# 11 S.C.R. 256 U. SREE v. U. SRINIVAS

- **Citation:** [2012] 11 S.C.R. 256
- **Court:** Supreme Court of India
- **Decided:** 2012-12-11
- **Case number:** Civil Appeal Nos. 8927-8928 of 2012
- **Bench:** K.S. Radhakrishnan, Dipak Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/11-s-c-r-256-u-sree-v-u-srinivas-27995
- **Pages:** 31

## Headnote

Hindu Marriage Act, 1955 - s.13(1)(ia) - Divorce - Grant
of - In favour of husband - On ground of "mental cruelty" -
C Justification - Held: Justified - Respondent-husband, who
pursued a career in music, clearly deposed about the
constant and consistent ill-treatment meted out to him by the
wife as she showed her immense dislike to his "sadhna"
(routine practice and teaming of music under the guidance
o of his father who was a/so his "guru" in "the Guru-Sishya
Parampara" i.e. the tradition of teacher and disciple), and
exhibited total indifference and, in a way, contempt to the
tradition of teacher and disciple - Graphical demonstration
given by husband that the wife did not show the slightest
E concern for his public image on many occasions by putting
him in a situation of embarrassment leading to humiliation -
She made wild a/legations about conspiracy in the family of
her husband to get him re-married for the greed of dowry
without an iota of evidence on record to substantiate the same
F - This was an aspersion not only on the character of the
husband but also a maladroit effort to malign the reputation
of his family - Respondent-husband clearly proved his case
of mental cruelty which was the foundation for seeking
divorce.
G
Hindu Marriage Act, 1955 - s.25 - Permanent alimony -
Grant of - Held: While granting permanent alimony, no
arithmetic formula can be adopted - It shall depend upon the
status of the parties, their respective social needs, the
H
256
U. SREE v. U. SRINIVAS
257
financial capacity of the husband and other obligations - The
A
duty of the Court is to see that the wife lives with dignity and
comfort and not in penury - The living need not be luxurious
but simultaneously the wife should not be left to live in
discomfort -. The Court has to act with pragmatic sensibility -
On facts, respondent-husband himself asserted that he had
B
earned name and fame in the world of music and had been
performing concerts in various parts of India and abroad -
Regard being ,had to the status of the husband, the social
strata to which the parties belong and further taking note of
earlier orders of Supreme Court in this case, permanent c
alimony fixed at Rs.50 lacs, to be deposited before the trial
court, out of which Rs. 20 lacs to be kept in a fixed deposit in
the'name of the minor child of the parties in a nationalized
bank - Clarification given trat any amount deposited earlier
shall stand excluded.
Practice and Procedure - Divorce petition by husband -
On ground of cruelty - Conclusion recorded by courts below
relating to desertion by the wife - Held: Uable to be overturned, .
since there was no prayer or pleading with regard to desertion
D
in the divorce petition.
E
Evidence Act, 1872 - s.65 - Secondary evidence relating
to contents of a document - Admissibility - Discussed.
Constitution of India, 1950 - Article 136 - Interference
under, with concurrent findings of fact - Scope - Discussed.
F
The appellant-wife had instituted a petition under
Section 9 of the Hindu Marriage Act, 1955 for restitution
of conjugal rights against the respondent-husband. The
respondent-husband on the other hand filed a petition
G
under Sections 13(1)(ia), 26 and 27 of the Hindu Marriage
Act read with Section 7 of the Family Courts Act, 1984
inter alia praying for dissolution of marriage.
The respondent-husband, in his petition for divorce
H
258
SUPREME COURT REPORTS
[2012) 11 S.C.R.
A and while resisting the stand taken by the appellant-wife
in her petition for restitution of conjugal rights, inter alia
pleaded that after abandoning formal education, he
pursued a career in music treating it as a concept of
· 'bhakti' (devotion); that he had to continue his 'sadhana'
B (practice and learning of music) as a daily routine under
the guidance of his father who was also his "guru" in "the
Guru-Sishya Parampara" (tradition of teacher and
disciple); that the aforesaid aspect of his life was not liked
by his wife and she always interrupted the practic

## Text

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A
B
[2012) 11 S.C.R. 256
U. SREE
v.
U. SRINIVAS
(Civil Appeal Nos. 8927-8928 of 2012)
DECEMBER 11, 2012
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]
Hindu Marriage Act, 1955 - s.13(1)(ia) - Divorce - Grant
of - In favour of husband - On ground of "mental cruelty" -
C Justification - Held: Justified - Respondent-husband, who
pursued a career in music, clearly deposed about the
constant and consistent ill-treatment meted out to him by the
wife as she showed her immense dislike to his "sadhna"
(routine practice and teaming of music under the guidance
o of his father who was a/so his "guru" in "the Guru-Sishya
Parampara" i.e. the tradition of teacher and disciple), and
exhibited total indifference and, in a way, contempt to the
tradition of teacher and disciple - Graphical demonstration
given by husband that the wife did not show the slightest
E concern for his public image on many occasions by putting
him in a situation of embarrassment leading to humiliation -
She made wild a/legations about conspiracy in the family of
her husband to get him re-married for the greed of dowry
without an iota of evidence on record to substantiate the same
F - This was an aspersion not only on the character of the
husband but also a maladroit effort to malign the reputation
of his family - Respondent-husband clearly proved his case
of mental cruelty which was the foundation for seeking
divorce.
