G.D. Saxena, J.
(1) This Appeal is by the appellant-wife against the Judgment dated 25th September, 2010 in C.S.No.26A/10 of the Third Additional Sessions Judge, Vidisha (M.P.), granting a decree of divorce to the respondent-husband under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955.
(2) The respondent-husband filed a petition under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955, seeking dissolution of the marriage on the ground that the wife, i.e., the appellant herein, had deserted the respondent and thereby the matrimonial home since September, 1995. It is stated that the marriage was solemnised on 5th May, 1995 as per Hindu (Sikh rights) religion. On or before marriage, the appellant-wife was in a job (O.A. Grade III in District Industry Centre), Vidisha whereas the respondent-husband was working as Civil Engineer in a private Sector at Gwalior M.P. The marriage was duly consummated and one son, namely, Sparsh was born out of their wedlock, who is at present living with his mother at her parental house, at Vidisha. On perusal of the pleadings of the parties, it appears that the marital relations were not cordial between both of them right from the beginning. Since the wife Smt. Ranjeet Kaur was in a Government service at Vidisha and was living with her mother and other relations, there was a pressure by her upon the respondent to shift his place to Vidisha and live with his wife at her parental house. Her husband was running his own business in a private sector living with his parents and family members at Gwalior. Under the circumstances, he was not in a position to shift him to Vidisha and live with her family members. For these reasons, the relations between the spouses became tensible that Husband Surendra Singh Gill had to move a petition under Section 13 of the Hindu Marriage Act before the Court of District Judge Gwalior, which was decided vide Judgment dated 9th July 2001. Thereafter, the husband moved a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. However, at later stage, the said petition was withdrawn on 11th July 2007. On 18th October 2007 he filed the present petition under Section 13(1)(ia) and (ib) of the Act on the ground of cruelty and desertion before the court of District Judge, Vidisha. In divorce petition, the petitioner-husband leveled specific allegation of cruelty and willful desertion by appellant-wife from his company. By filing reply, those allegations were refuted by the non-petitioner-wife. She also alleged that the petitioner-husband developed a relationship with one lady officer and with malicious intention and object to marry with that lady officer, he has filed the instant divorce petition. Hence, the prayer for dismissal of the petition was made by the wife. After taking into consideration the ocular as well as oral and documentary evidence on record, the learned trial Judge granted a decree in favour of the respondent-husband holding that cruelty as well as desertion are well proved by the material on record.
(3) While dealing with the matter, the trial Judge framed the following issues for consideration:-
(i) Whether the non-petitioner after marriage committed cruelty with the petitioner-husband ?
(ii) Whether the non-petitioner has deserted the petitioner continuously for a period of two years or more immediately without reasons before filling of the petition ?
(iii) Whether the petition of divorce in the light of the decisions in Civil Case No. 227-A/2000 and the order of withdrawal under Order 23 Rule 1 of C.P.C. 1860 in Civil Case No. 23-A/2006 pending between the same parties by the courts competent is not maintainable ?
Or
Whether in the changed circumstances and on new grounds and cause action arose, the present divorce petition is not maintainable ?
(iv) Relief and Cost.
(v) Whether because the petitioner filed the divorce petition on malicious grounds, hence the non-petitioner is entitled to get compensation of Rs. 25,000/-from the petitioner ?
(4) The trial Court in its judgment while deciding aforesaid Issues No. 1 and 3 found them proved in favour of the petitioner-husband. The Issue No. 3 was decided as Preliminary Issue whereas Issue No. 5 was decided against the petitioner. Consequently, the decree of divorce was passed in favour of the petitioner. Aggrieved of the said judgment, the wife has come on appeal questioning the correctness of the findings of the Trial Court.
