Orissa High Court

Ashutosh Sarangi vs Mrs.Reeta Dhara on 18 August, 2015

Author: S.K.Sahoo

IN THE HIGH COURT OF ORISSA, CUTTACK

MATA NO.122 OF 2014

From the judgment and order dated 25.09.2014 passed by the

Judge, Family Court, Bhubaneswar in Civil Proceeding No.41 of
2011.

---------------------
Ashutosh Sarangi ........ Appellant

-Versus-

Mrs.Reeta Dhara ......... Respondent

For Appellant: - M/s. Sourya Sundar Das

(Sr.Advocate)
Mrs. Kumarika Behera
Sumun Modi
Pranab Kumar Ghose
Shivani S. Pradhan
Sarthak Pradhan
Monalisa Patnaik

For Respondent: - M/s. Surya Prasad Misra

(Sr. Advocate)
Soumya Mishra
B. Mohanty
S.K. Sahoo
Deepanwita Priyanka

MATA No.126 of 2014

Mrs.Reeta Dhara ........ Appellant

-Versus-

Ashutosh Sarangi ......... Respondent

For Appellant: - M/s. Surya Prasad Misra

(Sr. Advocate)
Soumya Mishra
B. Mohanty
S.K. Sahoo
 Deepanwita Priyanka

For Respondent: - M/s. Sourya Sundar Das

(Sr.Advocate)
Mrs. Kumarika Behera
Sumun Modi
Pranab Kumar Ghose
Shivani S. Pradhan
Sarthak Pradhan
Monalisa Patnaik

---------------------

P R E S E N T:-

THE HONOURABLE MR. JUSTICE VINOD PRASAD

AND
THE HONOURABLE MR. JUSTICE S.K. SAHOO

........................................................................................................................ Date of hearing-

16.07.2015 : Date of Judgment- 18.08.2015
.......................................................................................................................

S.K.Sahoo, J. "Aja Yudhhe Muni Sraddhe

Prabhate Megha Dumbare
Dampatya Kalahechaiva
Bahvarambhe Laghu Kriya"
-Chanakya
(Fighting of the goats, shraddha ceremony

performed by the sages, rumbling of the clouds early in the morning and quarrel between
husband and wife; all begin in a grand style but the outcome is insignificant.) This case
depicts the tormentous life of a couple who started quarreling with each other on day two of
their marriage with disagreement which gradually led to confrontation. They did not function
like the two wings of the same bird for which their marital life never got off the ground. They
fought with each other tooth and nail forgetting all the promises taken around sacred fire.
There remained no love and respect to each other and finally, it is the collapse of their nuptial
tie.

2. Asutosh Sarangi (hereafter 'the petitioner-husband') filed a petition under section 13(1)(i-
a)(iii) of the Hindu Marriage Act, 1955 on 16.9.2009 in the Court of the learned Civil Judge
(Senior Division), Bhubaneswar which was registered as MAT. Case No.1106 of 2009
against Mrs. Reeta Dhara (hereafter 'the respondent-wife') with a prayer for a decree of
dissolution of marriage solemnized between the parties on 8th May 2008 and in the
alternative for a decree of judicial separation. The case was transferred to the learned Judge,
Family Court, Bhubaneswar and accordingly it was re-registered as Civil Proceeding No.41
of 2011.

The learned trial Judge vide impugned judgment and order dated 25.9.2014 allowed the
petition filed by the petitioner-husband and passed a decree of divorce declaring the marriage
between the petitioner-husband and the respondent- wife dissolved with effect from the date
of decree and further directing the petitioner-husband to pay permanent alimony of
Rs.30,00,000/- (thirty lakhs) to the respondent-wife.
3. The petitioner-husband filed appeal under section 19 of the Family Courts Act, 1984 vide
MATA No.122 of 2014 challenging the quantum of permanent alimony as fixed by the
learned trial Judge in the impugned judgment and order dated 25.9.2014 with a prayer to
reduce the amount.

The respondent-wife on the other hand filed appeal under section 19 of the Family Courts
Act, 1984 vide MATA No.126 of 2014 to set aside the impugned judgment and order dated
25.9.2014 passed by the learned trial Judge.

Since both the appeals arise out of a common judgment and there is commonality of parties,
the dispute as well as question of law in both these cases, with the consent of the parties, the
appeals were heard analogously and the same are being disposed of by this common
judgment.

4. In a nutshell, it is the case of the petitioner-husband that he is a defence personnel working

as Executive Officer in Indian Naval Ship at Mumbai and his marriage with the respondent-
wife was solemnized on 8th May 2008 at Hotel Presidency, Bhubaneswar as per Hindu rites
and custom. On the very next day of the marriage i.e. on 9th May 2008, the respondent-wife
forced the petitioner-husband twice to consummate the marriage which was not possible as
the parents and relations were present in the house. Since the petitioner- husband refrained
himself from the persuasions of the respondent-wife, she became furious and behaved with
her husband in a very discourteous manner. When the petitioner- husband asked the
respondent-wife about the reasons for her abnormal behaviour, she replied that she wanted a
child immediately so that she would establish her legal rights. The respondent-wife insulted
the petitioner-husband before others saying that the petitioner-husband was an impotent
person and require medical checkup which caused humiliation to the petitioner-husband.
Though on subsequent occasions, there was sexual intercourse between the parties but the
respondent-wife was not satisfied and she always wanted vigorous sex which was avoided by
the petitioner-husband. The abnormal, violent and aggressive behaviour of the respondent-
wife came to the knowledge of the neighbours. Within a few days of marriage, the
respondent-wife threatened to commit suicide which caused panic to the petitioner-husband
and he became perturbed. The respondent-wife brought false allegations against her mother-
in- law that she was always watching T.V. and not helping her in the household work.

It is the further case of the petitioner-husband that towards the end of May 2008, he went to
Vishakhapatnam to rejoin his service after marriage. In his absence, the respondent-wife
started torturing her mother-in-law and went to her father's place. When her mother-in-law
wanted to accompany her, she refused her mother-in-law's entry to her parents' house which
caused mental shock to the petitioner- husband. During the month of June 2008, the
respondent-wife brought false allegations of illicit relationship and extra-marital affairs
against the petitioner-husband while the later was staying at Vizag. The respondent-wife also
disturbed the petitioner- husband over telephone during his working hours. Even though there
was no allotment of quarters, the respondent-wife, her mother and brother were staying in a
Defence Guest House. When the petitioner-husband questioned about such conduct, he was
threatened by the entire family of the respondent-wife that they had link with Maoists and
they were capable of causing grievous harm to his entire family. The petitioner-husband
became afraid with such unusual behaviour of the respondent- wife as his mother was staying
alone at Bhubaneswar. The petitioner-husband got a quarter and the respondent-wife stayed
with him but made his life miserable. When the petitioner- husband came back from sailing
on 30th September 2008, he came to know that the respondent-wife was attending various
functions without his knowledge and approval and when he dissuaded her not to repeat such
activities, she behaved in a very arrogant manner.

It is the further case of the petitioner-husband that the respondent-wife was always
threatening him that she would get his promotion stopped. She also brought frivolous and
scandalous allegations against the petitioner-husband and even tried to spoil his service
career. The respondent-wife behaved like a schizophrenic patient and having an incurable and
unsound mind. On 12/13th May 2009 when the sister of the petitioner-husband had come to
Kochi to visit him for the first time, the respondent-wife assaulted her and tried to drive her
away claiming that the house stands in her name. She was allowing unwanted and unknown
strangers to the house in the absence of the petitioner-husband. In June 2009, the petitioner-
husband was transferred to Mumbai. Prior to his transfer, the Commanding Officer of the
petitioner-husband told him that the respondent-wife and her mother complained before him
to stop his further promotion. The respondent-wife was an ill-tempered and quarrelsome
woman and there was no sexual relationship between the couple since May 2008. She was
getting pleasure in humiliating her husband in public.

According to the petitioner-husband, it was no longer possible to lead a conjugal life with the
respondent-wife and as the marriage between the parties had been irretrievably broken down
and reconciliation was not possible, prayer was made for dissolution of marital tie.

5. The respondent-wife appeared in the case and filed her written statement along with
counter claim for restitution of conjugal rights, maintenance and other consequential reliefs.
The respondent-wife denied all the averments taken by the petitioner-husband in the petition
for divorce.

In a nutshell, it is stated in her written statement that there was demand of dowry by the
petitioner-husband and his family members before marriage which gradually increased after
the marriage. On the next day of marriage, her mother-in-law criticized the dowry items
which were brought by her. The petitioner-husband demanded a car which was assured to be
given on the Astamangala day when the couple would visit the house of the respondent-wife
as per tradition. When a Car was purchased in the name of the respondent-wife and it was
hypothecated to HDFC Bank, the father of petitioner-husband contacted the parents of the
respondent-wife over telephone and asked them to pay the car loan immediately and cancel
the hypothecation and transfer the car in the name of the petitioner- husband.

It is the further case of the respondent-wife that the petitioner-husband avoided keeping
physical relationship with her and even though she was doing all the household works
without any support of her in-laws but she was not provided with hygienic food and diet.
Sometimes her mother-in-law was also assaulting her. The mother-in-law of the respondent-
wife was suffering from tuberculosis but she used to give her left out food to the respondent-
wife. The respondent-wife was criticized as a rural girl having no proper qualification by her
in-laws' family members. She further stated in her written statement that the petitioner-
husband is a self-centered and egoistic person and an instinctive liar who always tried his best
to irritate the respondent-wife and blackmail her with a motive to extort further dowry. She
also stated to have heard about the adulterous relationship of the petitioner-husband. She
stated that she was threatened by her husband that if she would leave him, he would marry on
the next day. She raised the counter claim for a direction to the petitioner-husband not to
torture her or indifferently treat her to extort dowry and to lead a normal life with her and to
maintain her according to his status.
6. The learned trial Judge framed the following issues:-

(i) Whether the respondent-wife treated the petitioner-

husband with cruelty?

