Jharkhand High Court

Sandip Prasad Aged About 38 Year Son Of ... vs Sarita Devi Wife Of Sandip Prasad on 23 June, 2025

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad, Rajesh Kumar

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           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       First Appeal No. 58 of 2025

          Sandip Prasad aged about 38 year son of Late Laxmi
          Prasad resident of village Bajkum, Post-Latehar Railway
          Station, P.S. & District Latehar, Jharkhand
                                             ... ... Plaintiff/Appellant
                                     Versus
          Sarita Devi wife of Sandip Prasad, resident of village
          Goatgaon, Post Chatakpur, Police Station-Mahuwadanr,
          District Latehar, Jharkhand
                                      ... ... Defendant/Respondent
                                  -------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
       HON'BLE MR. JUSTICE RAJESH KUMAR
                                  -------
     For the Appellant       : Mr. Prashant Kumar Rahul, Adv
     For the Respondent      : Mr. Nandan Prasad, Advocate
                       ----------------------------

Order No. 07 : Dated 23rd June, 2025

Per Sujit Narayan Prasad, J.

Prayer:

1. The instant appeal under Section 19(1) of the Family Court

Act, 1984 is directed against the order/judgment dated

03.12.2024 and decree signed on 07.12.2024 passed by the

learned Principal Judge, Family Court, Latehar in Original

Suit No. 05 of 2024, whereby and whereunder, the suit filed

under Section 13(1)(i-a) of the Hindu Marriage Act, 1955

seeking a decree of divorce by the appellant-husband against

the respondent-wife, has been dismissed.

Brief facts of the case:

2. The brief facts of the case, as taken note in the impugned

order, needs to be referred herein, which reads as under:

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3. It is the case of the appellant-husband that marriage was

solemnized on 26.04.2008, as per Hindu customary rites

and immediately after the marriage they started living their

conjugal life but just after a month the respondent-wife

started pressurizing him to separate himself from his

parents. The pressure was denied by the appellant as a

result of which the behaviour of the respondent-wife became

arrogant and she started picking quarrel with the appellant-

husband and his parents. Thereafter, the respondent-wife

raised a Complaint Case being Complaint Case No.157/2011

against the petitioner and his entire family members who

were arraigned as accused. It is stated that in the said

complaint case the appellant and his family members were

acquitted and thus it is proved that they were arraigned in

false case. It is stated that institution of false case in

matrimonial disputes amounts to cruelty and thus the

respondent has subjected him to cruelty by instituting false

case against him. It is further stated that in the said

complaint case there was an amicable settlement between

the parties and out of the settlement the appellant-husband

paid Rs.2,00,000/- to the respondent as one-time

permanent alimony and both the parties agreed to part their

ways. Later on the respondent-wife filed a Maintenance Case

against the appellant-husband even though she had received

a one-time alimony in the previous settlement in the

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complaint case and thus the respondent has treated the

petitioner with cruelty and by filing the present suit in which

he has prayed for dissolution of marriage by a decree of

divorce.

4. The respondent appeared and filed written statement

admitting her marriage with the petitioner on 26.04.2008.

However, she has denied that she pressurized the petitioner

for separating from his parents and because of non-

acceptance of her demand she treated the appellant-

husband with cruelty. She has admitted that she filed a

complaint case against the appellant-husband and has also

admitted that the said complaint case was disposed of on

the basis of an amicable settlement. She has stated that she

settled the case because she respected her husband,

however she has denied that she was paid Rs. Two lacs as

one time alimony by her husband. She has stated that she

also preferred a Maintenance Case against her husband

which has been allowed and her husband has been directed

to pay monthly allowance of maintenance to her. She has

stated that as a matter of fact her husband had raised a

demand of motorcycle and a gold chain and threatened that

if his demands are not met then he will solemnize his second

marriage. Even on 06.06.2011 he married a woman by the

name Shila Devi with whom he has three children. She has

stated whenever she visits her husband, his second wife not

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only assaults her but ousts her from the house. She has

stated that she treats the appellant-husband as her

husband and wants to lead her conjugal life with him and

thus has prayed to dismiss the suit.

