REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1794 OF 2013
(Arising out of Special Leave Petition (Civil) No. 4782 of 2007)
K. SRINIVAS RAO … APPELLANT
Versus
D.A. DEEPA … RESPONDENT
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. This appeal, by special leave, has been filed by the appellant-
husband, being aggrieved by the judgment and order dated 8/11/2006 passed
by the Andhra Pradesh High Court in Civil Miscellaneous Appeal No.797/03,
setting aside the decree of divorce granted in his favour.
3. The appellant-husband is working as Assistant Registrar in the Andhra
Pradesh High Court. The marriage between the appellant-husband and the
respondent-wife was solemnized on 25/4/1999 as per Hindu rites and customs.
Unfortunately, on the very next day disputes arose between the elders on
both sides which resulted in their abusing each other and hurling chappals
at each other. As a consequence, on 27/4/1999, the newly married couple got
separated without consummation of the marriage and started living
separately. On 4/10/1999, the respondent-wife lodged a criminal complaint
against the appellant-husband before the Women Protection Cell alleging
inter alia that the appellant-husband is harassing her for more dowry. This
complaint is very crucial to this case. We shall advert to it more in
detail a little later. Escalated acrimony led to complaints and counter
complaints. The respondent-wife filed a petition under Section 9 of the
Hindu Marriage Act, 1955 for restitution of conjugal rights before the
Family Court, Secunderabad. The appellant-husband filed a counter-claim
seeking dissolution of marriage on the ground of cruelty and desertion
under Section 13(1)(i-a) and (b) of the Hindu Marriage Act, 1955.
4. The Family Court while dismissing the petition for restitution of
conjugal rights and granting decree of divorce inter alia held that the
respondent-wife stayed in the appellant-husband’s house only for a day, she
admitted that she did not have any conversation with anyone and hence any
amount of oral evidence adduced by her will not support her plea that she
was harassed and driven out of the house; that the story that the appellant-
husband made a demand of dowry of Rs.10,00,000/- is false; that by filing
false complaint against the appellant-husband and his family, alleging
offence under Section 498-A of the IPC in the Metropolitan Magistrate
Court, Hyderabad and by filing complaints against the appellant-husband in
the High Court where he is working, the respondent-wife caused mental
cruelty to the appellant-husband and that reunion was not possible. The
Family Court directed the appellant-husband to repay Rs.80,000/- given by
the respondent-wife’s father to him with interest at 8% per annum from the
date of the marriage till payment.
5. By the impugned judgment the High Court allowed the appeal carried by
the respondent-wife against the said judgment and set aside the decree of
divorce granted in favour of the appellant-husband. The High Court inter
alia observed that the finding of the Family Court that lodging a complaint
with the police against the appellant-husband amounts to cruelty is
perverse because it is not a ground for divorce under the Hindu Marriage
Act, 1955. The High Court further held that the appellant-husband and the
respondent-wife did not live together for a long time and, therefore, the
question of their treating each other with cruelty does not arise.
According to the High Court, the conclusion that the respondent-wife caused
mental cruelty to the appellant-husband is based on presumptions and
assumptions.
6. Mr. Jayanth Muth Raj, learned counsel for the appellant-husband
assailed the conduct of the respondent-wife and submitted that it
disentitles her from getting any relief from this Court. Counsel took us
through the complaint lodged by the respondent-wife with the Superintendent
of Police, Women Protection Cell, Hyderabad, making defamatory allegations
against the mother of the appellant-husband and drew our attention to the
various legal proceedings initiated by her against the appellant-husband
and his family. Counsel submitted that she also lodged complaints with the
High Court asking for the removal of the appellant-husband from his job.
Counsel submitted that by lodging such false complaints the respondent-wife
caused extreme mental cruelty to the appellant-husband. Counsel submitted
that the High Court fell into a grave error in observing that because the
respondent-wife did not live with the appellant-husband for long she could
not have caused mental cruelty to him. Counsel submitted that this
observation is erroneous and is contrary to the law laid down by this
Court. False and defamatory allegations made in the pleadings can also
cause mental cruelty. Counsel submitted that the marriage has
irretrievably broken down and, therefore, it is necessary to dissolve it by
a decree of divorce. In support of his submissions counsel placed reliance
on G.V.N. Kameswara Rao vs. G. Jabilli[1], Parveen Mehta vs. Inderjit
Mehta[2], Vijayakumar R. Bhate vs. Neela Vijayakumar Bhate[3], Durga
Prasanna Tripathy vs. Arundhati Tripathy[4], Naveen Kohli vs. Neelu
Kohli[5] and Samar Ghosh vs. Jaya Ghosh[6].
7. Mr. D. Rama Krishna Reddy, learned counsel for the respondent-wife,
on the other hand, submitted that the father of the respondent-wife had
given Rs.80,000/- and 15 tolas of gold as dowry to the appellant-husband’s
family. However, they demanded additional cash of Rs.10,00,000/-. Because
this demand could not be met, the respondent-wife and her family was
humiliated and ill-treated. Therefore, the parents of the respondent-wife
had to return to their house along with her immediately after marriage.
The father of the respondent-wife made efforts to talk to the appellant-
husband’s family, but, they did not respond to his efforts. They persisted
with their demands and, therefore, the respondent-wife had no alternative
but to lodge complaint against them under Section 498-A of the IPC before
the Metropolitan Magistrate, Hyderabad. The appellant-husband thereafter
gave a false assurance that he will not harass her and, therefore, she
withdrew the complaint and went to the matrimonial house. However, the
approach of the appellant-husband and his family did not change. She had to
therefore renew her complaint. Counsel submitted that only because of the
obstinate and uncompromising attitude of the appellant-husband and his
family that the respondent-wife had to take recourse to court proceedings.
Counsel submitted that the respondent-wife values the matrimonial tie. She
wants to lead a happy married life with the appellant-husband. She had,
therefore, filed a petition for restitution of conjugal rights which should
have been allowed by the Family Court. Counsel submitted that after
properly evaluating all the circumstances the High Court has rightly set
aside the decree of divorce and granted a decree of restitution of conjugal
rights. The High Court’s judgment, therefore, merits no interference.
8. The matrimonial dispute started with a quarrel between the elders of
both sides in which initially the appellant-husband and the respondent-wife
were not involved. The ego battle of the elders took an ugly turn.
Parties were dragged to the court and the inevitable happened. The
relations between the two families got strained. With a fond hope that we
could bring about a settlement we requested the counsel to talk to the
parties and convey our wishes that they should bury the hatchet and start
living together. We also tried to counsel them in the court. The
respondent-wife appears to be very keen to go back to the matrimonial home
and start life afresh, but the appellant-husband is adamant. He conveyed
to us through his counsel that by filing repeated false complaints against
him and his family the respondent-wife has caused extreme cruelty to them
and therefore it will not be possible to take her back. In view of this we
have no option but to proceed with the case.
9. The High Court has taken a view that since the appellant-husband and
the respondent-wife did not stay together, there is no question of their
causing cruelty to each other. The High Court concluded that the
conclusion drawn by the Family Court that the respondent-wife caused mental
cruelty to the appellant-husband is erroneous. We are unable to agree with
the High Court.
10. Under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, a marriage
can be dissolved by a decree of divorce on a petition presented either by
the husband or the wife on the ground that the other party has, after
solemnization of the marriage, treated the petitioner with cruelty. In a
series of judgments this Court has repeatedly stated the meaning and
outlined the scope of the term ‘cruelty’. Cruelty is evident where one
spouse has so treated the other and manifested such feelings towards her or
him as to cause in her or his mind reasonable apprehension that it will be
harmful or injurious to live with the other spouse. Cruelty may be
physical or mental.
11. In Samar Ghosh this Court set out illustrative cases where inference
of ‘mental cruelty’ can be drawn. This list is obviously not exhaustive
because each case presents it’s own peculiar factual matrix and existence
or otherwise of mental cruelty will have to be judged after applying mind
to it. We must quote the relevant paragraph of Samar Ghosh. We have
reproduced only the instances which are relevant to the present case.
“101. No uniform standard can ever be laid down for guidance, yet we
deem it appropriate to enumerate some instances of human behaviour
which may be relevant in dealing with the cases of “mental cruelty”.