G
Hindu Marriage Act, 1955 - s.25 - Permanent alimony -
Grant of - Held: While granting permanent alimony, no
arithmetic formula can be adopted - It shall depend upon the
status of the parties, their respective social needs, the
H
256
U. SREE v. U. SRINIVAS
257
financial capacity of the husband and other obligations - The
A
duty of the Court is to see that the wife lives with dignity and
comfort and not in penury - The living need not be luxurious
but simultaneously the wife should not be left to live in
discomfort -. The Court has to act with pragmatic sensibility -
On facts, respondent-husband himself asserted that he had
B
earned name and fame in the world of music and had been
performing concerts in various parts of India and abroad -
Regard being ,had to the status of the husband, the social
strata to which the parties belong and further taking note of
earlier orders of Supreme Court in this case, permanent c
alimony fixed at Rs.50 lacs, to be deposited before the trial
court, out of which Rs. 20 lacs to be kept in a fixed deposit in
the'name of the minor child of the parties in a nationalized
bank - Clarification given trat any amount deposited earlier
shall stand excluded.
Practice and Procedure - Divorce petition by husband -
On ground of cruelty - Conclusion recorded by courts below
relating to desertion by the wife - Held: Uable to be overturned, .
since there was no prayer or pleading with regard to desertion
D
in the divorce petition.
E
Evidence Act, 1872 - s.65 - Secondary evidence relating
to contents of a document - Admissibility - Discussed.
Constitution of India, 1950 - Article 136 - Interference
under, with concurrent findings of fact - Scope - Discussed.
F
The appellant-wife had instituted a petition under
Section 9 of the Hindu Marriage Act, 1955 for restitution
of conjugal rights against the respondent-husband. The
respondent-husband on the other hand filed a petition
G
under Sections 13(1)(ia), 26 and 27 of the Hindu Marriage
Act read with Section 7 of the Family Courts Act, 1984
inter alia praying for dissolution of marriage.
The respondent-husband, in his petition for divorce
H
258
SUPREME COURT REPORTS
[2012) 11 S.C.R.
A and while resisting the stand taken by the appellant-wife
in her petition for restitution of conjugal rights, inter alia
pleaded that after abandoning formal education, he
pursued a career in music treating it as a concept of
· 'bhakti' (devotion); that he had to continue his 'sadhana'
B (practice and learning of music) as a daily routine under
the guidance of his father who was also his "guru" in "the
Guru-Sishya Parampara" (tradition of teacher and
disciple); that the aforesaid aspect of his life was not liked
by his wife and she always interrupted the practice
c sessions hurling abuses at him; that despite his best
efforts to make his wife understand the family tradition
and show reverence to the seniors in the sphere of music,
she remained obstinate in her attitude and chose to
cause him not only embarrassment in public but also
0 humiliation which affected his reputation and self respect
and that she had communicated with her friends that she
would like to see her husband behind bars on the ground
of dowry harassment.
The trial court held that the wife had treated the
E husband with cruelty; that she had not taken any steps
for re-union and had deserted him for thirteen years
without any valid reason and, hence, the husband was
entitled for a decree of divorce and the wife was not
entitled to have a decree for restitution of conjugal rights.
F The trial court, while passing the decree fc,>r dissolution
of marriage, directed to pay permanent alimony of Rs. 5
lacs each to the wife and the minor child.
Dissatisfied, the appellant-wife preferred application
G in the High Court which affirmed the decree of
dissolution of marriage. The High Court held that the
material brought on record showed that the wife had
gone to the parental home and made no efforts to get
reunited with the husband and that her depositions were
H contradictory inasmuch as on one hand she had stated
U. SREE v. U. SRINIVAS
259
that she had been ill-treated and on the other that there
A
was cordial relationship. The High Court referred to the
xerox copy of the letter Exhibit R-8 written in her
handwriting to her parents and held that when the said
letter was summoned from her father she stated that there
was no such letter and on that ground the admissibility
B
_lNas called in question. The High Court held that when
the efforts were made to get the primary evidence and it
could not be obtained, the secondary evidence could be
adduced and that would be admissible under Section 65
of the Evidence Act. The English translation. of the said c
letter was marked as Exhibit R-9 which, according to the
High Court, indicated that the wife had clearly stated that
she had spoken ill of her mother-in-law and others and
had expressed her desire to seek divorce as she could
not stay any longer in the matrimonial home. It was held
0
by the High Court that the conduct of the wife clearly
established desertion and her behaviourial pattern
exhibited mental cruelty meted out to the husband. Apart
from concurring with the grant of permanent alimony, the
High Court further directed the respondent-husband to
E
pay a sum of maintenance amounting to Rs.12,500/- to
the appellant-wife and the minor child.
In the instant appeal, it was inter alia contended by
the appellant that Exh. R-8 and R-9 were not admissible
in evidence inasmuch as they could not be treated as
F
secondary evidence as envisaged under Section 65 of
the Evidence Act, 1872 and that the trial court as well as
the High Court had failed to appreciate that neither mental
cruelty nor desertion had been established as per the
I~.
