Sudhanshu Mauli Tripathi Vs. Meena Kumari & Anr.

Court: PATNA HIGH COURT

Bench: JUSTICES Sudhir Kumar Katriar & Jyoti Saran

SUDHANSHU MAULI TRIPATHI Vs. MEENA KUMARI & ANR. On 17 September 2009

Law Point:

Act of Wife in neither willing to return to matrimonial home nor allowing peaceful divorce to petitioner, proves beyond any doubt that there is no chance of marriage being retrieved and continuance of such marriage would itself amount to cruelty.

JUDGEMENT

This appeal under Section 19 of the Family Courts Act, 1984, is directed against the judgment and order dated 29.7.1995, passed in Matrimonial Case No. 20 of 1990/141, of 1992 Sudhanshu Mauli Tripathi v. Meena Kumari @ Daijee and Another, by the learned Principal Judge, Family Court, Patna, dismissing the suit for divorce filed under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘’the Act”).

The appeal under Section 19 of the Family Courts Act lies before this Court and is to be heard on facts as well as on law. For the sake of convenience, we shall refer to the position of the parties as it existed at the stage of the suit.

2. The petitioner, Sudhanshu Mauli Tripathy, the husband, had filed a petition-cum-plaint under Section 13 for grant of a decree of divorce-cum-annulment of marriage from the defendant No. 1, Meena Kumari. The case of the petitioner as set out in the plaint is that his parents were looking for an educated girl having atleast a Graduate qualification for his marriage. It is stated that the parents and relatives of the defendant misrepresented by impressing upon his family that the defendant was a graduate and obtained consent of marriage by fraud and deception. The marriage was solemnized on 22.4.1984, as per Hindu religious rites at the residence of the defendant at Kankarbagh, Patna.

2.1 It is further stated that within two months of the marriage, the defendant started presenting unwarranted conduct and misbehaviour with the petitioner and his parents and also using disgraceful language. Defendant No. 1 was having very affable relationship with defendant No. 2, Nandan Dubey. When he made a surprise visit to his residence during working hours on 15.5.1984, he found, them in a .highly objectionable position and he asked defendant No. 2, Nandan Dubey to leave the place immediately and also tried to reason out with defendant No. 1 but she began to quarrel. The petitioner contended that the behaviour of defendant No. 1, towards defendant No. 2 indicated that they were in illicit relationship. It is further stated that defendant No. 1 continuously misbehaved with his parents.

2.2 It was also stated that on 26.6.1984, when the petitioner returned from office, he was told that defendant No. 1 had left for her naihar along with her belongings and when the petitioner went to her house, he was chastised by her parents for not allowing her freedom to meet her friends and relatives. In between 1985 to 1988, the petitioner made several visits to the parental house of defendant No. 1 in order to pacify her and get her back, but the same did not bear any fruitful result. It is further stated, that in the year 1987, on the day of dushehra, when the petitioner went to meet defendant No. 1, he found the defendants in compromising position. The petitioner made complaint before the parents of defendant No. 1, but they did not take any action rather abused him and asked him to leave the house. It is further stated in the plaint that on 4.3.1990, defendant No. 1 was roaming with an unknown person in New Market, Patna, and upon seeing him, she, became furious and tried to assault him with her Chappal but he managed to escape.

2.3 It is further stated that a number of cases were instituted against him at the behest of defendant No. 1 and her family members namely:

(i) Patliputra P.S. Case No. 218 of 1991 dated 31.10.1991 under Sections 498-A and 384 of the Indian Penal Code.

(ii) Patliputra P.S. Case No. 118 of 1992 dated 16.2.1992 under Sections 307, 377, 338 and 279 of the Indian Penal Code.

(iii) Case No 510 of 1992 in the Court of SDO, Patna Sadar under Section 107, Cr. P.C.

(iv) Sanha No. 824 dated 29.8.1990 at Kaji Mohammadpur P.S. District Muzaffarpur.

(v) Complaint petition to the DIG Mahilakosang, Patna.