The instances indicated in the succeeding paragraphs are only
illustrative and not exhaustive:
(i) On consideration of complete matrimonial life of the parties,
acute mental pain, agony and suffering as would not make possible for
the parties to live with each other could come within the broad
parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the
parties, it becomes abundantly clear that situation is such that the
wronged party cannot reasonably be asked to put up with such conduct
and continue to live with other party.
(iii) xxx xxx xxx
(iv) Mental cruelty is a state of mind. The feeling of deep anguish,
disappointment, frustration in one spouse caused by the conduct of
other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated
to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse
actually affecting physical and mental health of the other spouse. The
treatment complained of and the resultant danger or apprehension must
be very grave, substantial and weighty.
(vii) xxx xxx xxx
(viii) xxx xxx xxx
(ix) xxx xxx xxx
(x) The married life should be reviewed as a whole and a few isolated
instances over a period of years will not amount to cruelty. The ill
conduct must be persistent for a fairly lengthy period, where the
relationship has deteriorated to an extent that because of the acts
and behaviour of a spouse, the wronged party finds it extremely
difficult to live with the other party any longer, may amount to
mental cruelty.
(xi) xxx xxx xxx
(xii) xxx xxx xxx
(xiii) xxx xxx xxx
(xiv) Where there has been a long period of continuous separation, it
may fairly be concluded that the matrimonial bond is beyond repair.
The marriage becomes a fiction though supported by a legal tie. By
refusing to sever that tie, the law in such cases, does not serve the
sanctity of marriage; on the contrary, it shows scant regard for the
feelings and emotions of the parties. In such like situations, it may
lead to mental cruelty.”
It is pertinent to note that in this case the husband and wife had
lived separately for more than sixteen and a half years. This fact was
taken into consideration along with other facts as leading to the
conclusion that matrimonial bond had been ruptured beyond repair because of
the mental cruelty caused by the wife. Similar view was taken in Naveen
Kohli.
12. In V. Bhagat v. D. Bhagat[7] in the divorce petition filed by the
husband the wife filed written statement stating that the husband was
suffering from mental hallucination, that his was a morbid mind for which
he needs expert psychiatric treatment and that he was suffering from
‘paranoid disorder’. In cross-examination her counsel put several
questions to the husband suggesting that several members of his family
including his grandfather were lunatics. This court held that these
assertions cannot but constitute mental cruelty of such a nature that the
husband cannot be asked to live with the wife thereafter. Such pleadings
and questions it was held, are bound to cause immense mental pain and
anguish to the husband. In Vijaykumar Bhate disgusting accusations of
unchastity and indecent familiarity with a neighbour were made in the
written statement. This Court held that the allegations are of such
quality, magnitude and consequence as to cause mental pain, agony and
suffering amounting to the reformulated concept of cruelty in matrimonial
law causing profound and lasting disruption and driving the wife to feel
deeply hurt and reasonably apprehend that it would be dangerous to live
with her husband. In Naveen Kohli the respondent-wife got an advertisement
issued in a national newspaper that her husband was her employee. She got
another news item issued cautioning his business associates to avoid
dealing with him. This was treated as causing mental cruelty to the
husband.
13. In Naveen Kohli the wife had filed several complaints and cases
against the husband. This Court viewed her conduct as a conduct causing
mental cruelty and observed that the finding of the High Court that these
proceedings could not be taken to be such which may warrant annulment of
marriage is wholly unsustainable.
14. Thus, to the instances illustrative of mental cruelty noted in Samar
Ghosh, we could add a few more. Making unfounded indecent defamatory
allegations against the spouse or his or her relatives in the pleadings,
filing of complaints or issuing notices or news items which may have
adverse impact on the business prospect or the job of the spouse and filing
repeated false complaints and cases in the court against the spouse would,
in the facts of a case, amount to causing mental cruelty to the other
spouse.
15. We shall apply the above principles to the present case. Firstly, it
is necessary to have a look at the legal proceedings initiated by both
sides against each other. The facts on record disclose that after the
marriage, due to some dispute which arose between the elders, both sides
abused and virtually attacked each other. The respondent-wife was taken by
her parents to their house. According to the respondent-wife, her father
made efforts to bring about an amicable settlement but the other side did
not respond favourably and, therefore, on 4/10/1999 she lodged a complaint
with the Superintendent of Police, Women Protection Cell against the
appellant-husband and members of his family. In our opinion, this
complaint is, to a large extent, responsible for widening the rift between
the parties. In this complaint, after alleging ill-treatment and
harassment for dowry, it is alleged that mother of the appellant-husband
asked the respondent-wife to sleep with the father of the appellant-
husband. When she was cross-examined in the Family Court during the hearing
of her petition for restitution of conjugal rights the respondent-wife
admitted that she had lodged the complaint. PW-2 her mother, in her cross-
examination stated that though they had asked her not to lodge the
complaint, the respondent-wife lodged it. She told them that she had
lodged the complaint because the appellant-husband was not listening to
her. Thus, it appears that this complaint was lodged out of frustration
and anger and was a reaction to the appellant-husband’s refusal to live
with her. It was, perhaps, felt by her that because of the pressure of
such a complaint the appellant-husband would take her back to his house.
Far from helping the respondent-wife, the complaint appears to have caused
irreparable harm to her. It increased the bitterness. Perhaps, the
respondent-wife was misguided by someone. But, such evidence is not on
record. Even in this court, this complaint appears to us to be a major
factor amongst others impeding settlement. Pursuant to the said complaint,
Crime No.8/2000 was registered by C.I.D., Hyderabad, in the Metropolitan
Magistrate (Mahila Court), Hyderabad against the appellant-husband and his
family under Section 498-A of the IPC. It is the respondent-wife’s case
that the appellant-husband gave an assurance before the police that he will
not harass her. She, therefore, withdrew the complaint. The police then
filed a closure report. According to the respondent-wife, the appellant-
husband did not abide by the promise made by him and, therefore, she filed
a protest petition. The Magistrate Court, Hyderabad, then, took cognizance
of the case and renumbered the case as C.C.No.62/2002.
16. In the meantime, the respondent-wife filed O.P.No.88/2001 in the
Family Court, Secunderabad, for restitution of conjugal rights. The
appellant-husband filed a counter claim for divorce on 27/12/2002. The
Family Court dismissed the petition for restitution of conjugal rights and
allowed the counter claim for divorce filed by the appellant-husband. The
respondent-wife challenged the Family Court judgment in the High Court. On
8/12/2006 the High Court reversed the Family Court’s order and allowed the
petition for restitution of conjugal rights. The present appeal is filed
by the appellant-husband against the said judgment.
17. According to the respondent-wife, on 17/9/2007 when she, along with
her mother, came out of the court after a case filed by her against the
appellant-husband was adjourned, the appellant-husband beat her mother and
kicked her on her stomach. Both of them received injuries. She,
therefore, filed complaint for the offence punishable under Section 324 of
the IPC against the appellant-husband (C.C.No. 79/2009). It may be stated
here that on 19/10/2009 the appellant-husband was acquitted in this case.
18. On 24/6/2008 the judgment was delivered by Additional Chief
Metropolitan Magistrate, Hyderabad in C.C.No. 62/2002. The appellant-
husband was convicted under Section 498-A of the IPC and was sentenced to
undergo six months simple imprisonment. He and his parents were acquitted
of the offences under the Dowry Prohibition Act. His parents were
acquitted of the offence under Section 498-A of the IPC. After this
judgment the respondent-wife and her parents filed a complaint in the High
Court saying that since the appellant-husband was convicted he should be
dismissed from service. Similar letters were sent to the High Court by the
maternal uncle of the respondent-wife.
19. On 14/7/2008 the appellant-husband filed Criminal Appeal No.186/2008
challenging his conviction under Section 498-A of the IPC before the
Metropolitan Sessions Judge. It is pertinent to note that the respondent-
wife filed Criminal Appeal No.1219/2008 in the High Court questioning the
acquittal of the appellant-husband and his parents of the offences under
the Dowry Prohibition Act and also the acquittal of his parents of the
offence punishable under Section 498-A of the IPC. This appeal is pending
in the High Court. Not being content with this, the respondent-wife filed
Criminal Revision Case No.1560/2008 in the High Court seeking enhancement
of punishment awarded to the appellant-husband for offence under Section
498-A of the IPC.
20. According to the appellant-husband on 6/12/2009 the brother of the
respondent-wife came to their house and attacked his mother. His mother
filed a complaint and the police registered a complaint under Section 354
of the IPC. The brother of the respondent-wife also lodged a complaint and
an offence came to be registered. Both the cases are pending.
