Supreme Court of India
VISHWANATH S/O SITARAM AGRAWALversusSAU. SARLA VISHWANATH AGRAWAL
- Citation
- 2012 INSC 269
- Decided
- 4 July 2012
- Disposal
- Appeal(s) allowed
- Bench
- DEEPAK VERMA
Holding
The Supreme Court held that the wife’s conduct amounted to mental cruelty warranting divorce and that the lower courts' findings were perverse, thereby allowing the appeal and granting a decree of divorce with permanent alimony of Rs.50 lakhs.
Summary
The husband filed a divorce petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955 alleging mental cruelty by his wife, who had publicly defamed him, hidden his clothes and keys, and made false criminal allegations. The trial court and appellate courts dismissed the petition, deeming the evidence unreliable and the alleged acts either trivial or unproven, and refused permanent alimony. On appeal, the Supreme Court examined the nature of mental cruelty, the relevance of events occurring after the petition was filed, and the admissibility of testimony from interested family witnesses. It held that the wife’s conduct—public humiliation, false accusations, and persistent harassment—constituted clear mental cruelty, that the lower courts' findings were perverse and unsupported by evidence, and that subsequent incidents could be considered. Consequently, the Court allowed the appeal, granted a decree of divorce, and awarded permanent alimony of Rs.50 lakhs to the wife.
Issues considered
- The precise meaning of 'mental cruelty' under Section 13(1)(ia) of the Hindu Marriage Act, 1955.
- Whether the findings of the trial court and appellate courts were perverse, unreasonable, or unsupported by evidence, justifying interference under Article 136 of the Constitution.
- Whether events occurring after the filing of the divorce petition can be taken into account in determining cruelty.
- Whether testimony of interested or related witnesses can be relied upon in matrimonial disputes.
- The criteria for fixing permanent alimony and the appropriate quantum in the present case.
Legislation cited
- Code of Civil Procedure, 1908s. 100
- Hindu Marriage Act, 1955s. 13(1)(ia)
- Indian Penal Code, 1860s. 494, s. 498A
Subjects
divorcemental crueltyHindu Marriage Actpermanent alimonyArticle 136perverse findingsinterested witnessesevidence appraisalsubsequent events
Judgment
[2012] 7 S.C.R. 607
VISHWANATH S/O SITARAM AGRAWAL A
v.
SAU. SARLA VISHWANATH AGRAWAL
(Civil Appeal No. 4905 of 2012)
JULY 4, 2012
8
[DEEPAK VERMA AND DIPAK MISRA, JJ.]
Hindu Marriage Act, 1955 - s. 13(1)(ia) - Divorce petition
filed by husband - On ground of cruelty - Held: The conduct
of the wife and circumstances of the case make it graphically C
clear that the wife had really humiliated the husband and
caused him mental cruelty - Her conduct clearly exposits that
it resulted in causing agony and anguish in the mind of the
husband - The wife publicised in the newspapers that the
husband was a womaniser and a drunkard - She made wild o
allegations about his character - She made an effort to
prosecute him in criminal litigations which she failed to prove
- The cumulative effect of the evidence brought on record
clearly establish a sustained attitude of causing humiliation
and calculated torture on the part of the wife to make the life E
of the husband miserable - Behaviour of the wife was cruel -
The husband felt humiliated both in private and public life -
He was treated as an unperson - It created a dent in his
reputation - With this mental pain, agony and suffering, the
husband cannot be asked to put up with the conduct of the F
wife and to continue to live with her - Therefore, appel/ant-
husband entitled to decree for divorce.
Family law - Matrimonial proceedings - Divorce petition
- Events subsequent to filing of divorce petition - Held: Can
be taken into consideration. G
Family law - Matrimonial proceedings - Divorce -
Permanent Alimony - Grant of - Factors to be considered -
Held: Permanent alimony is to be granted taking into
consideration the social status, the conduct of the parties, the
607 . H
608 SUPREME COURT REPORTS [2012] 7 S.C.R.
A way of living of the spouse and such other ancillary aspects -
In the instant case, keeping in view the totality of the
circumstances and the social strata from which the parties
come from and regard being had to the business prospects
of the appellant-husband, permanent alimony fixed at Rs.50
B lacs.
Family law - Matrimonial proceedings - Witness -
Interested/related witnesses - Testimony of - Veracity - Held:
In a matrimonial dispute, it would be inappropriate to expect
outsiders to come and depose - The family members and
C sometimes the relatives, friends and neighbours are the most
natural witnesses - The veracity of the testimony is to be
tested on objective parameters and not to be thrown overboard
on the ground that the witnesses are related to either of the
spouse.
D
Words and Phrases - Expression 'cruelty' - Meaning of -
Held: The expression has an inseparable nexus with human
conduct or human behaviour - It is always dependent upon
the social strata or the milieu to which the parties belong, their
ways of life, relationship, temperaments and emotions that
E have been conditioned by their social status.
Constitution of India, 1950 - Article 136 - Interference by
Supreme Court with concurrent findings of fact - When
permissible - Held: Supreme Court in exercise of power u/
F Article 136 can interfere with concurrent findings of fact, if the
conclusions recorded by the High Court are manifestly
perverse and unsupported by the evidence on record - Any
finding not supported by evidence or inference drawn in a
stretched and unacceptable manner can be said to be
G perverse.
The appellant-husband filed a petition for divorce
under Section 13(1)(ia) of The Hindu Marriage Act, 1955
contending that the respondent-wife had treated him with
cruelty. It was the case of the appellant that respondent
H did not know how to conduct herself as a wife and
VISHWANATH S/O SITARAM AGRAWAL v. SAU. 609
SARLA VISHWANATH AGRAWAL
daughter-in-law and despite persuasion, her behavioural A
pattern remained unchanged; that whim and irrationality
reigned in her day-to-day behaviour; that the birth of their
two sons had no impact on her conduct; that the
behaviour of respondent with the relatives and guests
endangered the social reputation of the family and that B
apart, she did not have the slightest respect for
appellant's mother despite the old lady being a patient of
diabetes and hyper tension, and that after the death of
appellant's mother, the respondent made the life of the
appellant all the more troublesome. The appellant c
contended that on certain occasions the respondent
used to hide or crumple his ironed clothes or hide the
keys of his motorcycle or close the main gate so that he
could not go to the office of his factory to look after the
business and that she also made frequent phone calls to
0
the factory solely for the purpose of abusing him and for
causing him mental agony.
During the pendency of the divorce petition, two
incidents- dated 24.7.1995 and 11.10.1995 occurred,
which the appellant incorporated in the divorce petition E
by way of amendment. On 24.7.1995, a notice issued by
respondent's advocate was published in the daily
"Lokmat" stating, inter alia, that the appellant was a
womaniser and addicted to liquor while on 11.10.1995, at
4.00 p.m., according to the appellant, the respondent F
came to his house and abused him, his father and the
children; and also damaged property which compelled
him to lodge a complaint at the Police Station.
The asseverations made in the divorce petition were
controverted by the respondent. She alleged that she G
was disturbed after knowing about the involvement of
appellant with another lady 'N', therefore, she was
compelled to make phone calls to make enquiries about
his whereabouts and as the interference by the
H
610 SUPREME COURT REPORTS [2012] 7 S.C.R.
A respondent was not appreciated by the appellant, he left
her at her parental house and never cared to bring her
back to her matrimonial home. The respondent further
alleged that 'N' lived with appellant as his mistress and
when respondent came to know about it, she went to
B ascertain the same and coming to know that 'N' was in
the house of the appellant, she made an effort to enter
into the house but she was assaulted and that this
resulted in gathering of people of the locality and the
appellant-husband, as a counter-blast, lodged a complaint
c at the police station. The respondent alleged that
because of the involvement of appellant with the said 'N',
-
'
he had concocted the story of cruelty and filed the
petition for divorce.
The trial court dismissed the petition for divorce and
D also dismissed the application of the respondent for grant
of permanent alimony. The order was upheld by the first
appellate Court. The appellant preferred Second Appeal
before the High Court which declined to interfere with the
judgment and decree of the courts below.
E In the instant appeal, this Court adverted to three
questions: 1) what actually constitutes 'mental cruelty';
2) whether the courts below had adopted an approach
which was perverse, unreasonable and unsupported by
the evidence on record and totally unacceptable and
F thus invites the discretion of this Court in exercise of
power under Article 136 of the Constitution to dislodge
the same and 3) whether in the case at hand, the plea of
mental cruelty was established so as to entitle the
appellant to get a decree for divorce.
