# Surendra Pratap Singh v. Dr. Vishwaraj Singh

- **Citation:** (2021) 6 ILRA 118
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-06
- **Case number:** First Appeal No. 327 of 2017
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendra-pratap-singh-v-dr-vishwaraj-singh-45136
- **Pages:** 13

## Headnote

A. Civil Law - Hindu Marriage Act, 1955 -
Section 13 (ia) - Family Courts Act, 1984
- Section 19(1) - Matrimonial dispute -
Divorce on the ground of cruelty - Cruelty,
scope and application thereof - 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 - Mental cruelty
is the conduct of other spouse which
causes
mental
suffering
or
fear
to
matrimonial life of other. It 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 - Held, plaint do not satisfy
pleadings needed for a case of divorce
founded on cruelty and that being so,
evidence also has not been led to prove
cruelty - Trial Court's order holding that
plaintiff-appellant has failed to prove
cruelty, affirmed. (Para 26, 28 and 32)

B. Hindu Marriage Act, 1955 - Section 13
- Divorce - Ground of irretrievable break
down, application thereof - Parties are
living separately for the last one year -
Held, under Section 13 of Act, 1955,
divorce is not permitted on the ground
that marriage has become irretrievable -
Power of Supreme Court under Article 42
of the Constitution is not vested in High
Court. (Para 33 and 37)

First Appeal dismissed. (E-1)
Cases relied on :-

## Text

_Characters 0–39,998 of 43,434. This is a partial read: ask again with offset=39998 for what follows._

118 INDIAN LAW REPORTS ALLAHABAD SERIES
attendance or treatment. The Supreme
Court in the case of State of Haryana vs.
Smt. Santra, AIR 2000 SC 1888 held that
a Hindu is under a legal obligation to
maintain his wife, minor son, unmarried
daughter and old aged parents, whether he
possesses any property or not. The
obligation to maintain these relations is
personal, legal and absolute that arises from
the very existence of the relationship of the
parties.

8. Section 20 of the Hindu Adoptions
and Maintenance Act gives statutory form
to the legal obligation of a Hindu also to
maintain his minor son and his aged or
infirm parents. The appellant cannot escape
liability by raising plea that respondent no.
1 is living with respondent no. 2.

9. The impugned judgement, which
has considered the various aspects in detail,
does not call for any interference.

10. The appeal, therefore, liable to be
dismissed and is dismissed.
----------
(2021)06ILR A118
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.11.2019

BEFORE

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

First Appeal No. 327 of 2017

Surendra Pratap Singh ...Appellant
Versus
Dr. Vishwaraj Singh ...Respondent

Counsel for the Appellant:
Sri Ganesh Shanker Srivastava

Counsel for the Respondent:
--

A. Civil Law - Hindu Marriage Act, 1955 -
Section 13 (ia) - Family Courts Act, 1984
- Section 19(1) - Matrimonial dispute -
Divorce on the ground of cruelty - Cruelty,
scope and application thereof - 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 - Mental cruelty
is the conduct of other spouse which
causes
mental
suffering
or
fear
to
matrimonial life of other. It 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 - Held, plaint do not satisfy
pleadings needed for a case of divorce
founded on cruelty and that being so,
evidence also has not been led to prove
cruelty - Trial Court's order holding that
plaintiff-appellant has failed to prove
cruelty, affirmed. (Para 26, 28 and 32)

B. Hindu Marriage Act, 1955 - Section 13
- Divorce - Ground of irretrievable break
down, application thereof - Parties are
living separately for the last one year -
Held, under Section 13 of Act, 1955,
divorce is not permitted on the ground
that marriage has become irretrievable -
Power of Supreme Court under Article 42
of the Constitution is not vested in High
Court. (Para 33 and 37)

