Telangana High Court

Smt G.Priyamvada, vs Sri G.Ramesh Kumar on 7 June, 2024

Author: K. Lakshman

Bench: K.Lakshman, P.Sree Sudha

            THE HON'BLE SRI JUSTICE K.LAKSHMAN

                                AND

        THE HON'BLE SMT JUSTICE P.SREE SUDHA

      FAMILY COURT APPEAL Nos.231 and 239 of 2013

COMMON JUDGMENT:

(Per the Hon'ble Sri Justice K.Lakshman)

Heard Sri G.Narender Raj, learned counsel for the

appellant in F.C.A.No.231 of 2013 and learned counsel for

the respondent in F.C.A.No.239 of 2013 and Sri

V.R.Machavaram, learned counsel for the appellant in

F.C.A.No.239 of 2013 and learned counsel for the

respondent in F.C.A.No.231 of 2013.

2. The parties hereinafter are referred to as they are

arrayed in F.C.A.No.231 of 2013.

3. Respondent-wife had filed a petition vide

F.C.O.P.No.585 of 2011 under Section 13(1)(ia) of the

Hindu Marriage Act, 1956 against the appellant-husband

seeking dissolution of marriage on the ground of cruelty.

According to the respondent-wife;

2 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

(i) her marriage with the appellant-husband was

performed on 30.01.1999 at Hyderabad as per Hindu rites

and customs.

(ii) It is an arranged marriage.

(iii) The parents of the respondent-wife also gave

dowry to the appellant-husband.

(iv) On the night of nuptials, the appellant-husband

did not perform intercourse saying that he is in tense and

he will do it next time.

(v) After the marriage, appellant and respondent went

to Kodaikanal as honeymoon trip. Even there also, he did

not perform anything and when the same was questioned

by the respondent-wife, he said that the sensitive parts of

his body are little small and as such, he could not perform

intercourse.

(vi) Thereafter she tried number of times, but the

appellant did not co-operate with her and as such she

came to know that appellant-husband is an impotent and

not fit for conjugal life.

3 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

(vii) From 1999 to 2002, both stayed in her in-laws

place in Mumbai.

(viii) Her in-laws did not allow them to go out and

used to restrict to stay at home even during the week ends

also.

(ix) The appellant did not bother to take care of the

respondent.

(x) He neither took her out nor looked after her

welfare.

(xi) The respondent-wife used to do job at the time of

marriage. Thereafter she has resigned.

(xii) Even appellant-husband was not interested to do

job. After resigning job, appellant-husband, his parents,

sister and brother started harassing respondent-wife

demanding additional dowry.

(xiii) They have also tortured her mentally. Every day

is a worst day to her.

(xiv) In the year 2001, appellant alone went to

Dr.Bhandarkar for consultation on his own without

informing the respondent-wife.

4 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

(xv) On enquiry, he has informed her that on the

pressure of his parents to have children, he has consulted

the said doctor.

(xvi) He has informed the respondent that he cannot

have children, the reports say so and his parents also knew

the said fact before the marriage itself.

(xvii) Even the parents of the appellant advised him

not to reveal the said fact to the respondent-wife so that

the marriage will break and the girl's life will be ruined. He

used to take some steroid injections.

(xviii) In the year 2001, the appellant and respondent

came to Hyderabad and consulted some doctors in

Hyderabad since the appellant is not able to perform his

matrimonial duties and all his reports reveal that he has

'Klinefelter Karyotype XXY' and his sperm count reading as

'Nil'. After the said reports, his parents advised both the

appellant and respondent to adopt a child or to go for a test

tube baby.

(xix) Immediately on the advice of the appellant and

his parents, the respondent went to 'Malpani Infertility 5 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

Clinic' wherein she undergone treatment of IUI with

donor's sperm. (xx) Subsequently, with the advice and

consent of the appellant, the respondent has conceived and

blessed with a female child on 26.04.2003. Her name is

'Samyukta'.

4. Every night the appellant used to argue on small

matters with the respondent.

(i) He used to come home in a drunken condition,

that too late night.

(ii) In the weekends, all the time, he used to sleep

and never wants to listen whatever she speak.

