{"id":56881,"date":"2008-12-23T00:00:00","date_gmt":"2008-12-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajendra-krishna-agrawal-vs-smt-sandhya-rani-on-23-december-2008"},"modified":"2018-05-05T05:07:08","modified_gmt":"2018-05-04T23:37:08","slug":"rajendra-krishna-agrawal-vs-smt-sandhya-rani-on-23-december-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajendra-krishna-agrawal-vs-smt-sandhya-rani-on-23-december-2008","title":{"rendered":"Rajendra Krishna Agrawal vs Smt.Sandhya Rani on 23 December, 2008"},"content":{"rendered":"
Patna High Court<\/div>\n
Rajendra Krishna Agrawal vs Smt.Sandhya Rani on 23 December, 2008<\/div>\n
Author: Ravi Ranjan<\/div>\n
                    Appeal from the Original Decree No.449 OF 1998\n                                          -------\n<\/pre>\n
                   Against the judgment and decree dated 27th of June,1998
\n                   passed by Smt. Rekha Kumari, Principal Judge, Family
\n                   Copurt,Patna in Matrimonial (Divorce) Case No. 122 of
\n                   1994.\n<\/p>\n
        RAJENDRA KRISHNA AGRAWAL, SON OF SHRI BECHAN LAL AGRAWAL,
\n        RESIDENT OF VILLIAGE MAINPURA, P.S. PATLIPUTRA, DISTRICT PATNA\n<\/p>\n
                                                                  ——-APPELLANT.\n<\/p>\n
                                          Versus
\n        SMT.SANDHYA RANI, WIFE OF MR. RAJENDRA KRISHNA AGRAWAL, D\/O MR.
\n        VITHAL DAS AGRAWAL, RESIDENT OF OF KARMAN TOLA, FIRST FLOOR OF
\n        M\/S. AGRAWAL MACHINERIES, P.S. NAWADAH, ARRAH, DISTRICT BHOJPUR.\n<\/p>\n
                                              ——– OPPOSITE PARTY-RESPONDENT.\n<\/p>\n
                                        ———–\n<\/p>\n
                   For the Appellant : Mr. Sandeep Kumar, Advocate.\n<\/p>\n
                   For the Respondent:… ………………………None\n<\/p>\n
                                       ————–\n<\/p>\n
                                      PRESENT<\/p>\n
                     HON’BLE THE ACTING CHIEF JUSTICE
\n                    THE HON’BLE DR. JUSTICE RAVI RANJAN<\/p>\n
DR . RANJAN, J              Appellant- husband, being aggrieved by the judgment and decree<\/p>\n
                  dated 27th of June 1998, passed by Smt. Rekha Kumari, Principal Judge,<\/p>\n
                  Family Court, Patna in matrimonial case no. 122 of 1994 dismissing the<\/p>\n
                  petition under section 13 of Hindu Marriage Act, 1955 , has preferred this<\/p>\n
                  appeal.\n<\/p>\n
                            The appellant-husband filed Matrimonial Case no.122 of 1994<\/p>\n
                  under section 13 of the Hindu Marriage Act, 1955 for dissolution of his<\/p>\n
                  marriage with the respondent by a decree of divorce. According to the<\/p>\n
                  husband, he was married with the respondent on 12.12.1990 in accordance<\/p>\n
                  with the Hindu rites and customs. However, from the beginning itself the<\/p>\n
                  relationship between the husband and wife remained strained and the wife<\/p>\n
                  only occasionally lived in her matrimonial house or with the husband. Her<\/p>\n
                  behaviour with the appellant-husband as well as his parents was indecent to
\n                            -2-<\/span><\/p>\n
the extent that appellant\u201fs domestic life became very tense and unpleasant.<\/p>\n
According to the appellant-husband, the respondent never paid due regards<\/p>\n
to the appellant\u201fs parents and used to misbehave with the family members<\/p>\n
of the appellant . That apart she also never shared any domestic work of the<\/p>\n
family. Further allegation by the petitioner-appellant is that the wife is elder<\/p>\n
by one year and this fact had been suppressed by her parents at the time of<\/p>\n
negotiation of the marriage.      Allegation has also been made upon the<\/p>\n
respondent having affairs with a person at her native home. However, from<\/p>\n
plain reading of the petition for divorce it becomes apparent that the<\/p>\n
petitioner-appellant has mainly centered his allegation towards the fact that<\/p>\n
the respondent has treated him with cruelty to the extent that his health<\/p>\n
broke down, his studies were disrupted and at the end he had to leave his job<\/p>\n
also. Case of the appellant-husband is that there was ego problem with the<\/p>\n
respondent also as she used to consider herself superior than the appellant.<\/p>\n
She used to pass    satirical and taunting remarks on the appellant more so<\/p>\n
after he became unemployed on loosing his job due to her cruel behaviour.<\/p>\n
According to the appellant, the respondent considered herself as very pretty<\/p>\n
and often laughed at appellant\u201fs complexion touching not only the feelings<\/p>\n
of the appellant but of all of his family members and making the life of the<\/p>\n
appellant bitter and meaningless. The relationship between the husband and<\/p>\n
wife became so sour and bitter that the wife herself became determined to<\/p>\n
get rid of the husband . According to the appellant at one point of time she<\/p>\n
drafted a letter addressing the Chief Justice, Patna High Court but the same<\/p>\n
was not sent. Subsequently a joint petition for grant of divorce by mutual<\/p>\n
consent was also drafted at instance of the respondent and signed by both
\n                            -3-<\/span><\/p>\n
parties. But due to intervention of the well wishers of the parties the same<\/p>\n
was not filed in the court specially as mother-in-law of the appellant assured<\/p>\n
that her daughter would mend her ways and behaviour.           However, the<\/p>\n
respondent continued with her harsh and rude behaviour and continued to<\/p>\n
pass sarcastic remarks against the appellant and when the appellant<\/p>\n
informed this to his in-laws they instead of advising the respondent to mend<\/p>\n
her ways, gave wrong and false information to the local police which came<\/p>\n
to the house of the appellant and the respondent left her matrimonial house<\/p>\n
with the police. The father of the respondent took her thereafter to Ara<\/p>\n
causing insult and embarrassment to the appellant and his family. She again<\/p>\n
came back on 30.12.1993 and took away all her belongings as she and her<\/p>\n
parents were determined for final desertion and ruining the peace, prestige<\/p>\n
and life of the appellant. It is claimed by the appellant in his pleading that<\/p>\n
after 30.12.1993 the husband and wife never met each other. According to<\/p>\n
him the relationship between them has become so tense that there was no<\/p>\n
hope for reconciliation.\n<\/p>\n
          The Opposite Party- respondent (wife) rebutted the aforesaid<\/p>\n
allegations by filing written statement. According to her, both the appellant<\/p>\n
and the respondent used to spend happy marital life at Delhi where the<\/p>\n
appellant was employed as an engineer in the Oriental Bank of Commerce,<\/p>\n
Delhi. The petitioner-appellant used to visit her when she stayed at her<\/p>\n
father\u201fs place at Ara. She used to stay along with her parents at Ara and<\/p>\n