21. On 29/6/2010 Criminal Appeal No. 186/2010 filed by the appellant-
husband challenging his conviction for the offence under Section 498-A of
the IPC was allowed by the Metropolitan Sessions Judge and he was
acquitted. The respondent-wife has filed criminal appeal in the High Court
challenging the said acquittal which is pending.
22. We need to now see the effect of the above events. In our opinion,
the first instance of mental cruelty is seen in the scurrilous, vulgar and
defamatory statement made by the respondent-wife in her complaint dated
4/10/1999 addressed to the Superintendent of Police, Women Protection Cell.
The statement that the mother of the appellant-husband asked her to sleep
with his father is bound to anger him. It is his case that this
humiliation of his parents caused great anguish to him. He and his family
were traumatized by the false and indecent statement made in the complaint.
His grievance appears to us to be justified. This complaint is a part of
the record. It is a part of the pleadings. That this statement is false
is evident from the evidence of the mother of the respondent-wife, which we
have already quoted. This statement cannot be explained away by stating
that it was made because the respondent-wife was anxious to go back to the
appellant-husband. This is not the way to win the husband back. It is
well settled that such statements cause mental cruelty. By sending this
complaint the respondent-wife has caused mental cruelty to the appellant-
husband.
23. Pursuant to this complaint, the police registered a case under
Section 498-A of the IPC. The appellant-husband and his parents had to
apply for anticipatory bail, which was granted to them. Later, the
respondent-wife withdrew the complaint. Pursuant to the withdrawal, the
police filed a closure report. Thereafter, the respondent-wife filed a
protest petition. The trial court took cognizance of the case against the
appellant-husband and his parents (CC No. 62/2002). What is pertinent to
note is that the respondent-wife filed criminal appeal in the High Court
challenging the acquittal of the appellant-husband and his parents of the
offences under the Dowry Prohibition Act and also the acquittal of his
parents of the offence punishable under Section 498-A of the IPC. She
filed criminal revision seeking enhancement of the punishment awarded to
the appellant-husband for the offence under Section 498-A of the IPC in the
High Court which is still pending. When the criminal appeal filed by the
appellant-husband challenging his conviction for the offence under Section
498-A of the IPC was allowed and he was acquitted, the respondent-wife
filed criminal appeal in the High Court challenging the said acquittal.
During this period respondent-wife and members of her family have also
filed complaints in the High Court complaining about the appellant-husband
so that he would be removed from the job. The conduct of the respondent-
wife in filing a complaint making unfounded, indecent and defamatory
allegation against her mother-in-law, in filing revision seeking
enhancement of the sentence awarded to the appellant-husband, in filing
appeal questioning the acquittal of the appellant-husband and acquittal of
his parents indicates that she made all attempts to ensure that he and his
parents are put in jail and he is removed from his job. We have no manner
of doubt that this conduct has caused mental cruelty to the appellant-
husband.
24. In our opinion, the High Court wrongly held that because the
appellant-husband and the respondent-wife did not stay together there is no
question of the parties causing cruelty to each other. Staying together
under the same roof is not a pre-condition for mental cruelty. Spouse can
cause mental cruelty by his or her conduct even while he or she is not
staying under the same roof. In a given case, while staying away, a spouse
can cause mental cruelty to the other spouse by sending vulgar and
defamatory letters or notices or filing complaints containing indecent
allegations or by initiating number of judicial proceedings making the
other spouse’s life miserable. This is what has happened in this case.
25. It is also to be noted that the appellant-husband and the respondent-
wife are staying apart from 27/4/1999. Thus, they are living separately
for more than ten years. This separation has created an unbridgeable
distance between the two. As held in Samar Ghosh, if we refuse to sever
the tie, it may lead to mental cruelty.
26. We are also satisfied that this marriage has irretrievably broken
down. Irretrievable breakdown of marriage is not a ground for divorce
under the Hindu Marriage Act, 1955. But, where marriage is beyond repair
on account of bitterness created by the acts of the husband or the wife or
of both, the courts have always taken irretrievable breakdown of marriage
as a very weighty circumstance amongst others necessitating severance of
marital tie. A marriage which is dead for all purposes cannot be revived
by the court’s verdict, if the parties are not willing. This is because
marriage involves human sentiments and emotions and if they are dried-up
there is hardly any chance of their springing back to life on account of
artificial reunion created by the court’s decree.
27. In V. Bhagat this Court noted that divorce petition was pending for
eight years and a good part of the lives of both the parties had been
consumed in litigation, yet the end was not in sight. The facts were such
that there was no question of reunion, the marriage having irretrievably
broken down. While dissolving the marriage on the ground of mental cruelty
this Court observed that irretrievable breakdown of marriage is not a
ground by itself, but, while scrutinizing the evidence on record to
determine whether the grounds alleged are made out and in determining the
relief to be granted the said circumstance can certainly be borne in mind.
In Naveen Kohli, where husband and wife had been living separately for more
than 10 years and a large number of criminal proceedings had been initiated
by the wife against the husband, this Court observed that the marriage had
been wrecked beyond the hope of salvage and public interest and interest of
all concerned lies in the recognition of the fact and to declare defunct de
jure what is already defunct de facto. It is important to note that in
this case this Court made a recommendation to the Union of India that the
Hindu Marriage Act, 1955 be amended to incorporate irretrievable breakdown
of marriage as a ground for the grant of divorce.
28. In the ultimate analysis, we hold that the respondent-wife has caused
by her conduct mental cruelty to the appellant-husband and the marriage has
irretrievably broken down. Dissolution of marriage will relieve both sides
of pain and anguish. In this Court the respondent-wife expressed that she
wants to go back to the appellant-husband, but, that is not possible now.
The appellant-husband is not willing to take her back. Even if we refuse
decree of divorce to the appellant-husband, there are hardly any chances of
the respondent-wife leading a happy life with the appellant-husband because
a lot of bitterness is created by the conduct of the respondent-wife.
29. In Vijay Kumar, it was submitted that if the decree of divorce is set
aside, there may be fresh avenues and scope for reconciliation between
parties. This court observed that judged in the background of all
surrounding circumstances, the claim appeared to be too desolate, merely
born out of despair rather than based upon any real, concrete or genuine
purpose or aim. In the facts of this case we feel the same.
30. While we are of the opinion that decree of divorce must be granted,
we are alive to the plight of the respondent-wife. The appellant-husband
is working as an Assistant Registrar in the Andhra Pradesh High Court. He
is getting a good salary. The respondent-wife fought the litigation for
more than 10 years. She appears to be entirely dependent on her parents
and on her brother, therefore, her future must be secured by directing the
appellant-husband to give her permanent alimony. In the facts and
circumstance of this case, we are of the opinion that the appellant-husband
should be directed to pay a sum of Rs.15,00,000/- (Rupees Fifteen Lakhs
only) to the respondent-wife as and by way of permanent alimony. In the
result, the impugned judgment is quashed and set aside. The marriage
between the appellant-husband - K. Srinivas Rao and the respondent-wife -
D.A. Deepa is dissolved by a decree of divorce. The appellant-husband
shall pay to the respondent-wife permanent alimony in the sum of
Rs.15,00,000/-, in three instalments. The first instalment of Rs.5,00,000/-
(Rupees Five Lakhs only) should be paid on 15/03/2013 and the remaining
amount of Rs.10,00,000/- (Rupees Ten Lakhs only) should be paid in
instalments of Rs.5,00,000/- each after a gap of two months i.e. on
15/05/2013 and 15/07/2013 respectively. Each instalment of Rs.5,00,000/-
be paid by a demand draft drawn in favour of the respondent-wife “D.A.
Deepa”.
31. Before parting, we wish to touch upon an issue which needs to be
discussed in the interest of victims of matrimonial disputes. Though in
this case, we have recorded a finding that by her conduct, the respondent-
wife has caused mental cruelty to the appellant-husband, we may not be
understood, however, to have said that the fault lies only with the
respondent-wife. In matrimonial disputes there is hardly any case where
one spouse is entirely at fault. But, then, before the dispute assumes
alarming proportions, someone must make efforts to make parties see reason.