G
Dismissing the appeals, the Court
HELD: 1.1. Section 65 of the Evidence Act, 1872
· permits the parties to adduce secondary evidence, yet
such a course is subject to a large number of limitations.
H
260 -
SUPREME COURT REPORTS
[2012] 11 S.C.R.
A In a case where the original documents are not produced
at any time, nor has any factual foundation been laid for
giving secondary evidence, it is not permissible for the
court to allow a party to adduce secondary evidence.
Thus, secondary evidence relating to the contents of a
B document is inadmissible, until the non-production of the
original is accounted for, so as to bring it within one or
other of the cases provided for in the section. The
i;econdary evidence must be authenticated by
foundational evidence that the alleged copy is in fact a
C true copy of the original. Mere admission of a document
in evidence does not amount to its proof. Therefore, it is
the obligation of the Court to decide the question of
admissibility of a document in secondary evidence before
making endorsement thereon. [Para 17] (276-F-G; 277-AD B]
1.2. In the case at hand, the trial court has really not
discussed anything relating to foundational evidence.
The High Court has only mentioned that when the letter
(alleged to. have been written by the wife to her father)
E was summoned and there was a denial, the secondary
evidence is admissible. Such a view is neither legally
sound nor in consonance with the pronouncements of
this Court. Consequently, the photostat copy of the said
letter is not admissible in evidence and the question as
F to whether the appellant had treated her husband with
mental cruelty has to be dwelled upon, keeping the
photostat copy of the said letter out of consideration.
[Paras 18, 19] (277-C-E]
Ashok Dulichand v. Madahav/a/ Dube· (1975) 4 SCC
G 664: 1976 (1) SCR 246; J. Yashoda v. K. Shobha Rani (2007)
5 SCC 730: 2007 (5) SCR 367; M. Chandra v. M.
Thangamuthu and Other (2010) 9 sec 712: 2010 (11) SCR
38 and H. Siddiqui (Dead) by Lrs. v. A. Ramalingam (2011)
H 4 sec 240: 2011 (5) SCR 587 - relied on.
U. SREE v. U. SRINIVAS
261
2.1. The conception of cruelty has inseparable nexus
A
with human conduct or human behaviour. It is always
dependent upon the social strata or the milieu to which
the parties belong, their ways of life, relationship,
temperament and emotions that have been conditioned
by the social status. When the evidence brought on
B
record clearly establish a sustained attitude of causing
humiliation and calculated torture on the part of the wife
to make the life of the husband miserable, it would
amount to mental cruelty. Emphasis is to be laid on the
behavioral pattern of the wife whereby a dent is created c
in the reputation of the husband, regard being had to the
fact that reputation is the salt of life. [Para 22) [279-A·EJ
2.2. In the case at hand, the husband has clearly
deposed about the constant and consistent ill-treatment
meted out to him by the wife inasmuch as she had shown
D
her immense dislike to his "sadhna" in music and had
exhibited total indifference and, in a way, contempt to the
tradition of teacher and disciple. It has graphically been
demonstrated that she had not shown the slightest
concern for the public image of her husband on many an
E
occasion by putting him in a situation of embarrassment
leading to humiliation. She has made wild allegations
about the conspiracy in the family of her husband to get
him re-married for the greed of dowry and there is no iota
of evidence on record to substantiate the same. This, in
F
fact, is an aspersion not only on the character of the
husband but also a maladroit effort to malign the
reputation of the family. The trial court as well as the High
Court have clearly analysed the evidence and recorded
a finding that the wife had treated the husband with G
mental cruelty. True it is, there is some reference in that
regard to the photostat copy of the letter (allegedly written
by the wife to her father) which is not admissible in
evidence but the other evidence brought on record
clearly support the findings recorded by the Family
H
262
SUPREME COURT REPORTS
[2012] 11 S.C.R.
A Judge and the High Court. [Para 23] [279-E-F; 280-A-C]
Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 : 2007
(4) SCR 428; Ravi Kumar v. Julmidevi (2010) 4 SCC 476:
2010 (2) SCR 545 and Vishwanath Agrawal, s/o Sitaram
B Agrawal v. Sar/a Vishwanath Agrawal (2012) 7 SCC 288 -
relied on.
Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa
Yasikhan (1981) 4 SCC 250: 1982 (1) SCR 695; Shobha
Rani v. Madhukar Reddi (1988) 1 SCC 105: 1988 (1) SCR
C 1010; V. Bhagat v. D. Bhagat (1994) 1 SCC 337: 1993 (3)
Suppl. SCR 796; Vijaykumar Ramchandra Bhate v. Nee/a
Vijaykumar Bhate (2003) 6 SCC 334: 2003 (3) SCR 607; A.
