Renu Sharma vs Anan Sharma
2025 Latest Caselaw 1494 J&K

Jammu & Kashmir High Court

Renu Sharma vs Anan Sharma on 22 May, 2025

Author: Vinod Chatterji Koul

Bench: Vinod Chatterji Koul

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU
                            ...
                             MA no.40/2023

                                                    Reserved on: 09.04.2025
                                                 Pronounced on: 22.05.2025
Renu Sharma
                                                           .......Appellant(s)

                            Through: Ms Zoya Bhardwaj, Advocate

                                  Versus
Anan Sharma
                                                         ......Respondent(s)

                            Through: Mr Vikram Sharma, Senior Advocate
                            with Mr Sachin Dev Singh, Advocate


CORAM:
          HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE


                             JUDGEMENT

1. It is the judgement and decree dated 30th October 2023, passed by

Additional Principal Judge (Family Court), Jammu ("Trial Court", for

brevity) impugned herein.

2. I have heard learned counsel for parties. I have seen the record. I have

also looked through impugned judgement and considered the matter.

3. Admitted position of parties is that they entered into marriage out of

their freewill on 27th March 1988 since it had been their love marriage.

Their wedlock has given them Almighty's gift, viz. a daughter, on 28th

August 1990. Seemingly, their marriage went to tough weather not

immediately after marriage, but after 17 years, that is in the year 2005.

On 29th September 2012, respondent herein made a petition under

Section 13 of J&K Hindu Marriage Act praying to dissolve marriage by passing a decree of divorce. Reply/Objections were filed by

appellant herein before Trial Court. Two issues, the Trial Court framed

given the rival contentions of parties, which are: (1) Whether the

respondent [appellant herein] has treated the petitioner [respondent

herein] with 'cruelty' within the meaning of section 13(1)(ii) of the

J&K Hindu Marriage Act? and (2) Relief, to which petitioner

[respondent herein] is entitled.

4. Respondent adduced and examined three witnesses, namely Anita

Padha (sister of respondent); Anshu Sharma (sister of respondent); and

Sudhir Gandotra (tenant of respondent), besides himself whereas

appellant produced two witnesses, namely, Romesh Kumar (brother of

appellant) and Nirmal Kour Bali, besides herself. After hearing

arguments of counsel for parties, Trial Court passed impugned

judgement.

5. Learned counsel for appellant, after recapitulating concise background

of facts adumbrated in appeal, would contend that petition has come to

be preferred by respondent after 24 years of marriage when appellant

was in her mid-50s age. Appellant remained throughout discharging her

obligations towards in-laws and husband. According to learned

counsel, Trial Court fell in serious error of law. Application filed by

appellant under Section 17, 19 and 26 of Protection of Women from

Domestic Violence Act, 2005, has come to be disposed of without

calling for objections from respondent on the basis of relief granted

under Section 13 of J&K Hindu Marriage Act, unmindful of facts that

application was independent of relief claimed by respondent. Trial

Court on moot points 2 to 19 has come up with its own conjectures and assumptions to make out the case of cruelty and in doing so simply

followed verbatim script of respondent and his witnesses without

indulging in critical analysis of evidence as is required to be done in the

case of charge of cruelty in a matrimonial case. She would also aver

that Trial Court fell in manifest error of law that emanated from two

aspect: first Trial Court proceeded to adjudicate as if the judgement of

the case is to be made only on the basis of reading of evidence of

witnesses and nothing else; and secondly all other attending facts and

circumstances of the case are to be kept out of consideration in making

a judgment. Her next contention is that facts can be said to be proved

or disproved only when after considering the matter before court either

believes it to exist/does not exist, or considered its existence or non-

existence so probable that prudent man ought, under particular case, to

act upon the supposition that it exists or does not exist. The Trial Court

least bothered to apply this test of probability in adjudging the case of

respondent against appellant. This omission on the part of Trial Court

is rendered apparent from the fact the fact that nowhere in impugned

judgement, the Trial Court ever posed a question to itself whether or

not respondent is taking advantage of his own wrong, the statement of

appellant was not read by Trial Court in right perspective. The petition

had come to be preferred on the ground of cruelty pleading that

respondent was being treated with utmost cruelty and there was no

collaboration between parties, the Trial Court in sub-para (ii) of para 18

has admitted that irretrievable breakdown of marriage is not a ground

for divorce and in the same breath in sub-para (vi) of para 18 has held

that cruelty stands proved admitting that the parties to the petition are residing together. Impugned judgement is against facts and

circumstances of the case.

