SH. RAKESH RAMAN versus SMT. KAVITA on 26 April 2023

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[2023] 3 S.C.R. 552

SUPREME COURT REPORTS

[2023] 3 S.C.R.

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SH. RAKESH RAMAN

v.

SMT. KAVITA

(Civil Appeal No. 2012 of 2013)

BAPRIL 26, 2023

[SUDHANSHU DHULIA AND J. B. PARDIWALA, JJ.]

Hindu Marriage Act, 1955: s. 13(1)(ia) and (ib) – Divorce –Grounds of cruelty and desertion – Marital discord between theparties – Petition for dissolution of marriage by the husband on theCground that the wife treated him with cruelty and deserted him,thatthere was no co-habitation between the parties, and that the wifehad filed multiple false and frivolous criminal cases against him –Trial court passed a decree of divorce holding that the wife haddeserted the husband and had meted out cruel behaviour againstDhim – However, the High Court set aside the order – On appeal,held: There are bitter allegations of cruelty and desertion from boththe sides, the marital relationship has broken down irretrievably,there is a long separation of 25 years, absence of cohabitation, nochild out of the wedlock, with multiple court cases between theparties – Repeated efforts for reconciliation by the Courts has failedE– Marital relationship which has only become more bitter andacrimonious over the years, does nothing but inflicts cruelty onboth the sides – To keep the façade of this broken marriage alivewould be doing injustice to both the parties – Marriage beingirretrievably broken down spells cruelty, thus, a ground forFdissolution of marriage u/s.13(1)(ia) – Judgement by the High Courtset aside and decree of divorce is granted.

Allowing the appeal, the Court

HELD: 1.1 The husband and wife, have been livingseparately since the last 25 years. There is no child out of theGwedlock. There are bitter allegations of cruelty and desertionfrom both the sides and multiple litigations between the two inthe last more than 25 years. This embittered relationship betweenthe appellant and the respondent which has not witnessed anymoment of peace for the last 25 years is a marital relationshipHonly on paper. The fact is that this relationship has broken down irretrievably long back. Other aspect to be considered is the factthat for the last 25 years the appellant and respondent, are livingseparately, and have not cohabitated. There is absolutely no scopeof reconciliation between the parties. There is in fact no bondbetween the two and as the Law Commission in its 71st reportsaid about such a marriage, which is a marriage which has defacto broken down, and only needs a de jure recognition by thelaw. The same was reiterated by the Law Commission in its 217threport. [Paras 10, 12][558-A-B, E-F]

1.2 The view taken by the High Court that mere filing ofcriminal cases by the wife does not constitute cruelty as what hasalso to be seen are the circumstances under which cases werefiled, is a finding is not to be disregarded totally, in fact as a pureproposition of law it may be correct, but then the entire facts ofthe case are to be closely examined. When the facts as they existare taken into consideration, the continuation of this marriagewould mean continuation of cruelty, which each one inflicts onthe other. Irretrievable breakdown of a marriage may not be aground for dissolution of marriage, under the Hindu MarriageAct, but cruelty is. A marriage can be dissolved by a decree ofdivorce, inter alia, on the ground when the other party “has, afterthe solemnization of the marriage treated the petitioner withcruelty”. A marital relationship which has only become more bitterand acrimonious over the years, does nothing but inflicts crueltyon both the sides. To keep the façade of this broken marriagealive would be doing injustice to both the parties. A marriagewhich has broken down irretrievably, spells cruelty to both theparties, as in such a relationship each party is treating the otherwith cruelty. It is therefore a ground for dissolution of marriageunder Section 13(1)(ia). [Para 16][560-D-G]

1.3 The matrimonial bond is completely broken and isbeyond repair. This relationship must end as its continuation iscausing cruelty on both the sides. The long separation and absenceof cohabitation and the complete breakdown of all meaningfulbonds and the existing bitterness between the two, has to beread as cruelty under Section 13(1)(ia) of the 1955 Act. Therefore,in a given case, where the marital relationship has broken down AB

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Airretrievably, where there is a long separation and absence ofcohabitation (as in the instant case for the last 25 years), withmultiple Court cases between the parties; then continuation ofsuch a ‘marriage’ would only mean giving sanction to cruelty whicheach is inflicting on the other. A dissolution of this marriage wouldaffect only the two parties as there is no child out of the wedlock.B[Para 18][562-C-E]

