Judgment:
B.K. Narayana, J.
1. Heard Sri C.B. Pandey, learned Counsel for the appellant and Sri Anil Kumar Tiwari, learned Counsel for the respondent.
2. The instant first appeal has been preferred by the defendant-appellant against the judgment and decree dated 04.12.2002 passed by Additional Principal Judge, Family Court, Lucknow decreeing the Original Suit No. 613 of 1998.
3. Plaintiff-respondent, Rajesh Dubey, who is the husband of the defendant-appellant, Smt. Mamta Debey, filed Original Suit No. 613 of 1998 before the Family Court, Lucknow under Section 13 of the Hindu Marriage Act, 1955, hereinafter referred to as 'the Act' filed by the plaintiff-respondent for dissolution of the marriage between the plaintiff and the defendant by a decree of divorce on the allegations interalia, that the plaintiff and the defendant were married in accordance with the Hindu Vedic rites on 23.02.1993 at the residence of father of the respondent at Gorakhpur; that in the very first week after marriage, the defendant expressed her unhappiness over the way, the plaintiff interacted with his sisters and sisters-in-law and the suspicious nature of the respondent caused acute pain to the plaintiff but he was hopeful that she would gain her confidence and trust with the passage of time; that the insistence of the defendant to live separately from the parents of the plaintiff compelled the plaintiff to move into a flat allotted by his employers at 406 Meenaxi 'B' Wing Gokuldham Goregaon, East Mumbai; that towards the end of April, 1993 the respondent became pregnant, she insisted upon aborting the child but however due to effective persuasion of the plaintiff and the advice of the Gynaecologist the defendant reluctantly agreed to go through the pregnancy and in the meantime, the defendant realising need for assistance during the pregnancy agreed that the plaintiff's parents should join them at their official residence; that in the month of May, 1993, the plaintiff's mother-in-law and two brothers-in-law visited the plaintiff's house and within a week of their departure, the father-in-law of the plaintiff reached Bombay to fetch defendant back to Gorakhpur alleging maltreatment of the defendant by the plaintiff and his parents and the defendant went back to Gorakhpur with her father in the third week of June 1993; that the defendant delivered a baby girl on 13.02.1994 at her parents' house in Gorakhpur and when the plaintiff reached Gorakhpur on 27.02.1994 after getting information about the birth of the child, the plaintiff learnt that his daughter was hospitalised on account of high fever coupled with convulsions and after the child was discharged on 03.03.1994, the Doctors attending on her had advised the defendant to take proper care of the child and not to neglect her; that the plaintiff intended to bring the defendant with him to Mumbai along with the child but on insistence of her parents, the plaintiff agreed to leave her behind and returned to Mumbai on 26.03.1994; that the plaintiff again went to Gorakhpur in June 1994 and brought the defendant along with him to Mumbai on 20.06.1004; that after defendant's return to Mumbai, her suspicious nature towards the plaintiff had become more intense and she suspected that the plaintiff was having adulterous affairs with his colleagues in the office and the defendant started indulging in the habit of making phone calls in the office of the plaintiff to find out whether the plaintiff was having adulterous affairs with colleagues; that on one occasion the defendant went to the residence of one of the colleagues of the plaintiff, Ms. Deepti Rawal and accused her of having adulterous relationship with the plaintiff; that on 18.01.1995 defendant left for Gorakhpur accompanied by her youngest brother after accusing the plaintiff that he is living in adultery with his colleagues; that the plaintiff was transferred from Mumbai Office to the Head Office at Lucknow on 24.06.1995; that the defendant came to Lucknow in mid August, 1995 for regular medical check up the daughter whose condition had deteriorated considerably since she had left Mumbai for Gorakhpur in January, 1995; that upon coming to know of the condition of his ailing daughter, the plaintiff took his daughter to S.G.P.G.I, Lucknow for treatment, however, before the medical investigations could be completed, the daughter of the plaintiff passed away on 02.09.1995; that the death of the daughter left the petitioner totally heart broken because the daughter had been utterly neglected by the defendant while staying at Gorakhpur from January, 1995 to mid August, 1995 where the defendant had stayed totally against the wishes of the plaintiff; that the defendant and her parents accused the plaintiff and his parents of having killed the daughter which resulted in great cruelty to the plaintiff; that in February, 1996, the defendant again conceived, however, the defendant continued to accuse the plaintiff of having illicit relationship with another girl; that the second child was born on 22.09.1996 and the defendant left the plaintiff's home on 16.11.1996 on the pretext of visiting her father at Gorakhpur and returned on 25.11.1996 informing the plaintiff that she was leaving for Gorakhpur to complete her studies there and the defendant finally left Lucknow on 26.11.1996 along with her two month old child; that the second child of the plaintiff also passed away on 14.06.1997 after remaining in coma for eight days in Gorakhpur Medical College and when the plaintiff learnt about the illness of his child he immediately rushed to Gorakhpur on 08.06.1997 but only to see his child dead; that the death of the second child of the plaintiff left him totally shattered as it was result of persistent neglect on the part of the defendant which had resulted in the death of both the children while she was residing at Gorakhpur; that the defendant accused the plaintiff of killing the child; that the conduct of the defendant comprising making phone calls to the seniors of the plaintiff in the office as well as at their residence levelling all kinds of frivolous and baseless allegations regarding the character of the plaintiff alleging him to be an adulterous man caused tremendous mental agony to the plaintiff and the behaviour of the defendant constituted cruelty towards the plaintiff who was left with no alternative but to file the suit for divorce.