5. Before the learned family court, conciliation was held

between the parties but the same failed and attempts for

settlement by way of mediation did not bore any fruit, hence

on the basis of the pleadings and after hearing the parties,

following issues were framed by the learned family court:-

ISSUES I. Whether after solemnization of the marriage, the respondent has treated her husband/petitioner with cruelty? II. Whether the Petitioner is entitled for relief as claimed?

6. The parties have led oral evidence as well as the

documentary evidence.

7. The learned principal judge, family court, after appreciating

the evidence adduced on behalf of parties, and argument

advanced on their behalf, came to the conclusion that the

petitioner-husband has failed to prove his case against the

respondent-wife under Section 13(1)(i-a) of the Hindu

Marriage Act, as such the petitioner-husband is not entitled

for decree of divorce, accordingly dismissed the suit, against

which, the instant appeal has been preferred.

Submission of the learned counsel for the appellant-husband:

8. It has been contended on behalf of the appellant that the

factual aspect which was available before the learned family

court supported by the evidence adduced on behalf of the

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appellant has not properly been considered and as such, the

judgment impugned is perverse, hence, not sustainable in

the eyes of law.

9. Submission has been made that ground has been taken that

since the year 2011 both the appellant and respondent are

living separately and as such as per the settled position of

law long separation is fittest ground to establish cruelty and

that was brought to the notice to the learned family judge

but without appreciating the said aspect of the matter in

right perspective the application has been rejected by coming

to the conclusion that the ingredient of cruelty could not be

established by the appellant-husband.

10. Submission has been made that the impugned judgment is

vitiated on account of non-consideration of pleadings as well

as evidences adduced on behalf of parties in true

perspective.

11. In support of his case, learned counsel for the appellant has

relied upon the judgment rendered by Hon‟ble Apex Court in

the case of Samar Ghosh Vs. Jaya Ghosh [2007 3

Supreme 26].

12. Learned counsel for the appellant, based upon the aforesaid

ground, has submitted that the judgment impugned suffers

from perversity, as such, not sustainable in the eyes of law.

Submission of the learned counsel for the respondent:

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13. While on the other hand, learned counsel for the

respondent-wife, defending the impugned judgment, has

submitted that there is no error in the impugned judgment.

14. Submission has been made that cruelty although has not

been defined under the Hindu Marriage Act but it is a case

where the respondent-wife has been subjected to cruelty

since divorce is based upon a compromise but the same is

being denied and further it is denied that any amount as

agreed to the tune of Rs. 2 lacs has ever been paid to the

respondent-wife rather second marriage have been

contracted by the appellant-husband and in order to save

his skin, he has filed the suit for decree of divorce taking a

non-est ground. It has been contended that even accepting

that the second marriage has been made on the basis of

compromise but even also it is the appellant-husband, who

has shown cruelty towards his wife by solemnizing second

marriage.

15. It has further been stated that taking into consideration the

aforesaid aspect of the matter, the learned family court has

refused to accept the plea taken on behalf of appellant to

establish the element of cruelty by rejecting the said

application, which cannot be faulted with.

16. Learned counsel, based upon the aforesaid ground, has

submitted that if on that pretext, the factum of cruelty has

not been found to be established, based upon which the

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decree of divorce has been refused to be granted, the

impugned judgment cannot be said to suffer from error.

Analysis:

17. This Court has heard the learned counsel for the parties and

gone through the finding recorded by the learned Principal

Judge in the impugned judgment.

18. The admitted fact herein is that the marriage was

solemnized on 26.04.2008 in between the parties. The

appellant-husband has filed a suit for divorce on the ground

of cruelty i.e., by filing an application under Section 13(1)(i-

a)the Hindu Marriage Act, 1955.

19. Before the learned family, evidence has been led on behalf of

both the parties. For ready reference, the evidences led on

behalf of the parties are being referred as under:

20. PW1-Sandip Prasad, the appellant-husband himself has

stated that his marriage with Sarita Devi was soleminzed on

26.04.2008 in accordance with Hindu customary rites.