Patna without any resentment or objection. According to her, when she was<\/p>\n
at her in-laws house at Patna, some time in 1993, she received message from<\/p>\n
the petitioner-appellant that he had left his job at Delhi and is returning
\n                            -4-<\/span><\/p>\n
back to Patna which he ultimately did. This had a great impact on the<\/p>\n
marital    relationship between the appellant and the respondent.        Soon<\/p>\n
thereafter, the in-laws and the appellant started ill-treating the respondent.<\/p>\n
The reason, according to the respondent, was that the appellant and the in-<\/p>\n
laws thought that the     marriage with the respondent did not bring good<\/p>\n
fortune for the family and the petitioner. There was demand of few lacs of<\/p>\n
rupees for starting business also which the parents of the respondent could<\/p>\n
not meet. This aggravated the matter and as a result of which maltreatment<\/p>\n
of respondent started in a vigorous manner. The wife claims that she was<\/p>\n
forced to sign on blank papers which was later utilised for the purposes of<\/p>\n
petition of mutual divorce but the same was not acted upon due to<\/p>\n
intervention of her parents.     Further a   complaint was lodged with the<\/p>\n
Superintendent of Police Patna by the parents of the respondent and<\/p>\n
eventually she was rescued from the clutches of the petitioner-appellant and<\/p>\n
her in-laws. She claims that her behaviour and conduct was not the root<\/p>\n
cause but it is the petitioner-appellant\u201fs own conduct which compelled the<\/p>\n
respondent to live separately. She, in her written statement, has shown<\/p>\n
willingness to reside and live with her husband. However, she agrees that<\/p>\n
with the passage of time some ego problem had cropped up between them.<\/p>\n
           On the pleadings of parties the trial court framed the following<\/p>\n
issues :\n<\/p>\n
           (1) Whether the case as framed maintainable?\n<\/p><\/blockquote>\n
           (2) Whether the petitioner has valid cause of action for the case?\n<\/p><\/blockquote>\n
           (3) Whether the respondent treated the petitioner with cruelty?\n<\/p><\/blockquote>\n
           (4) Whether the respondent deserted the petitioner for a
\n                            -5-<\/span><\/p>\n
              continuous period of not less than two years immediately<\/p>\n
              preceding the presentation of the petition?\n<\/p><\/blockquote>\n
          (5) Whether the petitioner is entitled to get a decree of divorce,<\/p>\n
              as prayed for?\n<\/p><\/blockquote>\n
          (6) To what other relief or reliefs the petitioner is entitled?\n<\/p><\/blockquote>\n
               The petitioner-appellant has examined altogether three<\/p>\n
witnesses. P.W.1 is the petitioner-appellant himself, P.W.2 Prem Kumari<\/p>\n
and P.W.3 Bechan Lal Agrawal are his mother and father respectively.<\/p><\/blockquote>\n
               Opposite Party-respondent has examined altogether four<\/p>\n
witnesses among whom O.P.W. 4 is respondent herself, O.P.W.1 Pramod<\/p>\n
Kumar Agrawal and O.P.W.2 Prasun Ranjan are her brother and brother-in-<\/p>\n
law respectively whereas O.P.W.3 Sriniwas Jain is also one of her relatives.<\/p>\n
               The petitioner-appellant, as apparent from his pleading and<\/p>\n
evidence, has mainly centered his allegation towards the cruel treatment by<\/p>\n
his wife right after solemnization of marriage although he has also taken<\/p>\n
ground of desertion by the wife.        The trial court, after analysing the<\/p>\n
pleadings and evidence led on behalf of parties, has come to the conclusion<\/p>\n
that the evidence adduced by the respondent is definitely superior in nature,<\/p>\n
believable and supported with circumstances whereas petitioner-appellant<\/p>\n
has not been able to prove that respondent treated him with cruelty. It has<\/p>\n
also been found that since the respondent was recovered with the help of<\/p>\n
police on 29.12.1993 and this case has been filed on 8.9.1994, therefore,<\/p>\n
there is no question of desertion by wife for continuous period of two years<\/p>\n
or more immediately preceding the presentation of the petition as per the<\/p>\n
requirement under section 13 (1) (i-b) of the Hindu Marriage Act 1955
\n                             -6-<\/span><\/p>\n
(hereinafter referred to as the Act). In view of the aforesaid finding the trial<\/p>\n
court dismissed the case of the petitioner-appellant on contest with costs.<\/p>\n
                Heard Mr. Sandeep Kumar for the petitioner-appellant<\/p>\n
whereas nobody has appeared on behalf of the respondent. In fact this court<\/p>\n
by order dated 7.7.1999 directed the appellant to take steps for publication of<\/p>\n
notice in daily Hindi News Paper under the provision of Order V Rule 20<\/p>\n
of the Civil Procedure Code in the limitation matter and subsequently by<\/p>\n
order dated 27.9.2002 on admission of the appeal for its final hearing.<\/p>\n
Despite valid service      in the aforesaid manner the respondent is not<\/p>\n
represented at the time of hearing of this appeal and as such the same had to<\/p>\n
be heard and disposed of in her absence.\n<\/p>\n
                Learned counsel for the appellant submits that the finding of<\/p>\n
the trial court on cruelty is erroneous as it has not appreciated the evidence<\/p>\n
led by the petitioner-appellant in the right perspective. By way of alternative<\/p>\n
submission it has been submitted by him that after the wife left her<\/p>\n
matrimonial house on 29.12.1993 with the help of police she never came<\/p>\n
back to the house and all efforts for reconciliation between the parties have<\/p>\n
failed. Even after dismissal of the suit in 1998, though nearly ten years have<\/p>\n
passed, there has been no contact between the husband and wife at all. The<\/p>\n
wife has chose not even to appear in this appeal also. In the aforesaid facts<\/p>\n
and circumstances it is submitted on behalf of the appellant that the marriage<\/p>\n
has irretrievably broken down and non grant of divorce will be meaningless<\/p>\n
and in fact will ruin future aspect of both the parties.<\/p>\n
                Firstly, it would be appropriate to examine the case for<\/p>\n
dissolution of marriage on the ground of cruelty by the husband. Although
\n                            -7-<\/span><\/p>\n
cruelty has not been defined in the Act and there cannot be any straight<\/p>\n
jacket formulae for defining it, it can safely be inferred that cruelty includes<\/p>\n
both the cases of physical as also the mental cruelty. The Apex Court in<\/p>\n
Praveen Mehta Vs. Inderjit Mehta reported in 2003 (1) B.L.J.633 has<\/p>\n
analysed the spectrum and amplitude of cruelty in depth.              It would<\/p>\n
appropriate to quote the relevant passage of the aforesaid decision of the<\/p>\n
Supreme Court which is as under;\n<\/p>\n
                                ” 14. As noted earlier, the learned
\n                Single Judge granted the respondent\u201fs prayer for
\n                dissolution of the marriage on the ground of \u201ecruelty\u201f.