G
Allowing the appeal, the Court
HELD:1. The expression 'cruelty' has an inseparable
nexus with human conduct or human behaviour. It is ,.
always. dependent upon the social strata or the milieu to ,;
H which the parties belong, their ways of life, relationship,
'""""'
VISHWANATH S/O SITARAM AGRAWAL v. SAU. 611
SARLA VISHWANATH AGRAWAL
temperaments and emotions that have been conditioned A
by their social status. [Para 17] [627-C-D]
Sirajmohamedkhan Janmohamadkhan v. Hafizunnisa
Yasinkhan and another (1981) 4 sec 250 : 1982 (1) SCR
695; Shobha Rani v. Madhukar Reddi (1988) 1 SCC 105:
B
1988 (1) SCR 1010; V. Bhagat v. 0. Bhagat (Mrs.) (1994) 1
SCC 337; Praveen Mehta v. lnderjit Mehta AIR 2002 SC
2582: 2002 (5) SCC 706; Vijaykumar Ramchandra Bhate v.
Nee/a Vijaykumar Bhate AIR 2003 SC 2462: 2003(3) SCR
607; A. Jayachandra v. Aneel Kaur (2005) 2 SCC 22: 2004
(6) Suppl. SCR 599; Vinita Saxena v. Pankaj Pandit (2006) C
3 SCC 778: 2006 (3) SCR 116; Samar Ghosh v. Jaya Ghosh
(2007) 4 SCC 511: 2007 (4) SCR 428 and Suman Kapur v.
Sudhir Kapur AIR 2009 SC 589: 2008 (15) SCR 972 - relied
on.
D
Sm. Pancho v. Ram Prasad AIR 1956 All 41 - referred
to.
Sheldon v. Sheldon (1966) 2 All ER 257 and Go/fins v.
Go/fins (1963) 2 All ER 966 - referred to.
E
2.1. The High Court, in a singular line, declined to
interfere with the judgment and decree of the courts
below stating that they are based on concurrent findings
of fact. The plea of perversity of approach though raised
was not adverted to. Any finding which is not supported
by evidence or inferences is drawn in a stretched and F
unacceptable manner can be said to be perverse. This
Court in exercise of power under Article 136 of the
Constitution can interfere with concurrent findings of
fact, if the conclusions recorded by the High Court are
manifestly perverse and unsupported by the evidence on G
record. [Paras 27, 31] [633-E; 634-F-H; 635-A]
2.2. In the instant case, the trial court as well as the
first appellate court disbelieved the evidence of most of
the witnesses cited on behalf of the appellant-husband H
612 SUPREME COURT REPORTS [2012] 7 S.C.R.
A on the ground that they were interested witnesses. In a
matrimonial dispute, it would be inappropriate to expect
outsiders to come and depose. The family members and
sometimes the relatives, friends and neighbours are the
most natural witnesses. The veracity of the testimony is
B to be tested on objective parameters and not to be
thrown overboard on the ground that the witnesses are
related to either of the spouse. Exception was taken by
the courts below that the servants of the house should
have been examined and that amounts to suppression of
c the best possible evidence. That apart, the allegations
made in the written statement, the dismissal of the case
instituted by the respondent-wife under Section 494 IPC,
the non-judging of the material regard being had to the
social status, the mental make-up, the milieu and the
0 rejection of subsequent events on the count that they are
subsequent to the filing of the petition for divorce and
also giving flimsy reasons not to place reliance on the
same, deserve to be tested on the anvil of "perversity of
approach". Quite apart from the above, a significant
E question that emerges is whether the reasons ascribed
by the courts below that the allegations made in the
written statement alleging extra marital affair of the
appellant-husband with 'N' has been established and,
therefore, it would not constitute mental cruelty are
perverse and unacceptable or justified on the basis of the
F evidence brought on record. These are the aspects which
need to be scrutinized and appositely delved into. [Para
32) [635-C-H; 363-A)
Alamelu and another v. State, Represented by Inspector
G of Police AIR 2011 SC 715: 2011 (2) SCR 147 and Heinz
India Pvt. Ltd. & Anr. v. State of UP. & Ors. (2012) 3 SCALE
607 - relied on.
Ku/want Kaur v. Gurdial Singh Mann (dead) by L.Rs. and
others AIR 2001 SC 1273: 2001 (2) SCR 525; Govindaraju
H v. Mariamman (2005) 2 SCC 500: 2005 (1) SCR 1100; Major
VISHWANATH S/O SITARAM AGRAWAL v. SAU. 613
SARLA VISHWANATH AGRAWAL
Singh v. Rattan Singh (Dead) by LRs and others AIR 1997 A
SC 1906: 1996 (9) Suppl. SCR 828; Vidhyadhar v. Manikrao
and another (1999) 3 sec 573: 1999 (1) SCR 1168 and
Abdul Raheem v. Kamataka Electricity Board & Ors. AIR
2008 SC 956: 2007 (12) SCR 389 - referred to.
3. The appellant-husband has categorically stated B
that the respondent-wife used to hide the pressed clothes
while he was getting ready to go to the factory.
Sometimes she used to crumple the ironed clothes and
hide the keys of the motorcycle or close the main gate.
In the cross-examination, it is clearly stated that the C
respondent was crumpling the ironed clothes, hiding the
keys of the motorcycle and locking the gate to trouble him
and the said incidents were taking place for a long time.
This being the evidence on record, one is at a loss to find
that the courts below could record a finding that the D
appellant used to enjoy the childish and fanciful
behaviour of the respondent pertaining to the aforesaid
aspect. This finding is definitely based on no evidence.
Such a conclusion cannot be reached even by inference.
Even surmises and conjectures would not permit such a E
finding to be recorded. It does not require Solomon's
wisdom to understand the embarrassment and
harassment that might have been felt by the appellant-
husband. [Para 33] [636-8-E]
4.1. The courts below opined that the publication of F
notice in the daily "Lokmat" and the occurrence that took
place on 11.10.1995 could not be considered as the said
events occurred after filing of the petition for divorce.
Thereafter, the courts below proceeded to deal with the
effect of the said events on the assumption that they can G
be taken into consideration. As far as the first incident is
concerned, a view was expressed that the notice was
published by the respondent to safeguard the interests
of the children, and the second one was a reaction on her
part relating to the relationship of appellant with 'N'. This H
614 SUPREME COURT REPORTS [2012] 7 S.C.R.
A Court is of the considered opinion that the subsequent
events can be taken into consideration. [Para 36] [639-
8-0]
4.2. The respondent-wife made allegation that the
appellant-husband had an illicit relationship with 'N'. The
B evidence of respondent, when studiedly scrutinized,
would show that there was more of suspicion than any
kind of truth in it. The respondent had filed a complaint,
RCC No. 91/95, under Section 494 IPC against the
appellant. He was discharged in the said case. The said
C order has gone unassailed. The respondent in her
evidence stated in an extremely bald manner that
whenever she had telephoned to the office in the factory,
the appellant was not there and further that the presence
of 'N' was not liked by her in-laws and the elder son PW5.
o Relying upon her evidence, the trial Judge expressed the
view that 'N' was having a relationship with the appellant
on the basis that though he had admitted that 'N'was
working in his office yet he had not produced any
appointment letter to show that she was appointed as a
E computer operator. It is demonstrable that the trial court
has been persuaded to return such a finding on the basis
of the incident that took place on 11.10.1995. The trial
Judge has given immense credence to the version of the
social worker who, on the date of the incident, had come
F to the house of the appellant where a large crowd had
gathered and has deposed that she had seen 'N' going
and coming out of the house. On 11.10.1995, as the
material on record would show, at 4.00 p.m., the
respondent arrived at the house of the appellant. She has
admitted that she wanted to see her father-in-law who
G was not keeping well. After she went in, her father-in-law
got up from the chair and went upstairs. She was not
permitted to go upstairs. It is testified by her that her
father-in-law came down and slapped her. The fact
remains that the testimony of respondent that her father-
H
VISHWANATH S/O SITARAM AGRAWAL v. SAU. 615
SARLA VISHWANATH AGRAWAL
-· in-law did not like the visit of 'N' does not appear to be A
true. Had it been so, he would not have behaved in the
manner as deposed by the respondent. That apart,
common sense does not give consent to the theory that
both, the father of the appellant and his son, PW-5,
abandoned normal perception of life and acceded to the B
illicit intimacy with 'N'. The respondent had made an
allegation that PW5 was influenced by the appellant. The
trial Judge as well as the appellate court have accepted
the same. It is germane to note that PW5 was
approximately 16 years of age at the time of examination c
in court. There is remotely np suggestion to the said
witness that when 'N' used to go to the house, his
grandfather expressed any kind of disapproval. The
respondent has deposed that it was published in the
papers that the daughter-in-law was slapped by the 0
father-in-law and 'N' was recovered from the house but
eventually the police lodged a case against the appellant,
his father and other relatives under Section 498A IPC.