The petitioner thus contains that he has been subjected to severe acts of cruelty at the hands of defendant No. 1 who has deserted him. The petitioner also charges defendant No. 1 of adultery.

2.4 In the circumstances stated above, prayer was made to dissolve the marriage by a decree of divorce.

3. The petitioner filed two amendment applications in the proceeding, first one on 26.7.1993, and the second one was filed on 21.9.1993, whereby the details of the criminal cases filed by defendant No. 1 and submissions to that effect were brought record.

4. The defendants appeared in the proceeding and filed separate set of written statements. Defendant No. 1 denied any intimation about the matrimonial suit and stated that she gathered such information from newspaper reports. She has also contended that the entire suit was based on falsity. She denied misrepresentation regarding her educational qualification. She further denied using foul language against the petitioner or his parents. She also denied the charge of her alleged illicit relationship with defendant No. 2. She states that the incidence of 5.4.1984 has been concocted by the petitioner and is palpably false. She categorically states that she had no relationship’ with any person and all the statements regarding her illicit relationship was false. She also denies that she had returned to her father’s house on 26.6.1984 without any intimation. She further contends that her father had given nearly Rs. 80,000 to the petitioners for construction of his house and for other items. The petitioner had forcibly taken her to Muzffarpur in August 1990, and taken her signature on blank sheet and on Vakalatnama under threat and duress and which incident was reported by her father before the Women Cell. The incidence of the dushehra was also categorically denied by her. She complained of torture at the hands of the husband, his elder brother and the elder brother’s wife. She also denies that she had severed her relationship with the petitioner on 26.6.1984. The incidence of 4.3.1990 regarding assault on the petitioner has also been denied by her. The defendant contends that it is the petitioner who is having illicit relationship with his sister-in-law and which is the genesis of the whole matter. She has also in her written statement charged the petitioner of assaulting her with the help of armed unsocial elements.

4.1 She has further stated that it was the petitioner who had subjected her to various forms of torture. She denied the charge of misrepresentation and stated that it was the petitioner who had been misrepresenting her. In support of her statement, she referred to an order passed by this Court in the bail application filed by the petitioner in which he had contended before the Court that he was living with her. Defendant No. 1 submits that believing him she admitted before this Court that they were living together and in this process he was granted bail by this Court, but she subsequently realized that the petitioner had played fraud upon her.

4.2 Defendant No. 1 also stated that the proceeding under Section 107, Cr PC has been dropped. Defendant No. 1 states that save and except Patliputra P.S. Case No. 218 of 1991, she had no concern with the other cases.

5. Defendant No. 2 filed his written statement and denied all the charges of having illicit relationship with defendant No. 1 as set out in the plaint, and stated that the entire allegations were false and baseless.

6. On the basis of the pleadings made by the parties, the learned Court below framed the following issues.

“12. On the basis of the pleadings of the parties the following issues arise for determination in this case:

(1) Is the suit, as framed, maintainable?

(2) Has the petitioner got any cause of action?

(3) Is the respondent No. 1 guilty of adultery and she living in adultery with respondent No. 2 Madan Dubey?

(4) Whether the petitioner is living in adultery with his sister-in-law, Shakuntala Tripathi?

(5) Is the respondent No. 1 guilty of committing cruelty?

(6) Whether any misrepresentation was made at the time of marriage negotiation that the respondent No. 1 was graduate though she had appeared at Matriculation examination?

(7) Whether the respondent No. 1 deserted the petitioner?

(8) To what relief or reliefs if any the petitioner is entitled?”

7. Upon consideration of the plaint, written statement(s), amendment petition, the oral arguments advanced on behalf of the parties and the materials on record the learned Family Court was pleased to dismiss the suit vide judgment and order dated 29.7.1995. The learned Court below held that the petitioner had failed to prove the charges of adultery, cruelty, and desertion against defendant No. 1. It was held that the petitioner had no cause of action to obtain a decree of divorce. The suit was dismissed with costs. The petitioner thus is before us by way of the present appeal assailing the judgment and order passed by the learned Court below.