6. Per contra, learned senior counsel appearing for respondent would

vehemently contend that impugned judgement does not call for any

interference, more particularly when the Trial Court has discussed all

aspects of the matter as to establishment of cruelty for dissolution of

marriage and divorce and also that there is irretrievable breakdown of

marriage.

7. Before proceeding further, it would appropriate to reproduce relevant

portion of impugned judgement hereunder:

"17. Issue No. 1 reads as under

Whether the respondent has treated the petitioner with 'cruelty' within the meaning of section 13(1) (ii) of the J&K Hindu Marriage Act?

i) The onus to prove this issue was on the petitioner.

ii) While arguing Ld. Counsel for the petitioner submitted that the respondent has treated the petitioner with utmost cruelty. The behaviour of the respondent was hostile, cruel and inhuman towards the petitioner and his parent as well as other family members. The respondent often abused the petitioner. She gave a mental pain and agony to the petitioner. The respondent used to insult the petitioner in presence of the guests and other just to malign the reputation of the petitioner. The respondent even did not allow the petitioner to share the bed since October 2005.

iii) Ld. Counsel for the petitioner has further argued that the respondent is an educated lady serving in Kendriya Vidyalaya as PGT. The respondent belongs to Kashmiri family, whereas the petitioner is a Dogra. The marriage between the parties was a love marriage. The parents of the respondent were against her marriage with the petitioner.

On 27.03.1988, marriage was solemnized in Arya Samaj Mandir and at that time, neither the relatives of the petitioner nor the respondent were present. However, on 22.08.1988, a reception was given in Mahajan Hall, Shalamar, Jammu. One daughter was born out of the wedlock, who is presently serving in TCS in Calcutta. The counsel has further stated that the petitioner is a head of the J&K Petrol Tankers Association, but he never respected by the respondent, rather caused mental as well as physical torture to the petitioner. The respondent stopped cooping food for the petitioner and his family way back and the petitioner used to eat from the hotel despite the fact that the parties are residing in the same house, one on the ground floor and other on the Ist floor since the last 13/14 years.

iv) Ld. Counsel for the petitioner in support of his arguments ha referred to K. Shrinivas Vs. K. Sunita 2014(16) SCC 341, K. Srinivas Vs D. A. Deepa, 2013 (2), Law Herald (S.C) 1065, Guntamukkala Naga Venkata Kanaka Durga Vs Guntamukkala Eswar Sudhakar and Another, AIR 2013 Andhra Pradesh 58 and Rita Vashishtha Vs Anil Kumar Vashishta, 2019 Legal (DEL) 1321.

v) While controverting the arguments of Ld. Counsel for the petitioner, the Ld. Counsel for the respondent submitted that the respondent has in terms of a relationship with the petitioner has given her best in terms of commitment, sincerity and respect towards the family members and the petitioner himself. The respondent had beautifully conducted herself as life partner of the petitioner and continue to do so as on date as well. The counsel has further submitted that instant petition in terms of Section 13 of H. M. Act is filed by the petitioner in the year 2012 i.e. after 24 years of marriage. The allegations levelled by the petitioner are general in nature and nothing but normal wear and tear in the matrimonial life.

