1
Reserved
First Appeal No. 11 of 2009
Smt. Poornima Misra ... Appellant
Versus
Sunil Misra ... Respondent
Connected with
First Appeal No. 10 of 2009
Smt. Poornima Misra ... Appellant
Versus
Sunil Misra ... Respondent
-------------
Hon'ble Rajiv Sharma, J.
Hon’ble Dr. Satish Chandra, J.
Heard learned Counsel for the parties.
These appeals have been preferred by the appellant against
the order dated 6.1.2009 whereby the application filed by the
appellant under Section 9 of the Hindu Marriage Act [in short it
has been referred to as ‘Act’] was rejected and the Suit of the
respondent-plaintiff under Section 13 of the Act was decreed.
In short, the facts, as comes out from the record, are that
the marriage of Smt. Poornima Misra was solemnized with Sunil
Misra (respondent) on 29.1.2001 according to Hindu Vedic Rites at
Lucknow. After the marriage, the wife performed all marital
obligation as wife and gave due respect to the in-laws. In the
marriage, the appellant’s father gave valuable gifts and jewellery
including one Maruti Car. But their in-laws were demanding more
dowry and started ill-treating the appellant. On account of the
maltreatment of in-laws, the appellant was compelled to leave
her matrimonial house. When the appellant was living with her
parents, the husband filed a Suit under Section 9 of the Act for
restitution of conjugal rights. After expiry of one year, the said
Suit was withdrawn and a petition for divorce under Section 13 of
the Act on the ground of cruelty, was moved. In this petition, the
respondent also averred that the appellant pressurized the
respondent to live separately from her parents and started
neglecting the parents. The appellant also terminated the
pregnancy to get herself free from the marital obligation. The
2
application for divorce was contested by the appellant and the
allegations were denied. The appellant-Poornima Misra moved an
application for maintenance under Section 24 of the Act and also
filed an application for restitution of conjugal rights under Section
9 of the Act. Both the petitions were contested by the respondent-
husband by leading documentary evidence, such as, F.I.R.,
statement of witnesses and charge-sheet. The appellant in
support of her assertions also adduced oral and documentary
evidence.
The Family Court, after analyzing the materials on record,
the statement of witnesses and numerous case laws, passed the
detailed order rejecting the application under Section 9 of the Act
and granted the decree of divorce.
Hence these appeals.
At the time of entertaining the appeal, this Court stayed the
operation of the impugned judgments dated 6.1.2009, but
provided that the parties shall appear in person so that the
dispute may be settled amicably. From the order sheet, it comes
that the parties did appear before the Court, but amicable
settlement of the dispute failed.
On number of occasions, the parties appeared and on one
date, as there was no possibility of amicable settlement, the Court
suggested the respondent to give Rs.10 lakhs as permanent
alimony to settle the dispute. The husband was ready to pay Rs.7
lakhs and the Counsel for the appellant prayed for time for
settlement, which was allowed. When the case again came up, the
appellant showed reluctance and the Counsel stated that as the
appellant is ready to live with her husband, as such, she is not
interested in accepting the permanent alimony and insisted for
deciding the case on merits.
Learned Counsel for the appellant has contended that the
Family Court committed an error in allowing the Suit of
respondent under Section 13 of the Act and rejecting the
application of the appellant under Section 9 of the Act without
recording any specific finding of cruelty by the appellant and also
3
overlooked that irretrievable breakdown of a marriage is not a
ground of divorce. The trial against the respondent under Section
498-A I.P.C. is still pending and they have yet not been acquitted.
He further submitted that the appellant has not left the
matrimonial house on her own wish or consent but the members
of the family of the respondents forced her to leave the
matrimonial house. The appellant is still ready to live with the
respondent-husband. The Court below also erred and failed to
appreciate that the sanctity of the marriage cannot be left at the
wish of one annoying spouse. In order to show that the impugned
order is erroneous, reliance has been placed upon the cases of
Smt. Beena Versus Suresh Vir Tomer [1995 (25) ALR 277]
and Savitri Pandey Versus Prem Chandra Pandey [(2002) 2
SCC 73].
He further submitted that the wife has been made to suffer
great agony and pain as the members of the family of the
respondents had not only ill-treated her but also manhandled
which resulted in miscarriage of pregnancy. Despite all these
conducts and misbehaviour of the respondent, the appellant is
ready to forgive all these things and wants to live with her
husband.
On behalf of the respondent, it has been submitted that the
Family Court has passed the just and reasonable order after
appreciating the materials on record. The Family Court rightly
rejected the application under Section 9 of the Act and allowed
the application under Section 13 of the Act as it was satisfied that
the respondent has been able to establish cruelty by the
appellant. He further submitted that the parties to the appeal are
living separately for the last nine years and there is no chance of
reconciliation and the marriage has broken down irretrievably. He
further submitted that on account of false report lodged by the
appellant, the respondent and his father were remained in jail for
twelve days which lowered their image in the society.