8. Mr. Rajiv Verma, learned senior Counsel appearing on behalf of the petitioner reiterated the statements in the plaint and the two amendment petitions referred to above. He also referred to the written statements filed on behalf of defendant No. 1 and defendant No. 2. With reference to the statements made in the plaint, Mr. Verma submitted that the alleged acts of cruelty, adultery and desertion stand fully proved as against defendant No. 1. He submits that the marriage was consummated on 22.4.1984, and within a month of the marriage, i.e. on 15.5.1984, the petitioner found defendants in objectionable position. Thereafter on 26.6.1984, defendant No. 1 had left the matrimonial house to reside with her parents and whereafter she did not return, rather instituted a number of cases against him.

8.1 Mr. Verma further submits that the parties have been living separately since 1984, i.e. more than 25 years, and the marriage has irretrievably broken down. He further submits that the parties are not willing to live together. Therefore, no fruitful purpose would be served by dismissing this appeal. Mr. Verma has relied upon the deposition of defendant No. 1 in the maintenance suit bearing Case No. 95 of 2002, and in which defendant No. 1 had categorically stated that she was not willing to stay with the petitioner. Mr. Verma has relied on the following judgments:

(i) I (2006) DMC 489 (SC)=II (2006) CLT 100 (SC)=III (2006) SLT 43=128 (2006) DLT 360 (SC)=AIR 2006 SC 1675, Navin Kohli v. Neelu Kohli.

(ii) AIR 2003 All. 51, Poonam Gupta v. Ghanshyam Gupta, paras 14 to 15

(iii) II (2005) DMC 453 (SC)=VI (2005) SLT 373=2005 (7) SCC 352, Durga Prasanna Tripathi v. Arundhati Tripathi, paras 16 and 21 to 27.

9. Mr. Shiv Nandan Roy, learned senior Counsel appearing on behalf of defendant No. 1, supports the impugned judgment and submits that the appeal has no merit and was fit to be dismissed inasmuch as the petitioner had failed to prove either of the three charges set out before the Court below as well as this Court for grant of divorce, namely, adultery, cruelty, desertion and false representation. He relied on Ext.-A and Ext.-A/1, which are letters written by the petitioner to defendant No. 1, and submits that any husband being infuriated by the adulterous acts of his wife would loath to write such letters. He further refers to the evidence of the father of the petitioner who had appeared as the defendant witness and supported the case of defendant No. 1. He further refers to Ext.-D which is the order of this Court granting bail to the petitioner and submits that any charge of adultery would stand waived by the statement made by him before this Court for the purpose of securing bail.

9.1 Mr. Roy submits in the same vein that the charge of desertion is also palpably false and in support of his submission again refers to Ext.-A and Ext.-A/1, which are letters written by the petitioner to defendant No. 1 and states that the contents thereof substantially prove that it was the husband who had sent defendant No. 1 to her Naihar and that she had not gone on her own volition. He also refers to Ext. B which is the medical certificate for the period of 29.12.1984 to 2.1.1985, and the address mentioned wherein is that if the petitioner and which according to him by itself was sufficient to dispel the petitioner’s charge that defendant No. 1 left the matrimonial house on 26.6.1984.

9.2 Mr. Roy further submits that the charge of false representation stands falsified by the evidence of the father of the petitioner who deposed as O.P. witness No. 2, and stated that no such statement regarding defendant No. 1 being a graduate had been made by the girl’s parents. He further submits that neither there was any act of cruelty on the part of defendant No. 1, nor the marriage has broken down.

9.3 In the same vein, Mr. Roy submits .that irretrievably breaking down of marriage is no ground for grant of divorce under Section 13 of the Hindu Marriage Act. Hence no divorce can be granted to the petitioner. In support of his submission, Mr. Roy relied upon a judgment reported in I (2009) DMC 515 (SC)=II (2009) SLT 382=2009 (2) PLJR 200 (SC), paragraphs 10 to 12. Vishnu Datt Sharma v. Manju Sharma.