This Court really fails to fathom how from this incident
and some cryptic evidence on record, it can be concluded E
that the respondent had established that the appellant
had an extra marital relationship with 'N'. That apart, in
the application for grant of interim maintenance, she had
pleaded that the appellant was a womaniser and
drunkard. This pleading was wholly unwarranted and, in
fact, amounts to a deliberate assault on the character. F
Thus, the uncalled for allegations are bound to create
mental agony and anguish in the mind of the appellant-
husband. [Paras 34] [636-F-H; 637-A-G]
4.3. The respondent had made allegation about the G
demand of dowry. RCC No. 133/95 was instituted under
Section 498A of the Indian Penal Code against the
appellant-husband, his father and other relatives. They
have been acquitted in that case. The said decision of
acquittal has not been assailed before the higher forum. H
616 SUPREME COURT REPORTS [2012] 7 S.C.R.
A Hence, the allegation on this count was incorrect and
untruthful and it can unhesitatingly be stated that such
an act creates mental trauma in the mind of the husband
as no one would like to face a criminal proceeding of this
nature on baseless and untruthful allegations. (Para 35)
B (638-G-H; 639-A)
4.4. Immense emphasis was given on the fact that
after publication of the notice (issued by respondent's
advocate) in the "Lokmat", the appellant had filed a
caveat in the court. The filing of the caveat is wholly
C inconsequential. The factual matrix would reveal that the
appellant comes from a r.espectable family engaged in
business. At the time of publication of the notice, his sons
were quite grown up. The respondent-wife did not bother
to think what impact it would have on the reputation of
D the appellant and what mental discomfort it would cause.
It is manifest from the material on record that the children
were staying with the appellant. They were studying in
the school and the appellant was taking care of
everything. Such a publication in the newspaper having
E good circulation can cause trauma, agony and anguish
in the mind of any reasonable man. The explanation given
by the respondent to the effect that she wanted to protect
the interests of the children is absolutely incredible and
implausible. In fact, it can decidedly be said that it was
F malafide and the motive was to demolish the reputation
of the appellant in the society by naming him as a
womaniser, drunkard and a man of bad habits. [Para 38)
[640-E-H; 641-A]
A. Jayachandra v. Aneel Kaur (2005) 2 SCC 22: 2004
G (6) Suppl. SCR 599 and Suman Kapur v. Sudhir Kapur AIR
2009 SC 589: 2008 (15) SCR 972 - relied on.
5. The conduct of the respondent-wife and
circumstances of the case make it graphically clear that
H she had really humiliated the appellant and caused
VISHWANATH S/O SITARAM AGRAWAL v. SAU. 617
SARLA VISHWANATH AGRAWAL
mental cruelty. Her conduct clearly exposits that it A
resulted in causing agony and anguish in the mind of the
appellant. A normal reasonable man is bound to feel the
sting and the pungency. The respondent had publicised
in the newspapers that the appellant was a womaniser
and a drunkard. She had made wild allegations about his B
character. She had made an effort to prosecute him in
criminal litigations which she had failed to prove. The
feeling of deep anguish, disappointment, agony and
frustration of the appellant is obvious. It can be stated
with certitude that the cumulative effect of the evidence c
brought on record clearly establish a sustained attitude
of causing humiliation and calculated torture on the part
of the respondent to make the life of the appellant
miserable. The appellant felt humiliated both in private
and public life. Indubitably, it created a dent in his
0
reputation. The cruel behaviour of the respondent froze
the emotions and snuffed out the feelings of the appellant
because he was treated as an unperson. Thus, analysed,
it is abundantly clear that with this mental pain, agony
and suffering, the appellant cannot be asked to put up
with the conduct of the respondent and to continue to live E
with her. Therefore, he is entitled to a decree for divorce.
[Para 40] [641-D-H; 642-A-C]
N. G. Dastane v. S. Dastane (1975) 3 SCR 967 - referred
to. F
6. Permanent alimony is to be granted taking into
consideration the social status, the conduct of the
parties, the way of living of the spouse and such other
ancillary aspects. The amount already paid to
respondent-wife towards alimony is to be ignored as the G
same had been paid by virtue of the interim orders passed
by the courts. It is not expected that the respondent-wife
has sustained herself without spending the said money.
Keeping in view the totality of the circumstances and the
social strata from which the parties come from and regard H
618 SUPREME COURT REPORTS [2012] 7 S.C.R.
A being had to the business prospects of the appellant,
permanent alimony of Rs.50 lacs (rupees fifty lacs only)
should be fixed and, accordingly, this Court does so.
[Paras 41, 42] [642-E; 643-B-D]
Case Law Reference:
B
1982 (1) SCR 695 relied on Para 17
AIR 1956 All 41 referred to Para 17
1988 (1) SCR 1010 relied on Para 18
c (1966) 2 All ER 257 referred to Para 19
(1963) 2 All ER 966 referred to Para 19
(1994) 1 sec 337 relied on Para 20
2002 (5) sec 106 relied on Para 21
D
2003(3) SCR 607 relied on Para 22
2004 (6) Suppl. SCR 599 relied on Paras 23, 36
2006 (3) SCR 116 relied on Para 24
E 2007 (4) SCR 428 relied on Para 25
2008 (15) SCR 972 relied on Paras 26, 37
2001 (2) SCR 525 referred to Para 28
F 2005 (1) SCR 1100 referred to Para 28
1996 (9) Suppl. SCR 828 referred to Para 29
1999 (1) SCR 1168 referred to Para 30
2007 (12) SCR 389 referred to Para 30
G
2011 (2) SCR 147 relied on Para 31
(2012) 3 SCALE 607 relied on Para 31
(1975) 3 SCR 967 referred to Para 39
H
VISHWANATH S/O SITARAM AGRAWAL v. SAU. 619
SARLA VISHWANATH AGRAWAL
CIVIL APPELLATE JURISDICTION : Civil Appeal No. A
4905 of 2012.
From the Judgment & Order dated 24.04.2007 of the High
Court of Judicature at Bombay bench at Aurangabad in Second
Appeal No. 683 of 2006.
B
Arvind V. Savant, Sanjay Kharde, Sachin J. Patil, Preshit
V. Surshe, Chandan Ramamurthi for the Appellant.
Vivek C. Solshe, P.A. Bhat, C.G. Solshe for the
Respondent. C
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. Leave granted.
2. The marriage between the appellant and the respondent D
was solemnized on the 30th of April, 1979 as per the Hindu
rites at Akola. In the wedlock, two sons, namely, Vishal and
Rahul, were born on 23.9.1982 and 1.11.1984 respectively. As
the appellant husband felt that there was total discord in their
marital ·life and compatibility looked like a mirage, he filed a E
petition for divorce under Section 13(1) (ia) of The Hindu
Marriage Act, 1955 (for brevity 'the Act').
3. It was the case of the appellant before the court of first
instance that the respondent-wife did not know how to conduct
herself as a wife and daughter-in-law and despite persuasion, F
her behavioural pattern remained unchanged. The birth of the
children had no impact on her conduct and everything
worsened with the efflux of time. The behaviour of the
respondent with the relatives and guests who used to come to
their house was far from being desirable and, in fact, it exhibited G
arrogance and lack of culture and, in a way, endangered the
social reputation of the family. That apart, she did not have the
slightest respect for her mother-in-law. Despite the old lady
being a patient of diabetes and hyper tension, it could not
H
620 SUPREME COURT REPORTS [2012] 7 S.C.R.
A invoke any sympathy from the respondent and hence, there was
total absence of care or concern.