(5) The appellant co tended that the impugned judgment passed by the trial Judge is manifestly illegal, contrary to law and against the record. The trial Judge without appreciating the evidence produced by the appellant, held that the allegation of cruelty and desertion of petitioner-husband by the non-petitioner/appellant was proved. It is submitted that there was a sufficient evidence on record before the trial Judge that the respondent and the family members from his side committed cruelty with the appellant-wife. So, according to the learned counsel, the Issue No. 1 ought to have been decided in favour of appellant. It is further argued that there is ample evidence on record to suggest that the appellant being in Government Service, usually on holidays could find time to have visited her matrimonial house and cohabited with respondent and out of their wedlock, the appellant gave a birth to a child, namely, Swaesh. It is contended that since the appellant was not agreed to leave her job, only on that ground, this divorce petition was filed by the respondent. It is also pointed out that the Issue No.3 was decided on wrong presumption that the same was already decided at earlier stage of the case. Hence, as per the learned counsel for the appellant, the court-below has not properly valued the evidence of the parties in accordance with the directions of this Court in Writ Petition No. 3115/2010 dated 1st July 2010, and therefore, the conclusions being based on notions and surmises deserve rejection. It is prayed that by allowing the appeal, the impugned decree of divorce passed in favour of the respondent-husband be set aside.
(6) Learned counsel for the respondent, on the other hand, supported the impugned judgment and prayed for dismissal of the appeal.
(7) Heard the learned counsel for the parties. Also perused the record of the trial court and the law governing the situation.
(8) The question that falls for consideration and decision in this appeal is whether the respondenthusband is able to prove any of the grounds of cruelty and desertion urged by him for dissolving the marriage by a decree of divorce ?
(9) At this juncture, it would be pertinent to mention the relevant law which is as follows:-
Sec.13 – Divorce - (1) 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 –
(ia) has after the solemnized of the marriage treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years immediately proceeding the presentation of the petition; or
Explanation- In this sub section, the 'expression' means the desertion of the petitioner by other party to the marriage without reasonable cause and without the consent or against the wish of the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.”
(10) Before we proceed to consider the rival contentions of both the parties, let us first examine what is 'cruelty' and 'desertion' with reference to decided cases.
(11) The word 'cruelty' has not been defined under the Act, but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health.
(12) Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other.
(13) It is impossible to give a comprehensible definition of cruelty, but when reprehensible conduct or departure from normal standard of conjugal kindness causes injury to health or an apprehension of it, it is, cruelty. Their Lordships of Hon. Supreme Court, after referring to various decisions referred to herein below and the provisions of the Act, held that mental cruelty in Section 13(1)(ia) can broadly be defined as 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 and the parties cannot reasonably also be expected to live together or that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It was also considered to be not necessary to prove that the mental cruelty is such as to cause injury to the health of the wronged party. It is not necessary to prove that mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, 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 which it is neither possible nor desirable to set out exhaustively. It was observed therein that what is cruelty in one case may not amount to cruelty in another case and it is a matter to be determined in each case having regard to the facts and circumstances of that case and if it is a case of accusations and allegations, regard must also be had to the context in which they were made.
(14) Hence, cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the 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 inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.
(15) Normally the burden lies on the petitioner to establish his or her plea that the respondent had meted out cruelty to the petitioner and that the standard of proof required in matrimonial cases under the Act is not to establish the charge of cruelty beyond reasonable doubt but merely one of weighing the various probabilities to find out whether the preponderance is in favour of the existence of the said fact alleged.
(16) "Desertion", for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e., not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. If a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion.
(17) For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (i) the factum of separation, and (ii) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (i) the absence of consent, and (ii) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively.
(18) Desertion is a matter of inference to be drawn from the facts and circumstances of each case. 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. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi coexist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law, the Courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the Court.
(19) On the anvil of the above well settled legal position, we have to examine the facts obtaining in the present case.
