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2020 SCC OnLine Pat 4663 : (2021) 1 PLJR 883 : (2021) 2 BLJ 70
(PHC)

In the High Court of Patna

(BEFORE DINESH KUMAR SINGH AND ARVIND SRIVASTAVA, JJ.)

Subhash Chandra Jha … Appellant;

Versus
Smt. Archana … Respondent.
Misc. Appeal No. 618 of 2013
Decided on September 25, 2020

Page: 884

The Judgment of the Court was delivered by

DINESH KUMAR SINGH, J.:— Heard learned counsel for the appellant
and learned counsel for the respondent.
2. The present Miscellaneous Appeal is directed against the
judgment and decree dated 26.7.2013 passed by the learned Principal
Judge, Family Court, Katihar in Matrimonial Case No. 53 of 2005,
whereby the matrimonial suit for decree of divorce on dissolution of
marriage between the appellant and the respondent, has been
dismissed on contest, however, without costs.
3. The marriage between the appellant husband and the respondent
wife performed on 6.7.2003 at Katihar according to Hindu rites and
ceremonies, is admitted. The respondent wife was not ready to reside
at the husband's place, hence, the appellant husband was compelled to
file Matrimonial Case No. 50 of 2005 for restitution of conjugal rights.
However, subsequently, the appellant husband withdrew the said
matrimonial case on 15.7.2004, as the appellant was given assurance
of bidagiri. Thereafter, the respondent wife came to the appellant
husband's house but she began

Page: 885

threatening the appellant over trivial and petty issues. The respondent
wife also used to insult the retired ailing father, old mother and
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handicapped brother of the appellant husband. The respondent also

used to quarrel and abuse the appellant causing great mental pressure
and humiliation. Hence, the appellant husband filed Matrimonial Case
No. 53 of 2005 for a decree of divorce on dissolution of marriage on the
ground of desertion and cruelty. The respondent wife appeared, on
notice, filed written statement and contested on the ground that the
matrimonial suit is not maintainable and that the appellant husband
has no cause of action. She denied the accusation of cruelty and
desertion, admitted the marriage being performed on 6.7.2003 and the
second marriage (Gauna) on 7.11.2003. For six months; the
respondent wife stayed with the appellant husband (In the railway
quarter of Amrendra Pandey, maternal uncle of the appellant) but the
appellant did not behave properly, inflicted torture upon her and same
was the behaviour of the maternal uncle of the appellant and his family
members. The appellant filed Matrimonial Case No. 50 of 2004 for
restitution of conjugal life on 30.6.2004 and himself withdrew the same
on 15.7.2004 without any notice to the respondent wife, which was
filed in anticipation of filing of criminal case by the respondent wife.
The respondent never abused the appellant and the appellant's claim
that he was being abused at the house of Sanjay D'Cruz is absolutely
false. Initially after the marriage the respondent wife was taken to
Village-Bhura, the native place of the appellant and thereafter to
Katihar.

4. Considering the pleadings of the parties, the learned court below

framed five issues, which reads as follows:
“i. Is the suit as framed maintainable?
ii. Is the plaintiff (applicant) got any cause of action for the suit?
iii. Is the plaintiff subjected to torture physically and mentally?
iv. Is the plaintiff entitled for a decree of divorce?
v. Is the plaintiff entitled for any other relief or reliefs?”
5. During the pendency of the matrimonial case, maintenance
pendente- lite under Section 24 of the Hindu Marriage Act, 1955
(hereinafter referred to as the Act) @ Rs. 1000/- per month and
litigation cost of Rs. 10000/- were awarded to the respondent.
6. The appellant husband in support of his case, examined five
witnesses-P.W. 1 Sanjay Kumar Jha and P.W. 2 Krishna Murari Jha
being cousin of the appellant, P.W. 3 Sanjay D'Cruz and P.W. A Aloysius
D'Cruz are friends of the appellant husband and P.W. 5 Subhash
Chandra Jha is the appellant himself.
7. The respondent wife has also examined four witnesses-R.W. 1
Jamuna Yadav, an acquaintance of the respondent, R.W. 2 Sri Krishna
Mishra alias Manoj Mishra being brother of the respondent, R.W. 3
Kapileshwar Mishra being father of the respondent and R.W. 4 Archana
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Mishra, the respondent herself. Apart from the oral evidence,