vi) Ld. Counsel for the respondent has further contended that the respondent has given all her life to the petitioner and his family to the extent that the marriage of the siblings of the petitioner was performed by the respondent. The petitioner has levelled false and baseless allegations against the respondent. Thus, no decree of divorce can be granted in favour of the petitioner. Ld. Counsel for the respondent in support of his argument has referred to the various judgments of the Hon'ble High Court of Punjab & Haryana (Partap Singh Vs. Parkash Kour), Hon'ble High Court of Delhi (Paul Ram Paul Vs Santosh Ram Paul) and Hon'ble Supreme Court of India (Vishnu Dutt Sharma Vs Manju Sharma & Neelam Kumar Vs Daya Rani and Manish Tayagi Vs Deepak Kumar).

vii) Cruelty in a matrimonial relation relates to conduct of behaviour of a person. The cruelty may be mental, physical, intentional or unintentional. Acute mental pain agony and sufferings which would not make it possible for the parties to live together also comes within the purview of cruelty. Frequent rudeness of language, petulance of manner, indifference in attitude and neglect to take care, discomfort caused to the spouse due to behaviour and conduct of another spouse also comes within the purview of cruelty. Cruelty becomes evident where one spouse treats the other in such a manner that it becomes impossible and harmful for other spouse to reside together.

viii) Mental cruelty in Section 13(1)(ii) of J&K Hindu Marriage Act, 1980 is conduct of one spouse which inflicts pain and suffering upon the other party to the extent that it will not be possible for the parties to live together.

ix) Hon'ble Supreme Court has held in "Vinita Sexana Vs Pankaj Pandit"

that the word 'cruelty' has not been defined in the Act and it has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect to matrimonial duties and obligations. It is course of conduct and one which is adversely affecting the other the cruelty may be mental or physical, intentional or unintentional. There may be cases where conduct complained of itself is bad enough and per se unlawful or illegal. The impact or injurious affect on other spouse need not be enquired into or considered. In such cases, the cruelty will be established, if the conduct itself is proved of admitted.

x) It has further been held by Hon'ble Apex Court as under:-

"the cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance, judged by standard of modern civilization into background of the cultural heritage and traditions of our society."

xi) In 1993 (2) Hindu LR 637, the Court has held:

"Some times even a gesture, the angry look a sugar coated joke, an ironic over look may be more cruel than actual beating."

xii) Test of cruelty has also been laid down by Hon'ble Apex Court in a leading case of "N. G. Dastan Vs. S. Dastane," AIR 1975, 2 SCC 326, held "enquiry, therefore, hast to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner or a reasonable apprehension that it will be harmful or injurious for him to lie with the respondent."

xiii) In Soba Rani Vs. Madhukar Reddy, AIR 1988, 1 SCC 105 held as under:-

"In "K. Shrinivas Rao Vs. D. A. Deepa" (2013)5 SCC 226 held "making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or job of the spouse and filing repeated false complaints and cases in the court against spouse would in the facts of the case amount to causing mental cruelty to other spouse."

xiv) In Vishwanath Aggarwal Vs. Sarla Vishwanath Aggarwal, 2012, SCC 288, held:-

"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 which the parties belong their ways of life, relationship, temperaments and emotions that have been conditioned by their social status."

xv) In Parveen Mehta Vs Inderjeet Mehta, AIR 2002, 5 SCC 706 held:

"Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the later that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts & circumstances of the case. A feeling of anguish disappointment and frustration in one spouse caused by the conduct of the other, can only be appreciated on assessing."

xvi) While arguing, the Ld. Counsel for the respondent submitted that normal wrangling in a family life is obvious and cannot be treated as a matter of cruelty and referred to "Partap Singh Vs. Parkash Kour"

(Punjab and Haryana High Court).

xvii) However, the petitioner has in his statement contended that the respondent always adopted a very callous attitude towards the petitioner and used to abstain from household affairs. Her behaviour towards the petitioner was bully and she used to torture the petitioner mentally and physically. The petitioner was subject to mental agony, pain and sufferings. He was being treated with bad name and abusive language in presence of his family members, friends and relatives despite the fact that he has earned a good reputation among the business community. The respondent had stopped preparing food for the petitioner and his other family members while she was serving in Jammu. Petitioner used to take food from the hotel or prepare himself whenever he got spare himself.

