Subhash Chander Sharma vs Anjali Sharma
2010 Latest Caselaw 3244 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

                      Judgment delivered on: 14.7.2010

                     MAT APP 44/2005

SUBHASH CHANDER SHARMA             ......Appellant
                Through: Mr.Rajiv Dewan, Advocate.

                           Versus

ANJALI SHARMA                             ......Respondent
                       Through: None.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may               Yes
   be allowed to see the judgment?
2. To be referred to Reporter or not?                      Yes
3. Whether the judgment should be reported
    in the Digest?                                         Yes


KAILASH GAMBHIR, J.

*

1. By this appeal filed under Section 28 of the

Hindu Marriage Act, 1955 the appellant seeks to challenge

the impugned judgment and decree dated 12.05.2003

passed by the learned ADJ, Delhi thereby dismissing the

divorce petition filed by the appellant under Section 13(1)

(ia) & (ib) of the Hindu Marriage Act.

2. Brief facts of the case relevant for deciding the

present appeal are that the marriage between the

appellant and the respondent was solemnized on

29.11.1984 at Mathura, U.P according to Hindu rites and

ceremonies. From this wedlock, two children were born i.e.

on 10.02.1988 and 12.09.1992. Both the parties lived

together as husband and wife for 14 years i.e. upto

15.02.1998. The acts of cruelty based on which the

appellant-husband has sought decree of divorce under

Section 13(1) (ia) of the Hindu Marriage Act mainly are

that after the death of the father of the appellant the

mother of the respondent started living with them and due

to her presence the atmosphere in the house got so

surcharged that even the children started avoiding the

appellant; the appellant though lived in the same house,

but had to cook his own food and do all his personal work

himself; he felt neglected and depressed on account of the

behaviour of the respondent and her mother and ultimately

on 15.02.1998 the appellant started living separately; the

appellant made all efforts for rapprochement but the

respondent foiled all his attempts; the respondent gave

instructions to the school authorities that the appellant

should not be allowed to meet the children; the respondent

avoided to come to official telephone so as to talk with the

appellant; the appellant was insulted by the respondent

and her mother when he went to contact the respondent;

the appellant was not even allowed to enter in the house;

the respondent shifted her residence from housing society

to some other place and she had also given instructions to

her office not to disclose her new address to her husband;

the appellant also wrote various letters to the respondent,

but she did not respond to the same. The appellant has also

averred that he has not condoned the acts of cruelty

complained of against the respondent.

3. So far the ground of desertion is concerned, the

appellant averred that the respondent had deserted him

without any reasonable cause and against his wishes. The

appellant has also averred that there has not been any

willful neglect on his part and for no fault of the appellant

the respondent deserted him.

4. The respondent did not choose to appear after

having been duly served with the notice. She, however,

sent reply by post, making certain allegations against the

appellant. Accordingly, the respondent was proceeded ex

parte by the Court vide orders dated 28.01.2003.

5. In the evidence, the appellant examined himself

as PW-1 and except his own evidence he did not adduce

any further evidence. In his evidence, the appellant

deposed that he got married to the respondent on

29.11.1984 at Mathura, U.P and since thereafter they were

living together as husband and wife. He also deposed that

out of the said wedlock, two children i.e. one daughter and

one son were born on 10.02.1988 and 12.09.1992

respectively. He further deposed that he was forced to

leave the house on 15.02.1998 due to the circumstances

created by the respondent and her mother, when she had

joined them after the death of the father of the appellant in

the year 1996. It would be relevant to reproduce the entire

evidence of the appellant as under:-

"PW1 Subhash Chander Sharma, petitioner.

On S.A.:-

I got married on 22nd of Nov. 1985 with the respondent. Marriage took place at Mathura, U.P. Reception was held in Delhi. Since then we were living together as husband and wife upto 15 th February, 1998. On 15.02.1998 I was forced to leave the house due to the circumstances created by respondent and her mother who joined us on the death of my father in 1996. The relation was unbearable facing lot of depression and continuous failure in life. I faced lot of embarrassment in the relations. I faced mental agony by continuing in the circumstances.

Out of the wedlock we had two children, daughter named Anupriya date of birth 10/2/88, son Chinmay Sharma date of birth 12 Sept. 1992. After the separation she issued instructions to the school authorities not to allow me to meet the children. My every effort for reapproachment was foiled by her. She did not attend even the phone calls I made at her official telephone. Even my letters which were of personal nature were not responded at all. My friends and relatives whosoever tried for the reapproachment faced humiliation and insult which closed the door at me for reapproachment.