(20) It is not disputed by either of the parties during the course of hearing of the appeal that the respondent filed the petition of divorce against the appellant which was registered as C.S.No. 227-A/2000 (HMA) on the ground of desertion, on failure to perform marital relations with the respondent by his wife; that the learned trial Judge, by the judgment dated 9th July 2001 dismissed the divorce petition on merits; that thereafter the respondent Surendra Singh filed the petition under Section 9 of the Act, which was registered as Civil Case No. 19-A/2001 before the Seventh Additional District Judge, Gwalior M.P. and at later stage, the relief for divorce on the ground of desertion was amended. This petition was got dismissed as withdrawn by the respondent. Subsequently thereto, the present petition for divorce was filed by him on the ground of cruelty and desertion. It is also admitted by way of pleadings of the parties that the trial Judge framed the Issue No. 3 as extracted above and the same being related to the jurisdiction of the court or filing of subsequent suit due to creation of legal bar, determined and decided as Preliminary Issue vide order dated 24th January 2009 and thereby concluded that "On account of the decision between the same parties in earlier Civil Suit No. 227-A/2000 and Civil Suit No. 27-A/2006, the present case in relation to the cause of action and the facts of the previous suits is not maintainable but the present civil case can be decided at subsequent cause of action and subsequent facts and circumstances of the case." These findings were challenged in Writ petition No.739/2009, which was decided by a Division bench of this court by an order dated 24th September 2009 in the following terms:-
"In view of the aforesaid, this petition is allowed and it is made clear that the petitioner and other side shall be entitled to lead evidence in respect of such cause of action facts, events, or circumstances which occurred after filing of the earlier suits in respect of which no allegations were made in the earlier suits "
(21) The respondent Surendra Singh (PW-1) in his affidavit under Order 18 Rule 4 CPC deposed that after marriage, the appellant Ranjeet Kaur made a pressure on him to live with her at Vidisha where she was serving. On his refusal, she created an unpleasant seen in her matrimonial house. The respondent after making his sincere efforts for her transfer from Vidisha to Gwalior got succeeded to get her transfer order but she did not resume her duties at Gwalior, consequently, her transfer from Vidisha to Gwalior stood cancelled. In the month of February 1996, she gave a birth to a child at Vidisha. Their son Swaesh with his consent is living with his wife. After birth of their son, he and other relatives went for her respectful return to her matrimonial house, but she refused for coming back to her matrimonial house at Gwalior/Shivpuri. She also insulted him and his relations. When he tried to meet his son, he was not permitted and told by his wife that he had lost his all rights. In conciliation proceedings before the Family Courts, his sincere efforts for restoring his matrimonial relations, on her refusal became fruitless. On 25th February 2001, his wife received all ornaments, other household articles and marriage expenses from him and written a letter with an intention to break down the marital ties with him. Despite his honest offer and directions of the court, his wife did not give consent for her transfer and the transfer certificate of his son from Vidisha. During the pendency of matrimonial cases in the District Court Vidisha, his father expired. He informed his wife to attend and participate in the last rites of his father but neither she came nor did she allow her son to come and participate in the last rites of his grand-father. It is further mentioned by him that during trial, his mother suffered from severe heart-attack at Gwalior but despite informing by him to his wife, she did not come to see his mother. This behavior of his wife caused him a great mental pain. She had deserted him for last 12 years. He never stayed in the Mayur Hotel at Bhopal on the dates as specified by the appellant. His wife never consummated the marital relations with him. In crossexamination, he admitted that after rejection of his first divorce petition in August 2001, he and his father and brother Kamaljeet Singh visited the house of his wife for her respectful return. Thereafter in the month of September 2001, he visited twice to the residence of his wife for her return but she refused to see his face. In between 2002 to 2007, he got various opportunities of talking to his wife for her return to the matrimonial house, but she was not agreed. During the pendency of present suit from 2007, he had no conversations with his wife.
(22) Kamaljeet Singh (PW-2), brother of the respondent in his evidence supported the version of respondent and stated that before marriage, the appellant was in Government service and she never desired for her transfer and to live with his brother. On the contrary, she wanted that her husband should live with her at her parental house. On 25th February 2001, the appellant received all ornaments including household articles from his brother and wrote a letter with an intention to break down the marriage relations with his brother. When his father expired at Gwalior despite information by his brother, she did not come to pay grief to his family. Even on suffering from severe heart attack by his mother, she did not intend to visit their house. He deposed that after 2005 and onwards, his family shifted to Shivpuri and since then, they are continuously living there. In crossexamination, he admitted all the facts, as narrated or informed by his brother.
(23) Gurmel Singh (PW-3) deposed in his affidavit under Order 18 Rule 4 CPC that from March 2005 to February 2007, respondent with his mother and brother are residing in one portion of his house as tenants. However, in his cross-examination, he specifically stated that he does not know either Surendra Singh or his wife.
(24) Angrej Singh (PW-4) deposed that he participated in the marriage functions of Surendra Singh at Vidisha and had the knowledge about the strained relations between Surendra Singh and Ranjeet. He stated that she always wished that Surendra Singh should live with her at Vidisha because she cannot leave her mother alone at Vidisha. He supported the statement of Surendra Singh. However, in cross examination, he asserted that he came to know from others about the facts as mentioned before and he had no terms or conversation with Surendra Singh.