Jayachandra v. Aneel Kaur (2005) 2 SCC 22: 2004 (6)
Suppl. SCR 599; Vinita Saxena v. Pankaj Pandit (2009) 1
D SCC 422; Suman Kapur v. Sudhir Kapur (2009) 1 SCC 422:
2008 (15) SCR 972; N.G. Dastane v. S. Dastane (1975) 2
SCC 326: 1975 (3) SCR 967; Rajani v. Subramaniam AIR
1990 Kera la 1; Parveen Mehta v. lnderjit Mehta (2002) 5
SCC 706; Gananath Pattnaik v. State of Orissa (2002) 2 SCC
E 619: 2002 (1) SCR 845; Manisha Tyagi v. Deepak Kumar
(2010) 4 sec 339: 2010 (2) SCR 554; Sujata Uday Patil v.
Uday Madhukar Patil (2006) 13 SCC 272: 2006 (10) Suppl.
SCR 955; Chanderka/a Trivedi v. Dr. S.P. Trivedi (1993) 4
SCC 232: 1993 (1) Suppl. SCR 796 and Pranay Majumdar
F v. Bina Majumdar (2007) 9 SCC 217: 2007 (1) SCR 1089 -
referred to.
Sheldon v. Sheldon (1966) 2 WLR 993 - referred to.
Halsbury's Laws of England, 4th Edn., Vol. 13, para
G 623 - referred to.
3.1. The jurisprudence under Article 136 stands out
to ~e extremely wide but that does not, however, warrant
intervention in a situation having concurrent set of facts
H and an appeal therefrom on the factual issue. The article
U. SREE v. U. SRINIVAS
263
has been engrafted by the foundi11g fathers of the A
Constitution for the purposes of avoiding mischief and
injustice on the wrong assumption of law. The justice
deliver}' system of the country prompts this Court to
interfere under Article 136 of the Constitution when the
need of the society stands established and the judgment,
8
if left outstanding, would not only cream prejudice but
would also have an otherwise adverse effect on the
society. [Para 25] [280-G; 281-A-C]
3.2. When there is infirmity in the decision because
of excluding, ignoring and overlooking the abundant C
materials and the evidence, if considered in proper
perspective, would have led to conclusion contrary to the
one taken by both the High Court as well as the fora
below, it would be open to this Court to interfere with the
concurrent findings of fact. [Para 27] [282-F]
D
3.3. In the case at hand, the finding returned by the
trial court which has been given the stamp of approval
by the High Court relating to mental cruelty cannot be
said to be in ignorance of material evidence or exclusion
E
of pertaining materials or based on perverse reasoning.
The conclusion on that score clearly rests on proper
appreciation of facts and, hence, the same is concurred
with. [Para 28] [282-G; 283-A]
State of U.P. v. Babu/ Nath (1994) 6 sec 29: 1994 (2)
F
Suppl. SCR 598; Bharat Coking Coal Ltd. v. Karam Chand
Thapar & Bros. Pvt. Ltd. (2003) 1 SCC 6: 2002 (4) Suppl.
SCR 165; Ganga Kumar Srivastava v. State of Bihar (2005)
6 SCC 211 and Dubaria v. Har Prasad and Another (2009)
9 SCC 346: 2009 (14) SCR 348 - relied on.
G
4. In regard to the finding recorded by the trial court
and the High Court relating to desertion by the wife, as
the factual matrix would reveal, both the Courts
proceeded on the base that the wife had not endeavored
H
264
SUPREME COURT REPORTS
[2012] 11 S.C.R.
A to reunite herself with the husband and there had long
lapse of time since they had lived together as husband
and wife. On the aforesaid foundation, conclusion has
been drawn that there is an animus descerendi on the
part of the wife. From the divorce petition, it is evident
8 that there is no pleading with regard to desertion. The
petition was not filed seeking divorce on the ground of
desertion but singularly on cruelty. In the absence of a
prayer in that regard, the conclusion arrived at as regards
desertion by the trial court which has been concurred
C with by the High Court is absolutely erroneous and,
accordingly, the same is overturned. [Para 29] [283-B-E]
5. The husband has proved his case of mental
cruelty which was the foundation for seeking divorce.
Therefore, despite dislodging of the finding of desertion,
D it is held that the respondent husband has rightly been
granted a decree of divorce. The decree for dissolution
of marriage is affirmed on the ground of mental cruelty.
[Paras 30, 35] [283-F; 286-C]
E
6.1. As a decree is passed, the wife is entitled to
permanent alimony for her sustenance. While granting
permanent alimony, no arithmetic formula can be
adopted as there cannot be mathematical exactitude. It
shall depend upon the status of the parties, their
F respective social needs, the financial capacity of the
husband and other obligations. The Court is required to
take note of the fact that the amount of maintenance fixed
for the wife should be such as she can live in reasonable
comfort considering her status and the mode of life she
was used to when she lived with her husband. At the
G same time, the amount so fixed cannot be excessive or
affect the living condition of the other party. [Para 33]
[285-8-E]
6.2. In the case at hand, the respondent himself has
H asserted that he has earned name and fame in the world of
U. SREE v. U. SRINIVAS
265
music and has been performing concerts in various parts
A
of India and abroad. The duty of the Court is to see that the
wife lives with dignity and comfort and not in penury. The
living need not be luxurious but simultaneously she
should not be left to live in discomfort. The Court has to act
with pragmatic sensibility. Regard being had to the status
B
of the respondent-husband, the social strata to which the .
parties belong and further taking note of the orders of this
Court on earlier occasions, it is appropriate to fix the
permanent alimony at Rs 50 lacs which shall be deposited
before the trial court out of which Rs.20 lacs shall be kept c
in a fixed deposit in the name of the child in a nationalized
bank which would be utilised for his benefit. The deposit
shall be made in such a manner so that the wife would· be
in a position to draw maximum quarterly interest. It is
clarified that any amount deposited earlier shall stand
0
excluded. [Para 34] [285-E-F-G; 286-A-C]
Vinny Parmvir Parmar v. Parmvir Parmar (2011) 13 SCC
112: 2011 (9) SCR 371 - relied on.
