SAMARGHOSH v. JAYA GHOSH

Citation: [2007] 4 S.C.R. 428

Court: Supreme Court of India

Bench: B.N. AGRAWAL, P.P. NAOLEKAR, DALVEER BHANDARI

Case summary

SAMARGHOSH v. JAYA GHOSH.pdf

Judgment text

+- '( - SAMARGHOSH v. JAYAGHOSH MARCH 26, 2007 [B. N. AGRAWAL, P. P. NAOLEKAR AND DALVEER BHANDARI, JJ. ] 4- Matrimonial Disputes: -... Divorce-On ground of mental cruelty-'Mental cruelty '-Instances illustrated-On facts, Held: wife's unilateral decision immediately after marriage, not to have any child from the marriage, her refusal to respect marital bond and discharge obligations ofmarital life, her total indifference -and neglect during husband's illness, coupled with other instances would certainly cause great annoyance to him leading to mental cruelty-Parties living separately for more than 16 years, irresistible conclusion would be that matrimonial bond has been ruptured beyond repair because of mental cruelty caused by the wife. Respondent, mother ofa girl child, sought for and was granted a decree ofdivorce with custody ofthe child. While the matter was pending before the appellate court, she re-married another man, the appellant, on 13. 12. 1984.

Later, the appellant also filed a suit for a decree of divorce against the respondent on the ground of mental cruelty. Both the parties were IAS Officers. The case ofthe appellant, inter alia, was that soon after the marriage he came to know that respondent's marrying him was merely an eye-wash as she unilaterally declared her decision not to give birth to any child and asked J.

him to keep himself away from her; that the respondent refused to cohabit with the appellant; that the respondent neglected him to the extent that when he fell ill she went to her brother and parents at a far off place without caring that there was no one to look after him during his illness; that at times she used to cook only for herself and not for him and he had either to take his meals outside or have to cook again for himself; that she started insulting and humiliating him in the presence of her father and his servant and one day virtually turned him out from the house and he had to stay with his friend ;until he was allotted an accommodation; that from April 1989, the respondent ~started living with her parents, and since August, 1990, the parties were living + SAMARGHOSHv. JAYAGHOSH 42S - ) separately. In the circumstances the appellant pleaded that it would not be possible to continue the marriage and prayed for a decree ofdivorce.

The trial court after appreciating the evidence adduced by the parties decreed the 'suit, but on appeal by the respondent, the High Court reversed the judgment ' of the trial court and dismissed the suit. Aggrieved, the husband filed the appeal Disposing of the appeal, the Court _J HELD: 1. 1. In the backdrop of the ratio and spirit of a number of decided cases, the trial court was fully justified in decreeing the appellant's suit for divorce. In a case of this nature, no other logical view is possible. The High Court was not justified in reversing the judgment of the trial court, which is based on carefully watching the demeanour ofthe parties and their respective .. witnesses. [Paras 104 and 105] [466-F-G; G-H] 1. 2. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage bas broken down. The court, .

,J no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that th·e breakdown is irreparable, then divorce should not be withheld. The consequences ofpreservation in law ofthe unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties. In the instant case, the respondent appeared in person. Even at this stage the Court made an effort that the parties should talk to each other so that if the parties could reconcile their differences then the case be deferred, but, despite the request from the Court there was no conversation between the parties. In this view of the matter, the parties cannot be compelled ) to live together. [Paras 95 and 36] (462-D-F; 444-B-C] Naveen Kohli v. Neelu Kohli, (2006] 4 SCC 558; N. G. Dastane v. S. Dastane, (1975] 2 SCC 326; Sirajmohmedkhan Janmohamadkhan v. 1 Haizunnisa Yasinkhan & Anr. , (1981] 4 SCC 250 ; Shobha Rani v.