Sarita Devi instituted a Complaint Case No.157/2011 which

was compromised and both the parties settled to part their

ways and lead an independent life and because he did not

prefer any Divorce Suit at the relevant time, therefore, he

has filed the present suit. He has also stated that he has

given Rs. Two lacs as permanant alimony in terms of the

compromise. He has stated that both he and Sarita Devi are

residing separately since 08.08.2011. He has proved all the

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documents marked as Ext.1 to Ext.9. During his cross-

examination he has stated that there is no documentary

evidence of his assertion that he has paid Rs.Two lacs,

jewellery and cloths to his wife after he soleminzed his

second marriage. He has stated that he has parted ways

with his son from his first wife. He has denied that he has

himself extended cruelty towards his wife by soleminzing

second marriage during the subsistence of his first marriage.

21. PW2-Amardip Prasad, has also supported the case of the

appellant and there is nothing relevant in his cross-

examination.

22. PW3-Nagendra Prasad, during his cross-examination has

stated that he has no knowledge about the second marriage

of the petitioner. He has stated that the compromise in

Complaint Case was effected in his presence and he has

made his signature on the compromise petition (Ext.7) but

upon being confronted with Ext.7 he has stated that the

document does not contain his signature. The family court

has come to the conclusion that from his evidence it appears

that he does not know anything about the case and he is not

a trustworthy witness.

23. PW4- Shanti Devi has stated that at the time of compromise

in Complaint Case No.157/2011 his son Sandip Prasad

delivered Rs.Two lacs as permanent alimony to Sarita Devi

and also delivered her jewellery and other articles. During

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her cross-examination she has stated that there was a

divorce in between Sandip and Sarita before solemnization of

his second marriage. She has stated that Sarita Devi has

instituted this case but she has no idea about the relief

which she has sought. The learned family court has opined

that that this witness also does not have any knowledge

about this case.

24. It is evident from the testimony, as has been recorded by the

witnesses, that the husband has tried to establish the

ground of cruelty, as has been deposed by him on the

ground that although the marriage was solemnized on

26.04.2008 as per Hindu Customary rights, but the

respondent-wife instituted a Complaint Case No.157/2011.

It is stated that the said case was compromised and both the

parties settled to part their ways and lead an independent

life and because he did not prefer any Divorce Suit at the

relevant time, therefore, he has filed the present suit. He has

also stated that on 06.06.2011 the appellant-husband

solemnized second marriage with Shila Devi. It has been

since 08.08.2011 the respondent-wife is living separately,

which the appellant-husband has said to be cruelty. Other

witnesses have also stated about the issue of separation.

25. Contention, therefore, has been raised before the learned

family court that the respondent-wife by filing a false

complaint case, in which, the appellant-husband and family

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members were later on exonerated, has meted out cruelty.

Further ground has been taken that since 2011 they are

living separately, therefore, the marriage has broken down

irretrievably and, as such made a prayer to grant the decree

of divorce by annulling the marriage.

26. While on the other hand, the respondent-wife has taken the

ground that it is the respondent-wife who has been

subjected to cruelty as during subsistence of her marriage

with the appellant, he has solemnized second marriage,

which itself amounts to cruelty.

27. This Court, in order to appreciate the argument advanced on

behalf of the parties on the issue of perversity, needs to refer

herein the interpretation of the word "perverse" as has been

interpreted by the Hon'ble Apex Court which means that

there is no evidence or erroneous consideration of the

evidence. The Hon'ble Apex Court in Arulvelu and Anr. vs.

State [Represented by the Public Prosecutor] and Anr.,

(2009) 10 SCC 206 while elaborately discussing the word

perverse has held that it is, no doubt, true that if a finding of

fact is arrived at by ignoring or excluding relevant material

or by taking into consideration irrelevant material or if the

finding so outrageously defies logic so as to suffer from the

vice of irrationality incurring the blame of being perverse,

then, the finding is rendered infirm in law. Relevant

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paragraphs, i.e., paras-24, 25, 26 and 27 of the said

judgment reads as under:

"24. The expression "perverse" has been dealt with in a number of cases. In Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501] this Court observed that the expression "perverse"

means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity.

25. In Parry's (Calcutta) Employees' Union v. Parry & Co. Ltd. [AIR 1966 Cal 31] the Court observed that "perverse finding" means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC 665 : AIR 1994 SC 1341] the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings.

26. In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant 58] the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough [(1878) 1 LR 1r 331] the Court observed that a "perverse verdict" may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey [106 NW 814] the Court defined "perverse" as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct, etc.