\n                Therefore, the question arises whether in the facts and
\n                circumstances of the case, a case for divorce under
\n                Section 13(1)(ia) of the Hindu Marriage Act 1955 (for
\n                short\u201f the Act\u201f) has been made out . The answer to this
\n                question depends on determination of \u201e the question
\n                formulated earlier. In Section 13(1) it is laid down
\n                that:\n<\/p><\/blockquote>\n
                                “Divorce-(1) Any marriage solemnized,
\n                whether before or after the commencement of this Act,
\n                may on a petition presented by either the husband or the
\n                wife be dissolved by a decree of divorce on the ground
\n                that the other party-\n<\/p><\/blockquote>\n
                                xxx     xxx       xxx
\n                                (ia) has after the solemnization of the
\n                marriage, treated the petitioners with cruelty.”\n<\/p><\/blockquote>\n
                                Under the Statutory provision cruelty
\n                includes both physical and mental cruelty. The legal
\n                conception of cruelty and the kind of degree of cruelty
\n                necessary to amount to a matrimonial offence has not
\n                been defined under the Act. Probably, the legislature
\n                has advisedly refrained from making any attempt at
\n                giving a comprehensive definition of the expression
\n                that may cover all cases, realizing the danger in making
\n                such attempt the accepted legal meaning in England as
\n                also in India of this expression, which is rather difficult
\n                to define, had been conduct of such character as to
\n                have caused danger to life, limb or health, (bodily or
\n                mental) or as to give rise to a reasonable apprehension
\n                of such danger Russel V Russel, (1897) AC 395, and
\n                Mulla Hindu Law, 17th Edition, Volume II page 87.
\n                The provision in clause (ia) of Section 13 (1), which
\n                was introduced by the marriage Laws (Amendment)
\n                Act 68 of 1976 simply states that \u201etreated the petitioner
\n                with cruelty\u201f. The object it would seem was to give a
\n                              -8-<\/span><\/p>\n
                  definition exclusive or inclusive which will amply meet
\n                  every particular act or conduct and not fail in some
\n                  circumstances. By the amendment the legislature must,
\n                  therefore, be understood to have left to the Courts to
\n                  determine on the facts and circumstances of each case
\n                  whether the conduct amounts to cruelty. This is just as
\n                  well since actions of men are so diverse and infinite that
\n                  it is almost impossible to expect a general definition
\n                  which could be exhaustive and not fail in some cases.
\n                  It seems permissible, therefore, to enter a caveat against
\n                  any judicial attempt in that direction (Mulla Hiidu Law,
\n                  17th Edition, Volume II, page 87).”<\/p><\/blockquote>\n
                  On further analysis of the various decisions the Supreme<\/p>\n
Court in its aforesaid decision has observed that it was formerly thought that<\/p>\n
actual physical harm or reasonable apprehension of it was the prime<\/p>\n
ingredient of this matrimonial offence. However, that doctrine now stands<\/p>\n
repudiated and the recent and modern view is that mental cruelty can cause<\/p>\n
even more grievous injury and create in the mind of the injured spouse<\/p>\n
reasonable apprehension that it will be harmful or unsafe to live with the<\/p>\n
other party. In fact the principle that cruelty may be inferred from the whole<\/p>\n
facts and matrimonial relations of the parties including interaction in their<\/p>\n
daily life as disclosed by evidence is of greather significance in the case of<\/p>\n
mental cruelty.\n<\/p>\n
                  Further, while dealing with the requirement of the evidence<\/p>\n
for proving mental cruelty the Apex Court, in the aforesaid decision, has<\/p>\n
come to the conclusion that the approach should be to take a cumulative<\/p>\n
effect of the facts and circumstances emerging from the evidence on record<\/p>\n
and then draw a fair inference whether the petitioner in the divorce petition<\/p>\n
has been subjected to mental cruelty due to the conduct of the other. The<\/p>\n
relevant passage to that effect is as under;\n<\/p>\n
                  ” 21. Cruelty for the purpose of Section 13 (1) (ia) is to
\n                  be taken as a behaviour by one spouse towards the other
\n                            -9-<\/span><\/p>\n
               which causes reasonable apprehension in the mind of the
\n               latter that it is not safe for him or her to continue the
\n               matrimonial relationship with the other. Mental cruelty is
\n               a state of mind and feeling with one of the spouses due to
\n               the behaviour or behavioral pattern by the other. Unlike
\n               the case of physical cruelty, the metal cruelty is difficult
\n               to establish by direct evidence. It is necessarily a matter
\n               of inference to be drawn from the facts and circumstances
\n               of the case. A feeling of anguish, disappointment and
\n               frustration in one spouse caused by the conduct of the
\n               other can only be appreciated on assessing the attending
\n               facts and circumstances in which the two partners of
\n               matrimonial life hav been living. The inference has to be
\n               drawn from the attending facts and circumstances taken
\n               cumulatively. In case of mental cruelty it will not be a
\n               correct approach to take an instance of misbehaviour in
\n               isolation and then pose the question whether such
\n               behaviour is sufficient by itself to cause mental cruelty.
\n               The approach should be to take the cumulative effect of
\n               the facts and circumstances emerging from the evidence
\n               on record and then draw a fair inference whether the
\n               petitioner in the divorce petitioner has been subjected to
\n               mental cruelty due to the conduct of the other. “<\/p><\/blockquote>\n
               The Supreme Court in Samar Ghosh Vrs. Jaya Ghosh<\/p>\n
reported in (2007) 4 SCC 511 has examined mental cruelty in depth as a<\/p>\n
ground of divorce. It has considered the definitions of cruelty, examined<\/p>\n
earlier decisions of the Apex Court as well as English cases, American cases,<\/p>\n
Canadian cases, Australian cases and also the 71 st report of Law<\/p>\n
Commission of India in the aforesaid context. While dealing with the matter,<\/p>\n
it had examined the various definitions and concept of cruelty. It will be apt<\/p>\n
to refer few passages of the aforesaid decision in this regard which are as<\/p>\n
under:-\n<\/p>\n
               ” 39. Shorter Oxford Dictionary defines “cruelty” as
\n               “the quality of being cruel; disposition of inflicting
\n               suffering; delight in or indifference to another\u201fs pain;
\n               mercilessness; hard-heartedness”.\n<\/p><\/blockquote>\n
               40. The term “mental cruelty” has been defined in
\n               Black\u201fs Law Dictionary (8th Edn., 2004) as under:
\n               “Mental cruelty. _ As a ground for divorce, one
\n               spouse\u201fs course of conduct (not involving actual
