# SAMARGHOSH '( v. JAYAGHOSH

- **Citation:** [2007] 4 S.C.R. 428
- **Court:** Supreme Court of India
- **Decided:** 2007-03-26
- **Case number:** Civil Appeal No. 151 of2004
- **Bench:** B.N. Agrawal, P.P. Naolekar, Dal Veer Bhandari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/samarghosh-v-jayaghosh-22778
- **Pages:** 40

## Headnote

Matrimonial Disputes:
4-
-...
c
Divorce-On ground of mental cruelty-'Mental cruelty '-Instances
illustrated-On facts, Held: wife's unilateral decision immediately after
marriage, not to have any child from the marriage, her refusal to respect
marital bond and discharge obligations of marital life, her total indifference
--
and neglect during husband's illness, coupled with other instances would
certainly cause great annoyance to him leading to mental cruelty-Parties
D living separately for more than 16 years, irresistible conclusion would be
that matrimonial bond has been ruptured beyond repair because of mental
cruelty caused by the wife.
Respondent, mother of a girl child, sought for and was granted a decree
of divorce with custody of the child. While the matter was pending before the
E appellate court, she re-married another man, the appellant, on 13.12.1984.
Later, the appellant also filed a suit for a decree of divorce against the
respondent on the ground of mental cruelty. Both the parties were IAS
Officers. The case of the appellant, inter alia, was that soon after the marriage
he came to know that respondent's marrying him was merely an eye-wash as
F
she unilaterally declared her decision not to give birth to any child and asked
J.
him to keep himself away from her; that the respondent refused to cohabit
with the appellant; that the respondent neglected him to the extent that when
he fell ill she went to her brother and parents at a far off place without caring
that there was no one to look after him during his illness; that at times she
used to cook only for herself and not for him and he had either to take his
G meals outside or have to cook again for himself; that she started insulting
and humiliating him in the presence of her father and his servant and one
day virtually turned him out from the house and he had to stay with his friend
until he was allotted an accommodation; that from April 1989, the respondent
;-
~-
started living with her parents, and since August, 1990, the parties were living
H
428
+
SAMARGHOSHv. JAYAGHOSH
-
42S
)
separately. In the circumstances the appellant pleaded that it would not be A
possible to continue the marriage and prayed for a decree of divorce. The
trial court after appreciating the evidence adduced by the parties decreed the
'-
suit, but on appeal by the respondent, the High Court reversed the judgment
'
of the trial court and dismissed the suit. Aggrieved, the husband filed the
appeal
B
Disposing of the appeal, the Court
_J
HELD: 1.1. In the backdrop of the ratio and spirit of a number of decided
cases, the trial court was fully justified in decreeing the appellant's suit for
divorce. In a case of this nature, no other logical view is possible. The High c
Court was not justified in reversing the judgment of the trial court, which is
based on carefully watching the demeanour of the parties and their respective
..
witnesses. [Paras 104 and 105] [466-F-G; G-H]
1.2. 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 D
divorce, it can well be presumed that the marriage bas broken down. The court,
.,J
no doubt, should seriously make an endeavour to reconcile the parties; yet, if
it is found that th·e 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. In the instant case, the respondent appeared in person. Even E
at this stage the Court made an effort that the parties should talk to each
other so that if the parties could reconcile their differences then the case be
deferred, but, despite the request from the Court there was no conversation
between the parties. In this view of the matter, the parties cannot be compelled
)
to live together. [Paras 95 and 36] (462-D-F; 444-B-C]
F
Naveen Kohli v. Neelu Kohli, (2006] 4 SCC 55

## Text

_Characters 0–39,913 of 95,677. This is a partial read: ask again with offset=39913 for what follows._

+-
-
A
SAMARGHOSH
'(
v.
JAYAGHOSH
MARCH 26, 2007
B
[B.N. AGRAWAL, P.P. NAOLEKAR AND DAL VEER BHANDARI, JJ.]
Matrimonial Disputes:
4-
-...
c
Divorce-On ground of mental cruelty-'Mental cruelty '-Instances
illustrated-On facts, Held: wife's unilateral decision immediately after
marriage, not to have any child from the marriage, her refusal to respect
marital bond and discharge obligations of marital life, her total indifference
--
and neglect during husband's illness, coupled with other instances would
certainly cause great annoyance to him leading to mental cruelty-Parties
D living separately for more than 16 years, irresistible conclusion would be
that matrimonial bond has been ruptured beyond repair because of mental
cruelty caused by the wife.
Respondent, mother of a girl child, sought for and was granted a decree
of divorce with custody of the child. While the matter was pending before the
E appellate court, she re-married another man, the appellant, on 13.12.1984.
