALLAHABAD SERIES
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.