First Appeal dismissed. (E-1)
Cases relied on :-
1. Samar Ghosh Vs Jaya Ghosh; (2007) 4 SCC
511
2. N.G. Dastane Vs S. Dastane; (1975) 2 SCC
326
3.
Sirajmohmedkhan
Janmohamadkhan
Vs
Haizunnisa Yasinkhan & anr.; (1981) 4 SCC 250
4. Shobha Rani Vs Madhukar Reddi; (1988) 1
SCC 105
6 All. Surendra Pratap Singh Vs. Dr. Vishwaraj Singh
119
5. V. Bhagat Vs D. Bhagat (Mrs.); (1994) 1 SCC
337
6. Savitri Pandey Vs Prem Chandra Panadey,
(2002) 2 SCC 73
7. A. Jayachandra Vs Aneel Kaur; (2005) 2 SCC
22
8. Vinita Saxena Vs Pankaj Pandit; (2006) 3 SCC
778
9. First Appeal No. 525 of 2006; Smt. Kavita
Sharma Vs Neeraj Sharma decided by Allahabad
High Court on 7.2.2018
10. First Appeal No. 792 of 2008; Ashwani
Kumar Kohli Vs Smt. Anita decided by Allahabad
High Court on 17.11.2016
11. Chetan Dass Vs Kamla Devi; (2001) 4 SCC
250
12. Civil Appeal No.4696 of 2013; R. Srinivas
Kumar Vs R. Shametha, decided by Supreme
Court on 04.10.2019
(Delivered by Hon'ble Sudhir Agarwal, J. &
Hon'ble Rajeev Misra, J.)

1. Heard Sri Ganesh Shanker
Srivastava, learned counsel for appellant.
None has appeared on behalf of respondent
though vide order dated 01.05.2017, notice
was issued to sole respondent. Vide order
dated 12.07.2018, service was deemed
sufficient. Hence, we proceed to hear and
decide this appeal exparte.

2. This is plaintiff's appeal under
Section 19(1) of Family Court Act, 1984
(hereinafter referred to as "Act, 1984")
arisen from judgement dated 22.03.2017
and decree dated 07.04.2017 passed by
Smt. Shaily Rai, Additional Principal
Judge/Additional District and Sessions
Judge/ Fast Track Court No. 1, Varanasi,
dismissing appellant's Matrimonial Petition
No. 189 of 2007 filed under Section 13 of
Hindu Marriage Act, 1955 (hereinafter
referred to as "Act, 1955") seeking divorce
on the ground of cruelty.

3.

Plaintiff-appellant
instituted
Matrimonial Petition No.189 of 2007,
under Section 13 of Act, 1955 with a prayer
that matrimonial relations between plaintiff
and defendant be revoked by granting
decree of divorce.

4. The plaint case set up by appellant
vide plaint dated 10.08.2007 is that he is
resident of village Amar Lok Hospital,
Uska
Road,
Siddharthanagar,
TappaDharauli,
Pargana,
Tehsil-
Naugarh,
District Siddharthanagar while defendantrespondent
is
resident
of
Varanasi.
Marriage between parties was solemnized
on 04.05.2003 according to Hindu Rituals.
Defendant after marriage came to her inlaws house and started discharging her
matrimonial duties and both were living
happily. Both the parties are well educated.
Defendant
by
profession
is
Doctor.
Defendant's father Professor Daya Shanker
Singh
has
generally
stayed
abroad.
Defendant was also born at abroad and has
stayed with her father in different countries
like, South Africa, America etc. Defendant
is an expert Doctor, therefore, parties
jointly constructed Amar Lok Hospital for
medical practice of defendant. With the
passage of time, understanding between the
two got disturbed since defendant has
mostly lived abroad and enjoyed open
lifestyle. Misunderstanding between the
two resulted in some criminal cases also
which were pending at the time of filing of
matrimonial petition. Situation has come
where both the parties have lost confidence
among them and it is difficult to live
together. Further on account of criminal
cases, mental stress has reached a stage
where both cannot live together under a
single roof and causing mental and physical
harassment to plaintiff. Both have no
nuptial relations for the last one year.
Relations of husband and wife have ceased
120 INDIAN LAW REPORTS ALLAHABAD SERIES
and defendant has also not discharged her
duties as wife. It has resulted in a hell like
life to the parties. It is impossible for both
to live together. Plaintiff repeatedly asked
defendant to have a mutual divorce but she
has not agreed. Cause of action arose in the
first week of August, 2007 when defendant
declined to cooperate for mutual divorce.