The respondent deserted me without any major cause and reasonable cause. I have not condoned the acts of cruelties and the petition has not been filed in collusion with the respondent. My petition is correct.

sd/-

      RO& AC                                  ADJ/Delhi
                                             6/3/2003"

6. The appellant was not cross-examined by the

respondent as she was proceeded ex parte by the Court.

Based on the case set up by the appellant in his divorce

petition and the said ex parte evidence adduced by him, the

learned trial court came to the conclusion that the

allegations of cruelty leveled by the appellant do not

constitute cruelty as envisaged under Section 13(1) (ia) of

the Hindu Marriage Act, 1955. So far as the ground of

desertion is concerned, the learned trial court found that it

is the appellant himself who left the matrimonial home on

15.02.1998, therefore, no evidence on record has been

adduced by the appellant to prove that the respondent had

any intention to bring the cohabitation permanently to an

end. The learned trial court thus found that the appellant

failed to establish any „animus deserendi‟ on the part of the

respondent and in the absence of the same, the ground of

desertion was also found to be not available to the

appellant.

7. Assailing the said judgment and decree of the

learned trial court, the appellant preferred the present

appeal. Counsel appearing for the appellant strongly

contended that the respondent has neither contested the

petition before the learned trial court nor she is contesting

the present appeal and, therefore, such conduct on the part

of the respondent would be manifest of the fact that the

marriage between the parties has irretrievably broken

down. Counsel thus submitted that this Court may direct

dissolution of the marriage of the parties on the said

ground itself. Counsel for the appellant further contended

that the appellant fully established both the grounds of

divorce i.e. cruelty as well as desertion beyond any shadow

of doubt, but still the learned trial court dismissed the

petition filed by the appellant. Counsel further contended

that the learned trial court committed grave error by not

appreciating the fact that the divorce proceedings were not

contested by the respondent and, therefore, the evidence of

the appellant remained unrebutted.

8. In support of his arguments, counsel for the

appellant placed reliance on the judgment of the Apex

Court in Naveen Kohli Vs. Neelu Kohli (2006) 4 SCC

558 and the judgment of this Court in the case of Gauri

Shankar Dhanwaria Vs. Maya Devi, 2003(107) DLT

583.

9. I have heard counsel for the appellant at

considerable length and have given my anxious

consideration to the pleas raised by him.

10. By way of the Marriage Laws (Amendment) Act,

1976, cruelty was introduced as a ground of divorce as

prior thereto the same was only a ground for claiming a

decree of judicial separation under Section 10(1) (b) of the

Hindu Marriage Act. The ground of cruelty was added with

the omission of the expression "as to cause a reasonable

apprehension in the mind of the petitioner that it will be

harmful or injurious for the petitioner to live with the other

party" from Section 10 (1) (b). After the 1976 amendment,

now Section 13(1) (ia) entitles the petitioner to claim

decree of divorce, if after the solemnization of the

marriage, he has been treated by the spouse with cruelty.

The term cruelty has not been defined in the Hindu

Marriage Act and the legislature has left it to the courts to

determine in the facts and circumstances of each case

whether the conduct amounts to cruelty or not. In a

plethora of judgments, the Apex Court and various High

Courts of the country have discussed the scope of the

concept of cruelty.

11. In the case of Shobha Rani v. Madhukar

Reddi (1988) 1 SCC 105, the Apex Court with regard to

cruelty observed as under:

"The word 'cruelty' has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i)(a) of the Act in the context of human conduct or behavior in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment.

It will be necessary to bear in mind that there has been marked changed in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatized as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It would be better if

we keep aside our customs and manners. It would be also better if we less depend upon precedents.

Lord Denning said in Sheldon v. Sheldon [1966] 2 All E.R. 257 (CA) 'the categories of cruelty are not closed'. Each case may be different. We deal with the conduct of human beings who are no generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behavior, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty.

12. In the case of V.Bhagat v. D.Bhagat (1994) 1

SCC 337, the Apex Court while explaining the concept of

mental cruelty, observed as under:-

"16. Mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be decided in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.

13. The Apex Court in the case of Naveen Kohli v.

Neelu Kohli, (2006) 4 SCC 558 relied on the case of

A.Jayachandra Vs. Aneel Kaur (2005) 2 SCC 22 where

it was observed that :-

"55. The expression 'cruelty' has been used in relation to human conduct or human behavior. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.

56. To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy

and abusive language leading to constant disturbance of mental peace of the other party.

57. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent."

