# NA VEEN KOHLI v. NEELU KOHLI

- **Citation:** [2006] 3 S.C.R. 53
- **Court:** Supreme Court of India
- **Decided:** 2006
- **Case number:** Civil Appeal No. 8I2 of2004
- **Bench:** B.N. Agrawal, A.K. Mathur, Dalveer Bhandari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/na-veen-kohli-v-neelu-kohli-21234
- **Pages:** 34

## Headnote

B
Hindu Law:
Hindu Marriage Act, 1955 (as amended by 1976 Amendment): Sections
JO and 13.
C
Irretrievable breakdown of marriage--Ground for divorce-Cruelty in
matrimonial cases-Husband filed a petition for divorce alleging that the wife
was a bad-tempered woman of rude behaviour-It was further alleged that
she, in collusion with her parents, got sufficient business property transferred
in her name and that she indulged in indecent behaviour-The wife filed D
criminal cases against the· husband and made efforts to get him arrested
thereby revealing her deep and intense feeling of revenge against the husbandWife also filed fQ[_ged complaints against the husband under Ss. 3971398 of
the Companies Act before the Company Law Board alleging that the husband
was a criminal, infidel, forger, alcoholic and her manager to denigrate his E
position from the proprietor to an employee of her company-The wife also
filed a false complaint using all kinds of abuses against the husband-The
husband was continuously harassed by the police-The trial court found that
the husband was mentally, physically and financially harassed and tortured
by the wife-The trial court stated that many a time efforts had been made/or
an amicable settlement, but there was no cordiality left between the parties F
and there was no possibility of their living together-The trial court ordered
cancellation of the marriage between the parties under S. I 3 and directed the
husband to pay Rs. 5 lacs as the wife's livelihood allowance-The husband
deposited the amount as directed but the wife did not withdraw the amountOn appeal, the High Court set aside the trial court's judgment holding that G
the actions of the appellant amounted to misconduct, uncondonable separately
for the purpose of Section 13(/)(i-a)-Correctness of-Held: It is the obligation
of the Court that the marriage status should, as far as possible, as long as
possible and whenever possible, be maintained-But when the marriage is
53
H
54
SUPREME COURT REPORTS
[2006] 3 S.C.R.
A totally dead, in that event, nothing is gained by trying to keep the parties tied
forever to a marriage which in fact has ceased to exist--ln the instant case,
there has been total disappearance of emotional substratum in the marriage--
The wife is bent upon treating the husband with mental cruelty~lt is abundant(y
clear that the marriage between the parties had broken down irretrievably
and there is no chance of their coming together, or living together againB Hence, marriage between the parties dissolved- Incorporation of irretrievable
breakdown of marriage as a ground for the grant of divorce recommended
Words and Phrases:
"Cruelty"-Meaning of-Jn the context of S. I 3 (l){i-a) of the Hindu
C Marriage Act, 1955.
''Irretrievable breakdown of marriage'' -Meaning of-Explained
The appellant and the respondent are husband and wife. The
appellant-husband filed a petition for divorce under the Hindu Marriage
D Act, 1955 alleging that the respondent-wife was a bad-tempered woman
of rude behaviour. It was further alleged that she, in collusion with her
parents, got sufficient business property transferred in her name and that
she indulged in indecent behaviours. The respondent filed criminal cases
against the appellant and made efforts to get him arrested thereby
revealing her deep and intense feeling of revenge against the appellant.
E The respondent also filed a forged complaint under Sections 397/398 of
the Companies Act, 1956 before the Company Law Board calling him a
criminal, infidel, forger, alcoholic and her manager to denigrate his
position from the proprietor to an employee of her company. The
respondent also filed a false complaint using all kinds of abuses against
F the appellant. The appellant was continuously harassed by the police.
The trial court found that the appellant was mentally, physically and
financially harassed and tortured by the respondent. The trial court stated
that many a time efforts had been made for an amicable se

## Text

_Characters 0–39,827 of 81,322. This is a partial read: ask again with offset=39827 for what follows._

NA VEEN KOHLI
A
v.
NEELU KOHLI
MARCH 2 I, 2006
[B.N. AGRAWAL, A.K. MATHUR AND DALVEER BHANDARI, JJ.]
B
Hindu Law:
Hindu Marriage Act, 1955 (as amended by 1976 Amendment): Sections
JO and 13.