Madhukar 2 Reddi, [1988] 1 sec 105 ; Rajani v. Subramanian, AIR (1990) Ker. I; V. Bhagat v. D. Bhagat (Mrs. ), [1994] 1 SCC 337; Chetan Dass v. Kam/a Devi, 3 (2001] 4 SCC 250 • Savitri Pandey v. Prem Chandra Pandey, [2002) 2 SCC I. 1982(1) SCR 695 2. 1988(1) SCR 1010 3. 2001(3) SCR 20 + 73 ; Gananath Pattnaik v. State ofOrissa, [2002] 2 SCC 61~; Parveen Mehta v. Inderjit Mehta, [2002] 5 SCC 706; A. Jayachandra v. Aneel Kaur, [2005] 2 6 SCC 22 ; Vinita Saxena v. Panka_i Pandit, (2006) 3 SCC 778 and Rishikesh Sharma v. Saroj Sharma, (2006), 12 Scale 282, referred to. Russell v. Russell, (1897) AC 395; Evans v. Evans, (1790) 1 Hagg Con 35; Waters v. Waters, [1956] 1 All. E. R. 432; Hadden v. Hadden, The Times, December 5, 1919, (also reported in Modern Law Review Vol. 12, 1949; Lord Simon Watt (or Thomas) v. Thomas, (1947] 1 All E. R. 582; Lord Stowell Evans v. Evans, (1790) 1 Hagg Con 35; Simpson v. Simpson, (1951] 1 All E. R. 955; Prichardv. Pritchard, (1864) 3 S&T 523; J. O.

in Power v. Power, (1865) 4 SW & Tr. 173; Bravery v. Bravery, (1954) 1 WLR 1169; Jamieson v. Jamieson, [1952] I All E. R. 875; Le Brocq v. Le Brockq, (1964] 3 All E. R. 464; Wardv. Ward, (1958) 2 All E. R. 217; White (otherwise Berry) v. White, (1948] 2 All E. R. 151; Walsham v. Walsham, [1949] I All E. R. 774; Cackett (otherwise - Trice) v. Cackett, [1950) I All E. R. 677; Knott v. Knott, [1955] 2 All E. R. 305; Sheldon v. Sheldon, [1966] 2 All E. R. 257, Lord Denning, MR. ; Jamieson v. Jamieson, (1952] I All E. R. 875; Waters v. Waters, (1956] I All E. R. 432 King v. King, (1952] 2 All E. R. 584; Warr v. Warr, [1975] I All ER 85; Jem v. Jem, (1937) 34 Haw. 312; Hybertson v. Hybertson, (1998) 582 N. W. 2d 402; Rosenbaum v. Rosenbaum, (1976) 38 Ill. App. 3d. 1; Fleck v. Fleck 19 N. D. 561; Donaldson v. Donaldson, (1917) 31Idaho180; Chouinardv. Chouinard, 10 D. L. R. (3d) 263; Knoll v. Knoll, 10 D. L. R. (3d) 199; Luther v. Luther, [(1978) 5 R. F. L. (2d) 285, 26 N. S. R.

(2d) 232, 40 A. P. R. 232; Zalesky v. Zalesky, 1 D. L. R. (3d) 471; Dunkley v. Dunkley, (1938) SASR 325 and La Rovere v. La Rovere, 4 FLR 1 and Ladder v. Ladder, 1921 New Zealand Law Reports 786, referred to. The Shorter Oxford Dictionary; Black's Law Dictionary 8th Edition, 2004; Halsbury's Laws of England Vo/. 13, 4th Edition Para 1269; 24 American Jurisprudence 2d; William Latey, 'The Law andPractice in Divorce and Matrimonial Causes' (15th Edition); 71st report ofthe Law Commission ofIndia on "Irretrievable Breakdown ofMarriage", referred to. 1. 3. The High Court has seriously erred in not appreciating the evidence on record in a proper perspective. The respondent's refusal to cohabit has 4. 2002(1) SCR 50 5. 2002(1) SCR 845 6. 2004(6) Supp. SCR 599 + SAMARGHOSH v. JAYA GHOSH 431 " been proved beyond doubt.