xviii) Hon'ble Apex Court in Samar Ghose Vs Jaya Ghose (2007) 4 SCC, 511 held:-

"No uniform standard can ever been laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the case of metal cruelty. The instances inflicting in the succeeding paragraphs are only illustrative and not exhaustive. (i) on consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other, could come within the broad parameters of mental cruelty, (ii) comprehensive appraisal of entire on matrimonial life of the parties, it becomes abundantly clear that situation is such that the wrong party cannot reasonably be asked to put up with such conduct and continued to live with other party, (iii) mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable, (iv) mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of the other for a long time may lead to mental cruelty, (v) A sustained course of abuse and humiliating treatment calculated to torture, discommode or render miserable life of the spouse To be a True Cof (vi) Sustained unjustifiable conduct and behaviour of one Ezed U/S of the violence Act Spouse, actually affecting the physical and mental health.

"It was observed that the term cruelty has not been defined in Hindu Marriage Act. It has been used in Section 13(1) (i-a) of the Act in the context of human conduct and behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of the one spouse which adversely affects the other spouse. The cruelty may be mental or physical, intentional or unintentional. It if it is physical, it is question of degree which is relevant. If it is mental, inquiry must begin as to nature of cruelty treatment and then on the mind of other spouse. Whether it caused reasonable apprehension that it would be harmful or injuries to live with the other, ultimately, is matter of inference to be drawn by taking into account the nature of conduct and its effect on the complaining spouse. There may, however, be cases bad enough and per se unlawful or illegal. Then the impact or injurious affect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if conduct itself is proved of admitted. The absence of intension should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could be regarded as cruelty. Mens rea 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."

xix) Ld. Counsel for the respondent contended that for proving cruelty the petitioner has to prove reasonable apprehension that it will be harmful and injurious to him to live with the respondent and the burden of cruelty is on the petitioner. The counsel for the respondent has further contended that this petition has been filed by the petitioner, on the ground, that the respondent had stopped preparing food and the petitioner was constrained to bring food from the market, but the law says that not preparing food by wife for husband and other family members does not amount to cruelty and no divorce can be granted on this score, as it is held in case titled "Ram Chander Vs Ananta," AIR on line 2015 S.C 76:-

"Wife was reluctant to do any household work and was not cooking food for husband and child which necessitated the bringing of food from outside - does not amount to mental cruelty and divorce cannot be granted."

xx) Dinesh Mandal Vs Chaitali Majumdar, AIR on line 2023 Hon'ble High Court of PAT Divorce - Desertion by wife. Husband failed to give details about specificate of wife's withdrawal from husband's society and duration of her desertion plea regarding, desertion was not even raised the prior divorce petition - Husband failed to prove that wife abandoned him with his content and without reasonable cause with intent to bring cohabitation permanently to and for more than two years at the time of presentation of divorce petition - Divorce cannot be granted. xxi) In the case in hand, the petitioner seeking divorce on the ground that the respondent has treated him with cruelty. The allegation of cruelty as matrimonial offence alleged by the petitioner is based on the allegations of indifferent callous attitude of the respondent, her neglect to perform her duties as wife.

xxii) Admittedly, the parties got married on 27.03.1988. As per petitioner, the relation between the parties remained cordial upto the year 2005. The petitioner has further stated in the petition vis-a-vis in his statement that the respondent is a women quarrel some nature. She gave mental pain and agony to the petitioner. The petitioner tried his best to persuade the respondent but all in vain. The respondent is a Teacher who was serving in Kendriya Vidyalaya as PGT. She stopped cooking food for the petitioner. The petitioner used to take food from the market. The petitioner is a reputed person/ businessman. He is the President of the J&K Petrol Tankers Association but he was being treated in the house by respondent with bad name among his relatives and friends of the petitioner. He was being tortured physically by the respondent. xxiii) The petitioner has stated that the relation between the parties became estranged in the year 2005 but the petitioner always tried to restore the relationship but could not succeed. In the year 2012 situation turned bad to worse when respondent created a scene in the house and abused the petitioner with full volume. Now the petitioner is not in a position to spend even one house with the respondent.