27. The expression "perverse" has been defined by various dictionaries in the following manner:

1. Oxford Advanced Learner's Dictionary of Current English, 6th Edn.

"Perverse.--Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable."

2. Longman Dictionary of Contemporary English, International Edn.

Perverse.--Deliberately departing from what is normal and reasonable.

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3. The New Oxford Dictionary of English, 1998 Edn. Perverse.--Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.

4. The New Lexicon Webster's Dictionary of the English Language (Deluxe Encyclopedic Edn.) Perverse.--Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.

5. Stroud's Judicial Dictionary of Words & Phrases, 4th Edn.

"Perverse.--A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.""

28. Appellant-husband has sought for relief on the ground of

cruelty so first of all this Court is to consider on the point as

to what is cruelty and whether the same was proved by

appellant or not.

29. The cruelty has not been defined under the Hindu Marriage

Act, 1955, however, by its interpretation by the Hon‟ble Apex

Court, the cruelty has been interpreted.

30. Cruelty- The concept of cruelty has been summarized in

Halsbury's Laws of England (Vol.13, 4th Edition Para 1269)

as under :-

"The general rule in all cases of cruelty is that the entire

matrimonial relationship must be considered, and that

rule is of special value when the cruelty consists not of

violent acts but of injurious reproaches, complaints,

accusations or taunts."

31. Cruelty for the purpose of Section 13(1)(i-a) is to be taken as

a behaviour by one spouse towards the other, which causes

reasonable apprehension in the mind of the latter that is not

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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 behaviour or 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

and 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

the attending facts and circumstances in which the two

partners of matrimonial life have been living. The inference

has to be drawn from the attending facts and circumstances

taken cumulatively.

32. In case of mental cruelty, it will not be a correct approach to

take an instance of misbehavior in isolation and then pose

the question whether such behaviour is sufficient by itself to

cause mental cruelty. The approach should be to take the

cumulative effect of the facts and circumstances emerging

from the evidence on record and then draw a fair inference

whether the petitioner in the divorce case has been

subjected to mental cruelty due to the conduct of other.

33. It is true that the term "cruelty" has not been defined in the

Hindu Marriage Act and it will depend upon the facts and

circumstances of each case as to whether actually the

cruelty has been committed or not ?

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34. It is well settled that the conduct should be so grave and

weighty as to come to the conclusion that the plaintiff

cannot reasonably be expected to live with the defendant. It

must be more serious than the ordinary wear and tear of

married life. The cumulative conduct, taking into

consideration the circumstances and background of the

parties has to be examined to reach conclusion that whether

the conduct, complained of amounts to cruelty or not?

Ordinarily cruelty means danger to life and limb of a spouse

from other which makes it practically impossible to lead

conjugal life with other.

35. The "cruelty" has been interpreted by the Hon‟ble Apex Court

in the case of Dr. N.G. Dastane vs. Mrs. S. Dastana,

(1975) 2 SCC 326 wherein it has been laid down that the

Court has to enquire, as to whether, the conduct charge as

cruelty, is of such a character, as to cause in the mind of the

petitioner, a reasonable apprehension that, it will be harmful

or injurious for him to live with the respondent.

36. This Court deems it fit and proper to take into consideration

the meaning of „cruelty‟ as has been held by the Hon‟ble

Apex Court in Shobha Rani v. Madhukar Reddi, (1988)1

SCC 105 wherein the wife alleged that the husband and his

parents demanded dowry. The Hon‟ble Apex Court

emphasized that "cruelty" can have no fixed definition.

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37. According to the Hon'ble Apex Court, "cruelty" is the

"conduct in relation to or in respect of matrimonial conduct

in respect of matrimonial obligations". It is the conduct

which adversely affects the spouse. Such cruelty can be

either "mental" or "physical", "intentional‟ or "unintentional".

For example, unintentionally waking your spouse up in the

middle of the night may be mental cruelty; intention is not

an essential element of cruelty but it may be present.

Physical cruelty is less ambiguous and more "a question of

fact and degree."