\n               violence) that creates such anguish that it in dangers the\n<\/p><\/blockquote>\n
                          – 10 –\n<\/p><\/blockquote>\n
              life, physical health, or mental health of the other
\n              spouse”.\n<\/p><\/blockquote>\n
              41. The concept of cruelty has been summarized in
\n              Halsbury\u201fs Laws of England (Vol. 13, 4th Edn., para
\n              1269) as under:\n<\/p><\/blockquote>\n
              ” The general rule in all cases of cruelty is that the
\n              entire matrimonial relationship must be considered, and
\n              that rule is of special value when the cruelty consists
\n              not of violent acts but of injurious reproaches,
\n              complaints, accusations or taunts. In cases where no
\n              violence is averred, it is undesirable to consider judicial
\n              pronouncements with a view to creating certain
\n              categories of acts or conduct as having or lacking the
\n              nature or quality which renders them capable or
\n              incapable in all circumstances of amounting to cruelty;
\n              for it is the effect of the conduct rather than its nature
\n              which is of paramount importance in assessing a
\n              complaint of cruelty. Whether one spouse has been
\n              guilty of cruelty to the other is essentially a question of
\n              fact and previously decided cases have little, if any,
\n              value. The court should bear in mind the physical and
\n              mental condition of the parties as well as their social
\n              status, and should consider the impact of the personality
\n              and conduct of one spouse on the mind of the other,
\n              weighing all incidents and quarrels between the spouses
\n              from that point of view; further, the conduct alleged
\n              must be examined in the light of the complainant\u201fs
\n              capacity for endurance and the extent to which that
\n              capacity is known to the other spouse. Malevolent
\n              intention is not essential to cruelty but it is an important
\n              element where it exists.”\n<\/p><\/blockquote>\n
              42. In 24 American Jurisprudence 2d, the term
\n              “mental cruelty” has been defined as under:
\n              “Mental cruelty as a course of unprovoked conduct
\n              toward one\u201fs spouse which causes embarrassment,
\n              humiliation, and anguish so as to render the spouse\u201fs
\n              life miserable and unendurable. The plaintiff must show
\n              a course of conduct on the part of the defendant which
\n              so endangers the physical or mental health of the
\n              plaintiff as to render continued cohabitation unsafe or
\n              improper, although the plaintiff need not establish
\n              actual instances of physical abuse”.\n<\/p><\/blockquote>\n
                 That apart cruelty has also been defined in Merriame-\n<\/p><\/blockquote>\n
Webster\u201fs Collegiate dictionary included in Encyclopaedia of Britannica,<\/p>\n
Delux Edition 2004 on CD-ROM as follows:-\n<\/p>\n
              \"1. xx     xx            xx          xx\n              2. xx      xx            xx         xx\n                           - 11 -\n\n\n\n\n<\/pre>\n
               3: marital conduct held (as in a divorce action) to endanger
\n               life or health or to cause mental suffering or fear”.<\/p>\n
               Word “cruelty” (matrimonial cruelty) has been dealt with in<\/p>\n
Stroud\u201fs Judicial Dictionary of Words and Phrases, Fourth Edition. It would<\/p>\n
be apt to quote relevant passage therefrom:\n<\/p>\n
               “1. CRUELTY. xx                  xx           xx            xx\n<\/p>\n
               2. Referring firstly and chiefly to Evans v. Evans (supra) but
\n                  also on a full review of the subsequent cases, Lopes and
\n                  Lindley L.JJ. in Russell v. Russell [1895] P. 315 (affirmed
\n                  in H.L. [1897] A.C. 395), defined matrimonial cruelty
\n                  thus: “There must be danger to life, limb, or health,
\n                  bodily or mental, or a reasonable apprehension of it, to
\n                  constitute legal cruelty”: see thereon IMPOSSIBLE.
\n                  There must be misconduct of a grave and weighty nature
\n                  and it must be proved that there is a real injury to health
\n                  or a reasonable apprehension of such injury (Le Brocq v.
\n                  Le Brocq [1964] 1 W.L.R. 1085; Noble v. Noble and
\n                  Ellis [1964]P. 250; Mulhouse v. Mulhouse [1966] P. 39),
\n                  and the conduct must be capable of bearing the
\n                  description of cruelty in the generally accepted use of that
\n                  word (Ainsworth v. Ainsworth, 10 F.L.R.).\n<\/p>\n
               3. xx               xx            xx           xx\n<\/p>\n
               4. The following are acts of matrimonial cruelty: Duress, or
\n                   threats, or habitual insult and studied unkindness, tending
\n                   to injury to health (Kelly, v. Kelly, L.R. 2 P. & D. 59;
\n                   Bethune v. Bethune [1891] P. 205; see also Beauclerk v.
\n                   Beauclerk [1891]P. 189); or terrifying a wife into
\n                   immorality (Coleman v. Coleman, 35 L.J.P. & M. 37);
\n                   publicly outraging a wife\u201fs feelings by insulting
\n                   language and assaulting her, even though no personal
\n                   injury be inflicted (Milner v. Milner, 31 L.J.P. & M.\n<\/p>\n
                   159); a violently intended, but futile, assault, or spitting
\n                   on a wife (D\u201fAguilar v. D\u201fAguliar, I Hagg. Ecc. Supp.\n<\/p>\n
                   776): habitual insult and violence of temper, inducing
\n                   quarrels and producing physical suffering (Knight v.\n<\/p>\n
                   Knight, 34 L.J.P. & M. 112); xx        xx              xx”\n<\/p>\n
\n                On analysis of the various cases and definitions, the<\/p>\n
Supreme Court in the case of Samar Ghosh Vs Jaya Ghosh (Supra) came<\/p>\n
to the conclusion that there can not be any comprehensive definition of the<\/p>\n
concept of “mental cruelty” within which all kinds of cases of metal cruelty\n<\/p>\n
                           – 12 –\n<\/p>\n
could be covered.      No court, in fact should even attempt to give a<\/p>\n
comprehensive definition of mental cruelty for the reason that the human<\/p>\n
mind is extremely complex and human behaviour is equally complicated.<\/p>\n
Since human ingenuity has no bounds, therefore, to assimilate the entire<\/p>\n
human behaviour in one definition is almost impossible. The concept of<\/p>\n
cruelty differs from person to person and case to case depending upon<\/p>\n
certain factors including the way of their upbringing, level of sensitivity,<\/p>\n
and the educational and cultural background of the family and also its<\/p>\n
financial   position, social status, customs, traditions,    religious beliefs,<\/p>\n
human values and other aspects.       Thus, coming to the conclusion that<\/p>\n
although no uniform standard could be laid down for guidance, the Apex<\/p>\n
Court in its aforesaid decision has enumerated some instances of human<\/p>\n
behaviour which may be relevant in dealing with the cases of mental cruelty<\/p>\n
as under:\n<\/p>\n
                                “101. No uniform standard can ever be laid
\n               down for guidance, yet we deem it appropriate to
\n               enumerate some instances of human behaviour which may
\n               be relevant in dealing with the cases of “mental cruelty”.