4. As pleaded, in the month of March, 1990, there was a
dacoity in the house where the appellant was staying and,
therefore, they shifted to the ginning factory and eventually, on
8
17.3.1991, shifted to their own three storeyed building situate
in Gandhi Chowk. Even with the passage of time, instead of
bringing maturity in the attitude of the respondent, it brought a
sense of established selfishness and non-concern for the
C children. Whim and irrationality reigned in her day-to-day
behaviour and frequent quarrels became a daily affair. As
misfortune would have it, on 23.1.1994, the mother of the
appellant died and the freer atmosphere at home gave
immense independence to the respondent to make the life of
the appellant more troublesome. The appellant and his father
D were compelled to do their personal work as the entire attention
of the servants was diverted in a compulsive manner towards
her. Her immature perception of life reached its zenith when on
certain occasions she used to hide the keys of the motorcycle
and close the gate so that the appellant could not go to the office
E of the factory to look after the business. Frequent phone calls
were made to the factory solely for the purpose of abusing and
causing mental agony to the appellant. As asserted, the
appellant and his sons used to sleep on the second floor
whereas the respondent used to sleep in the bedroom on the
F third floor and their relationship slowly but constantly got
estranged. As the cruelty became intolerable, the appellant
visited his in-laws and disclosed the same but it had no effect
on her behaviour. Eventually, on 1.5.1995, the respondent was
left at the house of her parents at Akola and the appellant
G stayed in his house with the two sons. As the factual matrix would
unveil, on 24.7.1995, a notice issued by her advocate was
published in the daily "Lokmat" stating, inter alia, that the
appellant is a womaniser and addicted to liquor. On
11.10.1995, at 4.00 p.m., the respondent came to the house
H of the appellant at Gandhi Chowk and abused the father, the
VISHWANATH S/O SITARAM AGRAWAL v. SAU. 621
SARLA VISHWANATH AGRAWAL [DIPAK MISRA, J.]
children and the appellant. She, in fact, created a violent A
atmosphere in the house as well as in the office by damaging
the property and causing mental torture to the appellant and
also to the family members which compelled the appellant to
lodge a complaint at the Police Station, Chopda. It was alleged
that she had brought gundas and certain women to cause that B
incident. The said untoward incident brought the A.S.P.,
Jalgaon, to the spot. The publication in the newspaper and the
later incident both occurred during the pendency of the divorce
petition and they were incorporated by way of amendment. On
the aforesaid basis, it was contended that the respondent had c
treated the appellant with cruelty and hence, he was entitled to
a decree for divorce.
5. The asseverations made in the petition were
controverted by the respondent stating that she was always
respectful and cordial to her in-laws, relatives and the guests D
as was expected from a cultured daughter-in-law. They led a
happy married life for 16 years and at no point of time she
showed any arrogance or any behaviour which could remotely
suggest any kind of cruelty. She attended to her mother-in-law
all the time with a sense of committed service and at no point E
of time there was any dissatisfaction on her part. She disputed
the allegation that she had hidden the keys of the motorcycle
or closed the gate or repeatedly called the appellant on phone
at the office to abuse him or to disturb him in his work. It is her
stand that the appellant owns an oil mill, ginning factory and a F
petrol pump at Chopda and had sold certain non-agricultural
land by demarcating it into small plots. The appellant, as
alleged, joined the computer classes which were run by one
Neeta Gujarathi in the name and style of "Om Computer
Services" and gradually the appellant started spending much G
of his time at the computer centre instead of attending to his
own business in the factory. When the respondent became
aware of the intimacy, she took serious objection to the same
and therefrom their relationship became bitter.
H
622 SUPREME COURT REPORTS (2012] 7 S.C.R.
A 6. It was alleged by the respondent that she was disturbed
after knowing about the involvement of the appellant with
another lady despite having an established family life and two
adolescent sons and, therefore, she was compelled to make
phone calls to make enquiries about his whereabouts. As the
B interference by the respondent was not appreciated by the
appellant, he took the respondent on 1.5.1995 to Akola and left
her at her parental house and never cared to bring her back to
her matrimonial home. Her willingness to come back and stay
with the husband and children could not get fructified because
c of the totally indifferent attitude shown by the appellant. Her
attempts to see the children in the school became an exercise
in futility, as the husband, who is a trustee of the school,
managed to ensure that the boys did not meet her. It was
further alleged that the said Neeta lived with him as his mistress
and when the respondent came to know about it, she went to
0
Chopda to ascertain the same and coming to know that Neeta
was in the house of the appellant, she made an effort to enter
into the house but she was assaulted. This resulted in gathering
of people of the locality and the appellant-husband, as a
E counter-blast, lodged a complaint at the police station. The
Deputy Superintendent of Police arrived at the scene and found
that Neeta was inside the house and thereafter she was taken
back to her house by the police. Because of the involvement
of the appellant with the said Neeta, he had concocted the story
of cruelty and filed the petition for divorce.
F
7. The learned trial Judge framed as many as four issues.
The two vital issues were whether the appellant had been able
to prove the alleged cruelty and whether he was entitled to take
disadvantage of his own wrong. The appellant, in order to prove
G the allegation of cruelty, examined ten witnesses and on behalf
of the respondent, eight witnesses were examined. The learned
trial Judge, analysing the evidence on record, came to hold that
there was conjugal relationship till 1.5.1995; that there was no
substantial material on record to demonstrate that the
H respondent had behaved with immaturity immediately after
·-
VISHWANATH S/O SITARAM AGRAWAL v. SAU. 623
SARLA VISHWANATH AGRAWAL [DIPAK MISRA, J.]
marriage; that in the absence of cogent evidence, it was difficult A
to hold that the respondent had troubled the husband and his
parents; that the evidence of PW-3, Ramesh, was not worthy
of acceptance as he is close and an interested witness; that
the allegation that whenever she used to go to her parental
home, she was granting leave to the servants was not B
acceptable; that the appellant should have examined some of
the servants including the maid servant but for some reason or
other had withheld the best evidence; that the plea that the
respondent was not looking after her mother-in-law who was
suffering from paralysis from 1984 has not been proven; that c
the allegation that the respondent was hiding the uniforms of
the children and not treating them well had not been proven
because the version of Vishal could not be accepted as he was
staying with the father and, therefore, it was natural for him to
speak in favour of the father; that the stand that the respondent
0
was hiding the keys of the motorcycle and crumpling the ironed
clothes of the appellant did not constitute mental cruelty as the
said acts, being childish, were enjoyed by the appellant-
husband; that the factum of abuse by the respondent on
telephone had not been established by adducing reliable
evidence; that the respondent and the appellant were sleeping E
on the third floor of the house and hence, she was sleeping with
him in the bedroom and the allegation that he was deprived of
sexual satisfaction from 1991 was unacceptable; that from the
witnesses cited on behalf of the respondent, it was
demonstrable that her behaviour towards her sons and in-laws F
was extremely good; that even if the allegations made by the
appellant were accepted to have been established to some
extent, it could only be considered as normal wear and tear of
the marital life; that the plea of mental cruelty had not been
proven as none of the allegations had been established by G
adducing acceptable, consistent and cogent evidence; that the
notice published in the daily "Lokmat" on 28.7.1995 and the
later incident dated 11.10.1995 being incidents subsequent to
the filing of the petition for divorce, the same were not to be
taken into consideration. H
624 SUPREME COURT REPORTS [2012] 7 S.C.R.
A 8. The learned trial Judge further returned the finding that
the appellant was going to learn computer and taking
instructions from Neeta Gujarathi and the plea that she was
engaged as a Computer Operator in his office was not
believable as no appointment letter was produced; that the
B stand that she was paid Rs.1200/- per month was not worthy
of any credence as she was operating a computer centre; that
from the evidence of the witnesses of the respondent, namely,
RW-3 to RW-5, it was clear that Neeta Gujarathi was living with
the appellant in his house and he had developed intimacy with
c her and, therefore, the subsequent events, even if analysed,
were to be so done on the said backdrop; that the allegation
that there was a gathering and they were violent and broke the
windows was really not proven by adducing credible evidence;
that the testimony of the witnesses of the respondent clearly
reveal that Neeta was inside the house of the appellant and
0
effort was made to bring her out from the house and no damage
was caused to the property; that on that day, the police had
come in the mid night hours and taken out Neeta from the
house of the appellant and left her at her house; that the notice
E which was published in "Lokmat" was to protect the interest of
the sons in the property and basically pertained to the appellant's
alienating the property; that the public notice was not unfounded
or baseless and the question of defaming him and thereby
causing any mental cruelty did not arise; that the allegations
made in the application for grant of interim alimony that the
F appellant is a womaniser and is addicted to liquor cannot be
considered for the purpose of arriving at the conclusion that the
husband was meted with cruelty; that the allegations made in
the written statement having been found to be truthful, the same
could not be said to have caused any mental cruelty; that the
G cumulative effect of the evidence brought on record was that
no mental cruelty was ever caused by the respondent; and that
the husband could not take advantage of his own wrong. Being
of this view, the learned trial Judge dismissed the application
with costs and also dismissed the application of the
H respondent-wife for grant of permanent alimony.