1.4 Under these circumstances, the order of the trial courtis upheld, though for different grounds given and the order of theHigh Court is set aside and a decree of divorce is granted to theappellant/husband. Their marriage shall stand dissolved. However,Cconsidering the fact that the appellant/husband is an employee inLife Insurance Corporation present salary is more thanRs.1,00,000/- (One Lakh Rupees) per month, it is deemed fitand proper that he gives an amount of Rs.30,00,000/- (Thirty LakhRupees) to the respondent/wife as permanent alimony. [ParasD19, 20][562-F-H]

Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511- reliedon.

Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558; K.Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226; R.ESrinivas Kumar v. R. Shametha (2019) 9 SCC 409;Munish Kakkar v. Nidhi Kakkar (2020) 14 SCC 657;Neha Tyagi v. Lieutenant Colonel Deepak Tyagi (2022)3 SCC 86 - referred to.

Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2012of 2013.

From the Judgment and Order dated 08.04.2011 of the High Courtof Delhi at New Delhi in MATAP No. 52 of 2009.

S K Rungta, Sr. Adv., Arvind Kumar Gupta, Naresh Daksh,Abhiesumat Gupta, Ranjan Bhoria, C Prakash, Advs. for the Appellant.

S. K. Bhalla, S. R. Setia, Ms. Anjali Tewari, Advs. for theRespondent.

The Judgment of the Court was delivered by SUDHANSHU DHULIA, J.

1. This appeal arises out of a divorce proceeding initiated by theappellant under Section 13 of the Hindu Marriage Act, 1955, (hereinafterreferred to as the “Act”), in the Court of Additional District Judge (North),Tis Hazari Courts, Delhi. His suit was decreed and the marriage wasdissolved by the Order of the Additional District Judge (North) dated02.05.2009. The respondent/wife, then, filed an appeal before the DelhiHigh Court which has set aside the order of the Trial Court and dismissedthe petition of the husband. Aggrieved by the said Order, the appellant/husband has filed a Special Leave Petition before this Court, in whichleave was granted on 26.02.2013.

2. The appellant and the respondent were married under Hindurituals and customs in Delhi, on 16.04.1994. Regrettably, it did not takelong for the marital discord to set in their marital life. The appellant’scase is that his wife was not happy in their small dwelling, and usedoffensive, even abusive language against him. It has also been allegedthat in September, 1994, she got her pregnancy terminated, without anyprior intimation to her husband (this allegation was denied by the wifeand could never be proved against her). It was in September 1994, againwhen she left her matrimonial home, but due to the efforts made by thewell-wishers and relatives, they started living together from March 1995onwards. This again did not last long, as on 16.02.1998 she left hermatrimonial house, and lodged a complaint with the local police on 16/17.02.1998. In March 1998, she agreed to join her husband, on thecondition that the appellant would take another accommodation andconsequently in April, 1998 another house was taken on rent, and thetwo started living together in the new house. But then, on 24.08.1998, A

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Athe appellant alleges that he was beaten by his wife and her brother. On29.11.1998, he was kept out of his own house for the entire night. On17.12.1998 she left her matrimonial house and lodged an FIR against theappellant and his brother, under Section 498A/406 of the Indian PenalCode, at Anand Parbat Police Station, New Delhi. The appellant and hisbrother were arrested the same day, while they were attending a marriageBceremony, and this was done in the presence of 15 to 20 of his friends.Later the two were released on bail, though the wife persisted with thematter and even moved an application for cancellation of their bail. Thewife then filed a complaint under Sections 323 and 324 read with Section34 IPC against the appellant/husband and his family members, however,Cthey were subsequently discharged from the case. The respondent alsoinitiated proceedings against appellant under Section 107 read withSection 150 of the Code of Criminal Procedure. She then filed a petition,under Section 18 of Hindu Adoption and Maintenance Act, 1956, for hermaintenance.D3. Left by his wife and burdened with multiple litigations slappedon him, the appellant took the decision to end the matrimonial relations.He thus moved his petition for dissolution of marriage under Section13(1) (ia) & (ib) of Hindu Marriage Act, 1955, before the AdditionalDistrict Judge, North Delhi on 20.09.2002, inter alia, on the facts, asnarrated in the preceding paragraph.E