In this case, if at the earliest stage, before the respondent-wife filed
the complaint making indecent allegation against her mother-in-law, she
were to be counselled by an independent and sensible elder or if the
parties were sent to a mediation centre or if they had access to a pre-
litigation clinic, perhaps the bitterness would not have escalated. Things
would not have come to such a pass if, at the earliest, somebody had
mediated between the two. It is possible that the respondent-wife was
desperate to save the marriage. Perhaps, in desperation, she lost balance
and went on filing complaints. It is possible that she was misguided.
Perhaps, the appellant-husband should have forgiven her indiscretion in
filing complaints in the larger interest of matrimony. But, the way the
respondent-wife approached the problem was wrong. It portrays a vindictive
mind. She caused extreme mental cruelty to the appellant-husband. Now the
marriage is beyond repair.
32. Quite often, the cause of the misunderstanding in a matrimonial
dispute is trivial and can be sorted. Mediation as a method of alternative
dispute resolution has got legal recognition now. We have referred several
matrimonial disputes to mediation centres. Our experience shows that about
10 to 15% of matrimonial disputes get settled in this Court through various
mediation centres. We, therefore, feel that at the earliest stage i.e.
when the dispute is taken up by the Family Court or by the court of first
instance for hearing, it must be referred to mediation centres.
Matrimonial disputes particularly those relating to custody of child,
maintenance, etc. are preeminently fit for mediation. Section 9 of the
Family Courts Act enjoins upon the Family Court to make efforts to settle
the matrimonial disputes and in these efforts, Family Courts are assisted
by Counsellors. Even if the Counsellors fail in their efforts, the Family
Courts should direct the parties to mediation centres, where trained
mediators are appointed to mediate between the parties. Being trained in
the skill of mediation, they produce good results.
33. The idea of pre-litigation mediation is also catching up. Some
mediation centres have, after giving wide publicity, set up “Help Desks” at
prominent places including facilitation centres at court complexes to
conduct pre-litigation mediation. We are informed that in Delhi Government
Mediation and Conciliation Centres, and in Delhi High Court Mediation
Centre, several matrimonial disputes are settled. These centres have a
good success rate in pre-litigation mediation. If all mediation centres
set up pre-litigation desks/clinics by giving sufficient publicity and
matrimonial disputes are taken up for pre-litigation settlement, many
families will be saved of hardship if, at least, some of them are settled.
34. While purely a civil matrimonial dispute can be amicably settled by a
Family Court either by itself or by directing the parties to explore the
possibility of settlement through mediation, a complaint under Section 498-
A of the IPC presents difficulty because the said offence is not
compoundable except in the State of Andhra Pradesh where by a State
amendment, it has been made compoundable. Though in Ramgopal & Anr. v.
State of Madhya Pradesh & Anr.[8], this Court requested the Law Commission
and the Government of India to examine whether offence punishable under
Section 498-A of the IPC could be made compoundable, it has not been made
compoundable as yet. The courts direct parties to approach mediation
centres where offences are compoundable. Offence punishable under Section
498-A being a non-compoundable offence, such a course is not followed in
respect thereof. This Court has always adopted a positive approach and
encouraged settlement of matrimonial disputes and discouraged their
escalation. In this connection, we must refer to the relevant paragraph
from G.V. Rao v. L.H.V. Prasad & Ors.[9], where the complaint appeared to
be the result of matrimonial dispute, while refusing to interfere with the
High Court’s order quashing the complaint, this court made very pertinent
observations, which read thus:
“12. There has been an outburst of matrimonial disputes in recent
times. Marriage is a sacred ceremony, the main purpose of which is to
enable the young couple to settle down in life and live peacefully.
But little matrimonial skirmishes suddenly erupt which often assume
serious proportions resulting in commission of heinous crimes in which
elders of the family are also involved with the result that those who
could have counselled and brought about rapprochement are rendered
helpless on their being arrayed as accused in the criminal case. There
are many other reasons which need not be mentioned here for not
encouraging matrimonial litigation so that the parties may ponder over
their defaults and terminate their disputes amicably by mutual
agreement instead of fighting it out in a court of law where it takes
years and years to conclude and in that process the parties lose their
“young” days in chasing their “cases” in different courts.”
In B.S. Joshi & Ors. v. State of Haryana & Anr.[10], after referring
to the above observations, this Court stated that the said observations are
required to be kept in view by courts while dealing with matrimonial
disputes and held that complaint involving offence under Section 498-A of
the IPC can be quashed by the High Court in exercise of its powers under
Section 482 of the Code if the parties settle their dispute. Even in Gian
Singh v. State of Punjab & Anr.[11], this Court expressed that certain
offences which overwhelmingly and predominantly bear civil flavour like
those arising out of matrimony, particularly relating to dowry, etc. or the
family dispute and where the offender and the victim had settled all
disputes between them amicably, irrespective of the fact that such offences
have not been made compoundable, the High Court may quash the criminal
proceedings if it feels that by not quashing the same, the ends of justice
shall be defeated.
35. We, therefore, feel that though offence punishable under Section 498-
A of the IPC is not compoundable, in appropriate cases if the parties are
willing and if it appears to the criminal court that there exist elements
of settlement, it should direct the parties to explore the possibility of
settlement through mediation. This is, obviously, not to dilute the
rigour, efficacy and purport of Section 498-A of the IPC, but to locate
cases where the matrimonial dispute can be nipped in bud in an equitable
manner. The judges, with their expertise, must ensure that this exercise
does not lead to the erring spouse using mediation process to get out of
clutches of the law. During mediation, the parties can either decide to
part company on mutually agreed terms or they may decide to patch up and
stay together. In either case for the settlement to come through, the
complaint will have to be quashed. In that event, they can approach the
High Court and get the complaint quashed. If however they chose not to
settle, they can proceed with the complaint. In this exercise, there is no
loss to anyone. If there is settlement, the parties will be saved from the
trials and tribulations of a criminal case and that will reduce the burden
on the courts which will be in the larger public interest. Obviously, the
High Court will quash the complaint only if after considering all
circumstances it finds the settlement to be equitable and genuine. Such a
course, in our opinion, will be beneficial to those who genuinely want to
accord a quietus to their matrimonial disputes. We would, however, like to
clarify that reduction of burden of cases on the courts will, however, be
merely an incidental benefit and not the reason for sending the parties for
mediation. We recognize ‘mediation’ as an effective method of alternative
dispute resolution in matrimonial matters and that is the reason why we
want the parties to explore the possibility of settlement through mediation
in matrimonial disputes.
36. We, therefore, issue directions, which the courts dealing with the
matrimonial matters shall follow:
a) In terms of Section 9 of the Family Courts Act, the Family Courts
shall make all efforts to settle the matrimonial disputes through
mediation. Even if the Counsellors submit a failure report, the
Family Courts shall, with the consent of the parties, refer the
matter to the mediation centre. In such a case, however, the
Family Courts shall set a reasonable time limit for mediation
centres to complete the process of mediation because otherwise the
resolution of the disputes by the Family Court may get delayed. In
a given case, if there is good chance of settlement, the Family
Court in its discretion, can always extend the time limit.
b) The criminal courts dealing with the complaint under Section 498-A
of the IPC should, at any stage and particularly, before they take
up the complaint for hearing, refer the parties to mediation centre
if they feel that there exist elements of settlement and both the
parties are willing. However, they should take care to see that in
this exercise, rigour, purport and efficacy of Section 498-A of the
IPC is not diluted. Needless to say that the discretion to grant
or not to grant bail is not in any way curtailed by this direction.
It will be for the concerned court to work out the modalities
taking into consideration the facts of each case.
c) All mediation centres shall set up pre-litigation desks/clinics;
give them wide publicity and make efforts to settle matrimonial
disputes at pre-litigation stage.
37. The appeal is disposed of in the aforestated terms.
……………………………………………..J.
(AFTAB ALAM)
……………………………………………..J.
(RANJANA PRAKASH DESAI)
NEW DELHI,
FEBRUARY 22, 2013.
-----------------------
[1] (2002) 2 SCC 296
[2] (2002) 5 SCC 706
[3] (2003) 6 SCC 334
[4] (2005) 7 SCC 353
[5] (2006) 4 SCC 558
[6] (2007) 4 SCC 511
[7] (1994) 1 SCC 337
[8] (2010) 13 SCC 540
[9] (2000) 3 SCC 693
[10] AIR 2003 SC 1386
[11] (2012) 10 SCC 303
-----------------------
33
source - http://judis.nic.in/supremecourt/imgst.aspx?filename=40084
pdf format @http://judis.nic.in/supremecourt/imgs1.aspx?filename=40084
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1794 OF 2013
(Arising out of Special Leave Petition (Civil) No. 4782 of 2007)
K. SRINIVAS RAO … APPELLANT
Versus
D.A. DEEPA … RESPONDENT
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. This appeal, by special leave, has been filed by the appellant-
husband, being aggrieved by the judgment and order dated 8/11/2006 passed
by the Andhra Pradesh High Court in Civil Miscellaneous Appeal No.797/03,
setting aside the decree of divorce granted in his favour.
