AIR 2012 SUPREME COURT 2586

AIR 2012 SUPREME COURT 2586

SUPREME COURT

DEEPAK VERMA , J. and DIPAK MISRA, J.

Civil Appeal No. 4905 of 2012 (arising out of S. L. P. (Civ) No. 16528 of 2007), D/-4-7-2012

Vishwanath Sitaram Agrawalv.Sau. Sarla Vishwanath Agrawal

(A) Civil P.C. (5 of 1908),S.100- Concurrent finding of fact - Interference - Only if finding recorded
is perverse - That another view is possible on evidence - Cannot be basis for interference. (Para30)

(B) Civil P.C. (5 of 1908),S.100- Concurrent finding of fact - Interference - Perverse finding -
Finding that is not supported by evidence or finding reached by drawing inference in far fetched
manner - Constitutes perverse finding. (Para31)

(C) Hindu Marriage Act (25 of 1955),S.13- Evidence Act (1 of 1872),S.3- Matrimonial disputes -
Appreciation of evidence - Family members, relatives, friends of either spouse or neighbour - Are
most natural witnesses - Their evidence has to be tested on objective parameters - Not thrown
overboard on ground of relationship. (Para32)

(D) Hindu Marriage Act (25 of 1955),S.13(1)(1a)- Divorce - Mental cruelty - Evidence showing that
wife used to crumple ironed clothes of husband - Hide his motor cycle keys or close main gate while
husband was getting ready to go for work - Amounts to mental cruelty - Finding recorded on such
evidence that husband was enjoying such behaviour of wife - Cannot but be said to be perverse.
(Para33)
(E) Hindu Marriage Act (25 of 1955),S.13(1)(1A)- Divorce - Cruelty - What constitutes -
Depends on social strata to which parties belong.

The expression 'cruelty' has an inseperable nexus with human conduct or human behaviour. It is always
dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship,
temperaments and emotions that have been conditioned by their social status. A set of facts stigmatized as
cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type
of life the parties are accustomed to or their economic and social conditions. It may also depend upon
their culture and human values to which they attach importance. (Paras1719)

(F) Hindu Marriage Act (25 of 1955),S.13(1)(1a)- Mental cruelty - What constitutes.

While dealing with concept of mental cruelty the question has to be considered in the light of the norms of
marital ties of the particular society to which the parties belong, their social values, status and
environment in which they live. If from the conduct of the spouse, it is established and/or an inference can
legitimately be drawn that the treatment of the spouse is such that it causes an apprehension in the mind of
the other spouse about his or her mental welfare, then the same would amount to cruelty. While dealing
with the concept of mental cruelty, enquiry must begin as to the nature of cruel treatment and the impact
of such treatment in the mind of the spouse. It has to be seen whether the conduct is such that no
reasonable person would tolerate it. (Para23)

(G) Hindu Marriage Act (25 of 1955),S.13(1)(1a)-

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Divorce - Mental cruelty - Allegation by wife that husband has illicit relationship with other woman
finding of illicit relationship reached only on basis of news paper publication and some cryptic
evidence - Is perverse - Wife in application for maintenance also alleging that husband was
drunkard and womanizer - Also publishing notice in news paper making same allegation - Such
allegations are bound to create mental agony to husband and constitute mental cruelty - So also her
act of prosecuting husband and in-laws on false allegation of dowry - Constitutes mental cruelty.
(Paras343540)
(H) Hindu Marriage Act (25 of 1955),S.13(1)(1a)- Divorce - Cruelty - Events
subsequent to filing divorce petition - Can be considered. (Para37)

(I) Hindu Marriage Act (25 of 1955),S.25- Permanent alimony - Fixation - Amount already paid to
wife by virtue of interim orders - Not to be considered. (Para42)

Cases Referred Chronological Paras

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 AIR 2012 SUPREME COURT 2586

AIR 2012 SC (Civ) 1169:2012 AIR SCW 2059:2012 (3) ALJ 31

236
AIR 2011 SC 715:2011 AIR SCW 650:AIR 2011 SC (Cri)
382 31
AIR 2009 SC 589:2008 AIR SCW 7730:2009 (2) AIR Jhar R
599 26,37
AIR 2008 SC 956:2008 AIR SCW 463:2008 (2) AIR Kar R
151 30
(2007) 4 SCC 511 25
AIR 2006 SC 1662:2006 AIR SCW 1585:2006 (3) AIR Kar
R 202 24
AIR 2005 SC 534:2005 AIR SCW 163:2005 AIR Jhar HCR
641 23,36
AIR 2005 SC 1008:2005 AIR SCW 916 28
AIR 2003 SC 2462:2003 AIR SCW 2530 22
AIR 2002 SC 2582:2002 AIR SCW 2886 21
AIR 2001 SC 1273:2001 AIR SCW 1184 28
AIR 1999 SC 1441:1999 AIR SCW 1129 30
AIR 1997 SC 1906:1997 AIR SCW 1659 29
AIR 1994 SC 710:1994 AIR SCW 45 20
AIR 1988 SC 121 18
AIR 1981 SC 1972:1981 Cri LJ 1430 17
AIR 1975 SC 1534 39
(1966) 2 All ER 257:(1966) 2 WLR 993 19
(1963) 2 All ER 966:(1963) 3 WLR 175 19
AIR 1956 All 41:1956 Cri LJ 11 17

Ms. Chandan Ramamurthi, for Appellant; C. G. Solshe, for Respondent.

Judgement

1.DIPAK MISRA, J. :-Leave granted.