C
Irretrievable breakdown of marriage--Ground for divorce-Cruelty in
matrimonial cases-Husband filed a petition for divorce alleging that the wife
was a bad-tempered woman of rude behaviour-It was further alleged that
she, in collusion with her parents, got sufficient business property transferred
in her name and that she indulged in indecent behaviour-The wife filed D
criminal cases against the· husband and made efforts to get him arrested
thereby revealing her deep and intense feeling of revenge against the husbandWife also filed fQ[_ged complaints against the husband under Ss. 3971398 of
the Companies Act before the Company Law Board alleging that the husband
was a criminal, infidel, forger, alcoholic and her manager to denigrate his E
position from the proprietor to an employee of her company-The wife also
filed a false complaint using all kinds of abuses against the husband-The
husband was continuously harassed by the police-The trial court found that
the husband was mentally, physically and financially harassed and tortured
by the wife-The trial court stated that many a time efforts had been made/or
an amicable settlement, but there was no cordiality left between the parties F
and there was no possibility of their living together-The trial court ordered
cancellation of the marriage between the parties under S. I 3 and directed the
husband to pay Rs. 5 lacs as the wife's livelihood allowance-The husband
deposited the amount as directed but the wife did not withdraw the amountOn appeal, the High Court set aside the trial court's judgment holding that G
the actions of the appellant amounted to misconduct, uncondonable separately
for the purpose of Section 13(/)(i-a)-Correctness of-Held: It is the obligation
of the Court that the marriage status should, as far as possible, as long as
possible and whenever possible, be maintained-But when the marriage is
53
H
54
SUPREME COURT REPORTS
[2006] 3 S.C.R.
A totally dead, in that event, nothing is gained by trying to keep the parties tied
forever to a marriage which in fact has ceased to exist--ln the instant case,
there has been total disappearance of emotional substratum in the marriage--
The wife is bent upon treating the husband with mental cruelty~lt is abundant(y
clear that the marriage between the parties had broken down irretrievably
and there is no chance of their coming together, or living together againB Hence, marriage between the parties dissolved- Incorporation of irretrievable
breakdown of marriage as a ground for the grant of divorce recommended
Words and Phrases:
"Cruelty"-Meaning of-Jn the context of S. I 3 (l){i-a) of the Hindu
C Marriage Act, 1955.
''Irretrievable breakdown of marriage'' -Meaning of-Explained
The appellant and the respondent are husband and wife. The
appellant-husband filed a petition for divorce under the Hindu Marriage
D Act, 1955 alleging that the respondent-wife was a bad-tempered woman
of rude behaviour. It was further alleged that she, in collusion with her
parents, got sufficient business property transferred in her name and that
she indulged in indecent behaviours. The respondent filed criminal cases
against the appellant and made efforts to get him arrested thereby
revealing her deep and intense feeling of revenge against the appellant.
E The respondent also filed a forged complaint under Sections 397/398 of
the Companies Act, 1956 before the Company Law Board calling him a
criminal, infidel, forger, alcoholic and her manager to denigrate his
position from the proprietor to an employee of her company. The
respondent also filed a false complaint using all kinds of abuses against
F the appellant. The appellant was continuously harassed by the police.
The trial court found that the appellant was mentally, physically and
financially harassed and tortured by the respondent. The trial court stated
that many a time efforts had been made for an amicable settlement, but
there was no cordiality left between the parties and there was no possibility
G of their living together. The trial court ordered cancellation of the
marriage between the parties under Section 13 of the Act and directed
the appellant to pay Rs. 5 lacs as the respondent's livelihood allowance.
The appellant deposited the amount as directed but the respondent did
not withdraw the amount.
H
NA VEEN KOHLI v. NEELU KOHLI
55
On appeal, the High Court set aside the trial court's judgment A
holding that th·e actions of the appellant amounted to misconduct,
uncondonable separately for the purpose of Section 13(l)(a) of the Act.
Hence the appeal.
Allowing the appeal, the Court
HELD: 1.1. The petition for divorce was filed primarily oli the
ground of cruelty. Prior to the 1976 amendment in the Hindu Marriage
Act, 1955 cruelty was not a ground for claiming divorce under the Hindu
Marriage Act. It was only a ground for judicial separation under Section
IO of the Act. By the 1976 Amendment, cruelty was made a ground for
divorce. The words· which have been incorporated are "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".
Therefore, it is not necessary for a party claiming divorce to prove that
B
c
the cruelty treatment is of such a nature as to cause an apprehension -
reasonable apprehension that it will be harmful or injurious for him or D
her to live with the other party is sufficient. [67-B-D)
N.G. Dastane v. S. Dastane, 11975) 2 SCC 326, Sirajmohmedkhan
Janmohamadkhan v. Harizunnisa Yasinkhan, (1981) 4 SCC 250, Shoba Rani
v. Madhukar Reddi, 11988) 1 SCC 105 and V. Bhagat v. D. Bhagat, 11994)
1 sec 337, retied on.
E
Bertram v. Bertram, (1944) 59, 60; Cooper v. Cooper, (1950) WN 200
(HL), Kas/efsky v. Kaslefsky, (1950) 2 All ER 398, Blyth v. Blyth, (1966) l
All ER 524, Wright v. Wright, (1948) 77 CLR 191 and Gollins v. Gollins,
(1946) AC 644, referred to.
D. Tolstoy: "The Law and Practice of Divorce and Matrimonial
Causes" 6th Edu., p. 61, referred to.