The High Court's finding that the husband and er· wife might be sleeping in separate rooms did not lead to a conclusion that they did not cohabit and to justify this by saying that the respondent was highly educated and holding a high post was entirely unsustainable. Once the respondent accepted to become the wife of the appellant, she had to respect the marital bond and discharge obligations of marital life. (Para 30) [442-D-F) 1. 4. The finding of the High Court that if the ailment of the husband was not very serious and he was not even confined to bed for his illness and -' even assuming the wife under such circumstances did not meet the husband, such behaviour can hardly amount to cruelty, cannot be sustained. During illness, particularly in a nuclear family, the husband normally looks after and supports his wife and similarly, he would expect the same from her.

It may be pertinent to mention that in 1993, the appellant had a heart problem leading to bye-pass surgery, even at that juncture, the respondent did not bother to enquire about his health even on telephone and when she was confronted in the cross-examination, she falsely stated that she did not know about it. This instance is clearly illustrative ofthe fact that now the parties have no emotions, sentiments or feelings for each other at least since 27. 8. 1990. This is a clear case of irretrievable breakdown of marriage. It is impossible to preserve or save the marriage. Any further effort to keep it alive would prove to be totally counter-productive. The respondent's total indifference and neglect of the appellant during his illness would certainly lead to great annoyance leading to mental cruelty. (Paras 31, 103 and 33) (442-F-H; 443-A; 466-E-FJ 1. 5.

The High Court has erroneously placed reliance on the evidence adduced by the reli:~ondent and discarded the evidence of the appellant. The evidence of the witness produced on behalf of the respondent is wholly ) unbelievable and cannot stand the scrutiny of law. The High Court did not take into consideration the evidence of appellant's servant primarily because of his low status in life. The credibility of the witness does not depend upon his financial standing or social status only. A witness who is natural and truthful should be accepted irrespective of his/her financial standing or social status. In the impugned judgment, testimony of PW-4 is extremely important being a natural witness to the incident He graphically described the incident of 27. 8. 1990. He also stated that in his presence, the respondent insulted and humiliated the appellant. This witness also stated that immediately ... thereafter the appellant had left the flat and, admittedly, since 27. 8. 1990, both .

: the appellant and the respondent are living separately. This was a serious incident and the trial court was justified in placing reliance on this evidence i~ , and to come to a definite conclusion that this instance coupled with many other ~ instances led to grave mental cruelty to the appellant. Now the parties have no feelings and emotions towards each other. (Paras 33 and 34] [443-B-C; C-G] 1. 6. In the background of facts of the case along with an important circumstance that the parties are admittedly living separately for more than sixteen and half years (since 27. 8. 1990), the irresistible conclusion would be that matrimonial bond has been ruptured beyond repair because ofthe mental cruelty caused by the respondent. [Para 102] (466-B-C] '"- 1. 7. The High Court seriously erred in reversing the judgment of the trial court. The impugned judgment of the High Court is set aside and the judgment of the trial court granting the decree ofdivorce is re:;tored. (Para 103] (466-D] - 2.

1. There cannot be any comprehensive definition of the concept of •i:iental cruelty' within which all kinds of cases of mental cruelty can be covered. Human mind is extremely complex and human behaviour is equally complicated. Similarly, human ingenuity has no bound; therefore, to assimilate I.. 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. [Paras 98 and 99] [463-G; 464-A-B] 2. 2. Apart from this, the concept ofmental 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 into consideration. [Para 100] [464-C-D] 2. 3. No uniform standard can ever be laid down for guidance, yet it would be appropriate to enumerate some instances of human behaviour which may ,. be relevant in dealing with the cases of 'mental cruelty'. The following instances are only illustrative and not exhaustive: SAMARGHOSH v. . IAYA GHOSH 433 (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 ofaffection 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 ofother 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 ofand the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustai"ed reprehensible conduct, studied neglect, indifference or total departure from the normal standard ofconjugal 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 ofmental 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 ofa spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. (xi) Ifa husband submits himself for an operation ofsterilization without medical reasons and without the consent or knowledge ofhis wife and similarly ifthe 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 refvsal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xiii) Unilateral decision ofeither husban~ 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 b0t1d 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. [Para 101) [464-D-G; 465-A-G; 466-A-B) CIVIL APPELLATE JURISDICTION: Civil Appeal No. 151 of2004. From the Final Judgment and Order dated 20. 05. 03 ofthe High Court at Calcutta in F. A. No. 114of1997. Ranjan Mukherjee, Rana Mukherjee, Siddharth Gautam and Goodwill Indeevar for the Appellant. Jaya Ghosh Respondent-in-person. The Judgment of the Court was delivered by DALVEER BHANDARI, J. 1. This is yet another unfortunate matrimonial dispute which has shattered the twenty two year old matrimonial bond between the parties.