2.The marriage between the appellant and the respondent was solemnized on the 30th of April, 1979 as
per the Hindu rites at Akola. In the wedlock, two sons, namely, Vishal and Rahul, were born on 23.9.1982
and 1.11.1984 respectively. As the appellant husband felt that there was total discord in their marital life
and compatibility looked like a mirage, he filed a petition for divorce under Section 13(1) (ia) of the
Hindu Marriage Act, 1955 (for brevity 'the Act').

3.It was the case of the appellant before the court of first instance that the respondent-wife did not know
how to conduct herself as a wife and daughter-in-law and despite persuasion, her behavioural pattern
remained unchanged. The birth of the children had no impact on her conduct and everything worsened
with the efflux of time. The behaviour of the respondent with the relatives and guests who used to come to
their house was far from being desirable and, in fact, it exhibited arrogance and lack of culture and, in a
way, endangered the social reputation of the family. That apart, she did not have the slightest respect for
her mother-in-law. Despite the old lady being a patient of diabetes and hypertension, it could not invoke
any sympathy from the respondent and hence, there was total absence of care or concern.

4.As pleaded, in the month of March, 1990, there was a dacoity in the house

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where the appellant was staying and, therefore, they shifted to the ginning factory and eventually, on
17.3.1991, shifted to their own three storeyed building situate in Gandhi Chowk. Even with the passage of
time, instead of bringing maturity in the attitude of the respondent, it brought a sense of established
selfishness and non-concern for the children. Whim and irrationality reigned in her day-to-day behaviour
and frequent quarrels became a daily affair. As misfortune would have it, on 23.1.1994, the mother of the
appellant died and the freer atmosphere at home gave immense independence to the respondent to make
the life of the appellant more troublesome. The appellant and his father were compelled to do their
personal work as the entire attention of the servants was diverted in a compulsive manner towards her.
Her immature perception of life reached its zenith when on certain occasions she used to hide the keys of
the motorcycle and close the gate so that the appellant could not go to the office of the factory to look
after the business. Frequent phone calls were made to the factory solely for the purpose of abusing and
causing mental agony to the appellant. As asserted, the appellant and his sons used to sleep on the second
floor whereas the respondent used to sleep in the bedroom on the third floor and their relationship slowly

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but constantly got estranged. As the cruelty became intolerable, the appellant visited his in-laws and
disclosed the same but it had no effect on her behaviour. Eventually, on 1.5.1995, the respondent was left
at the house of her parents at Akola and the appellant stayed in his house with the two sons. As the factual
matrix would unveil, on 24.7.1995, a notice issued by her advocate was published in the daily "Lokmat"
stating, inter alia, that the appellant is a womaniser and addicted to liquor. On 11.10.1995, at 4.00 p.m.,
the respondent came to the house of the appellant at Gandhi Chowk and abused the father, the children
and the appellant. She, in fact, created a violent atmosphere in the house as well as in the office by
damaging the property and causing mental torture to the appellant and also to the family members which
compelled the appellant to lodge a complaint at the Police Station, Chopda. It was alleged that she had
brought gundas and certain women to cause that incident. The said untoward incident brought the A.S.P.,
Jalgaon, to the spot. The publication in the newspaper and the later incident both occurred during the
pendency of the divorce petition and they were incorporated by way of amendment. On the aforesaid
basis, it was contended that the respondent had treated the appellant with cruelty and hence, he was
entitled to a decree for divorce.

5.The asseverations made in the petition were controverted by the respondent stating that she was always
respectful and cordial to her in-laws, relatives and the guests as was expected from a cultured
daughter-in-law. They led a happy married life for 16 years and at no point of time she showed any
arrogance or any behaviour which could remotely suggest any kind of cruelty. She attended to her
mother-in-law all the time with a sense of committed service and at no point of time there was any
dissatisfaction on her part. She disputed the allegation that she had hidden the keys of the motorcycle or
closed the gate or repeatedly called the appellant on phone at the office to abuse him or to disturb him in
his work. It is her stand that the appellant owns an oil mill, ginning factory and a petrol pump at Chopda
and had sold certain non-agricultural land by demarcating it into small plots. The appellant, as alleged,
joined the computer classes which were run by one Neeta Gujarathi in the name and style of "Om
Computer Services" and gradually the appellant started spending much of his time at the computer centre
instead of attending to his own business in the factory. When the respondent became aware of the
intimacy, she took serious objection to the same and therefrom their relationship became bitter.

@page-SC2589

6.It was alleged by the respondent that she was disturbed after knowing about the involvement of the
appellant with another lady despite having an established family life and two adolescent sons and,
therefore, she was compelled to make phone calls to make enquiries about his whereabouts. As the
interference by the respondent was not appreciated by the appellant, he took the respondent on 1.5.1995 to
Akola and left her at her parental house and never cared to bring her back to her matrimonial home. Her
willingness to come back and stay with the husband and children could not get fructified because of the
totally indifferent attitude shown by the appellant. Her attempts to see the children in the school became
an exercise in futility, as the husband, who is a trustee of the school, managed to ensure that the boys did
not meet her. It was further alleged that the said Neeta lived with him as his mistress and when the
respondent came to know about it, she went to Chopda to ascertain the same and coming to know that
Neeta was in the house of the appellant, she made an effort to enter into the house but she was assaulted.
This resulted in gathering of people of the locality and the appellant-husband, as a counter-blast, lodged a
complaint at the police station. The Deputy Superintendent of Police arrived at the scene and found that
Neeta was inside the house and thereafter she was taken back to her house by the police. Because of the
involvement of the appellant with the said Neeta, he had concocted the story of cruelty and filed the
petition for divorce.