Although, the Ld. Counsel for the respondent during the course of arguments relied upon the case laws mentioned supra, wherein it is held that not preparing of food does not amount to cruelty and no divorce can be granted on this count.

In the present petition, non-cooking of food is not the only allegation against the respondent, the petitioner has clearly stated in the petition and in his own statement that the respondent has stopped cohabitation with the petitioner since the year 2005 and she has declined to share the bed with the petitioner and this act of respondent tantamount to cruelty. xxiv) Unilateral decision of refusal to have intercourse for considerable period, without there being any physical incapacity or valid reason may amount to mental cruelty.

xxv) Even respondent has herself admitted in his statement and in para 5 of her objections that the petitioner has maintained distance from her since the year 2008. She has also admitted in her statement that the petitioner is suffering with various ailments. Respondent has further admitted that when petitioner was ill and was admitted in the Hospital, she did not go to the Hospital to see him. Moreover, the respondent has categorically admitted in her statement that since the year 2013 they have not shared the bed.

xxvi) The respondent has further stated in her statement that many times they tried to sort out the dispute but not settled. It can be settled, if respondent transfer house on her name and also pay permanent alimony to her. It means the respondent is also interested for divorce provided alimony and house is transferred on her name.

xxvii) Taking into consideration, the contentions of the petitioner, his statement supported by statements of all the PWs vis-a-vis conduct of the respondent with the petitioner after the marriage, her wilful neglect to behave as a prudent wife and take care of the sentiments and emotions of the petitioner as well as his family, her refusal to the petitioner his right of cohabitation and not sharing bed with the petitioner since the last more than one decade and treating and abusing the petitioner in presence of family members, relatives and friends, it stands proved by the petitioner that the respondent has treated the petitioner with cruelty within the meaning of Section 13(1)(ii) of J&K Hindu Marriage Act, 1980. As such, this issue is decided in favour of the petitioner and against the respondent.

Relief, to which the petitioner is entitled? O. P. Parties

(i) This issue pertains to relief, which can be granted by virtue of this petition.

(ii) The parties are living in the same house, but separately in ground floor and Ist floor respectively since the year 2013 as per admission of the respondent, whereas petitioner as stated that their relation got broken in the year 2005. Now the marriage between the parties has been a marriage for name sake only and for all other practical purposes, it came to an end.

(iii) Though irretrievable break down of marriage is not a ground for dissolution of marriage but in order to put an end to the legal battle of the parties, the dissolution of marriage can be granted.

(iv) A. Jaychandra Vs. Aneet Kour, 2005 Supreme Court Cases 22, held:-

"Irretrievable breaking of marriage is not one of statutory grounds on which court can direct dissolution of marriage, this court has with a view to do complete and shorten the agony of the parties, engaged in long drawn, legal battle, directed in those cases dissolution of marriage."

(v) In Chander Kala Trivedi Vs Dr. S. P. Trivedi, AIR 1993 (4) Supreme Court, 232 held:-

"If marriage was dead and there was no change of its being retrieved, it was better to bring an end. In this case, the marriage is dead, both emotionally and practically, continuance of marital alliance for name sake is prolonging the agony and affliction."

(vi) The accumulative effect of the above discussion is that the petitioner has proved the fact of cruelty. Therefore, keeping in view the above discussion, the petition in hand is accepted and the marriage solemnized between the parties on 27.03.1988 according to Hindu rites and customs at Jammu is hereby dissolved in terms of Section 13(1) (ii) of J&K Hindu Marriage Act, 1980."