The appellant and the respondent are senior officials of the Indian Administrative Service, for short 'IAS'. The appellant and the respondent were married on 13. 12. 1984 at Calcutta under the Special Marriage SAMAR GHOSH v. JAYAGHOSH [DALVEER BHANDARI, J. ] 435 Act, 1954. The respondent was a divorcee and had a female child from her first marriage. The custody of the said child was given to her by the District Court of Patna where the respondent had obtained a decree of divorce against her first husband, Debashish Gupta, who was also an I. A. S. officer. 2. The appellant and the respondent knew each other since 1983. The respondent, when she was serving as the Deputy Secretary in the Department of Finance, Government of West Bengal, used to meet the appellant between November 1983 and June 1984. They cultivated close friendship which later developed into courtship. 3.

The respondent's first husband, Debashish Gupta filed a belated appeal against the decree of divorce obtained by her from the District Court of Patna. Therefore, during the pendency of the appeal, she literally persuaded the appellant to agree to the marriage immediately so that the appeal of Debashish Gupta may become infructuous. The marriage between the parties was solemnized on 13. 12. 1984. According to the appellant, soon after the marriage, the respondent asked the appellant not to interfere with her career. She had also unilaterally declared her decision not to give birth to a child for two years and the appellant should not be inquisitive about her child and he should try to keep himself aloof from her as far as possible. According to the appellant, there was imposition of rationing in emotions in the arena of love, affection, future planning and normal human relations though he tried hard to reconcile himself to the situation created by the respondent. 4.

The appellant asserted that the apathy of the respondent and her inhuman conduct towards him became apparent in no time. In February 1985, the appellant suffered prolonged illness. The respondent's brother was working in Bareilly. Her parents along with her daughter went there for sojourn. The appellant could not go because of high temperature and indifferent health. She left him and went to Bareilly even when there was no one to look after him during his illness. On her return, the respondent remained in Calcutta for about four days, but she did not care to meet the appellant or enquire about his health. According to the appellant, he made all efforts to make adjustments and to build a normal family life. He even used to go to Chinsurah every weekend where the respondent was posted but she showed no interest and was overtly indifferent to him. The appellant usually returned from Chinsurah totally dejected. According to the appellant, he felt like a stranger in his own family.

The respondent unilaterally declared that she would not have any child and it was her firm decision. The appellant felt that his marriage with the respondent was merely an eye-wash because immediately after the marriage, serious matrimonial problems developed between them which kept growing. 5. The respondent was transferred to Calcutta in May 1985. Their residential flat at the Minto Park Housing Estate stood allotted to the appellant. The respondent used to come to their flat intermittently. One Prabir Malik, a domestic servant-cum-cook also used to live in the said flat. He used to cook food and carry out household work for the appellant. According to the appellant, the respondent used to say that her daughter was being neglected and that she might even be'harmed. The indication was towards Prabir Malik. The appellant and the respondent virtually began to live separately from September, 1985. 6.

The appellant was transferred to Murshidabad in May 1986 but the respondent continued to stay in Calcutta. The appellant stayed in Murshidabad up to April 1988 and thereafter he went on deputation on an assignment of the Government of India but there he developed some health problem and, therefore, he sought a transfer to Calcutta and came back there in September 1988. On transfer of the appellant to Murshidabad, the flat in which they were staying in Minto Park was allotted to the respondent as per the standard convention. The appellant and the respondent again began living together in Calcutta from September 1988. The appellant again tried to establish his home with the respondent after forgetting the entire past. 7. According to the appellant, the respondent never treated the house to be her family home. The respondent and her mother taught respondent's daughter that the appellant was not her father.