Case Law Reference:
1.975 (3) SCR 967
referred to
Para 10
AIR 1990 Kerala 1
referred to
Para 10
(2002) 5 sec 106
referred to
Para 10, 22
2002 (1) SCR 845
referred to
Para 10
1988 (1) SCR 1010
referred to
Para 10
2010 (2) SCR 554
referred to
Para 10
2006 (10) Suppl. SCR 955referred to
Para 10
1993 (1) Suppl. SCR 796 referred to
Para 10
2007 (1) SCR 1089
referred to
Para 10
E
F
G
H
266
SUPREME COURT REPORTS
[2012) 11 S.C.R.
A
1976 (1) SCR 246
relied on
Para 14
2007 (5) SCR 367
relied on
Para 15, 22
2010 (11) SCR 38
relied on
Para 16
B
2011 (5) SCR 587
relied on
Para 17
2007 (4) SCR 428
relied on
Para 20
2010 (2) SCR 545
relied on
Para 21
c
(2012) 1 sec 288
relied on
Para 22
1982 (1) SCR 695
referred to
Para 22
(1966) 2 WLR 993
referred to
Para 22
D
1993 (3) Suppl. SCR 796 referred to
Para 22
2003 (3) SCR 607
referred to
Para 22
2004 (6) Suppl. SCR 599 referred to
Para 22
E
(2009) 1 sec 422
referred to
Para 22
2008 (15) SCR 972
referred to
Para 22
1994 (2) Suppl. SCR 598
relied on
Para 24
F
2002 (4) Suppl. SCR 165 relied on
Para 25
(2005) s sec 211
relied on
Para 26
2009 (14) SCR 348
relied on
Para 27
G
2011 (9) SCR 371
relied on
Para 33
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
8927-8928 of 2012.
H
U. SREE v. U. SRINIVAS
267
From the Judgment & Order dated 26.09.2011 of the High
A
Court of Madras in MP of No. 1 of 2010, CMA No. 1656 of
2010, CMA No. 1657 of 2010.
K. Sarada Devi for the Appellant.
K.Ramamoorthy, N. Shoba, Sri ~am J. Thalapathy, S.
B
Subbaiah, V. Adihmoolam for the Respondent.
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. Leave granted.
2. The appellant-wife instituted F.C.O.P. No. 568 of 1997
under Section 9 of the Hindu Marriage Act, 1955 (for brevity
'the Acf) in the Principal Family Court, Chennai for restitution
of conjugal rights. The respondent-husband filed F.C.0.P. No.
c
805 of 1998 under Sections 13(1 )(i-a), 26 and 27 of the Act
D
read with Section 7 of the Family Courts Act, 1984 praying for
dissolution of marriage, custody of the child and return of
jewellery and other items. The learned Family Judge jointly tried
both the cases and, on the basis of the evidence brought on
record, dismissed the application for restitution of conjugal
E
rights preferred by the wife and allowed the petition of the
husband for dissolution of marriage and held that the child would
remain in the custody of the mother on the principle that welfare
of the child is paramount, and further the husband was not
entitled to return of jewels or any other item from the wife in the
F
absence of any cogent evidence in that regard. The learned
Family Judge, while passing the decree for dissolution of
marriage, directed to pay permanent alimony of Rs. 5 lacs each
to the wife and her minor son within a month.
3. Being dissatisfied by the common order, the appellantG
wife preferred C.M.A. No. 1656 of 2010 and C.M.A. No. 1657
of 2010 in the High Court of Judicature at Madras and the
Division Bench concurred with the conclusion as regards the
decree of dissolution of marriage as a consequence of which
hoth the aooeals had to meet the fate of dismissal. However,
H
268
SUPREME COURT REPORTS
[2012] 11 S.C.R.
A the Bench, apart from concurring with the grant of permanent
alimony, directed the respondent-husband to pay a sum of
maintenance amounting to Rs.12,500/- to the appellant-wife and
her son from the date of order passed by the Chief Metropolitan
Magistrate at Hyderabad till the date of the order passed by
B the High Court. Hence, the present two appeals have been
preferred by special leave assailing the common judgment
passed by the High Court in both the appeals.
4. The facts requisite to be stated for adjudication of the
appeals are that the marriage between the appellant and the
C respondent was solemnized on 19.11.1994 at Tirupathi
according to Hindu rites and customs. After entering into
wedlock, they lived together at Vadapalani, Chennai. As
tradition would warrant, she went to her parental home for
delivery where a male child was born on 30th of May, 1995.