5. Matrimonial Petition was contested
by defendant by filing written statement
dated 13.11.2007 who stated that it is the
plaintiff who has been harassing defendant
mentally and physically throughout. He
induced defendant to marry him on the
pretext that he is a Doctor but later on, it
was revealed that he was not a Doctor and,
therefore, he has cheated defendant. For
construction of Amar Lok Hospital except
loan money, which was sanctioned by State
Bank of India, Siddharthanagar under
Doctor Plus Scheme, entire money was
arranged and invested by defendant and
plaintiff has not contributed any single
penny therefor. Allegation that foreign stay
of defendant has caused in marital
differences is incorrect and defendant has
not harassed plaintiff in any manner and it
is otherwise. Plaintiff has made dowry
demand time and again and also caused
physical and mental cruelty making her life
a hell.

6. Aforesaid petition was initially
filed in the Court of Civil Judge (Senior
Division), Siddharthanagar. Defendant filed
a Transfer Petition (Civil) No.142 of 2008
in Supreme Court and thereupon vide
judgement
dated
03.01.2011,
it
was
transferred to the Court of competent
jurisdiction at Varanasi.

7. For expeditious disposal of the suit,
plaintiff filed Writ Petition No.45971 of
2011
which
was
disposed
of
vide
judgement
dated
12.08.2011 directing
Court below to decide suit expeditiously
without giving unnecessary adjournment to
the parties.

8. Defendant sought amendment in
written statement and sought to insert
following paras and schedule:-

^^16,- ;g fd oknh cgqr gh pkykd o
eqdnesckt O;fDr gS vkSj oknh vius dks MkDVj tkfgj
djrk Fkk vkSj ftlds ckor ge izfrokfnuh ds
ekrk&firk o fj'rsnkjh] oknh ds ckrksa ij iw.kZ:i ls
fo'okl djds ge izfrokfnuh dh 'kknh lkFk oknh@
;kph eqrkfcd fgUnw /keZ'kkL= o jhfr fjokt fcjknjh
ds :i;k iSlk [kpZ djds fd;k FkkA pwafd ge
izfrokfnuh ds ekrk&firk dkQh lEiUu Fks] pqukUps
mUgksaus ge izfrokfnuh dks o oknh @ ;kph dks dkQh
:i;k o tsojkr o eksVj dkj o vU; lkeku cjoDr
fookg ge izfrokfnuh o ;kph dks fn;k Fkk] vykok
blds fcnk;h ds le; ge izfrokfnuh dks vyx ls
dkQh vkHkw"k.k o diM+k Hkh fn;k Fkk] ftldk fooj.k
uhps fn;k x;k gSA

16ch- ;g fd ckn fookg etdwj ge izfrokfnuh
o ;kph @ oknh ds lEcU/k dkQh e/kqj o vPNs Fks]
pqukUps ge izfrokfnuh o ;kph @ oknh us fey djds
^^vej yksd lsokJe** etdwj ds fy, tehu Hkh dz;
djds ml ij ^^vej yksd lsokJe** etdwj dk;e
fd;kA

16lh- ;g fd ckn 'kknh etdwj tc ge ge
izfrokfnuh dks ekywe gqvk fd oknh @ ;kph
DokfyQkbM MkDVj ugha gSa vkSj mlds ikl QthZ fMxzh
gS] vkSj mlus ge izfrokfnuh ds ekrk&firk o
fj'rsnkjksa dks Hkh /kks[kk ns dj rFkk [kqn dks MkDVj
crk ge izfrokfnuh dks /kks[kk nsdj ge izfrokfnuh ls
'kknh dj fy;k gS] ftldh tkudkjh gksus ij oknh @
;kph o izfrokfnuh esa eueqVko gks x;k vkSj oknh @
;kph viuh deh dks fNikus ds fy, ges'kk ge
izfrokfnuh dks ekjihV o >xM+k Qlkn djus yxk vkSj
vUrksxRok ge izfrokfnuh dks ekjihV djds tcjnLrh
?kj ls fudky fn;k vkSj ge izfrokfnuh dks tc ;kph
@ oknh us tcjnLrh ?kj ls fudkyk rc oknh @
;kph us ge izfrokfnuh etdwj dk lHkh vkHkw"k.k o
diM+k oxSjg tks fd ge izfrokfnuh dks ge izfroknuh
ds ekrk&firk us fookg ds oDr fn;k Fkk lHkh
oL=kHkw"k.k vius ikl j[k fy;k vkSj og vkt Hkh ;kph
@ oknh ds ikl gSaA