38. The Hon'ble Apex Court has further observed therein that

while dealing with such complaints of cruelty it is important

for the court to not search for a standard in life, since

cruelty in one case may not be cruelty in another case. What

must be considered include the kind of life the parties are

used to, "their economic and social conditions", and the

"culture and human values to which they attach

importance."

39. The Hon‟ble Apex Court has further held that every trivial

quarrel between the parties will not come under the fold of

„cruelty‟. The appellant had tried to impress upon the

learned family court by filing application under Section 13(1)

(i-a) of the Hindu Marriage Act, 1955, i.e., he has sought for

decree of divorce on the ground of cruelty. The case has been

made out by the appellant-husband on the ground of long

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separation; meaning thereby the ground has been tried to be

demonstrated either before the learned family court or before

this Court is about the ground of desertion.

40. There is no dispute that the cruelty and desertion are two

separate grounds, as referred in Section 13(1)(i-a) and

explanation part of Section 13.

41. The parameters to establish cruelty and desertion are also

by way of two different ways. The cruelty although has not

been defined but desertion has been defined under the

explanation part of Section13 of the Hindu Marriage Act, for

ready reference same is being quoted as under:

[Explanation. In this sub-section, the expression desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]

42. Rayden on Divorce which is a standard work on the subject

at p. 128 (6th Edn.) has summarised the case-law on the

subject in these terms:

"Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party."

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The legal position has been admirably summarised

in paras-453 and 454 at pp. 241 to 243 of Halsbury's Laws

of England (3rd Edn.), Vol. 12, in the following words:

"In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases.

43. Desertion is not the withdrawal from a place but from a state

of things, for what the law seeks to enforce is the recognition

and discharge of the common obligations of the married

state; the state of things may usually be termed, for short,

„the home‟. There can be desertion without previous

cohabitation by the parties, or without the marriage having

been consummated. The person who actually withdraws

from cohabitation is not necessarily the deserting party. The

fact that a husband makes an allowance to a wife whom he

has abandoned is no answer to a charge of desertion.

44. The offence of desertion is a course of conduct which exists

independently of its duration, but as a ground for divorce it

must exist for a period of at least two years immediately

preceding the presentation of the petition or, where the

offence appears as a cross-charge, of the answer. Desertion

as a ground of divorce differs from the statutory grounds of

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adultery and cruelty in that the offence founding the cause

of action of desertion is not complete, but is inchoate, until

the suit is constituted. Desertion is a continuing offence.

45. It is, thus, evident from the aforesaid reference of meaning of

desertion that the quality of permanence is one of the

essential elements which differentiates desertion from wilful

separation. If a spouse abandons the other spouse in a state

of temporary passion, for example, anger or disgust, without

intending permanently to cease cohabitation, it will not

amount to desertion. For the offence of desertion, so far as

the deserting spouse is concerned, two essential conditions

must be there, namely, (1) the factum of separation, and (2)

the intention to bring cohabitation permanently to an end.

46. Similarly, two elements are essential so far as the deserted

spouse is concerned: (1) the absence of consent, and (2)

absence of conduct giving reasonable cause to the spouse

leaving the matrimonial home to form the necessary

intention aforesaid. In such a situation, the party who is

filing for divorce will have the burden of proving those

elements.

47. Recently also, the Hon'ble Apex Court in Debananda

Tamuli vs. Kakumoni Kataky, (2022) 5 SCC 459 has

considered the definition of „desertion‟ on the basis of the

judgment rendered by the Hon'ble Apex Court in Lachman

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Utamchand Kirpalani v. Meena, AIR 1964 SC 40 which

has been consistently followed in several decisions. The law

consistently laid down by the Hon‟ble Apex Court that

desertion means the intentional abandonment of one spouse

by the other without the consent of the other and without a

reasonable cause. The deserted spouse must prove that

there is a factum of separation and there is an intention on

the part of deserting spouse to bring the cohabitation to a

permanent end. In other words, there should be animus

deserendi on the part of the deserting spouse. There must be

an absence of consent on the part of the deserted spouse

and the conduct of the deserted spouse should not give a

reasonable cause to the deserting spouse to leave the

matrimonial home.

48. Thus, the desertion means the desertion of the one party by

the other party to the marriage without reasonable cause

and without the consent or against the wish of such party,

and includes the willful neglect of the petitioner by the other

party to the marriage.