10. Mr. Rajiv Verma in reply reiterates his submissions with reference to the paragraphs of the plaint and the evidence on record and the judgments cited and referred to hereinabove.

Mr. Verma further submits that admittedly, the parties have been living separately for more than two decades and all the efforts of reconciliation between the parties have failed and in such circumstances, continuation of the marriage would be an act of cruelty. In support of his submission, Mr. Verma in addition to the judgment of the Apex Court rendered in the case of Naveen Kohli (supra), relied upon the following judgments:

(i) II (2008) DMC 167 (SC)=VI (2008) SLT 289=AIR 2008 SC 3093, Satish Sitole v. Ganja, paras 7 to 12.

(ii) 2007 (1) PLJR 75 (SC), (paras 5 to 7), Rishi Kant Sharma v. Saroj Sharma.

He submits that the learned Principal Judge while dismissing the suit had failed to appreciate the issues in its. perspective and in the back drop of the evidence. He further submits that the learned Court below was swayed by misplaced sympathy in favour of the defendant.

Mr. Verma further submits that the judgment of the Apex Court in the case of Vishnu Datt Sharma (supra), was in a case based exclusively on the issue of irretrievable break down and the additional aspects which arise in the present dispute, did not fail for consideration before the Apex Court. He further submits that although a reference has been made in the said judgment regarding the earlier judicial pronouncements on the issue, but the reasonings and the law settled in those judgments have not been answered in the case of Vishnu Datt Sharma (supra). Concluding his arguments, Mr. Verma submits that whereas all the judgments cited by him in support of his submissions are in exercise of jurisdiction under Article 142 of the Constitution of India, but the judgment in the case of Vishnu Datt Sharma (supra), does not fit in the same category.

11. Faith and mutual understanding between the parties is a sine qua non to the institution of marriage and key to conjugal happiness. The moment either of the two gives way, it leads to a dent in the relationship, .which if not repaired by mutual reasonings or reconciliation with the help of elders, relatives arid friends, ultimately leads to a situation like the case in hand. Marriage is not just about chanting hymns or taking rounds of the fire, it is much beyond that. In fact, as per the Hindu mythology, marriages are pre-ordained in heaven and the ritual performance is only the execution of what is pre-determined.

12. Proceeding on the well established principle that every effort should be made by the parties, their elders, relatives, friends and even the Courts to bring about a reconciliation between the contesting parties, this Court had tried to bring about a reconciliation between the contesting parties this Court had tried to bring about a reconciliation between the parties and had expressed desire to refer the matter for mediation to the Patna High Court Mediation Centre at the choice of the respondent/wife. The relevant extract of the order dated 20.3.2009, is reproduced herein below:

“By order dated 22.5.2008, this Court had given an option to the appellant to pay a sum of Rs. fifty lacs as permanent alimony in lieu of divorce in the instant case. To enable the appellant to exercise that option, the case was adjourned for two weeks after the summer vacation of the year 2008. Obviously the appellant did not accept the said option.

Today, nobody has appeared on behalf of the appellant. Learned Counsel for the respondent wife is present. He did not have any instructions as to whether in spite of failure of the earlier option, the respondent-wife is inclined for a compromise in the matter or not.

The situation is that the appellant was married to the respondent No. 1 in 1984 but they appear to have separated and remained involved in the litigation for the last 17 years.

In the aforesaid facts and circumstances, it appears in the interest of justice that an opportunity may be given to the, parties for settling their dispute through mediation provided they are agreeable. Learned Counsel for the respondent wife prays for one week’s time. If the respondent-wife opts for mediation, this Court would like to refer this matter for mediation to the Patna High Court Mediation Centre even if learned Counsel for the appellant chooses not to appear. If required, notices may have to be sent to the appellant for the proposed mediation if the respondent-wife opts for the same.

Put up this case under the same heading after one week.”