D The respondent celebrated the child's birth in his in-law's house
and thereafter, the wife stayed with her parents for sometime.
She returned to Chennai on 4.10.1995 and there she lived with
her husband till 3.1.1996. The case of the wife in her application
for restitution of marriage is that on 3.1.1996, her father-in-law,
E without her consent, took her to her parental home and,
thereafter, the husband without any justifiable reason withdrew
from her society.· All er.arts made by her as well as by her
parents to discuss with her husband and his family members
to find out a solution went in vain. In this backdrop, a prayer
F was made for restitution of conjugal rights.
5. The husband resisted the aforesaid stand contending,
inter alia, that there was total incompatibility in the marital
relationship inasmuch as she found fault with his life style, his
daily routine, his likes and dislikes and picked up quarrels on
G trivial issues. She threw tantrums only with the exclusive purpose
that she should dominate the relationship and have her own way.
At the time of practising and learning music in the presence of
his father, who was also his "Guru", she hurled abuses and
screamed which invariably followed with arguments and
H quarrels. Though she was expected, as per the customs, to
U. SREE v. U. SRINIVAS
[DIPAK MISRA, J.]
269
show respect towards elders and to the senior artists, yet,
A
throwing all traditional values to the wind, she would walk away
by creating a scene to his utter embarrassment. His public
image was totally ruined and reputation was mutilated. It was
also alleged that she called her parents and threatened to
initiate proceedings under the Indian Penal Code, 1860 with
B
the help of her father, who was an I.AS. officer in the Vigilance
Department in the Government of Andhra Pradesh. With the
efflux of time, the discord aggravated and the wife became
more aggressive and did not allow her husband to go near her
or the child. On 3.1.1996, when the wife expressed her desire c
to go to her parental home, he could not dare to object and she
went with costly gifts received by him in India and abroad in
recognition of his performance in music. Regard being had to
the physical safety of the wife and the child, he requested his
father to escort them to/Hyderabad. While she was at
0
Hyderabad, she spread rumours among the relatives and
friends pertaining to his fidelity, character and habits. It was
further asserted by the husband that she had filed the petition
only to harass him and, in fact, the manner in which he had been
treated clearly exhibited mental cruelty and, therefore, the said
E
relief should not be granted. It was averred that in view of the
treatment meted out to the husband, dissolution of marriage
was the only solution and not restitution of conjugal rights.
6. The respondent, in his petition for divorce, pleaded that
after abandoning formal education, he pul"Sued his career in
F
music treating it as a concept of 'bhakti' or devotion. He had
· to continue his 'sadhana' as a daily routine under the guidance
of his father as it was necessary to understand the nuances and
the subtleties of music which could only be gathered by
experience and acquisition of knowledge at the feet of a "guru"
G
and also to keep alive "the Guru-Sishya Parampara". The
aforesaid aspect of his life was not liked by his wife and she
always interrupted hurling abuses at him. Despite his best efforts
to make his wife understand the family tradition and show
reverence to the seniors in the sphere of music, she remained
H
270
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(2012) 11 S.C.R.
A obstinate in her attitude and chose to walk away causing him
not only embarrassment in public but also humiliation which
affected his reputation and self respect. That apart, whenever
the husband visited her at the parental home, he was deprived
of conjugal rights and physically prevented from playing with the
B child. In spite of his sacrifice and efforts to adjust with her mental
attitude, she remained adamant and her behavioural pattern
remained painfully consistent. Gradually, her behaviour became
very cruel and, eventually, he was compelled to file a case for
judicial separation to which, as a counterblast, she filed a case
c for restitution of conjugal rights. She had communicated with
her friends that she would like to see her husband behind bars
on the ground of dowry harassment. She had also threatened
that if he took part in any musical concert at Hyderabad, his
life shall be endangered. Put in such a situation, left with no
0 other alternative, he was compelled to file a petition for
dissolution of marriage.
7. As the factual narration would unfurl, the wife in the
written statement asserted that she was aware of the
importance of music, its traditional values and clearly
E understood the devotion and dedication as she herself was a
·veena' player and because of her sacrifice, her husband had
gained reputation and popularity which also enhanced his
financial status, but, with the rise, he failed to perform his duties
as a husband. She denied the interruption in the practice
F sessions and controverted the factum of maltreatment. It was
averred that as the husband had gained reputation, his parents
and other relatives thought of a second marriage so that he
could get enormous dowry. She denied the scandalous
allegations and stated that she was proud of her husband's
G accomplishments. She justified her filing of petition before the
Chief Metropolitan Magistrate for grant of maintenance as he
was absolutely careless and negligent to look after her and the
child. It was further pleaded that the grounds mentioned in the
petition were vexatious and frivolous and, therefore, there was
H no justification for grant of a decree of divorce.
U. SREE v. U. SRINIVAS
[DIPAK MISRA, J.]