documentary evidence has been filed mainly with regard to the cases
lodged against each other.
8. The witnesses supported the cases of respective parties with some
additional facts which have not been pleaded. Most of the witnesses
examined on behalf of the appellant husband are hearsay witnesses as
they are not family. members of the appellant husband.
9. The learned Court below took attempts for reconciliation of the
issue but the same failed since the appellant husband

Page: 886

and the witnesses could not place and prove the exact time and date of
cruelty being inflicted, and therefore, no specific case of physical
cruelty being placed and most of allegation related to mental cruelty
and the evidence were found to be inconsistent and contradictory to
each other, the learned Principal Judge, Family Court dismissed the
matrimonial suit on contest vide judgment dated 26.7.2013, which is
under challenge in the present Miscellaneous Appeal.

10. Learned counsel for the appellant submits that the impugned
judgment and decree is against the weight of evidence. The specific
case of the appellant husband is that the respondent wife inflicted
torture upon him, his old ailing parents, disabled brother, maternal
uncle and family members as well as friends. The respondent wife
herself deserted the appellant husband and since 2005 there has been
no physical relationship between them, hence, the marriage has
irretrievably broken down. Reliance has been placed to the case of
Samar Ghosh v. Jaya Ghosh, reported in (2007) 4 SCC 511.
11. Notices were issued to the respondent vide order dated
21.1.2016. Subsequently, the respondent appeared and on joint prayer
of the parties, vide order dated 1.5.2019, the appeal was directed to be
listed on 15.5.2019 in chambers in order to make an effort to resolve
the issue but on that date, neither the respondent nor her counsel was
present, hence the appeal was adjourned for 8.7.2019, but on 8.7.2019
also, none appeared on behalf of the respondent, as a result, it was
adjourned for 14.8.2019. However, the appeal was taken up on
22.8.2019 but again none appeared for the respondent. On request of
learned counsel for the appellant, learned counsel for the respondent
appeared on 23.8.2019 and submitted that the respondent is not
responding, hence the appeal be disposed of.
12. On application of the factual ???rix, it gets necessitated that the
scope of cruelty be understood within the ambit of Hindu Marriage Act,
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1955. Cruelty is not defined under the Act. Cruelty can be physical or
mental. The concept of cruelty and its effect vary from individual to
individual and it depends upon the social and economic status to which
such person belongs. Hence, there is no straighl ???acket formula with
regard to defining cruelty, particularly, mental cruelty. The Honble
Supreme Court in the case of A Jayachandra v. Aneel Kaur, repotted in
(2005) 2 SCC 22 : AIR 2005 SC 534. Paragraph 10 of the judgment
reads as follows:
“10. The expression ‘cruelty’ has not been defined in the Act.
Cruelty can be physical or mental. Cruelty which is a ground for
dissolution of marriage may be defined as wilful and unjustifiable
conduct of such character as to cause danger to life, limb or health,
bo???y or mental, or as to give rise to a reasonable apprehension of
such a danger 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, environment in
which they live. Cruelty, as noted above, includes mental cruelty,
which falls within the purview of a matrimonial wrong. C???etty need
not be physical. If from the conduct of the spouse same is
established and/or an inference can be legitimately 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
this conduct amounts to cruelty. In a delicate human relationship
like matrimony, one has to see the probabilities of the case. The
concept, proof beyond the shad ??? of doubt, is to be applied to
criminal trials and not to civil matters and certainly not to matters of
such delicate personal relationship as those of husband and

Page: 887

wife. Therefore, one has to see what are the probabilities in a case and
legal cruelty has to be found out, not merely as a matter of fact, but as
the effect on the mind of the complainant spouse because of the acts or
omissions of the other. Cruelty may be physical or corporeal or may be
mental. In physical cruelty, there can be tangible and direct evidence,
but in the case of mental cruelty there may not at the same time be
direct evidence. In cases where there is no direct evidence, courts are
required to probe into the mental process and mental effect of incidents
that are brought out in evidence. It is in this view that one has to
consider the evidence in matrimonial disputes.”

