# VISHWANATH S/O SITARAM AGRAWAL v. SAU. SARLA VISHWANATH AGRAWAL

- **Citation:** [2012] 7 S.C.R. 607
- **Court:** Supreme Court of India
- **Decided:** 2012-07-04
- **Case number:** Civil Appeal No. 4905 of 2012
- **Bench:** Deepak Verma, Dipak Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vishwanath-s-o-sitaram-agrawal-v-sau-sarla-vishwanath-agrawal-28355
- **Pages:** 37

## Headnote

Hindu Marriage Act, 1955 - s. 13(1)(ia) - Divorce petition
filed by husband - On ground of cruelty - Held: The conduct
A
8
of the wife and circumstances of the case make it graphically C
clear that the wife had really humiliated the husband and
caused him mental cruelty - Her conduct clearly exposits that
it resulted in causing agony and anguish in the mind of the
husband - The wife publicised in the newspapers that the
husband was a womaniser and a drunkard - She made wild o
allegations about his character - She made an effort to
prosecute him in criminal litigations which she failed to prove
- The cumulative effect of the evidence brought on record
clearly establish a sustained attitude of causing humiliation
and calculated torture on the part of the wife to make the life
E
of the husband miserable - Behaviour of the wife was cruel -
The husband felt humiliated both in private and public life -
He was treated as an unperson - It created a dent in his
reputation - With this mental pain, agony and suffering, the
husband cannot be asked to put up with the conduct of the
F
wife and to continue to live with her - Therefore, appel/anthusband entitled to decree for divorce.
Family law - Matrimonial proceedings - Divorce petition
- Events subsequent to filing of divorce petition - Held: Can
be taken into consideration.
G
Family law - Matrimonial proceedings - Divorce -
Permanent Alimony - Grant of - Factors to be considered -
Held: Permanent alimony is to be granted taking into
consideration the social status, the conduct of the parties, the
607
.
H
608
SUPREME COURT REPORTS
[2012] 7 S.C.R.
A way of living of the spouse and such other ancillary aspects -
In the instant case, keeping in view the totality of the
circumstances and the social strata from which the parties
come from and regard being had to the business prospects
of the appellant-husband, permanent alimony fixed at Rs.50
B lacs.
Family law - Matrimonial proceedings - Witness -
Interested/related witnesses - Testimony of - Veracity - Held:
In a matrimonial dispute, it would be inappropriate to expect
outsiders to come and depose - The family members and
C sometimes the relatives, friends and neighbours are the most
natural witnesses - The veracity of the testimony is to be
tested on objective parameters and not to be thrown overboard
on the ground that the witnesses are related to either of the
spouse.
D
Words and Phrases - Expression 'cruelty' - Meaning of -
Held: The expression has an inseparable nexus 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, temperaments and emotions that
E have been conditioned by their social status.
Constitution of India, 1950 - Article 136 - Interference by
Supreme Court with concurrent findings of fact - When
permissible - Held: Supreme Court in exercise of power u/
F Article 136 can interfere with concurrent findings of fact, if the
conclusions recorded by the High Court are manifestly
perverse and unsupported by the evidence on record - Any
finding not supported by evidence or inference drawn in a
stretched and unacceptable manner can be said to be
G perverse.
The appellant-husband filed a petition for divorce
under Section 13(1)(ia) of The Hindu Marriage Act, 1955
contending that the respondent-wife had treated him with
cruelty. It was the case of the appellant that respondent
H did not know how to conduct herself as a wife and
VISHWANATH S/O SITARAM AGRAWAL v. SAU.
609
SARLA VISHWANATH AGRAWAL
daughter-in-law and despite persuasion, her behavioural
A
pattern remained unchanged; that whim and irrationality
reigned in her day-to-day behaviour; that the birth of their
two sons had no impact on her conduct; that the
behaviour of respondent with the relatives and guests
endangered the social reputation of the family and that
B
apart, she did not have the slightest respect for
appellant's mother despite the old lady being a patie

## Text

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[2012] 7 S.C.R. 607
VISHWANATH S/O SITARAM AGRAWAL
v.
SAU. SARLA VISHWANATH AGRAWAL
(Civil Appeal No. 4905 of 2012)
JULY 4, 2012
[DEEPAK VERMA AND DIPAK MISRA, JJ.]
Hindu Marriage Act, 1955 - s. 13(1)(ia) - Divorce petition
filed by husband - On ground of cruelty - Held: The conduct
A
8
of the wife and circumstances of the case make it graphically C
clear that the wife had really humiliated the husband and
caused him mental cruelty - Her conduct clearly exposits that
it resulted in causing agony and anguish in the mind of the
husband - The wife publicised in the newspapers that the
husband was a womaniser and a drunkard - She made wild o
allegations about his character - She made an effort to
prosecute him in criminal litigations which she failed to prove
- The cumulative effect of the evidence brought on record
clearly establish a sustained attitude of causing humiliation
and calculated torture on the part of the wife to make the life
E
of the husband miserable - Behaviour of the wife was cruel -
The husband felt humiliated both in private and public life -
He was treated as an unperson - It created a dent in his
reputation - With this mental pain, agony and suffering, the
husband cannot be asked to put up with the conduct of the
F
wife and to continue to live with her - Therefore, appel/anthusband entitled to decree for divorce.