49. The admitted fact herein is that it is the husband who has

contracted second marriage during subsistence of the first

wife and thereafter, the respondent-wife is not living with the

husband.

50. Therefore, the question which is required to be considered

that although the divorce suit has been filed by the husband

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on the ground of cruelty but argument has been advanced

based upon the element of desertion. Even accepting the

element of desertion but taking into consideration the

conduct of the husband, who during subsistence of first

marriage, has married with another lady namely Shila Devi,

that is admitted case of the parties. The said marriage stated

to be solemnized based upon the compromise. Law is well

settled that there cannot be any compromise/estoppel

against the law.

51. The facts since is admitted that since on the basis of

compromise entered into between the parties, the second

marriage has been solemnized, which itself goes to show the

conduct of the present appellant.

52. Therefore, this court is of the view that it is not the

respondent-wife, who has subjected her husband either with

the cruelty or desertion rather it is the appellant-husband

who has subjected his wife with cruelty by solemnizing

second marriage during survival of his first wife that led the

respondent-wife to live separately.

53. The learned counsel for the appellant has relied upon the

judgment rendered in the case of Samar Ghosh Vs. Jaya

Ghosh (supra), therefore it is the bounden duty of the Court

to consider the applicability of the said judgment in the facts

and circumstances of the present case.

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54. This Court, therefore, is of the view that factual aspect of the

said case is required to be mentioned herein.

"The appellant and the respondent knew each other since 1983. The respondent, when she was serving as the Deputy Secretary in the Department of Finance, Government of West Bengal, used to meet the appellant between November 1983 and June 1984. They cultivated close friendship which later developed into courtship.

The respondent's first husband, Debashish Gupta filed a belated appeal against the decree of divorce obtained by her from the District Court of Patna. Therefore, during the pendency of the appeal, she literally persuaded the appellant to agree to the marriage immediately so that the appeal of Debashish Gupta may become infructuous. The marriage between the parties was solemnized on 13.12.1984. According to the appellant, soon after the marriage, the respondent asked the appellant not to interfere with her career. She had also unilaterally declared her decision not to give birth to a child for two years and the appellant should not be inquisitive about her child and he should try to keep himself aloof from her as far as possible. According to the appellant, there was imposition of rationing in emotions in the arena of love, affection, future planning and normal human relations though he tried hard to reconcile himself to the situation created by the respondent.

The appellant asserted that the apathy of the respondent and her inhuman conduct towards him became apparent in no time. In February 1985, the appellant suffered prolonged illness. The respondent's brother was working in Bareilly. Her parents along with her daughter went there for sojourn. The appellant could not go because of high temperature and indifferent health. She left him and went to Bareilly even when there was no one to look after him during his illness. On her return, the respondent remained in Calcutta for about four days, but she did not care to meet the appellant or enquire about his health. According to the appellant, he made all efforts to make adjustments and to build a normal family life. He even used

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to go to Chinsurah every weekend where the respondent was posted but she showed no interest and was overtly indifferent to him. The appellant usually returned from Chinsurah totally dejected. According to the appellant, he felt like a stranger in his own family. The respondent unilaterally declared that she would not have any child and it was her firm decision. The appellant felt that his marriage with the respondent was merely an eye-wash because immediately after the marriage, serious matrimonial problems developed between them which kept growing.

The respondent was transferred to Calcutta in May 1985. Their residential flat at the Minto Park Housing Estate stood allotted to the appellant. The respondent used to come to their flat intermittently. One Prabir Malik, a domestic servant-cum-cook also used to live in the said flat. He used to cook food and carry out household work for the appellant. According to the appellant, the respondent used to say that her daughter was being neglected and that she might even be harmed. The indication was towards Prabir Malik. The appellant and the respondent virtually began to live separately from September, 1985.

The appellant was transferred to Murshidabad in May 1986 but the respondent continued to stay in Calcutta. The appellant stayed in Murshidabad up to April 1988 and thereafter he went on deputation on an assignment of the Government of India but there he developed some health problem and, therefore, he sought a transfer to Calcutta and came back there in September 1988. On transfer of the appellant to Murshidabad, the flat in which they were staying in Minto Park was allotted to the respondent as per the standard convention. The appellant and the respondent again began living together in Calcutta from September 1988. The appellant again tried to establish his home with the respondent after forgetting the entire past.