(ii) Whether the petitioner-husband is entitled to the relief of dissolution of marriage as sought for in
the plaint?

(iii) Whether the respondent-wife is entitled to restitution of her conjugal rights with the petitioner-

husband?

(iv) Whether the respondent-wife is entitled to get permanent alimony or monthly maintenance
from the petitioner-husband and what would be the quantum thereof?

7. In order to prove his case, the petitioner-husband examined himself as P.W.1, his mother
Pratima Sarangi as P.W.2, his maternal uncle Ashok Kumar Dash as P.W.3, his sister Alpana
Sarangi as P.W.4 and one Dr. Lobsang Dondup as P.W.5.

The petitioner-husband also relied upon some documents to substantiate his case. Ext.1 is a
letter dated 16.5.2009 issued by the petitioner-husband to the Administrative Officer
requesting to restrict the access of unknown and unwanted strangers to his residence, Ext.2 is
a letter dated 16.5.2009 of the petitioner-husband to the authority to disconnect unauthorized
air conditioner in his quarters, Ext.3 is the letter issued by the Commander, Command
Quartering Officer to the Director INTEG regarding illegal retention of Govt. accomodation,
Ext.4 is the letter issued by Commander, Command Quartering Officer to the petitioner-
husband regarding illegal occupation of the house , Ext.5 is the letter of penalty imposed for
illegal retention of the quarter, Ext.6 is the letter dated 28.7.2011 to the petitioner-husband for
eviction of the quarter, Ext.7 is the letter dated 2.9.2011 issued by the Captain, Command
(Admn. & Personnel) Officer regarding taking over of accommodation occupied by the
spouse of the petitioner- husband, Ext.8 is the show cause notice issued by the Commander,
Joint Director for recovery of maintenance allowance, Ext.9 is the letter issued to respondent-
wife by the Commanding Officer to furnish bank particulars, Ext.10 is the letter dated
11.6.2010 issued by the Commander, Director (AOL) to the Secretary, IMSC for approval for
delayed payment of IMSC bills, Ext.11 is the letter dated 11.6.2010 issued by the
Commander, Director (AOL) to the Mess Secretary Western Naval Command Officers' Mess
for approval for delayed payment of mess bills by the petitioner, Ext.12 is the letter dated
4.2.2010 of the respondent-wife for recovery of maintenance of Rs.25,000/-, Ext.13 is the
office copy of the letter dated 16.2.2010 issued by respondent-wife to the Director, INTEG
requesting to retain the transit house, Ext.14 to 14/e are the applications of the respondent-
wife under RTI Act to obtain the monthly salary and other allowance of the petitioner-
husband, Ext.15 is the application of the petitioner-husband dated 23.1.2013 to the
Commanding Officer for supply of documents and Ext.16 is the forwarding of documents by
the Captain, Commander Officer M. Gobardhan Raju.

8. The respondent-wife examined herself as R.W.1 and she also proved certain documents in
support of her case. Ext.A is the registration certificate of the car bearing Registration
No.OR-02-AT-0440, Ext.B is the money receipt of godrej almirah, Ext.C is the money
receipt of A.C., Ext.D is the transport packing voucher from Kochi to Mumbai and Ext.E is
the letter of the respondent-wife dated 24.1.2011 to the Director, INTEG showing her interest
to reside together with the petitioner-husband.

9. The learned trial Judge, Family Court vide impugned judgment and order dated 25.9.2014
while answering issue nos.

(i), (ii) and (iii) held that from the evidences of P.Ws.1 to 5, it is crystal clear that the
respondent-wife treated the petitioner- husband with cruelty and for that reason, the
petitioner-husband suffered from mental agony. The respondent-wife withdrew herself from
the society of the petitioner-husband without any justifiable cause. The petitioner-husband
tried his best to reconcile the matter but the respondent-wife did not cooperate. The learned
trial Judge further held that making scandalous and frivolous allegations, retention of quarters
unauthorizedly by the respondent-wife, not to be respectful to the family members of the
petitioner-husband and making complaints before the superior officers of the petitioner-
husband, unfounded allegations of extra-marital relationhip of the petitioner-husband with
some girls are the circumstances attracting mental cruelty and such cruelty being weighty and
grave, it is impossible for the petitioner-husband to live with the respondent-wife. The
learned trial Judge further held that the marriage was dead both emotionally and practically.
Once serious allegation has been made against the petitioner-husband, it becomes clear that
there is no chance of parties coming together or living together especially when the
respondent-wife put forward an allegation against the petitioner-husband that he was having
undesirable association with the girls and accordingly the learned trial Judge opined it to be a
fit case to snap out the marriage ties between the parties lest it would lead to torturous
litigation and continued agony resulting mental cruelty.

So far as issue no. (iv) is concerned, the learned trial Judge taking into account the avocation
of the petitioner- husband and the life expectancy of a person, fixed the permanent alimony at
Rs.30,00,000/- (thirty lakhs).

10. During pendency of the appeal before this Court, we had a long deliberation with the
petitioner-husband and the respondent-wife on 16.2.2015 in chambers and we impressed
upon both the parties to live together for two days and posted the matter on 19.2.2015 and
directed both the spouses to appear in person before us along with their counsels on that day.
On 19.2.2015 we found with a sense of anguish that all our efforts to reunite the spouses
yielded no fruitful result and accordingly we closed the chapter of making efforts of reuniting
the spouses and directed for hearing the matter on merits.

11. Mr. Surya Prasad Misra, Senior Advocate, the learned counsel for the respondent-wife
being ably assisted by Miss Deepanwita Priyanka assailing the impugned judgment and
castigating the findings recorded by the learned trial Judge submitted that the approach of the
learned trial Judge to decide the issues involved in the case is one-sided and the case of the
wife has not at all been considered. It is urged that there is insufficient evidence to
substantiate the plea of cruelty taken by the petitioner-husband and the learned trial Judge has
given undue weight upon the depositions of highly interested witnesses of the petitioner-
husband who has failed to produce any independent witnesses to corroborate the allegations
of mental cruelty against the respondent-wife. It is further contended that the petitioner-
husband has miserably failed to substantiate his allegation that the respondent-wife was
suffering from schizophrenia and that her behaviour was usually aggressive, erratic and
abnormal either by any oral or documentary evidence. Mr. Misra further urged that
irretrievable breakdown of the marriage is not provided by the legislature for granting a
decree of divorce and the findings that the marriage was emotionally and practically dead is
not borne out of record as the respondent-wife was consistently desiring to rejoin her husband
and to live with him normally in a matrimonial relationship once again. While concluding his
argument, it was emphasized that no Indian girl want to die as a widow and the respondent-
wife should be treated with dignity and should not be deprived of leading a physically and
emotionally satisfying conjugal life of comfort with her husband.

12. Rebutting the contentions raised by the respondent- wife, learned counsel for the
petitioner-husband Mr. Sourya Sundar Das, learned Senior Advocate submitted that there is
no illegality or infirmity in the judgment and order of the learned trial Judge in passing a
decree of divorce and dissolving the marriage between the petitioner-husband and
respondent-wife particularly when it is clearly borne out of the record that the respondent-
wife treated the petitioner-husband with cruelty for which the petitioner-husband suffered
from mental agony and particularly when the respondent-wife had withdrawn herself from
the society of petitioner-husband without justifiable cause. He further contended, while
challenging the quantum of permanent alimony, that, during pendency of the proceeding
before the learned trial Judge, the respondent-wife had received a sum of Rs.7,34,000/-
towards the interim maintenance paid up to July 2014 which has not been considered by the
learned trial Judge while quantifying the permanent alimony at Rs.30 lakhs. The learned
counsel further submitted that though a demand draft of Rs.14,000/- in the name of
respondent-wife was prepared and that was offered to her but the same was not accepted. It is
further submitted that the petitioner-husband is at present serving as Executive Officer in
Indian Navy and his basic salary is Rs. 41,630/- and his total gross salary including D.A. and
other allowances comes to Rs. 97,860/- but his home take salary after deduction is Rs.
63,072/-. The learned counsel further urged that the failure of the trial Judge to take note of
the paying capacity of the petitioner-husband while awarding such a huge amount towards
permanent alimony reflects the whimsical and injudicious determination which is liable to be
interfered with. The learned counsel further urged that the respondent-wife has huge parental
properties and in view of the provisions of the Hindu Succession Act, she is likely to inherit
her share in the property and she is also highly educated and completed MCA from G. M.
College, Sambalpur and therefore she has capacity to earn. The learned counsel while
concluding his argument submitted that the liability and responsibility of the petitioner-
husband has not been taken note of and by directing to pay such a huge amount, it would
bankrupt the petitioner.

13. Before adverting to analyse the argument and counter argument raised by the respective
parties, certain undisputed facts need to be taken note of. Such facts are as follows:-

(i) The marriage between the parties was solemnized on 8.5.2008 at Bhubaneswar in accordance
with Hindu rites and customs and no children were born out of the wedlock.

(ii) The petitioner-husband is serving as an Executive Officer in Indian Navy.

(iii) The petitioner-husband and the respondent- wife were living separately since mid year 2009.

14. Assessing the contentions raised by the learned counsel for the respondent-wife that the
learned trial Judge approached the issues in an one-sided manner and the case of the
respondent-wife had not been considered at all, we scrutinized the judgment with eagle eyes
and found that in paragraph-4 of the judgment, the learned trial judge has taken note of the
pleadings of the respondent in her written statement as well as her counter claim, in
paragraph-6 of the judgment, the learned trial Judge has taken note of the examination of the
respondent- wife as a witness from her side as well as the documents proved on her behalf. In
paragraph-7 of the judgment the learned trial Judge has held as follows:-

".........The respondent in her evidence as well as in her written statement alleged that the petitioner
had extra-marital relations with some girls, which were unfounded allegations as she could not say
the name of the girls with whom the petitioner had kept such relation......"

x x x x x ".........There is no shred of evidence from the side of the respondent what were the kind of
additional demand and the amount, if any....."