(25) Ranjeet Kaur (DW-1), appellant in her affidavit under Order 18 Rule 4 CPC as well as statement refuted all the allegations of her husband. She asserted that being in Government Job, on holidays and as and when time permitted, she used to go periodically for visiting her matrimonial house. She had the knowledge that her husband is keeping relations with lady officer. In the month of November 2001, she stayed and lived with her husband in Hotel Mayur at Bhopal and consummated sexual relations with him. By all times during pendency of matrimonial cases in courts, she was ready and willing for her respectful return to her matrimonial house. As regards cancellation of her transfer from Vidisha to Gwalior, she stated in para 36 of her cross-examination that during that period she gave a birth to a child and therefore was not in a position to attend duty. She denied that she had the information of sad demise of her fatherin- law or even her husband made a contact with her and requested her to join with her son the last rites of her father-in-law at Gwalior. She also denied that her husband informed her of the ailment of her old widowed mother-in-law. It may be noted that after receiving the articles and cash from her husband and even after execution of an affidavit on 25/2/01, the respondent-husband did not choose to file the petition for divorce on mutual consent as provided under section 13-B of the Hindu Marriage Act, but he filed the petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act on 29/8/01 vide Ex.D/8(c), which justifies the stand of the appellant that she was at all times was ready and willing to live with the respondent and the respondent was also having some slightest hope for restitution of their marital ties.
(26) In matters relating to matrimonial disharmony leading to filing of divorce petition, the decisions of the Apex Court referred to below need to be noted.
(27) In the case of Gurbux Singh v. Harminder Kaur (AIR 2011 SC 114), the Hon. Apex court held:-
"A Hindu marriage solemnized under the Act can only be dissolved on any of the grounds specified therein. We have already pointed out that in the petition for dissolution of marriage, the appellant has merely mentioned Section 13 of the Act and in the body of the petition he highlighted certain instances amounting to cruelty by the respondent-wife. Cruelty has not been defined under the Act. It is quite possible that a particular conduct may amount to cruelty in one case but the same conduct necessarily may not amount to cruelty due to change of various factors, in different set of circumstances. Therefore, it is essential for the appellant, who claims relief, to prove that a particular part of conduct or behaviour resulted in cruelty to him. No prior assumptions can be made in such matters. Meaning thereby that it cannot be assumed that a particular conduct will, under all circumstances, amount to cruelty, vis-a-vis the other party. The aggrieved party has to make a specific case that the conduct of which exception is taken amounts to cruelty. It is true that even a single act of violence which is of grievous and inexcusable nature satisfies the test of cruelty. Persistence in inordinate sexual demands or malpractices by either spouse can be cruelty if it injures the other spouse. There is no such complaint by the appellant. In the case on hand, as stated earlier, the appellant has projected few instances in which, according to him, the respondent abused his parents. We have verified all the averments in the petitions, reply statement, written submissions as well as the evidence of both parties. We are satisfied that on the basis of such instances, marriage cannot be dissolved.
The married life should be assessed as a whole and a few isolated instances over certain period will not amount to cruelty. The ill-conduct must be precedent for a fairly lengthy period where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, one party finds it extremely difficult to live with the other party no longer may amount to mental cruelty. Making certain statements on the spur of the moment and expressing certain displeasure about the behaviour of elders may not be characterized as cruelty. Mere trivial irritations, quarrels, normal wear and tear of married life which happens in day to day life in all families would not be adequate for grant of divorce on the ground of cruelty. Sustained unjustifiable and reprehensible conduct affecting physical and mental health of the other spouse may lead to mental cruelty. Both the appellant and respondent being highly qualified persons, the appellant being Principal in ITI College, the respondent working as a Librarian in a Government Institute, an isolated friction on some occasion like festival of Lohri even in the presence of others cannot be a valid ground for dissolving the marriage.
Finally, a feeble argument was made that both the appellant and respondent were living separately from 2002 and it would be impossible for their re-union, hence this Court exercising its jurisdiction under Article 142 of the Constitution their marriage may be dissolved in the interest of both parties. Though, on a rare occasion, this Court has granted the extraordinary relief dehors to the grounds mentioned in Section 13 in view of the fact that the issue has been referred to a larger Bench about permissibility of such course at present, we are not inclined to accede to the request of the appellant. If there is any change of law or additional ground included in Section 13 by the act of Parliament, the appellant is free to avail the same at the appropriate time.”