Later, the appellant also filed a suit for a decree of divorce against the
respondent on the ground of mental cruelty. Both the parties were IAS
Officers. The case of the appellant, inter alia, was that soon after the marriage
he came to know that respondent's marrying him was merely an eye-wash as
F
she unilaterally declared her decision not to give birth to any child and asked
J.
him to keep himself away from her; that the respondent refused to cohabit
with the appellant; that the respondent neglected him to the extent that when
he fell ill she went to her brother and parents at a far off place without caring
that there was no one to look after him during his illness; that at times she
used to cook only for herself and not for him and he had either to take his
G meals outside or have to cook again for himself; that she started insulting
and humiliating him in the presence of her father and his servant and one
day virtually turned him out from the house and he had to stay with his friend
until he was allotted an accommodation; that from April 1989, the respondent
;-
~-
started living with her parents, and since August, 1990, the parties were living
H
428
+
SAMARGHOSHv. JAYAGHOSH
-
42S
)
separately. In the circumstances the appellant pleaded that it would not be A
possible to continue the marriage and prayed for a decree of divorce. The
trial court after appreciating the evidence adduced by the parties decreed the
'-
suit, but on appeal by the respondent, the High Court reversed the judgment
'
of the trial court and dismissed the suit. Aggrieved, the husband filed the
appeal
B
Disposing of the appeal, the Court
_J
HELD: 1.1. In the backdrop of the ratio and spirit of a number of decided
cases, the trial court was fully justified in decreeing the appellant's suit for
divorce. In a case of this nature, no other logical view is possible. The High c
Court was not justified in reversing the judgment of the trial court, which is
based on carefully watching the demeanour of the parties and their respective
..
witnesses. [Paras 104 and 105] [466-F-G; G-H]
1.2. 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 D
divorce, it can well be presumed that the marriage bas broken down. The court,
.,J
no doubt, should seriously make an endeavour to reconcile the parties; yet, if
it is found that th·e 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. In the instant case, the respondent appeared in person. Even E
at this stage the Court made an effort that the parties should talk to each
other so that if the parties could reconcile their differences then the case be
deferred, but, despite the request from the Court there was no conversation
between the parties. In this view of the matter, the parties cannot be compelled
)
to live together. [Paras 95 and 36] (462-D-F; 444-B-C]
F
Naveen Kohli v. Neelu Kohli, (2006] 4 SCC 558; N.G. Dastane v. S.
Dastane, (1975] 2 SCC 326; Sirajmohmedkhan Janmohamadkhan v.
Haizunnisa Yasinkhan & Anr., (1981] 4 SCC 2501; Shobha Rani v. Madhukar
Reddi, [1988] 1 sec 1052;
Rajani v. Subramanian, AIR (1990) Ker. I; V.
Bhagat v. D. Bhagat (Mrs.), [1994] 1 SCC 337; Chetan Dass v. Kam/a Devi, G
(2001] 4 SCC 2503• Savitri Pandey v. Prem Chandra Pandey, [2002) 2 SCC
I.
1982(1) SCR 695
2.
1988(1) SCR 1010
3.
2001(3) SCR 20
H
430
SUPREME COURT REPORTS
[2007] 4 S.C.R.
A 734; Gananath Pattnaik v. State of Orissa, [2002] 2 SCC 61~; Parveen Mehta
v. Inderjit Mehta, [2002] 5 SCC 706; A. Jayachandra v. Aneel Kaur, [2005] 2
SCC 226; Vinita Saxena v. Panka_i Pandit, (2006) 3 SCC 778 and Rishikesh
Sharma v. Saroj Sharma, (2006), 12 Scale 282, referred to.
Russell v. Russell, (1897) AC 395; Evans v. Evans, (1790) 1 Hagg Con
B 35; Waters v. Waters, [1956] 1 All. E.R. 432; Hadden v. Hadden, The Times,
December 5, 1919, (also reported in Modern Law Review Vol.12, 1949; Lord
Simon Watt (or Thomas) v. Thomas, (1947] 1 All E.R. 582; Lord Stowell Evans
v. Evans, (1790) 1 Hagg Con 35; Simpson v. Simpson, (1951] 1 All E.R. 955;
Prichardv. Pritchard, (1864) 3 S&T 523; J.O. in Power v. Power, (1865) 4
C SW & Tr. 173; Bravery v. Bravery, (1954) 1 WLR 1169; Jamieson v. Jamieson,
[1952] I All E.R. 875; Le Brocq v. Le Brockq, (1964] 3 All E.R. 464; Wardv.