\n               The instances indicated in the succeeding paragraphs are
\n               only illustrative and not exhaustive:\n<\/p><\/blockquote>\n
               (i)          On consideration of complete matrimonial life
\n                            of the parties, acute mental pain, agony and
\n                            suffering as would not make it possible for the
\n                            parties to live with each other could come
\n                            within the broad parameters of mental cruelty.\n<\/p><\/blockquote>\n
                (ii)        On a comprehensive appraisal of the entire
\n                            matrimonial life of the parties, it becomes
\n                            abundantely clear that situation is such that the
\n                            wronged party cannot reasonably be asked to
\n                            put up with such conduct and continue to live
\n                            with other party.\n<\/p><\/blockquote>\n
                (iii)       Mere coldness or lack of affection cannot
\n                            amount to cruelty, but frequent rudeness of
\n                            language, petulance of manner, in difference
\n                            and neglect may reach such a degree that it
\n                            makes the married life for the other spouse
\n                            absolutely intolerable\n<\/p><\/blockquote>\n
          – 13 –\n<\/p><\/blockquote>\n
(iv)     Mental cruelty is a state of mind. The feeling
\n         of deep anguish, disappointment, frustration in
\n         one spouse caused by the conduct of other for
\n         a long time may lead to mental cruelty.\n<\/p>\n
(v)      A sustained course of abusive and humiliating
\n         treatment calculated to torture, discommode or
\n         render miserable life of the spouse.\n<\/p>\n
(vi)     Sustained unjustifiable conduct and behaviour
\n         of one spouse actually affecting the physical
\n         and mental health of the other spouse the
\n         treatment complained of and the resultant
\n         danger or apprehension must be very grave,
\n         substantial and weighty.\n<\/p>\n
(vii)    Sustained reprehensible conduct, studied
\n         neglect, indifference or total departure from
\n         the normal standard of conjugal kindness
\n         causing injury to mental health or deriving
\n         sadistic pleasure can also amount to mental
\n         cruelty.\n<\/p>\n
(viii)   The conduct must be much more than
\n         jealousy, selfishness, possessiveness, which
\n         cause unhappiness and dissatisfaction and
\n         emotional upset but may not be a ground for
\n         grant of divorce on the ground of mental
\n         cruelty.\n<\/p>\n
(ix)     Mere trivial irritations, quarrels, normal wear
\n         and tear of the married life which happens in
\n         day-to-day life would notbe adequate for grant
\n         of divorce on the ground of mental cruelty.\n<\/p>\n
(x)      The married life should be reviewed asa whole
\n         and a few isolated instances over a period of
\n         years will not amount to cruelty. The ill
\n         conduct must be persistent for a fairly lengthy
\n         period, where the relationship has deteriorated
\n         to an extent that because of the acts and
\n         behaviour of a spouse, the wronged party finds
\n         it extremely difficult to live with the other
\n         party any longer, may amount to mental
\n         cruelty.\n<\/p>\n
(xi)     If a husband submits himself for an operation
\n         of sterilization without medical reasons and
\n         without the consent or knowledge of his wife
\n         and similarly, if the wife undergoes vasectomy
\n         or abortion without medical reason or without
\n         the consent or knowledge of her husband, such
\n         an act of the spouse may lead to mental
\n         cruelty.\n<\/p>\n
(xii)    Unilateral decision of refusal to have
\n         intercourse for considerable period without
\n         there being any physical incapacity or valid
\n         reason may amount to mental cruelty.\n<\/p>\n
                           – 14 –\n<\/p>\n<\/p>\n
               (xiii)      Unilateral decision of either husband or wife
\n                           after marriage not to have child from the
\n                           marriage may amount to cruelty.\n<\/p>\n
               (xiv)       Where there has been a long period of
\n                           continuous separation, it may fairly be
\n                           concluded that the matrimonial bond is beyond
\n                           repair. The marriage becomes a fiction though
\n                           supported by a legal tie. By refusing to sever
\n                           that tie the law in such cases, does not serve
\n                           the sanctity of marriage; on the contrary, it
\n                           shows scant regard for the feelings and
\n                           emotions of the parties. In such like situations,
\n                           it may lead to mental cruelty.\n<\/p>\n
               In the case in hand, the foundation of “cruelty” as a<\/p>\n
matrimonial offence is based upon the allegations made by the husband that<\/p>\n
right from the date of marriage the wife\u201fs behaviour was not up to mark. The<\/p>\n
wife did not use to live continuously with the husband or in her matrimonial<\/p>\n
house rather she came there occasionally. The appellant-husband was<\/p>\n
employed in Oriental Bank of Commerce as Engineer. He later took up his<\/p>\n
studies for degree of M.Tech in I.I.T., Delhi. However, as per the allegation<\/p>\n
the behaviour of wife was so crude, unpleasant and indecent that it made the<\/p>\n
life of the petitioner-appellant hell and ultimately, the petitioner-appellant<\/p>\n
failed to clear his examination for obtaining M-Tech degree and also had to<\/p>\n
leave his job because he became mentally perturbed. The petitioner-<\/p>\n
appellant who had been examined as P .W-1 has stated that the wife used to<\/p>\n
call his mother as “Budhia” and never paid regard to his parents. She used to<\/p>\n
consider herself to be a very beautiful and meritorious whereas she used to<\/p>\n
condemn the husband by calling him “monkey”. In his further examination<\/p>\n
the husband has stated that at one point of time when he went to Ara (sasural<\/p>\n
of the husband) she gave him a letter addressed to the Chief Justice, Patna<\/p>\n
High Court and wherein she has stated that she does not want to live with\n<\/p>\n
                           – 15 –\n<\/p>\n
her husband and refused to come with him. Thereafter, when everything<\/p>\n
went wrong then a petition for divorce by mutual consent was drafted and<\/p>\n
signed by both parties. However, on assurance by the mother-in-law that she<\/p>\n
will try to make her daughter understand, the aforesaid petition was not filed.<\/p>\n
The wife in her evidence has not denied having written the aforesaid letter to<\/p>\n
the Chief Justice and also having signed the aforesaid petition for divorce<\/p>\n
which are exhibit 1\/A and exhibit 2 respectively. However, she has stated<\/p>\n
that she was forced to write all those things and she signed the paper under<\/p>\n
force and coercion though in fact she did not had any intention to either to<\/p>\n
send the letter to the Chief Justice or to file a petition for dissolution of<\/p>\n
marriage with mutual consent. It has been further disclosed by the petitioner<\/p>\n
appellant in his examination as PW-1 that in place of trying to improve the<\/p>\n
situation, the family members of the respondent gave wrong information to<\/p>\n
the police only to embarrass the appellant and his family as she left her<\/p>\n
matrimonial house with the help of police. In his cross-examination he<\/p>\n
disclosed that he was always being compared with the husband of his sister-<\/p>\n
in-law and sarcastic remarks were being made with regard to his looks as<\/p>\n
well as income etc. by the wife. Other witnesses on behalf of the petitioner<\/p>\n
have also supported his case and they have stated that the wife used to call<\/p>\n