Family law - Matrimonial proceedings - Divorce petition
- Events subsequent to filing of divorce petition - Held: Can
be taken into consideration.
G
Family law - Matrimonial proceedings - Divorce -
Permanent Alimony - Grant of - Factors to be considered -
Held: Permanent alimony is to be granted taking into
consideration the social status, the conduct of the parties, the
607
.
H
608
SUPREME COURT REPORTS
[2012] 7 S.C.R.
A way of living of the spouse and such other ancillary aspects -
In the instant case, keeping in view the totality of the
circumstances and the social strata from which the parties
come from and regard being had to the business prospects
of the appellant-husband, permanent alimony fixed at Rs.50
B lacs.
Family law - Matrimonial proceedings - Witness -
Interested/related witnesses - Testimony of - Veracity - Held:
In a matrimonial dispute, it would be inappropriate to expect
outsiders to come and depose - The family members and
C sometimes the relatives, friends and neighbours are the most
natural witnesses - The veracity of the testimony is to be
tested on objective parameters and not to be thrown overboard
on the ground that the witnesses are related to either of the
spouse.
D
Words and Phrases - Expression 'cruelty' - Meaning of -
Held: The expression has an inseparable nexus 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, temperaments and emotions that
E have been conditioned by their social status.
Constitution of India, 1950 - Article 136 - Interference by
Supreme Court with concurrent findings of fact - When
permissible - Held: Supreme Court in exercise of power u/
F Article 136 can interfere with concurrent findings of fact, if the
conclusions recorded by the High Court are manifestly
perverse and unsupported by the evidence on record - Any
finding not supported by evidence or inference drawn in a
stretched and unacceptable manner can be said to be
G perverse.
The appellant-husband filed a petition for divorce
under Section 13(1)(ia) of The Hindu Marriage Act, 1955
contending that the respondent-wife had treated him with
cruelty. It was the case of the appellant that respondent
H did not know how to conduct herself as a wife and
VISHWANATH S/O SITARAM AGRAWAL v. SAU.
609
SARLA VISHWANATH AGRAWAL
daughter-in-law and despite persuasion, her behavioural
A
pattern remained unchanged; that whim and irrationality
reigned in her day-to-day behaviour; that the birth of their
two sons had no impact on her conduct; that the
behaviour of respondent with the relatives and guests
endangered the social reputation of the family and that
B
apart, she did not have the slightest respect for
appellant's mother despite the old lady being a patient of
diabetes and hyper tension, and that after the death of
appellant's mother, the respondent made the life of the
appellant all the more troublesome. The appellant c
contended that on certain occasions the respondent
used to hide or crumple his ironed clothes or hide the
keys of his motorcycle or close the main gate so that he
could not go to the office of his factory to look after the
business and that she also made frequent phone calls to
0
the factory solely for the purpose of abusing him and for
causing him mental agony.
During the pendency of the divorce petition, two
incidents- dated 24.7.1995 and 11.10.1995 occurred,
which the appellant incorporated in the divorce petition
E
by way of amendment. On 24.7.1995, a notice issued by
respondent's advocate was published in the daily
"Lokmat" stating, inter alia, that the appellant was a
womaniser and addicted to liquor while on 11.10.1995, at
4.00 p.m., according to the appellant, the respondent
F
came to his house and abused him, his father and the
children; and also damaged property which compelled
him to lodge a complaint at the Police Station.
The asseverations made in the divorce petition were
controverted by the respondent. She alleged that she G
was disturbed after knowing about the involvement of
appellant with another lady 'N', therefore, she was
compelled to make phone calls to make enquiries about
his whereabouts and as the interference by the
H
610
SUPREME COURT REPORTS
[2012] 7 S.C.R.
A respondent was not appreciated by the appellant, he left
her at her parental house and never cared to bring her
back to her matrimonial home. The respondent further
alleged that 'N' lived with appellant as his mistress and
when respondent came to know about it, she went to
B ascertain the same and coming to know that 'N' was in
the house of the appellant, she made an effort to enter
into the house but she was assaulted and that this
resulted in gathering of people of the locality and the
appellant-husband, as a counter-blast, lodged a complaint
' -
c at the police station. The respondent alleged that
because of the involvement of appellant with the said 'N',
he had concocted the story of cruelty and filed the
petition for divorce.
The trial court dismissed the petition for divorce and
D also dismissed the application of the respondent for grant
of permanent alimony. The order was upheld by the first
appellate Court. The appellant preferred Second Appeal
before the High Court which declined to interfere with the
judgment and decree of the courts below.