12.1 On the next date i.e. 15.4.2009, none appeared for the respondent. On 13.5.2009 it was jointly submitted on behalf of the parties that the matter had been dissolved outside the Court on certain terms and conditions which has been reproduced in the order of this Court dated 13.5.2009 which is reproduced herein below for quick reference:

“Mr. R.K. Verma for the appellant, and Mr. Shiv Nandan Roy for respondent No. 1, are present. Respondent No. 1 along with her father are present in Court. It is submitted on behalf of the parties that they were married way back in 1984, and have been living separately ever since 1986. There is now no chance of reconciliation and coming together. The marriage has irretrievably broken down. It is jointly submitted on behalf of the parties that the matter has been dissolved outside Court on the following terms and conditions :

(i) The appellant shall pay a sum of Rs. 8,00,000 (Eight lacs only) to respondent No. 1.

(ii) The marriage between the parties shall be dissolved by mutual consent.

(iii) All litigations between the parties shall come to an end. The appellant is facing trial in Patliputra P.S. Case No. 218/91, corresponding to GR Case No. 5643/91, currently pending in the Court of the learned Sub-Divisional Judicial Magistrate, Patna, under Section 498-A of the Indian Penal Code read with Sections 3 and 4 of the Dowry Prohibition Act.

Let the parties file their separate applications personally sworn by them incorporating the aforesaid terms and conditions on or before 18.5.2009. Put up on 20.5.2009 in the same position. The appellant shall be ready with demand draft(s) for a total sum of Rs. 8,00,000 (eight lacs only), in favour of respondent No. 1.

Let copies of this order be handed over to learned Counsel for the parties forthwith.”

The order dated 13.5.2009 passed by this Court appeared to be a possible solution to the issue that was engaging the attention of this Court since 1.9.1996, and the seeds of which were sown even earlier as back in the year 1986 i.e., over a period of 23 years.

12.2 However, to utter dismay of this Court, an interlocutory application came to be filed at the instance of the respondent No. 1 bearing I.A. No. 3347 of 2009, whereby prayer was made to recall/modify the order dated 13.5.2009, and for hearing and disposal of the appeal on its own merits. Respondent No. 1 denied the factum of dissolution of the marriage outside the Court, and also denied that she had agreed for divorce on accepting Rs. 8,00,000.

In view of the submission made by respondent No. 1 in the interlocutory application referred to above, the matter had to be disposed on its own merits.

12.3 When the matter was taken up for hearing on 27.7.2009, another offer was made on behalf of the petitioner-appellant herein that he was still willing to live with defendant No. 1-respondent No. 1 as husband and wife, or else he was prepared to pay a consolidation sum of Rs. 10,00,000 as alimony to her for divorce with mutual consent and with the condition that all the litigations between the parties shall come to an end. The offer of the petitioner-appellant finds mention in the order dated 27.7.2009 which is reproduced herein below for quick reference:

“Mr. R.K. Verma for the appellant, and Mr. Shiv Nandan Roy for the respondents are present. The matter has today once again come up under the heading “For hearing”. We are mindful of the order dated 13.5.2009, and the order dated 3.7.2009, passed in the present appeal. As soon as the appeal was called out, learned Counsel for the appellant made a fresh offer for compromise for the consideration of the respondents. He submits that he is still willing to live with respondent No. 1 like husband and wife, or else he is prepared to pay a consolidated sum of Rs. 10,00,000 (ten lacs only) to her for divorce with mutual consent, with the condition that all litigations between the parties shall come to an end. Let respondent No. 1 consider the same.

2. The appellant has placed on record a paper book prepared by him. Learned Counsel for the respondents submits that this does not include the depositions of the defendants nor copies of the documents marked exhibits at the instance of the defendants. In that view of the matter, let the office prepare four sets of supplementary paper-book incorporating photo copies of the depositions of the defendants, as well as the exhibits on behalf of the defendants within a period of one week.

3. This appeal was really filed in the year 1995, and that too in a matrimonial matter, and it cannot bear any further adjournment. It will, therefore, be open to the learned Counsel for the parties to refer to the depositions and/or documents from the lower Court record, if not incorporated in the paper book.