13. From the pleading of the appellant husband in the plaint as well
as the evidence on record, it appears that the only allegation is of
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abuse and of threatening to get the appellant implicated in criminal

cases, though he has also alleged during trial that the respondent wife
tried to consume poison but neither there is pleading to that effect nor
any evidence has been led in that regard.
14. It is well settled law that ordinary wear and tear cannot be held
to be cruelty. Cruelty in one case may not amount to cruelty in another.
It is easy to prove the physical cruelty with direct evidence but it is
really difficult to prove the mental cruelty with direct evidence. The
appellant husband has examined P.W. 1 and P.W. 2 who are his cousin
but there is no pleading that they used to reside with the appellant
husband. P.W. 3 and PW. 4 are friends and acquaintances. Hence, it
appears that close family members, like, parents and others have
deliberately been withheld. In the case of mental cruelty, the evidence
of close family members reflect more light with regard to infliction of
cruelty.
15. Hence, we do not find any infirmity with regard to the finding of
the learned Court below that mental cruelty has not been proved. In
the case of Samar Ghosh (supra), the Hon'ble Supreme Court, has laid
down certain instances of mental cruelty. Paragraph 101 of the
judgment reads as follows:
“101. No uniform standard can ever be laid down for guidance,
yet we deem it appropriate to enumerate some instances of human
behaviour which may be relevant in dealing with the cases of
“mental cruelty”. The instances indicated in the succeeding
paragraphs are only illustrative and not exhaustive:
(i) On consideration of complete matrimonial life of the parties,
acute mental pain, agony and suffering as would not make
possible for the parties to live with each other could come
within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of
the parties it becomes abundantly clear that situation is such
that the wronged party cannot reasonably be asked to put up
with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty,
frequent rudeness of language, petulance of manner,
indifference and neglect may reach such a degree that it makes
the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish
disappointment, frustration in one spouse caused by the
conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment
calculated to torture, discommode or render miserable life of
the spouse.
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(vi) Sustained unjustifiable conduct and behaviour of one spouse

actually affecting physical and mental health of the other
spouse. The treatment complained of and the resultant danger

Page: 888

or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect,

indifference or total departure from the normal standard of
conjugal kindness causing injury to mental health or deriving
sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness,
possessiveness, which causes unhappiness and dissatisfaction
and emotional upset may not be a ground for grant of divorce
on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the
married life which happens in day-to-day life would not be
adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few
isolated instances over a period of years will not amount to
cruelty. The ill conduct must be persistent for a fairly lengthy
period, where the relationship has deteriorated to an extent
that because of the acts and behaviour of a spouse, the
wronged party finds it extremely difficult to live with the other
party any longer may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilisation
without medical reasons and without the consent or knowledge
of his wife and similarly, if the wife undergoes vasectomy or
abortion without medical reason or without the consent or
knowledge of her husband, such an act of the spouse may lead
to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for
considerable period without there being any physical incapacity
or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage
not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous
separation, it may fairly be concluded that the matrimonial
bond is beyond repair. The marriage becomes a fiction though
supported by a legal tie. By refusing to sever that tie the law in
such cases, does not serve, the sanctity of marriage on the
contrary, it shows scant regard for the feelings and emotions of
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the parties. In such like situations, it may lead to mental