E
In the instant appeal, this Court adverted to three
questions: 1) what actually constitutes 'mental cruelty';
2) whether the courts below had adopted an approach
which was perverse, unreasonable and unsupported by
the evidence on record and totally unacceptable and
F thus invites the discretion of this Court in exercise of
power under Article 136 of the Constitution to dislodge
the same and 3) whether in the case at hand, the plea of
mental cruelty was established so as to entitle the
appellant to get a decree for divorce.
G
Allowing the appeal, the Court
HELD:1. The expression 'cruelty' has an inseparable
nexus with human conduct or human behaviour. It is
always. dependent upon the social strata or the milieu to
,.
,;
H which the parties belong, their ways of life, relationship,
'""""'
VISHWANATH S/O SITARAM AGRAWAL v. SAU.
611
SARLA VISHWANATH AGRAWAL
temperaments and emotions that have been conditioned
A
by their social status. [Para 17] [627-C-D]
B
Sirajmohamedkhan Janmohamadkhan v. Hafizunnisa
Yasinkhan and another (1981) 4 sec 250 : 1982 (1) SCR
695; Shobha Rani v. Madhukar Reddi (1988) 1 SCC 105:
1988 (1) SCR 1010; V. Bhagat v. 0. Bhagat (Mrs.) (1994) 1
SCC 337; Praveen Mehta v. lnderjit Mehta AIR 2002 SC
2582: 2002 (5) SCC 706; Vijaykumar Ramchandra Bhate v.
Nee/a Vijaykumar Bhate AIR 2003 SC 2462: 2003(3) SCR
607; A. Jayachandra v. Aneel Kaur (2005) 2 SCC 22: 2004
(6) Suppl. SCR 599; Vinita Saxena v. Pankaj Pandit (2006)
C
3 SCC 778: 2006 (3) SCR 116; Samar Ghosh v. Jaya Ghosh
(2007) 4 SCC 511: 2007 (4) SCR 428 and Suman Kapur v.
Sudhir Kapur AIR 2009 SC 589: 2008 (15) SCR 972 - relied
on.
D
Sm. Pancho v. Ram Prasad AIR 1956 All 41 - referred
to.
Sheldon v. Sheldon (1966) 2 All ER 257 and Go/fins v.
Go/fins (1963) 2 All ER 966 - referred to.
2.1. The High Court, in a singular line, declined to
interfere with the judgment and decree of the courts
below stating that they are based on concurrent findings
of fact. The plea of perversity of approach though raised
was not adverted to. Any finding which is not supported
E
F
by evidence or inferences is drawn in a stretched and
unacceptable manner can be said to be perverse. This
Court in exercise of power under Article 136 of the
Constitution can interfere with concurrent findings of
fact, if the conclusions recorded by the High Court are
manifestly perverse and unsupported by the evidence on
G
record. [Paras 27, 31] [633-E; 634-F-H; 635-A]
2.2. In the instant case, the trial court as well as the
first appellate court disbelieved the evidence of most of
the witnesses cited on behalf of the appellant-husband
H
612
SUPREME COURT REPORTS
[2012] 7 S.C.R.
A on the ground that they were interested witnesses. In a
matrimonial dispute, it would be inappropriate to expect
outsiders to come and depose. The family members and
sometimes the relatives, friends and neighbours are the
most natural witnesses. The veracity of the testimony is
B to be tested on objective parameters and not to be
thrown overboard on the ground that the witnesses are
related to either of the spouse. Exception was taken by
the courts below that the servants of the house should
have been examined and that amounts to suppression of
c the best possible evidence. That apart, the allegations
made in the written statement, the dismissal of the case
instituted by the respondent-wife under Section 494 IPC,
the non-judging of the material regard being had to the
social status, the mental make-up, the milieu and the
0 rejection of subsequent events on the count that they are
subsequent to the filing of the petition for divorce and
also giving flimsy reasons not to place reliance on the
same, deserve to be tested on the anvil of "perversity of
approach". Quite apart from the above, a significant
E question that emerges is whether the reasons ascribed
by the courts below that the allegations made in the
written statement alleging extra marital affair of the
appellant-husband with 'N' has been established and,
therefore, it would not constitute mental cruelty are
perverse and unacceptable or justified on the basis of the
F evidence brought on record. These are the aspects which
need to be scrutinized and appositely delved into. [Para
32) [635-C-H; 363-A)
Alamelu and another v. State, Represented by Inspector
G of Police AIR 2011 SC 715: 2011 (2) SCR 147 and Heinz
India Pvt. Ltd. & Anr. v. State of UP. & Ors. (2012) 3 SCALE
607 - relied on.
Ku/want Kaur v. Gurdial Singh Mann (dead) by L.Rs. and
others AIR 2001 SC 1273: 2001 (2) SCR 525; Govindaraju
H v. Mariamman (2005) 2 SCC 500: 2005 (1) SCR 1100; Major
VISHWANATH S/O SITARAM AGRAWAL v. SAU.