3. The appellant-husband is working as Assistant Registrar in the Andhra
Pradesh High Court. The marriage between the appellant-husband and the
respondent-wife was solemnized on 25/4/1999 as per Hindu rites and customs.
Unfortunately, on the very next day disputes arose between the elders on
both sides which resulted in their abusing each other and hurling chappals
at each other. As a consequence, on 27/4/1999, the newly married couple got
separated without consummation of the marriage and started living
separately. On 4/10/1999, the respondent-wife lodged a criminal complaint
against the appellant-husband before the Women Protection Cell alleging
inter alia that the appellant-husband is harassing her for more dowry. This
complaint is very crucial to this case. We shall advert to it more in
detail a little later. Escalated acrimony led to complaints and counter
complaints. The respondent-wife filed a petition under Section 9 of the
Hindu Marriage Act, 1955 for restitution of conjugal rights before the
Family Court, Secunderabad. The appellant-husband filed a counter-claim
seeking dissolution of marriage on the ground of cruelty and desertion
under Section 13(1)(i-a) and (b) of the Hindu Marriage Act, 1955.
4. The Family Court while dismissing the petition for restitution of
conjugal rights and granting decree of divorce inter alia held that the
respondent-wife stayed in the appellant-husband’s house only for a day, she
admitted that she did not have any conversation with anyone and hence any
amount of oral evidence adduced by her will not support her plea that she
was harassed and driven out of the house; that the story that the appellant-
husband made a demand of dowry of Rs.10,00,000/- is false; that by filing
false complaint against the appellant-husband and his family, alleging
offence under Section 498-A of the IPC in the Metropolitan Magistrate
Court, Hyderabad and by filing complaints against the appellant-husband in
the High Court where he is working, the respondent-wife caused mental
cruelty to the appellant-husband and that reunion was not possible. The
Family Court directed the appellant-husband to repay Rs.80,000/- given by
the respondent-wife’s father to him with interest at 8% per annum from the
date of the marriage till payment.
5. By the impugned judgment the High Court allowed the appeal carried by
the respondent-wife against the said judgment and set aside the decree of
divorce granted in favour of the appellant-husband. The High Court inter
alia observed that the finding of the Family Court that lodging a complaint
with the police against the appellant-husband amounts to cruelty is
perverse because it is not a ground for divorce under the Hindu Marriage
Act, 1955. The High Court further held that the appellant-husband and the
respondent-wife did not live together for a long time and, therefore, the
question of their treating each other with cruelty does not arise.
According to the High Court, the conclusion that the respondent-wife caused
mental cruelty to the appellant-husband is based on presumptions and
assumptions.
6. Mr. Jayanth Muth Raj, learned counsel for the appellant-husband
assailed the conduct of the respondent-wife and submitted that it
disentitles her from getting any relief from this Court. Counsel took us
through the complaint lodged by the respondent-wife with the Superintendent
of Police, Women Protection Cell, Hyderabad, making defamatory allegations
against the mother of the appellant-husband and drew our attention to the
various legal proceedings initiated by her against the appellant-husband
and his family. Counsel submitted that she also lodged complaints with the
High Court asking for the removal of the appellant-husband from his job.
Counsel submitted that by lodging such false complaints the respondent-wife
caused extreme mental cruelty to the appellant-husband. Counsel submitted
that the High Court fell into a grave error in observing that because the
respondent-wife did not live with the appellant-husband for long she could
not have caused mental cruelty to him. Counsel submitted that this
observation is erroneous and is contrary to the law laid down by this
Court. False and defamatory allegations made in the pleadings can also
cause mental cruelty. Counsel submitted that the marriage has
irretrievably broken down and, therefore, it is necessary to dissolve it by
a decree of divorce. In support of his submissions counsel placed reliance
on G.V.N. Kameswara Rao vs. G. Jabilli[1], Parveen Mehta vs. Inderjit
Mehta[2], Vijayakumar R. Bhate vs. Neela Vijayakumar Bhate[3], Durga
Prasanna Tripathy vs. Arundhati Tripathy[4], Naveen Kohli vs. Neelu
Kohli[5] and Samar Ghosh vs. Jaya Ghosh[6].
7. Mr. D. Rama Krishna Reddy, learned counsel for the respondent-wife,
on the other hand, submitted that the father of the respondent-wife had
given Rs.80,000/- and 15 tolas of gold as dowry to the appellant-husband’s
family. However, they demanded additional cash of Rs.10,00,000/-. Because
this demand could not be met, the respondent-wife and her family was
humiliated and ill-treated. Therefore, the parents of the respondent-wife
had to return to their house along with her immediately after marriage.
The father of the respondent-wife made efforts to talk to the appellant-
husband’s family, but, they did not respond to his efforts. They persisted
with their demands and, therefore, the respondent-wife had no alternative
but to lodge complaint against them under Section 498-A of the IPC before
the Metropolitan Magistrate, Hyderabad. The appellant-husband thereafter
gave a false assurance that he will not harass her and, therefore, she
withdrew the complaint and went to the matrimonial house. However, the
approach of the appellant-husband and his family did not change. She had to
therefore renew her complaint. Counsel submitted that only because of the
obstinate and uncompromising attitude of the appellant-husband and his
family that the respondent-wife had to take recourse to court proceedings.
Counsel submitted that the respondent-wife values the matrimonial tie. She
wants to lead a happy married life with the appellant-husband. She had,
therefore, filed a petition for restitution of conjugal rights which should
have been allowed by the Family Court. Counsel submitted that after
properly evaluating all the circumstances the High Court has rightly set
aside the decree of divorce and granted a decree of restitution of conjugal
rights. The High Court’s judgment, therefore, merits no interference.
8. The matrimonial dispute started with a quarrel between the elders of
both sides in which initially the appellant-husband and the respondent-wife
were not involved. The ego battle of the elders took an ugly turn.
Parties were dragged to the court and the inevitable happened. The
relations between the two families got strained. With a fond hope that we
could bring about a settlement we requested the counsel to talk to the
parties and convey our wishes that they should bury the hatchet and start
living together. We also tried to counsel them in the court. The
respondent-wife appears to be very keen to go back to the matrimonial home
and start life afresh, but the appellant-husband is adamant. He conveyed
to us through his counsel that by filing repeated false complaints against
him and his family the respondent-wife has caused extreme cruelty to them
and therefore it will not be possible to take her back. In view of this we
have no option but to proceed with the case.
9. The High Court has taken a view that since the appellant-husband and
the respondent-wife did not stay together, there is no question of their
causing cruelty to each other. The High Court concluded that the
conclusion drawn by the Family Court that the respondent-wife caused mental
cruelty to the appellant-husband is erroneous. We are unable to agree with
the High Court.
10. Under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, a marriage
can be dissolved by a decree of divorce on a petition presented either by
the husband or the wife on the ground that the other party has, after
solemnization of the marriage, treated the petitioner with cruelty. In a
series of judgments this Court has repeatedly stated the meaning and
outlined the scope of the term ‘cruelty’. Cruelty is evident where one
spouse has so treated the other and manifested such feelings towards her or
him as to cause in her or his mind reasonable apprehension that it will be
harmful or injurious to live with the other spouse. Cruelty may be
physical or mental.
11. In Samar Ghosh this Court set out illustrative cases where inference
of ‘mental cruelty’ can be drawn. This list is obviously not exhaustive
because each case presents it’s own peculiar factual matrix and existence
or otherwise of mental cruelty will have to be judged after applying mind
to it. We must quote the relevant paragraph of Samar Ghosh. We have
reproduced only the instances which are relevant to the present case.
“101. No uniform standard can ever be laid down for guidance, yet we
deem it appropriate to enumerate some instances of human behaviour
which may be relevant in dealing with the cases of “mental cruelty”.