7.The learned trial Judge framed as many as four issues. The two vital issues were whether the appellant
had been able to prove the alleged cruelty and whether he was entitled to take disadvantage of his own
wrong. The appellant, in order to prove the allegation of cruelty, examined ten witnesses and on behalf of
the respondent, eight witnesses were examined. The learned trial Judge, analysing the evidence on record,
came to hold that there was conjugal relationship till 1.5.1995; that there was no substantial material on
record to demonstrate that the respondent had behaved with immaturity immediately after marriage; that
in the absence of cogent evidence, it was difficult to hold that the respondent had troubled the husband
and his parents; that the evidence of PW-3, Ramesh, was not worthy of acceptance as he is close and an
interested witness; that the allegation that whenever she used to go to her parental home, she was granting
leave to the servants was not acceptable; that the appellant should have examined some of the servants
including the maid servant but for some reason or other had withheld the best evidence; that the plea that
the respondent was not looking after her mother-in-law who was suffering from paralysis from 1984 has
not been proven; that the allegation that the respondent was hiding the uniforms of the children and not
treating them well had not been proven because the version of Vishal could not be accepted as he was
staying with the father and, therefore, it was natural for him to speak in favour of the father; that the stand
that the respondent was hiding the keys of the motorcycle and crumpling the ironed clothes of the
appellant did not constitute mental cruelty as the said acts, being childish, were enjoyed by the
appellant-husband; that the factum of abuse by the respondent on telephone had not been established by
adducing reliable evidence; that the respondent and the appellant were sleeping on the third floor of the
house and hence, she was sleeping with him in the bedroom and the allegation that he was deprived of
sexual satisfaction from 1991 was unacceptable; that from the witnesses cited on behalf of the respondent,

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it was demonstrable that her behaviour towards her sons and in-laws was extremely good; that even if the
allegations made by the appellant were accepted to have been established to some extent, it could only be
considered as normal wear and tear of the marital life; that the plea of mental cruelty

@page-SC2590

had not been proven as none of the allegations had been established by adducing acceptable, consistent
and cogent evidence; that the notice published in the daily "Lokmat" on 28.7.1995 and the later incident
dated 11.10.1995 being incidents subsequent to the filing of the petition for divorce, the same were not to
be taken into consideration.

8.The learned trial Judge further returned the finding that the appellant was going to learn computer and
taking instructions from Neeta Gujarathi and the plea that she was engaged as a Computer Operator in his
office was not believable as no appointment letter was produced; that the stand that she was paid
Rs.1200/- per month was not worthy of any credence as she was operating a computer centre; that from
the evidence of the witnesses of the respondent, namely, RW-3 to RW-5, it was clear that Neeta Gujarathi
was living with the appellant in his house and he had developed intimacy with her and, therefore, the
subsequent events, even if analysed, were to be so done on the said backdrop; that the allegation that there
was a gathering and they were violent and broke the windows was really not proven by adducing credible
evidence; that the testimony of the witnesses of the respondent clearly reveal that Neeta was inside the
house of the appellant and effort was made to bring her out from the house and no damage was caused to
the property; that on that day, the police had come in the mid night hours and taken out Neeta from the
house of the appellant and left her at her house; that the notice which was published in "Lokmat" was to
protect the interest of the sons in the property and basically pertained to the appellant's alienating the
property; that the public notice was not unfounded or baseless and the question of defaming him and
thereby causing any mental cruelty did not arise; that the allegations made in the application for grant of
interim alimony that the appellant is a womaniser and is addicted to liquor cannot be considered for the
purpose of arriving at the conclusion that the husband was meted with cruelty; that the allegations made in
the written statement having been found to be truthful, the same could not be said to have caused any
mental cruelty; that the cumulative effect of the evidence brought on record was that no mental cruelty
was ever caused by the respondent; and that the husband could not take advantage of his own wrong.
Being of this view, the learned trial Judge dismissed the application with costs and also dismissed the
application of the respondent-wife for grant of permanent alimony.

9.Grieved by the aforesaid decision, the appellant-husband preferred Civil Appeal No. 23 of 1999. The
first appellate court appreciated the evidence, dealt with the findings returned by the trial court and
eventually came to hold that the cumulative effect of the evidence and the material brought on record
would go a long way to show that the appellant had failed to make out a case of mental cruelty to entitle
him to obtain a decree for divorce. The aforesaid conclusion by the appellate court entailed dismissal of
the appeal.

10.Being dissatisfied with the judgment and decree passed by the learned appellate Judge, the husband
preferred Second Appeal No. 683 of 2006 before the High Court. The learned single Judge of the High
Court came to hold that there were concurrent findings of fact and no substantial question of law was
involved. However, the learned single Judge observed that the sons of the parties had grown up and have
been married; that the parties had no intention to patch up the matrimonial discord; and that the marriage
had been irretrievably broken but that could not be considered by the High Court but only by the Apex
Court under Article 142 of the Constitution. Expressing the aforesaid view, he did not admit the appeal
and dismissed the same.

11.We have heard Mr. Arvind V. Sawant, learned senior counsel for the appellant-husband, and Mr.
Vivek C. Solshe, learned counsel for the respondent-wife.

@page-SC2591

12.At the very outset, we would like to make it clear that though the learned single Judge of the High
Court has expressed the view that the parties are at logger heads and have shown no inclination to patch
the matrimonial rupture and the sons have grown up and got married and with the efflux of time, the
relationship has been further shattered and hence, the marriage is irretrievably broken and only this Court
can grant divorce in exercise of power under Article 142 of the Constitution, yet we are not going to take
recourse to the same and only address ourselves whether a case for divorce has really been made out.