613
SARLA VISHWANATH AGRAWAL
Singh v. Rattan Singh (Dead) by LRs and others AIR 1997
A
SC 1906: 1996 (9) Suppl. SCR 828; Vidhyadhar v. Manikrao
and another (1999) 3 sec 573: 1999 (1) SCR 1168 and
Abdul Raheem v. Kamataka Electricity Board & Ors. AIR
2008 SC 956: 2007 (12) SCR 389 - referred to.
3. The appellant-husband has categorically stated
that the respondent-wife used to hide the pressed clothes
while he was getting ready to go to the factory.
Sometimes she used to crumple the ironed clothes and
hide the keys of the motorcycle or close the main gate.
B
In the cross-examination, it is clearly stated that the
C
respondent was crumpling the ironed clothes, hiding the
keys of the motorcycle and locking the gate to trouble him
and the said incidents were taking place for a long time.
This being the evidence on record, one is at a loss to find
that the courts below could record a finding that the
D
appellant used to enjoy the childish and fanciful
behaviour of the respondent pertaining to the aforesaid
aspect. This finding is definitely based on no evidence.
Such a conclusion cannot be reached even by inference.
Even surmises and conjectures would not permit such a
finding to be recorded. It does not require Solomon's
wisdom to understand the embarrassment and
harassment that might have been felt by the appellanthusband. [Para 33] [636-8-E]
E
4.1. The courts below opined that the publication of
F
notice in the daily "Lokmat" and the occurrence that took
place on 11.10.1995 could not be considered as the said
events occurred after filing of the petition for divorce.
Thereafter, the courts below proceeded to deal with the
effect of the said events on the assumption that they can
G
be taken into consideration. As far as the first incident is
concerned, a view was expressed that the notice was
published by the respondent to safeguard the interests
of the children, and the second one was a reaction on her
part relating to the relationship of appellant with 'N'. This
H
614
SUPREME COURT REPORTS
[2012] 7 S.C.R.
A Court is of the considered opinion that the subsequent
events can be taken into consideration. [Para 36] [6398-0]
4.2. The respondent-wife made allegation that the
appellant-husband had an illicit relationship with 'N'. The
B evidence of respondent, when studiedly scrutinized,
would show that there was more of suspicion than any
kind of truth in it. The respondent had filed a complaint,
RCC No. 91/95, under Section 494 IPC against the
appellant. He was discharged in the said case. The said
C order has gone unassailed. The respondent in her
evidence stated in an extremely bald manner that
whenever she had telephoned to the office in the factory,
the appellant was not there and further that the presence
of 'N' was not liked by her in-laws and the elder son PW5.
o Relying upon her evidence, the trial Judge expressed the
view that 'N' was having a relationship with the appellant
on the basis that though he had admitted that 'N'was
working in his office yet he had not produced any
appointment letter to show that she was appointed as a
E computer operator. It is demonstrable that the trial court
has been persuaded to return such a finding on the basis
of the incident that took place on 11.10.1995. The trial
Judge has given immense credence to the version of the
social worker who, on the date of the incident, had come
F to the house of the appellant where a large crowd had
gathered and has deposed that she had seen 'N' going
and coming out of the house. On 11.10.1995, as the
material on record would show, at 4.00 p.m., the
respondent arrived at the house of the appellant. She has
admitted that she wanted to see her father-in-law who
G was not keeping well. After she went in, her father-in-law
got up from the chair and went upstairs. She was not
permitted to go upstairs. It is testified by her that her
father-in-law came down and slapped her. The fact
remains that the testimony of respondent that her fatherH
-·
VISHWANATH S/O SITARAM AGRAWAL v. SAU.
615
SARLA VISHWANATH AGRAWAL
in-law did not like the visit of 'N' does not appear to be A
true. Had it been so, he would not have behaved in the
manner as deposed by the respondent. That apart,
common sense does not give consent to the theory that
both, the father of the appellant and his son, PW-5,
abandoned normal perception of life and acceded to the B
illicit intimacy with 'N'. The respondent had made an
allegation that PW5 was influenced by the appellant. The
trial Judge as well as the appellate court have accepted
the same. It is germane to note that PW5 was
approximately 16 years of age at the time of examination c
in court. There is remotely np suggestion to the said
witness that when 'N' used to go to the house, his
grandfather expressed any kind of disapproval. The
respondent has deposed that it was published in the
papers that the daughter-in-law was slapped by the 0
father-in-law and 'N' was recovered from the house but
eventually the police lodged a case against the appellant,
his father and other relatives under Section 498A IPC.
This Court really fails to fathom how from this incident
and some cryptic evidence on record, it can be concluded E
that the respondent had established that the appellant
had an extra marital relationship with 'N'. That apart, in
the application for grant of interim maintenance, she had
pleaded that the appellant was a womaniser and
drunkard. This pleading was wholly unwarranted and, in
fact, amounts to a deliberate assault on the character.
F
Thus, the uncalled for allegations are bound to create
mental agony and anguish in the mind of the appellanthusband. [Paras 34] [636-F-H; 637-A-G]
4.3. The respondent had made allegation about the G
demand of dowry. RCC No. 133/95 was instituted under
Section 498A of the Indian Penal Code against the
appellant-husband, his father and other relatives. They
have been acquitted in that case. The said decision of
acquittal has not been assailed before the higher forum.