4. That the said suit was contested by the defendant wife who filed her written statement on 29.05.2000 denying the plaint allegations in general. The defendant-appellant however in paragraphs-25, 32 and 39 asserted that the plaintiff was living in adultery with his colleague Ms. Deepti Rawal. She also alleged that the plaintiff always displayed undue affection towards his female colleagues. Allegations regarding constant harassment of the defendant immediately after the marriage by the plaintiff and his family members for having brought inadequate dowry and persistent and constant demand of dowry were also made in the written statement. The defendant also stated in her written statement that the plaintiff forcibly turned her out of his house along with her daughter and she had not deserted the plaintiff. The factum of the death of two daughters is not disputed in the written statement. The filing of the divorce petition by the plaintiff has been attributed to the defendant's desire to remarry his colleague Ms. Deepti Rawal after the annulment of marriage between the plaintiff and the defendant. The defendant-appellant in her written statement admitted that she had filed three cases against the plaintiff and his family members under Section 125 Cr.P.C., under Section 498-A IPC and suit for restitution of conjugal rights. The defendant also alleged in her written statement that the plaint does not disclose any ground for passing a decree of divorce and the defendant is still ready to live with the plaintiff.
5. The plaintiff filed his replica on 18.01.2002.
6. The defendant filed a counter claim in Regular Suit No. 613 of 1998 on 11.01.2002 with a prayer for grant of decree for restitution of conjugal rights. Against the counter claim the plaintiff filed a preliminary objection regarding the maintainability of the counter claim on 18.01.2002.
7. On the basis of the pleadings of the parties, the trial court framed the following issues:
1. Whether the defendant has treated the plaintiff and his family members with cruelty? If yes then what will be its effect?
2. Whether the defendant had deserted the plaintiff on 26.11.1996? If yes then what will be its effect?
3. Whether the defendant was being harassed by the plaintiff for dowry as pleaded in the written statement? If yes then what will be its effect?
4. Whether the plaintiff has filed the suit against the defendant on the basis of surmises and conjectures as pleaded in the written statement?
5. To what relief, if any, is the plaintiff entitled?
8. After considering the oral and documentary evidence on record, the trial court decided all the issues in favour of the plaintiff and against the defendant and by the impugned judgment decreed the plaintiff's suit under Section 13 of the Act.
9. The instant judgment and decree of the trial court has been challenged by the appellant on the grounds interalia, that the trial court erred in law in upholding the allegations of mental cruelty against the appellant while there was no material or evidence on record to prove the same; that the trial court totally misconstrued the meaning and import of cruelty and illegally failed to consider the provisions of Section 23 (1) (a) of the Act while holding that the conduct of the defendant amounted to cruel treatment of the plaintiff by the defendant as there was ample material on record which indicated that the plaintiff himself was responsible for creating the circumstances which compelled the defendant to leave his house and further the defendant did not leave her husband's house willingly but was in fact turned out of her husband's house by her own husband; that the trial court erred in decreeing the suit on the ground of desertion although admittedly the suit was filed within two years of the alleged date of desertion of the plaintiff by the defendant; that the failure of the trial court to decide the counter claim preferred by the defendant along with the suit has vitiated the judgment and decree of the trial court.