Ward, (1958) 2 All E.R. 217; White (otherwise Berry) v. White, (1948] 2 All
E.R. 151; Walsham v. Walsham, [1949] I All E.R. 774; Cackett (otherwise
Trice) v. Cackett, [1950) I All E.R. 677; Knott v. Knott, [1955] 2 All E.R. 305;
Sheldon v. Sheldon, [1966] 2 All E.R. 257, Lord Denning, MR.; Jamieson v.
D Jamieson, (1952] I All E.R. 875; Waters v. Waters, (1956] I All E.R. 432 King
v. King, (1952] 2 All E.R. 584; Warr v. Warr, [1975] I All ER 85; Jem v. Jem,
(1937) 34 Haw. 312; Hybertson v. Hybertson, (1998) 582 N.W. 2d 402;
Rosenbaum v. Rosenbaum, (1976) 38 Ill.App.3d. 1; Fleck v. Fleck 19 N.D. 561;
Donaldson v. Donaldson, (1917) 31Idaho180; Chouinardv. Chouinard, 10
E D.L.R. (3d) 263; Knoll v. Knoll, 10 D.L.R. (3d) 199; Luther v. Luther, [(1978)
5 R.F.L. (2d) 285, 26 N.S.R. (2d) 232, 40 A.P.R. 232; Zalesky v. Zalesky, 1
D.L.R. (3d) 471; Dunkley v. Dunkley, (1938) SASR 325 and La Rovere v. La
Rovere, 4 FLR 1 and Ladder v. Ladder, 1921 New Zealand Law Reports 786,
referred to.
F
The Shorter Oxford Dictionary; Black's Law Dictionary 8th Edition,
2004; Halsbury's Laws of England Vo/.13, 4th Edition Para 1269; 24
American Jurisprudence 2d; William Latey, 'The Law and Practice in Divorce
and Matrimonial Causes' (15th Edition); 71 st report of the Law Commission
of India on "Irretrievable Breakdown of Marriage", referred to.
G
1.3. The High Court has seriously erred in not appreciating the evidence
on record in a proper perspective. The respondent's refusal to cohabit has
4.
2002(1) SCR 50
5.
2002(1) SCR 845
H 6.
2004(6) Supp. SCR 599
+
-
+
SAMAR GHOSH v. JAY A GHOSH
431
"
er·
been proved beyond doubt. The High Court's finding that the husband and A
wife might be sleeping in separate rooms did not lead to a conclusion that
they did not cohabit and to justify this by saying that the respondent was highly
educated and holding a high post was entirely unsustainable. Once the
respondent accepted to become the wife of the appellant, she had to respect
the marital bond and discharge obligations of marital life.
B
(Para 30) [442-D-F)
1.4. The finding of the High Court that if the ailment of the husband
-'
was not very serious and he was not even confined to bed for his illness and
even assuming the wife under such circumstances did not meet the husband,
such behaviour can hardly amount to cruelty, cannot be sustained. During c
illness, particularly in a nuclear family, the husband normally looks after
and supports his wife and similarly, he would expect the same from her. It
-
may be pertinent to mention that in 1993, the appellant had a heart problem
leading to bye-pass surgery, even at that juncture, the respondent did not bother
to enquire about his health even on telephone and when she was confronted in
the cross-examination, she falsely stated that she did not know about it. This D
instance is clearly illustrative of the fact that now the parties have no emotions,
sentiments or feelings for each other at least since 27.8.1990. This is a clear
case of irretrievable breakdown of marriage. It is impossible to preserve or
save the marriage. Any further effort to keep it alive would prove to be totally
counter-productive. The respondent's total indifference and neglect of the E
appellant during his illness would certainly lead to great annoyance leading
to mental cruelty. (Paras 31, 103 and 33) (442-F-H; 443-A; 466-E-FJ
1.5. The High Court has erroneously placed reliance on the evidence
adduced by the reli:~ondent and discarded the evidence of the appellant. The
evidence of the witness produced on behalf of the respondent is wholly F
)
unbelievable and cannot stand the scrutiny of law. The High Court did not
take into consideration the evidence of appellant's servant primarily because
of his low status in life. The credibility of the witness does not depend upon
his financial standing or social status only. A witness who is natural and
truthful should be accepted irrespective of his/her financial standing or social
status. In the impugned judgment, testimony of PW-4 is extremely important G
being a natural witness to the incident He graphically described the incident
of 27.8.1990. He also stated that in his presence, the respondent insulted
and humiliated the appellant. This witness also stated that immediately
...
thereafter the appellant had left the flat and, admittedly, since 27.8.1990, both
.:
the appellant and the respondent are living separately. This was a serious
incident and the trial court was justified in placing reliance on this evidence H
i~
432
SUPREME COURT REPORTS
[2007) 4 S.C.R.