(iii) On one night, he informed her that someone has

done black magic to him. It is a girl from office and he

feels she lives in her. He always used to imagine her in the

respondent and want to have sexual favours. He used to

say that the respondent should do this for him.

(iv) If the respondent normally put her hand on him,

he used to throw her hand away, but imagines that girl,

says her name and wants sexual favours.

6 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

(v) Despite best of her efforts, there is no change in

the attitude of the appellant. Moreover, he was harsh.

(vi) He always needs sexual favours imagining the

other girl.

(vii) Initially she co-operated but thereafter she has

refused. Therefore, he started harassing her.

(viii) On 23.06.2011, her daughter went down to play

and there was no one in the house and main door (double

door) was closed. The respondent went to toilet and she

was stuck in bathroom as automatic lock did not open.

(ix) The respondent shouted out for help and all her

neighbours heard and took the appellant's cell phone

number and called him.

(x) Even after receiving the call from the neighbours,

the appellant deliberately did not open the door and the

respondent was forced to stay in the bathroom till 9.00

P.M.

(xi) The appellant and respondent jointly purchased a

flat consisting of two bedroom, hall, kitchen, situated at 7 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

Gundecha Hills, behind S.M.Shetty School, Powai,

Mumbai.

(xii) The appellant was working as Software consultant

and earning a sum of Rs.14 lakhs per annum.

(xiii) The respondent has submitted resignation after

marriage.

5. Thus, according to the respondent-wife, the

appellant-husband subjected her to cruelty and he is an

impotent. With the said contentions, the respondent-wife

sought decree of divorce and also an amount of Rs.25

lakhs towards permanent alimony.

6. The appellant-husband filed counter denying the

said allegations. According to the appellant;

(i) the respondent is under confusion and she is not

in a position to draw a distinction between impotency and

not having children.

(ii) The appellant has admitted about purchasing of a

flat, but according to him, it is with his earnings.

8 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

(iii) He has taken the respondent to movies, malls,

outstation trips, Kashid resort, etc.

7. Thus, according to the appellant-husband,

respondent-wife filed the aforesaid O.P. only to obtain

decree of divorce by making false allegations against him.

8. To prove the said allegations, respondent-wife

examined herself as P.W.1 and her mother as P.W.2. She

has filed Exs.A1 to A16. To disprove the said allegations,

appellant-husband examined himself as R.W.1 and he did

not file any document.

9. On consideration of entire evidence, both oral and

documentary, learned Family Court allowed the said O.P.

and granted decree of divorce dissolving the marriage

performed between the parties on 30.01.1999 and awarded

an amount of Rs.9,00,000/- towards permanent alimony.

Learned Family Court directed the appellant-husband to

pay the said amount within three months.

9 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

10. Feeling aggrieved by the said order granting

decree of divorce, the appellant-husband preferred an

appeal vide F.C.A.No.231 of 2013. Seeking enhancement

of permanent alimony, the respondent-wife preferred

F.C.A.No.239 of 2013.

11. The respondent-wife had filed the aforesaid O.P.

against the appellant-husband seeking dissolution of

marriage on the ground of cruelty. According to her;

(i) the appellant is an impotent and he has not

participated in the intercourse on the first night of the

wedding and also during honeymoon at Kodaikanal.

(ii) According to the appellant, he is not in a position

to perform intercourse since his private parts of the body

are little small.

(iii) He had informed the said fact to the respondent-

wife.

(iv) The appellant visited Dr.Bhandarkar in the year

2001 and all his reports reveal that the appellant-husband

is an impotent and he is suffering with a rare disease 10 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

namely 'Klinefelter Karyotype XXY' wherein the patients

have an extra X chromosome usually with female qualities

and manifestations.

(v) The sperm count is also diagnosed as 'Nil'.

(vi) After due considerations of the family, the

respondent decided to go for a test tube baby.

(vii) Accordingly, she has approached 'Malpani

Infertility Clinic' at Mumbai and she underwent IUI

treatment with donor's sperm.

(vii) She gave birth to a baby girl namely 'Samyuktha'

on 26.04.2003.

(viii) The appellant was habituated to alcohol and

would never spare time to engage in any conversations

with respondent.