(28) In the case of Manisha Tyagi v. Deepak Kumar (AIR 2010 SC 1042), the Hon. Apex Court held:-
“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 enquiry 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. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and 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 be established if the conduct itself is proved or admitted. 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. Intention is not a necessary element in cruelly. The relief to the party cannot be denied on the ground that there has been no deliberate or willful ill-treatment.
Mental cruelty in Section 13(1)(i-a) can broadly be defined as 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. In other words, 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 is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, 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 which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.
On the other hand the wife had filed the Letters Patent Appeal challenging the grant of decree of judicial separation to the husband by the Appellate Court. We are of the opinion that the High Court erred in granting a decree of divorce to the husband. She had come in appeal before the Division Bench complaining that the Appellate Court had wrongly granted the decree of judicial separation even after concurring with the findings of the Trial Court that the husband had failed to establish cruelty by the wife. Therefore even if the appeal had been dismissed, the findings recorded by the Trial Court in her favour would have remained intact. The effect of the order passed by the Division Bench is as if an appeal of the husband against the decree of judicial separation has been allowed. Both the parties had failed to make out a case of divorce against each other. The husband had accepted these findings. Therefore he was quite content to wait for the statutory period to lapse before filing the petition for divorce, which he actually did on 9.5.2002. On the basis of the proven facts the Trial Court was more inclined to believe the wife, whereas the learned Single Judge of the High court found both the parties to be at fault. Hence the middle path of judicial separation had been accepted. Therefore, it was not a case where it was necessary for the Division Bench to correct any glaring and serious errors committed by the court below which had resulted in miscarriage of justice. In our opinion there was no compelling necessity, independently placed before the Division Bench to justify reversal, of the decree of judicial separation. In such circumstances it was wholly inappropriate for the Division of High Court to have granted a decree of divorce to the husband.”
(29) In Manish Goyal Vs. Rohini Devi (AIR 2010 SC 1099), the Hon. Apex Court held:-
"Article 136 of the Constitution enables this Court, in its discretion to grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. Undoubtedly, under Article 136 in the widest possible terms, a plenary jurisdiction exercisable on assuming appellate jurisdiction has been conferred upon this Court. However, it is an extra-ordinary jurisdiction vested by the Constitution in the Court with implicit trust and faith and thus, extra ordinary care and caution has to be observed while exercising this jurisdiction. There is no vested right of a party to approach this Court for the exercise of such a vast discretion, however, such a course can be resorted to when this court feels that it is so warranted to eradicate injustice. Such a jurisdiction is to be exercised by the consideration of justice and call of duty. The power has to be exercised with great care arid due consideration but while exercising the power, the order should be passed taking into consideration all binding precedents otherwise such an order would create problems in the future. The object of keeping such a wide power with this Court has been to see that injustice is not perpetuated or perpetrated by decisions of courts below. More so, there should be a question of law of general public importance or a decision which shocks the conscience of the court are some of the prime requisites for grant of special leave. Thus, unless it is shown that exceptional and special circumstances exist that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity warranting review of the decision appealed against, such exercise should not be done. The power under Article 136 cannot be used to short circuit the legal procedure prescribed in overriding power. This Court generally does not permit a party to by-pass the normal procedure of appeal or reference to the High Court unless a question of principle of great importance arises. It has to be exercised exceptionally and with caution and only in such an extra-ordinary situations. More so, such power is to be exercised taking into consideration the well established principles which govern the exercise of overriding constitutional powers. Therefore, the law in this regard can be summarised to the effect that in exercise of the power under Article 142 of the Constitution, this Court generally does not pass an order in contravention of or ignoring the statutory provisions nor the power is exercised merely on sympathy.