In paragraph-12 of the judgment, the learned trial Judge has held as follows:-

".........On the other hand, the sole testimony of the respondent is nothing but denial of the aforesaid
facts let into in evidence by the petitioner and his witnesses. The respondent even failed to examine
her mother who was all along with her at the service place of the petitioner to support her
testimony."

In paragraph-13 of the judgment, the learned trial Judge has held as follows:-

".........Similarly, the respondent did not talk with the petitioner.....Additionally, once serious
allegation has been made against the petitioner, it becomes clear that there is no chance of parties
coming together or living together especially, when the wife put forward an allegation against
husband that he was having undesirable association with girls......"

Perusing the judgment and analysis of the evidence by the learned trial Judge, we are not
inclined to accept the contentions raised by the learned counsel for the respondent- wife that
the approach of the learned trial Judge was one-sided and the wife's case was not considered
at all rather it is apparent that the cases of both the sides have been given due weight and
there has been thorough analysis of the evidence on record.

15. Coming to the further contentions raised by the learned counsel for the respondent-wife
that there is insufficient evidence to substantiate the plea of cruelty taken by the petitioner-
husband, we found that not only the petitioner- husband but also the witnesses examined on
his behalf and the documentary evidence proved from his side clearly makes out a case of
cruelty.

The evidence of the petitioner- husband as P.W.1 gets corroboration from the other witnesses
examined on his behalf. Nothing substantial has been elicited in the cross-examination to
discredit their versions. The petitioner-husband has successfully established as to how on
different occasions he was subjected to cruelty by the respondent-wife and how his attempt to
change her attitude yielded no fruitful result. We are of the view that the conduct of the
respondent-wife making baseless but scandalous allegations against the petitioner-husband
that he had extra- marital relationship with some girls, not showing due respect to the in-laws,
retaining the Govt. allotted quarters unauthorizedly and making false complaints against the
petitioner-husband before his superior officers comes within the circumscription of "mental
cruelty". When serious allegations against the character of the petitioner-husband was made
and the respondent-wife utterly failed to substantiate the same and her conduct from time to
time became very painful to the petitioner-husband, the learned trial Judge was right in
holding that the conduct of the respondent-wife amounted to cruelty which was 'grave and
weighty' for the petitioner-husband to live in the company of the respondent-wife. Looking at
the allegations and counter allegations, assessing the evidence available on record carefully
and minutely and also taking note of the conduct of the parties during pendency of the
proceeding, we are of the view that the learned trial Judge was justified in holding that not
only the respondent-wife treated the petitioner with cruelty but also withdrew herself from
the society of the petitioner-husband without justifiable cause. We are also of the view that
the learned trial Judge has rightly held that the marriage between the parties is dead, both
emotionally and practically and it is a fit case to snap out the marriage between the parties
and allowing them to live together would be injurious and harmful to both of them.

The contentions raised by the learned counsel for the respondent-wife regarding examination
of only interested witnesses on behalf of the petitioner-husband, we are of the view that in a
case of matrimonial dispute, the family members of the parties are the best witnesses because
they are acquainted with their day to day twigs and wrangles. Apart from examining his
family members, the petitioner-husband has also examined Dr. Lobsang Dondup as P.W.5
who was posted in July 2008 on INS, Krishna at Naval Base, Kochi, where the petitioner-
husband was working, in the same unit and he has also stated about the misconduct of the
respondent-wife as well as her cruel behaviour to the petitioner-husband. The contentions
were raised by the learned counsel for the respondent-wife that there is absence of any
documentary evidence to show that she was a schizophrenia patient and therefore the
allegations should be disbelieved. The petitioner- husband being examined as P.W.1 has
stated that he had consulted a psychiatrist at Kochi due to the abnormal behaviour of the
respondent-wife and the doctor suggested that there are three possibilities likely to be
affecting her i.e. (i) personality disorder (ii) mental disorder (iii) plain criminal intent to
defame and discredit him in his circle. He has further stated that he attempted to take the
respondent- wife to the doctor but she refused and instead she became more violent. Thus
when the respondent-wife did not visit the doctor in spite of the persuasion of the petitioner-
husband, there cannot be any documentary evidence regarding his mental ailment. After
going through the evidence adduced by the parties, it appears that the respondent-wife
frequently insulted and harassed the petitioner- husband on different occasions, behaved with
him in a furious and aggressive manner, brought false allegations of illicit relationship and
extra marital affairs against her husband, showed disrespect to the in-laws' family members,
brought complaints against her husband before the Commander-in-Chief and Naval Wives
Welfare Association jeopardizing the prestige and dignity of her husband. Such persistent
conduct of the respondent-wife in defaming, demoralizing and disheartening the petitioner-
husband, according to our humble view, definitely attracts mental cruelty which has also been
rightly held so by the learned trial Judge.

16. Section 13(1)(i-a) of the 1955 Act states that any marriage solemnized can be dissolved
by a decree of divorce on a petition presented either by the husband or the wife on the ground
that the other party after solemnization of marriage had treated the petitioner with cruelty.

The expression 'cruelty' has not been defined under Section 13 of the 1955 Act, though the
expression 'desertion' has been defined as desertion of the petitioner by the other party to the
marriage without reasonable cause and without the consent or against the wish of such party
which also includes the willful neglect of the petitioner by the other party to the marriage.

So far as 'cruelty' as indicated under Section 13(1)(i-a) of the 1955 Act is concerned, law is
well settled that the cruelty may be physical or mental or both. The expression 'cruelty' has
got an inseparable nexus with human conduct or human behaviour. It is always dependent
upon the social strata or the milieu to which the parties belong, their ways of life,
relationship, temperaments and emotions that have been conditioned by their social status.
The burden of proof lies on the aggrieved party to make out a case of cruelty. The act of
cruelty must be such which would cause reasonable apprehension in the mind of the
aggrieved party that it would be harmful or injurious on his part to live with the other party.
A particular conduct which may amount to cruelty in one case may not necessarily amount to
cruelty in the other case due to change of various factors and different set of circumstances.

In case of Sujata Uday Patil -Vs.- Uday Madhukar Patil reported in (2006) 13 Supreme Court
Cases 272, it is held as follows:-

"7. The word "cruelty" and the kind or degree of "cruelty" necessary which may amount to a
matrimonial offence has not been defined in the Act. What is cruel treatment is to a large extent a
question of fact or a mixed question of law and fact and no dogmatic answer can be given to the
variety of problems that arise before the Court in these kind of cases. The law has no standard by
which to measure the nature and degree of cruel treatment that may satisfy the test. It may consist
of a display of temperament, emotion or pervasion whereby one gives vent to his or her feelings,
without intending to injure the other. It need not consist of direct action against the other but may
be misconduct indirectly affecting the other spouse even though it is not aimed at that spouse. It is
necessary to weigh all the incidents and quarrels between the parties keeping in view the impact of
the personality and conduct of one spouse upon the mind of the other. Cruelty may be inferred from
the facts and matrimonial relations of the parties and interaction in their daily life disclosed by the
evidence and inference on the said point can only be drawn after all the facts have been taken into
consideration. Where there is proof of a deliberate course of conduct on the part of one, intended
to hurt and humiliate the other spouse, and such a conduct is persisted, cruelty can easily be
inferred. Neither actual nor presumed intention to hurt the other spouse is a necessary element in
cruelty."

In the case of Naveen Kohli -v- Neelu Kohli reported in AIR 2006 SC 1675, it is held as
follows:-

"66. To constitute cruelty, the conduct complained of should be "grave and weighty so as to come to
the conclusion that the petitioner spouse cannot be reasonably expected to live with the other
spouse. It must be something more serious than "ordinary wear and tear of married life . The
conduct taking into consideration the circumstances and background has to be examined to reach
the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law.
Conduct has to be considered, as noted above, in the background of several factors such as social
status of parties, their education, physical and mental conditions, customs and traditions. It is
difficult to lay down a precise definition or to give exhaustive description of the circumstances,
which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that
the relationship between the parties had deteriorated to such extent due to the conduct of the
other spouse that it would be impossible for them to live together without mental agony, torture or
distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely
essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental
agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental
cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to
constant disturbance of mental peace of the other party.

67. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that
the problems before it are those of human beings and the psychological changes in a spouse's
conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant
or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called
cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be
seen whether the conduct was such that no reasonable person would tolerate it. It has to be
considered whether the complainant should be called upon to endure as a part of normal human
life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to
cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life,
may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can
be subtle or brutal. It may be words, gestures or by mere silence, violent or non- violent."

In the case of Samar Ghosh -V- Jaya Ghosh reported in (2007) 4 Supreme Court Cases 511, it
is held as follows:-

"99. Human mind is extremely complex and human behaviour is equally complicated. Similarly
human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one
definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case.

The concept of cruelty differs from person to person depending upon his upbringing, level of
sensitivity, educational, family and cultural background, financial position, social status,
customs, traditions, religious beliefs, human values and their value system.

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 strait-jacket 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 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
or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the
normal standard of conjugal kindness causing injury to mental health or deriving sadistic
pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which
causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of
divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens
in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period
of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy
period, where the relationship has deteriorated to an extent that because of the acts and
behaviour of a spouse, the wronged party finds it extremely difficult to live with the other
party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of 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." In the case of Gurbux Singh -
Vs.- Harminder Kaur reported in AIR 2011 SC 114, it is held as follows:- "11. 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.

12. 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....."