16Mh- ;g fd ge izfrokfnuh us tc oknh@
;kph ls mDr vkHkw"k.k oxSjg tks ojoDr fookg ge
6 All. Surendra Pratap Singh Vs. Dr. Vishwaraj Singh
121
izfrokfnuh ds ekrk&firk us tks ge izfrokfnuh dks
fn;k Fkk] mls ekaxk rc oknh @ ;kph us mls nsus ls
bUdkj dj fn;k rFkk ;kfu ge izfrokfnuh ls vyx ls
ngst dh ekax djus yxkA

17 bZ- ;g fd oknh @ ;kph us eqdnek gktk esa
tks dkj.k fookg foPNsn dk fn;k gS] og xyr o
cukoVh gS] vkSj oknh @;kph us ekdwy otg ugha
fn;k vkSj tks dkj.k fn;k gS] og nQk& 13 fgUnw
eSfjt ,DV ds 'krksZa dks iwjk ugha djrk gS] pqukUps bl
vk/kkj ij Hkh nkok oknh @ ;kph e; [kjpk ds
[kkfjt fd;k tkosA

16 ,Q- ;g fd ge izfrokfnuh us ckj&ckj oknh
@ ;kph ls dgk fd og bl onksRrj ds vUr esa fn;s
x;s
mfYyf[kr
lkeku
ftldh
dher
eqcfyx&37]50]000 :i;k gksrh gS] ge izfrokfnuh
etdwj dks vnk dj nsos vkSj oDr vnk;xh ds ckor
ge izfrokfnuh ls jlhn rgjhj djk ysos fdUrq oknh
@ ;kph tkucw> djds ge izfroknh ds mDr vkHkw"k.k
dks gM+i djus dh xjt ls mDr vkHkw"k.k o lkekuksa
dk fooj.k tks uhps fn;k x;k gS] dks nsus ls Hkh bzdkj
dj fn;k ftldks ikus dk eqLrgd o gdnkj ge
izfrokfnuh etdwj gSA

[k- ;g fd oknksRrj ds izLrkfor rjehe ds
iSjk&16 ,Q- ds ckn fuEufyf[kr fooj.k lEifRr
fuEufyf[kr :i ls btkQk fd;k tkos%&