,
A and to come to a definite conclusion that this instance coupled with many other
~
instances led to grave mental cruelty to the appellant. Now the parties have
no feelings and emotions towards each other.
(Paras 33 and 34] [443-B-C; C-G]
1.6. In the background of facts of the case along with an important
B circumstance that the parties are admittedly living separately for more than
sixteen and half years (since 27.8.1990), the irresistible conclusion would be
that matrimonial bond has been ruptured beyond repair because of the mental
cruelty caused by the respondent. [Para 102] (466-B-C]
'"-
c
1.7. The High Court seriously erred in reversing the judgment of the
trial court. The impugned judgment of the High Court is set aside and the
judgment of the trial court granting the decree of divorce is re:;tored.
(Para 103] (466-D]
-
2.1. There cannot be any comprehensive definition of the concept of
D •i:iental cruelty' within which all kinds of cases of mental cruelty can be
covered. Human mind is extremely complex and human behaviour is equally
complicated. Similarly, human ingenuity has no bound; therefore, to assimilate
I..
the entire human behaviour in one definition is almost impossible. What is
cruelty in one case may not amount to cruelty in other case. The concept of
cruelty differs from person to person depending upon his upbringing, level of
E sensitivity, educational, family and cultural background, financial position,
social status, customs, traditions, religious beliefs, human values and their
value system. [Paras 98 and 99] [463-G; 464-A-B]
2.2. Apart from this, the concept of mental cruelty cannot remain static;
F
it is bound to change with the passage of time, impact of modern culture
through print and electronic media and value system etc. etc. What may be
mental cruelty now may not remain a mental cruelty after a passage of time
or vice versa. There can never be any strait-jacket formula or fixed
parameters for determining mental cruelty in matrimonial matters. The
prudent and appropriate way to adjudicate the case would be to evaluate it on
G its peculiar facts and circumstances while taking aforementioned factors into
consideration. [Para 100] [464-C-D]
2.3. No uniform standard can ever be laid down for guidance, yet it would
be appropriate to enumerate some instances of human behaviour which may
,.
be relevant in dealing with the cases of 'mental cruelty'. The following
H instances are only illustrative and not exhaustive:
SAMAR GHOSH v . .IA YA GHOSH
433
(i) On consideration of complete matrimonial life of the parties, acute A
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 B
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 C
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.
D
(v) A sustained course of abusive and humiliating treatment calculated
to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually
affecting physical and mental health of the other spouse. The treatment E
complained of and the resultant danger or apprehension must be very grave,
substantial and weighty.
(vii) Sustai"ed 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 F
cruelty.
(viii) The conduct must be much more than jealousy, selfishness,
possessiveness, which causes unhappiness and dissatisfaction and emotional
upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the
married life which happens in day to day life would not be adequate for grant
of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated
instances over a period of years will not amount to cruelty. The ill-conduct
G
434
SUPREME COURT REPORTS
[2007] 4 S.C.R.
A must be persistent for a fairly lengthy period, where the relationship has
deteriorated to an extent that because of the acts and behaviour of a spouse,
the wronged party finds it extremely difficult to live with the other party any
longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without
B 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 refvsal to have intercourse for considerable
C period without there being any physical incapacity or valid reason may amount
to mental cruelty.
(xiii) Unilateral decision of either husban~ or wife after marriage not
to have child from the marriage may amount to cruelty.
D
(xiv) Where there has been a long period of continuous separation, it
may fairly be concluded that the matrimonial b0t1d 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
E parties. In such like situations, it may lead to mental cruelty.
[Para 101) [464-D-G; 465-A-G; 466-A-B)
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 151 of2004.
From the Final Judgment and Order dated 20.05.03 of the High Court at
F Calcutta in F.A. No. 114of1997.
Ranjan Mukherjee, Rana Mukherjee, Siddharth Gautam and Goodwill
Indeevar for the Appellant.
Jaya Ghosh Respondent-in-person.
G
The Judgment of the Court was delivered by
DAL VEER BHANDARI, J. 1. This is yet another unfortunate matrimonial
dispute which has shattered the twenty two year old matrimonial bond between
the parties. The appellant and the respondent are senior officials of the
Indian Administrative Service, for short 'IAS'.
The appellant and the
H respondent were married on 13.12.1984 at Calcutta under the Special Marriage
SA MAR GHOSH v. JAY A GHOSH [DAL VEER BHANDARI, J.]
435
Act, 1954. The respondent was a divorcee and had a female child from her A
first marriage. The custody of the said child was given to her by the District
Court of Patna where the respondent had obtained a decree of divorce against
her first husband, Debashish Gupta, who was also an I.A.S. officer.