The child, because of instigation of the respondent and her mother, gradually began to avoid the appellant. The respondent in no uncertain terms used to tell the appellant that he was not her father and that he should not talk to the child or love her. The appellant obviously used to feel very offended. l I 8. The appellant also learnt that the respondent used to tell her mother that she was contemplating divorce to the appellant. The respondent's daughter had also disclosed to the appellant that her mother had decided to divorce him. According to the appellant, though they lived under. the same roof for some time but the respondent virtually began to live separately from April, 1989 at her parent's house. In April 1990 the appellant's servant Prabir Malik had left for Burdwan on getting a job. The respondent used to come from her parents house to drop her daughter to her school La Martinere. She SAMARGHOSHv.

JAYA GHOSH [DALVEERBHAND the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value.

The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the --conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exits. " --' 42. In 24 American Jurisprudence 2d, the term "mental cruelty" has been defined as under: "Mental Cruelty as a course of unprovoked conduct toward one's spouse which causes embarrassment, humiliation, and anguish so as to render the spouse's life miserable and unendurable.

The plaintiff must show a course of conduct on the part of the defendant which 1"'so endangers the physical or mental health ofthe plaintiff as to render continued cohabitation unsafe or improper, although the plaintiff need __) not establish actual instances of physical abuse. " 43. In the instant case, our main endeavour would be to define broad parameters of the concept of 'mental cruelty'. Thereafter, we would strive to determine whether the instances of mental cruelty enumerated in this case by the appellant would cumulatively be adequate to grant a decree of divorce on the ground of mental cruelty according to the settled legal position as crystallized by a number of cases of this Court and other Courts. ... 44. This Court has had an occasion to examine in detail the position of mental cruelty in N. G. Dastane v. S.

Dastane, reported in [1975] 2 SCC 326 at page 337, para 30 observed as under :- "The enquiry therefore has to be whether the conduct charges as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent..... " 45. In the case of Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr. , reported in [ 198l] 4 SCC 250, this Court stated that the concept of legal cruelty changes according to the changes and advancement ofsocial concept and standards of living. With the advancement of our social conceptions, this feature has obtained legislative recognition, that- a second marriage is a sufficient ground for separate residence and maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used.

Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which lead to mental or legal cruelty. 46. In the case of Shobha Rani v. Madhukar Reddi, reported in [1988] l SCC 105, ! his Court had an occasion to examine the concept of cruelty. The word 'cruelty' has not been defined in the Hindu Marriage Act. It has been used in Section 13(l)(i)(a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. Ifit is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse.

Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party SAMARGHOSH v. JAYAGHOSH [DALVEER BHANDARI, J. ] 447 cannot be denied on the ground that there has been no deliberate or wilful ill-treatment. 47. ln Rajani v. Subramanian, AIR (1990) Ker.

1 the Court aptly observed that the concept of cruelty depends upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance, judged by standard of modem civilization in the background of the cultural heritage and traditions of out society. 48. Again, this Court had an occasion to examine in great detail the concept of mental cruelty. In the case of V. Bhagat v. D. Bhagat (Mrs. ), reported in [1994] l SCC 337, the Court observed, in para 16 at page 347, as under: "16. Mental cruelty in Section 13(l){i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation . ..

J must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause in. :11ry to the health ofthe petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may ;. not amount to cruelty in another case. It is a matter to be detennined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made. " 49. This Court aptly observed in Chetan Dass v.

