DARSHAN GUPTAversusRADHIKA GUPTA

                    [2013] 10 S.C.R. 937


                      DARSHAN GUPTA                               A
                               v.
                      RADHIKA GUPTA
           (Civil Appeal Nos. 6332-6333 of 2009)
                         JULY 1, 2013
                                                                  B
  [P. SATHASIVAM AND JAGDISH SINGH KHEHAR, JJ.]

        Hindu Marriage Act, 1955 - ss.13(1)(ia) and (iii) - Plea
  under, of appellant-husband for dissolution of marriage - Held:
  Not tenable, since appellant-husband failed to prove the C
  ingredients of either clause (ia) or clause (iii) of s.13(1) - The
  husband failed to establish, that he was subjected to cruelty
  at the hands of the wife - On the issue of alleged aggressive
  and abnormal behavior of the wife, no material evidence
  before the Court - Such alleged behavior could have easily D
  been established through attendants of respondent-wife, but
  such witnesses were withheld, despite being easily available
  to appellant-husband - PW4, the expert witness produced by
  appel/ant-husband admitted that while examining
  respondent-wife, he did not observe any signs of E
  aggressiveness in her - Interaction of PW4 with respondent-
  wife in the court-ha/I when PW4 appeared to depose in the
  matter demonstrated that the behavior of respondent-wife was
  far from erratic - A/so, the appellant was not able to prove, that
  his wife was suffering from any incurable unsoundness of F
  mind and/or mental disorder - Respondent-wife merely
  suffered from cognitive deficiency which was acquired by her
  during her second pregnancy - Besides, she was found to
  have substantially improved from her cognitive deficiency,
  during the course of her treatment - Appellant-husband failed G
  to establish, that the mental unsoundness of mind or mental
  disorder of respondent-wife was of such degree, that he could
  not be expected to live with her - Further, appellant husband
- cannot be permitted to use his own fault to his advantage -
                              937                                 H
    938      SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A He did not heed the advise of the gynecologist, after abortion
  of the respondent's first pregnancy - The Gynecologist had
  advised the couple against planning any further conception,
  for a period of at least two years - Despite the advice, the
  appellant impregnated his wife, just after eight months of the
B said abortion - In regard to plea of appellant for dissolution
  of marriage on the ground, that matrimonial fies between the
  parties had irretrievably broken down, it is questionable as to
  whether such relief is available - Even otherwise, on facts,
  decree of divorce cannot be granted on such ground since
c the breakdown was only from the side of the husband and the
  respondent did not consent to the severance of matrimonial
  ties right from the beginning - Further plea of appellant for
  dissolution of marriage by invoking jurisdiction u!Art.142 of
  the Constitution also not tenable as, on facts, the same cannot
0 be viewed as doing justice to respondent-wife - Constitution
  of India, 1950 - Art. 142.

        Hindu Marriage Act, 1955 - s.13(1) - Divorce und.er -
  Grounds - Nature of - Held: The grounds are based on the
  'fault' of the party against whom dissolution of marriage is
E sought - It is only on the ground of an opponent's fault, that a
  party may approach a Court for seeking annulment of his/her
  matrimonial alliance - The party seeking divorce under the
  "matrimonial offence theory" I the "fault theory" must be
  innocent - A party suffering ''guilt" or "fault" disentitles himself/
F herself from consideration - Matrimonial jurisprudence -
  'Matrimonial offence theory' - 'Fault theory'.

      The appellant-husband filed petition before the
  Family Court seeking dissolution of marriage on two
G grounds. First and foremost, he claimed to have been
  subjected to cruelty on account of the intemperate
  behaviour of respondent-wife, and in this regard, relied
  on clause (ia) of Section 13(1) of the Hindu Marriage Act,
  1955. The second ground. on which the appellant-
  husband sought dissolution of marriage was, that the
H
        DARSHAN GUPTA v. RADHIKA GUPTA                   939


respondent-wife was of incurable unsound mind, and              A
suffered from such a mental disorder, that the appellant
could not be reasonably expected to live with her. In
regard to the second ground, the appellant-husband
relied on clause (iii) of Section 13(1) of the Hindu Marriage
Act, 1955. As against the aforesaid, the respondent-wife        B
filed petition, before the same Court, seeking restitution
of conjugal rights under Section 9 of the Hindu Marriage
Act,' 1955. Both the cases were clubbed together.

     The Family Court dismissed the petition filed by C
appellant-husband on the ground that he had not been
able to prove the ingredients of either clause (ia) or
clause (iii) of Section 13(1) of the Hindu Marriage Act,
1955. On the other hand, the petition filed by respondent-
wife was allowed holding that she was entitled to the relief D
of restitution of conjugal rights. The appellant-husband
was accordingly directed to receive her back into his
house within three months, and to give her moral and
emotional support. On his failure to do so, he was
directed to continue to pay the interim maintenance
amount fixed by the Family Court, till he finally accepted E
her back into his house. The appellant filed appeals
before the High .Court which were dismissed, and
therefore the present appeals.

    Dismissing the appeals, the Court                           F
    HELD: 1.1. The respondent-wife admittedly suffered
brain damage after her cesarean operation in September,
2000, during her second pregnancy. She had remained
unconscious for some time even after having delivered
a baby on 20.9.2000. It appears, that at the time of            G
regaining consciousness, she was totally disoriented,
having lost her memory. The extent to which she had lost
her memory was most definitely substantial, as it is clear,
that she could not even recognize persons of close
                                                                H
    940      SUPREME COURT REPORTS           (2013] 10 S.C.R.


A   affinity. Not only that, even her speech was substantially
    impaired. [Para 28] (967-E-G, HJ

         1.2. To deal with the medical condition of
    respondent-wife, the appellant-husband seems to have
    initially extended full financial support, by seeking
8
    consultation of specialists in fields wherein respondent-
    wife needed assistance. He also ensured, that such
    treatment was provided to her at premium hospitals.
    [Para 29] (968-A-B]

c         1.3. It, however, seems, that the appellant-husband
     was skeptical about the outcome of her recovery. His
     assessment of her medical condition, in the background
    ·of the inputs from the doctors attending on her, probably
     created the impression, that she would henceforth be a
D    liability on him. Keeping in mind the hopeless condition
     of respondent-wife, the appellant-husband could not
     have expected any kind of positive relationship with
     respondent-wife. In 2000, when the unfortunate incident
     occurred, he was merely 25 years old. One would expect,
E    that all his dreams of a happy married life, came to be
     shattered after seeing the medical condition of his wife,
     specially in the background of the assessment made by
     the experts being consulted. It is in the aforesaid
     background, that it is easier to understand why he had
     refrained from extending emotional or moral support to
F
     respondent-wife. But the inescapable truth is, that
     factually the appellant-husband did not extend emotional
     or moral support to his wife, after her medical episode.
     The distress of the appellant, and the distance that he
G    started to keep from his wife, emerge from the statement
     of RW1. RW1 placed on the record of the Family Court
     three documents (Exhibits R1 to R3) pertaining to the
     treatment of respondent-wife during 2002. The attending
     doctor of respondent-wife considered it appropriate to
     expressly record in one of these reports, that during
H
       DARSHAN GUPTA v. RADHIKA GUPTA                    941


treatment of respondent-wife, he had requested her to A
bring her husband along with her. He also noted, that the
husband had never accompanied her, despite his
aforesaid indication to respondent-wife. The
consequence of non-participation of appellant-husband
in the course of treatment of respondent-wife, is also B
recorded in the report. The report notices, that her
improvement would have been a lot more significant and
faster, if her husband had been with her and· had cared
for her in her journey to recovery. The reasons which
may have weighed in the young husband's mind may be c
any, but the harsh reality is, that appellant-husband did
not extend due care and support to his wife, nor did he
participate in her journey to recovery. [Para 30] [968-C-
D; E-G; 969-A-F]
     1.4. Shorn of the participation and support of              D
appellant-husband to his wife, it is still material to
determine the extent of recovery of respondent-wife. It
would be just and appropriate to refer to and rely upon,
the three reports placed on the record of the Family Court
by RW1. The said reports were prepared in June, J!JIY            E
and October 2002. The reports reveal, that respondent-
wife had undergone intensive cognitive re-training using
brain function therapy, and she was provided with
graded re-training in alphabet and number recognition
and delayed recall, recognition and recall of words and          F
figures, different levels of working memory, etc. In the first
neuro-psychological assessment of respondent-wife at
NIMHANS in June, 2002, as also, in the second
assessment made in July, 2002, considerable
improvement was found in the medical condition of                G
respondent-wife. Respondent-wife was subjected to a
third neuro-psychological assessment in October, 2002.
Again marked improvement was found in her conceptual
organization of numbers and ability for arithmetic
operations. The third assessment expressly records, that         H
    942     SUPREME COURT REPORTS             [2013] 10 S.C.R.


A   respondent-wife was capable of all normal emotional
    experiences and expressions. Her eager and earnest
    desire about her future reunion with her husband, is also
    indicated in the report. She has been assessed as fully
    capable of shouldering the responsibilities of a happy
B   marital life. RW1 categorically testified, that respondent-
    wife was not a case of mental disorder. He clarified, that
    her case was of cognitive deficiency, on account of brain
    damage. According to RW1, respondent-wife had
    recovered her working memory by more than 80%. He
c   also explained, that cognitive deficiency is recoverable,
    but the recovery is dependent on the degree of damage
    to the brain, as also, the emotional support the patient
    gets from the family members, at the relevant time. This
    is the testimony of the same doctor, who had been
    requiring respondent-wife to bring appellant-husband
0
    along with her, during the course of her consultations.
    During the course of his cross-examination, RW1 denied
    the suggestion, that respondent-wife was not in a
    position to discharge her normal day to day functions of
E   life. [Para 31] [969-G; 970-A-D, F-H; 971-A·C]
       1.5. The Family Court had directed respondent-wife
  to appear before a medical board comprised of eminent
  specialists in psychiatry and clinical psychology. In the
  report (Exhibit C1) submitted by the medical board to the
F Family Court, conclusions were recorded on the basis of
  the medical history of respondent-wife, as also, the
  observations and examinations of the respondent-wife.
  The medical board concluded, that respondent-wife did
  not manifest any signs of major mental disorder, and that,
G she exhibited normal adequate emotional responses. It
  was also opined, that she would further benefit from
  neuro-psychological rehabilitation measures, which are
  available at NIMHANS. CW2, one of the members of the
  medical board, was also examined by the Family Court,
H as a court witness. During the course of his deposition,
       DARSHAN GUPTA v. RADHIKA GUPTA                943