AA fooj.k lEifRrAA

o fooj.k leku tks ojoDr 'kknh esa izfrokfnuh
ds ekrk firk }kjk fn;k x;k gS%&

1- lksus dk >qedk nks tksMh out 20 xzke

2- lksus dk xys dk gj ,d ux out 75 xzke

3- lksus dh vaxwBh nks ux out 10 xzke

4- dj/kuh lksus dh ,d ux out 446 xzke

5- lksus dh ejnkuh vaxwBh 5 ux 32 xzke

6- lksus dh fldMh ejnkuh otu 266**

7- lksus dk xys dk gkj I.My ,d ux 87**

8- lksus dk >qedk ,d tksMh 2 ux 18**

9- lksus dh vaxwBh ,d ux out 04**

10- lksus dk daxu 3 lsV 6 ihl 368**

11- eaxy lw= lksus dk nks ihl out 78**

12- fcNqvk lksus dh 3 tksMh out 120**

13- pwM+h gkFk dh lksus dh 12 ux 312**

&&&&&&&&&&&&&&&&&&&&&&&&&&&&
&&&&

dqy lksuk 1 fdxzk0 842 xzke

14- dj/kuh dej dh 2 ux out 3-00 fd-xzk-

15- iSj dk ik;y 8 ux out 3-00**

16- iSj dh fofN;k 6 tksM+h 42 fd-xzk-

&&&&&&&&&&&&&&
6-42 xzke

&&&&&&&&&&&&&&

lksus
ds
tsojkr
etdwj
dh
dher
eqcfyx&35]00]000 :i;k

o pkanh ds tsojkr etdwj dh dher 2]50]000
:i;k

&&&&&&&&&&&&

dqy ;ksx 37]50]000 :i;k

&&&&&&&&&&&&

izfrokfnuh**

9. Defendant, therefore, placed a
counter claim in respect of her Streedhan.

10. Counter claim of defendant was
contested and denied by plaintiff by filing
objection.

11. Trial Court formulated following
three issues:-

^^1- D;k ;kph okn i= ds dFkuksa ds vk/kkj ij
izR;qRrjnkrk ds fo:) fookg foPNsn dh fMdzh ikus
dk vf/kdkjh gS\

2- D;k okn bl U;k;ky; ds {ks=kf/kdkj ds
ckgj gS\

3- D;k ;kph fdlh vU; vuqrks"k dks izkIr djus
dk vf/kdkjh gS\**

12. In support of plaint, plaintiff
examined himself as PW-1, Laljee as PW-2,
Ram Lautan Singh as PW-3 who filed their
affidavit as a part of examination-in-chief and
thereafter cross-examined by defendant.

13. Oral evidence of defendant comprised
of her own statement as DW-1, statements of
Ritiraj Singh as DW-2, Pawan Kumar Singh as
DW-3 and Manoj Kumar Singh as DW-4.
Besides, documentary evidence was also filed
by defendant and detailed in the judgement of
Trial Court.

14. Trial Court found that virtually,
there was no pleading giving instances of
cruelty, mental or otherwise justifying
122 INDIAN LAW REPORTS ALLAHABAD SERIES
decree of divorce on the ground of cruelty
under Section 13 of Act, 1955. Minor
differences between the parties did not
come within the ambit of 'cruelty' justifying
divorce. Trial Court, therefore, answered
question-1
against
plaintiff-appellant
holding that he failed to prove its case by
pleadings and evidence.

15. Issue-2 was also answered against
plaintiff and, thereafter, issue-3 was also
answered against plaintiff.

16. Before this Court, learned counsel
for appellant contended that Trial Court has
committed manifest error in observing that
plaintiff failed to prove its case of 'cruelty'
and secondly, contended that parties are not
residing together for the last 13 years and
marriage
has
become
irretrievable,
therefore, divorce should have been granted
in the present case.

17. Two points for determination has
arisen in this appeal which are:-

(i) Whether appellant has pleaded and
proved the incident of cruelty and Court
below has wrongly taken a view otherwise.

(ii) Whether decree of judgement of
Court below can be reversed on the ground
that marital relations are irretrievable.

18. Before proceeding to consider
question-1, it would be appropriate to
reproduce Section 13 of Act, 1955:-

"13. Divorce. --(1) Any marriage
solemnized, whether before or after the
commencement of this Act, may, on a
petition presented by either the husband or
the wife, be dissolved by a decree of
divorce on the ground that the other party--

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

(ia) has, after the solemnization of the
marriage, treated the petitioner with
cruelty; or

(ib) has deserted the petitioner for a
continuous period of not less than two
years
immediately
preceding
the
presentation of the petition; or

(ii) has ceased to be a Hindu by
conversion to another religion; or

(iii) has been incurably of unsound
mind, or has been suffering continuously or
intermittently from mental disorder of such
a kind and to such an extent that the
petitioner cannot reasonably be expected to
live with the respondent.

Explanation.--In this clause,--

(a) the expression "mental disorder"
means
mental
illness,
arrested
or
incomplete
development
of
mind,
psychopathic
disorder
or
any
other
disorder or disability of mind and includes
schizophrenia;

(b)
the
expression
"psychopathic
disorder" means a persistent disorder or
disability of mind (whether or not including
sub-normality of intelligence) which results
in abnormally aggressive or seriously
irresponsible conduct on the part of the
other party, and whether or not it requires
or is susceptible to medical treatment; or]

(iv) has, [***] been suffering from a
virulent and incurable form of leprosy; or

(v) has, [***] been suffering from
venereal disease in a communicable form;
or

(vi) has renounced the world by
entering any religious order; or

(vii) has not been heard of as being
alive for a period of seven years or more by
those persons who would naturally have
heard of it, had that party been alive;

Explanation. In this sub-section, the
expression "desertion" means the desertion
6 All. Surendra Pratap Singh Vs. Dr. Vishwaraj Singh
123
of the petitioner by the other party to the
marriage without reasonable cause and
without the consent or against the wish of
such party, and includes the wilful neglect
of the petitioner by the other party to the
marriage, and its grammatical variations
and cognate expressions shall be construed
accordingly.