14. As would be evident from the aforesaid

observations of the Apex Court, it is not the ordinary wear

and tear of the married life which would cause any sort of

mental pain or cruelty to the petitioner. The conduct

complained of must be proved to be grave and weighty due

to which the petitioner cannot be reasonably expected to

live with his spouse. The Apex Court has also held that it is

difficult to lay down any precise definition or to give

exhaustive description of the circumstances which would

constitute cruelty. Therefore, in the facts of each case the

conscience of the Court should be satisfied that the

relationship between the parties had reached to such an

extent that it has become impossible or unbearable for

them to stay together. Under the Rules of Hindu Marriage

Act, framed by this Court, the petitioner approaching the

Court is required to plead specific acts of cruelty and the

occasions when and where such acts were committed by

the other spouse.

15. Rule 7(g) (iv) of the Hindu Marriage Rules, 1979

of this court states as under:-

"R.7. Contents of petition.-In addition to the particulars required to be given under Order VII, Rule 1 of the Code and Section 20(1) of the Act, all petitions under Sections 9 to 13 shall state:

.................................

(g) the matrimonial offence or offences alleged or other grounds, upon which the relief is sought, setting out with sufficient particularity the time and places of the acts alleged and other facts relied upon, but not the evidence by which they are intended to be proved, e.g.:...................................

"(iv) in the case of alleged desertion, the date and the circumstances in which it began; in the case of cruelty the specific acts of cruelty and the occasion when and the place where such acts were committed".

16. In the facts of the present case, the allegations

of cruelty leveled by the appellant against the respondent

are so vague, indefinite, unspecific and uncertain, not only

in the petition but in his evidence as well. Without spelling

out any specific acts of cruelty either on the part of the

respondent or her mother, it is difficult to assume as to

under what circumstances the appellant left his own house

on 15.02.1998. Merely to say that the appellant started

cooking his own food and his mother-in-law used to create

scenes in the house or the appellant felt neglected or

depressed on account of behaviour of the respondent and

her mother would not suffice to prove mental cruelty on

the part of the respondent in the absence of any specific

dates or the period when the alleged acts were committed.

Similarly, vaguely the appellant has alleged that he was not

allowed to meet his own children due to some instructions

given by the respondent to the school authorities and he

was insulted by the respondent and her mother when the

appellant went to meet the respondent at her house in the

housing society. The appellant has referred to some letters

alleged to have been written by him to the respondent, but

no such letters were proved on record by the appellant.

17. The appellant has also failed to establish the

ground of desertion, as it is the own case of the appellant

that he himself left the matrimonial house. A bare perusal

of the lone deposition of the appellant, as already

reproduced above, would show that the appellant failed to

establish either of the grounds.

18. It is a settled legal position that even in an ex

parte case, the petitioner is required to lead cogent and

convincing evidence to prove and substantiate the

averments made in the petition and the petitioner cannot

derive any special advantage just on account of the fact

that the respondent did not choose to contest the case or

the testimony of the appellant remained unchallenged or

unrebutted.

19. In the present case, the appellant has failed to

establish with specific details any act or acts, whether

mental or physical, due to which it became impossible or

unbearable for him to live with the respondent. Similarly in

the evidence as well, the appellant (PW1), in his sole

testimony does not succeed to establish either the ground

of cruelty or desertion on the part of the respondent.

20. The counsel for the appellant also submitted that this

court should dissolve the marriage of the appellant on the

ground of irretrievable breakdown of marriage. It would be

important to bring forth that the High Court in the exercise

of it inherent powers cannot grant divorce on the ground of

irretrievable breakdown of marriage as it is yet not a

ground of divorce under the Hindu Marriage Act. Here, it

would be pertinent to refer to the recent judgment of the

Apex Court in the case of Vishnu Dutt Sharma vs. Manju

Sharma (2009) 6 SCC 379 where it was held that :

"On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature.

12. Learned Counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents .A mere direction of the Court without considering the legal position is not a precedent. If we grant divorce on the ground of irretrievable

breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts.

Hence, we do not find force in the submission of the learned Counsel for the appellant".

Also recently, the Apex Court in the case of Neelam

Kumar vs. Dayarani, Civil Appeal No. 1957/2006

placed reliance on the judgment of Vishnu Dutt Sharma

(supra) and reiterated the same view and held that

irretrievable breakdown of marriage is not a ground for

divorce as it is not contemplated under Section 13 of the

Hindu Marriage Act.

21. However, it would be befitting to mention here

that the Apex Court in the case of Naveen Kohli vs.