CW2 expressed the opinion that respondent-wife could        A
be described as a person of moderate intelligence. He
also expressed, that by undergoing therapy training,
there was a further likelihood of improving her cognitive
deficiencies. He also clarified, that the deficiencies
suffered by respondent-wife, would not come in her way      B
to discharge her matrimonial obligations. [Para 32] [971-
D-E, F-H; 972-A-B]
     1.6. Based on the material evidence, it is not possible
to record, that respondent-wife suffers from any incurable
unsoundness of mind. It is also not possible to hold, that C
she suffers from such mental disorder, that it cannot be
reasonably expected of her husband to live with her. The
evidence produced before the Family Court makes it clear
that respondent-wife merely suffers from mild to
moderate cognitive deficiencies. She is categorized by D
medical experts as an individual of moderate intelligence.
Material on the record of the case reveals, that she would
further benefit from neuro-psychological rehabilitation
measures, which are available at NIMHANS. Even though
the said deficiencies could influence her day to day E
functioning, but expert opinion is unanimous that the
same would not come in her way to discharge her
matrimonial obligations. It cannot also be overlooked,
that experts have clearly expressed that respondent-wife
exhibits normal and adequate emotional responses. She F
has right from the beginning, fervently expressed the
desire to restore her .relationship with her husband, and
to live a normal life, in a matrimonial relationship with
him. In the aforesaid view of the matter, it is not possible
to conclude, that the mental condition of respondent-wife G
is such as to accept the appeal preferred by appellant-
husband under Section 13(1 )(iii) of the Hindu Marriage
Act, 1955. [Para 33] [972-C-G]
    2.1. Insofar as the alleged abnormal, erratic and
aggressive behaviour of respondent-wife is concerned,       H
   944      SUPREME COURT REPORTS            [2013] 10 S.C.R.


A the courts below were fully justified in recording, that the
  said behaviour of respondent-wife could have easily
  been established through the testimony of the attendants
  who looked after respondent-wife, as also, the other staff,
  yet the said witnesses were not produced by the
B appellant, despite their availability. The appellant-
  husband had produced PW4 to support his cause,
  however, PW4 during his deposition asserted that he did
  not observe any signs of aggressiveness in the
  respondent-wife. Since respondent-wife was under the
c care and treatment of PW4, he would have obviously
  known of her erratic behaviour, if the allegations of the
  husband were correct. The respondent-wife had also
  produced RW1 on her behalf. He too would have been
  aware of such behaviour. The appellant-husband,
  however, chose not to examine RW1, on the said subject.
0
  It would be pertinent to mention, that in the order of the
  Family Court it is duly noted, that when PW4 appeared
  to depose in the matter, respondent-wife was sitting in
  the court-hall observing court proceedings. During his
E interaction with respondent-wife, PW4 had enquired
  about her welfare, and she had responded by stating "I
  am fine sir, thank you". The very court which respondent-
  wife had repeatedly visited, recorded the above instance
  to demonstrate that her behavior was far from erratic, as
  suggested by the husband. The position would be no
F different, even if one considers these facts in conjunction
  with her medical condition. There was no material on the
  record of the case, to substantiate the alleged aggressive, ·
  erratic or abnormal behaviour of respondent-wife. In the
  aforesaid view of the matter, it is not possible to accept
G the appeal preferred by the appellant even under Section
  13(1)(ia) of the Hindu Marriage Act, 1955. [Para 34] [972-
  H; 973-E-H; 974-A-E]

      3.1. However, it is necessary to examine the instant
H controversy from another point of view. A perusal of the
       DARSHAN GUPTA v. RADHIKA GUPTA                  945


grounds on which divorce can be sought under Section         A
13(1) of the Hindu Marriage Act, 1955, would reveal, that
the same are grounds based on the 'fault' of the party
against whom dissolution of marriage is sought. In
matrimonial jurisprudence, such provisions are founded
on the 'matrimonial offence theory' or the 'fault theory'.   B
Under this jurisprudential principle, it is only on the
ground of an opponent's fault, that a party may approach
a Court for seeking annulment of his/her matrimonial
alliance. The party seeking divorce under the
"matrimonial offence theory" I the "fault theory" must be    c
innocent. A party suffering "guilt" or "fault" disentitles
himself/herself from consideration. [Para 35] [974-E, G-H;
975-A-C]
       3.2. In the instant case, all the grounds/facts on
 which divorce was sought, emerge from the medical D
  condition of respondent-wife, after her cesarean
  operation in September, 2000, during her second
  pregnancy. After respondent-wife's first conception was
  aborted in June, 1999, the attending gynecologist at
  Apollo Hospital, had cautioned the couple against any E
  further conception for at least two years. The couple had
  been advised, that pregnancy of respondent-wife during
  this period could lead to serious medical complications.
  The husband did not heed to the advice tendered by the
  attending gynecologist. There is no serious dispute, that F
  to satisfy his desires, he impregnated his wife within a
  period of eight months, i.e., well within the risk period.
  Therefore, she suffered the predicted consequences. The
  medical condition of respondent-wife, on which the
  appellant bases his claim for divorce, is of his own doing. G
  Even though at that juncture, appellant-husband was
  merely 25 years of age, and it may well be difficult to
. blame him, yet there is no escape from the fact, that the
  fault rests on his shoulders. In the above view of the
  matter, it is not possible to conclude, that appellant- H
   946     SUPREME COURT REPORTS           [2013] 10 S.C.R.


A husband did not suffer from any "guilt" or "fault" in the
  matter. He cannot be permitted to use his own fault to his
  advantage. The party seeking divorce has to be innocent
  of blame. For the instant reason also, the prayers made
  by the appellant must fail. [Paras 36, 37] [975-G-H; 976-
B D-E, G-H; 977-A-C]
       4. The appellant also sought dissolution of marriage
  on the ground, that the matrimonial ties between the
  parties had irretrievably broken down, specially when the
  parties have lived apart for more than 12 years and there
c was no likelihood of the parties ever living together as
  husband and wife. However, at the present juncture, it is
  questionable as to whether the relief sought by the
  appellant, on the ground of irretrievable breakdown of
  marriage is available to him. Even otherwise, in the facts
o and circumstances of this case, one cannot grant a
  decree of divorce, on the ground of irretrievable
  breakdown of marriage, for the simple reason that the
  breakdown is only from the side of the husband. The wife
  has consistently maintained, that she was intensely
E concerned with her future relationship with her husband,
  and that, her greatest and paramount desire was to rejoin
  her husband, and to live with him normally in a
  matrimonial relationship, once again. Since in the present
  case, the respondent does not consent to the severance
F of matrimonial ties, it may not be possible to accede to
  the instant prayer, made by the appellant. [Paras 38, 39) .
  [977-D-E, G-H; 978-A; 979-F-H]
       Vishnu Dutt Sharma vs. Manju Sharma, (2009) 6 SCC
  379 and Gurbax Singh vs. Harminder Kaur (2010) 14 SCC
G 301: 2010 (12) SCR 275 - referred to.
       5. Since the plea of irretrievable breakdown of
  marriage was not accepted by this Court, the appellant
  then implored this Court to invoke jurisdiction under
  Article 142 of the Constitution of India, and to annul the
H marriage between the parties,-as a matter of doing
       DARSHAN GUPTA v. RADHIKA GUPTA                   94 7

complete justice between the parties. In the context of        A
doing justice it was suggested, that the appellant would
be ready and willing to pay the respondent, whatever was
considered appropriate by this Court. In order to
determine the issue, the matter may be examined, by
reversing the roles of the parties - as if, the wife had
approached the Family Court seeking divorce, on· the           8
ground that her husband had suffered brain damage
leading to cognitive deficiencies. Yet, despite the said
deficiencies, his working memory had returned to "near
normal" after treatment. And his mental condition was
such, that it would not have any effect on his matrimonial     C
obligations. And the wife's family is agreeable to pay an
amount to be determined by this Court Uust as the
appellant-husband has offered), so as to enable their
daughter to break away, and find a more suitable match.
In such situation, if this Court had, in exercise of its       0
juri~diction under Article 142 of the Constitution, granted
c6mpensation to the husband, and had dissolved his
marriage on the pretext of doing complete justice
between the parties, would the same be acceptable to the
husband? There is no doubt that, on a reversal of roles,
the husband, without any fault of his own, would have          E
never accepted as just, the dissolution of his matrimonial
ties, even if the couple had been separated for a duration,
as is the case in hand. Specially, if the husband had, right
from the beginning, fervently expressed the desire to
restore his matrimonial relationship with his wife, and to     F
live a normal life with her. The issue in hand should be
adjudged by the above standards, when the same prayer
is made by the husband. To constitute justice, the picture
should appear to be the same, irrespective of the angle
from which it is viewed. If the same sequence of facts         G
cannot be viewed as doing justice to the husband, they
have to be likewise viewed for the wife as well. It is,
therefore, not possible to accept even the last plea
advanced on behalf of the appellant. [Paras 40, 41 and
42] [980-A-B, E-H; 981-A-Fi
                                                               H
    948       SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A                         Case Law Reference:
          (2009) s sec 379            referred to          Para 39
          2010 (12) SCR 275           referred to          Para 39
B       CIVIL APP ELLATE JURISDICTION : Civil Appeal Nos.
    6332-6333 of 2009.

        From the Judgment and Order dated 06.07.2009 of the
    High Court of Judicature Andhra Pradesh at Hyderabad in
    Family Court Appeal No. 36 and 37 of 2006.
c
        Vijay Hansaria, Prerna Kumari, Amit Anand Tiwari, Manoj,
    Gargi Srivastava for the Appellant.

      Mukul Gupta, Sushant Kumar, Ahwesh Madhukar,
  Narender Singh Bisht, Rishabh, A. Venayagam Balan for the
D Respondent.

          The Judgment of the Court was delivered by

        JAGDISH SINGH KHEHAR, J. 1. The marriage between
E the appellant-husband, Darshan Gupta and the respondent-
  wife, Radhika Gupta, was solemnized on 9.5.1997 at the
  Holiday Inn Hotel in Hyderabad, as per Hindu rights and
  customs. This was not the first matrimonial alliance between
  the two families. The husband's elder brother was already
F married to the wife's sister. Both parties admittedly belong to
  well-to-do families. At the time of marriage between the parties,
  Darshan Gupta, the husband was 22 years of age, and Radhika
  Gupta was 19. Now the husband is 35, and the wife 32. The
  marriage between the parties was duly consummated, and their
  relationship blossomed into one full of love and affection.
G
       2. The cordiality between the parties continued for a
  period of two years, till the wife conceived for the first time in
  February 1999. The aforestated conception was aborted when
  Radhika Gupta was in the fourth month of her pregnancy, as
H she had commenced to suffer from hypertension resulting into
        DARSHAN GUPTA v. RADHIKA GUPTA                     949
           [JAGDISH SINGH KHEHAR, J.]

fits, extreme morning sickness and general weakness. The         A
decision to abort the pregnancy in June, 1999, was based on
medical advice.