cruelty.”
16. The above instances clearly suggest that the mental pain, and
agony should be such that it becomes impossible for husband or wife to
reside with the other side. The case of the appellant does not come
within the purview of above- mentioned instances of mental cruelty.
However in the case of K. Srinivas Rao v. D.A. Deepa, reported in
(2013) 5 SCC 226 : [(2013) 1 PLJR (SC) 323], the above instances of
cruelty have been further broadened. Paragraph 16 of the judgment
reads as follows:
“16. Thus, to the instances illustrative of mental cruelty noted? in
Samar Ghosh, we could add a few more. Making unfounded indecent
defamatory allegations against the spouse or his or her relatives in
the pleadings, filing of complaints or issuing notices or news. items
which may have adverse impact on the business prospect or the job
of the spouse and filing repeated false complaints and cases in the
court against. the spouse would, in the facts of a case, amount to
causing mental cruelty to the other spouse.”
17. From the pleadings of the appellant husband it appears that the
appellant and the respondent lived together only for a brief period.
From the evidence of P.W. 5 it appears that the respondent wife stayed
with the appellant on two occasion at Village-Bhura, for a brief period.
Moreover the evidence of P.W. 3 and P.W. 5 reflects that the respondent
wife stayed with

Page: 889

appellant at the maternal uncle's house of the appellant also.

18. On the contrary, the respondent wife has examined R.W. 2 Sri
Krishna Mishra, brother of the respondent and R.W. 3 Kapileshwar
Mishra, the father of the respondent. Hence, at least two family
members have deposed to suggest that no mental cruelty was inflicted
upon the appellant husband.
19. So far as the ground of desertion is concerned, neither there is
specific pleading nor evidence has been led to the effect that the
appellant husband was deserted by the respondent wife for continuous
period of not less than two years immediately preceding to the
presentation of the matrimonial suit. The marriage was performed on
6.7.2003, while the Matrimonial Case was filed in 2005.
20. Desertion is also not defined in the Act but two elements which
are necessary to constitute desertion, are that, either of the spouse
should have left the company of the one without other's consent and
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without reasonable cause. The Hon'ble Supreme Court in the case of

Savltri Pandey v. Prem Chandra Pandey, reported in (2002) 2 SCC 73 :
[2002 (2) PUR (SC) 256], illustrated the concept of desertion.
Paragraph 9 of the judgment reads as follows:
“9. Following the decision in Bipinchandra case this Court again
reiterated the legal position in Lachman Utamchand Kirpalani v.
Meena by holding that in its essence desertion means the intentional
permanent forsaking and abandonment of one spouse by the other
without that other's consent, and without reasonable cause. For the
offence of desertion so far as the deserting spouse is concerned, two
essential conditions must be there (1) the factum of separation, and
(2) the intention to bring cohabitation permanently to an end
(animus deserendi). Similarly two elements are essential so far as
the deserted spouse is concerned : (1) the absence of consent, and
(2) absence of conduct giving reasonable cause to the spouse
leaving the matrimonial home to form the necessary intention
aforesaid. For holding desertion as proved the inference may be
drawn from certain facts which may not in another case be capable
of leading to the same inference; that is to say the facts have to be
viewed as to the purpose which is revealed by those acts or by
conduct and expression of intention, both anterior and subsequent to
the actual acts of separation.”
21. With regard to desertion, no documentary evidence has been
brought on record and it remains confined to the allegations and
counter allegations, where the appellant husband stated that the
respondent wife deserted him whereas the wife also stated that she has
been forced to leave the matrimonial house.
22. So far as the question of allegation with regard to the adulterous
relationship and counter allegations by both the parties is concerned,
this Court is not inclined to give any finding on the same since those
allegations have been pleaded in the plaint and the written statement,
nor the evidence has been led to that effect to prove the same.
Moreover, neither side has made adulterer as a party. Rule 16 of the
Patna High Court Hindu Marriage Rules stipulates that the adulterer is a
necessary party when the dissolution of marriage or judicial separation
is sought on the ground of adultery. However, on certain grounds the
Court may allow the petitioner not to make an adulterer as party, if he
is dead or if he could not know his name in spite of due diligence. Rule
16 of the Rules reads as follows:
“16. Co-respondent in husband's petition.—In any petition
presented by a husband for divorce on the ground that

Page: 890
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the wife is living in adultery or judicial separation on the ground that

the wife has, since the solemnization of the marriage, been guilty of
adultery, the petitioner shall make the alleged adulterer, if alive, a co-
respondent in the said petition, unless he is excused from so doing by
an order of the Court which may be made on any or more of the
following grounds which shall be supported by an affidavit in respect of
the relevant facts:—