10. Sri Anil Kumar Tiwari, learned Counsel appearing for the plaintiff-respondent has submitted that the findings recorded by the court below do not suffer from any infirmity or illegality and being based upon cogent evidence and consideration of the entire facts and circumstances of the case are not liable to be interfered with. Sri Tiwari further submitted that in the case in hand it cannot be said that the requisite ingredients for constituting cruelty have not been satisfied. It is undisputed that the plaintiff and the defendant have been living separately since 26.11.1996 and have not cohabited for the last 13 years and there is sufficient material on record including the own statement of the appellant which indicates that the defendant accused the plaintiff of having adulterous relationship with his colleague Ms. Deepti Rawal, his cousin sister and his other female colleagues and that the defendant has filed several cases including criminal complaint under Section 498-A IPC against the plaintiff and his family members including his parents, sister and sister-in-law and the father of the plaintiff was arrested and was sent to jail along with the plaintiff in connection with the case filed under Section 498-A IPC and the relations between the plaintiff and the defendant have soured to such an extent that the marriage between them has broken down irretrievably and in the circumstances, divorce would be the remedy in the case of both the parties and allowing of the appeal of the defendant and refusing to grant the decree would be disastrous to them and hence the instant first appeal is liable to be dismissed on the ground that the marriage between the plaintiff and the defendant irretrievably broken down and it is not possible for them to live together alone.
11. Having heard the learned Counsel for the parties, the following points arise for determination in the present first appeal.
1. Whether the finding of the trial court that the conduct of the defendant amounted to cruel treatment of the plaintiff is not based upon any evidence and is vitiated on account of non-consideration of the provisions of Section 23 (1) (a) of the Hindu Marriage Act?
2. Whether the trial court misconstrued the meaning and import of cruelty while deciding the issue No. 1 in favour of the plaintiff?
3. Whether the trial court committed a manifest error of law in decreeing the suit for divorce, also on the ground of desertion although admittedly the suit was filed within two years from the date of the alleged desertion of the plaintiff by the defendant?
4. Whether the judgment and decree of the trial court is liable to be set aside on the ground that the counter claim preferred by the defendant was not decided by the trial court along with the suit?
5. Whether the marriage between the plaintiff and the defendant has irretrievably broken down leaving the court with no option but to grant divorce.
Points No. 1 and 2.
12. Points No. 1 and 2 are inter connected and hence they are taken up together. It has been submitted on behalf of the defendant-appellant that incidents and the instances of the parties' matrimonial life and the material relied upon by the court below while coming to the conclusion that the defendant had treated the plaintiff with cruelty do not constitute cruelty so as to entitle the plaintiff to a decree for divorce. It has further been submitted that the circumstances which were taken into consideration by the trial court while holding that the plaintiff had been treated with cruelty by the defendant were the own creation of the plaintiff and as such he could not be given the benefit of his own wrongful act in view of Section 23 (1) (a) of the Act. Learned Counsel for the appellant next submitted that unless the counter claim was decided by the trial court along with the suit, the trial court ought not to have relied upon the pleadings contained in the counter claim preferred by the defendant while holding that the defendant had accused the plaintiff of having illicit relationship with his colleague Ms. Deepti Rawal without impleading Ms. Deepti Rawal to the counter claim and this conduct of the defendant amounted to cruel treatment of the plaintiff by the defendant. Learned Counsel for the appellant lastly submitted that the suit for divorce could not have been decreed on the ground of desertion as the same was filed within two years of the admitted date on which the defendant allegedly deserted the plaintiff.
13. On reading of the judgment of the trial court it is clear that the trial court while deciding the issue No. 1 analysed the oral evidence in great detail including the statement of PW-Rajesh Dubey and DW-Smt. Mamta Dubey and found that the accepted stand of the appellant wife regarding her behaviour and conduct amounted to cruel treatment of the plaintiff by the defendant. The trial court further held that the bitterness between the plaintiff and the defendant has increased to such an extent that if they were asked to live together, they may be a threat to each other's life. The trial court further held that although the defendant accused the plaintiff of having adulterous relationship with Ms. Deepti Rawal the defendant neither impleaded Ms. Deepti Rawal in the counter claim nor she led any evidence in support of her allegation that the plaintiff was having an illicit relationship with Ms. Deepti Rawal. Thus, on the basis of aforesaid discUntitled 1ussion, the trial court found that the allegations regarding the plaintiff having illicit relationship with Ms. Deepti Rawal were false and baseless. The trial court also after considering the entire evidence on record rightly found that the allegations of harassment of the defendant by the plaintiff and his family members on account of having brought inadequate dowry and constant demand of dowry by the plaintiff and his family members from the parents of the defendant were also not proved.