VISHWANATH S/O SITARAM AGRAWAL v. SAU. 625
SARLA VISHWANATH AGRAWAL [DIPAK MISRA, J.]
9. Grieved by the aforesaid decision, the appellant- A
husband preferred Civil Appeal No. 23 of 1999. The first
appellate court appreciated the evidence, dealt with the
findings returned by the trial court and eventually came to hold
that the cumulative effect of the evidence and the material
brought on record would go a long way to show that the B
appellant had failed to make out a case of mental cruelty to
entitle him to obtain a decree for divorce. The aforesaid
conclusion by the appellate court entailed dismissal of the
appeal.
10. Being dissatisfied with the judgment and decree
c
passed by the learned appellate Judge, the husband preferred
Second Appeal No. 683 of 2006 before the High Court. The
learned single Judge of the High Court came to hold that there
were concurrent findings of fact and no substantial question of
law was involved. However, the learned single Judge observed D
that the sons of the parties had grown up and have been
married; that the parties had no intention to patch up the
matrimonial discord; and that the marriage had been
irretrievably broken but that could not be considered by the High
Court but only by the Apex Court under Article 142 of the E
Constitution. Expressing the aforesaid view, he did not admit
the appeal and dismissed the same.
11. We have heard Mr. Arvind V. Sawant, learned senior
counsel for the appellant-husband, and Mr. Vivek C. Solshe, F
learned counsel for the respondent-wife.
12. At the very outset, we would like to make it clear that
though the learned single judge of the High Court has
expressed the view that the parties are at logger heads and
have shown no inclination to patch the matrimonial rupture and G
the sons have grown up and got married and with the efflux of
time, the relationship has been further shattered and hence, the
marriage is irretrievably broken and only this Court can grant
divorce in exercise of power under Article 142 of the
H
626 SUPREME COURT REPORTS [2012] 7 S.C.R.
A Constitution, yet we are not going to take recourse to the same
and only address ourselves whether a case for divorce has
really been made out.
13. At this juncture, we may note with profit that the learned
senior counsel for the appellant exclusively rested his case on
8
the foundation of mental cruelty. It is his submission that if the
evidence of the husband and other witnesses are scrutinized
in an apposite manner along with the stand and stance taken
in the written statement, it will clearly reveal a case of mental
cruelty regard being had to the social status of the appellant. It
C is urged by him that the trial court as well as the appellate court
have not given any credence to the evidence of some of the
witnesses on the ground that they are interested witnesses
though they are the most natural witnesses who had witnessed
the cruel behaviour meted to the appellant.
D
14. It is the submission of the learned senior counsel for
the appellant that the court of first instance as well as the
appellate court have failed to take into consideration certain
material aspects of the evidence and the appreciation of
E evidence being absolutely perverse, the High Court would have
been well advised to scan and scrutinize the same but it
declined to admit the appeal on the ground that there are
concurrent findings of fact. It is canvassed by him that this Court,
in exercise of power under Article 136 of the Constitution, can
F dislodge such concurrent findings of facts which are perverse,
baseless, unreasonable and contrary to the material on record.
15. The learned counsel for the respondent, resisting the
aforesaid submissions, contended that the view expressed by
the High Court cannot be found fault with as the courts below
G have, at great length, discussed the evidence and appreciated
the same with utmost prudence and objectivity and there is
nothing on record to show that any material part of the evidence
has been ignored or something extraneous to the record has
been taken into consideration. It is highlighted by him that the
H stand put forth by the wife in her written statement having been
VISHWANATH S/O SITARAM AGRAWAL v. SAU. 627
SARLA VISHWANATH AGRAWAL [DIPAK MISRA, J.]
established, the same cannot be construed to have constituted A
mental cruelty. Lastly, it is put forth that the appellant has created
a dent in the institution of marriage and made a maladroit effort
to take advantage of his own wrong which should not be
allowed.
B
16. First, we shall advert to what actually constitutes 'mental
cruelty' and whether in the case at hand, the plea of mental
cruelty has been established and thereafter proceed to address
whether the courts below have adopted an approach which is
perverse, unreasonable and unsupported by the evidence on
record and totally unacceptable to invite the discretion of this C
Court in exercise of power under Article 136 of the Constitution
to dislodge the same.
17. The expression 'cruelty' has an inseparable nexus with
human conduct or human behaviour. It is always dependent D
upon the social strata or the milieu to which the parties belong,
their ways of life, relationship, temperaments and emotions that
have been conditioned by their social status. In
Sirajmohamedkhan Janmohamadkhan v. Hafizunnisa
Yasinkhan and another1, a two-Judge Bench approved the E
concept of legal cruelty as expounded in Sm. Pancho v. Ram
PrasacP wherein it was stated thus: -
"Conception of legal cruelty undergoes changes according
to the changes and advancement of social concept and
standards of living. With the advancement of our social F
conceptions, this (eature has obtained legislative
recognition that a second marriage is a sufficient ground
for separate residence and separate maintenance.
Moreover, to establish legal cruelty, it is not necessary that
physical violence should be used. G
Continuous ill-treatment, cessation of marital
1. (1981) 4 sec 250.
2. AIR 1956 All 41
H
628 SUPREME COURT REPORTS (2012] 7 S.C.R.
A intercourse, studied neglect. indifference on the part of the
husband, and an assertion on the part of the husband that
the wife is unchaste are all factors which may undermine
the health of a wife."
It is apt to note here that the said observations were made
8
while dealing with the Hindu Married Women's Right to
Separate Residence and Maintenance Act (19 of 1946). This
Court, after reproducing the passage, has observed that the
learned Judge has put his finger on the correct aspect and
C object of mental cruelty.
18. In Shobha Rani v. Madhukar Reddi3, while dealing with
'cruelty' under Section 13(1 )(ia) of the Act, this Court observed
that the said provision does not define 'cruelty' and the same
could not be defined. The 'cruelty' may be mental or physical,
D intentional or unintentional. If it is physical, the court will have
no problem to determine it. It is a question of fact and degree.
If it is mental, the problem presents difficulty. Thereafter, the
Bench proceeded to state as follows: -
"First, the enquiry must begin as to the nature of the cruel
E
treatment. Second, the impact of such treatment on the
mind of the spouse. Whether it caused reasonable
apprehension that it would be harmful or injurious to live
with the other. Ultimately, it is a matter of inference to be
drawn by taking into account the nature of the conduct and
F its effect on the complaining spouse. There may, however,
be cases where the conduct complained of itself is bad
enough and per se unlawful or illegal. Then the impact or
the injurious effect on the other spouse need not be
enquired into or considered. In such cases, the cruelty will
G be established if the conduct itself is proved or admitted."
19. After so stating, this Court observed about the marked
change in life in modern times and the sea change in
H 3. (1988) 1 sec 1os.
VISHWANATH S/O SITARAM AGRAWAL v. SAU. 629
SARLA VISHWANATH AGRAWAL [DIPAK MISRA, J.]
matrimonial duties and responsibilities. It has been observed A
that when a spouse makes a complaint about treatment of
cruelty by the partner in life or relations, the court should not
search for standard in life. A set of facts stigmatized as cruelty
in one case may not be so in another case. The cruelty alleged
may largely depend upon the type of life the parties are B
accustomed to or their economic and social conditions. It may
also depend upon their culture and human values to which they
attach importance. Their Lordships referred to the observations
made in Sheldon v. Sheldon4 wherein Lord Denning stated,
"the categories of cruelty are not closed". Thereafter, the Bench c
proceeded to state thus: -
"Each case may be different. We deal with the conduct of
human beings who are not generally similar. Among the
human beings there is no limit to the kind of conduct which
may constitute cruelty. New type of cruelty may crop up in D
any case depending upon the human behaviour, capacity
or incapability to tolerate the conduct complained of. Such
is the wonderful (sic) realm of cruelty.
These preliminary observations are intended to emphasise E
that the court in matrimonial cases is not concerned with
ideals in family life. The court has only to understand the
spouses concerned as nature made them, and consider
their particular grievance. As Lord Ried observed in
Go/fins v. Gollins 5 :
F
In matrimonial affairs we are not dealing with
objective standards, it is not a matrimonial offence
to fall below the standard of the reasonable man (or
the reasonable woman). We are dealing with this
man or this woman." G
20. In V. Bhagat v. D. Bhagat (Mrs.) 5, a two-Judge Bench
4. (1966) 2 All ER 257.