(ix) He has not opened the bathroom lock and she was

compelled to stay in the bathroom upto 9.00 P.M.

(x) He informed that he was a target of black magic,

but he failed to prove the same.

(xi) However, he denied the said facts in his counter.

11 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

12. As discussed above, to prove the cruelty of the

appellant, respondent-wife examined herself as P.W.1. She

deposed in the same lines as per her petition. The

marriage of appellant and respondent was performed on

30.01.1999.

13. During cross-examination, she has admitted that

there was dowry related harassment continuously after the

marriage and the same was continued for last 12 years.

She has filed dowry harassment case against appellant-

husband in a Court in Nampally, Hyderabad.

14. The appellant was doing Software job in Mumbai

by the date of marriage. The marriage between the

appellant and respondent is an arranged marriage. Her

marriage was not consummated. She knows the meaning

of impotency, which means not able to perform sexual act

and unable to bear children. On 26.04.2003, she had a

girl child by 'Intra Uterine Insemination' by donor's sperm

through 'Malpani Infertility Institute', Bombay.

12 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

15. The appellant demands her to have oral sexual act

even without making her undressed. He was forcing her to

have it. She could not come out of the problem till 12

years after marriage as she felt it a social stigma.

Thereafter due to the support of her friends and other

family members and change in the society, she has filed

the present case. The appellant never cared her and her

daughter. He never used to take care of them financially.

She has contributed about 50% of Rs.1,00,000/- which is

the marginal money for taking loan to purchase 1BHK flat

(one bed room, hall, kitchen) for Rs.13,00,000/-. The

appellant paid EMIs for the flat and he is continuing to pay

the same for the 2BHK flat purchased after disposing of the

said 1BHK flat. The respondent is now staying in 2BHK

flat along with her daughter.

16. P.W.2 is mother of the respondent. She also

spoke in the same lines as deposed by P.W.1. However,

during cross-examination, she has admitted that her

daughter informed her that there was no physical relation 13 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

between herself and her husband at any time and she

informed the same for the first time after returning from

honeymoon in the year 1999 itself. She has not suggested

P.W.1 to have divorce. The appellant-husband informed

her that he got habit of drinking and he stopped it later.

17. It is contended by the respondent-wife (P.W.1) and

her mother (P.W.2) that they gave an amount of

Rs.2,00,000/- towards dowry and 150 grams of gold. They

also spent an amount of Rs.5,00,000/- towards marriage

expenses. For purchasing a flat in Mumbai, her parents

were constrained to contribute some amount besides her

self-earnings. She used to work prior to her marriage and

sometime after the marriage. She might have contributed

an amount of around Rs.15 lakhs to appellant-husband in

all. The appellant is a Software consultant earning an

amount of Rs.14 lakhs per annum.

18. To disprove the said allegations, appellant-

husband examined himself as R.W.1. During cross-

examination, he has admitted that he will have his shave 14 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

every day but not once in a month, that too by taking

medicines as his beard won't grow. However, he has

denied a suggestion that P.W.1 was never happy with him

as he had no capacity to perform intercourse, but she has

not conveyed the same to him. R.W.1 and P.W.1 went to

Kashid and Lonewala in 2002. Respondent-wife left her

ICICI job after the birth of female child. By mistake he

administered broken milk to his daughter, which resulted

in her admission in Joy Hospital, Mumbai. P.W.1 was

blessed with a baby in 2003 through test tube. However,

he has denied a suggestion that his parents commented

that the said baby does not belong to him and subjected

P.W.1 to character assassination.

19. He has further admitted that he came to

Hyderabad for second opinion on his own accord. His

sperm is low, but not nil as suggested. Ex.A12 is issued by

Apollo Hospital after examining him. His sperm count can

be increased. As his sperm count is not sufficient to

procreate children, they opted for test tube baby. The 15 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

present house in which his parents are staying is in joint

names of both the parties and the names of both the

parties were mentioned as borrowers for the loan obtained

to purchase that house. He is not capable for paying the

permanent alimony of Rs.25 lakhs.