     3. The wife Radhika Gupta conceived for the second time
in February 2000. During the instant pregnancy, she had similar 8
symptoms, as she had suffered on the earlier occasion. For
the aforesaid reason, and on medical advice, when the
pregnancy was in its eighth month, a caesarian operation was
performed in September, 2000. At the time of birth of the child,
the wife, Radhika Gupta, was unconscious. Even after the child C
was delivered, she remained unconscious. The child born to
Radhika Gupta survived for only eight days.

     4. Since Radhika Gupta had developed serious medical
complications, she was treated at the best hospitals at
Hyderabad, amongst others at the Apollo Hospital, as an indoor   D
patient. Doctors from across the country were consulted. They
had attended upon her, at the behest of her husband Darshan
Gupta. To ensure that there was no deficiency in her medical
upkeep, she was shifted to the Leelavathi Hospital at Mumbai.
At Mumbai, further tests were conducted and surgeries were       E
performed. She also sought consultations from the National
Institute of Medical Health and Neuroscience, Bangalore
(NIMHANS).

     5. During the treatment of Radhika Gupta, neurologists and
                                                                  F
gynecologists looking after her believed, that she had suffered
brain damage. On that account, she is stated to have lost her
memory, so much so, that she could not even recognize persons
of close affinity. Her speech was also stated to have been
substantially impaired. It was averred, that the condition of the
wife was such, that she could not even discharge her personal G
obligations. She had to be assisted by an attendant. According
to the contention of Darshan Gupta, the condition of Radhika
Gupta was no better than a child of five years. He also alleged,
that Radhika Gupta's condition was such, that she could not
be left alone in the room, nor could she be permitted to use H
    950      SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A   the bathroom by herself. Gynecologists, who examined Radhika
    Gupta had opined, that she was not fit for discharging her
    matrimonial obligations. They also felt, that she could not bear
    a child. Neurologists believed, that it was impossible for the
    husband to live with Radhika Gupta. On the subject of their
B   marital relationship, the husband contends, that his wife did not
    allow him to touch her physically, even to please her. It is the
    husband's assertion, that at times Radhika Gupta would wake
    up in the middle of the night, and thereafter, would not allow him
    to sleep. Darshan Gupta even accused his wife, for shouting
c   and screaming without any reason.

          6. For the upkeep, maintenance and sustenance of his
    wife, the appellant Darshan Gupta, is stated to have created a
    trust with a corpus of Rs.10,00,000/-. For his wife's residence,
    the appellant Darshan Gupta persuaded his father to execute
D   a lease deed of a flat in a posh locality, at a nominal rent, in
    favour of the trust. Besides the aforesaid, the appellant Darshan
    Gupta has been paying his wife Radhika Gupta a sum of
    Rs.25,000/- per month towards maintenance, during the
    pendency of the proceedings.
E
         7. In response, the case set up by Radhika Gupta has
    been, that after her first conception was aborted in June, 1999,
    the attending gynecologist at Apollo Hospital, had cautioned the
    couple against any further conception for at least two years. The
F   couple had been advised, that pregnancy of Radhika Gupta
    during this period could lead to serious medical complications.
    Despite having been forewarned by the gynecologist, Radhika
    Gupta alleges, that her husband had proceeded with unsafe
    cohabitation, resulting in a second pregnancy within a short
G   period of eight months (after the termination of the first
    pregnancy), i.e., well within the unsafe period. According to
    Radhika Gupta, true to the advice of the attending gynecologist,
    the second pregnancy resulted in the same symptoms as she
    had suffered during her first pregnancy. It was her assertion,
    that she had again started to suffer from hypertension resulting
H
        DARSHAN GUPTA v. RADHIKA GUPTA                        951
           [JAGDISH SINGH KHEHAR, J.]

in fits, extreme morning sickness and general weakness.               A
Despite the precarious condition of the wife, she was
persuaded by her husband, Darshan Gupta, to carry on the
pregnancy till the eighth month. The wife acknowledges the
caesarian operation conducted on 20.9.2000, as also the fact,
that the child born to her surviving for only eight days. In this     B
behalf her assertion is, that her husband was to be blamed for
the same, as he did not heed to the medical advice of the
gynecologist. According to Radhika Gupta, the fall out of the
second pregnancy, specially the effect thereof to her health, was
the real cause of the turn around of the matrimonial relationship,    c
between the parties. For that, Radhika Gupta blames her
husband.

      8. Despite the factual position noticed hereinabove,
Radhika Gupta - the wife, claims to be hale and hearty. Before
the Family Court, she had expressed, that she was ready and           D
willing for any medical evaluation, at the Court's behest.
According to Radhika Gupta, after the death of the new born,
her husband did not extend, the care that she deserved from
him. This had happened after the termination of the first
pregnancy also. At that juncture, her parents had taken her to        E
neurologists, psychologists and occupational therapists of
national repute. After the caesarian surgery, Radhika Gupta had
remained unconscious. She used to suffer series of fits. It is
therefore, that she had to be shifted to the Apollo Hospital. After
treatment, she had regained her consciousness, and had                F
become more oriented. It is the wife's assertion, that yet again
after the episode of the second pregnancy, the husband did not
extend any emotional or moral support to her. Rather than
taking care of her, she was shifted to her parents' house in May
2002. It is the wife's contention, that her parents again took        G
good care of her. They had again sought advice from
specialists of different medical fields, as before. The undisputed
factual position between the parties is, that ever since she was
shifted to her parents house in May 2002, Radhika Gupta has
remained at her parents' house, except for a few days (from           H
    952      SUPREME COURT REPORTS               [2013] 10 S.C.R.


A 29.9.2011 to 3.10.2011), that also, in compliance with the
  desire and directions of this Court.

       9. It has been, and it still is, the wife's case, that she is
  intensely concerned about her future relationship with her
8 husband,    and that, her greatest and paramount desire is to
  rejoin her husband, and to live with him normally in a
  matrimonial relationship, once again. According to the
  respondent-wife, all efforts made by her have failed, only on
  account of the rigid attitude of her husband.
c      10. On the above facts, OP No.926 of 2002 was filed by
  the appellant-husband before the Family Court seeking
  dissolution of marriage under clauses (ia) and (iii) of Section
  13(1) of the Hindu Marriage Act, 1955. As against the
  aforesaid, OP No.629 of 2003 was filed by Radhika Gupta,
D before the same Court, seeking restitution of conjugal rights
  under Section 9 of the Hindu Marriage Act, 1955. Both the
  cases were clubbed together. Evidence was recorded in OP
  No.926 of 2002, and the same was treated as evidence for the
  determination of OP 629 of 2003 as well.
E
        11. Darshan Gupta examined four witnesses in all. He
  examined himself as PW1. He examined his maternal aunt
  Nirmala Devi as PW2. Darpan Gupta, the twin elder brother of
  the appellant-Darshan Gupta was exar:nined as PW3. Dr. M.
F Veera Raghava Reddy, a practicing neurologist was examined
  as PW4. The .testimony of the husband Darshan Gupta who
  appeared before the Family Court as PW1, was in consonance
  with the factual position indicated in the pleadings, as also, in
  the factual narration recorded hereinabove. PW2 and PW3
  being close family relations supported the statement of Darshan
G Gupta-PW1, in all material particulars. While deposing before
  the Family Court, Dr. M. Veera Raghava Reddy-PW4 stated,
  that he had referred the respondent-wife Radhika Gupta to Dr.
  Nagaraja for a second opinion. The said second opinion was
  sought by the appellant-husband Darshan Gupta, and his
H relations. Even though Dr. M. Veera Raghava Reddy-PW4,
        DARSHAN GUPTA v. RADHIKA GUPTA                        953
           [JAGDISH SINGH KHEHAR, J.]
somewhat towed the line of the appellant-husband Darshan              A
Gupta during the course of his examination-in-chief, he
acknowledged during the course of his cross-examination, that
when he had visited Radhika Gupta at her residence, her
physical condition was normal. He also accepted, that he had
not prescribed any medicine to the respondent-wife, for the           B
effect of eclampsia on the brain, as there was no medicine for
it. He admitted, that he did not advise or refer Radhika Gupta
to any psychiatrist or clinical physiologist, for evaluating her
physical and mental functions, nor did he prescribe her any
treatment to improve the said functions. He however opined,           c
from his experience, that even if treatment had been taken by
Radhika Gupta from psychiatrists/clinical physiologists, her
improvement would have been limited to 4-5%. He also
acknowledged, that he had never given any opinion to the
appellant-husband, that Radhika Gupta was suffering from loss         D
of cognitive deficiency, or that she was not fit for conjugal life.
It would be pertinent to mention, that it stands noticed in the
order of the Family Court, that when Dr. M. Veera Raghava
Reddy-PW4, appeared before the Family Colurt to depose in
the matter, Radhika Gupta was sitting in the court-hall
observing court proceedings. During their interaction Dr. M.          E
Veera Raghava Reddy-PW4, had enquired about her welfare.
She had responded by stating, "I am fine sir, thank you.".

      12. It would be pertinent to mention, that Radhika Gupta
chose not to examine herself as a witness, in either of the two F
cases before the Family Court. She only examined Dr. C.R.
Mukundan-RW1, in her defence. During the course of his
deposition, Dr. C.R. Mukundan-RW1 had produced three
documents Exhibits R1 to R3. As per his deposition, when he
had examined Radhika Gupta, he was working as Professor G
of clinical psychiatry in the neuro-psychology unit, at NIMHANS,
in Bangalore. Consequent upon the respondent-wife's
evaluation by him, he had issued reports Exhibits R1 and R2.
As per the said reports, Radhika Gupta had undergone
intensive cognitive re-training using brain function therapy, and H
    954      SUPREME COURT REPORTS                  [2013] 10 S.C.R.