(1-A) Either party to a marriage,
whether solemnised before or after the
commencement of this Act, may also
present a petition for the dissolution of the
marriage by a decree of divorce on the
ground--

(i) that there has been no resumption of
cohabitation as between the parties to the
marriage for a period of one year or upwards
after the passing of a decree for judicial
separation in a proceeding to which they
were parties; or

(ii) that there has been no restitution of
conjugal rights as between the parties to the
marriage for a period of one year or upwards
after the passing of a decree for restitution of
conjugal rights in a proceeding to which they
were parties.

(2) A wife may also present a petition
for the dissolution of her marriage by a
decree of divorce on the ground,---

(i) in the case of any marriage
solemnised before the commencement of this
Act, that the husband had married again
before such commencement or that any other
wife of the husband married before such
commencement was alive at the time of the
solemnisation of the marriage of the
petitioner:

Provided that in either case the other
wife is alive at the time of the presentation of
the petition; or

(ii) that the husband has, since the
solemnisation of the marriage, been guilty of
rape, sodomy or bestiality; or

(iii) that in a suit under section 18 of the
Hindu Adoptions and Maintenance Act, 1956
(78 of 1956), or in a proceeding under
section 125 of the Code of Criminal
Procedure, 1973 (2 of 1974) or under the
corresponding section 488 of the Code of
Criminal Procedure, 1898 (5 of 1898), a
decree or order, as the case may be, has been
passed against the husband awarding
maintenance to the wife notwithstanding that
she was living apart and that since the
passing of such decree or order, cohabitation
between the parties has not been resumed for
one year or upwards; or

(iv)
that
her
marriage
(whether
consummated or not) was solemnised before
she attained the age of fifteen years and she
has repudiated the marriage after attaining
that age but before attaining the age of
eighteen years.

Explanation.
--This
clause
applies
whether the marriage was solemnised before
or after the commencement of the Marriage
Laws (Amendment) Act, 1976 (68 of 1976).

STATE AMENDMENT

Uttar Pradesh.-- In its application to
Hindus domiciled in Uttar Pradesh and
also when either party to the marriage was
not at the time of marriage a Hindu
domiciled in Uttar Pradesh, in Section 13--

(i) in sub-section (1), after clause (i)
insert and shall be deemed always to have
been inserted the following

"(1-a) has persistently or repeatedly
treated the petitioner with such cruelty as
to cause a reasonable apprehension in the
mind of the petitioner that it will be
harmful or injurious for the petitioner to
live with the other party; or", and

(ii) for clause (viii) (since repealed)
substituted and deem always to have been
so substituted for following.

" (viii) has not resumed cohabitation
after the passing of a decree for judicial
separation against that party and--
124 INDIAN LAW REPORTS ALLAHABAD SERIES

(a) a period of two years has elapsed
since the passing of such decree, or

(b) the case is one of exceptional
hardship to the petitioner or of exceptional
depravity on the part of other party; or"."

19. Section 13 (ia) of Act of 1955
clearly provides that a decree of divorce
can be granted, in case, after solemnization
of marriage, petitioner has been treated
with 'cruelty'.

20. 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'.

21. 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."

22. 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."

23. 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. "

24. 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:
6 All. Surendra Pratap Singh Vs. Dr. Vishwaraj Singh
125

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

25.

In
Sirajmohmedkhan
Janmohamadkhan
v.
Haizunnisa
Yasinkhan and Anr. (1981) 4 SCC 250
Court said that 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.

26. 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.

27. 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.
126 INDIAN LAW REPORTS ALLAHABAD SERIES

28. 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.