H
616
SUPREME COURT REPORTS
[2012] 7 S.C.R.
A Hence, the allegation on this count was incorrect and
untruthful and it can unhesitatingly be stated that such
an act creates mental trauma in the mind of the husband
as no one would like to face a criminal proceeding of this
nature on baseless and untruthful allegations. (Para 35)
B (638-G-H; 639-A)
4.4. Immense emphasis was given on the fact that
after publication of the notice (issued by respondent's
advocate) in the "Lokmat", the appellant had filed a
caveat in the court. The filing of the caveat is wholly
C inconsequential. The factual matrix would reveal that the
appellant comes from a r.espectable family engaged in
business. At the time of publication of the notice, his sons
were quite grown up. The respondent-wife did not bother
to think what impact it would have on the reputation of
D the appellant and what mental discomfort it would cause.
It is manifest from the material on record that the children
were staying with the appellant. They were studying in
the school and the appellant was taking care of
everything. Such a publication in the newspaper having
E good circulation can cause trauma, agony and anguish
in the mind of any reasonable man. The explanation given
by the respondent to the effect that she wanted to protect
the interests of the children is absolutely incredible and
implausible. In fact, it can decidedly be said that it was
F malafide and the motive was to demolish the reputation
of the appellant in the society by naming him as a
womaniser, drunkard and a man of bad habits. [Para 38)
[640-E-H; 641-A]
A. Jayachandra v. Aneel Kaur (2005) 2 SCC 22: 2004
G (6) Suppl. SCR 599 and Suman Kapur v. Sudhir Kapur AIR
2009 SC 589: 2008 (15) SCR 972 - relied on.
5. The conduct of the respondent-wife and
circumstances of the case make it graphically clear that
H she had really humiliated the appellant and caused
VISHWANATH S/O SITARAM AGRAWAL v. SAU.
617
SARLA VISHWANATH AGRAWAL
mental cruelty. Her conduct clearly exposits that it A
resulted in causing agony and anguish in the mind of the
appellant. A normal reasonable man is bound to feel the
sting and the pungency. The respondent had publicised
in the newspapers that the appellant was a womaniser
and a drunkard. She had made wild allegations about his
B
character. She had made an effort to prosecute him in
criminal litigations which she had failed to prove. The
feeling of deep anguish, disappointment, agony and
frustration of the appellant is obvious. It can be stated
with certitude that the cumulative effect of the evidence c
brought on record clearly establish a sustained attitude
of causing humiliation and calculated torture on the part
of the respondent to make the life of the appellant
miserable. The appellant felt humiliated both in private
and public life. Indubitably, it created a dent in his
0
reputation. The cruel behaviour of the respondent froze
the emotions and snuffed out the feelings of the appellant
because he was treated as an unperson. Thus, analysed,
it is abundantly clear that with this mental pain, agony
and suffering, the appellant cannot be asked to put up
with the conduct of the respondent and to continue to live
with her. Therefore, he is entitled to a decree for divorce.
[Para 40] [641-D-H; 642-A-C]
N. G. Dastane v. S. Dastane (1975) 3 SCR 967 - referred
to.
E
F
6. Permanent alimony is to be granted taking into
consideration the social status, the conduct of the
parties, the way of living of the spouse and such other
ancillary aspects. The amount already paid to
respondent-wife towards alimony is to be ignored as the
G
same had been paid by virtue of the interim orders passed
by the courts. It is not expected that the respondent-wife
has sustained herself without spending the said money.
Keeping in view the totality of the circumstances and the
social strata from which the parties come from and regard
H
618
SUPREME COURT REPORTS
[2012] 7 S.C.R.
A being had to the business prospects of the appellant,
permanent alimony of Rs.50 lacs (rupees fifty lacs only)
should be fixed and, accordingly, this Court does so.
[Paras 41, 42] [642-E; 643-B-D]
Case Law Reference:
B
1982 (1) SCR 695
relied on
Para 17
AIR 1956 All 41
referred to
Para 17
1988 (1) SCR 1010
relied on
Para 18
c
(1966) 2 All ER 257
referred to
Para 19
(1963) 2 All ER 966
referred to
Para 19
(1994) 1 sec 337
relied on
Para 20
D
2002 (5) sec 106
relied on
Para 21
2003(3) SCR 607
relied on
Para 22
2004 (6) Suppl. SCR 599 relied on
Paras 23, 36
2006 (3) SCR 116
relied on
Para 24
E
2007 (4) SCR 428
relied on
Para 25
2008 (15) SCR 972
relied on
Paras 26, 37
2001 (2) SCR 525
referred to
Para 28
F
2005 (1) SCR 1100
referred to
Para 28
1996 (9) Suppl. SCR 828 referred to
Para 29
1999 (1) SCR 1168
referred to
Para 30
2007 (12) SCR 389
referred to
Para 30
G
2011 (2) SCR 147
relied on
Para 31
(2012) 3 SCALE 607
relied on
Para 31
(1975) 3 SCR 967
referred to
Para 39
H
VISHWANATH S/O SITARAM AGRAWAL v. SAU.