2. The appellant and the respondent knew each other since 1983. The
respondent, when she was serving as the Deputy Secretary in the Department B
of Finance, Government of West Bengal, used to meet the appellant between
November 1983 and June 1984. They cultivated close friendship which later
developed into courtship.
3. The respondent's first husband, Debashish Gupta filed a belated
appeal against the decree of divorce obtained by her from the District Court C
of Patna. Therefore, during the pendency of the appeal, she literally persuaded
the appellant to agree to the marriage immediately so that the appeal of
Debashish Gupta may become infructuous. The marriage between the parties
was solemnized on 13.12.1984. According to the appellant, soon after the
marriage, the respondent asked the appellant not to interfere with her career. D
She had also unilaterally declared her decision not to give birth to a child for
two years and the appellant should not be inquisitive about her child and he
should try to keep himself aloof from her as far as possible. According to
the appellant, there was imposition of rationing in emotions in the arena of
love, affection, future planning and normal human relations though he tried
hard to reconcile himself to the situation created by the respondent.
E
4. The appellant asserted that the apathy of the respondent and her
inhuman conduct towards him became apparent in no time. In February 1985,
the appellant suffered prolonged illness.
The respondent's brother was
working in Bareilly. Her parents along with her daughter went there for F
sojourn.
The appellant could not go because of high temperature and
indifferent health. She left him and went to Bareilly even when there was no
one to look after him during his illness.
On her return, the respondent
remained in Calcutta for about four days, but she did not care to meet the
appellant or enquire about his health. According to the appellant, he made
all efforts to make adjustments and to build a normal family life. He even used G
to go to Chinsurah every weekend where the respondent was posted but she
showed no interest and was overtly indifferent to him. The appellant usually
returned from Chinsurah totally dejected. According to the appellant, he felt
like a stranger in his own family. The respondent unilaterally declared that
she would not have any child and it was her firm decision. The appellant felt H
436
SUPREME COURT REPORTS
[2007] 4 S.C.R.
A that his marriage with the respondent was merely an eye-wash because
immediately after the marriage, serious matrimonial problems developed between
them which kept growing.
5. The respondent was transferred to Calcutta in May 1985. Their
residential flat at the Minto Park Housing Estate stood allotted to the appellant.
B The respondent used to come to their flat intermittently. One Prabir Malik, a
domestic servant-cum-cook also used to live in the said flat. He used to cook
food and carry out household work for the appellant.
According to the
appellant, the respondent used to say that her daughter was being neglected
and that she might even be' harmed. The indication was towards Prabir Malik.
C The appellant and the respondent virtually began to live separately from
September, 1985.
6. The appellant was transferred to Murshidabad in May 1986 but the
respondent continued to stay in Calcutta.
The appellant stayed in
Murshidabad up to April 1988 and thereafter he went on deputation on an
D assignment of the Government of India but there he developed some health
problem and, therefore, he sought a transfer to Calcutta and came back there
in September 1988. On transfer of the appellant to Murshidabad, the flat in
which they were staying in Minto Park was allotted to the respondent as per
the standard convention.
The appellant and the respondent again began
living together in Calcutta from September 1988. The appellant again tried to
E establish his home with the respondent after forgetting the entire past.
7. According to the appellant, the respondent never treated the house
to be her family home. The respondent and her mother taught respondent's
daughter that the appellant was not her father. The child, because of instigation
F of the respondent and her mother, gradually began to avoid the appellant. The
respondent in no uncertain terms used to tell the appellant that he was not
her father and that he should not talk to the child or love her. The appellant
obviously used to feel very offended.
8. The appellant also learnt that the respondent used to tell her mother
G that she was contemplating divorce to the appellant.
The respondent's
daughter had also disclosed to the appellant that her mother had decided to
divorce him. According to the appellant, though they lived under. the same
roof for some time but the respondent virtually began to live separately from
April, 1989 at her parent's house. In April 1990 the appellant's servant Prabir
Malik had left for Burdwan on getting a job. The respondent used to come
H from her parents house to drop her daughter to her school La Martinere. She
l
I
SAMARGHOSHv. JAY A GHOSH [DALVEERBHAND<\Rr. T 1
437
.#
used to come to the flat at Minto Park from the school to cook food only for A.
herself and leave for the office. The appellant began to take his meals outside
!
as he had no other alternative.
9. According to the appellant, the said Prabir Malik came to the flat on
24th August, 1990 and stayed there at the night. The next two days were
holidays. The respondent and her father also came there on 27th August, B
1990. On seeing Prabir, the respondent lost her mental equanimity. She took
strong exception to Prabir's presence in her flat and started shouting that the
appellant had no self-respect and as such was staying in her flat without any
right. According to the appellant, he was literally asked to get out of that flat.