In the case of K. Srinivas Rao -V- D.A. Deepa reported in AIR 2013 SC 2176, it is held as
follows:-

"14. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few
more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives
in the pleadings, filing of complaints or issuing notices or news items which may have adverse
impact on the business prospect or the job of the spouse and filing repeated false complaints and
cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty
to the other spouse."

In the case of Malathi Ravi -V- B.V. Ravi reported in AIR 2014 SC 2881, it is held as
follows:-

"37.......Mental cruelty and its effect cannot be stated with arithmetical exactitude. It varies from
individual to individual, from society to society and also depends on the status of the persons. What
would be a mental cruelty in the life of two individuals belonging to particular strata of the society
may not amount to mental cruelty in respect of another couple belonging to a different stratum of
society. The agonized feeling or for that matter a sense of disappointment can take place by certain
acts causing a grievous dent at the mental level. The inference has to be drawn from the attending
circumstances......"

In the case of Ramchander -V- Ananta reported in 2015 (2) SCALE 634, it is held as
follows:-

"10. The expression 'cruelty' has not been defined in the Hindu Marriage Act. 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 a
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. Cruelty can be physical or mental. In the present case, there
is no allegation of physical cruelty alleged by the Plaintiff. What is alleged is mental cruelty and it is
necessarily a matter of inference to be drawn from the facts and circumstances of the case. It is
settled law that the instances of cruelty are not to be taken in isolation but to take the cumulative
effect of the facts and circumstances emerging from the evidence on record and then draw a fair
inference whether the Plaintiff has been subjected to mental cruelty due to conduct of the other
spouse.

17. After going through the pleadings as well as evidence adduced before the learned Family
Judge, we found that the Family Judge has rightly approached the case from an accurate
prudent angle and has come to an irrefutable finding that the respondent-wife treated the
petitioner husband with cruelty for which the petitioner husband suffered from mental agony
and that the respondent-wife withdrew herself from the society of the petitioner husband
without any justifiable cause.

We are also of the view that from the materials available on records, the learned trial Judge
has rightly come to the conclusion that making scandalous and frivolous allegations, retention
of quarters unauthorizedly by the respondent-wife, not to be respectful to the family members
of the petitioner- husband, making false complaints before the higher authority of the
petitioner, bringing unfounded allegations of extra-marital relation of the petitioner-husband
with some girls, all are the circumstances individually and collectively, attracting mental
cruelty and such cruelty are so weighty and grave that it was impossible for the petitioner-
husband to lead a normal marital life.

We are also of the view that the learned trial Judge was right in holding that the marriage
between the parties is dead both emotionally and practically and there is no chance of parties
coming together or living together and that it is a fit case to snap out the marriage between
the parties lest it would lead to tortuous litigation and continued agony to both.

In the ultimate analysis, we hold that the respondent- wife has treated the petitioner-husband
with cruelty and the marriage between the parties has been irretrievably broken down. We are
of the view that dissolution of marriage will relieve both sides of pain and anguish. In this
Court, the respondent- wife expressed that she wants to go back to the petitioner- husband,
but, that is not possible now. The petitioner-husband is not willing to take her back. Even if
we refuse to confirm the decree of divorce to the petitioner-husband, there are hardly any
chances of the respondent-wife leading a happy marital life with the petitioner-husband
because a lot of bitterness has been created by the conduct of the respondent-wife.
Therefore, in our humble view, the conclusions arrived at by the learned trial Judge clearly
rests on proper appreciation of facts and, hence, we concur with the same and hold that the
petitioner-husband has been rightly granted divorce by the learned Family Judge.

Accordingly, the decree of divorce between the petitioner-husband and the respondent-wife
and dissolution of their marriage as was granted by the learned Judge, Family Court,
Bhubaneswar in Civil Proceeding No.41 of 2011 is hereby affirmed.

18. Adverting our attention to the proper determination of the quantum of permanent
alimony, it is noted that section 25 of Hindu Marriage Act which deals with permanent
alimony and maintenance encompasses within the expression 'Court exercising jurisdiction
under the Act' 'at the time of passing any decree or at any time subsequent thereto' , to grant
alimony or maintenance in all kinds of decrees such as restitution of conjugal rights under
section 9, judicial separation under section 10, declaring marriage as null and void under
section 11, annulment of marriage as voidable under section 12 and divorce under section 13.

The learned trial Judge while determining the quantum of permanent alimony and fixing it at
Rs.30 lakhs has observed as follows:-

(i) The petitioner is a Naval Officer and respondent is a house wife who is aged about 33 years and
there is no more chance of her remarriage.

(ii) The life expectancy of a person is 60 years now-

a-days. The petitioner would go on paying Rs.14,000/- to the respondent towards monthly interim
maintenance amount till she attends the age of 60 years.

(iii) The petitioner being the husband has to support his wife until her death or remarriage or
otherwise disqualified under the statute.

We are of the considered view that there is no proper discussion by the learned trial Judge
while fixing such an exorbitant amount towards the permanent alimony. The age of the
petitioner-husband as well as remaining period of his service till the age of superannuation
has not been considered. It is also baffling as to how the learned trial Judge came to hold that
after snapping out the marital relationship between the parties, there would be no more
chance of remarriage of the respondent-wife. The learned trial Judge is also not correct in
observing the life expectancy of a person is 60 years now-a-days. Statistics released by the
Union Ministry of Health and Family welfare which was published in the Times of India
dated 29.1.2014 shows that life expectancy in India has gone up by five years, from 62.3
years for males and 63.9 years for females in 2001- 2005 to 67.3 years and 69.6 years
respectively in 2011-2015. Experts attribute this jump is due to better immunization and
nutrition, coupled with prevention and treatment of infectious diseases. Retirement age of
Navy staff from the post of Lt. Commander to Admiral ranges in between 52 years to 62
years. The petitioner-husband is at present aged about 39 years.

Scanning the pleadings and evidence adduced by both the parties before the learned trial
Judge, we find that neither the petitioner-husband nor the respondent-wife had brought any
material regarding the income of the petitioner from different sources and their liabilities etc.
There is no challenge to the quantum of permanent alimony by the respondent-wife as has
been fixed by the learned trial Judge. The grievance of the learned counsel for the petitioner-
husband that the respondent- wife has received Rs.7,34,000/- towards the interim
maintenance paid up to July 2014 which has not been considered by the learned trial Judge
while quantifying the permanent alimony at Rs.30 lakhs. It is further contended by the
learned counsel for the petitioner-husband that the petitioner-husband is at present serving as
Executive Officer in Indian Navy and his net salary is Rs. 63,072/- and keeping in view his
future service prospects so also the share which the respondent-wife would get from her
parental properties and her capacity to earn in future as she is a highly educated lady and the
liabilities and responsibilities of the petitioner-husband, the quantum of permanent alimony
should be determined.

19. Determination of quantum of permanent alimony to be paid so that the entitled spouse
lives a dignified life according to the standard of the other side is an upheaval and arduous
task. Length of marriage, time since the spouses are living separately, age of the parties,
relative income of both the spouses, financial prospects of the parties, health of the parties
and fault in breaking down of the marriage are some of the factors which can be kept in mind
while fixing the permanent alimony.

In case of U. Sree Vrs. U. Srinivas reported in AIR 2013 SC 415, the Hon'ble Supreme Court
held that it is duty of the Court to see that the wife lives with dignity and comfort and not in
penury. The living need not be luxurious but simultaneously she should not be left to live in
discomfort. The Court has to act with pragmatic sensibility to such an issue so that the wife
does not meet any kind of man-made misfortune.

In case of Vinny Parmvir Parmar Vrs.

Parmvir Parmar reported in AIR 2011 SC 2748, it is held as follows:-

"12. As per Section 25 of Hindu Marriage Act, while considering the claim for permanent alimony
and maintenance of either spouse, the respondent's own income and other property, and the
income and other property of the applicant are all relevant material in addition to the conduct of the
parties and other circumstances of the case. It is further seen that the Court considering such claim
has to consider all the above relevant materials and determine the amount which is to be just for
living standard. No fixed formula can be laid for fixing the amount of maintenance. It has to be in the
nature of things which depend on various facts and circumstances of each case. The Court has to
consider the status of the parties, their respective needs, the capacity of the husband to pay, having
regard to reasonable expenses for his own maintenance and others whom he is obliged to maintain
under the law and statute. The courts also have to take note of the fact that the amount of
maintenance fixed for the wife should be such as she can live in reasonable comfort considering her
status and mode of life she was used to live when she lived with her husband. At the same time, the
amount so fixed cannot be excessive or affect the living condition of the other party. These are all
the broad principles, courts have to be kept in mind while determining maintenance or permanent
alimony."

In case of Dipak Bash Vrs. Smitarani Bash which both of us disposed of on 16.03.2015 in
connection with MATA Nos. 14 & 26 of 2013, my esteemed brother Hon'ble Justice Vinod
Prasad has held as follows:-
"19. Alimony is no alms. It is entitlement of a wife for a decent living. All relevant factors affecting
fiscal expenses have to be considered. It is not the home take salary alone which is of significance.

Capacity to earn and actual earning has also to be reckoned with. Savings made by the
husband for securing his future life is also significant and has to be counted while
determining the amount of alimony. Wife does not require only two morsels a day but she
requires a reasonable amount to meet all her basic needs for a life which she would have
enjoyed had the marital tie would have continued. The amount of money received at the time
of marriage has also to be counted. While fixing alimony, all essential future expenses of all
kinds have to be considered. The contention that take home salary of the husband is the only
relevant criterion is illogical and faulty. Wife's capacity to earn after separation is also a
relevant factor to be kept in mind. Similarly the responsibility which the wife would have
borne had the relationship continued is also a relevant aspect to be kept in mind. Residence,
future possibility of maintaining oneself alone, clothing, fooding, biological requirements of a
female and many further aspects are other significant points which have to be kept in
mind.........While granting permanent alimony, no arithmetic formula can be adopted as there
cannot be mathematical exactitude. It shall depend upon the social status of the parties, their
respective social needs, the way of living of the spouse, the financial capacity of the husband
and other obligations. It is duty of the Court to see that the wife lives with dignity and
comfort and not in penury. The living need not be luxurious but simultaneously she should
not be left to live in discomfort. The Court has to act with pragmatic sensibility to such an
issue so that the wife does not meet any kind of man-made misfortune. The Courts also have
to take note of the fact that the amount of maintenance fixed for the wife should be such as
she can live in reasonable comfort considering her status and mode of life she was used to
live when she lived with her husband. At the same time, the amount so fixed cannot be
excessive or affect the living condition of the other party."