4. The respondent denies that she ever ‘deserted’ her husband orinflicted any cruelty on him. Her counsel would submit that she onlytook recourse to legal avenues available to her under the law. She allegesthat her ornaments which were her ‘stridhan’, were taken away andwere never returned, and how she was forced to file a case against herFhusband under Sections 498A & 406 of the Indian Penal Code (IPC). Itwas also her case that she had made every possible effort forreconciliation, but due to the non-cooperation of the appellant, all effortstowards mediation and settlement resulted in failure. She has deniedthat she had terminated her pregnancy.G5. The Family Court on 15.10.2003 framed issues on cruelty anddesertion. The Trial Court gave the findings on cruelty as well as desertionin favour of the husband and a decree for the dissolution of marriagewas passed.

6. The High Court in appeal, came to the conclusion that the mereHfact that the respondent did not allow her husband to enter his house on

29.11.1998, would not prove that it was her intention to bring cohabitationpermanently to an end and therefore the ground of dissolution of marriageon desertion were not made out. As far as filing of various complaintsunder Sections 323, 324 and 498A IPC are concerned, the High Courtwas of the view that mere filing of such complaints, or their result inacquittal would not amount to cruelty, as the wife was only exercising heroptions available to her under the law. Moreover, what has to be seen arealso the circumstances under which these complaints were filed.

7. We have heard Mr. S.K. Rungta, learned Senior Advocate forthe appellant/husband and Mr. S.K. Bhalla learned Advocate for therespondent/wife at length and perused the material on record.

8. This case has travelled from the Family Court to the High Courtand now finally to this Court. The decision of Delhi High Court is of08.04.2011, which goes back to twelve years. We have to take intoconsideration all the facts which are before us as of now. To our mindthe facts which we must take into account are: (i) that the “couple” isnow living separately for the last almost 25 years, and all these yearsthere has been no cohabitation between them. (ii) That there is no childout of the wedlock, and the couple lived together as husband and wifefor barely 4 years. (iii) That repeated efforts by the Courts forreconciliation or settlement have resulted in failure.

9. At the very initial stage the Trial Court had sent the parties formediation, which did not succeed. This Court had also sent the two formediation, which failed. The case was again sent for settlement in theLok Adalat but with no results. On 11.04.2015, this Court again requestedthe parties to explore possibilities of living together, but nothingmaterialised. Then on 09.05.2015, this Court asked the parties to cometo some mutual settlement, but in vain. In other words, every singleeffort of the Court and the mediators, towards a compromise or settlementhas led to a blind alley. Even now, before giving a formal hearing to theparties we tried to gather the current situation from the parties. Theappellant has unequivocally stated that there is no room for anycompromise or settlement and he requests that a decision be made inthis case on its merits, whereas the counsel for the respondent apprisedthis Court that the respondent would like to save her marriage and heprays for mediation once again. He would also submit that no ground fordivorce has been made out and the well-considered decision of DelhiHigh Court should be upheld.

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A10. The husband and wife, who are before us have been livingseparately since the last 25 years. There is no child out of the wedlock.There are bitter allegations of cruelty and desertion from both the sidesand multiple litigations between the two in the last more than 25 years.This embittered relationship between the appellant and the respondentwhich has not witnessed any moment of peace for the last 25 years is aBmarital relationship only on paper. The fact is that this relationship hasbroken down irretrievably long back.

11. The High Court has taken a view that mere filing of criminalcases against the appellant-husband would not constitute cruelty. All thesame, the number of criminal cases filed by the respondent-wife againstCthe appellant-husband are far too many which have been discussed above.All these cases have either resulted in discharge or acquittal of theappellant-husband, if not before the pronouncement of the Judgment ofthe Delhi High Court but definitely after the pronouncement of theJudgment of the Delhi High Court. Moreover, a three Judge Bench ofDthis Court in Naveen Kohli v. Neelu Kohli[1]held that repeatedly filingof criminal cases by one party against the other in a matrimonial matterwould amount to cruelty and the same was reiterated by a DivisionBench of this Court in K. Srinivas Rao v. D.A. Deepa[2].