In order to establish that it is virtually impossible for the
parties to live together and the decree of divorce is the only
recourse left and to justify that the order of the Family Court is
4
perfectly legal, reliance has been placed upon the cases of Smt.
Meena Singh Versus Mithlesh Kumar Singh [(2009 (3) ALJ
303], Satish Sitole Versus Ganga (Smt.) [(2008) 7 SCC
734], Smt. Mayadevi Versus Jagdish Prasad [2007 AIR
SCW 1803], Sujata Uday Patil Versus Uday Madhukar Pathil
[2007 AIR SCW 896], Naveen Kohli Versus Neelu Kholi
[(2006) 4 SCC 558], Durga Prasanna Tripathi Versus
Arundhati Tripathi [(2005) 7 SCC 353], Jayachandra
Versus Aneel Kaur [AIR 2005 SC 534], Poonam Gupta
Versus Ghanshyam Gupta [AIR 2003 (All) 51], G. V. N.
Kameshwar Rao Versus G. Jabilli [(2002) 2 SCC 296],
Praveen Mehta Versus Inderjit Mehta [11 (2002) DMC 205
(SC)] and Smt. Kalpana Srivastava Versus Surendra nath
[AIR 1985 (All) 253].
In Smt. Meena Singh Versus Mithlesh Kumar Singh
(supra), the appeal was preferred by the wife against the decree
of divorce granted on the ground of mental cruelty. The Division
Bench of this Court while confirming the decree of divorce granted
permanent alimony and observed as under:-
“11. In view of the aforesaid decisions, to end the
miseries of the parties and to allow them to
henceforth live a happy and peaceful life by bringing
to an end the litigation appear to be a more sound,
reasonable and practical decision. The parties are
living separately for many years and there is no
possibility of their uniting. Thus, for all practical
purposes the marriage is completely dead. In view of
the above and the allegations/counter-allegations
levelled against each other with regard to their
character the element of cruelty on part of both of
them is also inherent. …”
In G. V. N. Kameshwar Rao Versus G. Jabilli (supra),
the Apex Court observed that the mental cruelty faced by the
appellant is to be assessed having regard to his status in life and
his educational background and the environment in which he
lived.
The Apex Court in the case of Satish Sitole v. Ganga
(supra) ruled and laid down that the living of parties to a marriage
separately for a long time, making acrimonious allegations against
5
each other amounts to cruelty and continuance of such marriage
is further act of cruelty.
The expression of ‘cruelty’ in detail has been considered in
Smt. Mayadevi Versus Jagdish Prasad (supra) by the Hon’ble
Supreme Court. In paragraph 9 of the judgment, the Supreme
Court observed as under:-
“…. The concept, a proof of 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 complaint spouse because of
the acts or omissions of the other. Cruelty may be
physical or corporal 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.”
The Apex Court in another case, namely, Sujata Uday
Patil v. Uday Madhukar Patil (supra) again examined the
cruelty and the kind of degree of cruelty which may amount to a
matrimonial offence. The Supreme Court observed that the cruelty
may be inferred from the facts and matrimonial relation of the
parties and interaction in their daily life disclosed by the evidence
and inference on the said point can only be drawn after all the
facts have been taken into consideration. Where there is proof of
a deliberate course of conduct on the part of one, intended to hurt
and humiliate the other spouse, and such a conduct is persisted,
cruelty can easily be inferred.
In para 72 of the judgment of the case of Naveen Kohli
Versus Neelu Kohli (supra), the Apex Court observed that the
legislature must consider irretrievable breakdown of marriage as a
ground for grant of divorce under the Hindu Marriage Act. The
Apex Court referred the 71st report of Law Commission of India
wherein it was mentioned that restricting the ground of divorce to
a particular offence or matrimonial disability, causes injustice in
6
those cases where the situation is such that although none of the
parties is at fault, or the fault is of such a nature that the parties
to the marriage do not want to divulge it, yet there has arisen a
situation in which the marriage cannot be worked. The marriage
has all the external appearances of marriage, but none of the
reality. As is often put pithily, the marriage is merely a shell out of
which the substance is gone. In such circumstances, it is stated,
there is hardly any utility in maintaining the marriage as a facade,
when the emotional and other bounds which are the essence of
marriage have disappeared.
Following the principle of ‘live and let live’ and the
precedent laid down by the Apex Court, it is desirable and
expedient in the interest of justice to uphold the decree of divorce
passed by the Family Court below and to dismiss the appeal.
Matrimonial disputes have to be decided by Courts in a
pragmatic manner keeping in view the ground realities. For this
purpose a host of facts have to be taken into consideration and
the most important being whether the marriage can be saved and
the husband and wife can live together happily and maintain a
proper atmosphere at home for the upbringing of their offsprings.
We have been principally impressed by the consideration
that once the marriage has broken down beyond repair, it would
be unrealistic for the law not to take notice of that fact, and it
would be harmful to society and injurious to the interests of the
parties. Where there has been a long period of continuous
separation, it may fairly be surmised 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 the instant case, the appellant could have suffered
traumatic experience because of the police complaints on account
of which he and his father had to remain in jail as a consequence
whereof there was loss of reputation and prestige in the society.