In case of Shamima Farooqui Vrs. Shahid Khan reported in (2015)5 Supreme Court Cases
705, it is held as follows:-

"14.............A woman, who is constrained to leave the marital home, should not be allowed to feel
that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she
is entitled to lead a life in the similar manner as she would have lived in the house of her husband.
And that is where the status and strata of the husband comes into play and that is where the legal
obligation of the husband becomes a prominent one."

20. There is no oral and documentary evidence before us as to what the parental properties of
the respondent-wife are and what would be her share from such properties. We are of the
view that the permanent alimony should not be determined keeping in anticipation what the
respondent-wife would get in future from her parental properties particularly when we have
no clear data about such properties. No doubt, the respondent-wife is a highly educated lady
and she has a capacity to earn in future but we cannot decide issue of alimony on preemptive
suppositions. There is also no clear material before us regarding the liabilities and
responsibilities of the respondent-wife. However, considering the economic status of the
parties, their respective needs, the present salary of the petitioner-husband and his future
service prospect, his capacity to pay and taking note of the fact that the amount of permanent
alimony fixed for the wife should be such that she can live with dignity and in reasonable
comfort and simultaneously it should not be excessive and affect the living condition of the
husband and considering the young age of the wife and that she has to meet any kind of man-
made misfortune in future, we are of the view that in the facts and circumstances of the case,
a direction to the petitioner-husband to pay Rs. 25 lakhs (Rupees twenty lakhs only) as one
time alimony to the respondent-wife can be said to be quite reasonable in the ends of justice.

21. Accordingly, we affirm the decree of divorce granted by the Judge, Family Court,
Bhubaneswar in Civil Proceeding No. 41 of 2011 dissolving the marriage between the parties
namely petitioner-husband Ashutosh Sarangi and respondent-wife Mrs. Reeta Dhara but
reduce the quantum of permanent alimony from Rs. 30,00,000/- (Rupees thirty lakhs only) to
Rs. 25,00,000/- (Rupees twenty five lakhs only). The petitioner- husband Ashutosh Sarangi
shall pay to the respondent-wife Mrs. Reeta Dhara Rs.25,00,000/- (Rupees twenty five lakhs
only) as a lump sum amount of permanent alimony in addition to what he has already paid in
different proceedings to the respondent- wife, within a period of six months from the date of
this judgment failing which the respondent-wife shall be at liberty to realize the same from
the petitioner-husband through due process of law. The amount that has already been paid to
the respondent-wife towards interim maintenance or otherwise is to be ignored as the same
had been paid by virtue of the interim orders passed by the Courts and it is not expected that
the respondent-wife has sustained herself without spending the said money.

22. Before parting, we would like to say that a happy marriage can survive between two good
forgivers. The sooner they understand each other, the more they would come closer to one
another. Sometime it is better to be a 'blind wife' and a 'deaf husband'. Domestic quarrel, if
any, should never be obtruded in the public. The couple should not forget that they have
taken a pledge before the sacred fire to stand by each other till the last breath and accordingly
they have a solemn responsibility to care for each other.

We would like to place on record that senior counsel Mr. Surya Prasad Misra, Miss
Deepanwita Priyanka and senior counsel Mr. Sourya Sundar Das appearing for the parties
have rendered valuable assistance to us.

23. With the aforesaid observation and direction, MATA No.122 of 2014 filed by the
petitioner-husband is allowed to the extent as indicated above and MATA No.126 of 2014
filed by the respondent-wife stands dismissed. No order as to costs.

...............................

S.K. Sahoo, J.

Vinod Prasad, J. I agree.

................................

Vinod Prasad, J.

Orissa High Court, Cuttack The 18t

Orissa High Court
Rama Kumari Meher vs Meenaketan Meher on 8 July, 1975
Equivalent citations: AIR 1976 Ori 32
Author: Misra
Bench: G Misra, P Mohanti

JUDGMENT Misra, C.J.

1. Ram Kumari (appellant) is the married wife of Menaketan Meher (respondent). She filed
O. S. No. 58 of 1970 in the Court of the Subordinate Judge, Aska, for a decree of divorce
under Section 13 or the Hindu Marriage Act, 1955 (hereinafter to be referred to as the Act).
The suit having been dismissed she has filed the appeal. On the memorandum of appeal
Court-tee of Rs. 6/- has been affixed, The Stamp Reporter is of the opinion that Court-fee of
Rs. 22/8/- is payable. He relied on an unreported decision of G. C. Das J., the then Taxing
Judge, in First Appeal No. 43 of 1963, decided on 14-12-1961 (Orissa) (Sripada Samba Siva
Rao v. Sripada Subhalaxmi). He referred the matter to the Taxing officer (Registrar). The
Taxing officer noticed apparent conflict in the aforesaid decision and another decision of
Barman J. in 33 Cut LT 13 = (AIR 1967 Orissa 41) (Mst. Puinbasi Majhiani v. Shiba Bhue).
He referred the Matter to the Taxing Judge for an authoritative pronouncement. The Taxing
Judge S. K. Ray J. has referred the matter to the Division Bench. This is how the case has
come before us.

2. Mr. S. C. Mohapatra for the appellant contends that Article 11 of Schedule II of the Court-
fees Act, 1870, as amended in Orissa, applies to this case while Mr. R. K. Mohapatra, the
learned Government Advocate, contends that Article 17A applies. To appreciate the rival
contentions Articles 11 and 17A, so far as relevant, may be extracted:

Number Proper Fee

11. Memorandum of appeal when the appeal is from an order inclusive of an order
determining any question under Sec- 47 or Section 144 of the Code of Civil Pro- -cedure, V
of 1908 and is presented.

(a) xx xx

(b) to a High Court Four rupees xx xx By Orissa amendment fee has been enhanced to 1
1/2times. So it would be six rupees. Thus if Article 11 applies, six rupees court-fee affixed to
the memorandum of appeal is correct.

Number Proper Fee 17A.

Plaint or memorandum of appeal in every suit where it is not possible to estimate at a money-
value the subject-matter in dispute and which is not other-wise provided for by this Act.

When the plaint is presented to, or the memorandum of appeal is against the decree of

(a) xx xx
(b) any other Revenue Court, or any Court of a District Judge, Subordinate Judge, or Munsif.

Fifteen rupees if the value for purposes of jurisdiction does not exceed four thousand rupees,
one hundred rupees if such value exceeds Four thousand rupees By Orissa amendment the fee
has been enhanced to 11/2 times. The valuation in this case is less than four thousand rupees.
If this Article applies then the Court-fee payable on the memorandum of appeal would be Rs.
22/8/-.

3. The only question, for consideration is as to which, of these Articles would apply to this
case. Article 17A is a residuary Article and can be invoked only if Article 11 is not
applicable. We would accordingly proceed to analyse if Article 11 applies.

4. Article 11 on its clear language would apply to appeals from order only and not to appeals
from decrees. By an inclusive definition orders passed under Section 47 and Section 144 C.
P. C. have been included in this Article though such orders constitute decrees.

5. Section 21 of the Act lays down that subject to the other provisions contained in this Act
and to such rules as the High Court may make in this behalf, all proceedings under this Act
shall be regulated, as far as may be, by Civil P. C. 1908. Neither this Act nor the Hindu
Marriage and Divorce Rules, 1956 prescribed under the Act by the High Court define
decrees. In construing what is a decree, reference must be made to its definition in Section
2(2), of the Civil P. C. "Decree" under Section 2(2), so far as relevant, means the formal
expression of an adjudication Which so far as regards the Court expressing it, conclusively
determines the rights of the parties with regard to all or any of the matters in controversy in
the suit and may be either preliminary or final. It shall be deemed to include the rejection of a
plaint and the determination of any question within Section 47 or Section 144. Thus, though
orders under Section 47 and Section 144 C, P. C. are not decrees, by the inclusive definition
in Section 2(2) C. P. C. such orders are decrees.

If orders under Section 47 or Section 144 C P. C. would not have been included in Article 11,
then court-fee would have been payable on such orders as is payable in a memorandum of
appeal against decrees.

6. The next question for consideration is whether the impugned judgment of the Subordinate
Judge dismissing the suit for divorce constitutes an order or a decree, Sections 9 to 13 of the
Act dealing with restitution, of conjugal rights, judicial separation, void marriages, voidable
marriages and divorce show that orders passed by the Court under those sections constitute
decrees. So far as relevant, those sections may be extracted :

"9. Restitution of conjugal rights-- (1) When either the husband or the wife has, without
reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply,
by petition to the district Court, for restitution of conjugal rights and the court, on being
satisfied of the truth of the statements made in such petition and that there is no legal ground
why the application should not be granted, may decree restitution of conjugal rights
accordingly.

XX XX XX XX

10. Judicial separation.-- (1) Either party to a marriage, whether solemnized before or after
the commencement of this Act, may present a petition to the district court praying for a
decree for judicial separation, x x x x x x x (2) Where a decree for judicial separation has
been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent,
but the Court may, on the application by petition of either party and on being satisfied of the
truth of the statements made in such petition, rescind the decree if it considers it just and
reasonable to do so.