A    that, she was provided with graded re-training in alphabet and
     number recognition and delayed recall, recognition and recall
     of words and figures, different levels of working memory, etc. It
     was duly noted in Exhibit R2, that at the first neuro-psychological
     assessment of Radhika Gupta at NIMHANS in June 2002, as
B    also, in the second assessment made in July 2002, there was
     considerable improvement in her medical condition. It is also
     recorded in Exhibit R2, that as per the follow up report, she was
     currently showing significant improvement in all cognitive areas,
     and that, her word finding difficulty was reduced by 60-70%. It
c    also stands duly noted, that she could not spontaneously name
     household articles, and food materials, or recall the names of
     persons and objects seen in movies or read in books. The
     report (Exhibit-R2) however indicates, that when she· had
    difficulty to spontaneously name an article or person, she would
    succeed to do so with a little effort. The report (Exhibit R2) also
0
     notices, that her working memory had improved so much, that
    the same could be described as "near normal", because she
    was able to execute and complete, working memory tasks.
    Thereafter, Radhika Gupta was subjected to a third neuro-
    psychological assessment in October, 2002. Again marked
E   improvement was found in her conceptual organization of
    numbers, and ability for arithmetic operations. On this occasion
    it was found, that her writing skills still required further
    improvement. The said third assessment expressly notices, that
    Radhika Gupta was capable of all normal emotional
F   experiences and expressions, and that, she was intimately
    desirous of restoring her future relationship with her husband.
    She was found to be fully capable of a happy marital life.
    Interestingly, the aforesaid report underlines the fact, that her
    improvement would have been a lot more significant and faster,
G   if her husband had been with her, and had cared for her in her
    journey to recovery. It was however, pointed out, that Radhika
    Gupta still lacked in self-confidence. Yet, she was found to be
    highly motivated for further improvement, and her logical thinking
    and expressive abilities were described as excellent. Exhibit
H   R3 produced by Dr. C.R. Mukundan-RW1, was on the same
        DARSHAN GUPTA v. RADHIKA GUPTA                     955
           [JAGDISH SINGH KHEHAR, J.]
lines as the earlier two exhibits. Dr. C.R. Mukundan-RW1, A
deposed, that Radhika Gupta v1as not a case of mental
disorder. Her case was of severe cognitive deficiencies, on
account of brain damage. She had suffered, the aforesaid brain
damage on account of eclampia during the course of her
second pregnancy. According to Dr. C.R. Mukundan-RW1, in B
some areas of deficiency, she was found to have fully
recovered. In some areas of cognitive deficiencies her
improvement was about 60-70%. According to Dr. C.R.
Mukundan-RW1, Radhika Gupta had recovered her working
memory by more than 80%. It was further pointed out, that c
cognitive deficiency is recoverable, but is dependant on the
degree of damage to the brain, as also, the emotional support
the patient gets from family members at the relevant time. In
his examination-in-chief, Dr. C.R. Mukundan-RW1 deposed,
that during her treatment he had requested Radhika Gupta to D
bring her husband along with her. But her husband had never
accompanied her. It was sought to be explained, that the
presence of Darshan Gupta, would have given emotional
support to her. This position remained uncontested during his
cross-examination. On the issue of cognitive deficiencies, it was E
sought to be clarified, that even though the same would affect .
the quality of life of Radhika Gupta, yet the same would have
no effect on her matrimonial obligations. During the course of
his cross-examination, Dr. C.R. Mukundan-RW1, denied the
suggestion, that Radhika Gupta was not in a position to
discharge her normal day to day functions of life, like bolting a F·
door after entering the bathroom, or opening a door after bolting
it. He acknowledged, that he himself had given the reports at
Exhibits R2 and R3. At this juncture, it would be necessary to
notice, that after consulting Dr. C.R. Mukundan-RW1, the
appellant-husband Darshan Gupta desired a second opinion, G
for which he obtained a letter from Dr. M. Veera Raghava
Reddy-PW4, addressed to Dr. Nagaraja. Thereafter, the
appellant-husband Drashan Gupta visited Dr. Nagaraja for a
second opinion, but while seeking the same, he did not
admittedly take the respondent-wife Radhika Gupta for H
    956      SUPREME COURT REPORTS                  [2013) 10 S.C.R.


A   examination at the hands of Dr. Nagaraja.

          13. Dr. M Gauri Devi, Superintendent, Institute of Mental
     Health, Erragadda, Hyderabad, was examined as Court
    Witness 1(CW1). Dr. M. Gauri Devi-CW1 constituted a medical
8   board, at the asking of the Family Court, for examining and
    evaluating the medical condition of Radhika Gupta. The
    aforesaid medical board comprised of Dr. Ch. Venkata Suresh,
    Assistant Professor of Psychiatry of Institute of Mental Health,
    Hyderabad, Dr. K. Ashok Reddy, Associate Professor of
    Psychiatry of Institute of Mental Health and Dr. S. Bhaskara
C   Naidu, Professor of Clinical Psychology of Institute of Mental
    Health Hyderabad. The medical board having examined
    Radhika Gupta, submitted its report (Exhibit C1) to the Family
    Court. A perusal of the medical report indicates, that the medical
    board had recorded its conclusions on the basis of the medical
D   history of Radhika Gupta, as also, the observations and
    examination of the respondent-wife. The medical board
    expressed the opinion, that the Radhika Gupta was suffering
    from cognitive deficiencies, in the form of difficulty in
    comprehension, attention, concentration, orientation, perceptual
E   ability, memory retrieval, word finding difficulty and organization
    ability. The said effects, according to the medical board, could
    influence her day to day functioning. The defects were, however,
    found to be on account of brain damage involving predominately
    the parietal-temporal region of the brain. It was concluded, that
F   Radhika Gupta did not manifest any signs of major mental
    disorder, and that, she exhibits normal adequate emotional
    responses. It was opined, that she would further benefit from
    neuro-psychological rehabilitation measures, which are
    available at NIMHANS.
G
        14. Dr. Bhaskar Naidu, one of the members of the medical
    board, deposed before the Court as CW2. He was cross-
    examined first by the learned counsel representing the
    respondent-wife Radhika Gupta, and thereafter, by the learned
    counsel representing the appellant-husband, Darshan Gupta.
H
         DARSHAN GUPTA v. RADHIKA GUPTA                       957
            [JAGDISH SINGH KHEHAR, J.]
 On being cross-examined at the behest of the respondent-wife,        A
 he stated that he was of the opinion that Radhika Gupta was
 suffering from some deficiency of intelligence. He further stated,
 that the average intelligence quotient of a human is between
 92 to 110 points. He opined that Radhika Gupta possessed
 the intelligent quotient between 50 to 55 points. It was sought      B
 to be explained, that a person having between 70 to 90 points
 is called a slow learner or border line person, and a person
 having between 50 to 70 points is described as one of
 moderate intelligence. In the aforesaid view of the matter, he
 accepted that Radhika Gupta could be described as an                 c
 individual of "moderate intelligence". He also opined, that by
 undergoing therapy training, there is a likelihood of Radhika
 Gupta to further improve her cognitive deficiency. When Dr.
 Bhaskar Naidu-CW2 was cross-examined by the learned
 counsel representing the appellant-husband Darshan Gupta, he         D
·asserted that Radhika Gupta was suffering from mild to
 moderate cognitive deficiency. He also expressed, that the
 aforesaid deficiency would not come in her way in discharging
 her matrimonial obligations.

     15. Based on the evidence led by the rival parties, and          E
also, through the court witnesses, the Family Court arrived at
the conclusion, that the husband had failed to establish, that he
was subjected to cruelty at the hands of Radhika Gupta. On the
issue of aggressive and abnormal behavior of the wife, the
Family Court felt, that there was no evidence before the Court,       F
except the deposition of interested witnesses, namely, the
appellant-husband himself, his maternal aunt Nirmala Devi and
his elder twin brother Darpan Gupta. The Court was of the view,
that such behavior, if it was actually there, could have easily
been established through nurses and attendants of Radhika             G
Gupta. But these, or such like witnesses were withheld, even
though they could have been easily available to the appellant-
husband. It was also concluded, that Darshan Gupta had not
been able to prove, that his wife was suffering from any
incurable unsoundness of mind and/or mental disorder. Insofar         H
    958      SUPREME COURT REPORTS               [2013] 10 S.C.R.


A as the solitary expert witness produced by the appellant-
  husband Darshan Gupta is concerned, Dr. M. Veera Raghawa
  Reddy-PW4, had admitted that while examining Radhika Gupta,
  he did not observe any signs of aggressiveness in the
  respondent-wife. On the contrary, he affirmed, that she was
B having a smiling face, and also, observed a calm and cool
  conduct.

          16. The Family Court, on the basis of oral and
    documentary evidence produced before· it, arrived at the
C   conclusion that Radhika Gupta did not suffer from any mental
    disorder or unsoundness of mind. She merely suffered from
    cognitive deficiency. The aforesaid cognitive deficiency was
    acquired during her second pregnancy. She was found to have
    substantially improved from her cognitive deficiency, during the
    course of her treatment. The Family Court also expressed the
D   opinion, that Radhika Gupta could have improved even further,
    had there been moral and emotional support to her by her
    husband, Darshan Gupta. In fact, the trial Court felt, that the
    appellant-husband Darshan Gupta had never given the
    respondent, moral or emotional support, during the time of her
E   distress. Despite the request of her treating doctor, he never
    accompanied her during the course of her consultations with
    doctors. The Family Court expressed the view, that the
    appellant husband Darshan Gupta himself, was responsible for
    the state of affairs of his wife-Radhika Gupta, inasmuch as, he
F   did not heed the advise of the gynecologist, after the abortion
    of her first pregnancy in June 1999. The consulting
    Gynecologist had advised the couple against planning any
    further conception, for a period of at least two years. Despite
    the aforesaid advice, Darshan Gupta impregnated his wife
G   Radhika Gupta, just after eight months of the said abortion. His
    desires had overridden, the health advisory of the gynecologist.
    The Family Court also concluded, that the appellant-husband
    had failed to establish, that the mental unsoundness of mind
    or mental disorder of the respondent-wife was of such degree,
H   that he could not be expected to live with her.
        DARSHAN GUPTA v. RADHIKA GUPTA                        959
           [JAGDISH SINGH KHEHAR, J.]

     17. Having regard to the aforesaid conclusions, the Family       A
Court dismissed OP No.926 of 2002 filed by the appellant-
husband Darshan Gupta on the ground that he had not been
able to prove the ingredients of either clause (ia) or clause (iii)
of Section 13(1) of the Hindu Marriage Act, 1955. On the other
hand, OP No.629 of 2003 was allowed holding that the                  B
respondent-wife was entitled to the relief of restitution of
conjugal rights. Her husband Darshan Gupta was accordingly
directed to receive her back into his house within three months,
and to give her moral and emotional support. On hjs faifure to
do so, he was directed to continue to pay the interim                 c
maintenance amount fixed by the Family Court, till he finally
accepts her back into his house. At this juncture, and in the
context under reference, it would be sufficient to record, that the
parties have not been able to reside together till date.