20. The sum and substance of the allegation made by

respondent-wife against the appellant-husband is that he

is impotent and he is not in a position to perform sexual

intercourse. He is suffering with 'Klinefelter Karyotype

XXY' disease. Though she has waited for long time, there

was no change in the attitude of appellant-husband. To

prove the said allegation, she has examined herself and her

mother as P.W.1 and P.W.2 and filed Ex.A9-Laboratory

report dated 26.08.2001, Exs.A10 and A11-Medical

prescriptions dated 29.08.2001 and 20.10.2001, Ex.A12-

Pathology report, Ex.A13-Cytogenesis report dated

06.11.2001, Ex.A14-medical report dated 26.02.2002.

Therefore, according to respondent-wife, appellant-

husband subjected her to cruelty.

16 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

21. Ex.A8 is the certificate dated 28.10.2002 issued

by Malpani Infertility Clinic. Perusal of Ex.A9-Laboratory

report dated 26.08.2001 would reveal that a significantly

low finding for a serum testosterone test. Ex.A12 is

Pathology Report for semen analysis dated 26.08.2001

which recorded nil active motile and the same was

admitted by the appellant during cross-examination.

Ex.A13 is the Cytogenesis report dated 06.11.2001

conducted on the appellant-husband viz., Giesma Staining

- GTG banding study concluded the karyotype of the

appellant's blood was consistent with Klinefelter syndrome.

22. It is also relevant to note that Ex.A3 is the e-mail

dated 20.07.2011 sent by Ms. Indira Unninayar, Advocate

of Supreme Court and Delhi High Court to the appellant-

husband. He has also sent a reply to her saying that his

brother Mr. Ramgopal had spoken to her and he has also

stated that he was engaged to his wife Priya in October,

1998. He was diagnosed with a medical condition which

revealed he would have low Sperm count a day before 17 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

marriage and that he cannot father a child. His parents

advised him to keep the matter under wraps due to fear of

a possible failure of marriage.

23. Nevertheless, got married on 30.01.1999. His wife

got to know of his medical condition on the first night after

his marriage and felt hugely cheated by him and his family.

Her in-laws cut-off relations with his family and he had to

separate from his parents and stay at a rented

accommodation at that time. His wife Priya gave birth to a

baby girl in 2003 through IVF using a donor. It is further

stated that from 2004 to 2008, they had routine problems

of his in-laws coming and staying with him for 3 to 6

months at his house and his relations with his parents

were cut-off. He used to have problems with his wife such

as:

(i) Daughter not allowed to meet his parents.

(ii) No communication with his parents by his wife

and in-laws.

18 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

(iii) No sex life as he cannot give her ultimate

satisfaction. Hence, no bonding.

It is further mentioned that from 2009 till date, his

wife went through depression (Thyroid problems, improper

periods). They would not communicate with each other for

long spells. This led to his work in office getting affected.

Out of frustration, he started to like a girl, a colleague in

his office and would regularly chat with her. In one of the

many fights with his wife, he told her that he liked a girl in

his office. The purpose of his telling her was to threaten

her and marriage with her was never on his mind so that

she may mend her attitude and stop fighting with him out

of fear of being separated. The said incident led to the

following:

(i) She undressed herself by telling him that he is an

incapable person and challenged him that

nobody would be ready to marry him.

(ii) She spit at him and beat him.

19 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

(iii) She attempted to commit suicide by harming

herself with a knife.

(iv) She tutored her daughter that he was a bad

person.

(v) Subsequently one day, she was about to jump out

from the car, out of rage.

Thus, vide Ex.A3, the appellant sought opinion of his

lawyer.

24. Sri G.Narender Raj, learned counsel for the

appellant-husband placed reliance on the principle laid

down in the following judgments:

1. Neelam Kumar v. Dayarani 1 to contend that the

respondent has to prove her case for granting

divorce on the count of cruelty. Failure of the

same, she is not entitled for any relief. The material

fact not stated in the pleadings could not be taken

into consideration.

1 (2010) 13 SCC 298 20 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

2. A.Asha Latha v. Abisetti Venkata Rao 2 to

contend that Family Court cannot grant divorce

without there being pleading and cogent evidence.

3. A v. B 3 to contend that unproved allegations of

impotency amounts to cruelty.