29. In A. Jayachandra v. Aneel Kaur,
(2005) 2 SCC 22, Court observed that
conduct of spouse, if established, an inference
can legitimately be drawn that treatment of
spouse is such that it causes an apprehension
in the mind of other spouse, about his or her
mental welfare then this conduct amounts to
cruelty. Court observed that when a petition
for divorce on the ground of cruelty is
considered, Court must bear in mind that the
problems before it are those of human beings
and psychological changes in a spouse's
conduct have to be borne in mind before
disposing of petition for divorce. Before a
conduct can be called cruelty, it must touch a
certain pitch of severity. Mere trivial
irritations, quarrels between spouses, which
happen in day-to-day married life, may also
not amount to cruelty.

30. 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.

31. In Samar Ghosh vs. Jaya Ghosh
(supra), Court also 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,
6 All. Surendra Pratap Singh Vs. Dr. Vishwaraj Singh
127
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
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."

32. Examining pleadings in present
case, we do not find that assertions in the
plaint do satisfy pleadings needed for a
case of divorce founded on cruelty and that
being so, evidence also has not been led to
prove cruelty, hence, Trial Court has
rightly held that plaintiff-appellant has
failed to prove cruelty. Therefore, question1 answered against plaintiff.

33. Now, coming to question-2. We
find that basically plaint is founded on
pleadings
that
marriage
has
become
irretrievable. Both are living separately for
the last one year and, therefore, divorce
must be granted. Unfortunately, under
Section 13 of Act, 1955, divorce is not
permitted on the ground that marriage has
become irretrievable.

34. The issue relating to irretrievable
break
down
of
marriage
has
been
considered by a Division Bench of this
Court in First Appeal No. 525 of 2006
(Smt.
Kavita
Sharma
Vs.
Neeraj
Sharma) decided on 7.2.2018, wherein it
has been observed as follows in paragraph
28:-

"28. The above findings recorded by
Court below could not be shown perverse
or contrary to record. Having considered
the fact that parties are living separately
from decades, we are also of the view that
marriage between two is irretrievable and
has broken down completely. Irretrievable
breakdown of marriage is not a ground for
divorce under Act, 1955. But, where
marriage is beyond repair on account of
bitterness created by the acts of the
128 INDIAN LAW REPORTS ALLAHABAD SERIES
husband or the wife or of both, Courts have
always taken irretrievable breakdown of
marriage as a very weighty circumstance
amongst others necessitating severance of
marital tie. A marriage which is dead for
all purposes cannot be revived by the
Court's verdict, if the parties are not
willing. This is because marriage involves
human sentiments and emotions and if they
are dried-up there is hardly any chance of
their springing back to life on account of
artificial reunion created by the Court's
decree. On the ground of irretrievable
marriage, Courts have allowed decree of
divorce and reference may be made to
Naveen Kohli v. Neelu Kohli (2006) 4 SCC
558 and Rishikesh Sharma Vs. Saroj
Sharma, 2006(12) SCALE 282. It is also
noteworthy that in Naveen Kohli v. Neelu
Kohli (supra) Court made recommendation
to Union of India that Act, 1955 be
amended
to
incorporate
irretrievable
breakdown of marriage as a ground for
grant of divorce. "

35. Similarly this Court in First
Appeal No. 792 of 2008 (Ashwani Kumar
Kohli Vs. Smt. Anita) decided on
17.11.2016
has
also
considered
this
question and observed as follows in
paragraphs 7, 8, 10, 11, 12 and 13:-

"7. Therefore, point for adjudication
in this appeal is "whether a decree of
reversal can be passed by granting divorce
to the appellant on the ground which was
not subject matter of adjudication before
the Court below and is being raised for the
first time in appeal".

8. Under the provisions of Act, 1955
there is no ground like any "irretrievable
breakdown of marriage", justifying divorce.
It is a doctrine laid down by judicial
precedents, in particular, Supreme Court in
exercise of powers under Article 142 of the
Constitution has granted decree of divorce
on the ground of irretrievable breakdown
of marriage.