13.At this juncture, we may note with profit that the learned senior counsel for the appellant exclusively
rested his case on the foundation of mental cruelty. It is his submission that if the evidence of the husband
and other witnesses are scrutinized in an apposite manner along with the stand and stance taken in the
written statement, it will clearly reveal a case of mental cruelty regard being had to the social status of the
appellant. It is urged by him that the trial court as well as the appellate court have not given any credence
to the evidence of some of the witnesses on the ground that they are interested witnesses though they are
the most natural witnesses who had witnessed the cruel behaviour meted to the appellant.

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14.It is the submission of the learned senior counsel for the appellant that the court of first instance as well
as the appellate court have failed to take into consideration certain material aspects of the evidence and
the appreciation of evidence being absolutely perverse, the High Court would have been well advised to
scan and scrutinize the same but it declined to admit the appeal on the ground that there are concurrent
findings of fact. It is canvassed by him that this Court, in exercise of power under Article 136 of the
Constitution, can dislodge such concurrent findings of facts which are perverse, baseless, unreasonable
and contrary to the material on record.

15.The learned counsel for the respondent, resisting the aforesaid submissions, contended that the view
expressed by the High Court cannot be found fault with as the courts below have, at great length,
discussed the evidence and appreciated the same with utmost prudence and objectivity and there is
nothing on record to show that any material part of the evidence has been ignored or something
extraneous to the record has been taken into consideration. It is highlighted by him that the stand put forth
by the wife in her written statement having been established, the same cannot be construed to have
constituted mental cruelty. Lastly, it is put forth that the appellant has created a dent in the institution of
marriage and made a maladroit effort to take advantage of his own wrong which should not be allowed.

16.First, we shall advert to what actually constitutes 'mental cruelty' and whether in the case at hand, the
plea of mental cruelty has been established and thereafter proceed to address whether the courts below
have adopted an approach which is perverse, unreasonable and unsupported by the evidence on record and
totally unacceptable to invite the discretion of this Court in exercise of power under Article 136 of the
Constitution to dislodge the same.

17.The expression 'cruelty' has an inseparable nexus with human conduct or human behaviour. It is
always dependent upon the social strata or the milieu to which the parties belong, their ways of life,
relationship, temperaments and emotions that have been conditioned by their social status.In
Sirajmohamedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan and another1, a two-Judge Bench
approved the concept of legal cruelty as expounded in Smt. Pancho v. Ram Prasad2wherein it was stated
thus:-
1. (1981) 4 SCC 250 : (AIR 1981 SC 1972)
2. AIR 1956 All 41

"Conception of legal cruelty undergoes changes according to the changes and

@page-SC2592

advancement of social concept and standards of living. With the advancement of our social conceptions,
this feature has obtained legislative recognition that a second marriage is a sufficient ground for separate
residence and separate maintenance. Moreover, to establish legal cruelty, it is not necessary that physical
violence should be used.

Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the
husband, and an assertion on the part of the husband that the wife is unchaste are all factors which may
undermine the health of a wife." It is apt to note here that the said observations were made while dealing
with the Hindu Married Women's Right to Separate Residence and Maintenance Act (19 of 1946). This
Court, after reproducing the passage, has observed that the learned Judge has put his finger on the correct
aspect and object of mental cruelty.

18.In Shobha Rani v. Madhukar Reddi3, while dealing with 'cruelty' under Section 13(1)(ia) of the Act,
this Court observed that the said provision does not define 'cruelty' and the same could not be defined.
The 'cruelty' may be mental or physical, intentional or unintentional. If it is physical, the court will have
no problem to determine it. It is a question of fact and degree. If it is mental, the problem presents
difficulty. Thereafter, the Bench proceeded to state as follows: -
3. (1988) 1 SCC 105 : (AIR 1988 SC 121)

"First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment
on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or
injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account
the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where
the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the
injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will
be established if the conduct itself is proved or admitted."

19.After so stating, this Court observed about the marked change in life in modern times and the sea
change in matrimonial duties and responsibilities. It has been observed that when a spouse makes a
complaint about treatment of cruelty by the partner in life or relations, the court should not search for
standard in life. A set of facts stigmatized as cruelty in one case may not be so in another case.The cruelty
alleged may largely depend upon the type of life the parties are accustomed to or their economic and

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social conditions. It may also depend upon their culture and human values to which they attach
importance.Their Lordships referred to the observations made in Sheldon v. Sheldon4wherein Lord
Denning stated, "the categories of cruelty are not closed". Thereafter, the Bench proceeded to state thus: -"
4. (1966) 2 All ER 257

Each case may be different. We deal with the conduct of human beings who are not generally similar.
Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type
of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to
tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty.

These preliminary observations are intended to emphasise that the court in matrimonial cases is not
concerned with ideals in family life. The court has only to understand the spouses concerned as nature
made them, and consider their particular grievance. As Lord Ried observed in Gollins v. Gollins5:
5. (1963) 2 All ER 966
In matrimonial affairs we are not dealing with objective standards, it is not a matrimonial offence to fall
below the standard of the reasonable man (or the reasonable

@page-SC2593

woman). We are dealing with this man or this woman."