271
8. The learned Family Judge framed seven issues and,
A
considering the oral and documentary evidence brought on
record, came to hold that the wife had treated the husband with
cruelty; that she had not taken any steps for re-union and had
deserted him for thirteen years without any valid reason and,
hence, the husband was entitled for a decree of divorce and
B
she was not entitled to have a decree for restitution of conjugal
rights. The learned Family Judge directed that the custody of
the child should remain with the mother and the husband had
miserably failed to make out a case for return of jewels and
other items. He granted permanent alimony as stated earlier. c
9. Being grieved by the aforesaid decision of the learned
Family Judge, the wife preferred two appeals. On behalf of the
appellant-wife, it was urged before the High court that the
judgment and decree passed by the Family Court regarding
grant of divorce was passed on assumptions and
D
presumptions; that she had suffered immense humiliation and
hardship at the hands of the family members of the husband
but the Family Court did not appreciate the said facet in proper
perspective; that the finding relating to desertion by the wife was
contrary to the evidence on record and, in fact, it was the case
E
that the husband had left the wife in the lurch at her parental
home and did not think for a moment to bring her back; that
the allegation with regard to the interruption in the music learning
sessions and her dislike of her husband had been deliberately
stated to make out a case of mental cruelty; that certain
F
documents had been placed reliance upon by the learned
Family Judge though they were not admissible in evidence and
further the documents produced by the wife had not been
properly appreciated and dealt with; and that the court below
would have been well advised, in the obtaining factual matrix,
G
to direct restitution of conjugal rights. It is worth noting that
alternatively it was urged that the trial Court had committed an
error in granting permanent alimony of Rs. 10 lacs in tote,
regard being had to the· income of the husband.
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[2012] 11 S.C.R.
A
10. In appeal, the High Court, after noting the respective
contentions advanced by the learned counsel for the parties,
proceeded to appreciate the essential ingredients which are
necessary to be established to sustain a petition under Section
9 of the Act. After referring to certain decisions in the field and
8 the concept of mental cruelty as stated in Halsbury's Laws of
England, 4th Edn., Vol. 13, para 623 and American
Jurisprudence and the dictum lald down in N.G. Dastane v. S.
Dastane1, Rajani v. Subramaniarn2, Parveen Mehta v. lndeljit
Mehta3, Gananath Pattnaik v. State of Orissa4, Shobha Rani
v. Madhukar Reddi5, Manisha Tyagi v. Deepak Kuma~.
C Sujata Uday Patil v. Uday Madhukar Pqti/7, Chanderkala
Trivedi v. Dr. S.P. Trivedi-a and Pranay Majumdar v. Bina
Majumdar9, 1he High Court came to hold that the material
brought on record showed that the wife had gone to the parental
home on 3.1.1996 and made no efforts to get reunited with the
D husband and, as per the evidence on record, she had admitted
in the testimony recorded in O.P. No. 568 of 1995 that the
relations between her and her husband were cordial till she left
the matrimonial home. The High Court found that her
depositions were contradictory inasmuch as on one hand she
E had stated that she had been ill-treated and on the other that
there was cordial relationship. As is noticeable, the High Court
referred to the xerox copy of the letter Exhibit R-8 dated
18.10.1995 written in her handwriting to her parents and
observed that when the said letter was summoned from her
F father she stated that there was no such letter and on that
1.
(1975) 2 sec 326.
2.
AIR 1990 Kerala 1.
3.
(2002) s sec 100.
G 4.
(2002) 2 sec 619.
5.
(1988) 1 sec 105.
0.
(201 o) 4 sec 339.
1.
(2000) 13 sec 212.
s.
(1993) 4 sec 232.
H 9.
(2007) 9 SCC217.
U. SREE v. U. SRINIVAS
273
[DIPAK MISRA, J.] .
ground the admissibility was called in question. The High Court
A
opined that when the efforts were made to get the primary
evidence and it could not be obtained, the secondary evidence
could be adduced and that would be admissible under Section
65 of the Evidence Act. Be it noted, the English translation of
the said letter was marked as Exhibit R-9 which indicated that
B
the wife had clearly stated that she had spoken ill of her motherin-law and others and had expressed her desire to seek
divorce as she could not stay any longer in the matrimonial
home. It was observed by the Bench that the conduct of the wife
clearly established desertion and her behavio!lrial pattern c ·
exhibited mental cruelty meted out to the husband. The High
Court also took note of the fact that a stage had reached where
it had become well nigh impossible for the couple to live
together. Regard being had to the totality of the circumstances,
the High Court gave the stamp of approval to the common
D
judgment and decree passed by the learned Family Court.
11. We have heard Mrs. K. Sarada Devi, learned counsel
for the appellant, and Mr. K. Ramamoorthy, learned senior
counsel for the respondent. It is contended by Mrs. Sarada Devi
that the learned Family Judge as well as the High Court had
E
failed to appreciate that neither mental cruelty nor desertion had
been established as per the law. It is contended by her that Exh.
R-8 and R-9 were not admissible in evidence inasmuch as they
could not be treated as secondary evidence as envisaged
under Section 65 of the Evidence Act. It is further urged that
F
the whole decision for granting divorce and denying restitution
of conjugal rights has been ba~ct regard being had to the total
break down of marriage but the said ground is not a legally
permissible one to grant divorce.
12. Mr. K. Ramamoorthy, learned senior counsel appearing
for the respondent, per contra, would submit that the said
observation is one of the facets, but the High Court has, after
due deliberations, returned findings relating to cruelty and
G
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SUPREME COURT REPORTS
[2012] 11 S.C.R.