The instant case requires to be examined in the light of aforesaid settled legal propositions. Parties got married on 23.7.2008 and as they could not bear each other, started living separately from 24.10.2008. There had been claims and counter-claims, allegations and criminal prosecution between them. Petitioner approached the Competent Court at Gurgaon for dissolution of marriage. Admittedly, that case is still pending consideration. Parties filed the petition for divorce by mutual consent only in November 2009 before the Family Court, Delhi. Learned counsel for the petitioner could not explain as to how the case for divorce could be filed before the Family Court, Delhi during the pendency of the case for divorce before the Gurgaon Court. Such a procedure adopted by the petitioner amounts to abuse of process of the court. Petitioner has approached the different forums for the same relief merely because he is very much eager and keen to get the marriage dissolved immediately even by abusing the process of the Court. In Jai Singh v. Union of India, AIR 1977 SC 898, this Court while dealing with a similar issue held that a litigant cannot pursue two parallel remedies in respect of the same matter at the same time.
This judgment has subsequently been approved by this Court in principle but distinguished on facts in Awadh Bihari Yadav v. State of Bihar, AIR 1996 SC 122 : (1995 AIR SCW 3810); and Arunima Baruah v. Union of India (2007) 6 SCC 120 : (2007 AIR SCW 4609). In Dr. Buddhi Kota Subbarao v. K. Parasaran and Ors., AIR 1996 SC 2687 : 1996 AIR SCW 3356), this Court has observed as Under :-
"No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. However, access to justice should not be misused as a licence to file misconceived and frivolous petitions."
Even otherwise, the statutory period of six months for filing the second petition under Section 13-B(2) of the Act has been prescribed for providing an opportunity to parties to reconcile and withdraw petition for dissolution of marriage. Learned counsel for the petitioner is not able to advance arguments on the issue as to whether, statutory period prescribed under Section 13-B(1) of the Act is mandatory or directory and if directory, whether could be dispensed with even by the High Court in exercise of its writ/appellate jurisdiction.”
(30) In the case of Ravi Kumar Vs Julmidevi (2010) 4 SCC 476 the Honorable apex court held :
"It may be noted that only after the amendment of the said Act by the amending Act 68 of 1976, desertion per se became a ground for divorce. On the question of desertion, the High Court held that in order to prove a case of desertion, the party alleging desertion must not only prove that the other spouse was living separately but also must prove that there is an animus deserendi on the part of the wife and the husband must prove that he has not conducted himself in a way which furnishes reasonable cause for the wife to stay away from the matrimonial home.
Looking to the materials which have come on record in this case, it is clear that the wife had sufficient ground to live separately. In this case, the evidence of the daughter is very crucial. The daughter in her evidence categorically stated that her father used to beat her mother. She denied that her mother abused her father but she repeatedly deposed that her father used to beat her mother and the reasons of which are not known to her.
The power of the appellate court as explained in Order 41 Rule 33 of the Civil Procedure Code shows that very wide powers have been conferred. Commenting on the width of this power, Mulla (CPC 15th Edn., p. 2647) commented that this Rule is modelled on Order 59 Rule 10(4) of the Supreme Court of Judicature in England. The learned author further commented that the object of this Rule is to empower the appellate court to do complete justice between the parties. This Court is in respectful agreement with the aforesaid commentary of Mulla on Order 41 Rule 33 with one rider. If there is a legal interdict, the Rule will not apply (see S. Nazeer Ahmed v. State Bank of Mysore which has been followed in Samundra Devi v. Narendra Kaur).
Therefore, in exercise of its power, the first appellate court can come to a finding different from the one which has been arrived at by the trial court especially in a case where appreciation of evidence by the trial court is not proper. In the instant case, this Court finds that the trial court has not properly appreciated the evidence of the child.
It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty.
Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty.
Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial cases can be of infinite variety-it may be subtle or even brutal and may be by gestures and words. That possibly explains why Lord Denning in Sheldon v.Sheldon held that categories of cruelty in matrimonial cases are never closed.
“… In matrimonial cases we are not concerned with the reasonable man as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if boththe spouses think and behave as reasonable people.”
(31) About the changing perception of cruelty in matrimonial cases, the Apex Court observed in Shobha Rani Vs. Madhukar Reddi in (1988) 1 SCC 105.
“It will be necessary to bear in mind that there has been [a] marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatised 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 accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties.”
(32) As discussed above, it is the case of the respondent that after the marriage with the appellant he found that she was behaving violently and used to pick up quarrels with him and her relations were unreasonably. It is also his contention that she used to suspect his fidelity. He reiterated the same in his evidence. He denied the suggestion that he had any extramarital relationship with a lady officer. In his evidence though the respondent both in his petition for divorce as well as in his evidence stated that the appellant used to come to his residence and abuse him in the presence of his relations which amounts to cruelty, no other independent evidence is adduced to prove the said contentions.