20.In V. Bhagat v. D. Bhagat (Mrs.)6, a two-Judge Bench referred to the amendment that had taken place
in Sections 10 and 13(1)(ia) after the Hindu Marriage Laws (Amendment) Act, 1976 and proceeded to
hold that the earlier requirement that such cruelty has caused a reasonable apprehension in the mind of a
spouse that it would be harmful or injurious for him/her to live with the other one is no longer the
requirement. Thereafter, this Court proceeded to deal with what constitutes mental cruelty as
contemplated in Section 13(1)(ia) and observed that mental cruelty in the said provision can broadly be
defined as that conduct which inflicts upon the other party such mental pain and suffering as would make
it not possible for that party to live with the other. To put it differently, the mental cruelty must be of such
a nature that the parties cannot reasonably be expected to live together. The situation must be such that the
wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other
party. It was further observed, while arriving at such conclusion, that regard must be had to the social
status, educational level of the parties, the society they move in, the possibility or otherwise of the parties
ever living together in case they are already living apart and all other relevant facts and circumstances.
What is cruelty in one case may not amount to cruelty in another case and it has to be determined in each
case keeping in view the facts and circumstances of that case. That apart, the accusations and allegations
have to be scrutinized in the context in which they are made. Be it noted, in the said case, this Court
quoted extensively from the allegations made in the written statement and the evidence brought on record
and came to hold that the said allegations and counter allegations were not in the realm of ordinary plea of
defence and did amount to mental cruelty.
6. (1994) 1 SCC 337 : (AIR 1994 SC 710 : 1994 AIR SCW 45)

21.In Praveen Mehta v. Inderjit Mehta7, it has been held that mental cruelty is a state of mind and feeling
with one of the spouses due to behaviour or behavioural pattern by the other. Mental cruelty cannot be
established by direct evidence and it is necessarily a matter of inference to be drawn from the facts and
circumstances of the case. A feeling of anguish, disappointment, and frustration in one spouse caused by
the conduct of the other can only be appreciated on assessing the attending facts and circumstances in
which the two partners of matrimonial life have been living. The facts and circumstances are to be
assessed emerging from the evidence on record and thereafter, a fair inference has to be drawn whether
the petitioner in the divorce petition has been subjected to mental cruelty due to the conduct of the other.
7. AIR 2002 SC 2582 : (2002 AIR SCW 2886)

22.In Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate8, it has been opined that a conscious
and deliberate statement levelled with pungency and that too placed on record, through the written
statement, cannot be so lightly ignored or brushed aside.
8. AIR 2003 SC 2462 : (2003 AIR SCW 2530)

23.In A. Jayachandra v. Aneel Kaur9, it has been ruled that the question of mental cruelty has to be
considered in the light of the norms of marital ties of the particular society to which the parties belong,
their social values, status and environment in which they live.If from the conduct of the spouse, it is
established and/or an inference can legitimately be drawn that the treatment of the spouse is such that it
causes an apprehension in the mind of the other spouse about his or her mental welfare, then the same
would amount to cruelty. While dealing

@page-SC2594

with the concept of mental cruelty, enquiry must begin as to the nature of cruel treatment and the impact
of such treatment in the mind of the spouse. It has to be seen whether the conduct is such that no
reasonable person would tolerate it.
9. (2005) 2 SCC 22 : (AIR 2005 SC 534 : 2005 AIR SCW 163)

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24.In Vinita Saxena v. Pankaj Pandit10, it has been ruled that as to what constitutes mental cruelty for the
purposes of Section 13(1)(ia) will not depend upon the numerical count of such incident or only on the
continuous course of such conduct but one has to really go by the intensity, gravity and stigmatic impact
of it when meted out even once and the deleterious effect of it on the mental attitude necessary for
maintaining a conducive matrimonial home.
10. (2006) 3 SCC 778 : (AIR 2006 SC 1662 : 2006 AIR SCW 1585)

25.In Samar Ghosh v. Jaya Ghosh11, this Court, after surveying the previous decisions and referring to the
concept of cruelty, which includes mental cruelty, in English, American, Canadian and Australian cases,
has observed that the human mind is extremely complex and human behaviour is equally complicated.
Similarly, human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one
definition is almost impossible. What is cruelty in one case may not amount to cruelty in the other case.
The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity,
educational, family and cultural background, financial position, social status, customs, traditions, religious
belief, human values and their value system. Apart from this, the concept of mental cruelty cannot remain
static; it is bound to change with the passage of time, impact of modern culture through print and
electronic media and value system, etc. etc. What may be mental cruelty now may not remain mental
cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed
parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to
adjudicate the case would be to evaluate it on its peculiar facts and circumstances.
11. (2007) 4 SCC 511

26.In Suman Kapur v. Sudhir Kapur12, after referring to various decisions in the field, this Court took
note of the fact that the wife had neglected to carry out the matrimonial obligations and further, during the
pendency of the mediation proceeding, had sent a notice to the husband through her advocate alleging that
he had another wife in USA whose identity was concealed. The said allegation was based on the fact that
in his income-tax return, the husband mentioned the "Social Security Number" of his wife which did not
belong to the wife, but to an American lady. The husband offered an explanation that it was merely a
typographical error and nothing else. The High Court had observed that taking undue advantage of the
error in the "Social Security Number", the wife had gone to the extent of making serious allegation that
the husband had married an American woman whose "Social Security Number" was wrongly typed in the
income-tax return of the husband. This fact also weighed with this Court and was treated that the entire
conduct of the wife did tantamount to mental cruelty.
12. AIR 2009 SC 589 : (2008 AIR SCW 7730)

27.Keeping in view the aforesaid enunciation of law pertaining to mental cruelty, it is to be scrutinized
whether in the case at hand, there has been real mental cruelty or not, but, a significant one, the said
scrutiny can only be done if the findings are perverse, unreasonable, against the material record or based
on non-consideration of relevant materials. We may note here that the High Court has, in a singular line,
declined to interfere with the judgment and decree of the courts below stating that they are based on
concurrent findings of fact. The plea of perversity of approach though raised was not adverted to.