      18. Dissatisfied with the common order dated 2.2.2006           D
passed by the Family Court, Hyderabad, the appellant husband
filed FCA No.36 of 2006 to assail the order passed in OP
No.629 of 2003. Similarly, he filed FCA No.37 of 2006 to
impugn the order passed in OP No.926 of 2002. The High
Court disposed of FCA No.36 of 2006 and FCA No.37 of 2006             E
by a common order dated 6.7.2009. By the aforesaid common
order, the High Court dismissed both the appeals preferred by
the appellant-husband, by accepting and re-endorsing each
finding of fact, recorded by the Family Court, Hyderabad.
                                                                      F
     19. The common order passed in FCA No.36 of 2006 and
FCA No.37 of 2006 by the High Court on 6.7.2009 was
assailed by the appellant-husband Darshan Gupta by filing
Petitions for Special Leave to Appeal being SLP (C)
Nos.22571-22572 of 2009. On 14.9.2009, this Court granted             G
leave, in the above mentioned petitions.

     20. On 27. 7.2011, this Court directed both parties with
their family members to appear before the Hon'ble Judges
hearing the matter, in chamber. Accordingly, on 23.8.2011, the
parties appeared, and were heard in chambers. While                   H
    960       SUPREME COURT REPORTS               [2013) 10 S.C.R.


A adjourning the matter to 19.9.2011, the Hon'ble Judges who
  had heard the parties in chamber recorded, that the parties
  were not in a position to arrive at an amicable settlement.
  Despite the above, on the next date of hearing, i.e., on
  19.9.2011, learned counsel representing the rival parties
B informed this Court, that the appellant, as well as, the
  respondent had expressed their mutual willingness to live
  together in a separate flat, initially for a period of at least six
  months. This Court, being desirous of an amicable settlement,
  permitted the appellant and the respondent to live together.
c While granting the said liberty, the bench hearing the matter,
  recorded its earnest hope, that there would be no interference
  by other family members. The parties were required to inform
  this Court, of the outcome of their effort.

        21. It is submitted by learned counsel representing the rival
D parties, that Radhika Gupta joined her husband Darshan Gupta
  in a separate flat at Hyderabad, on 29.9.2011. Darshan Gupta
  and Radhika Gupta, however, remained together only for a few
  days. During the said period, the parties could not persuade
  themselves to maintain a relationship of cordiality, nor was
E there any physical relationship between them. Radhika Gupta
  left the company of the appellant-husband Darshan Gupta.on
  3. 10.2011. On the said date itself, Radhika Gupta addressed
  a letter to the Registry of this Court. The said letter read thus :

F         "The Hon'ble Supreme Court, by the order dated
          19.09.2011 directed us to live happily for a period of six
          months. In pursuance to the directions of the Hon'ble
          Supreme Court, my husband taken me into his matrimonial
          company on 29.09.2011 and kept me separately at his row
          (sic} house situated at Jubilee Hills.
G
          However, I am reporting from that day i.e. 29.09.2011 my
          husband is not behaving properly with me. Instead of
          showing love and affection, he is abusing me with filthy
          language without any reason. He is calling me "PAGAL"
H
        DARSHAN GUPTA v. RADHIKA GUPTA                        961
           [JAGDISH SINGH KHEHAR, J.]
    as and when he is addressing me. He is further saying that        A
    I have no sense and intelligence. Further he repeating me
    to leave him by taking money. He is further saying that
    even though his appeal before Supreme Court is
    dismissed he is not going to live with me. My in-laws also
    compelling me to agree for divorce by accepting money.            B
    My husband threatening me to agree for Divorce. The
    torture of my husband is beyond my tolerance. Hence
    under the above compelling circumstances I am leaving to
    my mothers' place."

     It is apperant from the above, that the efforts of the parties   C
to convince one another, of settling the matter amicably, did not
yield to any fruitful results.

     22. It is thus, that the matters came to be relisted for
hearing. Learned counsel representing the rival parties               D
expressed their desire, that the appeals be heard and disposed
of on merits. It is therefore, that we have resolved to adjudicate
upon the matters. We may only record, that it is routine to settle
issues of law, but it is formidably cumbersome, and
distressingly painful to decide issues of relationship. All the       E
same, having heard learned counsel for the rival parties, we
shall record our conclusions, on the issues canvassed.

     23. The appellant-husband has sought dissolution of
marriage on two grounds. First and foremost, he claims to have
been subjected to cruelty on account of the intemperate               F
behaviour of his wife. For the instant prayer, he relies on clause
(ia) of Section 13(1) of the Hindu Marriage Act, 1955. The
second ground on which the appellant-husband seeks
dissolution of marriage is, that his wife is of incurable unsound
mind, and suffers from such a mental disorder, that the               G
appellant cannot be reasonably expected to live with her. For
the instant second prayer, the appellant-husband relies on
clause (iii) of Section 13(1) of the Hindu Marriage Act, 1955.
The two provisions on the basis whereof the husband seeks
annulment of marriage are being extracted hereunder for facility      H
    962         SUPREME COURT REPORTS               [2013] 10 S.C.R.


A   of reference:-

          "13. Divorce

          (1)     Any marriage solemnised, whether before or after
                  the commencement of this Act, may, on a petition
8                 presented by either the husband or the wife, be
                  dissolved by a decree of divorce on the ground that
                  the other party-

          1[(ia) has, after the solemnisation of the marriage, treated
c                the petitioner with cruelty; or

          (iii)   has been incurably of unsound mind, or has been
                  suffering continuously or intermittently from mental
                  disorder of such a kind and to such an extent that
                  the petitioner cannot reasonably be expected to live
D                 with the respondent.

          Explanation -In this clause-

          (a)     the expression "mental disorder" means mental
E                 illness, arrested or incomplete development of
                  mind, psychopathic disorder or any other disorder
                  or disability of mind and includes schizophrenia;

          (b)     the expression "psychopathic disorder" means a
                  persistent disorder or disability of mind (whether or
F                 not including sub-normality of intelligence) which
                  results in abnormally aggressive or seriously
                  irresponsible conduct on the part of the other party,
                  and whether or not it requires or is susceptible to
                  medical treatment"         -
G
       24. Insofar as the allegation of cruelty levelled against the
  wife is concerned, the same did not constitute a serious
  challenge at the hands of the appellant on the basis of the facts
  pleaded and proved during the course of hearing. Being
H conscious of the fact, that the Family Court, as well as, the High
        DARSHAN GUPTA v. RADHIKA GUPTA                        963
           [JAGDISH SINGH KHEHAR, J.]

Court were unanimously of the view, that the appellant had failed     A
to discharge the onerous responsibility of substantiating even
a single fact to demonstrate any erratic behaviour of Radhika
Gupta, which would constitute and establish cruelty at the hands
of the wife towards the husband, recourse was advisedly taken
to cumulatively project the factual position for both the grounds,    B
on the basis whereof annulment of marriage was sought, i.e.,
on account of intemperate behavior, as well as, on account of
the alleged mental condition of the wife. This is how we
understood the submissions advanced at the hands of the
learned counsel for the appellant-husband. And therefore, that        c
is the manner in which the same will be considered. We shall,
therefore, first briefly record the factual basis constituting the
foundation of the challenge.

     25. On the attitude of Radhika Gupta, the respondent-wife,
towards the appellant-husband, specially after September,             D
2000, it was submitted that she was totally disoriented, after
she regained consciousness. She could not distinguish right
from wrong. She was no better than a child of five years. She
would wake up in the middle of the night and would start
shouting without any reason. She would not allow the appellant-       E
husband Darshan Gupta to sleep, after she had woken up.
Even otherwise, her shouting and screaming could occur at any
time of the day (or night) without any cause. She was
unpredictable. Neurologist had opined, that it was impossible
for Darshan Gupta, the appellant-husband, to live with his wife       F
Radhika Gupta. On the subject of her mental condition, it was
sought to be asserted, that after the tragedy wherein Radhika
Gupta, lost her new born only eight days after the child's birth;
the appellant-husband, as also his family members, left no stone
unturned for the restoration of her health. For that, she was taken   G
to the best hospitals, which specialized in the very disorder, she
suffered from. Specialists in all the relevant fields including
neurologists, gynecologists, psychologists, occupational
therapists, and the like, were duly consulted. When advised,
second opinions of experts were also sought. Yet the condition        H
    964       SUPREME COURT REPORTS                 [2013) 10 S.C.R.


A   of Radhika Gupta, did not improve to an extent, as would render
    her competent, even to take care of herself. In this behalf, it was
    submitted, that it was not safe to leave the respondent-wife
    alone in her bedroom. Likewise, she could not be permitted to
    use the bathroom by herself. Accordingly, an attendant was
B engaged to help Radhika Gupta, even for her personal day to
    day activities. Insofar as the mental condition of the respondent-
    wife is concerned, based on the testimony of Dr. M. Veera
    Raghava Reddy-PW4, it was submitted that there was no
    likelihood of any improvement in her mental framework,
c inasmuch as, her improvement (as per the testimony of PW4)
    would be limited to 4-5%. It was submitted, that she was
    forgetful, and had lost her memory. She could not name
  , household articles or food materials. She could also not recall
    the names of persons and incidents, she was otherwise well-
    versed with. Her working memory was sub-normal, and
D therefore, she could not be expected to execute day to day
    tasks, or to perform ordinary obligations, towards her husband
    and the other family members. Her mental deficiency, according
    to the learned counsel representing the appellant-husband, was
    on account of brain damage suffered by her, at the time of the
E caesarian operation performed upon her, in September, 2000.
    The said brain damage, according to the learned counsel, was
    irreparable. It was pointed out, that the behaviour of Radhika
    Gupta, thereafter was proof in itself, for the aforesaid assertion.
    On account of the aforesaid brain damage, even her speech
F was stated to have been substantially impaired. On the subject
    of their marital relationship, it was contended, that the same
    was just out of the question. In this behalf it was sought to be
    pointed out, that Radhika Gupta would not allow the appellant
    to touch her physically, even to please her. The enjoyment of
G marital life was, therefore, unimaginable. According to the
    opinion tendered by Dr. M. Veera Raghava Reddy-PW4, on
    account of the cognitive deficiency suffered by Radhika Gupta,
    she was not fit for conjugal life. With great emphasis, learned
    counsel representing the appellant-husband pointed out, that
H Radhika Gupta was no longer fit to bear a child. This position,
        DARSHAN GUPTA v. RADHIKA GUPTA                         965
           [JAGDISH SINGH KHEHAR, J.]
according to the learned counsel, was acknowledged                     A
unanimously by specialists treating her. It was, therefore sought
to be suggested, that the mental disorientation of Radhika
Gupta was of an order and extent, that the appellant-husband
could not reasonably be expected to live with her. Living with
her would result in subjecting himself to cruelty.                     B

      26. The response of the learned counsel, to the factual
averments canvassed at the hands of the learned counsel for
the appellant-husband, constituted a two-pronged attack. First
and foremost it was sought to be averred, that it was Darshan
Gupta, the appellant-husband, who was pointedly responsible            C
for the. medical condition of the respondent-wife. It was
therefore. submitted, that he ought to squarely accept his fault
for the same. Accordingly it was contended, that it was not open
to him to press a claim for dissolution of marriage under
Section 13{1} of the Hindu Marriage Act, 1955, by making               D
accusations, for which he himself was blameworthy. In this
behalf it was submitted, that after the first conception of Radhika
Gupta was aborted in June, 1999, the attending gynecologist
at Apollo Hospital, had cautioned the couple against any further
conception, for at least two years. The couple had been made           E
aware of the fact, that any pregnancy during this period would
lead to serious medical complications. Despite having been
conscious of the disastrous consequences of Radhika Gupta's
conception, Darshan Gupta had proceeded with unsafe
cohabitation, resulting in her pregnancy within a short period         F
of eight months i.e., well within the risk period. It was submitted,
that the advice of the attending gynecologist, had proved to be
correct, inasmuch as, Radhika Gupta suffered hypertension
resulting in fits, extreme morning sickness and general
weakness. It was pointed out, that the situation could still have      G
been saved, but for the extreme desire of the husband Darshan
Gupta, to have a child. It is, therefore, that the second pregnancy
was not terminated. Radhika Gupta, therefore, suffered
torturous health conditions, during the eight months of her
second pregnancy. The forbidden pregnancy eventually resulted          H
    966      SUPREME COURT REPORTS                [2013] 10 S.C.R.