F
1.2. The cruelty alleged may largely depend upon the type of life the
parties are accustomed to or their economic and social conditions and their
culture and human values to which they attach importance. Each case has G
to be decided on its own merits. 170-EJ
2.1. The word 'cruelty' has to be understood in the ordinary sense
of the term in matrimonial affairs. If the intention to harm, harass or hurt
could be inferred by the nature of the conduct or brutal act complained
of, cruelty could be easily established. But the absence of intention should H
56
SUPREME COURT REPORTS
(2006] 3 S.C.R.
A not made any difference in the case. There may be instances of cruelty by
unintentional but inexcusable conduct of any party. The cruel treatment
may also result from the cultural conflict between the parties. Mental
cruelty can be caused by a party when the other spouse levels an allegation
that the petitioner is a mental patient, or that he requires expert
B psychological treatment to restore his mental health, that he is suffering
from paranoid disorder and mental hallucinations, and to crown it all, to
allege that he and all the members of his family are a bunch of lunatics.
The allegation that the members of the petitioner's family are lunatics and
that a streak of insanity runs through his entire family is also an act of
mental cruelty. 171-G-H; 72-A-CI
c
D
2.2. 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. 172-D-EI
Savitri Pandey v. Prem Chandra Pandey, [2002] 2 SCC 73, relied on.
2.3. The expression 'cruelty' has been used in relation to human
conduct or human behaviour. It is the conduct in relation to or in respect
of matrimonial duties and obligations. Cruelty is a course or conduct of
E one, which is adversely affecting the other. The cruelty may be mental or
physical, intentional or unintentional. If it is physical, the Court will have
no problem in determining it. It is a question of fact and degree. If it is
mental, the problem presents difficulties; first, the enquiry must begin as
to the nature of cruel treatment, second, the impact of such treatment in
F the mind of the spouse, whether it caused reasonable apprehension that it
would be harmful or injurious to live with the other. Ultimately, it is a
matter of inference to be drawn by taking into account the nature of the
conduct and its effect on the complaining spouse. However, there may be
a case where the conduct complained of itself is bad enough and per se
unlawful or illegal. Then the impact or injurious effect on the other spouse
G need not be enquired into or considered. In such cases, the cruelty will be
established if the conduct itself is proved or admitted. [76-G-H; 77-A-C)
Gananth Pattnaik v. State of Orissa, 12002] 2 SCC 619, Parveen Mehta
v. Inderjit Mehta, (2002] 5 SCC 706, Chetan Dass v. Kam/a Devi, (20011 4
SCC 250, Sandhya Rani v. Ka/yanram Narayanan, 11994) Supp. 2 SCC 588,
H Chandrakala Menon v. Vipin Menon, (1993] 2 SCC 6, Kanchan Devi v.
NA VEEN KOHLI v. NEELU KOHLI
57
Promod Kumar Mittal. (1996] 8 SCC 90, Swati Verma v. Rajan Verma, (2004] A
I SCC 123, Prakash Chand Sharma v. Vimlesh. (1995( Supp. 4 SCC 642, V.
Bhagat v. D. Bhagat, (1994( I SCC 337, A. Jaychandra v. Aneel Kumar,
(2005] 2 SCC 22 and Sobha Rani v. Madhukar Reddi, (1988] I SCC 105,
relied on.
3. To constitute cruelty, the conduct complained of should be "grave B
and weighty" so as to come to the conclusion that the petitioner - spouse
cannot be reasonably expected to live with the other spouse. It must be
something more serious than "ordinary wear and tear of married life".
The conduct taking into consideration the circumstances and background
has to be examined to reach the conclusion whether the conduct c
complained of amounts to cruelty in the matrimonial law. Conduct has to
be considered, in the background of several factors such as social status
of parties, their education, physical and mental conditions, customs and
traditions. It is difficult to lay down a precise definition or to give
exhaustive description of the circumstances, which would constitute
cruelty. It must be of the type as to satisfy the conscience of the Court D
that the relationship between the parties had deteriorated to such an extent
due to the conduct of the other spouse that it would be impossible for them
to live together without mental agony, torture or distress to entitle the
complaining spouse to secure divorce. Physical violence is not absolutely
'
essential to constitute cruelty and a consistent course of conduct inflicting
immeasurable mental agony and torture may well constitute cruelty within E
the meaning of Section I 0 of the Act. Mental cruelty may consist of verbal
abuses and insults by using filthy and abusive language leading to constant
disturbance of mental peace of the other party. (77-C-G]
4. The Court dealing with the petition for divorce on the ground of
cruelty has to bear in mind that the problems before it are those of human F
beings and the psychological changes in a spous~'s conduct have to be
borne in mind before disposing of the petition for divorce. However
insignificant or trifling, such conduct may cause pain in the mind of
another. But before the conduct can be called cruelty, it must touch a
certain pitch of severity. It is for the Court to weigh the gravity. It has to G
be seen whether the conduct was such that no reasonable person would
tolerate it. It has to be considered whether the complainant should be
called upon to endure as a part of normal human life. Every matrimonial
conduct, which may cause annoyance to the other, may not amount to
cruelty. Mere trivial irritations, quarrels between spouses, which happen
in day-to-day married life, may also not amount to cruelty. Cruelty in H
58
SUPREME COURr REPORTS
[2006] 3- S.C.R.