The instances indicated in the succeeding paragraphs are only
illustrative and not exhaustive:
(i) On consideration of complete matrimonial life of the parties,
acute mental pain, agony and suffering as would not make possible for
the parties to live with each other could come within the broad
parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the
parties, it becomes abundantly clear that situation is such that the
wronged party cannot reasonably be asked to put up with such conduct
and continue to live with other party.
(iii) xxx xxx xxx
(iv) Mental cruelty is a state of mind. The feeling of deep anguish,
disappointment, frustration in one spouse caused by the conduct of
other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated
to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse
actually affecting physical and mental health of the other spouse. The
treatment complained of and the resultant danger or apprehension must
be very grave, substantial and weighty.
(vii) xxx xxx xxx
(viii) xxx xxx xxx
(ix) xxx xxx xxx
(x) The married life should be reviewed as a whole and a few isolated
instances over a period of years will not amount to cruelty. The ill
conduct must be persistent for a fairly lengthy period, where the
relationship has deteriorated to an extent that because of the acts
and behaviour of a spouse, the wronged party finds it extremely
difficult to live with the other party any longer, may amount to
mental cruelty.
(xi) xxx xxx xxx
(xii) xxx xxx xxx
(xiii) xxx xxx xxx
(xiv) Where there has been a long period of continuous separation, it
may fairly be concluded that the matrimonial bond is beyond repair.
The marriage becomes a fiction though supported by a legal tie. By
refusing to sever that tie, the law in such cases, does not serve the
sanctity of marriage; on the contrary, it shows scant regard for the
feelings and emotions of the parties. In such like situations, it may
lead to mental cruelty.”
It is pertinent to note that in this case the husband and wife had
lived separately for more than sixteen and a half years. This fact was
taken into consideration along with other facts as leading to the
conclusion that matrimonial bond had been ruptured beyond repair because of
the mental cruelty caused by the wife. Similar view was taken in Naveen
Kohli.
12. In V. Bhagat v. D. Bhagat[7] in the divorce petition filed by the
husband the wife filed written statement stating that the husband was
suffering from mental hallucination, that his was a morbid mind for which
he needs expert psychiatric treatment and that he was suffering from
‘paranoid disorder’. In cross-examination her counsel put several
questions to the husband suggesting that several members of his family
including his grandfather were lunatics. This court held that these
assertions cannot but constitute mental cruelty of such a nature that the
husband cannot be asked to live with the wife thereafter. Such pleadings
and questions it was held, are bound to cause immense mental pain and
anguish to the husband. In Vijaykumar Bhate disgusting accusations of
unchastity and indecent familiarity with a neighbour were made in the
written statement. This Court held that the allegations are of such
quality, magnitude and consequence as to cause mental pain, agony and
suffering amounting to the reformulated concept of cruelty in matrimonial
law causing profound and lasting disruption and driving the wife to feel
deeply hurt and reasonably apprehend that it would be dangerous to live
with her husband. In Naveen Kohli the respondent-wife got an advertisement
issued in a national newspaper that her husband was her employee. She got
another news item issued cautioning his business associates to avoid
dealing with him. This was treated as causing mental cruelty to the
husband.
13. In Naveen Kohli the wife had filed several complaints and cases
against the husband. This Court viewed her conduct as a conduct causing
mental cruelty and observed that the finding of the High Court that these
proceedings could not be taken to be such which may warrant annulment of
marriage is wholly unsustainable.
14. Thus, to the instances illustrative of mental cruelty noted in Samar
Ghosh, we could add a few more. Making unfounded indecent defamatory
allegations against the spouse or his or her relatives in the pleadings,
filing of complaints or issuing notices or news items which may have
adverse impact on the business prospect or the job of the spouse and filing
repeated false complaints and cases in the court against the spouse would,
in the facts of a case, amount to causing mental cruelty to the other
spouse.
15. We shall apply the above principles to the present case. Firstly, it
is necessary to have a look at the legal proceedings initiated by both
sides against each other. The facts on record disclose that after the
marriage, due to some dispute which arose between the elders, both sides
abused and virtually attacked each other. The respondent-wife was taken by
her parents to their house. According to the respondent-wife, her father
made efforts to bring about an amicable settlement but the other side did
not respond favourably and, therefore, on 4/10/1999 she lodged a complaint
with the Superintendent of Police, Women Protection Cell against the
appellant-husband and members of his family. In our opinion, this
complaint is, to a large extent, responsible for widening the rift between
the parties. In this complaint, after alleging ill-treatment and
harassment for dowry, it is alleged that mother of the appellant-husband
asked the respondent-wife to sleep with the father of the appellant-
husband. When she was cross-examined in the Family Court during the hearing
of her petition for restitution of conjugal rights the respondent-wife
admitted that she had lodged the complaint. PW-2 her mother, in her cross-
examination stated that though they had asked her not to lodge the
complaint, the respondent-wife lodged it. She told them that she had
lodged the complaint because the appellant-husband was not listening to
her. Thus, it appears that this complaint was lodged out of frustration
and anger and was a reaction to the appellant-husband’s refusal to live
with her. It was, perhaps, felt by her that because of the pressure of
such a complaint the appellant-husband would take her back to his house.
Far from helping the respondent-wife, the complaint appears to have caused
irreparable harm to her. It increased the bitterness. Perhaps, the
respondent-wife was misguided by someone. But, such evidence is not on
record. Even in this court, this complaint appears to us to be a major
factor amongst others impeding settlement. Pursuant to the said complaint,
Crime No.8/2000 was registered by C.I.D., Hyderabad, in the Metropolitan
Magistrate (Mahila Court), Hyderabad against the appellant-husband and his
family under Section 498-A of the IPC. It is the respondent-wife’s case
that the appellant-husband gave an assurance before the police that he will
not harass her. She, therefore, withdrew the complaint. The police then
filed a closure report. According to the respondent-wife, the appellant-
husband did not abide by the promise made by him and, therefore, she filed
a protest petition. The Magistrate Court, Hyderabad, then, took cognizance
of the case and renumbered the case as C.C.No.62/2002.
16. In the meantime, the respondent-wife filed O.P.No.88/2001 in the
Family Court, Secunderabad, for restitution of conjugal rights. The
appellant-husband filed a counter claim for divorce on 27/12/2002. The
Family Court dismissed the petition for restitution of conjugal rights and
allowed the counter claim for divorce filed by the appellant-husband. The
respondent-wife challenged the Family Court judgment in the High Court. On
8/12/2006 the High Court reversed the Family Court’s order and allowed the
petition for restitution of conjugal rights. The present appeal is filed
by the appellant-husband against the said judgment.
17. According to the respondent-wife, on 17/9/2007 when she, along with
her mother, came out of the court after a case filed by her against the
appellant-husband was adjourned, the appellant-husband beat her mother and
kicked her on her stomach. Both of them received injuries. She,
therefore, filed complaint for the offence punishable under Section 324 of
the IPC against the appellant-husband (C.C.No. 79/2009). It may be stated
here that on 19/10/2009 the appellant-husband was acquitted in this case.
18. On 24/6/2008 the judgment was delivered by Additional Chief
Metropolitan Magistrate, Hyderabad in C.C.No. 62/2002. The appellant-
husband was convicted under Section 498-A of the IPC and was sentenced to
undergo six months simple imprisonment. He and his parents were acquitted
of the offences under the Dowry Prohibition Act. His parents were
acquitted of the offence under Section 498-A of the IPC. After this
judgment the respondent-wife and her parents filed a complaint in the High
Court saying that since the appellant-husband was convicted he should be
dismissed from service. Similar letters were sent to the High Court by the
maternal uncle of the respondent-wife.
19. On 14/7/2008 the appellant-husband filed Criminal Appeal No.186/2008
challenging his conviction under Section 498-A of the IPC before the
Metropolitan Sessions Judge. It is pertinent to note that the respondent-
wife filed Criminal Appeal No.1219/2008 in the High Court questioning the
acquittal of the appellant-husband and his parents of the offences under
the Dowry Prohibition Act and also the acquittal of his parents of the
offence punishable under Section 498-A of the IPC. This appeal is pending
in the High Court. Not being content with this, the respondent-wife filed
Criminal Revision Case No.1560/2008 in the High Court seeking enhancement
of punishment awarded to the appellant-husband for offence under Section
498-A of the IPC.
20. According to the appellant-husband on 6/12/2009 the brother of the
respondent-wife came to their house and attacked his mother. His mother
filed a complaint and the police registered a complaint under Section 354
of the IPC. The brother of the respondent-wife also lodged a complaint and
an offence came to be registered. Both the cases are pending.