4. Prakash Kumar Bachlaus v. Smt. Chanchal @

Jaya 4 to contend that on the ground of fraud or on

the ground of mental disorder, decree of annulment

cannot be granted.

5. Lakshmi Ammal v. Alagiriswami Chettiar 5 to

contend that unnecessary delay disentitle the party

seeking relief in view of Section 23 of the Hindu

Marriage Act.

6. A.R.Indira v. N.Kadappan 6 to contend that

improper delay - divorce O.P. is not maintainable in

view of Section 23(1)(d) of the Hindu Marriage Act.

2 Decision of Division Bench of this Court in F.C.A.No.103 of 2016 3 Decision of Delhi High Court in MAT.APP.(F.C.) 178/2016 & CM

4 2007 LawSuit(Raj) 813 5 1975 AIR (Mad) 211 6 Decision of Madras High Court in C.M.S.A.(MD) No.61 of 2011 21 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

7. Mangal Singh v. Saroj Bala 7 to contend that

despite having knowledge, no proceedings initiated

within one year, no medical evidence produced.

8. Sait Tarajee Khimchand v. Yelamarti Satyam8

to contend that mere marking of an exhibit does not

dispense with the proof of documents.

9. LIC of India v. Ram Pal Singh Bisen 9 to contend

that absence of putting their own defence during

cross-examination does not amount to admission in

accordance with Order XII of C.P.C. Mere admission

of a document in evidence does not amount to

proof.

But the facts of the present case are altogether

different.

25. In the light of the aforesaid discussion, it is

relevant to note that the Apex Court in Sirajmohmedkhan

7 2017 (Suppl.) Civil Court Cases 0789 (Decision of Punjab and

Harayana High Court) 8 (1972) 4 SCC 562 9 (2010) 4 SCC 491 22 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

Janmohamadkhan v. Hafizunnisa Yasinkhan 10 held that,

where it is proved to the satisfaction of the court that a

husband is impotent and is unable to discharge his marital

obligations, this would amount to both legal and mental

cruelty which would undoubtedly be a just ground as

contemplated by the aforesaid proviso for the wife's refusal

to live with her husband.

26. The Apex Court in Parveen Mehta v. Inderjit

Mehta 11, the Supreme Court observed as under:

"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 latter 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 behaviour or behavioural pattern by the other. Unlike the case of physical cruelty the 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

10 (1981) 4 SCC 250 11 (2002) 5 SCC 706 23 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

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. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour 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 petition has been subjected to mental cruelty due to conduct of the other."

27. As discussed supra, the appellant-husband has

subjected the wife to mental cruelty towards her wife by

claiming that he sees his office girl in her and would

request sexual favours from his wife whilst under the fit of

imagination purportedly motivated by black magic. This

instance in our view would be a flagrant behaviour towards

a wife who entered into a marital union. Another instance

was evidenced when the respondent got locked out in a

washroom when the child went out to play and the

appellant being unresponsive to any calls, respondent 24 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

stayed in the washroom for an extended period of time

until 21:00 Hours that night.

28. The Apex Court in the case of Dr. N.G. Dastane

v. Mrs. S. Dastane 12 observed in paragraph 57 as under:

"Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfillment."

29. In Rita Nijhawan v. Balakishan Nijhawan 13,

the Delhi High Court while dealing with a case of

annulment of marriage under the Hindu Marriage Act on

the ground of impotency very poignantly and pithly

observed as follows:

"21. Thus the law is well settled that if either of the parties to a marriage being a healthy physical capacity refuses to have sexual intercourse the same would amount to cruelty entitling the other party to a decree. In our opinion it would not make any difference in law whether denial of sexual intercourse is the result of sexual weakness of the respondent disabling him from having a sexual union with the appellant, or it is because of any wilful refusal by the respondent; this is because in either

12 AIR 1975 SC 1534 13 AIR 1973 DELHI 200 25 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

case the result is the same namely frustration and misery to the appellant due to denial of normal sexual life and hence cruelty.

22. ... Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favorable influence on a woman's mind and body, the result being that if she does not get proper sexual satisfaction it will lead to depression and frustration. It has been said that the sexual relations when happy and harmonious vivifies woman's brain, develops her character and trebles her vitality. It must be recognised that nothing is more fatal to marriage than disappointments in sexual intercourse."