5. (1963) 2 All ER 966.
6. (1994) 1 sec 337. H
630 SUPREME COURT REPORTS [2012] 7 S.C.R.
A referred to the amendment that had taken place in Sections 10
and 13(1 )(ia) after the Hindu Marriage Laws (Amendment) Act,
1976 and proceeded to hold that the earlier requirement that
such cruelty has caused a reasonable apprehension in the mind
of a spouse that it would be harmful or injurious for him/her to
B live with the other one is no longer the requirement. Thereafter,
this Court proceeded to deal with what constitutes mental cruelty
as contemplated in Section 13(1 )(ia) and observed that mental
cruelty in the said provision can broadly be defined as that
conduct which inflicts upon the other party such mental pain and
C suffering as would make it not possible for that party to live with
the other. To put it differently, the mental cruelty must be of such
a nature that the parties cannot reasonably be expected to live
together. The situation must be such that the wronged party
cannot reasonably be asked to put up with such conduct and
continue to live with the other party. It was further observed, while
0
arriving at such conclusion, that regard must be had to the social
status, educational level of the parties, the society they move
in, the possibility or otherwise of the parties ever living together
in case they are already living apart and all other relevant facts
and circumstances. What is cruelty in one case may not amount
E to cruelty in another case and it has to be determined in each
case keeping in view the facts and circumstances of that case.
That apart, the accusations and allegations have to be
scrutinized in the context in which they are made. Be it noted,
in the said case, this Court quoted extensively from the
F allegations made in the written statement and the evidence
brought on record and came to hold that the said allegations
and counter allegations were not in the realm of ordinary plea
of defence and did amount to mental cruelty.
G 21. In Praveen Mehta v. lnderjit Mehta 7, it has been held
that mental cruelty is a state of mind and feeling with one of
the spouses due to behaviour or behavioural pattern by the
other. Mental cruelty cannot be established by direct evidence
H 7. AIR 2002 SC 2582.
VISHWANATH S/O SITARAM AGRAWAL v. SAU. 631
SARLA VISHWANATH AGRAWAL [DIPAK MISRA, J.]
and it is necessarily a matter of inference to be drawn from the A
facts and circumstances of the case. A feeling of anguish,
disappointment, and frustration in one spouse caused by the
conduct of the other can only be appreciated on assessing the
attending facts and circumstances in which the two partners of
matrimonial life have been living. The facts and circumstances B
are to be assessed emerging from the evidence on record and
thereafter, a fair inference has to be drawn whether the
petitioner in the divorce petition has been subjected to mental
cruelty due to the conduct of the other.
22. In Vijaykumar Ramchandra Bhate v. Nee/a
c
Vijaykumar Bhate 8, it has been opined that a conscious and
deliberate statement levelled with pungency and that too placed
on record, through the written statement, cannot be so lightly
ignored or brushed aside.
D
23. In A Jayachandra v. Aneel Kaur1, it has been ruled
that the question of mental cruelty has to be considered in the
light of the norms of marital ties of the particular society to which
the parties belong, their social values, status and environment
in which they live. If from the conduct of the spouse, it is E
established and/or an inference can legitimately be drawn that
the treatment of the spouse is such that it causes an
apprehension in the mind of the other spouse about his or her
mental welfare, then the same would amount to cruelty. While
dealing with the concept of mental cruelty, enquiry must begin F
as to the nature of cruel treatment and the impact of such
treatment in the mind of the spouse. It has to be seen whether
the conduct is such that no reasonable person would tolerate
it.
24. In Vinita Saxena v. Pankaf Pandit 10 , it has been ruled G
that as to what constitutes mental cruelty for the purposes of
8. AIR 2003 SC 2462.
9. (2005) 2 sec 22.
10. (2006) 3 sec 778. H
632 SUPREME COURT REPORTS [2012] 7 S.C.R.
A Section 13(1 )(ia) will not depend upon the numerical count of
such incident or only on the continuous course of such conduct
but one has to really go by the intensity, gravity and stigmatic
impact of it when meted out even once and the deleterious
effect of it on the mental attitude necessary for maintaining a
B conducive matrimonial home.
25. In Samar Ghosh v. Jaya Ghosh 11 , this Court, after
surveying the previous decisions and referring to the concept
of cruelty, which includes mental cruelty, in English, American,
Canadian and Australian cases, has observed that the human
C mind is extremely complex and human behaviour is equally
complicated. Similarly, human ingenuity has no bound,
therefore, to assimilate the entire human behaviour in one
definition is almost impossible. What is cruelty in one case may
not amount to cruelty in the other case. The concept of cruelty
D differs from person to person depending upon his upbringing,
level of sensitivity, edu__cational, family and cultural background,
financial position, social status, customs, traditions, religious
belief, human values and their value system. Apart from this,
the concept of mental cruelty cannot remain static; it is bound
E to change with the passage of time, impact of modern culture
through print and electronic media and value system, etc. etc.
What may be mental cruelty now may not remain mental cruelty
after a passage of time or vice versa. There can never be any
straitjacket formula or fixed parameters for determining mental
F cruelty in matrimonial matters. The prudent and appropriate way
to adjudicate the case would be to evaluate it on its peculiar
facts and circumstances.
26. In Suman Kapur v. Sudhir Kapur12, after referring to
G various decisions in the field, this Court took note of the fact
that the wife had neglected to carry out the matrimonial
obligations and further, during the pendency of the mediation
proceeding, had sent a notice to the husband through her
11 . c200?) 4 sec 511.
H 12. AIR 2009 SC 589.
VISHWANATH S/O SITARAM AGRAWAL v. SAU. 633
SARLA VISHWANATH AGRAWAL [DIPAK MISRA. J.]
advocate alleging that he had another wife in USA whose A
identity was concealed. The said allegation was based on the
fact that in his income-tax return, the husband mentioned the
"Social Security Number" of his wife which did not belong to
the wife, but to an American lady. The husband offered an
explanation that it was merely a typographical error and nothing B
else. The High Court had observed that taking undue advantage
of the error in the "Social Security Number", the wife had gone
to the extent of making serious allegation that the husband had
married an American woman whose "Social Security Number"
was wrongly typed in the income-tax return of the husband. This c
fact also weighed with this Court and was treated that the entire
conduct of the wife did tantamount to mental cruelty.
27. Keeping in view the aforesaid enunciation of law
pertaining to mental cruelty, it is to be scrutinized whether in the
case at hand, there has been real mental cruelty or not, but, a D
significant one, the said scrutiny can only be done if the findings
are perverse, unreasonable, against the material record or
based on non-consideration of relevant materials. We may note
here that the High Court has, in a singular line, declined to
interfere with the judgment and decree of the courts below E
stating that they are based on concurrent findings of fact. The
plea of perversity of approach though raised was not adverted
to.
28. It is worth noting that this Court, in Ku/want Kaur v. F
Gurdial Singh Mann (dead) by L.Rs. and others 13, has held
that while it is true that in a second appeal, a finding of fact,
even if erroneous, will generally not be disturbed but where it
is found that the findings stand vitiated on wrong test and on
the basis of assumptions and conjectures and resultantly there G
is an element of perversity involved therein, the High Court will
be within its jurisdiction to deal with the issue. An issue
pertaining to perversity comes within the ambit of substantial
13. AIR 2001 SC 1273.
H
634 SUPREME COURT REPORTS [2012] 7 S.C.R.
A question of law. Similar view has been stated in Govindaraju
v. Mariamman 14 •
29. In Major Singh v. Rattan Singh (Dead) by LRs and
others 15, it has been observed that when the courts below had
rejected and disbelieved the evidence on unacceptable
8
grounds, it is the duty of the High Court to consider whether the
reasons given by the courts below are sustainable in law while
hearing an appeal under Section 100 of the Code of Civil
Procedure.
C 30. In Vidhyadhar v. Manikrao and another15, it has been
ruled that the High Court in a second appeal should not distuct:>
the concurrent findings of fact unless it is shown that the findings
recorded by the courts below are perverse being based on no
evidence or that on the evidence on record, no reasonable
o person could have come to that conclusion. We may note here
that solely because another view is possible on the basis of
the evidence, the High Court would not be entitled to exercise
the jurisdiction under Section 100 of the Code of Civil
Procedure. This view of ours has been fortified by the decision
E of this Court in Abdul Raheem v. Karnataka Electricity Board
& Ors. 17.