Kam/a Devi, reported in [2001] 4 sec 250, para 14 at pp. 258-259, as under: "Matrimonial matters are matters ofdelicate human and emotional . relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial ~ .... ' conduct has now come to be governed by statute framed, keeping in "' view such nonns and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial nonns for making of a well-knit, healthy and .. ,_ not a disturbed and porous society. The institution of marriage occupies an important place and role to pity in the society, in general. Therefore, it would not be appropriate to apply any submission of "irretrievably broken marriage" as a straitjacket formula for grant of relief of divorce.

This aspect has to be considered in the background ~of the other facts and circumstances of the case. " 50. In Savitri Pandey v. Prem Chandra Pandey, reported in [2002] 2 SCC 73, the Court stated as under: .. "Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of tlie petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and I... tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. " 51. This Court in the case of Gananath Pattnaik v.

State of Orissa, reported in [2002] 2 sec 619 observed as under: "The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to ... which such person belongs. "Cruelty" for the purposes ofconstituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case. " 52. The mental cruelty has also been examined by this Court in Parveen Mehta v. lnderjit Mehta, reported in [2002] 5 SCC 706 at pp. 716-17 [para 21] which reads as under: , "Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her I j- SAMARGHOSH v. JAYAGHOSH [DALVEERBHANDARI, J. ] 449 . to continue the matrimonial relationship with the other.

Mental cruelty ~ is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances take11 cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be "f°!

"' to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other. " 53. In this case the Court also stated that so many years have elapsed since the spouses parted company. In these circumstances it can be reasonably inferred that the marriage between the parties has broken down irretrievably. t_ 54. In A. Jayachandra v. Aneel Kaur, reported in [2005] 2 SCC 22, the Court obse1 red as under: "The expression "cruelty" has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution ofmarriage may be defined as wilful and unjustifiable conduct ofsuch _) character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger.

The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview ofa matrimonial wrong. Cruelty need not be physical. Iffrom the conduct of the spouse, same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that -. J it causes an apprehension in the mind of the other spouse, '1bout his or her mental welfare then this conduct amounts to cruelty. In a .... delicate human relationship like matrimony, one has to see the probabilities of the case. The concept proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see.

what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that . :me has to consider the evidence in matrimonial disputes. 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 ofparties, 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 ar;d torture may well constitute cruelty within the meaning of Section l 0 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. SAMAR GHOSH v. JAYAGHOSH [DALVEER BHANDARI, J. ] 451 ) 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 1 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 ofanother. 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 nonna! 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 ofunfounded variety, which can be subtle or brutal. It may be words, gestures 0r by mere silence, violent or non-violent. " 55. This Court in Vinita Saxena v.

Pankaj Pandit, reported in (2006] 3 sec 778 aptly observed as under: "As to what constitutes the required mental cruelty for the purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature . ) only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that th~ maintenance ofmatrimonial home is not possible any longer. " 56. In Shobha Rani's case (supra) at pp. 108-09, para 5, the Court observed as under: ...

7' "5. Each case may be different. We deal with the conduct of human beings who are no generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is th(! wonderful (sic) realm of cruelty. " 57. In this case, the Court cautioned the lawyers and judges not to import their own notions of life in dealing with matrimonial problems. The judges should not evaluate the case from their own standards. There may be a generation gap between the judges and the parties. It is always prudent if the judges keep aside their customs and manners in deciding matrimonial cases in particular. 58. In a recent decision of this Court in the case of Rishikesh Sharma v.

Saroj Sharma, reported in (2006) 12 Scale 282, this Court observed that the respondent wife was living separately from the year 1981 and the marriage has broken down irretrievably with no possibility of the parties living together again. The Court further observed that it will not be possible for the parties to live together and therefore there was no purpose in compelling both the parties to live together. Therefore the best course was to dissolve the marriage by passing a decree of divorce so that the parties who were litigating since 1981and had lost valuable part of life could live peacefully in remaining part of their life. The Court further observed that her desire to live with her husband at that stage and at that distance of time was not genuine. 59. This Court observed that under such circumstances, the High Court was not justified in refusing to exercise its jurisdiction in favour of the appellant who sought divorce from the Court. 60.