(i) that the respondent is leading the life of a prostitute, and that
the petitioner knows of no person with whom the adultery has
been committed;
(ii) that the name of the alleged adulterer is unknown to the
petitioner, although he has made due efforts for its discovery;
(iii) that the alleged adulterer is dead;
(iv) for any other sufficient reason that the Court may deem fit to
consider.”
23. Similar provision has been made under Rule 214(16) of the Civil
Court Rules, which reads as follows:
“16. Co-respondent in husband's petition,—In any petition
presented by a husband for divorce on the ground that the wife is
living in adultery or judicial separation on the ground that the wife
has, since the solemnization of the marriage, been guilty of adultery,
the petitioner shall make the alleged adulterer, if alive, a co-
respondent in the said petition, unless he is excused from so doing
by an order of the Court which may be made on any or more of the
following grounds which shall be supported by an affidavit in respect
of the relevant facts:—
(i) that the respondent is leading the life of a prostitute, and that
the petitioner knows of no person with whom the adultery has
been committed;
(ii) that the name of the alleged adulterer is unknown to the
petitioner, although he has made due efforts for its discovery;
(iii) that the alleged adulterer is dead;
(iv) for any other sufficient reason that the Court may deem fit to
consider.”
24. It appears from the impugned judgment as well as from the
grounds taken in the Miscellaneous Appeal that half-hearted allegations
have been made to the effect that both sides are residing separately
since 2005, hence, the marriage between the appellant and the
respondent have irretrievably broken down. Section 13 of the Act does
not stipulate any ground for dissolution of marriage on the basis of
irretrievable breakdown of marriage. However, that can be a material
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consideration while considering the dissolution of marriage on the

ground of desertion and cruelty but that cannot be the main ground for
dissolution of marriage. However, the Hon'ble Supreme Court has
dissolved the marriage on the basis of irretrievable breakdown of
marriage, whereby the principle has elaborately been discussed in the
case of Samar Ghosh (supra), D.A. Deepa (supra) and Naveen Kohli
(supra). However, in the case of Anil Kumar Jain v. Maya Jain, reported
in (2009) 10 SCC 415, it has been held that the Supreme Court in
exercise of jurisdiction under Article 142 of the Constitution of India
can dissolve the marriage on the ground of irretrievable breakdown, but
the marriage cannot be dissolved on such ground alone by the High
Court or Family Court. Paragraph 28 and 29 read as follows:
“28. It may, however, be indicated that in some of the High
Courts, which do not possess the powers vested in the Supreme
Court under Article 142 of the Constitution, this question had arisen
and it was held in most of the cases that despite the fact that the
marriage had broken down irretrievably, the same was not a ground
for granting a decree

Page: 891

of divorce either under Section 13 or Section 13-B of the Hindu

Marriage Act, 1955.

29. In the ultimate analysis the aforesaid discussion throws up

two propositions. The first proposition is that although irretrievable
breakdown of marriage is not one of the grounds indicated whether
under Sections 13 or 13-B of the Hindu Marriage Act, 1955, for grant
of divorce, the said doctrine can be applied to a proceeding under
either of the said two provisions only where the proceedings are
before the Supreme Court. In exercise of its extraordinary powers
under Article 142 of the Constitution the Supreme Court can grant
relief to the parties without even waiting for the statutory period of
six months stipulated in Section 13-B of the aforesaid Act. This
doctrine of irretrievable breakdown of marriage is not available even
to the High Courts which do not have powers similar to those
exercised by the Supreme Court under Article 142 of the
Constitution. Neither the civil courts nor even the High Courts can,
therefore, pass orders before the periods prescribed under the
relevant provisions of the Act or on grounds not provided for in
Section 13 and 13-B of the Hindu Marriage Act, 1955.”
25. In view of the discussions made above, we do not find any
infirmity in the impugned judgment and decree under appeal.
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26. Accordingly, this Miscellaneous Appeal having no merit is

dismissed.
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