@page-SC2595

28.It is worth noting that this Court, in Kulwant Kaur v. Gurdial Singh Mann (dead) by L.Rs. and others13
, has held that while it is true that in a second appeal, a finding of fact, even if erroneous, will generally
not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of
assumptions and conjectures and resultantly there is an element of perversity involved therein, the High
Court will be within its jurisdiction to deal with the issue. An issue pertaining to perversity comes within
the ambit of substantial question of law. Similar view has been stated in Govindaraju v. Mariamman14.
13. AIR 2001 SC 1273 : (2001 AIR SCW 1184)
14. (2005) 2 SCC 500 : (AIR 2005 SC 1008 : 2005 AIR SCW 916)

29.In Major Singh v. Rattan Singh (Dead) by LRs and others15, it has been observed that when the courts
below had rejected and disbelieved the evidence on unacceptable grounds, it is the duty of the High Court
to consider whether the reasons given by the courts below are sustainable in law while hearing an appeal
under Section 100 of the Code of Civil Procedure.
15. AIR 1997 SC 1906 : (1997 AIR SCW 1659)

30.In Vidhyadhar v. Manikrao and another16, it has been ruled that the High Court in a second appeal
should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the
courts below are perverse being based on no evidence or that on the evidence on record, no reasonable
person could have come to that conclusion. We may note here that solely because another view is possible
on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under
Section 100 of the Code of Civil Procedure. This view of ours has been fortified by the decision of this
Court in Abdul Raheem v. Karnataka Electricity Board and Ors.17.
16. (1999) 3 SCC 573 : (AIR 1999 SC 1441: 1999 AIR SCW 1129)
17. AIR 2008 SC 956 : (2008 AIR SCW 463)

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31.Having stated the law relating to mental cruelty and the dictum of this Court in respect of the
jurisdiction of the High Court where concurrent findings of fact are assailed, as advised at present, we will
scan the evidence whether the High Court has failed to exercise the jurisdiction conferred on it despite the
plea of perversity being raised. Any finding which is not supported by evidence or inferences is drawn in
a stretched and unacceptable manner can be said to be perverse. This Court in exercise of power under
Article 136 of the Constitution can interfere with concurrent findings of fact, if the conclusions recorded
by the High Court are manifestly perverse and unsupported by the evidence on record. It has been so held
in Alamelu and another v. State, represented by Inspector of Police18and Heinz India Pvt. Ltd. and Anr. v.
State of U.P. and Ors.19
18. AIR 2011 SC 715 : (2011 AIR SCW 650)
19. (2012) 3 SCALE 607 : (2012) 2 KLT (SN) 64 : (AIR 2012 SC (Civ) 1169 : 2012 AIR SCW 2059)

32.Presently, to the core issue, viz, whether the appellant/husband had made out a case for mental cruelty
to entitle him to get a decree for divorce. At this juncture, we may unhesitantly state that the trial court as
well as the first appellate court have disbelieved the evidence of most of the witnesses cited on behalf of
the husband on the ground that they are interested witnesses.In a matrimonial dispute, it would be
inappropriate to expect outsiders to come and depose. The family members and sometimes the relatives,
friends and neighbours are the most natural witnesses. The veracity of the testimony is to be tested on
objective parameters and not to be thrown overboard on the ground that the witnesses are related to either
of the spouse. Exception has been taken by the courts below that the servants of the house should

@page-SC2596

have been examined and that amounts to suppression of the best possible evidence. That apart, the
allegations made in the written statement, the dismissal of the case instituted by the wife under Section
494 of the Indian Penal Code, the non-judging of the material regard being had to the social status, the
mental make-up, the milieu and the rejection of subsequent events on the count that they are subsequent to
the filing of the petition for divorce and also giving flimsy reasons not to place reliance on the same, we
are disposed to think, deserve to be tested on the anvil of "perversity of approach". Quite apart from the
above, a significant question that emerges is whether the reasons ascribed by the courts below that the
allegations made in the written statement alleging extra marital affair of the appellant-husband with Neeta
Gujarathi has been established and, therefore, it would not constitute mental cruelty are perverse and
unacceptable or justified on the basis of the evidence brought on record. These are the aspects which need
to be scrutinized and appositely delved into.

33.The appellant-husband, examining himself as PW-1, has categorically stated that the wife used to hide
the pressed clothes while he was getting ready to go to the factory. Sometimes she used to crumple the
ironed clothes and hide the keys of the motorcycle or close the main gate. In the cross-examination, it is
clearly stated that the wife was crumpling the ironed clothes, hiding the keys of the motorcycle and
locking the gate to trouble him and the said incidents were taking place for a long time. This being the
evidence on record, we are at a loss to find that the courts below could record a finding that the appellant
used to enjoy the childish and fanciful behaviour of the wife pertaining to the aforesaid aspect. This
finding is definitely based on no evidence. Such a conclusion cannot be reached even by inference. If we
allow ourselves to say so, even surmises and conjectures would not permit such a finding to be recorded.
It is apt to note here that it does not require Solomon's wisdom to understand the embarrassment and
harassment that might have been felt by the husband. The level of disappointment on his part can be well
visualised like a moon in a cloudless sky.