"Mental cruelty" is a problem of human behaviour. This human problem unfortunately exists all over the world. Existence of similar problem and its adjudicati not grant a decree of divorce on -evidence of merely distasteful or irritating conduct on the part of the offending spouse. The word 'cruelty' denotes excessive suffering, severity of pain, mercilessness; not mere displeasure, irritation, anger or dissatisfaction; furthermore, the Act requires that" cruelty must be of such a kind as to render intolerable continued cohabitation. " 85. In Knoll v. Knoll, 10 D. L. R. (3d) 199, the Ontario Court of Appeal .. >, examined this matter. The relevant portion reads as under: ,, "Over the years the courts have steadfastly refrained from attempting to formulate a general definition of cruelty.

As used in ordinary parlance "cruelty" signifies a disposition to inflict suffering; to delight in or exhibit indifference to the pain or misery of others; mercilessness or hard-heartedness as exhibited in action. If in the marriage relationship one spouse by his conduct causes wanton, malicious or unnecessary infliction of pain or suffering upon the body, the feelings or emotions of the other, his conduct may well constitute cruelty which will entitle a petitioner to dissolution of the marriage if, in the court's opinion, it amounts to physical or mental cruelty "of such a kind as to render intolerable the continued cohabitation of the spouses. " 86. In Luther v. Luther, (1978) 5 R. F. L (2d) 285, 26 N. S. R. (2d) 232, 40 A. P. R. 232], the Supreme Court of Nova Scotia held as under: "7. The test of cruelty is in one sense a subjective one, namely, as .. has been said many times, is this conduct by this man to this woman, or vice versa, cruelty?

But that does not mean that what one spouse . -' may consider cruel is necessarily so. Cruelty must involve serious and weighty matters, which, reasonably considered, may cause physical or mental suffering. It must furthermore - an important additional requirement - be of such a nature and kind as to render such conduct intolerable to a reasonable person. " The Supreme Court further held as under: "9. To constitute mental cruelty, conduct must be much more than jealousy, selfishness or possessiveness which causes unhappiness, dissatisfaction or emotional upset. Even less can mere incompatibility or differences in temperament, personality or opinion be elevated to ·~ grounds for divorce. " 87. In another case Zalesky v. Zalesky, I D. L. R. (3d) 471, the Manitoba ' Court of Queen's Bench observed that where cohabitation of the spouses become intolerable that would be another ground of divorce.

The Court held as under: "There is now no need to consider whether conduct complained of caused 'danger to life, limb, or health, bodily or mentally, or a reasonable apprehension ofit' or any ofthe variations ofthat definition ...... to be found in the Russell case. "" In choosing the words 'physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses' Parliament gave its own fresh complete statutory definition of the conduct which is a ground for divorce under s. 3(d) of the Act. " AUSTRALIAN CASES: 88. In Dunkley v. Dunkley, (1938) SASR 325, the Court examined the term "legal cruelty" in the following words: "'Legal cruelty', means conduct of such a character as to have c~used injury or danger to life, limb or health (bodily or mental), or as to give rise to a reasonable apprehension of danger.

Personal violence, actual or threatened, may alone be sufficient; on the other hand, mere vulgar abuse or false accusations of adultery are ordinarily not enough; but, if the evidence shows that conduct of this nature had been persisted in until the health ofthe party subjected to it breaks down, or is likely :to break down, under the strain, a finding of cruelty is justified. " ~ 89. In La Rovere v. La Rovere, [4 FLR I], the Supreme Court ofTasmania held as under: "When the legal conception of cruelty is described as being conduct of such a character as to cause danger to life, limb or health, bodily ,G or mental, or to give rise to a reasonable apprehension of such danger, it is vital to bear in mind that it comprises two distinct elements: first, the ill-treatrrient complained of, and, secondly, the resultant danger or the apprehension thereof.