A in brain damage, leading to the consequences on the basis
  whereof Darshan Gupta presently seeks dissolution of
  marriage. In this behalf it was also sought to be vehemently
  contended, that the appellant-husband was not truly interested
  in the recovery of Radhika Gupta, inasmuch as, he never
B extended any emotional support to her, despite the trauma that
  she had gone through after she lost her baby in September,
  2000. It was submitted, that according to the experts who had
  examined her, her improvement would have been a lot more
  significant and faster, if her husband had been with her, and
t had cared for her, in her journey to recovery. Even though her
  attending doctor is stated to have repeatedly asked Radhika
  Gupta to bring her husband alongwith her, Darshan Gupta had
  never accompanied her during the course of her consultations
  with Dr. C.R. Mukundan-RW1. It was, therefore submitted, that
  the appellant cannot be granted relief, for a wrong for which he
0
  himself was responsible.

         27. Learned counsel representing Radhika Gupta even
    contested the factual premise, on which the appellant-husband
    had based his claim for dissolution of marriage. Insofar as the
E   factual position is concerned, Radhika Gupt contended, that she
    was hale and hearty. Even though she acknowledged, that she
    was mentally disoriented immediately after she had undergone
    the cesarean operation in September, 2000, it was averred,
    that she had regained her consciousness and had become
F   normal. Relying on the reports prepared by experts during the
    course of her treatment as far back as in June, July and
    October, 2002, it was submitted that she had shown significant
    improvement in all cognitive areas. Even her working memory
    had improved, so much so, th.at experts had evaluated the same
G   as normal. It was pointed out, that Radhika Gupta was fully
    capable of enjoying a happy marital life, and that, there was no
    evidence on the record of the case to establish, that her mental
    condition would have any effect on her matrimonial obligations.
    On her abilities to discharge her matrimonial obligations, it was
H   submitted that Radhika Gupta was assessed as possessing
        DARSHAN GUPTA v. RADHIKA GUPTA                        967
           [JAGDISH SINGH KHEHAR, J.]

normal and adequate emotional responses. During the entire           A
traumatic period, in the course whereof the parties had
separated from one another, she had persistently expressed
that she was intensely concerned with her future relationship
with her husband, and that, her greatest and paramount desire
was to rejoin her husband, and to live with him normally in a        B
matrimonial relationship once again. Based on expert opinion
tendered by the medical board constituted by the Family Court,
the statement of Dr. C.R. Mukundan-RW1, as also, the
testimony of Dr. Bhaskara Naidu-CW2, it was submitted, that
there could be no doubt, that the respondent-wife was                c
possessed ~f all necessary ingredients, mental as well as,
physical, for effectively discharging her matrimonial obligations.
On the above averments it was submitted, that the Family
Court, ;:is well as, the High Court had justly adjudicated the
controversy, by expressing the same opinion concurrently.            D
      28. We have given our thoughtful consideration to the rival
submissions advanced at the hands of the learned counsel for
the parties. First and foremost, we must record, that the
respondent-wife Radhika Gupta admittedly suffered brain
damage after her cesarean operation in September, 2000. It E
is not a matter of dispute, that she had remained unconscious
for some time even after having delivered a baby on 20.9.2000.
It appears, that at the time of regaining consciousness, she was
totally disoriented, having lost her memory. The extent to which
she had lost her memory is not discernible from the evidence F
available on the record of the case. It was most definitely
substantial, as it is clear, that she could not even recognize
persons of close affinity. She could not name household articles
and food materials. She could not remember the names of
persons known to her. She could also not recall the objects and G
incidents seen by her. She was unable to execute and
complete, working memory tasks. Even her conceptual
organization of numbers, and ability for arithmetic operations,
was limited. Not only that, even her speech was substantially ·
impaired.                                                         H
    968      SUPREME COURT REPORIS                [2013) 10 S.C.R.


A      29. To deal with her medical condition, her husband
  Darshan Gupta seems to have initially extended full financial
  support, by seeking consultation of specialists in fields wherein
  Radhika Gupta needed assistance. He also ensured, that such
  treatment was provided to her at premium hospitals. Material
B on record demonstrates, that she was admitted at the Apollo
  Hospital, Hyderabad, and thereafter, at the Leelavathi Hospital,
  Mumbai. Her treatment at NIMHANS, Bang~lore, also emerges
  from the record of the case. There can, therefore, be no doubt
  about the initial commitment of Darshan Gupta towards the
c welfare of his wife Radhika Gupta.
          30. It, however, seems, that the appellant-husband was
    skeptical about the outcome of her recovery. His assessment
    of her medical condition, in the background of the inputs from
    the doctors attending on her, probably created the impression,
D   that she would henceforth be a liability on him. Dr. M. Veera
    Raghava Reddy-PW4 may have been responsible for the said
    impression. Even during the course of his testimony before the
    Family Court, Dr. M. Veera Raghava Reddy-PW4 had opined,
    that from his experience he could state, that even if the
E   respondent Radhika Gupta was treated by psychiatrists or
    clinical physiologists, her improvement would be limited to 4-
    5%. Keeping in mind the hopeless condition of Radhika Gupta,
    the appellant-husband could not have expected any kind of
    positive relationship with Radhika Gupta. It was natural for him
F   to infer, that his wife would henceforth be a useless burden. It
    is not reasonable to blame him for his impressions. In 2000,
    when the unfortunate incident occurred, he was merely 25 years
    old. One would expect, that all his dreams of a happy married
    life, came to be shattered after seeing the medical condition
G   of his wife, specially in the background of the assessment
    made by the experts being consulted. The aforesaid
    impression in his mind, clearly demonstrates the reason of his
    responses towards Radhika Gupta, in the aftermath of her
    medical tragedy. He was absolutely sure, that she would never
H   be able to lead a normal life, and that, there was no question
         DARSHAN GUPTA v. RADHIKA GUPTA                        969
            [JAGDISH SINGH KHEHAR, J.]

of her being able to perform her matrimonial obligations. It is A
in the aforesaid background, that it is easier to understand why
he had refrained from extending emotional or moral support to
Radhika Gupta. But the inescapable truth is, that factually
Darshan Gupta did not extend emotional or moral support to
his wife, after her medical episode. The distress of Darshan B
Gupta, and the distance that he started to keep from his wife,
emerge from the statement of Dr. C.R. Mukundan-RW1. Dr.
C.R. Mukundan-RW1 placed on the record of the Family Court
three documents (Exhibits R1 to R3). The aforesaid documents
pertain to the treatment of Radhia Gupta during 2002. In our C
view, those are the safest documents to be relied upon, for truly
assessing the medical conditions of Radhika Gupta. These
reports cannot be said to have been created, at the asking of
one or the other. They were honest impressions expressed
about the state of mental health of Radhika Gupta. The
attending doctor of Radhika Gupta considered it appropriate D
to expressly. record in one of these reports, that during her
treatment, he had requested Radhika Gupta to bring her
husband along with her. He also noted, that the husband had
never accompanied her, despite his aforesaid indication to
Radhika Gupta. The consequence of non-participation of E
Darshan Gupta in the course of treatment of Radhika Gupta,
is also recorded in the report. The report notices, that her
improvement would have been a lot more significant and faster,
if her husband had been with her and had cared for her in her
journey to recovery. The reasons which may have weighed in F
the young husband's mind may be any, but the harsh reality is,
that Darshan Gupta did not extend due care and support to his
wife, nor did he participate in her journey to recovery.

     31. Shorn of the participation and support of Darshan            G
 Gupta to his wife Radhika Gupta, it is still material to determine
 the extent of her recovery. An assessment of the mental
'condition of Radhika Gupta, would render it possible for us to
 determine whether or not in terms of Section 13(1)(iii) of the
 Hindu Marriage Act, 1955, her mental disorder is of such a kind,
                                                                      H
    970      SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A   and to such an extent, that Darshan Gupta cannot reasonably
    be expected to live with her. Insofar as the instant aspect of the
    matter is concerned, it would be just and appropriate to refer
    to and rely upon, the three reports prepared at the relevant
    time. The aforesaid reports were placed on the record of the
8   Family Court by Dr. C.R. Mukundan-RW1. The said reports
    were prepared in June, July and October 2002. The reports
    reveal, that Radhika Gupta had undergone intensive cognitive
    re-training using brain function therapy, and she was provided
    with graded re-training in alphabet and number recognition and
C   delayed recall, recognition and recall of words and figures,
    different levels of working memory, etc. In the first neuro-
    psychological assessment of Radhika Gupta at NIMHANS in
    June, 2002, as also, in the second assessment made in July,
    2002, considerable improvement was found in the medical
    condition of Radhika Gupta. She was found to have shown
D   significant progress in all cognitive areas, and that, her word
    finding difficulty was reduced by 60-70%. Even though the
    report records, that she could not spontaneously name
    household articles and food materials, or recall the names of
    persons and objects seen in movies or read in books, yet was
E   noticed, that she could do so with some effort. The report also
    records, that her working memory had improved to an extent,
    that the same could be described as "near normal". In her
    aforesaid assessment, she was found to be able to execute
    and complete, working memory tasks. Radhika Gupta was
F   subjected to a third neuro-psychological assessment in
    October, 2002. Again marked improvement was found in her
    conceptual organization of numbers and ability for arithmetic
    operations. The instant third assessment expressly records, that
    Radhika Gupta was capable of all normal emotional
G   experiences and expressions. Her eager and earnest desire
    about her future reunion with her husband, is also indicated in
    the report. She has been assessed as fully capable of
    shouldering the responsibilities of a happy marital life. Dr. C.R.
    Mukundan-RW1 categorically testified, that Radhika Gupta was
H   not a case of mental disorder. He clarified, that her case was
        DARSHAN GUPTA v. RADHIKA GUPTA                          971
           [JAGDISH SINGH KHEHAR, J.]
of cognitive deficiency, on account of brain damage. According          A
to RW1, Radhlka Gupta had recovered her working memory
by more than 80%. He also explained, that cognitive deficiency
is recoverable, but the recovery is dependent on the degree of
damage to the brain, as also, the emotional support the patient
gets from the family members, at the relevant time. It would be         B
pertinent to mention, that this is the testimony of the same
doctor, who had been requiring Radhika Gupta to bring
Darshan Gupta along with h,er, during the course of her
consultations. During the course of his cross-examination, Dr.
C.R. Mukunan-RW1 denied the suggestion, that Radhika Gupta              c
was not in a position to discharge her normal day to day
functions of life.