the husband as “Kalu” and “monkey”. Further that she never used to help in<\/p>\n
domestic work.\n<\/p>\n
                 The wife in her examination as O. P.W.4 has       refuted the<\/p>\n
charges made by the husband and has stated that she was being tortured<\/p>\n
there. She has stated that she was forced to write the letter addressed to the<\/p>\n
Chief Justice and she was forced to put her signature on many other papers.\n<\/p>\n
                           – 16 –\n<\/p>\n
She has stated that with the help of police she went back to her \u201enaihar\u201f.<\/p>\n
However, from the averments made by her in her cross-examination it is<\/p>\n
apparant that she only occasionally lived in the matrimonial house between<\/p>\n
1991 to 1994. It has further been stated that she came in the month of<\/p>\n
October, 1993 at her matrimonial house at Patna and went back to her<\/p>\n
father\u201fs house on 29.12.1993 with the help of the police. It has also been<\/p>\n
accepted by her that her husband used to give her Rs. 3500\/- for meeting her<\/p>\n
personnel expenses. She has also stated that she has signed on the papers for<\/p>\n
dissolution of marriage by mutual consent only on being pressurised by her<\/p>\n
husband. Though ,there has also been allegation of demand of Rs. 200000\/-<\/p>\n
by the husband, it has also admitted by her that she was allowed to continue<\/p>\n
with her studies and has filled up U.G.C. form. She has also stated that she<\/p>\n
passed M.A. examination in 1993 and in 1997 she has been registered by the<\/p>\n
Magadh University for doing research work for award of Ph.D. degree.<\/p>\n
               Learned trial court while analysing the evidence led on<\/p>\n
behalf of the parties has disbelieved the petitioner-appellant\u201fs version. In my<\/p>\n
opinion the reasons recorded in the impugned judgement for disbelieving the<\/p>\n
same are not correct. The trial court has disbelieved the case of appellant of<\/p>\n
loosing the job on account of cruel behaviour of wife on the ground that the<\/p>\n
petitioner remained for one    year more even after the wife\u201fs return from<\/p>\n
Delhi in December 1991 and also that since the wife did not live with the<\/p>\n
husband even for whole one year then the question of her misbehviour with<\/p>\n
the appellant at Delhi causing mental agony and forcing him to leave the<\/p>\n
job does not arise .Thus, for that reason the entire evidence of the husband<\/p>\n
has been disbelieved. Further, after discarding the evidence of the appellant\n<\/p>\n
                            – 17 –\n<\/p>\n
on the aforesaid ground the learned trial court has found that only evidence<\/p>\n
which remains on record is that wife used to call the husband as “kalu” and<\/p>\n
“Monkey” and at her mother-in-law as “Budhiya”. Evidence of petitioner-<\/p>\n
appellant has been discarded by the court below on the ground that there is<\/p>\n
no witness (except the husband and his parents) on the point that she always<\/p>\n
passed comment regarding his service etc. and calling him inferior to her<\/p>\n
brother-in-law and also that the petitioner-appellant failed to specify the<\/p>\n
dates on which the wife called        her mother-in-law as \u201eBudhiya\u201f or the<\/p>\n
husband as \u201eKalu\u201f and \u201emonkey\u201f. The trial court has observed that there is<\/p>\n
nothing on record to show why the wife will act in such a cruel manner. The<\/p>\n
trial court has further observed that both the husband and wife appeared<\/p>\n
during the course of reconciliation attempt and neither the husband looks<\/p>\n
ugly nor the wife was very beautiful, therefore, on aforesaid reason the<\/p>\n
allegation of cruelty has been disbelieved.\n<\/p>\n
                In my considered opinion the trial court has landed itself to<\/p>\n
wrong conclusion as in matrimonial cases wherein relationship between the<\/p>\n
two persons is under scrutiny, it is very difficult to find the witnesses other<\/p>\n
than family members. As has been held in Parveen Mehta Vs. Inderjit<\/p>\n
Mehta (Supra) by the Apex Court, unlike the physical cruelty the mental<\/p>\n
cruelty is difficult to be established by direct evidence. Cruelty is to be taken<\/p>\n
as the behaviour of one spouse towards the other which causes reasonable<\/p>\n
apprehension in mind of the latter that it is not safe for him or her to<\/p>\n
continue the matrimonial relationship with the other. A feeling of anguish,<\/p>\n
disappointment and frustration in one spouses caused by the conduct by the<\/p>\n
other can only be appreciated on assessing the attending facts and\n<\/p>\n
                          – 18 –\n<\/p>\n
circumstances in which the two partners    of matrimonial lives. In case of<\/p>\n
mental   cruelty it will not be correct approach to make an instance of<\/p>\n
misbehavour in isolation and answer the question as to whether such<\/p>\n
behaviour is sufficient to cause mental cruelty. The right approach would be<\/p>\n
to take cumulative effect of the facts and circumstances emerging from the<\/p>\n
evidence on record and then draw a fair inference whether the petitioner has<\/p>\n
been subjected to mental cruelty due to the conduct of the other. In the<\/p>\n
present case the husband has said that the wife had lived with him only<\/p>\n
occasionally and the same has been admitted by the wife also in her<\/p>\n
examination. In the written statement the wife accepts that there was some<\/p>\n
ego problem. Even if wife came back from Delhi one year earlier than the<\/p>\n
husband, it may not be sufficient ground for discarding the case of the<\/p>\n
petitioner-appellant that due to her behaviour and cruelty his career was<\/p>\n
ruined. Husband has stated that a petition was drafted for dissolution of<\/p>\n
marriage with mutual consent and it was signed by the parties but was not<\/p>\n
filed on assurance of the mother-in-law that she will make her daughter<\/p>\n
understand and to change her behaviour. Thereafter, the wife came to the<\/p>\n
matrimonial house and then within three months      she was rescued by the<\/p>\n
police and sent back to her father\u201fs place. In the evidence wife has talked<\/p>\n
about the cruelty and demand of Rs. 2, 00000\/ but at the same time she has<\/p>\n
admitted that no complaint was made earlier than 29.12.1993 in this regard<\/p>\n
either by her or her family members. . Further admission is that the husband<\/p>\n
used to give her Rs. 3500\/- monthly for meeting her expenses. She has<\/p>\n
stated that the petition for divorce by mutual consent was signed by her at<\/p>\n
the pursuation by her husband. But the question is when the husband had\n<\/p>\n
                            – 19 –\n<\/p>\n
been able to take her signature on the petition for dissolution of marriage by<\/p>\n
mutual consent then why he did not filed it. Even if assuming that he had<\/p>\n
forced his wife to sign the paper in that case also the normal action would<\/p>\n
have been that he could have filed the petition before the competent court<\/p>\n
but the same was not filed by him. Thus the version of the petitioner<\/p>\n
appellant that due to the assurance of mother-in-law he did not file the<\/p>\n
aforesaid petition seems to be logical. Assurance was for better behaviour in<\/p>\n
future. This was followed by the 29.12.1993 incidence when police<\/p>\n
recovered the girl and sent her to her father\u201fs place. The version of the<\/p>\n
petitioner-appellant seems reasonable that the entire substratum of marriage<\/p>\n
vanishes when the wife thinks       about herself very high as      educated ,<\/p>\n
meritorious and beautiful and in comparison does not find her husband as<\/p>\n
handsome more so when she herself has admitted in her written statement<\/p>\n
that there was ego problem between them. Therefore, the finding of the trial<\/p>\n
court that there is no reason on record why the wife will behave in such a<\/p>\n
cruel manner does not seem to be correct. Further regarding the sarcastic<\/p>\n
remarks and addressing the husband as “Kalu” and “Monkey” and the<\/p>\n
mother-in-law as “Budhiya”, the trial court has discarded the allegation on<\/p>\n