31. Having stated the law relating to mental cruelty and the
dictum of this Court in respect of the jurisdiction of the High
Court where concurrent findings of fact are assailed, as advised
F at present, we will scan the evidence whether the High Court
has failed to exercise the jurisdiction conferred on it despite
the plea of perversity being raised. Any finding which is not
supported by evidence or inferences is drawn in a stretched
and unacceptable manner can be said to be perverse. This
G Court in exercise of power under Article 136 of the Constitution
14. (2005) 2 sec 500.
15. AIR 1997 SC 1906.
16. (1999) 3 sec 573.
17. AIR 2008 SC 956.
H
VISHWANATH S/O SITARAM AGRAWAL v. SAU. 635
SARLA VISHWANATH AGRAWAL [DIPAK MISRA, J.]
can interfere with concurrent findings of fact, if the conclusions A
recorded by the High Court are manifestly perverse and
unsupported by the evidence on record. It has been so held in
Alamelu and another v. State, Represented by Inspector of
Police 18 and Heinz India Pvt. Ltd. & Anr. v. State of UP. &
Ors. 19 B
32. Presently, to the core issue, viz, whether the appellant-
husband had made out a case for mental cruelty to entitle him
to get a decree for divorce. At this juncture, we may unhesitantly
state that the trial court as well as the first appellate court have C
disbelieved the evidence of most of the witnesses cited on
behalf of the husband on the ground that they are interested
witnesses. In a matrimonial dispute, it would be inappropriate
_to expect outsiders to come and depose. The family members
and sometimes the relatives, friends and neighbours are the
most natural witnesses. The veracity of the testimony is to be D
tested on objective parameters and not to be thrown overboard
on the ground that the witnesses are related to either of the
spouse. Exception has been taken by the courts below that the
servants of the house should have been examined and that
amounts to suppression of the best possible evidence. That E
apart, the allegations made in the written statement, the
dismissal of the case instituted by the wife under Section 494
of the Indian Penal Code, the non-judging of the material regard
being had to the social status, the mental make-up, the milieu
and the rejection of subsequent events on the count that they F
are subsequent to the filing of the petition for divorce and also
giving flimsy reasons not to place reliance on the same, we are
disposed to think, deserve to be tested on the anvil of
"perversity of approach". Quite apart from the above, a
significant question that emerges is whether the reasons G
ascribed by the courts below that the allegations made in the
< written statement alleging extra marital affair of the appellant-
18. AIR 2011 SC 715.
19. (2012) 3 SCALE 607 = (2012) 2 KLT (SN) 64. H
•
636 SUPREME COURT REPORTS [2012] 7 S.C.R.
A husband with Neeta Gujarathi has been established and,
therefore, it would not constitute mental cruelty are perverse and
unacceptable or justified on the basis of the evidence brought
on record. These are the aspects which need to be scrutinized
and appositely delved into.
B
33. The appellant-husband, examining himself as PW-1,
has categorically stated that the wife used to hide the pressed
clothes while he was getting ready to go to the factory.
Sometimes she used to crumple the ironed clothes and hide
the keys of the motorcycle or close the main gate. In the cross-
C examination, it is clearly stated that the wife was crumpling the
ironed clothes, hiding the keys of the motorcycle and locking
the gate to trouble him and the said incidents were taking place
for a long time. This being the evidence on record, we are at a
loss to find that the courts below could record a finding that the·
D appellant used to enjoy the childish and fanciful behaviour of
the wife pertaining to the aforesaid aspect. This finding is
definitely based on no evidence. Such a conclusion cannot be
reached even by inference. If we allow ourselves to say so, even
surmises and conjectures would not permit such a finding to
E be recorded. It is apt to note here that it does not require
Solomon's wisdom to understand the embarrassment and
harassment that might have been felt by the husband. The level
of disappointment on his part can be well visualised like a
moon in a cloudless sky.
F
34. Now we shall advert to the allegation made in the
written statement. The respondent-wife had made the allegation
that the husband had an illicit relationship with Neeta Gujarathi.
The learned trial Judge has opined that the said allegation
G having been proved cannot be treated to have caused mental
cruelty. He has referred to various authorities of many High
Courts. The heart of the matter is whether such an allegation
>
has actually been proven by adducing acceptable evidence. It
is worth noting that the respondent had filed a complaint, RCC
No. 91/95, under Section 494 of the Indian Penal Code against
H
•
VISHWANATH S/O SITARAM AGRAWAL v. SAU. 637
SARLA VISHWANATH AGRAWAL [DIPAK MISRA, J.]
the husband. He was discharged in the said case. The said A
order has gone unassailed. The learned trial Judge has
expressed the view that Neeta Gujarathi was having a
relationship with the husband on the basis that though the
husband had admitted that she was working in his office yet
he had not produced any appointment letter to show that she B
was appointed as a computer operator. The trial Judge has
relied on the evidence of the wife. The wife in her evidence has
stated in an extremely bald manner that whenever she had
telephoned to the office in the factory, the husband was not
there and further that the presence of Neeta Gujarathi was not c
liked by her in-laws and the elder son Vishal. On a careful
reading of the judgment of the trial court, it is demonstrable that
it has been persuaded to return such a finding on the basis of
the incident that took place on 11.10.1995. It is worth noting that
the wife, who examined herself as RW-1, stated in her evidence 0
that Vishal was deposing against her as the appellant had given
him a scooter. The learned trial Judge has given immense
credence to the version of the social worker who, on the date
of the incident, had come to the house of the appellant where
a large crowd had gathered and has deposed that she had E
seen Neeta going and coming out of the house. The evidence
of the wife, when studiedly scrutinized, would show that there
was more of suspicion than 301! k:::q of truth in it. As has been
stated earlier, the respondent had maC.:e an allegation that her
son was influenced by the appellant-husband. The learned trial
Judge as well as the appellate court have accepted the same. F
It is germane to note that Vishal, the elder son, was
approximately 16 years of age at the time of examination in
court. There is remotely no suggestion to the said witness that
when Neeta Gujarati used to go to the house, his grandfather
expressed any kind of disapproval. Thus, the whole thing seems G
to have rested on the incident of 11.10.1995. On that day, as
the material on record would show, at 4.00 p.m., the wife
arrived at the house of the husband. She has admitted that she
wanted to see her father-in-law who was not keeping well. After
she went in, her father-in-law got up from the chair and went H
638 SUPREME COURT REPORTS [2012] 7 S.C.R.
A upstairs. She was not permitted to go upstairs. It is testified by
her that her father-in-law came down and slapped her. She has
deposed about the gathering of people and publication in the
newspapers about the incident. Vishal, PW-5, has stated that
the mother had pushed the grandfather from the chair. The
B truthfulness of the said aspect need not be dwelled upon. The
fact remains that the testimony of the wife that the father-in-law
did not like the visit of Neeta does not appear to be true. Had
it been so, he would not have behaved in the manner as
deposed by the wife. That apart, common sense does not give
c consent to the theory that both, the father of the husband and
his son, Vishal, abandoned normal perception of life and
acceded to the illicit intimacy with Neeta. It is interesting to note
that she has deposed that it was published in the papers that
the daughter-in-law was slapped by the father-in-law and Neeta
0 Gujarathi was recovered from the house but eventually the police
lodged a case against the husband, the father-in-law and other
relatives under Section 498A of the Indian Penal Code. We
really fail to fathom how from this incident and some cryptic
evidence on record; it can be concluded that the respondent-
wife had established that the husband had an extra marital
E relationship with Neeta Gujarathi. That apart, in the application
for grant of interim maintenance, she had pleaded that the
husband was a womaniser and drunkard. This pleading was
wholly unwarranted and, in fact, amounts to a deliberate assault
on the character. Thus, we have no scintilla of doubt that the
F uncalled for allegations are bound to create mental agony and
anguish in the mind of the husband.
35. Another aspect needs to be taken note of. She had
made allegation about the demand of dowry. RCC No. 133/95
G was instituted under Section 498A of the Indian Penal Code
against the husband, father-in-law and other relatives. They
have been acquitted in that case. The said decision of acquittal
has not been assailed before the higher forum. Hence, the
allegation on this count was incorrect and untruthful and it can
H unhesitatingly be stated that such an act creates mental trauma
VISHWANATH S/O SITARAM AGRAWAL v. SAU. 639
SARLA VISHWANATH AGRAWAL [DIPAK MISRA, J.]
in the mind of the husband as no one would like to face a A
criminal proceeding of this nature on baseless and untruthful
allegations.