11. Void marriages-- Any marriage solemnized after the commencement of this Act shall be
mill and void and may, on a petition presented by either party thereto, be so declared by a
decree of nullty if it contravenes any one of the conditions specified in clauses (i), (iv) and (v)
of Section 5.

12. Voidable marriages-- (1) Any marriage solemnized, whether before or after the
commencement of this Act, shall be voidable, and may be annulled by a decree of nullity on
any of the following grounds, namely-

xx xx ax x

13. Divorce-- (1) Any marriage solemnized, whether before or after the common cement 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-

XX XX XX XX "

The underlined word in these section shows that the statute prescribes for the passing of a
decree for reliefs claimed under those sections.

7. Section 23 enacts that the Court shall decree relief in every proceeding under the Act
subject to the conditions prescribed therein being fulfilled. Section 23 is as follows:

"23. Decree in proceeding.-- (1) In any proceeding under this Act, whether defend-ed or not,
if the court is satisfied that-

(a) any of the grounds for granting relief exists and the petitioner is not in any way taking
advantage of his or her own wrong or disability for the purpose of such relief, and

(b) where the ground of the petition is the ground specified in Clause (f) of Sub-section (1) of
Section 10, or in Clause (i) of Sub-section (1) of Section 13, the petitioner has not in any
manner been accessory to or connived at or condoned the act or acts complained of, or where
the ground of the petition is cruelty the petitioner has not in any manner condoned the
cruelty, and

(c) the petition is not presented or prosecuted in collusion with the respondent, and

(d) there has not been any unnecessary or improper delay in instituting the proceeding, and.

(e) there is no other legal ground why relief should not be granted, then, and in such a case,
but not otherwise, the court shall decree such relief accordingly, (2) Before proceeding to
grant any relief under this Act, it shall be the duty of the court in the first instance, in every
case where it is possible so to do consistently with the nature and circumstances of the case,
to make every endeavour to bring about a reconciliation between the parties,"
Thus passing of a decree is mandatory and clearly provided in Section 23.

8. Section 28 of the Act makes provision, for enforcement of the decrees and orders and
appeals therefrom. It says that all decrees and orders made by the court in any proceeding
under this Act shall be enforced in like manner as the decrees and orders of the Court made in
the exercise of its original Civil jurisdiction are enforced, and may be appealed from under
any law for the time being in force: provided that there shall be no appeal on the subject of
costs only.

Thus a distinction is maintained between decrees and orders under the Act.

9. Section 2(14) C. P. C. definesan order. "Order" means the formal expression of any
decision of a Civil Court which is not a decree.

10. It is not as if passing of orders is not contemplated under the Act. Reference may be made
to Sections 24, 25 and 26 which are extracted hereunder:

"24. Maintenance pendente lite and expenses of proceedings.-- Where in any proceeding
under this Act it appears to the court that either the wife or the husband, as the case may be,
has no independent income sufficient for her or his support and the necessary exprenses of
the proceedings, it may, on the application of the wife, or the husband, order the respondent
to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding
such sum as, having regard to the petitioner's own income and the income of the respondent,
it may seem to the court to be reasonable.

25. Permanent alimony and maintenance.-- (1) Any Court exercising jurisdiction under this
Act may, at the time of passing any decree or at any lime subsequent thereto, on application
made to it for the purpose by either the wife or the husband, as the case may be, order that the
respondent shall, while the applicant remains unmarried, pay to the applicant for her or his
maintenance and support such gross sum or such monthly or periodical sum for a term not
exceeding the life of the applicant as, having regard to the respondent's own income and other
property, if any, the income and other property of the applicant and the conduct of the parties
it may seem to the Court to be just, and any such payment may be secured, if necessary, by a
charge on the immovable property of the respondent.

(2) If that court is satisfied that there is a change in the circumstances of either party at any
time after it has made an order under Sub-section (1), it may, at the instance of either party,
vary, modify or rescind any such order in such manner as the court may deem just;

(3) If the court is satisfied, that the party in whose favour an order has been made under this
section has remarried or, if such party is the wife, that she has not remained chaste, or, if such
party is the husband, that he has had sexual intercourse with any woman outside wedlock, it
shall rescind, the order.

28. Custody of children -- In any proceeding under this Act, the court may, from time to time,
pass such interim orders and make such provisions in the decree as it may deem just and
proper with respect to the custody, maintenance and education of minor children, consistently
with their wishes, wherever possible, and may, after the decree, upon application by petition
for the purpose, make from time to time, all such orders and provisions with respect to the
custody, maintenance and education of such children as might have been made by such,
decree or interim orders in case the proceedings for obtaining such decree were still pending,
and the court may also from time to time revoke, suspend or vary any such orders and
provisions previously made."

11. Thus there is provision for passing of orders under the Act which are not decrees. Orders
of the Court granting pendente lite maintenance and expenses of proceedings under Section
24, granting of permanent alimony and maintenance subsequent to the decree under Section
25 and giving direction of interim custody of children under Section 26 are orders and not
decrees. If orders are passed under Sections 25 and 26 relating to permanent alimony and
maintenance or custody of children in the decree itself, then such orders constitute component
part of the decree and are assailable in the appeal against the decree itself.

12. It is contended that Section 28 does not prescribe filing of appeals independent of C. P. C.
It says that decrees and orders of the Court may be appealed from under any law for the time
being in force. The argument is continued by saying that appeals against decrees are
prescribed in Sections 99 and 100 C. P. C. and appeals against orders are provided for under
Sections 104, 109 and Order 43 C. P. C. There is no provision in Order 43 for filing an appeal
against an order passed under Section 24 or interim orders passed under Sections 25 and 26,
The contention is not sound. In AIR 1964 Orissa 122 (Smt. Snehalata Dansena v. Jagadish
Dauscna) such a contention was negatived. Reliance was placed on AIR 1959 Cal 455 (Smt.
Sobhana Sen v. Amar Kanta Sen) and AIR 1961 Guj 202 (Kadia Harilal Purshottam v. Kadia
Lilavati Gokaldas). The intention of the Legislature is that all decrees and orders made by the
Court in a proceeding under the Act shall be appealable. The words "under any law for the
time being in force" were added to indicate the forum where the appeal would lie and such
other matters as regards procedure for hearing of appeals would be decided by the law on the
subject for the time being in force. Appeals against interim orders under Sections 24, 25, and
26 of the Act as pointed out already would accordingly lie and in those appeals court-fee is
payable under Article 11. In paragraph 3 of AIR 1964 On 122 there is an observation made to
the effect that against an order under Section 24 of the Act a miscellaneous appeal is
competent. As would be subsequently said, applications filed under Sections 9 to 13 are
registered as suits and appeals against decrees would be registered as first appeals and not as
miscellaneous appeals.

13. In AIR 1962 Pat 489 (Antala Cope v. Sarbo Gopain) a Bench of that Court held that a
decree for divorce contemplated under Section 13 cannot be treated as a decree as defined in
Section 2(2) C. P. C. but is an order. The decision is contrary to the plain language of the
several sections saying that decrees would be passed in those applications. Whether a
proceeding initiated on application is a suit or not will be discussed at a later stage. Even
assuming that the application so initiated is not a plaint and the proceeding is not a suit, yet
the ultimate orders under Sections 9 to 13 are decrees as has been statutorily prescribed. The
learned Judges of the Patna High Court drew some analogy in respect of appeals under the
Guardinas and Wards Act and the Provincial Insolvency Act. As has been said by the Privy
Council in several cases, analogy is often a dangerous argument. No inspiration could be
drawn from analogy contrary to the plain language of the statutory provisions. With respect,
we say that this decision does not lay down tbe correct law.

The aforesaid Patna case was followed by Barman J. in AIR 1967 Ori 41 (Mst. Puinbasi
Majhiani v. Shiba Bhue) in a case arising under the Indian Succession Act, 1925. We do not
express any view as to the applicability or Articles 11 and 17A of the Court-fees Act to the
provisions of the Indian Succession Act. It would be sufficient to say that the observation of
the learned Judge in so far as he placed reliance on AIR 1962 Pat 489 is contrary to law.

In First Appeal No. 43 of 1961 (Orissa) the then Taxing Judge G. C. Das, J. made tbe
following observations:

"The Hindu Marriage Act does not provide anywhere specifically that an appeal can be filed
against an order under Section 24 or 25. Therefore, if an appeal is to be preferred against such
an order, one has to fall back on the provisions of the Civil Procedure Code. These, however,
do not specifically include appeals against order under Section 24 or 25 or the Hindu
Marriage Act. Thus, it would be wrong to hold that no appeal lies against an order granting
alimony itself which is purely a discretionary relief granted by the trial Judge. An application
may be made for the grant of alimony either at the time of passing the decree or even
subsequent to the decree under Section 25. Even if no such application was made to the trial
Judge, it can be made to the appellate Judge if an appeal is pending against the decree. Thus,
the relief granting alimony appears to be ancillary to the main relief for judicial separation or
divorce as the case may be. Rightly, the Taxing Officer has held that when an appeal is
preferred against a decree for judicial separation challenging with it an order passed by the
trial Judge granting alimony, then no ad valorem court-fee is payable on the said relief as the
amount was granted by way of alimony. Accordingly, I would answer question No. 1 in the
affirmative, that is, the Court-fee payable would be a fixed court-fee under Article 17A of
Schedule II of the Orissa Court-fees Act."

The aforesaid observations do not lay down the law clearly and correctly. As has already
been said, against an order under Section 24 and certain orders under Sections 25 and 26 an
appeal lies under Section 28 of the Act and Court-fee under Article 11 is payable on the
memorandum of appeal against such orders and not under Article 17A. The observations of
both Barman J. and G. C. Das J. are contrary to law and are hereby overruled.