the ground that during the process of reconciliation the trial court has found<\/p>\n
that neither the wife is very beautiful nor the husband was very ugly. In my<\/p>\n
opinion, the court was wrong in applying its own personal view regarding<\/p>\n
the looks of the parties and thus discarding the allegation of passing sarcastic<\/p>\n
remarks by the wife on the husband. It is very difficult to analyse human<\/p>\n
mind and behaviour. The appreciation of beauty differs from person to<\/p>\n
person. At times even ordinary looking person may form high opinion\n<\/p>\n
                            – 20 –\n<\/p>\n
regarding himself. Therefore, applying personal view in this matter was not<\/p>\n
proper. The allegation made by the husband is that right from the day of<\/p>\n
marriage the wife was not prepared to cooperate and her behaviour was<\/p>\n
indecent. Therefore, in my opinion, the trial court has seriously erred in not<\/p>\n
appreciating the evidence on record in a proper perspective. In the light of<\/p>\n
the principle discussed above and after appreciation of evidence I find that<\/p>\n
right from the beginning matrimonial relationship between the parties was<\/p>\n
not normal as the wife has accepted in her written statement that there was<\/p>\n
ego problem. The husband who was a good student suddenly fails in his<\/p>\n
studies and leaves his job in frustration. Thereafter, a petition for dissolution<\/p>\n
of marriage with mutual consent is prepared and signed by the parties but<\/p>\n
not filed. The wife drafted a letter to the Chief Justice that she does not want<\/p>\n
to live with her husband. She admits living in her matrimonial house only<\/p>\n
occasionally and then was allegedly rescued by the police and sent back to<\/p>\n
her father\u201fs place. Further the wife in her cross-examination has admitted<\/p>\n
that there was no complain made anywhere regarding misbahaviour or<\/p>\n
demand of Rs. 2,00000\/-.on any occasion earlier than 29.12.1993 incidence.<\/p>\n
If all the aforesaid facts are considered in the context of the principle laid<\/p>\n
down by the Apex Court in Praveen Mehta Vs. Inderjit Mehta (Supra)<\/p>\n
and Samar Ghosh V Jaya Ghosh (Supra), one has to come to the<\/p>\n
conclusion that there was element of mental cruelty in wife\u201fs behaviour<\/p>\n
towards husband and the finding of the trial court in this regard requires to<\/p>\n
be reversed. In my considered opinion the husband was subjected to mental<\/p>\n
cruelty by the wife.\n<\/p>\n
                So far the ground of desertion is concerned, I am in\n<\/p>\n
                            – 21 –\n<\/p>\n
agreement with the trial court that the basic requirement of provisions as laid<\/p>\n
down under section 13(i-b) of the Act are not proved as the appellant has<\/p>\n
failed to prove that the wife has deserted the petitioner for a continuous<\/p>\n
period of two years immediately preceding the presentation of the petitions<\/p>\n
as the case has been filed on 8.9.1994 and the wife was admittedly recovered<\/p>\n
with the help of the police on 29.12.1993 which was the last day when they<\/p>\n
lived together.\n<\/p>\n
                  No issue with regard to allegation of adultery has been<\/p>\n
framed by the trial court and there is no positive evidence led by the<\/p>\n
petitioner-appellant in this regard.   Thus, the submission of the learned<\/p>\n
counsel for the appellant that the wife was living adulterous life has no<\/p>\n
substratum.\n<\/p>\n
                  Learned counsel further submits that the marriage has<\/p>\n
irretrievably broken down after alleged rescue of wife with the help of police<\/p>\n
by the family members of the wife on 29.12.1993. It is contended that even<\/p>\n
after the dismissal of suit on 27.6.1998, there is no contact between the<\/p>\n
parties.   The respondent, despite valid service by way of publication in<\/p>\n
news papers on two occasions, has chosen not to appear in this appeal. Thus,<\/p>\n
the submission is that since the spouse has parted with the company, in these<\/p>\n
circumstances it can be reasonably inferred that the marriage between the<\/p>\n
parties has broken down irretrievably. The provisions under the Hindu<\/p>\n
Marriage Act 1955, as it stands today, does not include irretrievable break<\/p>\n
down of marriage as the ground to sever the matrimonial tie. However in<\/p>\n
recent decisions     the Supreme Court has shown         a     shift from the<\/p>\n
conservative interpretation of the relevant provisions to a more liberal\n<\/p>\n
                            – 22 –\n<\/p>\n
approach in granting a divorce on the finding of irretrievable break down of<\/p>\n
marriage. The Apex Court while dealing with this issue in Samar Ghosh V<\/p>\n
Jaya Ghosh (Supra) has referred the 71st report of Law Commission of<\/p>\n
India which has dealt with the concept of irretrievable break down of<\/p>\n
marriage. According to the Law Commission report an important question<\/p>\n
has cropped up and engaged the attention of the society, as to whether the<\/p>\n
grant of divorce be based only on fault of the party, known as matrimonial<\/p>\n
offence theory or fault or it should even be on break down on marriage<\/p>\n
which is known as break down theory. The Supreme Court in the relevant<\/p>\n
paragraph while referring the law commission report has observed as under;<\/p>\n
                       “94.It is also mentioned in the Report that in case
\n              the marriage has ceased to exist in substance and in
\n              reality, there is no reason for denying divorce, and then
\n              the parties alone can decide whether their mutual
\n              relationship provides the fulfillment which they seek.
\n              Divorce should be seen as a solution and an escape route
\n              out of a difficult situation. Such divorce is unconcerned
\n              with the wrongs of the past, but is concerned with
\n              bringing the parties and the children to terms with the new
\n              situation and developments by working out the most
\n              satisfactory basis upon which they may regulate their
\n              relationship in the changed circumstances.”<\/p><\/blockquote>\n
               In the aforesaid decision it has further been held that law of<\/p>\n
divorce based mainly on fault is inadequate to deal with a broken marriage.<\/p>\n
Under the fault theory guilt has to be proved; divorce courts are presented<\/p>\n
with concrete instances of human behaviour as bring the institution of<\/p>\n
marriage into disrepute.\n<\/p>\n
                In yet another decision in the case of Rishikesh Sharma V<\/p>\n
Suraj Sharma reported in 2007 (2) SCC 263 the Apex Court has observed\n<\/p>\n
                          – 23 –\n<\/p>\n
and held as hereunder:\n<\/p>\n<\/p>\n
                               “4. We heard Mr. A.K. Chitale, learned
\n              Senior Counsel and Mr S.S. Dahiya, learned counsel for
\n              the respondent and perused the judgement passed by both
\n              the trial court and also of the High Court. It is not in
\n              dispute that the respondent is living separately from the
\n              year 1981. Though the finding has been rendered by the
\n              High Court that the wife last resided with her husband up
\n              to 25-3-1989, the said finding according to the learned
\n              counsel for the appellant is not correct. In view of the
\n              several litigations between the parties it is not possible for
\n              her to prosecute criminal case against the husband and at
\n              the same time continue to reside with her husband. In the
\n              instant case the marriage is irretrievably broken down
\n              with no possibility of the parties living together again.
\n              Both the parties have crossed 49 years and living
\n              separately and working independently since 1981. There
\n              being a history of litigation with the respondent wife
\n              repeatedly filing criminal cases against the appellant
\n              which could not be substantiated as found by the courts.