14. Submission of the learned Counsel for the appellant that the pleadings contained in the counter claim could not have been looked into and relied upon by the trial court while deciding the suit unless the counter claim was also decided along with the suit is also wholly misconceived and untenable. Learned Counsel for the appellant has miserably failed to substantiate his aforesaid submission. The trial court has given cogent reasons in its judgment for deciding the issues No. 1 & 3 against the defendant. Learned Counsel for the appellant has failed to show any infirmity and illegality in the findings recorded by the trial court on issue Nos. 1 and 3.
15. Before examining the submissions made by the learned Counsel for the appellant that the conduct and behaviour of the defendant as alleged in the plaint do not amount to cruelty and the trial court totally misconstrued the meaning and import of cruelty, it is necessary to examine the law laid down on the subject.
16. The Apex Court in the case of Shobha Rani v. Madhukar Reddi : [1988]1SCR1010 held that the word 'cruelty' has not been defined in the Hindu Marriage Act. It has been used in Section 13 (1) (i-a) of the act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical it is a question of fact and degree. If it is mental, the eqnuiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty.
17. In the case of V. Bhagat v. D. Bhagat : AIR1994SC710 , the Apex Court held that mental cruelty means that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other, must be of such a nature that the parties could not reasonably be expected to live together. Regard must be had to the social status, education level of the parties and the society they move.
18. In the case of Shoba Rani (Supra), the Apex Court held that cruelty under Section 13 (1) (i-a) if not admitted requires to be proved on the preponderance of probabilities as in civil cases and no beyond a reasonable doubt as in criminal cases.
19. In the case of A. Jayachandra v. Aneel Kaur : AIR2005SC534 para-10 & 11, Hon'ble Supreme Court again held that the expression 'cruelty' has not been defined in the Hindu Marriage Act, 1055. the said expression has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. It may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily 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.
20. Cruelty 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.
21. In the case of Parveen Mehta v. Inderjit Mehta : AIR2002SC2582 , the Apex Court again that under Section 13 (1) (i-a) of the Hindu Marriage Act, 1955 cruelty includes both physical and mental cruelty. The legal conception of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined under the Act. The legislature has refrained from giving a comprehensive definition of the expression that may cover all cases, realising the danger in making such attempt. The accepted legal meaning in England as also in India of this expression, which is rather difficult to define, had been 'conduct of such character as to have caused danger to life, limb or health (bodily or mental), or as to give rise to a reasonable apprehension of such danger'.
22. From the pleadings and the evidence led by the parties, the factual position which emerges is that the defendant has repeatedly and constantly accused the plaintiff of having adulterous relationship with his cousin sister, female colleagues in general and Ms. Deepti Rawal in particular although the defendant had failed to prove the said allegations by any evidence. It is also not in dispute that the defendant has filed three cases against the plaintiff including the case under Section 498-A IPC in connection which which the plaintiff as well as his father had been sent to jail. The record indicates that although it has been alleged in the defendant's written statement that the plaintiff and his family members started harassing the defendant for having brought inadequate dowry immediately after her marriage in the year 1993, there is no explanation as to why no report or complaint in this regard was lodged either by the defendant or by her parents and why the defendant waited till the year 1998 for filing a complaint against the plaintiff and his family members under Section 498-A IPC. Even today, the defendant is not willing to withdraw the criminal prosecution pending against the plaintiff and his family members. Both the daughters born to the defendant have died and there has been no co-habitation between the parties for the last 13 years.
23. The plaintiff-respondent in his statement recorded on oath has stated that as a result of being subjected to sustained accusation of living in adultery with his female colleagues and Ms. Deepti Rawal by the defendant and her refusal to live with the family members of the plaintiff coupled with the defendant's insistence to prosecute the criminal case instituted by her against the plaintiff and his family members, the death of both the daughters on account of negligence on the part of the defendant and her family members but for which the defendant and her family members held the plaintiff responsible and the humiliating treatment meted out by the defendant to the plaintiff calculated to torture and render his life miserable has caused deep anguish, disappointment and frustration to the plaintiff and has made the married life of the plaintiff absolutely intolerable. The defendant in her statement on oath stuck to her allegations that the plaintiff was having adulterous relationship with his female colleagues and Ms. Deepti Rawal.