The respondent's father was also there and it appeared that the act was pre- C
conceived. The appellant felt extremely insulted and humiliated and immediately
thereafter he left the flat and approached his friend to find a temporary shelter
and stayed with him till he got a government flat allotted in his name on
13.9.1990.
I 0. Admittedly, the appellant and the respondent have been living D
separately since 27th August, 1990. The appellant further stated that the
respondent refused cohabitation and also stopped sharing bed with him
without any justification. Her unilateral decision not to have any child also
caused mental cruelty on the appellant. The appellant was not permitted to
even show his normal affection to the daughter of the respondent although
he was a loving father to the child. The appellant also asserted that the E
respondent desired sadistic pleasure at the discomfiture and plight of the
appellant which eventually affected his health and mental peace. In these
circumstances, the appellant has prayed that it would not be possible to
continue the marriage with the respondent and he eventually filed a suit for
the grant of divorce.
F
11. In the suit for divorce filed by the appellant in Alipur, Calcutta, the
respondent filed her written statement and denied the avennents. According
to the version of the respondent, Prabir Malik, the domestic servant did not
look after the welfare and well-being of the child. The respondent was
apprehensive that Prabir Malik may not develop any affection towards the G
respondent's daughter.
12. According to the version of the respondent, the appellant used to
work under the instructions and guidance of his relations, who were not very
happy with the respondent and they were interfering with their family affairs.
The respondent stated that the appellant has filed the suit for divorce at tl1e H
438
SUPREME COURT REPORTS
[2007) 4 S.C.R.
A behest of his brothers and sisters. The respondent has not denied this fact
that from 27th August, 1990 they have been continuously living separately
and thereafter there has been no interaction whatsoever between them.
13. The appellant, in support of his case, has examined himself as
witness no. I. He has also examined Debabrata Ghosh as witness no.2, N. K.
B Raghupatty as witness no.3, Prabir Malik as witness no.4 and Sikhabilas
Barman as witness no.5.
14. Debabrata Ghosh, witness no.2 is the younger brother of the
appellant. He has stated that he did not attend the marriage ceremony of the
C appellant an'd the respondent. He seldom visited his brother and sister-in-law
at their Minto Park flat and he did not take any financial assistance from his
brother to maintain his family. He mentioned that he noticed some rift between
the appellant and the respondent.
15. The appellant also examined N. K. Raghupatty, witness no.3, who
D was working as the General Secretary at that time. He stated that he knew
both the appellant and the respondent because both of them were his
colleagues. He was occupying a suite in the Circuit House at Calcutta. He
stated that two weeks before the Puja vacation in 1990, the appellant wanted
permission to stay with him because he had some altercation with the
respondent. According to this witness, the appellant was his close friend,
E therefore, he permitted him to stay with him.
He further stated that the
appellant after a few days moved to the official flat allotted to him.
16. Prabir Malik was examined as witness no.4. He narra~ed that he had
known the appellant for the last 8/9 years. He was working as his servantcum-cook.
He also stated that since April 1990 he was serving at the
F Burdwan Collectorate.
He stated that after getting the job at Burdwan
Collectorate, he used to visit the Minto Park flat of the appellant on 2nd and
4th Saturdays. He stated that the relationship between the appellant and the
respondent was not cordial. He also stated that the appellant told him that
the respondent cooks only for herself but does not cook for the appellant and
G he used to eat out and sometimes cooked food for himself.
He stated that
the brothers and sisters of the appellant did not visit Minto Park flat. He also
stated that the daughter of the respondent at times used to say that the
appellant was not her father and that she h~d no blood relationship with him.
He stated that on 4th Saturday, in the month of August, 1990, he came to the
flat of the appellant. On seeing him the respondent got furious and asked
H him for what purpose he had come to the flat? She further stated that the
(
-~
-·
)
SAMAR GHOSH v. JAY A GHOSH [DAL VEER BHANDARI, J.]
439
appellant had no residence, therefore, she had allowed him to stay in her flat. A
She also said that it was her flat and she was paying rent for it.
According
to the witness, she further stated that even the people living on streets and
street beggars have some prestige, but these people had no prestige at all.
At that time, the father of the respondent was also present. According to
Prabir Malik, immediately after the incident, the appellant left the flat.
17. The appellant also examined Sikhabilas Barman as witness no.5, who
was also an IAS Officer. He stated that he had known the appellant and his
wife and that they did not have cordial relations. He further stated that the
appellant told him that the respondent cooks for herself and leaves for office
B
and that she does not cook for the appellant and he had to take meals outside C
and sometimes cooked food for himself. He also stated that the respondent
had driven the appellant out of the said flat.