619
SARLA VISHWANATH AGRAWAL
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
A
4905 of 2012.
From the Judgment & Order dated 24.04.2007 of the High
Court of Judicature at Bombay bench at Aurangabad in Second
Appeal No. 683 of 2006.
Arvind V. Savant, Sanjay Kharde, Sachin J. Patil, Preshit
V. Surshe, Chandan Ramamurthi for the Appellant.
Vivek C. Solshe, P.A. Bhat, C.G. Solshe for the
B
Respondent.
C
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. Leave granted.
2. The marriage between the appellant and the respondent D
was solemnized on the 30th of April, 1979 as per the Hindu
rites at Akola. In the wedlock, two sons, namely, Vishal and
Rahul, were born on 23.9.1982 and 1.11.1984 respectively. As
the appellant husband felt that there was total discord in their
marital ·life and compatibility looked like a mirage, he filed a
E
petition for divorce under Section 13(1) (ia) of The Hindu
Marriage Act, 1955 (for brevity 'the Act').
3. It was the case of the appellant before the court of first
instance that the respondent-wife did not know how to conduct
herself as a wife and daughter-in-law and despite persuasion,
F
her behavioural pattern remained unchanged. The birth of the
children had no impact on her conduct and everything
worsened with the efflux of time. The behaviour of the
respondent with the relatives and guests who used to come to
their house was far from being desirable and, in fact, it exhibited G
arrogance and lack of culture and, in a way, endangered the
social reputation of the family. That apart, she did not have the
slightest respect for her mother-in-law. Despite the old lady
being a patient of diabetes and hyper tension, it could not
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[2012] 7 S.C.R.
A
invoke any sympathy from the respondent and hence, there was
total absence of care or concern.
4. As pleaded, in the month of March, 1990, there was a
dacoity in the house where the appellant was staying and,
8
therefore, they shifted to the ginning factory and eventually, on
17.3.1991, shifted to their own three storeyed building situate
in Gandhi Chowk. Even with the passage of time, instead of
bringing maturity in the attitude of the respondent, it brought a
sense of established selfishness and non-concern for the
C
children. Whim and irrationality reigned in her day-to-day
behaviour and frequent quarrels became a daily affair. As
misfortune would have it, on 23.1.1994, the mother of the
appellant died and the freer atmosphere at home gave
immense independence to the respondent to make the life of
the appellant more troublesome. The appellant and his father
D were compelled to do their personal work as the entire attention
of the servants was diverted in a compulsive manner towards
her. Her immature perception of life reached its zenith when on
certain occasions she used to hide the keys of the motorcycle
and close the gate so that the appellant could not go to the office
E
of the factory to look after the business. Frequent phone calls
were made to the factory solely for the purpose of abusing and
causing mental agony to the appellant. As asserted, the
appellant and his sons used to sleep on the second floor
whereas the respondent used to sleep in the bedroom on the
F
third floor and their relationship slowly but constantly got
estranged. As the cruelty became intolerable, the appellant
visited his in-laws and disclosed the same but it had no effect
on her behaviour. Eventually, on 1.5.1995, the respondent was
left at the house of her parents at Akola and the appellant
G stayed in his house with the two sons. As the factual matrix would
unveil, on 24.7.1995, a notice issued by her advocate was
published in the daily "Lokmat" stating, inter alia, that the
appellant is a womaniser and addicted to liquor. On
11.10.1995, at 4.00 p.m., the respondent came to the house
H of the appellant at Gandhi Chowk and abused the father, the
VISHWANATH S/O SITARAM AGRAWAL v. SAU.
621
SARLA VISHWANATH AGRAWAL [DIPAK MISRA, J.]
children and the appellant. She, in fact, created a violent A
atmosphere in the house as well as in the office by damaging
the property and causing mental torture to the appellant and
also to the family members which compelled the appellant to
lodge a complaint at the Police Station, Chopda. It was alleged
that she had brought gundas and certain women to cause that B
incident. The said untoward incident brought the A.S.P.,
Jalgaon, to the spot. The publication in the newspaper and the
later incident both occurred during the pendency of the divorce
petition and they were incorporated by way of amendment. On
the aforesaid basis, it was contended that the respondent had c
treated the appellant with cruelty and hence, he was entitled to
a decree for divorce.