It is not necessary to refer to a large number of cases. We agree with the conclusion in 1967
Jab LJ 712 (Nandkishore v. Parwatibai).

14. Thus the ultimate decisions of the Court under Sections 9 to 13 of the Act are decrees and
are appealable as such. Such appeals would be registered as first appeals. Article 11 has no
application for payment of Court-fee on tbe memorandum of appeal against the decree so
passed.

15. We would now proceed to examine if court-fee is payable under Article 17A on the
memorandum of appeal against the decree passed under Sections 9 to 13 of the Act.

16. The constituents of Article 17A may be enumerated:

i) The memorandum of appeal must arise out of the final decision in a suit.

ii) It is not possible to estimate at 3 money value the subject-matter in dispute.

iii) Payment of court-fee on such memorandum of appeal is not otherwise provided for by the
Court-fees Act, There is no dispute that the last two conditions are fulfilled in this case. The
subject-matter of the dispute is grant of divorce as prayed for by the appellant. It is not
possible to estimate the money value of the subject-matter. If Article 11 is out of the way,
there is no provision in the Court-fees Act which would govern such a memorandum of
appeal.

17. The only question for consideration, therefore, is whether the memorandum of appeal
arises out of a suit. The words "memorandum of appeal in every suit" have been somewhat
inartistically drafted. The expression means memorandum of appeal against the judgment and
decree given in a suit. The question ultimately boils down to the fact whether the proceeding
for divorce before the learned Subordinate Judge constitutes a suit.

18. "Suit" has not been defined in the Civil P. C. or in the Act. Section 21 of the Act
prescribes that subject to the other provisions contained in the Act and to such rules as the
High Court may make in this behalf, all proceedings under the Act shall be regulated, as far
as may be, by Civil P. C. There is no provision in the Act that application filed under
Sections 9 to 13 of the Act would be treated and registered as suits'. The High Court of Orissa
has framed the Hindu Marriage and Divorce Rules, 1956 (hereinafter to be referred to as the
rules) under the Act. Rules 3 and 4 may be extracted:

"3. Proceedings under the Act and petitions-- (a) Every proceeding under the Act shall be
registered as a suit:

(b) Every petition for divorce on any of the grounds mentioned in Clause VIII or IX of Sub-
section (1) of Section 13 of the Act shall be accompanied by a certified copy of the decree for
judicial separation or for restitution of conjugal rights, as the case may be.

4. Contents of petitions-- (i) In addition to the particulars required to be given under Order 7,
rule 1 of the Code of Civil Procedure and Section 20 of the Act, every petition for judicial
separation, nullity of marriage and divorce shall contain the following particulars :--

(a) the place and date of marriage;

(b) the name, status and domicile of the wife and husband, before and after the marriage;

(c) the principal permanent address where the parties cohabited including the address where
they last resided together;

(d) whether there is living any issue of the marriage and, if so, the names and dates of birth or
ages of such issues;

(i) In every petition presented by a husband for divorce on the ground that his wife is living in
adultery with any person or persons or for judicial separation on the ground that his wife has
committed adultery with any person or persons the petitioner shall state, the name,
occupation and place of residence of such person or persons so far as they can be ascertained;

(ii) In every petition presented by a wife for divorce on the ground that her husband is living
in adultery with any woman or women or for judicial separation, on the ground that her
husband has committed adultery with any woman or women the petitioner shall state the
name, occupation and place of residence of such woman or women so far as they can be
ascertained.
(e) Whether there have been in any Court in India and if so, what previous proceedings with
reference to the marriage by or on behalf of either of the parties, and the result of such
proceedings ;

(f) The matrimonial offence or offences charged, set out in separate paragraphs with the time
and place or its or their alleged commission;

(g) Property mentioned in Section 27 of the Act, if any;

(h) The relief or reliefs prayed for:" Proceedings under Sections 9 to 13 of the Act are to be
registered as suits even though they are initiated by an application on which court-fee is
payable as on any ordinary application. The particulars which such an application would
contain besides what is prescribed in Order 7, Rule 1 C. P. G. have been enumerated in Rules
3 (b) and 4 of the Rules.

Order 4 C. P. C. deals with institution of suits. Rules 1 and 2 thereof are as follows :

"1. Suit to be commenced by plaint.--(1) Every suit shall be instituted by presenting a plaint
to the Court or such officer as it appoints in this behalf.

(2) Every plaint shall comply with the rule contained in Orders VI and VII, so far as they are
applicable.

2. Register of suits-- The Court shall cause the particulars of every suit to be entered in a
book to be kept for the purpose and called the register of civil suits. Such entries shall be
numbered in every year according to the order in which the plaints are admitted."

Ordinarily a suit is instituted by presenting a plaint. It is on account of this, it is contended by

Mr. S. C. Mohapatra, that proceedings under Sections 9 to 13 of the Act are not suits
inasmuch as they are initiated by petitions and not by presentation, of a plaint. Though
proceedings under Sections 9 to 13 are initiated by petitions the formalities and material
particulars required to be mentioned in those petitions are as in a plaint. The petitions are to
be verified. All material particulars are to be pleaded. The essential rights claimed in the
petition must be properly focussed in the averments so as to enable the Court to decide the
issues in a regular trial. There is, therefore, no particular sanctity in the user of the word
petition or plaint. According to the fads and circumstances of the case as required under law a
petition may essentially amount to a plaint. The difference between the two appears to be
more of nomenclature than of substance.

19. Section 26 C. P. C makes the position dear. Every suit shall be instituted, by the
presentation of plaint or in such other manner as may be prescribed. Though proceedings
under Sections 9 to 13 are initiated by petition, by rules the High Court has prescribed that
those petitions would be registered as suits.

20. Section 20 of the Act deals with contents and verifications of petitions. It says that every
petition presented under the Act shall state as distinctly as the nature of the case permits the
facts on which the claim, to relief is founded and shall also state that there is no collusion
between, the petitioner and the other party to the marriage.
21. On the aforesaid analysis, we are satisfied that petitions filed under Sections 9 to 13 of the
Act are essentially in the nature of a plaint. At any rate, by the rules prescribed by the High
Court on the filing of such petitions a suit would be registered as is done in the case of filing
of a plaint. On this analysis the first condition of Article 17A that the memorandum of appeal
must be against a decree arising out of a suit is fulfilled. We agree with the conclusion on this
aspect of the case in AIR 1965 All 280 (Kusum Lata v. Kampta Pra-sad). Thus all the
conditions of Article 17A are fulfilled. The memorandum of appeal is to be stamped with
court-fee under Article 17A. The value of the subject-matter does not exceed Rs. 4,000/- and
accordingly court fee of Rs. 22/8/- is payable.

23. We would sum up our conclusions thus:

i) Article 11 of the Court-fees Act is applicable to memorandum of appeal against orders and
not decrees,

ii) Proceedings under Sections 9 to 13 of the Act are suits.

iii) Memorandum of appeal against decrees passed in a proceeding under Sections 9 to 13 of

the Act is governed by Article 17A of the Court-fees Act.

(iv) Against decrees arising out of petitions under Sections 9 to 13 of the Act, first appeals are
to be filed

v) Against orders arising out of such proceedings, miscellaneous appeals He,

24. The reference is answered, as indicated above. The appellant is to pay court-fee of Rs.
22/8/- and not Rs. 6/-.

This appeal is unnecessarily hanging on for a long time to determine the payment of court-
fees. Hearing of the appeal be expedited.

Mohanti, J.

25. I agree.

The respondent-husband filed a Civil Proceeding under Section 13(1)(1-a) (iii) read with
Section 5 (ii)(a) & (b) of Hindu Marriage Act against his wife-appellant seeking dissolution
of marriage by grant of a decree of divorce. The grounds taken by the husband-respondent in
the Civil Proceeding before the Judge, Family Court, Cuttack are as follows:-

(i) Marriage between the petitioner-husband and the respondent-wife was solemnized in
violation of Section 5(ii) (a) and (b) of the Act;
(ii) Respondent wife has treated petitioner-husband with cruelty;
(iii) Respondent wife has given threat to commit suicide, tried to kill their son with Paniki
and pressed pillow on the face of petitioner to kill petitioner;
 (iv) Respondent wife has incurable unsound mind and
has been suffering from continuously and
intermittently mental disorder;

(v) Respondent wife is incapable of giving a valid consent

due to suffering from mental disorder prior to marriage;
The counter allegations of the respondent-wife are as follows:-
(i) After birth of her two sons through petitioner husband the sister-in-law who has only
daughters became envious and meted out torture;
(ii) The petitioner-husband has extra-marital relationship with another woman;
(iii) The petitioner-husband has made superficial allegation of mental disorder of the
respondent-wife;

To substantiate the pleadings before the Family Court, the respondent herein examined
himself as PW-1, his mother as PW-2 and the treating Physician Dr. Indubhusan Das as PW-
3. He also exhibited documents vide Ext.1 to Ext.1/19 series, Ext.2 to Ext.2/4 series.

The appellant-wife has examined three witnesses. OPW-1 is Sankar Prasad Nayak, the
brother of the appellant, OPW-2 is appellant herself and OPW-3 is Iswar Chandra Mohapatra,
an independent witness.

3. The learned Judge, Family Court after referring to oral and documentary evidence came to
the conclusion that the parties are not in a position to lead peaceful conjugal life. There is also
no possibility of re- union. So, there should be separation by dissolution of marriage between
the parties. Consequently, the learned Judge, Family Court by a decree of divorce dissolved
the marriage of the appellant and respondent solemnized on 22.06.1997 subject to payment of
permanent alimony of Rs.2,50,000/- (two lakhs fifty thousand) within a period of two months
from the date of order. Being aggrieved by the said order, the wife has preferred this appeal.