10. This aspect has been considered by
this Court in Ram Babu Babeley Vs. Smt.
Sandhya AIR 2006 (All) 12 = 2006 AWC
183 and it has laid down certain inferences
from various authorities of Supreme Court,
which read as under:-

"(i) The irretrievable break down of
marriage is not a ground for divorce by
itself. But while scrutinizing the evidence
on record to determine whether the
grounds on which divorce is sought are
made out, this circumstance can be taken
into consideration as laid down by Hon'ble
Apex Court in the case of Savitri Pandey v.
prem Chand Pandey, (2002) 2 SCC 73 and
V. Bhagat versus D. Bhagat, AIR 1994 SC
710.

(ii) No divorce can be granted on the
ground of irretrievable break down of
marriage if the party seeking divorce on
this ground is himself or herself at fault for
the above break down as laid down in the
case of Chetan Dass Versus Kamla Devi,
AIR 2001 SC 1709, Savitri Pandey v. prem
Chand Pandey, (2002) 2 SCC 73 and
Shyam Sunder Kohli v. Sushma Kohli,
(2004) 7 SCC 747.

(iii) The decree of divorce on the
ground that the marriage had been
irretrievably broken down can be granted
in those cases where both the parties have
levelled such allegations against each other
that the marriage appears to be practically
dead and the parties can not live together
as laid down in Chandra Kala Trivedi
versus Dr. SP Trivedi, (1993) 4 SCC 232.

(iv)The decree of divorce on the
ground that the marriage had been
irretrievably broken down can be granted
in those cases also where the conduct or
averments of one party have been so much
painful for the other party ( who is not at
6 All. Surendra Pratap Singh Vs. Dr. Vishwaraj Singh
129
fault) that he cannot be expected to live
with the offending party as laid down in the
cases of V. Bhagat versus D. Bhagat,
(supra), Ramesh Chander versus Savitri,
(1995) 2 SCC 7, Ashok Hurra versus Rupa
Bipin Zaveri, 1997(3) AWC 1843 (SC),
1997(3)
A.W.C.
1843(SC)
and
A.
Jayachandra versus Aneel Kaur, (2005) 2
SCC 22.

(v) The power to grant divorce on the
ground of irretrievable break down of
marriage should be exercised with much
care
and
caution
in
exceptional
circumstances only in the interest of both
the parties, as observed by Hon'ble Apex
Court at paragraph No. 21 of the judgment
in the case of V. Bhagat and Mrs. D.
Bhagat, AIR (supra) and at para 12 in the
case of Shyam Sunder Kohli versus Sushma
Kohli, (supra)."

11. The above authorities have been
followed by this Court in ''Pradeep Kumar
Vs. Smt. Vijay Lakshmi' in 2015 (4) ALJ
667 wherein one of us (Hon'ble Sudhir
Agarwal,J.) was a member of the Bench.

12. In Vishnu Dutt Sharma Vs. Manju
Sharma, (2009) 6 SCC 379, it was held that
under Section 13 of Act 1955 there is no
ground of irretrievable breakdown of
marriage for granting decree of divorce.
Court said that it cannot add such a ground
to Section 13, as that would amount to
amendment of Act, which is the function of
legislature. It also referred to some
judgments of Supreme Court in which
dissolution of marriage was allowed on the
ground of irretrievable breakdown but held
that those judgments do not lay down any
precedent.
Supreme
Court
very
categorically observed as under:-

"If we grant divorce on the ground of
irretrievable breakdown, then we shall by
judicial verdict be adding a clause to
Section 13 of the Act to the effect that
irretrievable breakdown of marriage is also
a ground for divorce. In our opinion, this
can only be done by the legislature and not
by the Court. It is for the Parliament to
enact or amend the law and not for the
Court. Hence, we do not find force in the
submission of learned counsel for the
appellant."

13. The above view has been followed
in Darshan Gupta Vs. Radhika Gupta
(2013) 9 SCC 1. Similar view was
expressed
in
'Gurubux
Singh
Vs.
Harminder Kaur' (2010) 14 SCC 301. This
Court also has followed the above view in
Shailesh Kumari Vs. Amod Kumar Sachan
2016 (115) ALR 689."

36. 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.

37.