24. Thus upon an overall analysis of the pleadings of the parties and the evidence led by the parties including the cross-examination of the plaintiff conducted on behalf of the defendant and the meaning and import of cruelty as interpreted by the Apex Court in its various pronouncements, it cannot be said that the conduct of the defendant did not constitute cruelty entitling the plaintiff to a decree of divorce. The trial court did not misconstrue the meaning and import of cruelty while holding that the defendant treated the plaintiff with cruelty and in decreeing the suit. Points No. 1 and 2 are decided against the defendant-appellant.
Point No. 3.
25. The submission of the learned Counsel for the appellant that the trial court erred in decreeing the suit for divorce on the ground of desertion without noticing that the same was filed before the expiry of two years from the date of the alleged desertion of the plaintiff by the defendant seems to have force. Section 13 (1) (i-b) of the Hindu Marriage Act provides that any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. The date of desertion mentioned in the plaint is 26.11.1996 and the suit was filed on 24.07.1998 i.e. before the expiry of two years from the date of alleged desertion. Thus, the finding recorded by the trial court on issue No. 3 being erroneous is set aside. Point No. 3 is decided in favour of the defendant-appellant.
Point No. 4.
26. The submission of the learned Counsel for the appellant that the judgment and decree passed by the trial court is liable to be set aside on the ground of the failure of the trial court to decide the counter claim along with the suit is wholly unacceptable for the reasons, firstly, that there is nothing on record to show that the counter claim was admitted and that the defendant pressed the same before the trial court; secondly, if the counter claim has not been decided along with the suit the same shall be deemed to be pending and cannot be made a ground for setting aside the judgment and decree passed in the suit. The legal position is settled that counter claim proceeds like a suit and even if the suit in which the counter claim filed is dismissed for default or for some other reason the counter claim shall be tried and decided on merits. In any view of the matter, the counter claim filed by the defendant for restitution of conjugal rights before the court below was barred by Order XXIII Rule 1 (4) of the Code of Civil Procedure as admittedly prior to the filing of the counter claim, the defendant had filed a suit under Section 9 of the Hindu Marriage Act for restitution of conjugal rights before the Principal Judge, Family Court, Gorakhpur and the said suit was withdrawn by the defendant without permission for instituting a fresh suit. Point No. 4 is decided against the defendant-appellant.
Point No. 5.
27. Now we come to the most relevant aspect of the matter i.e. whether the marriage between the plaintiff and the defendant has broken down irretrievably leaving the court with no option but to affirm the decree of divorce granted by the trial court. Although the plaintiff has neither sought divorce on the ground that his marriage has broken irretrievably nor Section 13 of the Act enumerates any such ground yet the matter requires consideration from this aspect in view of the law laid down by the Apex Court in this regard.
28. We may first refer to the case of Saroj Rani v. Sudarshan Kumar Chadha : [1985]1SCR303 , where it was held that court's satisfaction about permanent breakdown of the marriage may serve as an additional justification for granting divorce. Where on facts the marriage has broken down and the parties can no longer live together the court should have no compunction in granting the divorce.
29. In Romesh Chander v. Savitri : [1995]1SCR212 , Hon'ble Supreme Court again held that when marriage is dead, emotionally and practically, and there is no chance of its being retrieved, continuance of it would be cruelty within the meaning of Section 13 (1) (i-a) of the Act.
30. In the case of Naveen Kohli v. Neelu Kohli : AIR2006SC1675 , the Hon'ble Supreme Court observed as hereunder:
72. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective and bound to be a source of greater misery for the parties.
73. A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are presented with concrete instances of human behaviour as they bring the institution of marriage into disrepute.
74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.
75. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.
76. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist.
77. Some jurists have also expressed their apprehension for introduction or irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems that are sought to be solved.
78. The other majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising therefrom.
79. When we carefully evaluate the judgment of the High Court and scrutinise its findings in the background of the facts and circumstances of this case, then it becomes obvious that the approach adopted by the High Court in deciding this matter is far from satisfactory.