34.Now we shall advert to the allegation made in the written statement. The respondent-wife had made
the allegation that the husband had an illicit relationship with Neeta Gujarathi. The learned trial Judge has
opined that the said allegation having been proved cannot be treated to have caused mental cruelty. He has
referred to various authorities of many High Courts. The heart of the matter is whether such an allegation
has actually been proven by adducing acceptable evidence. It is worth noting that the respondent had filed
a complaint, RCC No. 91/95, under Section 494 of the Indian Penal Code against the husband. He was
discharged in the said case. The said order has gone unassailed. The learned trial Judge has expressed the
view that Neeta Gujarathi was having a relationship with the husband on the basis that though the husband
had admitted that she was working in his office yet he had not produced any appointment letter to show
that she was appointed as a computer operator. The trial Judge has relied on the evidence of the wife. The
wife in her evidence has stated in an extremely bald manner that whenever she had telephoned to the
office in the factory, the husband was not there and further that the presence of Neeta Gujarathi was not
liked by her in-laws and the elder son Vishal. On a careful reading of the judgment of the trial court, it is
demonstrable that it has been persuaded to return such a finding on the basis of the incident that took
place on 11.10.1995. It is worth noting that the wife, who examined herself as RW-1, stated in her
evidence that Vishal was deposing against her as the appellant had given him a scooter. The learned trial
Judge has given immense credence to the version of the social worker who, on the date of the incident,
had come to the house of the appellant

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where a large crowd had gathered and has deposed that she had seen Neeta going and coming out of the
house. The evidence of the wife, when studiedly scrutinized, would show that there was more of suspicion

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than any kind of truth in it. As has been stated earlier, the respondent had made an allegation that her son
was influenced by the appellant-husband. The learned trial Judge as well as the appellate court have
accepted the same. It is germane to note that Vishal, the elder son, was approximately 16 years of age at
the time of examination in court.There is remotely no suggestion to the said witness that when Neeta
Gujarati used to go to the house, his grandfather expressed any kind of disapproval. Thus, the whole thing
seems to have rested on the incident of 11.10.1995. On that day, as the material on record would show, at
4.00 p.m., the wife arrived at the house of the husband. She has admitted that she wanted to see her
father-in-law who was not keeping well. After she went in, her father-in-law got up from the chair and
went upstairs. She was not permitted to go upstairs. It is testified by her that her father-in-law came down
and slapped her. She has deposed about the gathering of people and publication in the newspapers about
the incident. Vishal, PW-5, has stated that the mother had pushed the grandfather from the chair. The
truthfulness of the said aspect need not be dwelled upon. The fact remains that the testimony of the wife
that the father-in-law did not like the visit of Neeta does not appear to be true. Had it been so, he would
not have behaved in the manner as deposed by the wife. That apart, common sense does not give consent
to the theory that both, the father of the husband and his son, Vishal, abandoned normal perception of life
and acceded to the illicit intimacy with Neeta. It is interesting to note that she has deposed that it was
published in the papers that the daughter-in-law was slapped by the father-in-law and Neeta Gujarathi was
recovered from the house but eventually the police lodged a case against the husband, the father-in-law
and other relatives under Section 498A of the Indian Penal Code. We really fail to fathom how from this
incident and some cryptic evidence on record, it can be concluded that the respondent-wife had
established that the husband had an extra marital relationship with Neeta Gujarathi. That apart, in the
application for grant of interim maintenance, she had pleaded that the husband was a womaniser and
drunkard.This pleading was wholly unwarranted and, in fact, amounts to a deliberate assault on the
character. Thus, we have no scintilla of doubt that the uncalled for allegations are bound to create mental
agony and anguish in the mind of the husband.

35.Another aspect needs to be taken note of. She had made allegation about the demand of dowry. RCC
No. 133/95 was instituted under Section 498A of the Indian Penal Code against the husband, father-in-law
and other relatives. They have been acquitted in that case.The said decision of acquittal has not been
assailed before the higher forum. Hence, the allegation on this count was incorrect and untruthful and it
can unhesitatingly be stated that such an act creates mental trauma in the mind of the husband as no one
would like to face a criminal proceeding of this nature on baseless and untruthful allegations.

36.Presently to the subsequent events. The courts below have opined that the publication of notice in the
daily "Lokmat" and the occurrence that took place on 11.10.1995 could not be considered as the said
events occurred after filing of the petition for divorce. Thereafter, the courts below have proceeded to deal
with the effect of the said events on the assumption that they can be taken into consideration. As far as the
first incident is concerned, a view has been expressed that the notice was published by the wife to
safeguard the interests of the children, and the second one was a reaction on the part of the wife relating to
the relationship of the husband with Neeta Gujrathi. We have already referred

@page-SC2598

to the second incident and expressed the view that the said incident does not establish that there was an
extra marital relationship between Neeta and the appellant. We have referred to the said incident as we are
of the considered opinion that the subsequent events can be taken into consideration. In this context, we
may profitably refer to the observations made by a three-Judge Bench in the case of A. Jayachandra (AIR
2005 SC 534 : 2005 AIR SCW 163) (supra) :-

"The matter can be looked at from another angle. If acts subsequent to the filing of the divorce petition
can be looked into to infer condonation of the aberrations, acts subsequent to the filing of the petition can
be taken note of to show a pattern in the behaviour and conduct."

37.We may also usefully refer to the observations made in Suman Kapur (AIR 2009 SC 589 : 2008 AIR
SCW 7730) (supra) wherein the wife had made a maladroit effort to take advantage of a typographical
error in the written statement and issued a notice to the husband alleging that he had another wife in USA.
Thus, this Court has expressed the opinion that the subsequent events can be considered.

38.Keeping in view the aforesaid pronouncement of law, we shall first appreciate the impact of the notice
published in the "Lokmat". The relevant part of the said notice, as published in the newspaper, reads as
follows: -

"Shri Vishwanath Sitaram Agrawal is having vices of womanizing, drinking liquor and other bad habits.
He is having monthly income of Rs.10 lacs, but due to several vices, he is short of fund. Therefore, he has
started selling the property. He has sold some properties. My client has tried to make him understand
which is of no use and on the contrary, he has beaten my client very badly and has driven her away and
dropped her to Akola at her parent's house.