8. When impugned judgement is meticulously analysed, it becomes vivid

that Trial Court has not deliberated upon and/or discussed depositions

of parties and their witnesses adduced by them in support of their

respective stand lucidly. This Court is drawn to find that Trial Court

conceived a situation of an irretrievable breakdown of marriage of

respondent and appellant, leading itself to be swayed by saying that

cruelty stands proved. This is evidently clear from para 18 of the

impugned judgment, as reproduced hereinbefore, leaving this Court

caught in a legal dilemma as to what extent the irretrievable breakdown

of marriage aspect weighed with the Trial Court to shade and shape its

application of mind on the appreciation and appraisal of evidence qua

proof of alleged cruelty on the basis whereof respondent sought decree

of divorce.

9. In this situation if this Court, being court of appeal, takes upon itself an

endeavour and exercise to do the soul searching of impugned judgment

then it may result in causing serious unwarranted prejudice to the case

and cause of either of the parties.

10.Being Trial court, meant to adjudge the case on the facts alleged and

proved, was not to make passing reference to muchless of appropriating

and importing irretrievable breakdown of marriage doctrine in

adjudication of respondent's divorce petition. The Trial Court was

required to remind itself as to Latin maxim, 'judicis est judicare

secundum allegata et probata' meaning that it is the duty of a judge to

decide according to facts alleged and proved, but the Trial Court erred

in creating a mirage in its impugned judgment as to whether

irretrievable breakdown of marriage is underlying alleged proof of

cruelty or from the proven cruelty the irretrievable breakdown of

marriage was inferred and mentioned in the judgment impugned.

Irretrievable breakdown of marriage by reference to the divorce case of

respondent against appellant was required to have not even earned a

mention in judgment impugned muchless being pondered upon.

11. It is not gatherable from the text of judgement as to which alleged acts

of omission or commission on the part of appellant have come to be

proved, at first instance, and then how from those proven acts of

omission and commission the charge of cruelty that too mental or

physical or both, came to be substantiated and established.

12.Selective picks from testimonials of parties to litigation and their

respective witnesses do not mean that those picks tend to prove

contentions and allegations to generate findings of facts therefrom. Pleadings in the case being corelated with the entire context of the

evidentiary base of the case, are the only basis for the courts, be it civil/

criminal, to come up with the findings of facts and then apply thereto

given judgments.

13.The ground for divorce taken by respondent-husband in the instant case

is that of cruelty. In slew of cases, the term "cruelty" has been defined

by the Supreme Court. In A. Jayachandra v. Aneel Kaur, (2005) 2 SCC

22, the Supreme Court has said that the expression "cruelty" has not

been defined in the Act. Cruelty can be physical or mental. Cruelty

which is a ground for dissolution of marriage may be defined as wilful

and unjustifiable conduct of such character as to cause danger to life,

limb or health, bodily or mental, or as to give rise to a reasonable

apprehension of such a danger. The question of mental cruelty has to

be considered in the light of the norms of marital ties of the particular

society to which the parties belong, their social values, status,

environment in which they live. Cruelty, as noted above, includes

mental cruelty, which falls within the purview of a matrimonial wrong.

Cruelty need not be physical. If from the conduct of the spouse same is

established and/or an inference can be legitimately drawn that the

treatment of the spouse is such that it causes an apprehension in the

mind of the other spouse, about his or her mental welfare then this

conduct amounts to cruelty. In a delicate human relationship like

matrimony, one has to see the probabilities of the case. The concept,

proof beyond the shadow of doubt, is to be applied to criminal trials

and not to civil matters and certainly not to matters of such delicate

personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be

found out, not merely as a matter of fact, but as the effect on the mind

of the complainant spouse because of the acts or omissions of the other.