A matrimonial life may be of unfounded variety, which can be subtle or
brutal. It may be words, gestures or by mere silence, violent or non-violent.
[77-G-H; 78-A-BI
5. The foundation of a sound marriage is tolerance, adjustment and
respecting on another. Tolerance to each other's fault to a certain bearable
B extent has to be inherent in every marriage. Petty quibbles, trifling
differences should not be exagerated and magnified to destroy what is said
to have been made in heaven. All quarrels must be weighed from that point
of view in determining what constitutes cruelty in each particular case and
always keeping in view the physical and mental conditions of the parties,
their character and social status. A too technical and hypersensitive
C approach would be counter-productive to the institution of marriage. The
Courts do not have to deal with ideal husbands and ideal wives. It has to
deal with a particular man and woman before it. The ideal couple or a
mere ideal one will probably have no occasion to go to the Matrimonial
Court. [78-C-El
D
Durga Tripathy v. Arundhati Tripathy, (20051 7 SCC 353 and lalitha
v. Manickswamy. (2001) DMC 679 SC, relied on.
6. Irretrievable breakdown of marriage is not a ground for divorce
under the Hindu Marriage Act, 1955. Because of the change of
*
E circumstances and for covering a large number of cases where the
marriages are virtually dead and unless this concept is pressed into service,
divorce cannot be granted. Ultimately, it is for the Legislature whether to
include irretreivable breakdown of marriage as a ground of divorce or
not but the Legislature must consider irretrievable breakdown of marriage
as a ground for grant of divorce under the Hindu Marriage Act, 1955.
F
(78-H; 79-A-B)
7. Once the parties have separated and the separation has continued
for a sufficient length of time and one of them has presented a petition
for divorce, it can well be presumed that the marriage has broken down.
The Court, no doubt, should seriously make an endeavour to reconcile the
G parties; yet if it is found that the breakdown is irreparable, then divorce
should not be withheld. The consequences of preservation in law of the
unworkable marriage which has long ceased to be effective are bound to
be a source of greater misery for the parties. (80-G-H; 81-A)
8. A law of divorce based mainly on fault is inadequate to deal with
H a broken marriage. Under the fault theory, guilt has to be proved; divorce
I
-<
1
)
NA VEEN KOHLI v. NEELU KOHLI
59
courts are presented concrete instances of human behavior as bring the A
institution of marriage into disrepute. 181-BJ
9. Once the marriage has broken down beyond repair, it would be
unrealistic for the law not to take notice of that fact, and it would be
harmful to society and injurious to the interests of the parties. Where there
has been a long period of continuous separation, it may fairly be surmised B
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.
[81-B-DJ C
to. Public interest demands not only that the married status should,
as far as possible, as long as possible, and whenever possible, be
maintained, but where a marriage has been wrecked beyond the hope of
salvage, public interest lies in the recognition of that fact. (81-D-E)
11. Since there is no acceptable way in which a spouse can be D
compelled to resume life with the consort, nothing is gained by trying to
keep the parties tied for ever to a marriage that in fact has ceased to exist.
181-E)
12.1. The High Court ought to have considered the repercussions,
consequences, impact and ramifications of all the criminal and other
proceedings initiated by the parties against each other in proper
perspective. (82-B]
E
12.2. Even at this stage, the respondent does not want divorce by
mutual consent. From the analysis and evaluation of the entire evidence,
it is clear that the respondent has resolved to live in agony only to make F
life a miserable hell for the appeHant as well. This type of adamant attitude,
in the context of the facts of this case, leaves no manner of doubt that the
respondent is bent upon treating the appellant with mental cruelty. It is
abundantly clear that the marriage between the parties had broken down
irretrievably and there is no chance of their coming together, or living G
together again. (84-C-D)
13. Undoubtedly, it is the obligation of the Court and all concerned
that the marriage status should, as far as possible, as long as possible and
whenever possible, be maintained; but when the marriage is totally dead,
in that event, nothing is gained by trying to keep the parties tied forever H
to a marriage which in fact has ceased to exist. In the instant case, there
60
SUPREME COURT REPORTS
[2006] 3 S.C.R.
A has been total disappearance of emotional substratum in the marriage.
The course which has been adopted by the High Court would encourage
continuous bickering, perpetual bitterness and may lead to immorality.