21. On 29/6/2010 Criminal Appeal No. 186/2010 filed by the appellant-
husband challenging his conviction for the offence under Section 498-A of
the IPC was allowed by the Metropolitan Sessions Judge and he was
acquitted. The respondent-wife has filed criminal appeal in the High Court
challenging the said acquittal which is pending.
22. We need to now see the effect of the above events. In our opinion,
the first instance of mental cruelty is seen in the scurrilous, vulgar and
defamatory statement made by the respondent-wife in her complaint dated
4/10/1999 addressed to the Superintendent of Police, Women Protection Cell.
The statement that the mother of the appellant-husband asked her to sleep
with his father is bound to anger him. It is his case that this
humiliation of his parents caused great anguish to him. He and his family
were traumatized by the false and indecent statement made in the complaint.
His grievance appears to us to be justified. This complaint is a part of
the record. It is a part of the pleadings. That this statement is false
is evident from the evidence of the mother of the respondent-wife, which we
have already quoted. This statement cannot be explained away by stating
that it was made because the respondent-wife was anxious to go back to the
appellant-husband. This is not the way to win the husband back. It is
well settled that such statements cause mental cruelty. By sending this
complaint the respondent-wife has caused mental cruelty to the appellant-
husband.
23. Pursuant to this complaint, the police registered a case under
Section 498-A of the IPC. The appellant-husband and his parents had to
apply for anticipatory bail, which was granted to them. Later, the
respondent-wife withdrew the complaint. Pursuant to the withdrawal, the
police filed a closure report. Thereafter, the respondent-wife filed a
protest petition. The trial court took cognizance of the case against the
appellant-husband and his parents (CC No. 62/2002). What is pertinent to
note is that the respondent-wife filed criminal appeal in the High Court
challenging the acquittal of the appellant-husband and his parents of the
offences under the Dowry Prohibition Act and also the acquittal of his
parents of the offence punishable under Section 498-A of the IPC. She
filed criminal revision seeking enhancement of the punishment awarded to
the appellant-husband for the offence under Section 498-A of the IPC in the
High Court which is still pending. When the criminal appeal filed by the
appellant-husband challenging his conviction for the offence under Section
498-A of the IPC was allowed and he was acquitted, the respondent-wife
filed criminal appeal in the High Court challenging the said acquittal.
During this period respondent-wife and members of her family have also
filed complaints in the High Court complaining about the appellant-husband
so that he would be removed from the job. The conduct of the respondent-
wife in filing a complaint making unfounded, indecent and defamatory
allegation against her mother-in-law, in filing revision seeking
enhancement of the sentence awarded to the appellant-husband, in filing
appeal questioning the acquittal of the appellant-husband and acquittal of
his parents indicates that she made all attempts to ensure that he and his
parents are put in jail and he is removed from his job. We have no manner
of doubt that this conduct has caused mental cruelty to the appellant-
husband.
24. In our opinion, the High Court wrongly held that because the
appellant-husband and the respondent-wife did not stay together there is no
question of the parties causing cruelty to each other. Staying together
under the same roof is not a pre-condition for mental cruelty. Spouse can
cause mental cruelty by his or her conduct even while he or she is not
staying under the same roof. In a given case, while staying away, a spouse
can cause mental cruelty to the other spouse by sending vulgar and
defamatory letters or notices or filing complaints containing indecent
allegations or by initiating number of judicial proceedings making the
other spouse’s life miserable. This is what has happened in this case.
25. It is also to be noted that the appellant-husband and the respondent-
wife are staying apart from 27/4/1999. Thus, they are living separately
for more than ten years. This separation has created an unbridgeable
distance between the two. As held in Samar Ghosh, if we refuse to sever
the tie, it may lead to mental cruelty.
26. We are also satisfied that this marriage has irretrievably broken
down. Irretrievable breakdown of marriage is not a ground for divorce
under the Hindu Marriage Act, 1955. But, where marriage is beyond repair
on account of bitterness created by the acts of the husband or the wife or
of both, the courts have always taken irretrievable breakdown of marriage
as a very weighty circumstance amongst others necessitating severance of
marital tie. A marriage which is dead for all purposes cannot be revived
by the court’s verdict, if the parties are not willing. This is because
marriage involves human sentiments and emotions and if they are dried-up
there is hardly any chance of their springing back to life on account of
artificial reunion created by the court’s decree.
27. In V. Bhagat this Court noted that divorce petition was pending for
eight years and a good part of the lives of both the parties had been
consumed in litigation, yet the end was not in sight. The facts were such
that there was no question of reunion, the marriage having irretrievably
broken down. While dissolving the marriage on the ground of mental cruelty
this Court observed that irretrievable breakdown of marriage is not a
ground by itself, but, while scrutinizing the evidence on record to
determine whether the grounds alleged are made out and in determining the
relief to be granted the said circumstance can certainly be borne in mind.
In Naveen Kohli, where husband and wife had been living separately for more
than 10 years and a large number of criminal proceedings had been initiated
by the wife against the husband, this Court observed that the marriage had
been wrecked beyond the hope of salvage and public interest and interest of
all concerned lies in the recognition of the fact and to declare defunct de
jure what is already defunct de facto. It is important to note that in
this case this Court made a recommendation to the Union of India that the
Hindu Marriage Act, 1955 be amended to incorporate irretrievable breakdown
of marriage as a ground for the grant of divorce.
28. In the ultimate analysis, we hold that the respondent-wife has caused
by her conduct mental cruelty to the appellant-husband and the marriage has
irretrievably broken down. Dissolution of marriage will relieve both sides
of pain and anguish. In this Court the respondent-wife expressed that she
wants to go back to the appellant-husband, but, that is not possible now.
The appellant-husband is not willing to take her back. Even if we refuse
decree of divorce to the appellant-husband, there are hardly any chances of
the respondent-wife leading a happy life with the appellant-husband because
a lot of bitterness is created by the conduct of the respondent-wife.
29. In Vijay Kumar, it was submitted that if the decree of divorce is set
aside, there may be fresh avenues and scope for reconciliation between
parties. This court observed that judged in the background of all
surrounding circumstances, the claim appeared to be too desolate, merely
born out of despair rather than based upon any real, concrete or genuine
purpose or aim. In the facts of this case we feel the same.
30. While we are of the opinion that decree of divorce must be granted,
we are alive to the plight of the respondent-wife. The appellant-husband
is working as an Assistant Registrar in the Andhra Pradesh High Court. He
is getting a good salary. The respondent-wife fought the litigation for
more than 10 years. She appears to be entirely dependent on her parents
and on her brother, therefore, her future must be secured by directing the
appellant-husband to give her permanent alimony. In the facts and
circumstance of this case, we are of the opinion that the appellant-husband
should be directed to pay a sum of Rs.15,00,000/- (Rupees Fifteen Lakhs
only) to the respondent-wife as and by way of permanent alimony. In the
result, the impugned judgment is quashed and set aside. The marriage
between the appellant-husband - K. Srinivas Rao and the respondent-wife -
D.A. Deepa is dissolved by a decree of divorce. The appellant-husband
shall pay to the respondent-wife permanent alimony in the sum of
Rs.15,00,000/-, in three instalments. The first instalment of Rs.5,00,000/-
(Rupees Five Lakhs only) should be paid on 15/03/2013 and the remaining
amount of Rs.10,00,000/- (Rupees Ten Lakhs only) should be paid in
instalments of Rs.5,00,000/- each after a gap of two months i.e. on
15/05/2013 and 15/07/2013 respectively. Each instalment of Rs.5,00,000/-
be paid by a demand draft drawn in favour of the respondent-wife “D.A.
Deepa”.
31. Before parting, we wish to touch upon an issue which needs to be
discussed in the interest of victims of matrimonial disputes. Though in
this case, we have recorded a finding that by her conduct, the respondent-
wife has caused mental cruelty to the appellant-husband, we may not be
understood, however, to have said that the fault lies only with the
respondent-wife. In matrimonial disputes there is hardly any case where
one spouse is entirely at fault. But, then, before the dispute assumes
alarming proportions, someone must make efforts to make parties see reason.