80. The High Court ought to have considered the repercussions, consequences, impact and ramifications of all the criminal and other proceedings initiated by the parties against each other in the proper perspective. For illustration, the High Court has mentioned that so far as the publication of the news items is concerned, the status of the husband in a registered company was only that of an employee and if any news item is published, in such a situation, it could not, by any stretch of imagination be taken to have lowered the prestige of the husband. In next para 69 of the judgment that in one of the news items what has been indicated was that in the company, Nikhil Rubber (P) Ltd., the appellant was only a director along with Mrs Neelu Kohli who held 94.5% shares of Rs. 100 each in the Company. The news item further indicated that Naveen Kohli was acting against the spirit of the article of association of Nikhil Rubber (P) Ltd., had caused immense loss of business and goodwill. He had stealthily removed produce of the Company, besides diverted orders of foreign buyers to his proprietorship firm M/s Naveen Elastomers. He had opened the bank account with forged signatures of Mrs Neelu Kohli and fabricated the resolution of the board of directors of the Company. Statutory authority under the Companies Act had refused to register documents filed by Mr Naveen Kohli and had issued show-cause notice. All business associates were cautioned to avoid dealing with him alone. Neither the Company nor Mrs Neelu Kohli shall be liable for the acts of Mr Naveen Kohli. Despite the aforementioned finding that the news item was intended to caution business associates to avoid dealing with the appellant then to come to this finding in the next para that it will by no stretch of imagination result in mental cruelty is wholly untenable.
31. In Samar Ghosh v. Jaya Ghosh : (2007)4SCC511 , Hon'ble Supreme Court again held that where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the contrary it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty. The Apex Court laid down the following guidelines to enumerate some instances of human behaviour, they may be relevant in dealing with the case of mental cruelty. Such instances have been indicated in paragraph 101 of the said judgement which read as under:
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.
(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 of 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 the parties. In such like situations, it may lead to mental cruelty.
32. The Apex Court in the case of Rishikesh Sharma v. Saroj Sharma : (2007)2SCC263 , again observed as hereunder:
In view of the several litigations between the parties it is not possible for her to prosecute criminal case against the husband and at the same time continue to reside with her husband. In the instant case the marriage is irretrievably broken down with no possibility of the parties living together again.
33. Thus, the legal position which emerges from the analysis of the entire case law on the subject referred to hereinabove is that it is the duty of the Court to consider and examine while deciding an issue of divorce whether the marriage between the parties has broken down irretrievably or it is dead emotionally and practically and there is no chance of its being retrieved before compelling the parties to live with each other.
34. Upon an overall assessment of the facts and circumstances of the case and the perusal of record, we are of the opinion that the marriage between the plaintiff and the defendant has broken down irretrievably. The defendant-appellant is not willing to withdraw the criminal prosecution which is pending against the plaintiff and his family members. On account of the filing of the case under Section 498-A IPC by the defendant against the plaintiff and his family members, the plaintiff and his father were sent to jail and they had to remain there for a considerably long period of time before they were enlarged on bail. There has been no interaction between the parties after 1999. The parties admittedly have not cohabited for the last 13 years. The defendant has accused the plaintiff of having adulterous relationship with his female colleagues and Ms. Deepti Rawal and also made these allegations public thereby seriously damaging the plaintiff's reputation and undermining his character. A husband cannot be expected to live with his wife under the same roof who distrusts him, holds him responsible for the death of her daughters and who is prosecuting a criminal case against him and his entire family. Admittedly, there has been a long period of continuous separation in the present case and it may fairly be concluded that the matrimonial bond is beyond repair. Thus we are of the view that the marriage between the plaintiff and the defendant is dead in all respects and has broken down irretrievably.
35. The submission made by the learned Counsel for the appellant that the defendant-appellant is still ready and willing to live with the plaintiff and the plaintiff is refusing to live with her and is making baseless allegations against her and it is the plaintiff who has been at fault and has not allowed the marriage to work and hence the marriage cannot be dissolved on the ground of irretrievable breakdown and the Court should not dissolve the marriage on the ground of irretrievable breakdown of marriage is totally unacceptable for the reasons given by us while deciding the points No. 1 and 3. The offer made by the defendant for living with the plaintiff while at the same time refusing to withdraw the criminal prosecution pending against the plaintiff and his family members shows that the offer is not genuine and bona fide.
36. The decisions of the Apex Court reported in : [2001]2SCR491 Hirachand Srinivas Managaonkar v. Sunanda; : AIR2004SC5111 Shyam Sunder Kohli v. Sushma Kohli alias Satya Devi and : [2001]3SCR20 Chetan Dass v. Kamla Devi are of no help to the appellant and do not apply to the facts and circumstances of the present case. Point No. 5 is decided in favour of the plaintiff-respondent and against the defendant-plaintiff.
37. The judgment and decree passed by the trial court does not call for any interference.
38. The instant first appeal has no merit and is accordingly dismissed.