(84-F-Gl
14. A marriage between the parties is only in name. When the
B marriage has been wrecked beyond the hope of salvage, public interest
and interest of all concerned lies in the recognition of the fact and to
declare defunct de jure what is already defunct de facto. To keep the sham
is obviously conducive to immorality and potentially more prejudicial to
the public interest than dissolution of the marriage bond. (84-H; 85-A-Bl
c
D
15. Consequently, the impugned judgment of the High Court is set
aside and it is directed that the marriage between the parties should be
dissolved according to the provisions of the Hindu Marriage Act, 1955.
(85-E-Fl
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8I2 of2004.
From the Final Judgment and Order dated 7.7.2003 of the Allahabad
High Court in First Appeal No. 323 of 2003.
Dr. A.M. Singhvi, Ms. Lalita Kohli, Ms. Mona Rajvanshi, Manish
Kumar, Ms. Vrinda Bajaj, Amit Bhandari (for Mis. Manoj Swarup & Co.) for
E the Appeallant.
Ms. Shobha Dikshit, Ms. Malvika Trivedi, Ms. Vibha Datta Makhija,
for the Respondent.
The Judgment of the Court was delivered by
DALVEER BHANDARI, J. This appeal is directed against the
F judgment of the Allahabad High Court dated 07.07.2003 passed by the Division
Bench in First Appeal No.323 of 2003.
The appellant and the respondent are husband and wife. The appellant
has filed a petition under the Hindu Marriage Act, 1955 for divorce. The
Family Court after comprehensively dealing with the matter ordered
G cancellation of marriage between the parties under Section 13 of the Hindu
Marriage Act which was solemnized on 20.11.1975 and directed the appellant
to pay Rs.5 lacs as her livelihood allowance. The appellant deposited the
amount as directed.
The respondent aggrieved by the said judgment preferred First Appeal
H before the Division Bench of the Allahabad High Court. After hearing the
-
-
l
NA VEEN KOHLI v. NEELU KOHLI [BHANDARI, J.)
61
parties the appeal was allowed and the decree passed by the Family Court, A
Kanpur City seeking divorce and annulment of the marriage was dismissed.
The appellant aggrieved by the said judgment of the High Court had
preferred special leave petition under Article 136 of the Constitution of India.
This Court granted special leave to appeal to the appellant.
Brief facts which are necessary to dispose of this appeal are recapitulated.
The appellant, Naveen Kohli got married to Neelu Kohli on 20.11.1975.
Three sons were born out of the wedlock of the parties. The appellant
constructed three factories with the intention of providing a separate factory
B
for his three sons. He also· constructed bungalow no. 7 /36 A for their residence. C
The parties got all their three sons admitted and educated in a public school
in Nanital. According to the appellant, the respondent is bad tempered and
a woman of rude behaviour. After marriage, she started quarrelling and
misbehaving with the appellant and his parents and ultimately, the appellant
was compelled to leave the parental residence and started to reside in a rented D
premises from May 1994. According to the version of the appellant, the
respondent in collusion with her parents got sufficient business and property
transferred in her name.
The appellant alleged that in the month of May 1994, when he along
with the respondent and their children visited Bombay to attend the golden E
jubilee marriage anniversary of his father-in-law, he noticed that the respondent
was indulging in an indecent manner and found her in a compromising position
with one Biswas Rout. Immediately thereafter, the appellant started living
separately from the respondent since May 1994. The appellant suffered intense
physical and mental torture.
According to the appellant, the respondent had withdrawn Rs.9,50,000/
- from the Bank Account of the appellant and deposited the same in her
account.
F
The appellant alleged that the respondent got a false first infonnation
report registered against him under Sections 420/467/468 and 471 IPC which G
was registered as Case No.156 of 1995. According to him, the respondent
again got a case under Sections 323/324 l.P.C. registered in the police station
Panki, Kanpur City and efforts were made to get the appellant arrested.
The appellant filed a Civil Suit No. 115811996 against the respondent.
It was also reported that the appellant was manhandled at the behest of the H
62
SUPREME COURT REPORTS
[2006) 3 S.C.R.
A respondent and an FIR No.156 of 1996 was filed by the eldest son at the
behest of the respondent against the appellant in police station, Panki
complaining that the appellant had physically beaten her son, Nitin Kohli.
The respondent in her statement before the Trial Court had mentioned
that she had filed an FIR against the appellant under Section 420/468 !PC at
B the Police Station, KotWali and the respondent had gone to the extent of
filing a caveat in the High Court in respect of the said criminal case so that
the appellant may not obtain an order from the High Court against her filing
the said FIR.
In the same statement, ·the respondent had admitted that she had filed
C an FIR No. I 00/96 at the Police Station, Kohna under Section 379/323 lPC
against the appellant.
D
TI.e respondent had also filed a complaint against the appellant and his
mother under Sections 498A/323/504/506 !PC at Police Station, Kohna.