In this case, if at the earliest stage, before the respondent-wife filed
the complaint making indecent allegation against her mother-in-law, she
were to be counselled by an independent and sensible elder or if the
parties were sent to a mediation centre or if they had access to a pre-
litigation clinic, perhaps the bitterness would not have escalated. Things
would not have come to such a pass if, at the earliest, somebody had
mediated between the two. It is possible that the respondent-wife was
desperate to save the marriage. Perhaps, in desperation, she lost balance
and went on filing complaints. It is possible that she was misguided.
Perhaps, the appellant-husband should have forgiven her indiscretion in
filing complaints in the larger interest of matrimony. But, the way the
respondent-wife approached the problem was wrong. It portrays a vindictive
mind. She caused extreme mental cruelty to the appellant-husband. Now the
marriage is beyond repair.
32. Quite often, the cause of the misunderstanding in a matrimonial
dispute is trivial and can be sorted. Mediation as a method of alternative
dispute resolution has got legal recognition now. We have referred several
matrimonial disputes to mediation centres. Our experience shows that about
10 to 15% of matrimonial disputes get settled in this Court through various
mediation centres. We, therefore, feel that at the earliest stage i.e.
when the dispute is taken up by the Family Court or by the court of first
instance for hearing, it must be referred to mediation centres.
Matrimonial disputes particularly those relating to custody of child,
maintenance, etc. are preeminently fit for mediation. Section 9 of the
Family Courts Act enjoins upon the Family Court to make efforts to settle
the matrimonial disputes and in these efforts, Family Courts are assisted
by Counsellors. Even if the Counsellors fail in their efforts, the Family
Courts should direct the parties to mediation centres, where trained
mediators are appointed to mediate between the parties. Being trained in
the skill of mediation, they produce good results.
33. The idea of pre-litigation mediation is also catching up. Some
mediation centres have, after giving wide publicity, set up “Help Desks” at
prominent places including facilitation centres at court complexes to
conduct pre-litigation mediation. We are informed that in Delhi Government
Mediation and Conciliation Centres, and in Delhi High Court Mediation
Centre, several matrimonial disputes are settled. These centres have a
good success rate in pre-litigation mediation. If all mediation centres
set up pre-litigation desks/clinics by giving sufficient publicity and
matrimonial disputes are taken up for pre-litigation settlement, many
families will be saved of hardship if, at least, some of them are settled.
34. While purely a civil matrimonial dispute can be amicably settled by a
Family Court either by itself or by directing the parties to explore the
possibility of settlement through mediation, a complaint under Section 498-
A of the IPC presents difficulty because the said offence is not
compoundable except in the State of Andhra Pradesh where by a State
amendment, it has been made compoundable. Though in Ramgopal & Anr. v.
State of Madhya Pradesh & Anr.[8], this Court requested the Law Commission
and the Government of India to examine whether offence punishable under
Section 498-A of the IPC could be made compoundable, it has not been made
compoundable as yet. The courts direct parties to approach mediation
centres where offences are compoundable. Offence punishable under Section
498-A being a non-compoundable offence, such a course is not followed in
respect thereof. This Court has always adopted a positive approach and
encouraged settlement of matrimonial disputes and discouraged their
escalation. In this connection, we must refer to the relevant paragraph
from G.V. Rao v. L.H.V. Prasad & Ors.[9], where the complaint appeared to
be the result of matrimonial dispute, while refusing to interfere with the
High Court’s order quashing the complaint, this court made very pertinent
observations, which read thus:
“12. There has been an outburst of matrimonial disputes in recent
times. Marriage is a sacred ceremony, the main purpose of which is to
enable the young couple to settle down in life and live peacefully.
But little matrimonial skirmishes suddenly erupt which often assume
serious proportions resulting in commission of heinous crimes in which
elders of the family are also involved with the result that those who
could have counselled and brought about rapprochement are rendered
helpless on their being arrayed as accused in the criminal case. There
are many other reasons which need not be mentioned here for not
encouraging matrimonial litigation so that the parties may ponder over
their defaults and terminate their disputes amicably by mutual
agreement instead of fighting it out in a court of law where it takes
years and years to conclude and in that process the parties lose their
“young” days in chasing their “cases” in different courts.”
In B.S. Joshi & Ors. v. State of Haryana & Anr.[10], after referring
to the above observations, this Court stated that the said observations are
required to be kept in view by courts while dealing with matrimonial
disputes and held that complaint involving offence under Section 498-A of
the IPC can be quashed by the High Court in exercise of its powers under
Section 482 of the Code if the parties settle their dispute. Even in Gian
Singh v. State of Punjab & Anr.[11], this Court expressed that certain
offences which overwhelmingly and predominantly bear civil flavour like
those arising out of matrimony, particularly relating to dowry, etc. or the
family dispute and where the offender and the victim had settled all
disputes between them amicably, irrespective of the fact that such offences
have not been made compoundable, the High Court may quash the criminal
proceedings if it feels that by not quashing the same, the ends of justice
shall be defeated.
35. We, therefore, feel that though offence punishable under Section 498-
A of the IPC is not compoundable, in appropriate cases if the parties are
willing and if it appears to the criminal court that there exist elements
of settlement, it should direct the parties to explore the possibility of
settlement through mediation. This is, obviously, not to dilute the
rigour, efficacy and purport of Section 498-A of the IPC, but to locate
cases where the matrimonial dispute can be nipped in bud in an equitable
manner. The judges, with their expertise, must ensure that this exercise
does not lead to the erring spouse using mediation process to get out of
clutches of the law. During mediation, the parties can either decide to
part company on mutually agreed terms or they may decide to patch up and
stay together. In either case for the settlement to come through, the
complaint will have to be quashed. In that event, they can approach the
High Court and get the complaint quashed. If however they chose not to
settle, they can proceed with the complaint. In this exercise, there is no
loss to anyone. If there is settlement, the parties will be saved from the
trials and tribulations of a criminal case and that will reduce the burden
on the courts which will be in the larger public interest. Obviously, the
High Court will quash the complaint only if after considering all
circumstances it finds the settlement to be equitable and genuine. Such a
course, in our opinion, will be beneficial to those who genuinely want to
accord a quietus to their matrimonial disputes. We would, however, like to
clarify that reduction of burden of cases on the courts will, however, be
merely an incidental benefit and not the reason for sending the parties for
mediation. We recognize ‘mediation’ as an effective method of alternative
dispute resolution in matrimonial matters and that is the reason why we
want the parties to explore the possibility of settlement through mediation
in matrimonial disputes.
36. We, therefore, issue directions, which the courts dealing with the
matrimonial matters shall follow:
a) In terms of Section 9 of the Family Courts Act, the Family Courts
shall make all efforts to settle the matrimonial disputes through
mediation. Even if the Counsellors submit a failure report, the
Family Courts shall, with the consent of the parties, refer the
matter to the mediation centre. In such a case, however, the
Family Courts shall set a reasonable time limit for mediation
centres to complete the process of mediation because otherwise the
resolution of the disputes by the Family Court may get delayed. In
a given case, if there is good chance of settlement, the Family
Court in its discretion, can always extend the time limit.
b) The criminal courts dealing with the complaint under Section 498-A
of the IPC should, at any stage and particularly, before they take
up the complaint for hearing, refer the parties to mediation centre
if they feel that there exist elements of settlement and both the
parties are willing. However, they should take care to see that in
this exercise, rigour, purport and efficacy of Section 498-A of the
IPC is not diluted. Needless to say that the discretion to grant
or not to grant bail is not in any way curtailed by this direction.
It will be for the concerned court to work out the modalities
taking into consideration the facts of each case.
c) All mediation centres shall set up pre-litigation desks/clinics;
give them wide publicity and make efforts to settle matrimonial
disputes at pre-litigation stage.
37. The appeal is disposed of in the aforestated terms.
……………………………………………..J.
(AFTAB ALAM)
……………………………………………..J.
(RANJANA PRAKASH DESAI)
NEW DELHI,
FEBRUARY 22, 2013.
-----------------------
[1] (2002) 2 SCC 296
[2] (2002) 5 SCC 706
[3] (2003) 6 SCC 334
[4] (2005) 7 SCC 353
[5] (2006) 4 SCC 558
[6] (2007) 4 SCC 511
[7] (1994) 1 SCC 337
[8] (2010) 13 SCC 540
[9] (2000) 3 SCC 693
[10] AIR 2003 SC 1386
[11] (2012) 10 SCC 303
-----------------------
33
source - http://judis.nic.in/supremecourt/imgst.aspx?filename=40084
pdf format @http://judis.nic.in/supremecourt/imgs1.aspx?filename=40084