4. Put up on 17.8.2009 under the heading “To be mentioned”.

Thereafter the matter was taken up on 17.8.2009 when the Counsel appearing for the defendants submitted that the offer made by the petitioner incorporated in the order dated 27.7.2009 (supra), was not acceptable to the defendants and that the matter be heard and disposed of on merits.

We have taken the pains to reproduce the developments which-took place during the course of hearing of the present appeal only for the purpose that every effort and the possible solution were tried by the Court to bring the parties to a settlement but without success. We thus proceed to decide the issue on merits.

13. The admitted position is that the parties are living separately since 1986 i.e. a period of over 23 years. The Trial Court upon consideration of the pleadings, the oral arguments, and the materials available on record was of the opinion that the petitioner herein had failed to substantiate either of the three grounds taken for the purpose of securing a decree of divorce i.e. cruelty, adultery and desertion, and which finding of the Court below has been put to test before us. Learned Counsel appearing on behalf of the petitioner has tirelessly argued to repel the findings of the learned Court below with the aid of oral and documentary evidence, and learned Counsel for the defendant-wife has supported the reasonings assigned by the learned Court below for dismissing the suit. Be that as it may, the fact remains that neither defendant No. 1 is willing to cohabit with the petitioner, nor she is willing for any form of settlement.

14. Section 13 of the Hindu Marriage Act sets out the grounds and circumstances under which either of the parties may obtain a decree of divorce. Amongst all forms of litigation, a petition for divorce is without doubt the most unfortunate form plaguing the Courts. We say so for the reason that a petition for divorce aims at separating two people who until then were living in unison and sharing secrecy and both the essential attributes are sacrificed at the altar of divorce and are replaced by ugly forms of mudslingings. Situations like the present one where parties have separated and were living separately for a period of one and half decade or more without their being any chance of reconciliation, attracted the attention of the Apex Court and a number of authoritative pronouncements were made in the backdrop of circumstances where the grounds set out in Section 13 of the Hindu Marriage Act could not be satisfied by the person claiming divorce. The Apex Court has taken a view that in the circumstances where there was no chance of any patch up or reconciliation between the parties, then the parties should be allowed to go their individual way rather than to keep them bound in an unwilling marriage.

15. The word cruelty is relative in nature and differs from person to person. Cruelty thus has to be adjudged upon consideration of the extent and manner in which an act of a spouse has affected the person complaining of the same. It is not only the physical form of inflictions that amounts to cruelty. Cruelty can also be inflicted through mannerisms, utterances, and through behavioural pattern. A husband not willing to stay with his wife or its converse may form an act of cruelty in the eyes of some. To some, a husband and wife living under the same roof but as two separate individuals can be another form of cruelty. As such, cruelty need not be in any defined physical form. It can also flow from behaviour of the individual.

16. The judgment of the Satish Sitole (supra), was a case in which the husband was found to be unable to make out any grounds for divorce but the facts demonstrated that the parties had been living separately for the last 14 years. The effort of the Court at reconciliation had failed, in the circumstances, the Apex Court relying upon the judgment in the case of Anjana Kishore v. P. Kishore, VIII (2001) SLT 459=(2002) 10 SCC 194, Swati Verma v. Rajan, II (2003) DMC 795 (SC)=VI (2003) SLT 790=(2004) 1 SCC 123, and the case of Durga Prasanna Tripathi (supra), while holding that the marriage had broken down irretrievably and continuation of the same would amount to cruelty, was pleased to order for dissolution of the marriage with conditions for payment of permanent alimony to the extent of Rs. 2,00,000 and cost of Rs. 25,000.