According to the appellant, the respondent never treated the house to be her family home. The respondent and her mother taught respondent's daughter that the appellant was not her father. The child, because of instigation of the respondent and her mother, gradually began to avoid the

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appellant. The respondent in no uncertain terms used to tell the appellant that he was not her father and that he should not talk to the child or love her. The appellant obviously used to feel very offended.

The appellant also learnt that the respondent used to tell her mother that she was contemplating divorce to the appellant. The respondent's daughter had also disclosed to the appellant that her mother had decided to divorce him. According to the appellant, though they lived under the same roof for some time but the respondent virtually began to live separately from April, 1989 at her parent's house. In April 1990 the appellant's servant Prabir Malik had left for Burdwan on getting a job. The respondent used to come from her parents house to drop her daughter to her school La Martinere. She used to come to the flat at Minto Park from the school to cook food only for herself and leave for the office. The appellant began to take his meals outside as he had no other alternative.

According to the appellant, the said Prabir Malik came to the flat on 24th August, 1990 and stayed there at the night. The next two days were holidays. The respondent and her father also came there on 27th August, 1990. On seeing Prabir, the respondent lost her mental equanimity. She took strong exception to Prabir's presence in her flat and started shouting that the appellant had no self-respect and as such was staying in her flat without any right. According to the appellant, he was literally asked to get out of that flat. The respondent's father was also there and it appeared that the act was pre-conceived. The appellant felt extremely insulted and humiliated and immediately thereafter he left the flat and approached his friend to find a temporary shelter and stayed with him till he got a government flat allotted in his name on 13.9.1990.

Admittedly, the appellant and the respondent have been living separately since 27th August, 1990. The appellant further stated that the respondent refused cohabitation and also stopped sharing bed with him without any justification. Her unilateral decision not to have any child also caused mental cruelty on the appellant. The

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appellant was not permitted to even show his normal affection to the daughter of the respondent although he was a loving father to the child. The appellant also asserted that the respondent desired sadistic pleasure at the discomfiture and plight of the appellant which eventually affected his health and mental peace. In these circumstances, the appellant has prayed that it would not be possible to continue the marriage with the respondent and he eventually filed a suit for the grant of divorce.

In the suit for divorce filed by the appellant in Alipur, Calcutta, the respondent filed her written statement and denied the averments. According to the version of the respondent, Prabir Malik, the domestic servant did not look after the welfare and well-being of the child. The respondent was apprehensive that Prabir Malik may not develop any affection towards the respondent's daughter.

According to the version of the respondent, the appellant used to work under the instructions and guidance of his relations, who were not very happy with the respondent and they were interfering with their family affairs. The respondent stated that the appellant has filed the suit for divorce at the behest of his brothers and sisters. The respondent has not denied this fact that from 27th August, 1990 they have been continuously living separately and thereafter there has been no interaction whatsoever between them."

55. The Hon‟ble Apex Court based upon the said fact and

pleadings available on record and law laid down in other

cases by the Hon‟ble Apex Court, has laid down the

proposition at paragraph 97, which reads as under:

"No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated 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

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parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical

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reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

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

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.

56. It needs to refer herein that the applicability of the judgment

depends upon the applicability based upon the facts of the

individual case, since, the judgment is not having the

universal applicability, reference in this regard may be made

to the judgment rendered by the Hon'ble Apex Court in the

case of Dr. Subramanian Swamy v. State of Tamil Nadu,

(2014) 5 SCC 75, wherein, at paragraph-47, it has been

held as under:--

"47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. "The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed."

57. The factual aspect of the Samar Ghosh is admittedly, as

referred at paragraph 2, is that it is a case where two IAS

officers where the wife has shown no interest towards her

husband and showing instances having referred in the said

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case, the Hon‟ble Apex Court in the aforesaid premise has

laid down a proposition that what is to be construed as

cruelty or desertion. Reference in this regard be made to

paragraph 97(XIV), wherein it has been stated that where

there has been a long period of continuous separation it may

fairly be concluded that the matrimonial bond is beyond

repair and it may lead to mental cruelty.