The respondent in her statement had admitted that she had opposed the
bail of the appellant in the criminal case filed at the Police Station, Kotwali
on the basis of legal advice. In that very statement she further admitted that
after the police had filed final report in both the criminal cases relating to
Police Station, Kotwali and Police Station, Kohna, she had filed protest petition
E in those cases.
This clearly demonstrates the respondent's deep and intense feeling of
revenge. The respondent in her statement had also admitted that she had filed
a complaint in the Women Cell, Delhi in September 1997. According to the
appellant, the respondent had filed a complaint no.125 of 1998 against the
F appellant's lawyer and friend alleging criminal intimidation which was found
to be false.
According to the appellant, tbe respondent filed a forged complaint
under sections 397/398 of the Companies Act before the Company Law
Board, New Delhi and in the affidavit of the respondent she stated that the
G appellant was immoral, alcoholic, and was having affairs with numerous girls
since marriage. She also called him a criminal, infidel, forger and her manager
to denigrate his position from the proprietor to an employee of her company.
-
The appellant also mentioned that the respondent filed a false complaint
H in Case No.1365 of 1988 using all kinds of abuses against the appellant.
, .
NA VEEN KOHLI v. NEELU KOHLI [BHANDARI, J.]
63
On 8.7.1999, the respondent filed a complaint in the Parliament Street A
Police Station, New Delhi and made all efforts to ensure the appellant's arrest
with the object of sending him to jail. The appellant was called to the police
station repeatedly and was interrogated by the police and only after he gave
a written reply and the matter on scrutiny was found to be false, the appellant
with great difficulty was able to save himself from imprisonment.
On 31.3.1999 the respondent had sent notice for breaking the Nucleus
of the HUF, expressly stating that the Family Nucleus had been broken with
immediate effect and asking for partition of all the properties and assets of
B
the HUF and stating that her share should be given to her within 15 days.
According to the appellant, this act of the respondent clearly broke all relations C
between the appellant and the respondent on 31.3.1999.
The respondent had filed a complaint against the appellant under Section
24 of the Hindu Marriage Act directing payment of maintenance during the
pendency of the case. This was rejected by the Trial Court and she later filed
an appeal in the High Court.
The appellant had deposited Rs.5 lacs on ·court's directions but that
amount was not withdrawn by the respondent. 09 22.1.2001 the respondent
gave an affidavit before the High Court and got non-bailable warrants issued
againsfthe appellant. Consequently, the appellant was harassed by the police
D
and ultimately he got the arrest order stayed by the High Court. The respondent E
admitted in her statement that she got the advertisement published in the
English National Newspaper 'Pioneer'. The advertisement reads as under :
PUBLIC NOTICE
Be it known to all that Mr. Naveen Kohli S/o Mr. Prem Kumar
Kohli was working with my Proprietorship firm as Manager. He has
abandoned his job since May 1996 and has not resumed duties.
He is no more in the employment of the firm. Any Body dealing
with him shall be doing so at his own risk, his authority to represent
the firm has been revoked and none should deliver him orders, cash
cheques or drafts payable to the firm.
NEELD KOHLI
Sole Proprietor
Mis NITIN RUBBER~
152-B, Udyog Nagar,
Kanpur
F
G
H
64
SUPREME COURT REPORTS
[2006] 3 S.C.R.
A
The respondent in her statement before the Court did not deny the
contents of the affidavit but merely mentioned that she did not remember
whether she called the appellant a criminal, infidel and a forger in the affidavit
filed before the Comr~:i~ Law Board.
The respondent did not deny her using choicest abuses against the
B appellant but merely stated that she did not remember.
The respondent also filed a contempt petition in the Company Law
Board against its order of the Company Law Board dated 25.9.2000 in order
to try and get the appellant thrown out of the little apartment and urged that
C the appellant be sent to jail.
Before the Family Court, the respondent stated about solemnization of
the marriage with the appellant on 20.11.1975. In her written statement she
had denied the fact that she was either a rude or a quarrelsome lady. The
respondent also denied that she had mentally, physically and financially
D harassed and tortured the appellant. She also stated that she never refused
cohabitation with the appellant. She also denied indulging in any immoral
conduct. She averred in the written statement that the appellant has been
immorally living with a lady named 'Shivanagi'.
The appellant and the respondent filed a number of documents in support
E of their re-spective cases. On the basis of the pleadings and the documents,
the Additional Principal Judge of Family Court framed the following issues
"I. Whether the respondent treated the plaintiff with cruelty by
registering various criminal cases, getting the news published
F
and initiating civil proceedings?
G
H
2.
Whether the defendant treated the plaintiff with cruelty by her
objectionable behaviour as stated in the plaint? 3.
Whether respondent has made false allegation against the plaintiff?
If yes, its impact?
Whether in the presence of plaintiff, the defendant displayed her
behaviour with Dr. Viswas Rout which comes in the category of
immorality as has been stated in para 11 of the plaint? If yes, its
impact?