30. In Bharat Prasad Gupta v. Asha Devi 14, a

Division Bench of Patna High Court while discussing Rita

Nijhawan (supra 13) opined that if either of the parties to a

marriage being a healthy physical capacity refuses to have

sexual intercourse, the same would amount to cruelty

entitling the other party to a decree. It would not make any

difference in law whether denial of sexual weakness of the

respondent disabling him from having a sexual union with 14 Miscellaneous Appeal No.978 of 2018 (Decision of Patna High

Court) 26 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

the appellant or it is because of any willful refusal by the

respondent.

31. In Srikant Rangacharya Adya vs Anuradha 15,

the Karnataka High Court held as under:

"10. ... There may be cruelty without an intention to injure. Failure to comply with one of the essential obligations of the marital life by the husband would amount to subjecting the wife to cruelty it is one of the essential and principal obligations on the part of the husband to satisfy the sexual urge of his wife which is a natural instinct. Married life without a sexual life will be a curse to the wife thus failure to or inability to or refusal to effectuate the sexual intercourse by the husband without any reason on the part of the wife, would amount to subjecting the wife to cruelty. Although the term "cruelty"

is not defined by the Act and to define the said expression is to limit its application which is not advisable inasmuch as it is not at all possible to comprehend the human conduct and behaviour for all time to come; but it may safely be stated that any conduct of the husband which causes disgrace to the wife or subjects her to a course of annoyance and indignity amounts to legal cruelty....... Against the respondent affecting her womanhood, but as per the evidence on record, which establishes beyond doubt that the appellant has not been able to effectuate sexual intercourse because of his inability and incapacity to do so

15 AIR 1980 KARNATAKA 8 27 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

and as a result of this, the marriage has not been consummated so far. There is no remedy to this malady. It the marital tie is to continue, the wife has to suffer this throughout her life. This is nothing but subjecting her to a constant mental torture, thereby affecting her health. The appellant has failed to discharge the essential marital obligation of providing a sexual union which is a foundation of the marriage."

32. In Samar Ghosh v. Jaya Ghosh 16, the Apex

Court observed that there cannot be any comprehensive

definition of the concept of mental cruelty within which all

kinds of cases of mental cruelty can be covered. The

Hon'ble Court in paragraph 100 has further observed that

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. 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

16 (2007) 4 SCC 511 28 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

the case would be to evaluate it on its peculiar facts and

circumstances while taking aforementioned factors in

consideration.

33. In the realm of matrimonial law, the concept of

cruelty transcends mere intentional harm inflicted by one

spouse upon the other. It encompasses any conduct

deemed so intolerable that it renders the continuation of

the marriage untenable for the aggrieved party. This

standard of cruelty is not contingent upon the presence of

overt malicious intent on the part of the offending spouse.

Even in cases where both spouses exhibit sound physical

and mental health, if the conduct of one proves egregious

enough to render the marriage unendurable for the other,

it constitutes cruelty.

34. Moreover, once acts of cruelty are substantiated

through evidence and examination, the mindset or

intentions of the offending spouse become immaterial.

Whether the conduct was purposefully aimed at causing

harm or arose from a state of indifference, the impact on 29 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

the aggrieved spouse remains of paramount importance.

Consequently, in adjudicating cases of cruelty, the focal

point lies squarely on the effect of the behavior upon the

victimized spouse, rather than the underlying motives

driving such behavior.

35. In Golline v. Gollines 17, it was found that the

husband did little or nothing to help the wife and though

he was incorrigibly and inexcusable lazy. The evidence did

not show any which on his part to harm the wife nor was

he aggressively unkind to her and yet the house of Lords

held that the wife was entitled to a decree on the ground of

cruelty even if the husband may not have intended to be

cruel.

36. Same proposition was reiterated in another case

of House of Lords in Williams v. Willams 18. In that case

Lord Pearce observed as follows:

17 (1963) 2 All ER 966 18 (1963) 2 All ER 994 30 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

"The dissolution or permanent interruption of a union which is in theory life-long and indissoluble, cannot be justified by any way logic but the frailties of humanity produce various situations which demand practical relief and the Divorce Acts owe their origin to a merciful appreciation of that demand. Any extension of the area of relief has always been advocated on the ground that there are situations of hardship that must be alleviated. But in the Divorce Acts there is nothing that suggests an intention to punish."