A desertion and the same being founded on proper appreciation
of the material on record, this Court should not interfere in
exercise of appeal entertained by grant of leave under Section
136 of the Constitution of India.
B
13. At this juncture, we may note with profit that as a matter
of fact, the High Court has observed that it has become well
nigh impossible for the husband and the wife to live together
and the emotional bond between the parties is dead for all
purposes. We have noted this aspect for completeness, but we
will not address the said facet and will restrict our delineation
C only towards the justifiability of the conclusions pertaining to
mental cruelty and desertion.
14. Before we dwell upon the tenability of the conclusions
of desertion and mental cruelty, we think it condign to deal with
D the submission whether the photostat copy of the letter alleged
to have been written by the wife to her father could have been
admitted as secondary evidence. As the evidence on record
would show, the said letter was summoned from the father who
had disputed its existence. The learned Family Court Judge as
E well as the High Court has opined that when the person is in
possession of the document but has not produced the same,
it can be regarded as a proper foundation to lead secondary
evidence. In this context, we may usefully refer to the decision
in Ashok Dulichand v. Madahav/al Dube10 wherein it has been
F held that according to clause (a) of Section 65 of the Indian
Evidence Act, secondary evidence may be given of the
existence, condition or contents of a document when the
original is shown or appears to be in the possession or power
of the person against whom the document is sought to be
G proved, or of any person out of reach of, or not subject to, the
process of the court, or of any person legally bound to produce
it, and when, after the notice mentioned in Section 66, such
person does not produce it. Thereafter, the Court addressed
to the facts of the case and opined thus: -
H 1 o. c1 s1s1 4 sec 664.
U. SREE v. U. SRINIVAS
[DIPAK MISRA, J.]
275
"In order to bring his case within the purview of clause (a)
A
of Section 65, the appellant filed applications on July 4, .
1973, before Respondent 1 was examined as a witness,
praying that the said respondent be ordered to produce
the original manuscript of which, according to the appellant,
he had filed photostat copy. Prayer was also made by the
B
appellant that in case Respondent 1 denied that the said
manuscript had been written by him, the photostat copy
might be got examined from a handwriting expert. The
appellant also filed affidavit in support of his applications.
It was, however, nowhere stated in the affidavit that the
C
original document of which the photostat copy had been
filed by the appellant was in the possession of Respondent
1. There was also no other material on the record to
indicate that the original document was in the possession
of Respondent 1. The appellant further failed to explain as
0
to what were the circumstances under which the photostat
copy was prepared and who was in possession of the
original document at the time its photograph was taken.
Respondent 1 in his affidavit denied being in possession
of or having anything to do with such a document."
Be it noted, in this backdrop, the High Court had recorded a
conclusion that no foundation had been laid by the appellant
for leading secondary evidence in the shape of the photostat
copy and this Court did not perceive any error in the said
E
analysis.
F
15. In J. Yashoda v. K. Shobha Ram11, after analyzing the
language employed in Sections 63 and 65 (a), a two-Judge
Bench held as follows:-
"Section 65, hoV{ever permits secondary evidence to be
G
given of the existence, condition or contents of documents
under the circumstances mentioned. The conditions laid
down in the said section must be fulfilled before secondary
11. c2007) 5 sec 730.
H
A
B
c
D
E
276
SUPREME COURT REPORTS
[2012] 11 S.C.R.
evidence can be admitted. Secondary evidence of the
contents of a document cannot be admitted without nonproduction of the original being first accounted for in such
a manner as to bring it within one or other of the cases
provided for in the section."
16. In M. Chandra v. M. Thangamuthu and Other12, It has
been held as follows:-
"It is true that a party who wishes to rely upon the contents
of a document must adduce primary evidence of the
contents, and only in the exceptional cases will secondary
evidence be admissible. However, if secondary evidence
is admissible, it may be adduced in any form in which it
may be available, whether by production of a copy,
duplicate copy of a copy, by oral evidence of the contents
or in another form. The secondary evidence must be
authenticated by foundational evidence that the alleged
copy is in fact a true copy of the original. It should be
emphasised that the exceptions to the rule requiring
primary evidence are designed to provide relief in a case
where a party is genuinely unable to produce the original
through no fault of that party."
17. Recently, in H. Siddiqui (Dead) by Lrs. v. A.
Ramalingam13, while dealing with Section 65 of the Evidence
Act, this Court opined though the said provision permits the
F parties to adduce secondary evidence, yet such a course is
subject to a large number of limitations. In a case where the
original documents are not produced at any time, nor has any
factual foundation been laid for giving secondary evidence, it
is not permissible for the court to allow a party to adduce
G secondary evidence. Thus, secondary evidence relating to the
contents of a document is inadmissible, until the non-production
of the original is accounted for, so as to bring it within one or
12. c201oi g sec 112.
H
13. c2011i 4 sec 240.
U. SREE v. U. SRINIVAS
277
[DIPAK MISRA, J.]
other of the cases provided for in the section. The secondary
A
evidence must be authenticated by foundational evidence that
the alleged copy is in fact a true copy of the original.