4.
Whether the petition is not maintainable on the basis of
l
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NA VEEN KOHLI v. NEELU KOHLI [BHANDARI, J.]
65
preliminary objections I to 3 of the written statement?
5.
Whether plaintiff has kept Smt. Shivan:agi with him as his
concubine? If yes, its impact?
6.
Whether suit of the plaintiff is barred by the provisions of Section
11, C.P.C.?
7.
Whether plaintiff is entitled to get the decree of dissolution of
marriage against defendant?
8.
Whether plaintiff is entitled to get any other relief?"
A
B
Issues number I & 2 relate to the term 'Cruelty' and Issue no. 3 is
regarding impact of false allegations levelled by the respondent against the C
appellant. All these three issues were decided in favour of the appellant and
against the respondent. The learned Trial Court came to a definite conclusion
that the respondent had filed a very large number of cases against the appellant
and got him harassed and tortured by the police. It also declared him an
employee of the factory of which the respondent is a proprietor by getting an D
advertisement issued in the newspaper. According to findings of the Trial
Court, the appellant was mentally, physically and financially harassed and
tortured by the respondent.
The Trial Court framed specific issue whether the appellant had kept
Smt. Shivangi with him as his concubine. This allegation has been denied by E
the appellant. The respondent had failed to produce any witness in respect of
the aforesaid allegation and was consequently not able to prove the same.
The Trial Court stated that both parties have levelled allegations of character
assassination against each other but failed to prove them.
The Trial Court stated that many a times efforts have been made for an F
amicable settlement, but on the basis of allegations which have been levelled
by both the parties against each other, there is no cordiality left between the
parties and there is no possibility of their living together. According to the
Trial court, there was no possibility to reconnect the chain of marital life
between the parties. Hence, the Trial Court found that there is no alternative G
but to dissolve the marriage between the parties. The Trial Court also stated
that the respondent had not filed any application for allowing permanent
maintenance and Stridhan but, in the interest of justice, the Trial Court directed
the appellant to deposit Rs.5,00,000/- toward permanent maintenance of the
respondent. The Trial Court also ordered that a decree of dissolution of
H
66
SUPREME COURT REPORTS
[2006) 3 S.C.R.
A marriage shall be effective after depositing the payment of Rs.5,00,000/- by
the appellant. Admittedly, the appellant had immediately deposited the said
amount.
The respondent, aggrieved by the judgment of the Principal Judge,
Family Court, Kanpur City, preferred the first appeal before the High Court,
B which was disposed of by a Division Bench of the Allahabad High Court.
According to the High Court, the Trial Court had not properly
appreciated and evaluated the evidence on record. According to the High
Court, the appellant had been living with one Shivangi. As per the High
C Court, the fact that on Trial Court's directions the appellant deposited the
sum of Rs.5,00,000/- within two days after the judgment which demonstrated
that the appellant was financially well off. The Division Bench of the High
Court held that actions of the appellant amounted to misconduct, uncondonable for the purpose of Section 13(l)(a) of the Hindu Marriage Act.
The appeal was allowed and the Trial Court judgment has been set aside. The
D suit filed by the appellant seeking a decree of divorce was also dismissed.
The appellant preferred a Special Leave Petition before this Court. We
have carefully perused the pleadings and documents on record and heard the
learned counsel appearing for the parties at length.
E
Both the parties have levelled allegations against each other for not
maintaining the sanctity of marriage and involvement with another person.
According to the respondent, the appellant is separately living with another
woman, 'Shivanagi'. According to the appellant, the respondent was seen
indulging in an indecent manner and was found in compromising position
with one Biswas Rout. According to the findings of the Trial Court both the
F parties failed to prove the allegations against each other. The High Court has
of course reached the conclusion that the appellant was living with one
'Shivanagi' for a considerable number of years. The fact of the matter is that
both the parties have been living separately for more than I 0 years. Number
of cases including criminal complaints have been filed by the respondent
G against the appellant and every effort has been made to harass and torture
him and even to put the appellant behind the bars by the respondent. The
appellant has also tiled cases against the respondent.
H
We would like to examine the facts of the case in the light of the settled
position of law which has been crystallized by a series of judgments.
NAVEEN KOHLI v. NEELU KOHLI [BHANDARI, J.]
67
In the light of facts and circumstances of this case we would also like A
to examine the concept of Irretrievable Breakdown of Marriage particularly
with reference to recently decided cases.
Impact of Physical and Mental Cruelty in Matrimonial Matters.
The petition for divorce was filed primarily on the ground of cruelty. B
It may be pertinent to note that, prior to the 1976 amendment in the Hindu
Marriage Act, 1955 cruelty was not a ground for claiming divorce under the
Hindu Marriage Act. It was only a ground for claiming judicial separation
under Section 10 of the Act. By 1976 Amendment, the Cruelty was made
ground for divorce. The words which have been incorporated are "as to cause C
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". Therefore, it is not
necessary for a party claiming divorce to prove that the cruelty treatment is
of such a nature as to cause an apprehension reasonable apprehension that it
will be harmful or injurious for him or her to live with the other party.