5. The asseverations made in the petition were
controverted by the respondent stating that she was always
respectful and cordial to her in-laws, relatives and the guests D
as was expected from a cultured daughter-in-law. They led a
happy married life for 16 years and at no point of time she
showed any arrogance or any behaviour which could remotely
suggest any kind of cruelty. She attended to her mother-in-law
all the time with a sense of committed service and at no point E
of time there was any dissatisfaction on her part. She disputed
the allegation that she had hidden the keys of the motorcycle
or closed the gate or repeatedly called the appellant on phone
at the office to abuse him or to disturb him in his work. It is her
stand that the appellant owns an oil mill, ginning factory and a
F
petrol pump at Chopda and had sold certain non-agricultural
land by demarcating it into small plots. The appellant, as
alleged, joined the computer classes which were run by one
Neeta Gujarathi in the name and style of "Om Computer
Services" and gradually the appellant started spending much G
of his time at the computer centre instead of attending to his
own business in the factory. When the respondent became
aware of the intimacy, she took serious objection to the same
and therefrom their relationship became bitter.
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(2012] 7 S.C.R.
6. It was alleged by the respondent that she was disturbed
after knowing about the involvement of the appellant with
another lady despite having an established family life and two
adolescent sons and, therefore, she was compelled to make
phone calls to make enquiries about his whereabouts. As the
B
interference by the respondent was not appreciated by the
appellant, he took the respondent on 1.5.1995 to Akola and left
her at her parental house and never cared to bring her back to
her matrimonial home. Her willingness to come back and stay
with the husband and children could not get fructified because
c of the totally indifferent attitude shown by the appellant. Her
attempts to see the children in the school became an exercise
in futility, as the husband, who is a trustee of the school,
managed to ensure that the boys did not meet her. It was
further alleged that the said Neeta lived with him as his mistress
0
and when the respondent came to know about it, she went to
Chopda to ascertain the same and coming to know that Neeta
was in the house of the appellant, she made an effort to enter
into the house but she was assaulted. This resulted in gathering
of people of the locality and the appellant-husband, as a
E
counter-blast, lodged a complaint at the police station. The
Deputy Superintendent of Police arrived at the scene and found
that Neeta was inside the house and thereafter she was taken
back to her house by the police. Because of the involvement
of the appellant with the said Neeta, he had concocted the story
F
of cruelty and filed the petition for divorce.
7. The learned trial Judge framed as many as four issues.
The two vital issues were whether the appellant had been able
to prove the alleged cruelty and whether he was entitled to take
disadvantage of his own wrong. The appellant, in order to prove
G
the allegation of cruelty, examined ten witnesses and on behalf
of the respondent, eight witnesses were examined. The learned
trial Judge, analysing the evidence on record, came to hold that
there was conjugal relationship till 1.5.1995; that there was no
substantial material on record to demonstrate that the
H
respondent had behaved with immaturity immediately after
·-
VISHWANATH S/O SITARAM AGRAWAL v. SAU.
623
SARLA VISHWANATH AGRAWAL [DIPAK MISRA, J.]
marriage; that in the absence of cogent evidence, it was difficult
A
to hold that the respondent had troubled the husband and his
parents; that the evidence of PW-3, Ramesh, was not worthy
of acceptance as he is close and an interested witness; that
the allegation that whenever she used to go to her parental
home, she was granting leave to the servants was not
B
acceptable; that the appellant should have examined some of
the servants including the maid servant but for some reason or
other had withheld the best evidence; that the plea that the
respondent was not looking after her mother-in-law who was
suffering from paralysis from 1984 has not been proven; that c
the allegation that the respondent was hiding the uniforms of
the children and not treating them well had not been proven
because the version of Vishal could not be accepted as he was
staying with the father and, therefore, it was natural for him to
speak in favour of the father; that the stand that the respondent
0
was hiding the keys of the motorcycle and crumpling the ironed
clothes of the appellant did not constitute mental cruelty as the
said acts, being childish, were enjoyed by the appellanthusband; that the factum of abuse by the respondent on
telephone had not been established by adducing reliable
evidence; that the respondent and the appellant were sleeping
E
on the third floor of the house and hence, she was sleeping with
him in the bedroom and the allegation that he was deprived of
sexual satisfaction from 1991 was unacceptable; that from the
witnesses cited on behalf of the respondent, it was
demonstrable that her behaviour towards her sons and in-laws
was extremely good; that even if the allegations made by the
appellant were accepted to have been established to some
extent, it could only be considered as normal wear and tear of
F
the marital life; that the plea of mental cruelty had not been
proven as none of the allegations had been established by
G
adducing acceptable, consistent and cogent evidence; that the
notice published in the daily "Lokmat" on 28.7.1995 and the
later incident dated 11.10.1995 being incidents subsequent to
the filing of the petition for divorce, the same were not to be
taken into consideration.
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[2012] 7 S.C.R.