37. To coerce the respondent into a marital

relationship devoid of sexual intimacy constitutes an act of

cruelty. The respondent has been deprived of the sexual

life, which is one of the essential requirements to lead a

happy married life. From the pleadings it is evidenced that

the respondent tried many a time to have sexual union and

the appellant, though tried many a times, could not

effectuate the sexual union and thereafter, through

sequence of events it was concluded that the appellant was

subjected to fate's misfortune as being diagnosed of

Klinefelter's syndrome. Therefore, it is established in this

case that the failure to lead a sexual life was due to the

inability and incapacity and the sexual weakness of the 31 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

appellant. Whether it is by sexual weakness or by refusal

on the part of the appellant to have sexual intercourse with

the respondent, would not make any difference in law

inasmuch as the result is that the respondent is deprived

of the sexual life due to inability on the part of the

appellant to effectuate the sexual union. The result is that

there is nothing but frustration to the respondent and thus

she has to suffer throughout her life if the marital tie is to

continue. This is nothing but subjecting the respondent to

disgrace and it will have adverse effect upon her mental

condition and thereby it will adversely affect her health.

38. In the light of above discussion, we are of the

opinion that the evidence in this case establishes that the

appellant has treated the respondent after solemnization of

the marriage, with cruelty.

39. Respondent-wife sought enhancement of

permanent alimony to Rs.25,00,000/-. It is pertinent to 32 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

note that in a recent judgment in Rajnesh v. Neha 19, the

Apex Court has discussed about the determinants of

maintenance allowance payable to wife and children. In

this regard, the following observations have been made by

the Apex Court:

"III Criteria for determining quantum of maintenance

(i) The objective of granting interim/permanent alimony is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.

The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependant children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife.

19 2020 SCC OnLine SC 903 33 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

In Manish Jain v. Akanksha Jain 20 this Court held that the financial position of the parents of the applicant-wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the Court should mould the claim for maintenance based on various factors brought before it.

On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications.

(ii) A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of

20 (2017) 15 SCC 801 34 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

living that the applicant was accustomed to in her matrimonial home.

The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.

(iii) Section 23 of HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Sub-section (2) of Section 23 of HAMA provides the following factors which may be taken into consideration: (i) position and status of the parties, (ii) reasonable wants of the claimant, (iii) if the petitioner/claimant is living separately, the justification for the same, (iv) value of the claimant's property and any income derived from such property, (v) income from claimant's own earning or from any other source.

(iv) Section 20(2) of the D.V. Act provides that the monetary relief granted to the aggrieved woman and/or the children must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved woman was accustomed to in her matrimonial home.

(v) The Delhi High Court in Bharat Hedge v Smt. Saroj Hegde 21 laid down the following factors to be considered for determining maintenance:

"1. Status of the parties.

21 (2007) 140 DLT 16

35 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

2. Reasonable wants of the claimant.

3. The independent income and property of the claimant.

4. The number of persons, the non-applicant has to maintain.

5. The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.

6. Non-applicant's liabilities, if any.

7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.

8. Payment capacity of the non-applicant.

9. Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.

10. The non-applicant to defray the cost of litigation.

11. The amount awarded u/s 125 Cr.PC is adjustable against the amount awarded u/s 24 of the Act. 17."

(vi) Apart from the aforesaid factors enumerated hereinabove, certain additional factors would also be relevant for determining the quantum of maintenance payable."

40. According to respondent-wife, appellant-husband

is impotent and he did not participate in sexual intercourse

on the first night of the wedding and also during

honeymoon. Ultimately, on the advice of friends and well-

wishers, she blessed with a baby girl through IVF test tube.

36 KL, J & PSS, J F.C.A.Nos.231 and 239 of 2013

The said fact was also admitted by appellant-husband

during cross-examination. It is also the specific contention

of respondent that appellant never used to spend time with

her and her daughter. He neglected her daughter saying

that she is a test tube baby and she is not his daughter.

She has narrated the aforesaid facts. Even then, nothing