Cruelty may be physical or corporeal or may be mental. In physical

cruelty, there can be tangible and direct evidence, but in the case of

mental cruelty there may not at the same time be direct evidence. In

cases where there is no direct evidence, courts are required to probe into

the mental process and mental effect of incidents that are brought out

in evidence. It is in this view that one has to consider the evidence in

matrimonial disputes. It has also been mentioned by the Supreme Court

that the expression "cruelty" has been used in relation to human conduct

or human behaviour. It is the conduct in relation to or in respect of

matrimonial duties and obligations. Cruelty is a course or conduct of

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. (Vide: Shobha Rani v. Madhukar Reddi

(1988) 1 SCC 105). 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 an extent due

to the conduct of the other spouse that it would be impossible for them

to live together without mental agony, torture or distress, to entitle the

complaining spouse to secure divorce. Physical violence is not

absolutely essential to constitute cruelty and a consistent course of

conduct inflicting immeasurable mental agony and torture may well

constitute cruelty within 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. 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. The foundation of a sound

marriage is tolerance, adjustment and respecting one another. Tolerance

to each other's fault to a certain bearable extent has to be inherent in

every marriage. Petty quibbles, trifling differences should not be

exaggerated and magnified to destroy what is said to have been made

in heaven. All quarrels must be weighed from that point of view in

determining what constitutes cruelty in each particular case and as

noted above, always keeping in view the physical and mental conditions

of the parties, their character and social status. A too technical and

hypersensitive approach would be counterproductive to the institution

of marriage. The courts do not have to deal with ideal husbands and

ideal wives. It has to deal with a particular man and woman before it.

The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court. [Vide: N.G. Dastane (Dr.) v. S. Dastane

[(1975) 2 SCC 326].

14.In Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, the Supreme Court,

after surveying the previous decisions and referring to the concept of

cruelty, which includes mental cruelty, in English, American, Canadian

and Australian cases, has observed:

"99. ... The human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in the other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.

100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances....' "

15. In the instant case, it is evident that the case of respondent is that of

alleged mental cruelty. What is mental cruelty has been defined by the

Supreme Court in V. Bhagat v. D. Bhagat, (1994) 1 SCC 337 . Mental

cruelty in Section 13(1)(i-a) can broadly be defined as that conduct

which inflicts upon 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 determined 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.

16. In Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778, the Supreme

Court has observed:

"37. As to what constitutes the required mental cruelty for the purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home.

38. If the taunts, complaints and reproaches are of ordinary nature only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer."

17.Upon perusal of the record in the case in hand, it is evident that the Trial

Court has failed to properly evaluate the critical aspects of evidence

pertaining to the issue of the cruelty. The evidence of both the sides has

not been properly appreciated. There is absence of reasoning as to how

the evidence led to a finding of cruelty. There was need to fully discuss

and delve into the evidence and not base its conclusions on selective fact pickings. The evidence of all the witnesses has to be evaluated in

accordance with law.

18.In Amutha v. A.R. Subramanian, 2024 SCC OnLine SC 3822 (Case

No.: Civil Appeal No. 2643 of 2023 - decided on 19.12.2024), the

Supreme Court has held that:

"32. Although irretrievable breakdown of marriage is not a statutory ground for divorce under the HMA, this Court has, in appropriate cases, invoked its powers under Article 142 of the Constitution of India to grant relief where the marriage is beyond repair. In Naveen Kohli [Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558), this Court observed that when a marriage has irretrievably broken down, forcing the parties to remain together serves no purpose and only prolongs their misery."

19.In the context of above, the Trial Court in the present case has usurped

jurisdiction beyond the one granted by the Statute and has erroneously

granted divorce on the ground of irretrievable breakdown of marriage,

whereas, as a matter of fact, the only issue framed by it was that of

cruelty.

20.Needless to say that this Court, while deciding the instant appeal, cannot take the role of the Trial Court and appreciate the evidence as the first time, since such mandatory exercise is within the exclusive domain of Trial Court. Therefore, without expressing any view on the merits of the case, the impugned judgment and decree of the Trial Court is set aside, and the matter is remanded back to the Trial Court for fresh adjudication on merits and in accordance with law, after due consideration of the evidence already adduced by the parties.

21.The appeal is, as such, allowed in the above terms.

(Vinod Chatterji Koul) Judge Jammu .05.2025 Qazi Amjad, Secy Whether approved for reporting? Yes/No.