A
8. The learned trial Judge further returned the finding that
the appellant was going to learn computer and taking
instructions from Neeta Gujarathi and the plea that she was
engaged as a Computer Operator in his office was not
believable as no appointment letter was produced; that the
B stand that she was paid Rs.1200/- per month was not worthy
of any credence as she was operating a computer centre; that
from the evidence of the witnesses of the respondent, namely,
RW-3 to RW-5, it was clear that Neeta Gujarathi was living with
the appellant in his house and he had developed intimacy with
c her and, therefore, the subsequent events, even if analysed,
were to be so done on the said backdrop; that the allegation
that there was a gathering and they were violent and broke the
windows was really not proven by adducing credible evidence;
that the testimony of the witnesses of the respondent clearly
0 reveal that Neeta was inside the house of the appellant and
effort was made to bring her out from the house and no damage
was caused to the property; that on that day, the police had
come in the mid night hours and taken out Neeta from the
house of the appellant and left her at her house; that the notice
E which was published in "Lokmat" was to protect the interest of
the sons in the property and basically pertained to the appellant's
alienating the property; that the public notice was not unfounded
or baseless and the question of defaming him and thereby
causing any mental cruelty did not arise; that the allegations
made in the application for grant of interim alimony that the
F appellant is a womaniser and is addicted to liquor cannot be
considered for the purpose of arriving at the conclusion that the
husband was meted with cruelty; that the allegations made in
the written statement having been found to be truthful, the same
could not be said to have caused any mental cruelty; that the
G cumulative effect of the evidence brought on record was that
no mental cruelty was ever caused by the respondent; and that
the husband could not take advantage of his own wrong. Being
of this view, the learned trial Judge dismissed the application
with costs and also dismissed the application of the
H respondent-wife for grant of permanent alimony.
VISHWANATH S/O SITARAM AGRAWAL v. SAU.
625
SARLA VISHWANATH AGRAWAL [DIPAK MISRA, J.]
9. Grieved by the aforesaid decision, the appellantA
husband preferred Civil Appeal No. 23 of 1999. The first
appellate court appreciated the evidence, dealt with the
findings returned by the trial court and eventually came to hold
that the cumulative effect of the evidence and the material
brought on record would go a long way to show that the B
appellant had failed to make out a case of mental cruelty to
entitle him to obtain a decree for divorce. The aforesaid
conclusion by the appellate court entailed dismissal of the
appeal.
10. Being dissatisfied with the judgment and decree c
passed by the learned appellate Judge, the husband preferred
Second Appeal No. 683 of 2006 before the High Court. The
learned single Judge of the High Court came to hold that there
were concurrent findings of fact and no substantial question of
law was involved. However, the learned single Judge observed
D
that the sons of the parties had grown up and have been
married; that the parties had no intention to patch up the
matrimonial discord; and that the marriage had been
irretrievably broken but that could not be considered by the High
Court but only by the Apex Court under Article 142 of the
E
Constitution. Expressing the aforesaid view, he did not admit
the appeal and dismissed the same.
11. We have heard Mr. Arvind V. Sawant, learned senior
counsel for the appellant-husband, and Mr. Vivek C. Solshe,
F
learned counsel for the respondent-wife.
12. At the very outset, we would like to make it clear that
though the learned single judge of the High Court has
expressed the view that the parties are at logger heads and
have shown no inclination to patch the matrimonial rupture and G
the sons have grown up and got married and with the efflux of
time, the relationship has been further shattered and hence, the
marriage is irretrievably broken and only this Court can grant
divorce in exercise of power under Article 142 of the
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SUPREME COURT REPORTS
[2012] 7 S.C.R.
A
Constitution, yet we are not going to take recourse to the same
and only address ourselves whether a case for divorce has
really been made out.
13. At this juncture, we may note with profit that the learned
8
senior counsel for the appellant exclusively rested his case on
the foundation of mental cruelty. It is his submission that if the
evidence of the husband and other witnesses are scrutinized
in an apposite manner along with the stand and stance taken
in the written statement, it will clearly reveal a case of mental
cruelty regard being had to the social status of the appellant. It
C
is urged by him that the trial court as well as the appellate court
have not given any credence to the evidence of some of the
witnesses on the ground that they are interested witnesses
though they are the most natural witnesses who had witnessed
the cruel behaviour meted to the appellant.
D
14. It is the submission of the learned senior counsel for
the appellant that the court of first instance as well as the
appellate court have failed to take into consideration certain
material aspects of the evidence and the appreciation of
E
evidence being absolutely perverse, the High Court would have
been well advised to scan and scrutinize the same but it
declined to admit the appeal on the ground that there are
concurrent findings of fact. It is canvassed by him that this Court,
in exercise of power under Article 136 of the Constitution, can
F
dislodge such concurrent findings of facts which are perverse,
baseless, unreasonable and contrary to the material on record.
15. The learned counsel for the respondent, resisting the
aforesaid submissions, contended that the view expressed by
the High Court cannot be found fault with as the courts below
G
have, at great length, discussed the evidence and appreciated
the same with utmost prudence and objectivity and there is
nothing on record to show that any material part of the evidence
has been ignored or something extraneous to the record has
been taken into consideration. It is highlighted by him that the
H
stand put forth by the wife in her written statement having been
VISHWANATH S/O SITARAM AGRAWAL v. SAU.
627
SARLA VISHWANATH AGRAWAL [DIPAK MISRA, J.]
established, the same cannot be construed to have constituted A
mental cruelty. Lastly, it is put forth that the appellant has created
a dent in the institution of marriage and made a maladroit effort
to take advantage of his own wrong which should not be
allowed.
16.