      32. Besides the testimony of Dr. C.R'. Mukundan-RW1, it
would be relevant to mention, that the Family Court had directed
Radhika Gupta to appear before a medical board. It would be             D
appropriate to refer to the findings and conclusions recorded
in the report submitted by the said medical board, which
comprised of eminent specialists in psychiatry and clinical
psychology. In the aforesaid report (Exhibit C1) submitted to
the Family Court, conclusions were recorded on the basis of             E
the medical history of Radhika Gupta, as also, the observations
and examinations of the respondent-wife. The medical board
expressed the opinion, that Radhika Gupta was suffering from
cognitive deficiencies in the form of difficulty in comprehension,
attention, concentration, orientation, perceptual ability, memory       F
retrieval, word finding difficulty and organization ability. The said
effects, according to the Board, could influence her day to day
functioning. It was however concluded, that Radhika Gupta did
not manifest any signs of major mental disorder, and that, she
exhibited normal adequate emotional responses. It was also              G
opined, that she would further benefit from neuro-psychological
rehabilitation measures, which are available at NIMHANS. Dr.
Bhaskar Naidu, one of the members of the medical board, was
also examined by the Family Court, as a court witness. During
the course of his deposition, Dr. Bhaskara Naidu-CW2,                   H
    972       SUPREME COURT REPORTS                 (2013] 10 S.C.R.


A   expressed the opinion that Radhika Gupta could be described
    as a person of moderate intelligence. He also expressed, that
    by undergoing therapy training, there was a further likelihood
    of improving her cognitive deficiencies. He also clarified, that
    the deficiencies suffered by Radhika Gupta, would not come
B   in her way to discharge her matrimonial obligations.

          33. The aforesaid material, in our considered view, would
    be sufficient in recording our conclusions, in respect of the
    mental health of Radhika Gupta. Based on the evidence
C   discussed hereinabove, it is not possible for us to record, that
    Radhika Gupta suffers from any incurable unsoundness of
    mind. It is also not possible for us to hold, that she suffers from
    such mental disorder, that it cannot be reasonably expected of
    her husband to live with her. The evidence produced before the
    Family Court leaves no room for us but to conclude, that
D   Radhika Gupta merely suffers from mild to moderate cognitive
    deficiencies. She is categorized by medical experts as an
    individual of moderate intelligence. Material on the record of
    the case reveals, that she would further benefit from neuro-
    psychological rehabilitation measures, which are available at
E   NIMHANS. Even though the said deficiencies could influence
    her day to day functioning, but expert opinion is unanimous that
    the same would not come in her way to discharge her
    matrimonial obligations. It cannot also be overlooked, that
    experts have clearly expressed that Radhika Gupta exhibits
F   normal and adequate emotional responses. She has right from
    the beginning, fervently expressed the desire to restore her
    relationship with her husband, and to live a normal life, in a
    matrimonial relationship with him. In the aforesaid view of the
    matter, it is not possible for us to conclude, that the mental
G   condition of Radhika Gupta is such as would persuade us to
    accept the appeal preferred by Darshan Gupta under Section
    13(1)(iii) of the Hindu Marriage Act, 1955.

         34. It would also be relevant for us to refer to the alleged
    erratic behaviour of Radhika Gupta. In this behalf, it would be
H
        DARSHAN GUPTA v. RADHIKA GUPTA                         973
           [JAGDISH SINGH KHEHAR, J.]
pertinent to mention, that it was pointedly asserted at the behest     A
of the appellant-husband, that Radhika Gupta would wake up
in the middle of the night, and thereafter, would not allow him
to sleep. It was also contended, that Radhika Gupta would
shout and scream without any provocation or cause, at any time
of the day (or night). Other similar allegations were also levelled    B
by Darshan Gupta against his wife. The Family Court, while
dealing with the said allegations, had rejected the same on the
ground, that there was no evidence before the Court, except
the deposition of interested witnesses, namely, the appellant-
husband himself, his maternal aunt Nirmala Devi and his elder          c
twin brother Drapan Gupta. Since the husband did not produce
independent witnesses available to him before the Family
Court, it was concluded that the husband had failed to establish,
that Radhika Gupta's behaviour was aggressive, erratic or
abnormal; or that he was subject to cruelty on account of such         D
behaviour. We are of the considered view, that the Family
Court, as also, the High Court were fully justified in drawing their
conclusions, insofar as the alleged abnormal, erratic and
aggressive behaviour of Radhika Gupta is concerned. The
courts below were fully justified in recording, that the said          E
behaviour of Radhika Gupta could have easily been
established through the testimony of the attendants who looked
after Radhika Gupta, as also,, the other staff, yet the said
witnesses were not produced by the appellant, despite their
availability. Interestingly, however, the appellant-husband himself
had produced Dr. M. Veera Raghava Reddy-PW4, to support                F
his cause. Dr. M. Veera Raghava Reddy-PW4 appearing for
the appellant-husband, during his deposition asserted that he
did not observe any signs of aggressiveness in the respondent-
wife. Since Radhika Gupta was under the care and treatment
of Dr. M. Veera Raghava Reddy-PW4, he would have obviously             G
known of her erratic behaviour, if the allegations of the husband
were correct. The respondent-wife had also produced Dr. C.R.
Mukundan-RW1 on her behalf. He too would have been aware
of such behaviour. The appellant Darshan Gupta, however,
chose not to examine Dr. C.R. Mukundan-RW1, on the said                H
    974      SUPREME COURT REPORTS                 (2013) 10 S.C.R..


A   subject. In fact, there is material on the record of the case to
    draw a finding, converse to the submission advanced. In this
    behalf, it would be pertinent to mention, that in the order of the
    Family Court it is duly noted, that when Dr. M. Veera Raghawa
    Reddy-PW4, appeared to depose in the matter, Radhika
B   Gupta was sitting in the court-hall observing court proceedings.
    During his interaction with Radhika Gupta, PW4 had enquired
    about her welfare, and she had responded by stating "I am fine
    sir, thank you". The very court which Radhika Gupta had
    repeatedly visited, recorded the above instance to demonstrate
C   that her behavior was far from erratic, as suggested by the
    husband. The position, in our view, would be no different, even
    if we consider these facts in conjunction with her medical
    condition. We are, therefore, satisfied in accepting the
    conclusion drawn concurrently by the courts below, that there
D   was no material on the record of the case, to substantiate the
    alleged aggressive, erratic or abnormal behaviour of Radhika
    Gupta. In the aforesaid view of the matter, it is not possible to
    accept the appeal preferred by the appellant even under
    Section 13(1)(ia) of the Hindu Marriage Act, 1955.

E        35. Despite our aforesaid conclusions, it is necessary to
    examine the instant controversy from another point of view. As
    noticed hereinabove, it was the vehement contention of the
    learned counsel for the respondent-wife, based on the
    pleadings filed by Radhika Gupta, as also, the evidence
F   produced by her, that it was the husband Darshan Gupta alone,
    who was blameworthy of the medical condition of the
    respondent. It was submitted, that Darshan Gupta desires to
    encash on his own fault, by seeking dissolution of marriage, for
    a consequence, of which he himself was blameworthy. The
G   instant submission, though not canvassed in that manner, can
    be based on a legal premise. A perusal of the grounds on which
    divorce can be sought under Section 13(1) of the Hindu
    Marriage Act, 1955, would reveal, that the same are grounds
    based on the 'fault' of the party against whom dissolution of
H   marriage is sought. In matrimonial jurisprudence, such
       DARSHAN GUPTA v. RADHIKA GUPTA                        975
          [JAGDISH SINGH KHEHAR, J.]

provisions are founded on the 'matrimonial offence theory' or A
the 'fault theory'. Under this jurisprudential principle, it is only
on the ground of an opponent's fault, that a party may approach
a Court for seeking annulment of his/her matrimonial alliance.
In other words, if either of the parties is guilty of committing a
matrimonial offence, the aggrieved party alone is entitled to B
divorce. The party seeking divorce under the "matrimonial
offence theory" I the "fault theory" must be innocent. A party
suffering "guilt" or "fault" disentitles himself/herself from
consideration. Illustratively, desertion for a specified continuous
period, is one of the grounds for annulment of marriage. But c
the aforesaid ground for annulment is available only, if the
desertion is on account of the fault of the opposite party, and
not fault of the party which has approached the Court.
Therefore, if a husband's act of cruelty, compels a wife to leave
her matrimonial home, whereupon, she remains away from the 0
husband for the stipulated duration, it would not be open to a
husband to seek dissolution of marriage, on the ground of
desertion. The reason being, that it is the husband himself who
was at fault, and not the wife. This is exactly what the
respondent has contended. Her claim is, that in actuality the
appellant is making oufa claim for a decree of divorce, on the E
basis of allegations for which he himself is singularly
responsible. On the said allegations, it is Darshan Gupta, who
deserves to be castigated. Therefore, he cannot be allowed to
raise an accusing finger at the respondent on the basis of the
said allegations, or to seek dissolution of marriage, thereon.       F

     36. There is no dispute between the rival parties, that after
Radhika Gupta's first conception was aborted in June, 1999,
the attending gynecologist at Apollo Hospital, had cautioned the
couple against any further conception for at least two years. The G
couple had been advised, that pregnancy of Radhika Gupta
during this period could lead to serious medical complications.
Radhika Gupta alleges, that her husband had proceeded with
unsafe cohabitation, leading to her second pregnancy, within
a short period of eight months (after the abortion in June, 1999), H
    976       SUPREME COURT REPORTS                   [2013] 10 S.C.R.