36. Presently to the subsequent events. The courts below
have opined that the publication of notice in the daily "Lokmat"
8
and the occurrence that took place on 11.10.1995 could not be
considered as the said events occurred after filing of the petition
for divorce. Thereafter, the courts below have proceeded to deal
with the effect of the said events on the assumption that they
can be taken into consideration. As far as the first incideht is
concerned, a view has been expressed that the notice was
c
published by the wife to safeguard the interests of the children,
and the second one was a reaction on the part of the wife
relating to the relationship of the husband with Neeta Gujrathi.
· We have already referred to the second incident and
expressed the view that the said incident does not establish D
that there was an extra marital relationship between Neeta and
the appellant. We have referred to the said incident as we are
of the considered opinion that the subsequent events can be
taken into consideration. In this context, we may profitably refer
to the observations made by a three-Judge Bench in the case E
of A. Jayachandra (supra) :-
''The matter can be looked at from another angle. If acts
subsequent to the filing of the divorce petition can be
looked into to infer condonation of the aberrations, acts F
subsequent to the filing of the petition can be taken note
of to show a pattern in the behaviour and conduct."
37. We may also usefully refer to the observations made
in Suman Kapur (supra) wherein the wife had made a
maladroit effort to take advantage of a typographical error in G
the written statement and issued a notice to the husband
alleging that he had another wife in USA. Thus, this Court has
expressed the opinion that the subsequent events can be
considered.
H
640 SUPREME COURT REPORTS [2012] 7 S.C.R.
A 38. Keeping in view the aforesaid pronouncement of law,
we shall first appreciate the impact of the notice published in
the "Lokmat". The relevant part of the said notice, as published
in the newspaper, reads as follows: -
"Shri Vishwanath Sitaram Agrawal is having vices of
B
womanizing, drinking liquor and other bad habits. He is
having monthly income of Rs.10 lacs, but due to several
vices, he is short of fund. Therefore, he has started selling
the property. He has sold some properties. My client has
tried to make him understand which is of no use and on
c the contrary, he has beaten my client very badly and has
driven her away and dropped her to Akola at her parent's
house.
In the property of Shri Vishwanath Sitaram Agrawal
D my client and her two sons are having shares in the
capacity of members of joint family and Shri Vishwanath
Sitaram Agrawal has no right to dispose of the property
on any ground."
Immense emphasis has been given on the fact that after
E
publication of the notice, the husband had filed a caveat
in the court. The factual matrix would reveal that the
husband comes from a respectable family engaged in
business. At the time of publication of the notice, the sons
were quite grown up. The respondent-wife did not bother
F to think what impact it would have on the reputation of the
husband and what mental discomfort it would cause. It is
manifest from the material on record that the children were
staying with the father. They were studying in the school
and the father was taking care of everything. Such a
G publication in the newspaper having good circulation can
cause trauma, agony and anguish in the mind of any
reasonable man. The explanation given by the wife to the
effect that she wanted to protect the interests of the
children, as we perceive, is absolutely incredible and
H implausible. The filing of a caveat is wholly inconsequential.
VISHWANATH S/O SITARAM AGRAWAL v. SAU. 641
SARLA VISHWANATH AGRAWAL [DIPAK MISRA, J.]
In fact, it can decidedly be said that it was mala fide and A
the motive was to demolish the reputation of the husband
in the society by naming him as a womaniser, drunkard and
a man of bad habits.
39. At this stage, we may fruitfully reminisce a poignant
8
passage from N. G. Dastane v. S. Dastane 20 wherein
Chandrachud, J. (as his Lordship then was) observed thus: -
"The court has to deal, not with an ideal husband and an
ideal wife (assuming any such exist) but with the particular
man and woman before it. The ideal couple or a near-ideal C
one will probably have no occasion to go to a matrimonial
court for, even if they may not be able to drown their
differences, their ideal attitudes may help them overlook
or gloss over mutual faults and failures."
D
40. Regard being had to the aforesaid, we have to evaluate
the instances. In our considered opinion, a normal reasonable
man is bound to feel the sting and the pungency. The conduct
and circumstances make it graphically clear that the
respondent-wife had really humiliated him and caused mental E
cruelty. Her conduct clearly exposits that it has resulted in
causing agony and anguish in the mind of the husband. She
had publicised in the newspapers that he was a womaniser and
a drunkard. She had made wild allegations about his character.
She had made an effort to prosecute him in criminal litigations F
which she had failed to prove. The feeling of deep anguish,
disappointment, agony and frustration of the husband is
obvious. It can be stated with certitude that the cumulative effect
of the evidence brought on record clearly establish a sustained
attitude of causing humiliation and calculated torture on the part
of the wife to make the life of the husband miserable. The G
husband felt humiliated both in private and public life.
Indubitably, it created a dent in his reputation which is not only
the salt of life, but also the purest treasure and the most
20. (1975) 3 SCR 967. H
642 SUPREME COURT REPORTS [2012] 7 S.C.R.
A precious perfume of life. It is extremely delicate and a cherished
value this side of the grave. It is a revenue generator for the
present as well as for the posterity. Thus analysed, it would not
be out of place to state that his brain and the bones must have
felt the chill of humiliation. The dreams sweetly grafted with
B sanguine fondness with the passage of time reached the
Everstine disaster, possibly, with a vow not to melt. The
cathartic effect looked like a distant mirage. The cruel behaviour
of the wife has frozen the emotions and snuffed out the bright
candle of feeling of the husband because he has been treated
C as an unperson. Thus, analysed, it is abundantly clear that with
this mental pain, agony and suffering, the husband cannot be
asked to put up with the conduct of the wife and to continue to
live with her. Therefore, he is entitled to a decree for divorce.
41. Presently, we shall deal with the aspect pertaining to
D the grant of permanent alimony. The court of first instance has
rejected the application filed by the respondent-wife as no
decree for divorce was granted and there was no severance
of marital status. We r~frain from commenting on the said view
as we have opined that the husband is entitled to a decree for
E divorce. Permanent alimony is to be granted taking into
consideration the social status, the conduct of the parties, the
way of living of the spouse and such other ancillary aspects.
During the course of hearing of the matter, we have heard the
learned counsel for the parties on this aspect. After taking
F instructions from the respective parties, they have addressed
us. The learned senior counsel for the appellant has submitted
that till 21.2.2012, an amount of Rs.17,60,000/- has been paid
towards maintenance to the wife as directed by the courts
below and hence, that should be deducted from the amount to
G be fixed. He has further submitted that the permanent alimony
should be fixed at Rs.25 lacs. The learned counsel for the
respondent, while insisting for affirmance of the decisions of
the High Court as well as by the courts below, has submitted
that the amount that has already been paid should not be taken
H into consideration as the same has been paid within a span of
VISHWANATH S/O SITARAM AGRAWAL v. SAU. 643
SARLA VISHWANATH AGRAWAL [DIPAK MISRA, J.]
number of years and the deduction would affect the future A
sustenance. He has emphasised on the income of the husband,
the progress in the business, the inflation in the cost of living
and the way of life the respondent is expected to lead. He has
also canvassed that the age factor and the medical aid and
assistance that are likely to be needed should be considered B
and the permanent alimony should be fixed at Rs.7S lacs.
42. In our considered opinion, the amount that has already
been paid to the respondent-wife towards alimony is to be
ignored as the same had been paid by virtue of the interim
orders passed by the courts. It is not expected that the C
respondent-wife has sustained herself without spending the
said money. Keeping in view the totality of the circumstances
and the social strata from which the parties come from and
regard being had to the business prospects of the appellant,
permanent alimony of Rs.SO lacs (rupees fifty lacs only) should D
be fixed and, accordingly, we so do. The said amount of Rs.SO
lacs (rupees fifty lacs only) shall be deposited by way of bank
draft before the trial court within a period of four months and
the same shall be handed over to the respondent-wife on
proper identification. E
43. Consequently, the appeal is allowed, the judgments
and decrees of the courts below are set aside and a decree
for divorce in favour of the appellant is granted. Further, the
husband shall pay Rs.SO lacs (rupees fifty lacs only) towards F
permanent alimony to the wife in the manner as directed
hereinabove. The parties shall bear their respective costs.
8.8.8. Appeal allowed.
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