18. The respondent has examined herself. According to her statement,
she indicated that she and the appellant were staying together as normal
husband and wife. She denied that she ill-treated Prabir Malik. She further D
stated that the brothers and sisters of the appellant used to stay at Minto
Park flat whenever they used to visit Calcutta. She stated that they were
interfering in the pr_ivate affairs, which was the cause of annoyance of the
respondent.
She denied the incident which took place after 24.8. 1990.
However, she stated that the appellant had left the apartment on 27.8.1990.
In the cross-examination, she stated that the appellant appeared to be a fine E
gentleman. She admitted that the relations between the appellant and the
respondent were not so cordial. She denied that she ever mentioned to the
appellant that she did not want a child for two years and refused cohabitation.
19. The respondent also examined R. M. Jamir as witness no. 2. He F
stated that he had known both of them and in the years 1989-90 he visited
their residence and he found them quite happy. He stated that in 1993 the
respondent enquired about the heart problem of the appellant.
20_. The respondent also examined her father A. K. Dasgupta as witness
no. 3. He stated that his daughter neither insulted nor humiliated her husband G
in presence of Prabir Malik nor asked him to leave the apartment. He stated
that the appellant and the respondent were living separately since 1990 and
he never enquired in detail about this matter. He stated that the appellant had
a lot of affection for the respondent's daughter. He stated that he did not
know about the heart trouble of the appellant. He stated that he was also
unaware of appellant's bye-pass surgery.
H
440
SUPREME COURT REPORTS
(2007] 4 S.C.R.
A
21. The learned Additional District Judge, 4th Court, Alipur, after
'
examining the plaint, written statements and evidence on record; framed the
follows issues:
"I. Is the suit maintainable?
B
2.
Is the respondent guilty of cruelty as alleged?
3.
Is the petitioner entitled to decree of divorce as claimed?
4.
To what other relief or reliefs the petitioner is entitled?"
22. Issue no. 1 regarding maintainability of the suit was not pressed, so
C this issue was decided in favour of the appellant.
23. The trial court, after analyzing the entire pleadings and evidence·on
record, came to the conclusion that the following facts led to mental cruelty:
1. Respondent's refusal to cohabit with the appellant.
D
2. Respondent's unilateral decision not to have children after the
marriage.
E
3. Respondent's act of humiliating the appellant and virtually turning
him out of the Minto Park apartment. The appellant in fact had taken
shelter with his friend and he stayed there till official accommodation
was allotted to him.
4. Respondent's going to the flat and cooking only for herself and the
appellant was forced to either eat out or cook his own meals.
5. The respondent did not take care of the appellant during his
p
prolonged illness in 1985 and never enquired about his health even
when he underwent the bye-pass surgery in 1993.
6. The respondent also humiliated and had driven out the loyal servantcum-cook of the appellant, Prabir Malik.
G
24. The learned Additional District Judge came to the finding that the
appellant has succeeded in proving the case of mental cruelty against the
respondent, therefore, the decree was granted by the order dated 19 .12.1996
and the marriage between· the parties was dissolved.
25. The respondent, aggrieved by the :said judgment of the learned
H Additional District Judge, filed an ·appeal before the High Court. The Division
..
SAMARGHOSHv. JAYAGHOSH[DALVEERBHANDARl,J.]
441
~
Bench of the High Court vide judgment dated 20.5.2003 reversed the judgment A
of the Additional District Judge on the ground that the appellant has not been
able to prove the allegation of mental cruelty. The findings of the High Court,
·-r
in brief, are recapitulated as under:
I.
The High Court arrived at the finding,Uiat it was certainly within
the right of the respondent-wife having such a high statUs in life
to decide when she would like to have a child after marriage.
II.
The High Court also held that the appellant has failed to disclose
in the pleadings when the respondent took the final decision of
not having a child.
m. The High Court held that the appellant also failed to give the
approximate date when the respondent conveyed this decision to
the appellant.
N.
The High Court held that the appellant started living with the
respondent, therefore, that amounted to condonation of the acts
of cruelty.
V.
The High Court disbelieved the appellant on the issue of
respondent's refusing to cohabit with him, because he failed to
give the date, month or the year when the respondent conveyed
this decision to him.
··
VI. The High Court held that the appellant's and the respondent's
sleeping in separate rooms did not lead to the conclusion that
they did not cohabit.
B
c
D
E
VIL The High Court also observed that it was quite proper for the
respondent with such high status and having one daughter by F
her previous husband, not to sleep in the same bed with the
appellant.
VIII. The High Court observed that refusal to cook in such a context
when the parties belonged to high strata of society and the wife
also has to go to office, cannot amount to mental cruelty.
IX. The High Court's findings that during illness of the husband,
wife's not meeting the husband to know about his health did not
amount to mental cruelty.