A   i.e. well within the risk period. Clearly contrary to the medical
    advisory. The truth of the second conception, cannot be
    disputed, in view of the overwhelming supporting evidence on
    the record of the case. The conception could have only occurred
    because of, unprotected sexual indulgence by Darshan Gupta.
B   The medical condition of Radhika Gupta, was for one and only
    one reason, namely, the second conception of Radhika Gupta,
    during the unsafe period. Clearly, the blame thereof, rests
    squarely on the shoulders of Darshan Gupta. The instant
    conclusion is difficult to assimilate. Yet, there can be no doubt
c   about the truthfulness thereof. It is in this view of the matter, that
    the submissions advanced at the hands of the learned counsel
    for Darshan Gupta, have been vehemently opposed. The
    unambiguous contention of the learned counsel for the
    respondent is, that the grounds/facts on which divorce is sought
    by the appellant, are not at all available to him under the "fault
0
    theory'' on which Section 13(1) of the Hindu Marriage Act, 1955,
    is founded.

       37. We are persuaded to accept the submission noticed
  in the foregoing paragraph. There can be no doubt, that all the
E grounds/facts on which divorce has been sought, emerge from
  the medical condition of Radhika Gupta, after her cesarean
  operation in September, 2000. The symptoms during her first
  pregnancy were such, that the couple was advised not to
  conceive for a period of two years. The husband did not heed
F to the advice tendered by the attending gynecologist. We are,
  therefore, inclined to fully endorse the view expressed by the
  Family Court, that the appellant-husband Darshan Gupta
  himself, was responsible for the state of affairs of his wife-
  Radhika Gupta; inasmuch as he did not heed the advice of
G gynecologist after the abortion of her first pregnancy in June
  1999. There is no serious dispute, that to satisfy his desires,
  he impregnated his wife within a period of eight months, i.e.,
  well within the risk period. Therefore, she suffered the predicted
  consequences. The medical condition of Radhika Gupta, on
H which the appellant basis his claim for divorce, is of his own
        DARSHAN GUPTA v. RADHIKA GUPTA                         977
           [JAGDISH SINGH KHEHAR, J.]

doing. Even though at that juncture, Darshan Gupta was merely          A
25 years of age, and it may well be difficult to blame him, yet
there is no escape from the fact, that the fault rests on his
shoulders. In the above view of the matter, it is not possible for
us to conclude, that Darshan Gupta did not suffer from any "guilf
or "fault" in the matter. It is, accordingly, not possible for us to   B
accept, that he can be permitted to use his own fault to his
advantage. His prayer for divorce on the facts alleged, is just
not acceptable. The party seeking divorce has to be innocent
of blame. We are satisfied, that the grounds/facts on which a
claim for divorce can be maintained under Section 13(1) of the         c
Hindu Marriage Act, 1955, are clearly not available to the
appellant Darshan Gupta in the facts and circumstances of this
case. For the instant reason also, the prayers made by the
appellant must fail.

      38. Towards the same end, learned counsel for the                D
appellant advanced yet another submission. Learned counsel
representing the appellant, sought dissolution of marriage on
the ground, that the matrimonial ties between the parties had
irretrievably broken down. It was, therefore, the contention of
the learned counsel for the appellant, that this Court would be        E
justified in annulling the marriage between the parties, specially
when the parties have lived apart for more than 12 years.
Inviting this Court's attention to the intervention at the instance
of this Court, in compliance whereof the parties had made a
last ditch effort to live together, and had actually taken up          F
residence in an independent flat in Hyderabad on 29.9.2011,
it was pointed out, that they could not persuade themselves into
a relationship of cordiality. It was, therefore, sought to be
suggested, that there was no likelihood of the parties ever living
together as husband and wife. It was accordingly submitted, that       G
this Court should consider the annulment of the matrimonial ties
between the parties, on the ground of irretrievable breakdown
of marriage.

     39. At the present juncture, it is questionable as to whether     H
    978      SUPREME COURT REPORTS                 [2013) 10 S.C.R.


A   the relief sought by the learned counsel for the appellant, on the
    ground of irretrievable breakdown of marriage is available to
    him. The reason for us to say so, is based on a judgment
    rendered by this Court in Vishnu Dutt Sharma vs. Manju
    Sharma, (2009) 6 SCC 379, wherein this Court has held as
B   under:-

          "10. On a bare reading of Section 13 of the Act,
               reproduced above, it is crystal clear that no such
               ground of irretrievable breakdown of the marriage
               is provided by the legislature for granting a decree
c              of divorce. This Court cannot add such a ground to
               Section 13 of the Act as that would be amending
               the Act, which is a function of the legislature.

          11.   Learned Counsel for the appellant has stated that
D               this Court in some cases has dissolved a marriage
                on the ground of irretrievable breakdown. In our
                opinion, those cases have not taken into
                consideration the legal position which we have
                mentioned above, and hence they are not
E               precedents. A mere direction of the Court without
                considering the legal position is not a precedent.

          12.   If we grant divorce on the ground of irretrievable
                breakdown, then we shall by judicial verdict be
                adding a clause to Section 13 of the Act to the
F               effect that irretrievable breakdown of the marriage
                is also a ground for divorce. In our opinion, this can
                only be done by the legislature and not by the Court.
                It is for the Parliament to enact or amend the law
                and not for the Courts. Hence, we do not find force
G               in the submission of the learned Counsel for the
                appellant.

          13.   Had both parties been willing we could, of course,
                have granted a divorce by mutual consent as
H               contemplated by Section 13-8 of the Act, but in ~his
        DARSHAN GUPTA v. RADHIKA GUPTA                       979
           [JAGDISH SINGH KHEHAR, J.]
            case the respondent is not willing to agree to a         A
            divorce."

In this behalf, it would also be relevant to refer to another
judgment rendered by this Court in Gurbax Singh vs.
Harminder Kaur, (2010) 14 SCC 301. Paragraph 20 of the               B
cited judgment is relevant to the issue, and is accordingly being
extracted hereunder:-

     "Finally, a feeble argument was made that both the
     appellant and respondent were living separately from 2002
     and it would be impossible for their reunion, hence this        C
     Court exercising its jurisdiction under Article 142 of the
     Constitution, their marriage may be dissolved in the interest
     of both parties. Though, on a rare occasion, this Court has
     granted the extraordinary relief dehors to the grounds
     mentioned in Section 13 in view of the fact that the issue      D
     has been referred to a larger Bench about permissibility
     of such course at present, we are not inclined to accede
     to the request of the appellant. If there is any change of
     law or additional ground included in Section 13 by the act
     of Parliament, the appellant is free to avail the same at the   E
     appropriate time."

Even otherwise, in the facts and circumstances of this case
{which are being highlighted while dealing with the appellant's
next contention), we cannot persuade ourselves to grant a
                                                                     F
decree of divorce, on the ground of irretrievable breakdown of
marriage, for the simple reason that the breakdown is only from
the side of the husband. The wife - Radhika Gupta has
consistently maintained, that she was intensely concerned with
her future relationship with her husband, and that, her greatest
and paramount desire was to rejoin her husband, and to live          G
with him normally in a matrimonial relationship, once again.
Since in the present case, the respondent does not consent to
the severance of matrimonial ties, it may not be possible for
us to accede to the instant prayer, made at the hands of the
learned counsel for the appellant.                                   H
     980     SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A       40. Since we were not agreeable with the contention
  advanced by the learned counsel for the appellant, on the plea
  of irretrievable breakdown of marriage, learned counsel sought
  the same relief, for the same reasons, by imploring us to invoke
  our jurisdiction under Article 142 of the Constitution of India, and
B to annul the marriage between the parties, as a matter of doing
  complete justice between the parties. Doing justice between
  the parties is clearly a constitutional obligation. This Court has
  been bestowed with the discretion " ... to make such order as
  is necessary for doing complete justice in any cause or matter
c pending before it. .. ". The concept of justice, however, varies
  depen_ding on the interest of the party. On most occasions, it
  is advisable to adjudicate matters in consonance with law.
  Whenever it is possible to do so, on the touchstone of the courts
  conscience, the determination rendered would simultaneously
  result in doing justice between the parties. All the same, since
0
  we have been called upon to annul the marriage between
  Darshan Gupta and his wife Radhika Gupta in order to do
  complete justice to the parties, we have ventured to thoughtfully
  examine the matter from instant perspective as well.

E·     41. In the context of doing justice it was suggested, that
  the appellant would be ready and willing to pay the respon~ent,
  whatever was considered appropriate by this Court. We are
  informed, that the appellant is financially well-to-do. We shall,
  therefore; keep in our mind the appellant's offer while examining
F the instant issue. We would, in our endeavour to determine the
  issue in hand, examine the matter, by reversing the roles of the
  parties. We will examine the matter as if, the wife had
  approached the Family Court seeking divorce, on the ground
  that her husband had suffered brain damage leading to
G cognitive deficiencies. Yet, despite the said deficiencies, his
  working memory had returned to "near normal" after treatment.
  And his mental condition was such, that it would not have any
  effect on his matrimonial obligations. And the wife's family is
  agreeable to pay an amount to be determined by this Court Oust
H as the husband-Darshan Gupta, has offered), so as to enable
         DARSHAN GUPTA v. RADHIKA GUPTA                         981
            [JAGDISH SINGH KHEHAR, J.]

their daughter to break away, and fina a more suitable match.           A
Should she have been granted freedom from her matrimonial
ties, in the given facts,- in order to do complete justice to the
parties? We would ask ourselves, whether the husband would
have accepted such a plea, in the facts denoted above? In such
situation, if this Court had, in exercise of its jurisdiction under     B
Article 142 of the Constitution of India, granted compensation
to the husband, and had dissolved his marriage on the pretext
of doing complete justice between the parties, would the same
be acceptable to the husband? We have no doubt in our mind,
that on a reversal of roles, the husband, without any fault of his      c
own, would have never accepted as just, the dissolution of his
matrimonial ties, even if the couple had been separated for a
duration, as is the case in hand. Specially, if the husband had,
right from the beginning, fervently expressed the desire to
restore his matrimonial relationship with his wife, and to live a       0
normal life with her.

      42. We are of the view, that the issue in hand should be
adjudged by the above standards, when the same prayer is
made by the husband. To constitute justice, the picture should
appear to be the same, irrespective of the angle from which it          E
is viewed. If the same sequence of facts cannot be viewed as
doing justice to the husband, they have to be likewise viewed
for the wife as well. It is, therefore, not possible for us to accept
eventhe last plea advanced at the hands of the learned counsel
for the appellant.                                                      F

    43. For the reasons recorded hereinabove, we find no
merit in these appeals, and the same are accordingly
dismissed.

B.B.B.                                        Appeals dismissed.        G