Neelu Kohli (supra) recommended to the legislature to

make „irretrievable breakdown of marriage‟ as a ground for

divorce. The Apex Court in the said judgment was

confronted with a situation where the parties were living

separately for a period of more than 10 years. Based on

the said recommendation made by the Apex Court in the

said case, as also in various earlier decisions, the Law

Commission of India in its 217th report has recently again

recommended to the Parliament to introduce an

amendment in the Hindu Marriage Act, 1955 and the

Special Marriage Act 1954 to include "irretrievable

breakdown of marriage as another ground for divorce".

23. The relationship between husband and wife is one of

the most delicate emotional bonds and needs constant

nurturing, tolerance and understanding. This relationship

once which was of love and mutual trust when starts to

leave a bitter aftertaste bedeviling this bond that it is no

more bearable to stay under one roof is when they seek to

legally put an end to such a marriage. Divorce on the

ground of irretrievable breakdown of marriage might be

contrary to common perception and the idea of marriage

being a holy union for seven births, but in the bid to

preserve the unworkable marriage which has long ceased

to be alive is abound to be a source of greater misery for

the parties than the divorce itself.

24. However it is a catch 22 situation as this ground

can ease the way for many who are under the burden of a

doomed relationship to a breather but at the same time it

may give an opportunity to the ones trying to maneuver the

alleys of law for their self conceited motives.

25. There has been a lot of brainstorming with

regard to the efficacy and societal impact that this ground

would have if it is made as a ground for divorce. On the

recommendations of the Law Commission of India, the

Legislature in its wisdom would amend the Hindu Marriage

Act to bring within its fold the ground of irretrievable

breakdown of marriage. However it is expected that

watertight safeguards are introduced so as not to send the

message that now divorce has become a cakewalk.

26. Henceforth, there are some key areas that need

to be pondered upon. The ground of irretrievable

breakdown of marriage cannot be resorted to as a strait

jacket formula leading to the institution of marriage

becoming so fragile that the wrong doer abuses it for his

selfish ends leaving the other party in lurch. But it is only

when the court is satisfied that the marriage has been

wrecked beyond the hope of salvage and there is no chance

of their coming together should the court open the

deadlock of wedlock.

27. It is an open secret that getting a decree of

divorce takes an invariably long time and with the existing

grounds available, it leads the parties to level acrimonious

allegations antagonizing each other. Consequently, when

the decree of divorce is granted then the other party

appeals to the High Court, and if unsuccessful, reaches the

Supreme Court in the hope for relief, therefore prolonging

the already gruesome legal battle. It happens in a lot of

cases that in the end during this vicious legal voyage,

whatever little hope there is of reconciliation is anyway

diminished leading the parties pitiful and penniless.

28. Adding to the woes, if there are children born

out of the wedlock, then they suffer immensely;

emotionally, psychologically and even financially, depriving

them of proper upbringing and education due to meager

means of one of the spouses. A divorce from a spouse is

not a divorce from the children and they should not be

punished for the act of their parents. Hence if this ground

is added it has to be taken care of that the children do not

bear the brunt between two warring adults and that a

proper mechanism is in place for taking care of all their

needs. The child‟s well being, who is but a mute spectator

and officially not a party to the lawsuit, should be the eye

of the resolution.

29. Also in cases where the wife is the respondent,

and the husband orchestrates a breakdown and unilaterally

wants to terminate the marriage on this ground, it has to

be taken care of that to achieve his ulterior motive the

husband on the premise of a deadlock does not leave the

wife impoverished or at the mercy of her parents.

30. Hence, succinctly, this court is of the opinion

that there should be adequate provisions with regard to the

following:

 There should be a minimum period before which this

ground cannot be invoked as a ground for divorce.

 In the case where this ground has been invoked by

the husband, then the grant of divorce should only be

subject to the provision of adequate financial

provisions for the wife

 In case where there are children born out of the

wedlock then adequate provision for the grant of

maintenance, education and upbringing of the

children should be in place before grant of divorce

 The issue of custody of the children and visitation

rights should also be decided at the very stage of

divorce itself

 This ground should be an independent provision and

not a complimentary or supplementary provision

along with any other ground under section 13 of the

Act

The goal in the end to add this ground of irretrievable

breakdown of marriage should be with aim of providing a

solution to a lethal problem and not to defame the Hindu

Marriage Act for breaking more families than it has united.

31. However, in view of the aforesaid observations,

the contention of the appellant that this Court should grant

divorce on the ground of irretrievable breakdown of

marriage does not hold good.

32. Hence in the light of the above discussion this

Court does not find any illegality or perversity in the

impugned judgment and decree dated 12.05.2003 passed

by the learned trial court.

32. There is no merit in the present appeal and the

same is accordingly dismissed.

July 14, 2010                     KAILASH GAMBHIR, J.
dc