The Court had an occasion to examine the 1976 amendment in the case
of N.G. Dastane v. S. Dastane, [1975] 2 SCC 326: AIR (1975) SC 1534, The
Court noted that " .... whether the conduct charges as cruelty is of such a
character as to cause in the mind of the petitioner a reasonable apprehension
that it will be harmful or injurious for him to live with the respondent".
We deem it appropriate to examine the concept of 'Cruelty' both in
English and Indian Law, in order to evaluate whether the appellant's petition
based on the ground of cruelty deserves to be allowed or not.
D
E
D. Tolstoy in his celebrate book "The Law and Practice of Divorce and F
Matrimonial Causes" (Sixth Edition, p. 61) defined cruelty in these words:
"Cruelty which is a ground for dissolution of marriage may be defined
as willful and unjustifiable conduct of s_uch a character as to cause
danger to life, limb or health, bodily or 'mental, or as to give rise to
a reasonable apprehension of such a danger."
G
The concept of cruelty in matrimonial matters was aptly discussed in
the English case in Bertram v. Bertram, (1944) 59, 60 per Scott, L.J. observed:
"Very slight fresh evidence is needed to show a resumption of the
cruelty, for cruelty of character is bound to show itself in conduct and H
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SUPREME COURT REPORTS
[2006] 3 S.C.R.
A
behaviour. Day in and day out, night in and night out."
B
c
In Cooper v. Cooper, (1950) WN 200 (HL), it was observed as under:
"It is true that the more serious the original offence, the less grave
need be the subsequent acts to constitute a revival."
Lord Denning, L.J. in Kaslefsky v. Kaslefsky [(1950) 2 All ER 398,
403] observed as under:
"If the door of cruelty were opened too wide, we should soon find
ourselves granting divorce for incompatibility of temperament. This
is an easy path to tread, especially in undefended cases. The temptation
must be resisted lest we slip into a state of affairs where the institution
of marriage itself is imperiled."
"In England, a view was at one time taken that the petitioner in a
matrimonial petition must establish his case beyond a reasonable doubt but
D in Blyth v. Blyth [1966] 1 All ER 524, 536, the House of Lords held by a
majority that so far as the grounds of divorce or the bars to divorce like
connivance or condonation are concerned, "the case like any civil case, may
be proved by a preponderance of probability".
The High Court of Australia in Wright v. Wright, (1948) 77 CLR 191,
E 210, has also taken the view that "the civil and not the criminal standard of
persuasion applies to matrimonial causes, including issues of adultery". The
High Court was therefore in error in holding that the petitioner must establish
the charge of cruelty "beyond reasonable doubt". The High Court adds that
"This must be in accordance with the law of evidence", but we are not clear
F as to the implications of this observation."
Lord Pearce observed:
"It is impossible to give a comprehensive definition of cruelty, but
when reprehensible conduct or departure from the normal standards
G
of conjugal kindness causes injury to health or an apprehension of it,
it is, I think, cruelty if a reasonable person, after taking due account
of the temperament and all the other particular circumstances would
consider that the conduct complained of is such that this spouse should
not be called on to endure it.
H
* * *
NA VEEN KOHLiv. NEELU KOHLI [BHANDARI, J.)
69
1 agree with Lord Merriman whose practice in cases of mental A
cruelty was always to make up his mind first whether there was
injury or apprehended injury to health. In the light of that vital fact
the court has then to decide whether the sum total of the reprehensible
conduct was cruel. That depends on whether the cumulative conduct
was sufficiently weighty to say that from a reasonable person's point B
of view, after a consideration of any excuse which this respondent
might have in the circumstances, the conduct is such that this petitioner
ought not to be called on to endure it.
*
*
*
The particular circumstances of the home, the temperaments and C
emotions of both the parties and their status and their way of life,
their past relationship ·and almost every circumstance that attends the
act or conduct complained of may all be relevant."
Lord Reid in Collins v. Gollins, (1964) AC 644: [1963] 2 All ER 966:
"No one has ever attempted to give a comprehensive definition of
cruelty and I do not intend to try to do so. Much must depend on the
knowledge and intention of the respondent, on the nature of his (or
her) conduct, and on the character and physical or mental weaknesses
D
of the spouses, and probably no general statement is equally applicable E
in all cases except the requirement that the party seeking relief must
show actual or probable injury to life, limb or health.
The principles of law which have been crystallized by a series of
judgments of this Court are recapitulated as under :-
In the case of Sirajmohmedkhan Janmohamadkhan v. Harizunnisa F
Yasinkhan, reported in [1981] 4 SCC 250, this Court stated that the concept
of legal cruelty changes according to the changes and advancement of social
concept and standards of living.