Just after the marriage, the appellant started complaining against
7
the parents and brother Arun Kumar Misra, who was mentally
retarded with the sole object to get separate living from parents.
Not accepting the wish of the appellant, he earned annoyance and
the wife left the matrimonial house without any information. In
the application for divorce, the husband has stated that on
21.4.2001, he received a telephonic call from her mother-in-law
that the appellant is ill and is admitted in Vivekanand Polyclinic.
When the respondent alongwith his father went there, they came
to know that pregnancy of the first child has been terminated. It
is in this background that the respondent filed an application for
divorce on the ground of cruelty alleging that because of the acts
of cruelty on several occasions including the false criminal report
perpetuated by the appellant, the respondent-husband was under
apprehension that it would not be desirable and safe to stay with
the appellant and to continue their marital relationship.
The trial Court has examined the circumstances and the
background in order to reach the conclusion, whether the conduct
complained of amounts to cruelty in the matrimonial law. The
instances of the circumstances and the cruelty highlighted by the
trial Court clearly proves that the husband was subjected to
mental cruelty. At page 32 of the judgment, the Family Court
observed as under:-
उललेखनीय है िक अनय पक के दारा दािखल िकए गए अिभलेखीय
साकय एव पतावली का समपूणर रप से िवशलेषण एव मूलयाकन करने से यह
सपष होता है िक पितवािदनी ने यह सकलप ले िलया है िक वह वादी के जीवन
को भी नारकीय जीवन बनाने के िलए ही वेदना मे जीवन वयतीत करगे ी । इस
पकार के अिडंग तथा कठोर दिषकोण से इस वाद के तथयो तथा पसंग मे यह
सनदेह होना सवभािवक है िक पितवािदनी वादी के साथ मानिसक कूरता का
वयवहार करने पर अड़ी हु ई है, जब िक यह सपष हो जाता है िक पककारा के
मधय िववाह अपितषापय रप से भगं हो गया है एवं उनके साथ रहने या पुनः
एक होने की कोई समभावना नही है ।
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.
8
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 hyper-sensitive approach would be counter-
productive to the institution of marriage. The Courts do not have
to deal with ideal husband and ideal wives. It has to deal with
particular man and women before it. The ideal couple or a mere
ideal one will probably have no occasion to go to Matrimonial
Court.
In the instant case, the Family Court has examined in detail
the conduct of the appellant. On one hand, she stated that she is
not pursuing the criminal case under Section 498-A I.P.C. and on
the other hand, she had got her statement recorded before the
Court. She also filed criminal revision, lodged criminal case under
Section 406 I.P.C. against the respondent and his father. The
father of the appellant had also filed a complaint case under
Section 420 I.P.C. against the respondent and his father. Not only
this, the complaints were also made to the authorities of Sahara
India, where the respondent was working. On account of various
complaints, the respondent had to resign from the Sahara India.
The Family Court has examined all these facts and passed a
detailed speaking order before coming to the conclusion that the
marriage bond has been broken down beyond the hope of repair
and the marriage is only for the namesake.
In view of the fact that the parties are living separately for
more than nine years and a large number of criminal and civil
proceedings have been initiated against the respondent and some
proceedings have been initiated by the respondent against the
appellant, the Family Court rightly came to the conclusion that the
matrimonial bond between the parties is beyond repair. The
marriage between the parties is only in name.
Once the parties have separated and the separation has
continued for a sufficient length of time and one of them has
presented a petition for divorce, it can well be presumed that the
marriage has broken down. The Court seriously made an
9
endeavour to reconcile the parties and we wanted to put a quietus
to all litigations between the parties and not to leave any room for
future litigations by granting Rs.7 lakhs as permanent alimony,
but it was refused by the appellant. Therefore, it appears that the
appellant does not want divorce by mutual consent.
From the analysis and evaluation of the entire evidence, it is
clear that the appellant has resolved to live in agony only to make
life a miserable hell for the respondent as well. This type of
adamant and callous attitude, in the context of the facts of this
case, leaves no manner of doubt in our minds that the appellant is
bent upon treating the respondent with mental cruelty. The
marriage has been wrecked beyond the hope of salvage and there
is no chance of their coming together. Therefore, the case law
relied upon by the appellant and the assertion that the respondent
shall not be allowed to take advance of his own faults and the
decree for dissolution of the marriage shall be denied to the
respondent is of no help to the appellant.
In these circumstances, we are of the view that when the
breakdown is irreparable, then divorce should not be withheld.
The consequences of preservation in law of the unworkable
marriage which has long ceased to be effective are abound to be a
source of greater misery for the parties.
For the reasons aforesaid, the decree of divorce passed by
the Family Court is upheld. Both the appeals are hereby
dismissed. In the facts and circumstances of the case, the parties
shall bear their own costs.
HM/- January 18 , 2010