(33) Witnesses Gurmel Singh and Angrej Singh categorically denied in their cross-examination that they have ever witnessed the behaviour of the appellant with the respondent. They deposed that they never witnessed the personal attitude of the appellant towards the respondent and they came to know about the same only through the respondent. Hence, how the appellant is cruel towards the respondent etc., there is no explanation in their evidence. The evidence of PW-2 is interested and cannot be relied upon. In that view of the matter, we are at a loss to understand how the evidence of Kamaljeet Singh (PW-2) would in any way help the respondent to prove that the appellant behaved with him cruelly and deserted him.
(34) Thus, except the self-serving testimony of the respondent, there is absolutely no other independent evidence to show that the appellant treated him cruelly and deserted him.
(35) On the other hand, it is the evidence of the appellant-wife, that she never quarrelled with the respondent, never abused or threatened him and her relationship with elders was always cordial. She categorically stated that she has no objection if the respondent is ready and willing to join her and that she is not willing for dissolution of the marriage.
(36) It is well settled that the standard of proof required in a case of cruelty or desertion need not be over-empahsised. Though strict proof of beyond reasonable doubt, as required in a criminal case is not necessary, the preponderance of probabilities at least should indicate that the appellant treated the respondent with cruelty and deserted him or that a matrimonial offence has been committed. In this case, except the self-serving testimony of respondent that the appellant behaved cruelly towards him and that she deserted her, there is absolutely no other independent evidence adduced by the respondent to prove the same.
(37) Viewed from any angle, the respondent has utterly failed to prove any of the grounds of cruelty and desertion urged by him for dissolving the marriage by a decree of divorce. The trial court while granting the relief to the respondent has not given cogent and convincing reasons in support of its judgment and hence the same is hereby set aside.
(38) However, from assessment of the evidence on record, it is apparent that there are slightest hope for reunion of the parties, which would be in the interest of the child. We would like to observe that the jurisdiction in divorce involves the status of the parties and the public interest requires that the marriage bond shall not be set aside lightly. The terms of the Statute recognize this plainly, and we think it would be quite out of keeping with the anxious nature of its provisions to hold that the Court might be satisfied, in respect of a ground for dissolution, with something less than proof beyond reasonable doubt. Therefore the duty contemplated in that section is to make every endeavour to bring about reconciliation between the parties. In such matters, there is no absolute bar preventing grant of alternative relief in divorce proceedings under the Act. The provisions of section 13-A of the Hindu Marriage Act, germane to the point under consideration, may be quoted:
“13-A. Alternative relief in divorce proceedings - In any proceeding under this Act ,on the petition for dissolution of marriage by a divorce except in so for as the petition is founded on the grounds mentioned in clauses (ii), (vi), and (vii) of the sub section (1) of Section 13, the court may .if it considers it just so to do having regard to the circumstances of the case pass instead a decree for judicial separation.”
(39) The words "before proceeding to grant any decree" confers a power coupled with an express duty. It is in the interest of the stability of the society that marriages are not to be easily broken and disrupted. It is in the interest of public policy to maintain the continuance of matrimonial relations and to prevent, as far as possible, disruption of the same, at the instance of any of the parties to a marriage. The Court is given the power to make reasonable efforts to prevent disruption of marriages and thereby advance the social objective and stability. This power is exercised not only for the benefit of the parties to the marriage, but also of their off springs, if any. In view of this, the power coupled with the duty are mandatory. It is true that while conferring the power the Statute has given a measure of discretion to the Court. That discretion is indicated bv the words "in every case where it is possible so to do, consistent with the nature and circumstances of the case". The case of Manisha Tyagi (supra), is one of the best illustrations where the middle path of judicial separation was held justified and the decree of divorce granted by the Division Bench of the High Court in favour of the husband was set aside by the Apex court.
(40) For the aforesaid reasons, we allow the appeal and dismiss the decree of divorce passed by the trial court vide impugned judgment dated 25th September, 2010 in C.S.No.26A/10 and instead, we think it just and proper to grant alternative relief by way of a decree for judicial separation under Section 10 of the Act so as to make the parties enable to re-unite for the welfare of the child. The Parties shall bear their own expenses.