G
26. The High Court was unnecessarily obsessed by the fact that the
respondent was also an IAS Officer. Even ifthe appellant had married an IAS H
442
SUPREME COURT REPORTS
[2007) 4 S.C.R.
A Officer that. does not mean that the normal human emotions and feelings
would be entirely different.
27. The finding ofttte Division Bench of the High Court that, considering
the position and status of the respondent, it was within the right of the
respondent to decide when she would have the child after the marriage. Such
B a vital decision cannot be taken unilaterally after marriage by the respondent
and if taken unilaterally, it may amount to mental cruelty to the appellant.
c
28. The finding of the High Court that the appellant started living with
the respondent amounted to condonation of the act of cruelty is unsustainable
in law.
29. The finding of the High Court that the respondent's refusal to cook
food for the appellant could not amount to mental cruelty as she had to go
to office, is not sustainable. The High Court did not appreciate the evidence
and findings of the learned Additional District Judge in the correct perspective.
D The question was not of cooking food, but wife's cooking food only for
herself and not for the husband would be a clear instance of causing annoyance
which may lead to mental cruelty.
30. The High Court has seriously erred in not appreciating the evidence
on record in a proper perspective. The respondent's refusal to cohabit has
'
E been proved beyond doubt. The High Court's finding that the husband and
F
wife might be sleeping in separate rooms did not lead to a conclusion that
they did not cohabit anq tojustify this by saying that the respondent was
highly educated and holding a high post was entirely unsustainable. Once the
respondent accepted to become th!'! wife of the appellant, she had to respect
the marital bond and discharge obligations of marital life.
31. The finding of the High Court that if the ailment of the husband was
not very serious and he was not even confined to bed for his illness and even
assuming the wife under such circumstances did not meet the husband, such
behaviour can hardly amount to cruelty, cannot be sustained. During illness,
G particularly in a nuclear family, the husband normally looks after and supports
his wife and similarly, he would expect the same from her. The respondent's
total indifference and neglect of the appellant during his illness would certainly
lead to great annoyance leading to mental cruelty.
32. It may be pertinent to mention that in 1993, the appellant had a heart
H problem leading to bye-pass surgery, even at that juncture, the respondent
,,..
SAMAR GHOSH v. JAY A GHOSH [DAL VEER BHANDARI, J.]
443
-
)J
did not bother to enquire about his health even on telephone and when she A
was confronted in the cross-examination, she falsely stated that she did not
know about it.
....
.....
33. Mr. A. K. Dasgupta, father of the respondent and father-in-law of
the appellant, was examined by the respondent. In the cross-examination, he
stated that his daughter and son-in-law were living separately and he never B
enquired about this. He further said that the appellant left the apartment, but
he never enquired from anybody about the cause of leaving the apartment.
He also stated that he did not know about the heart trouble and bye-pass
surgery of the appellant. In the impugned judgment, the High Court has
erroneously placed reliance on the evidence submitted by the respondent and c
discarded the evidence of the appellant. The evidence of this witness is
wholly unbelievable and cannot stand the scrutiny of law.
34. The High Court did not take into consideration the evidence of
Prabir Malik primarily because of his low status in life. The High Court, in the
impugned judgment, erroneously observed that the appellant did not hesitate D
to take help from his servant in the matrimonial dispute though he was highly
educated and placed in high position. The credibility of the witness does not
depend upon his financial standing or social status only. A witness which is
natural and truthful should be accepted irrespective of his/her financial standing
or social status. In the impugned judgment, testimony of witness no.4 (Prabir E
Malik) is extremely important being a natural witness to the incident. He
graphically described the incident of 27 .8.1990. He also stated that in his
presence in the apartment at Minto Park, the respondent stated that the
appellant had no place of residence, therefore, she allowed him to stay in her
flat, but she did not like any other man of the appellant staying in the flat.
.)
According to this witness, she said that the flat was hers and she was paying F
rent for it. According to this witness, the respondent further said that even
people living on streets and street beggars have some prestige, but these
people have no prestige at all. This witness also stated that immediately
thereafter the appellant had left the flat and admittedly since 27 .8.1990, both
the appellant and the respondent are living separately. This was a serious
G
incident and the trial court was justified in placing reliance on this evidence
and to come to a definite conclusion that this instance coupled with many
other instances led to grave mental cruelty to the appellant. The trial Court
,.
rightly decreed the suit of the appellant. The High Court was not justified in
reversing the judgment of the trial Court.
H
444
SUPREME COURT REPORTS
[2007] 4 S.C.R.
A
35. The High Court also failed to take into consideration the most
important aspect of the case that admittedly the appellant and the respondent
have been _living separ,ately for more than sixteen and half years (since
27.8.1990).