12. Other aspect which we must consider is the fact that for theElast 25 years the appellant and respondent, are living separately, andhave not cohabitated. There is absolutely no scope of reconciliationbetween the parties. There is in fact no bond between the two and asthe Law Commission in its 71st report said about such a marriage, whichis a marriage which has de facto broken down, and only needs a de jureFrecognition by the law. The same was reiterated by the Law Commissionin its 217[th] report.

13. Under similar circumstances, this Court in R. Srinivas Kumarv. R. Shametha[3], Munish Kakkar v. Nidhi Kakkar[4] and Neha Tyagiv. Lieutenant Colonel Deepak Tyagi[5] has held that an irretrievableGmarriage is a marriage where husband and wife have been living 1 (2006) 4 SCC 5582 (2013) 5 SCC 2263 (2019) 9 SCC 4094 (2020) 14 SCC 657H5 (2022) 3 SCC 86

separately for a considerable period and there is absolutely no chance oftheir living together again. In all the above cited three cases, this Courtin exercise of its power under Article 142 of the Constitution of Indiahas dissolved the marriage on the ground of irretrievable breakdown asa ground, which otherwise does not exist under the Hindu Marriage Act.

14. In Naveen Kohli (supra), a strong recommendation has beenmade by this Court to the Union of India to consider adding irretrievablebreakdown down of a marriage as a ground for divorce under the HinduMarriage Act.

15. The multiple Court battles between them and the repeatedfailures in mediation and conciliation is at least testimony of this fact thatno bond now survive between the couple, it is indeed a marriage whichhas broken down irretrievably.

16. Matrimonial cases before the Courts pose a different challenge,quite unlike any other, as we are dealing with human relationships withits bundle of emotions, with all its faults and frailties. It is not possible inevery case to pin point to an act of “cruelty” or blameworthy conduct ofthe spouse. The nature of relationship, the general behaviour of the partiestowards each other, or long separation between the two are relevantfactors which a Court must take into consideration. In Samar Ghosh v.Jaya Ghosh[6] a three judge Bench of this Court had dealt in detail as towhat would constitute cruelty under Section 13(1)(ia) of the Act. Animportant guideline in the above decision is on the approach of a Court indetermining cruelty. What has to be examined here is the entirematrimonial relationship, as cruelty may not be in a violent act or actsbut in a given case has to be gathered from injurious reproaches,complaints, accusations, taunts, etc. The Court relied on the definition ofcruelty in matrimonial relationships in Halsbury’s Laws of England (Vol13, 4[th] Edn, Para 1269, Pg 602) which must be reproduced here:

“The general rule in all cases of cruelty is that the entirematrimonial relationship must be considered, and that rule is ofspecial value when the cruelty consists not of violent acts but ofinjurious reproaches, complaints, accusations or taunts. In caseswhere no violence is averred, it is undesirable to consider judicialpronouncements with a view to creating certain categories of A

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Aacts or conduct as having or lacking the nature or quality whichrenders them capable or incapable in all circumstances ofamounting to cruelty; for it is the effect of the conduct ratherthan its nature which is of paramount importance in assessing acomplaint of cruelty. Whether one spouse has been guilty ofcruelty to the other is essentially a question of fact and previouslyBdecided cases have little, if any, value. The court should bear inmind the physical and mental condition of the parties as well astheir social status, and should consider the impact of thepersonality and conduct of one spouse on the mind of the other,weighing all incidents and quarrels between the spouses fromCthat point of view; further, the conduct alleged must be examinedin the light of the complainant’s capacity for endurance and theextent to which that capacity is known to the other spouse.Malevolent intention is not essential to cruelty but it is animportant element where it exists.”

D The view taken by the Delhi High Court in the present casethat mere filing of criminal cases by the wife does not constitute crueltyas what has also to be seen are the circumstances under which caseswere filed, is a finding we do not wish to disregard totally, in fact as apure proposition of law it may be correct, but then we must also closelyexamine the entire facts of the case which are now before us. WhenEwe take into consideration the facts as they exist today, we areconvinced that continuation of this marriage would mean continuationof cruelty, which each now inflicts on the other. Irretrievable breakdownof a marriage may not be a ground for dissolution of marriage, underthe Hindu Marriage Act, but cruelty is. A marriage can be dissolved byFa decree of divorce, inter alia, on the ground when the other party“has, after the solemnization of the marriage treated the petitioner withcruelty”[7]. In our considered opinion, a marital relationship which hasonly become more bitter and acrimonious over the years, does nothingbut inflicts cruelty on both the sides. To keep the façade of this broken

marriage alive would be doing injustice to both the parties. A marriageGwhich has broken down irretrievably, in our opinion spells cruelty toboth the parties, as in such a relationship each party is treating theother with cruelty. It is therefore a ground for dissolution of marriageunder Section 13(1)(ia) of the Act.