In the property of Shri Vishwanath Sitaram Agrawal my client and her two sons are having shares in the
capacity of members of joint family and Shri Vishwanath Sitaram Agrawal has no right to dispose of the
property on any ground."

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Immense emphasis has been given on the fact that after publication of the notice, the husband had filed a
caveat in the court. The factual matrix would reveal that the husband comes from a respectable family
engaged in business. At the time of publication of the notice, the sons were quite grown up. The
respondent-wife did not bother to think what impact it would have on the reputation of the husband and
what mental discomfort it would cause. It is manifest from the material on record that the children were
staying with the father. They were studying in the school and the father was taking care of everything.
Such a publication in the newspaper having good circulation can cause trauma, agony and anguish in the
mind of any reasonable man. The explanation given by the wife to the effect that she wanted to protect the
interests of the children, as we perceive, is absolutely incredible and implausible. The filing of a caveat is
wholly inconsequential. In fact, it can decidedly be said that it was mala fide and the motive was to
demolish the reputation of the husband in the society by naming him as a womaniser, drunkard and a man
of bad habits.

39.At this stage, we may fruitfully reminisce a poignant passage from N.G. Dastane v. S. Dastane20
wherein Chandrachud, J. (as his Lordship then was) observed thus: -
20. (1975) 3 SCR 967 : (AIR 1975 SC 1534).

"The court has to deal, not with an ideal husband and an ideal wife (assuming any such exist) but with the
particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion
to go to a matrimonial court for, even if they may not be able to drown their differences, their ideal
attitudes may help them

@page-SC2599

overlook or gloss over mutual faults and failures."

40.Regard being had to the aforesaid, we have to evaluate the instances. In our considered opinion, a
normal reasonable man is bound to feel the sting and the pungency. The conduct and circumstances make
it graphically clear that the respondent-wife had really humiliated him and caused mental cruelty. Her
conduct clearly exposits that it has resulted in causing agony and anguish in the mind of the husband.She
had publicised in the newspapers that he was a womaniser and a drunkard. She had made wild allegations
about his character. She had made an effort to prosecute him in criminal litigations which she had failed to
prove. The feeling of deep anguish, disappointment, agony and frustration of the husband is obvious. It
can be stated with certitude that the cumulative effect of the evidence brought on record clearly establish a
sustained attitude of causing humiliation and calculated torture on the part of the wife to make the life of
the husband miserable. The husband felt humiliated both in private and public life. Indubitably, it created
a dent in his reputation which is not only the salt of life, but also the purest treasure and the most precious
perfume of life. It is extremely delicate and a cherished value this side of the grave. It is a revenue
generator for the present as well as for the posterity.Thus analysed, it would not be out of place to state
that his brain and the bones must have felt the chill of humiliation. The dreams sweetly grafted with
sanguine fondness with the passage of time reached the Everstine disaster, possibly, with a vow not to
melt. The cathartic effect looked like a distant mirage. The cruel behaviour of the wife has frozen the
emotions and snuffed out the bright candle of feeling of the husband because he has been treated as an
unperson. Thus, analysed, it is abundantly clear that with this mental pain, agony and suffering, the
husband cannot be asked to put up with the conduct of the wife and to continue to live with her.
Therefore, he is entitled to a decree for divorce.

41.Presently, we shall deal with the aspect pertaining to the grant of permanent alimony. The court of first
instance has rejected the application filed by the respondent-wife as no decree for divorce was granted and
there was no severance of marital status. We refrain from commenting on the said view as we have opined
that the husband is entitled to a decree for divorce. Permanent alimony is to be granted taking into
consideration the social status, the conduct of the parties, the way of living of the spouse and such other
ancillary aspects. During the course of hearing of the matter, we have heard the learned counsel for the
parties on this aspect. After taking instructions from the respective parties, they have addressed us. The
learned senior counsel for the appellant has submitted that till 21.2.2012, an amount of Rs.17,60,000/- has
been paid towards maintenance to the wife as directed by the courts below and hence, that should be
deducted from the amount to be fixed. He has further submitted that the permanent alimony should be
fixed at Rs.25 lacs. The learned counsel for the respondent, while insisting for affirmance of the decisions
of the High Court as well as by the courts below, has submitted that the amount that has already been paid
should not be taken into consideration as the same has been paid within a span of number of years and the
deduction would affect the future sustenance. He has emphasised on the income of the husband, the
progress in the business, the inflation in the cost of living and the way of life the respondent is expected to
lead. He has also canvassed that the age factor and the medical aid and assistance that are likely to be
needed should be considered and the permanent alimony should be fixed at Rs.75 lacs.

42.In our considered opinion, the amount that has already been paid to the respondent-wife towards
alimony is to be ignored as the same had been paid by virtue of the interim orders passed by the

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courts. It is not expected that the respondent-wife has sustained herself without spending the said money.
Keeping in view the totality of the circumstances and the social strata from which the parties come from
and regard being had to the business prospects of the appellant, permanent alimony of Rs.50 lacs (rupees
fifty lacs only) should be fixed and, accordingly, we so do. The said amount of Rs.50 lacs (rupees fifty
lacs only) shall be deposited by way of bank draft before the trial court within a period of four months and
the same shall be handed over to the respondent-wife on proper identification.

43.Consequently, the appeal is allowed, the judgments and decrees of the courts below are set aside and a
decree for divorce in favour of the appellant is granted. Further, the husband shall pay Rs.50 lacs (rupees
fifty lacs only) towards permanent alimony to the wife in the manner as directed hereinabove. The parties
shall bear their respective costs.

Appeal Allowed.

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