4. Mr.S.P.Mishra, learned Senior Advocate, appearing for the appellant-wife submitted that
the impugned judgment of the Judge, Family Court was unjust, illegal, arbitrary, perverse and
against the evidence available on record. It is strenuously argued that the Judge, Family Court
has not recorded any finding of his own that the ground of cruelty as alleged against the
appellant was made out to arrive at a conclusion for dissolution of marriage solemnized
between the appellant and respondent on 22.06.1997 by a decree of divorce. It is submitted
that the appellant has completed her M.A. degree and has never visited any doctor for the
reason that there was absolutely no symptom of any mental insanity with her. After a lapse of
major portion of marital life of eight years and having been blessed with two sons, the vague
allegation of cruelty on the part of the appellant-wife has been made with a view to get a
decree of divorce. Even if accepting for the sake of argument that the appellant was under
treatment and pursuant to the prescription of the doctor dated 21.04.2005, C.T. scan/MRI and
EEG were made on 19.04.2005 and 20.04.2005, the reports clearly indicate that the standard
of brain is normal and there was absolutely no symptom of any mental insanity. Therefore,
the reports/documents proved by the respondent clearly nullify the allegation of mental
insanity which rather establishes the fact that she is as sound as a normal human being. The
appellant herself conducted the case and cross-examined the witnesses and faced the cross-
examination twice in courteous and reasonable manner and there is absolutely no occasion to
infer any mental abnormality with the appellant. In spite of the specific evidence of the doctor
that the disease of the appellant is curable, the learned Judge, Family Court has committed
wrong by passing the order of dissolution of marriage and decree of divorce.

In support of his contention, Mr. Mishra placed reliance on the judgment of Madhya Pradesh
High Court in Hemant Kumar Vs. Ashabai, II (1994) DMC 452. He also placed reliance on
several judgments in support of his contention that all kinds of mental disease cannot be
termed as unsound mind and a ground for divorce under Section 13(1)(iii) of the Hindu
Marriage Act, 1955.

5. Mr. G.P.Dutta, learned counsel appearing on behalf of the respondent-husband strenuously

contended that by well reasoned order the learned Judge, Family Court has passed the decree
of divorce. There is no infirmity in the order warranting interference by this Court. Relying
on the evidence led by both the parties and referring to several judgments of the apex Court
and High Courts, the learned Judge, Family Court has passed the decree of divorce.
Therefore, the appeal is liable to be dismissed.

6. The pleadings in the Civil Proceeding reveal that it was filed on the ground of cruelty on
the part of the wife and her incurable unsound mind. To deal with these issues, it is necessary
to refer the relevant provisions of Section 13 of Hindu Marriage Act, 1955, which are
reproduced below:-

"Section 13(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 solemnization of the marriage, treated the petitioner with cruelty; or
(ii) ... ... ...
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently
from mental disorder of such a kind and to such an extent that the petitioner cannot
reasonably be expected to live with the respondent."
Explanation.- In this clause,-
(a) the expression "mental disorder" means mental illness, arrested or incomplete
development of mind, psychopathic disorder or any other disorder or disability of mind and
includes schizophrenia:
(b) the expression "psychopathic disorder" means a persistent disorder or disability of mind
(whether or not including sub-normality of intelligence) which results in abnormally
aggressive or seriously irresponsible conduct on the part of the other party, and whether or
not it requires or is susceptible to medical treatment."

Section 13(1)(ia) envisages that any marriage solemnized whether before or after
commencement of the Hindu Marriage Act, 1955 may on a petition presented by either the
husband or the wife can be dissolved by a decree of divorce on the ground that the other party
has after the solemnization of marriage treated the petitioner with cruelty. 'Cruelty' for the
purpose of Section 13(1)(ia) of the Act connotes that while discharging the matrimonial
duties and obligations, the conduct or behaviour of one spouse towards the other should be
such that it would adversely affect the other. The cruelty may be mental or physical.

The apex Court in Shobharani V. Madhukar Reddy, AIR 1988 SC 121, held as under:-
"Section 13(1)(i-a) uses the words "treated the petitioner with cruelty". The word "cruelty"
has not been defined. Indeed it could not have been defined. It has been used in relation to
human conduct or human behavior. It is the conduct in relation to or in respect of
matrimonial duties and 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 the court will have no problem to determine it. It is a question of fact and degree. If
it is mental the problem presents difficulty. First, the enquiry must begin as to the nature of
the cruel treatment. Second, the impact of such treatment in the mind of the spouse. Whether
it caused reasonable apprehension that it would be harmful or injurious to live with the other.
Ultimately, it is a matter of inference to be drawn by taking into account the nature of the
conduct and 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."
It is also necessary to construe Clause (iii) of Section 13(1);

particularly the words 'incurably of unsound mind'. With a view to bring a case within the
four corners of Section 13(1)(iii) of the Act, it is to be established that the other side is of
incurably unsound mind, or has been suffering continuously or intermittently from mental
disorder of such a kind and to such an extent that the appellant cannot reasonably be expected
to live with the respondent.

7. These words 'incurably of unsound mind' depict the state of mind of a person who is
incapable of managing himself and hence discarded to the situations where he will not be
called upon to manage himself or his affairs but will live an artificial life until his death.
From a medico legal point of view such person will not be able to maintain normal contact
with external reality, and to appreciate the distinction between what is going on solely in his
own mind, and what is going on beyond it in the external world. May be an individual who
suffered severe mental or physical illness cannot be cured in the sense that he cannot expect
to get restored to his original condition. However, an individual, who could be cured of the
disease and resumes his/her normal life, after the treatment not withstands the fact that he/she
may have to take some medicines to preserve his cure would not satisfy the requirement of
law laid down u/s. 13(1) of the Act. To put it pithily if an individual is able to lead a normal
life and to manage himself and his affairs, no reasonable person would describe him as
incurable of unsound mind or afflicted by an incurable mental illness because he is advised to
take a medicine once a week or even once a day. (See the decisions in Whysall V. Whysall,
1959 (3) All ER 389; Chapman V. Chapman, 1961 (3) All ER 1105; Robinson V. Robinson,
1964 (3) All ER 232 and Taylor's Medical Jurisprudence.)

8. According to sub-clause (a) of the Explanation, the expression "mental disorder" means
mental illness, arrested or incomplete development of mind, psychopathic disorder or any
other disorder or disability of mind and includes schizophrenia.

Sub-clause (b) of the Explanation lays down that the expression "Psychopathic disorder"
means a persistent disorder or disability of mind (whether or not including sub-normality of
intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the
part of the other party, and whether or not it requires or is susceptible to medical treatment.

In order to succeed on this ground, it is obligatory on the part of the husband to prove that his
wife has been suffering continuously or intermittently from mental disorder of such a kind
and to such an extent that he cannot reasonably be expected to live with the respondent. The
Legislature in their wisdom has intentionally incorporated the words disorder of such a kind
and to such an extent that the petitioner cannot reasonably be expected to live with the
respondent. Thus, a husband can succeed if he establishes mental illness, incomplete
development of mind or any other disorder or disability of mind which includes
schizophrenia.

9. Marriage unites a man and a woman as husband and wife. In our society, it is considered as
heavenly tie between a man and a woman. Divorce is a stigma on such heavenly tie. No
Hindu woman likes to live in the society as a divorcee. A petition for divorce must be dealt in
very cautiously manner.

The apex Court in Yamanaji H.Jadhav Vs. Nirmala, AIR 2002 SC 971, held that as per the
Hindu Law administered by Courts in India divorce was not recognized as a means to put an
end to marriage, which was always considered to a sacrament, with only exception where it is
recognized by custom. Public policy, good morals and the interests of society were
considered to require and ensure that, if at all, severance should be allowed only in the
manner and for the reason or cause specified in law.

10. Perusal of the impugned order reveals that the learned Judge, Family Court has
extensively discussed the contentions of the parties, referred to evidence on record and some
case laws before passing the decree of divorce. But in the impugned judgment, the learned
Judge, Family Court, has not recorded any specific finding that the ground of cruelty on the
part of the appellant-wife has been made out as alleged by the respondent-husband. He has
also not recorded any finding that the respondent-husband has proved the unsound mind of
the wife and the wife has been suffering continuously or intermittently from mental disorder
of such kind and to such extent that she cannot reasonably be expected to live with her
husband. The said grounds, in the present case, being the foundation for passing of a decree
of divorce, in the absence of such specific finding, the impugned order and judgment of the
learned Judge, Family Court is not sustainable. What we find from the impugned judgment,
the learned Judge, Family Court, after discussing the contentions of the parties and referring
to some case laws abruptly came to the conclusion that parties are not in a position to lead a
peaceful conjugal life. There is also no possibility of reunion and therefore there should be
separation by dissolving the marriage solemnized between the parties and passed the decree
of divorce.

11. A reading of Section 13 of the Hindu Marriage Act, unambiguously reveals that the
legislature in its wisdom did not prescribe irretrievable breakdown of marriage as a ground
for granting decree of divorce. The Supreme Court in the case of Visnu Dutta Sharma v.
Manju Sharma, AIR 2009 SC 2254, being confronted with such a problem observed as
follows:

".......... A mere direction of the Court without considering the legal position is not a
precedent. If we grant divorce on the ground of irretrievable breakdown, then we shall by
judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable
breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done
by the legislature and not by the Court. It is for the parliament to enact or amend the law and
not for the Courts."
In view of the aforesaid authoritative pronouncement, we feel that the ground basing upon
which the decree for divorce was passed by the Judge, Family Court cannot be sustained.

Moreover, since there is no finding recorded on the crucial questions regarding cruelty and
the kind and extent of unsound mind of wife, the order passed by learned Judge, Family
Court is also unsustainable and the matter needs reconsideration. Hence, the case is remitted
to the Court of learned Judge, Family Court, Cuttack to decide the aforesaid crucial
questions.

The MATA is disposed of accordingly.