H7 Section 13 (1) (ia) of the Hindu Marriage Act, 1955

17. Cruelty has not been defined under the Act. All the same, thecontext where it has been used, which is as a ground for dissolution of amarriage would show that it has to be seen as a ‘human conduct’ and‘behavior” in a matrimonial relationship. While dealing in the case ofSamar Ghosh (supra) this Court opined that cruelty can be physical aswell as mental: - “46…If it is physical, it is a question of fact and degree. If it ismental, the enquiry must begin as to the nature of the crueltreatment and then as to the impact of such treatment on themind of the spouse. Whether it caused reasonable apprehensionthat it would be harmful or injurious to live with the other,ultimately, is a matter of inference to be drawn by taking intoaccount the nature of the conduct and its effect on thecomplaining spouse.

Cruelty can be even unintentional: -

…The absence of intention should not make any difference inthe case, if by ordinary sense in human affairs, the actcomplained of could otherwise be regarded as cruelty. Intentionis not a necessary element in cruelty. The relief to the partycannot be denied on the ground that there has been no deliberateor wilful ill-treatment.”

This Court though did ultimately give certain illustrations of mentalcruelty. Some of these are as follows:

(i) On consideration of complete matrimonial life of the parties,acute mental pain, agony and suffering as would not makepossible for the parties to live with each other could comewithin the broad parameters of mental cruelty.

(xii) Unilateral decision of refusal to have intercourse forconsiderable period without there being any physical incapacityor valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife aftermarriage not to have child from the marriage may amount tocruelty.

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A(xiv) Where there has been a long period of continuousseparation, it may fairly be concluded that the matrimonialbond is beyond repair. The marriage becomes a fictionthough supported by a legal tie. By refusing to severthat tie, the law in such cases, does not serve the sanctityof marriage; on the contrary, it shows scant regard forBthe feelings and emotions of the parties. In such likesituations, it may lead to mental cruelty.

(emphasis supplied)

18. We have a married couple before us who have barely stayedCtogether as a couple for four years and who have now been livingseparately for the last 25 years. There is no child out of the wedlock.The matrimonial bond is completely broken and is beyond repair. Wehave no doubt that this relationship must end as its continuation is causingcruelty on both the sides. The long separation and absence ofDcohabitation and the complete breakdown of all meaningful bonds andthe existing bitterness between the two, has to be read as cruelty underSection 13(1) (ia) of the 1955 Act. We therefore hold that in a givencase, such as the one at hand, where the marital relationship has brokendown irretrievably, where there is a long separation and absence ofcohabitation (as in the present case for the last 25 years), with multipleECourt cases between the parties; then continuation of such a ‘marriage’would only mean giving sanction to cruelty which each is inflicting onthe other. We are also conscious of the fact that a dissolution of thismarriage would affect only the two parties as there is no child out ofthe wedlock.F19. Under these circumstances, we uphold the Order of the TrialCourt, though for different grounds given by us in our order, and we setaside the Order of the High Court and grant a decree of divorce to theappellant/husband. Their marriage shall stand dissolved.

20. However, considering the fact that the appellant/husband isGan employee in Life Insurance Corporation, as we have been informedat the Bar and his present salary is more than Rs.1,00,000/- (One LakhRupees) per month, we deem it fit and proper that he gives an amount ofRs.30,00,000/- (Thirty Lakh Rupees) to the respondent/wife as permanentalimony. This amount of Rs.30,00,000/- (Thirty Lakh Rupees) shall beHdeposited in the name of the respondent, within a period of four weeks

from today with the Registry of this Court. The decree of divorce shallbe made effective only from the date of such a deposit. On the event ofsuch deposit, the Registry after verifying the credentials of the respondent/wife shall disburse the amount to the respondent/wife without furtherreference to this Court.

With the aforesaid directions, the appeal stands allowed.

Nidhi Jain

Appeal allowed.

(Assisted by : Adiraj Bali, LCRA)

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