\n              This apart, only child born in the wedlock in 1975 has
\n              already been given in marriage.                 Under such
\n              circumstances the High Court was not justified in
\n              refusing to exercise its jurisdiction in favour of the
\n              appellant. This apart, the wife also has made certain
\n              allegations against her husband, that the husband has
\n              already remarried and is living with another lady as stated
\n              by her in the written statement. The High Court also has
\n              not considered the allegations made by the respondent
\n              which have been repeatedly made and repeatedly found
\n              baseless by the courts.\n<\/p><\/blockquote>\n
                               5.In our opinion it will not be possible for
\n              the parties to live together and therefore there is no
\n              purpose in compelling both the parties to live together.
\n              Therefore, the best course in our opinion is to dissolve the
\n              marriage by passing a decree of divorce so that the parties
\n              who are litigating since 1981 had have lost valuable part
\n              of life can live peacefully for remaining part of their life.”\n<\/p><\/blockquote>\n
                               The Supreme Court in Praveen Mehta V
\n              Inderjit Mehta (Supra) has held as under :\n<\/p><\/blockquote>\n
                               “As noted earlier the parties were married
\n              on 6th December, 1985. They stayed together for a short
\n              period till 28th April, 1986 when they parted company.
\n              Despite several attempts by relatives and well-wishers no
\n              conciliation between them was possible. The petition for
\n              the dissolution of the marriage was filed in the year 1996.
\n              In the meantime so many years have elapsed since the
\n              spouses parted company. In these circumstances it can be\n<\/p><\/blockquote>\n
                           – 24 –\n<\/p><\/blockquote>\n
               reasonably inferred that the marriage between the parties
\n               has broken down irretrievably without any fault on the
\n               part of the respondent. Further the respondent has
\n               remarried in the year 2000. On this ground also the
\n               decision of the High Court in favour of the respondent\u201fs
\n               prayer for dissolution of the marriage should not be
\n               disturbed.    Accordingly, this appeal fails and is
\n               dismissed. There will, however, be no order for costs. “<\/p><\/blockquote>\n
               Learned counsel for the appellant has also placed reliance<\/p>\n
upon a decision of Apex Court in Satish Sitole vs Smt. Ganga<\/a> reported<\/p>\n
in 2008 (5) Supreme 198 , as in the aforesaid case also, the Supreme<\/p>\n
Court on consideration of fact found that for past long 14 years husband<\/p>\n
and wife have been living separately. It has held that it would be in the<\/p>\n
interest of both parties to sever the matrimonial ties since the marriage<\/p>\n
has broken down irretrievably .\n<\/p>\n<\/p>\n
               In the present case wife had admittedly left the matrimonial<\/p>\n
house on 29.12.1993. A case for dissolution for marriage was filed on<\/p>\n
8.4.1994 and the same was dismissed on 27th June 1998. Learned counsel<\/p>\n
for the appellant submits that since 29.12.1993 they are living separately and<\/p>\n
since 8.4.1994 there is no contact between the parties. Even prior to<\/p>\n
29.12.1993, as admitted by wife, she was living only occasionally either in<\/p>\n
her matrimonial house or with her husband at Delhi.          The attempt for<\/p>\n
reconciliation before the trial court has also failed. Even after dismissal of<\/p>\n
the matrimonial case there is no contact between the parties. Despite valid<\/p>\n
service of notice twice by way of publication in newspaper, the respondent<\/p>\n
has not appeared to contest this appeal.   This appeal has been filed in 1998<\/p>\n
and now it is 2008. Ordinarily the time period lost due to the systemic delay\n<\/p>\n
                            – 25 –\n<\/p>\n
in disposal of the cases are not taken into account for counting the period of<\/p>\n
separation and for deciding the case on break down theory. But in the<\/p>\n
present case I find force in the argument of the learned counsel for the<\/p>\n
appellant as it appears that the wife has lost interest not only in the case but<\/p>\n
also in her matrimonial ties. She has not appeared to contest the appeal and<\/p>\n
also is not in contact with the appellant for the last more than about 14 years.<\/p>\n
As has been admitted by her while being examined as witness that she lastly<\/p>\n
visited the house of the petitioner-appellant in the month of March 1994.<\/p>\n
The Supreme Court in Samar Ghosh Vrs. Jaya Ghosh (Supra) while<\/p>\n
illustrating the instances of “mental cruelty” has stated that where there has<\/p>\n
been a long period of continuous separation, it may fairly be concluded that<\/p>\n
the matrimonial bound is beyond repair. The marriage in that case becomes a<\/p>\n
fiction though, supported by a legal tie. Therefore, refusal to sever that tie<\/p>\n
may not serve the sanctity of marriage. If the person shows scant regard for<\/p>\n
feelings and emotions of the spouse, the long period of such continuous<\/p>\n
separation may lead to “mental cruelty”. In the present case, the husband and<\/p>\n
wife are not in contact since about last 14 years. Thus, it appears that<\/p>\n
feelings and emotions for each other have already vanished. The respondent<\/p>\n
even did not appear to oppose the appellant in this appeal. Thus, in my<\/p>\n
considered view, to refuse divorce to the appellant and to compel the<\/p>\n
parties to resume under matrimonial tie even if they are living separately for<\/p>\n
about 14 years, will not serve any purpose and will not be of any benefit to<\/p>\n
either of the parties.\n<\/p>\n<\/p>\n
                 In the result the appeal filed by the husband stands allowed\n<\/p>\n
                                              – 26 –\n<\/p>\n
                   and the judgment and decree passed by the trial court is set aside. There will<\/p>\n
                   be a decree of dissolution of marriage in favour of the appellant-husband. It<\/p>\n
                   is further held that in the absence of respondent it will be very difficult to<\/p>\n
                   pass any order with regard to permanent alimony\/maintenance. However, I<\/p>\n
                   grant liberty to the respondent wife to take steps for permanent<\/p>\n
                   alimony\/maintenance before the court of competent jurisdiction if she so<\/p>\n
                   desires. In case such an application is filed by the wife before the court of<\/p>\n
                   competent jurisdiction, then such court will decide the matter in accordance<\/p>\n
                   with law.\n<\/p>\n<\/p>\n
                                                              (Dr. Ravi Ranjan, J)<\/p>\n
                      C.K.Prasad, ACJ.\n<\/p>\n<\/p>\n
                                                        (Chandramauli Kr. Prasad, ACJ)<\/p>\n
Patna High Court
\nThe   Dec. 2008
\n Rahman\/ NAFR.\n<\/p>\n
 – 27 –<\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court Rajendra Krishna Agrawal vs Smt.Sandhya Rani on 23 December, 2008 Author: Ravi Ranjan Appeal from the Original Decree No.449 OF 1998 ——- Against the judgment and decree dated 27th of June,1998 passed by Smt. Rekha Kumari, Principal Judge, Family Copurt,Patna in Matrimonial (Divorce) Case No. 122 of 1994. RAJENDRA KRISHNA AGRAWAL, SON […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-56881","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nRajendra Krishna Agrawal vs Smt.Sandhya Rani on 23 December, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rajendra-krishna-agrawal-vs-smt-sandhya-rani-on-23-december-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rajendra Krishna Agrawal vs Smt.Sandhya Rani on 23 December, 2008 - 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