17. Without expressing any opinion on the contentions advanced on behalf of the petitioner to substantiate the charge of adultery and desertion, we take upon us the duty of examining whether the petitioner has made out a case of mental cruelty and/or whether the learned Court below has appreciated the issue in the backdrop of the surrounding circumstances. As stated, cruelty is a relative term and can be mental or physical. Once the parties separate for whatever reason and the separation is followed by a petition of divorce, the process of break down of the marriage is set in motion. The only aspect that needs consideration thereafter is whether there is any chance of bringing the parties together and whether the parties are willing to come together. In the present case, the admitted position is that the parties have remained separated for a period of over two decades and all efforts towards reconciliation/ settlement /reapprochement has failed and evidence of which is found in the various orders of this Court reproduced herein-above. The very fact, being the admitted position that they have not lived together for such a protracted period amidst bitten accusations and counter accusations of infidelity, and criminal case at the instance of the wife in which the husband has suffered incarcerating as an under trial prisoner speaks loudly of a situation that the marriage has irretrievably broken down. This has to be read with the persistent efforts of this Court for reconciliation which have completely failed.

18. In the circumstance noted above where, neither defendant No. 1 is willing to be party to an amicable settlement including payment of permanent alimony, nor is she willing to stay with the petitioner, would it be advisable to negate the prayer of the petitioner for divorce. The answer has to be in the negative. May be in the opinion of the learned Trial Court, the petitioner had failed to substantiate his charges, but in the changed circumstances including the one where he has shown willingness to stay with defendant No. 1, and to continue as husband and wife and has also given an alternative option to defendant No. 1 of paying Rs. 10 lacs as permanent alimony for an end to all forms of litigations, and which has been rejected by respondent No. 1, the issue need not detain us any further.

19. In this connection we are reminded of the judgment of the Apex Court rendered in the case of Samar Ghosh v. Jaya Ghosh, reported in I (2007) DMC 597 (SC)=II (2007) CLT 72 (SC)=IV (2007) SLT 76=2007 (4) SCC 511. A three Judges Bench of the Apex Court has explained in detail the concept of mental cruelty as envisaged under the provisions of Section 13 of the Hindu Marriage Act. Their Lordships while examining the issue have held that a petition of divorce is either based on a fault theory also known as matrimonial offence theory found under Section 13 of the Hindu Marriage Act or the break down theory, which is the case in hand. Their Lordships have held that there could hot be any comprehensive definition of mental cruelty covering all forms of cases and that the concept of cruelty differs from person to person depending upon various factors like sensitivity, educational, family and cultural background, financial position, social status, human values etc. Their Lordships while taking into consideration a catena of judgments including the one rendered in the case of Naveen Kohli (supra), have held as follows:

“100. Apart from this the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.

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 instance 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 back 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 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, pos-sessiveness, 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 behaviours 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 sterilization 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.

102. When we take into consideration aforementioned factors along with an important circumstance that the parties are admittedly living separately for more than sixteen-and-a- half years (since 27.8.1990) the irresistible conclusion would be that matrimonial bond has been ruptured beyond repair because of the mental cruelty caused by the respondent.”

20. The judgment rendered in the case of Samar Ghosh (supra), applies with full force to the present case. The parties in the said case had been living separately for 16½ years and in the present case the period of separation is almost 23 years and respondent No. 1 is not willing to return to her matrimonial home or settle for divorce with mutual consent together with alimony. Following the law down by the Apex Court in the case of Samar Ghosh (supra), and the other judgments cited by the learned Counsel appearing on behalf of the petitioner on the issue of cruelty culminating in irretrievable break down of marriage, we come to the irresistible conclusion that the act of respondent No. 1 is neither willing to return to the matrimonial home nor willing to allow a peaceful divorce to the petitioner, proves beyond any doubt that there is no chance of marriage being retrieved and continuance of such marriage would itself amount to cruelty.

21. For the reasons assigned hereinabove, the judgment rendered in the case of Vishnu Datt Sharma (supra), does not come to the aid of the respondent.

22. In the result, this appeal is allowed, the judgment and order dated 29.7.1995, passed by the learned Principal Judge, Family Court, Patna, in Matrimonial Case No. 20 of 1990/141 of 1992, is set aside, and we hold that the marriage of the petitioner and respondent No. 1 hereby stand dissolved. However, there shall be no order as to costs.

S.K. Katriar, J—I agree.

Appeal allowed.

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