Thus it is inaccurate and liable to lead to confusion, if the word 'cruelty' is used as descriptive only of the conduct complained of, apart from its effect on the victim. " ,>-- SAMARGHOSH v. JAYA GHOSH [DALVEER BHANDARI, J. ] 461 r:- 90. We have examined and referred to the cases from the various I' countries. We find strong basic similarity in adjudication of cases relating to mental cruelty in matrimonial matters. Now, we deem it appropriate to deal with the 71st report of the Law Commission of India on "Irretrievable Breakdown of Marriage". 91. The 71st Report of the Law Commission of India briefly dealt with the concept ofirretrievable breakdown ofmarriage. This Report was submitted to the Government on 7th April, 1978. In this Report, it is mentioned that ..... during last 20 years or so, and now it would be around 50 years, a very ..

important question has engaged the attention of lawyers, social scientists and men of affairs, should the grant of divorce be based on the fault of the party, or should it be based on the breakdown of the marriage? The former is known as the matrimonial offence theory or fault theory. The latter has come to be known as the breakdown theory. It would be relevant to recapitulate recommendation of the said Report. 92. In the Report, it is mentioned that the germ ofthe breakdown theory, so far as Commonwealth countries are concerned, may be found in the legislative and judicial developments during a much earlier period. The (New Zealand) Divorce and Matrimonial Causes Amendment Act, 1920, included for the first time the provision that a separation agreement for three years or more was a ground for making a petition to the court for divorce and the court was given a discretion (without guidelines) whether to grant the divorce or not.

The discretion conferred by this statute was exercised in a case Lodder v. Lodder 1921 New Zealand Law Repo~s 786. Salmond J. , in a passage which has now become classic, enunciated the breakdown principle in these words: "The Legislature must, I think, be taken to have intended that separation for three years is to be accepted by this court, as prima facie a good ground for divorce. When the matrimonial relation has for that period ceased to exist de facto, it should, unless there are special reasons to the contrary, cease to exist de jure also. In general, it is not in the interests of the parties or in the interest of the public that· a man and woman should remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such a separation the essential purposes of marriage have been frustrated, and its further continuance is in general not merely -~ useless but mischievous. " 93.

In the said Report, it is mentioned that restricting the ground of llllil -.... divorce to a particular offence or matrimonial disability, causes injustice in "' those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet such a situation has arisen in which the marriage cannot survive. The marriage has all the external appearances of marriage, but none in reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a fagade, when the emotional and other bonds which are of the essence of marriage have disappeared. ..... 94.

It is also mentioned in 'the Report that in case the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce, then the parties alone can decide whether their mutual relationship provides the fulfilment which they seek. Divorce should be seen as a solution _. _ and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties. and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances. 95. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down.

The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties. '! -- 96. Law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are presented concrete instances of human behaviour as bring the institution of marriage into disrepute. 97. This Court in Naveen Kohli v. Neelu Kohli, reported in (2006] 4 SCC 558 dealt with the similar issues in detail. Those observations incorporated in paragraphs 74 to 79 are reiterated in the succeeding paragraphs. "74. We have been principally impressed by the consideration that ~ once the marriage has broken down beyond repair, it would be ,,.

unrealistic for the law not to take notice of that fact, and it would be ~ SAMARGHOSH v. JAYA GHOSH [DALVEER BHANDARI, J. ] 463 hannful to society and injurious to the interests of the parties. Where ,> there has been a long period of continuous separation, it·may fairly be surmised that the matrimonial bond is. beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. 75. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be -> maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact. 76.

Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying - to keep the parties tied for ever to a marriage that in fact has ceased to exist. " 77. Some jurists have also expressed their apprehension for introduction of irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems then are sought to be solved. 78. The other majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot tum a blind eye to such situations, nor can it decline to give adequate response to the necessities arising therefrom. 79.

When we carefully evaluate the judgment of the High Court and scrutinize its findings in the background ofthe facts and circumstances of this case, it becomes obvious that the approach adopted by the ·High Court in deciding this matter is far from satisfactory. " 98. On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition ofthe concept of 'mental cruelty' within which -.. : all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty. ' 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 ofsensitivity, educational, family and cultural bal. kground, 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 modem 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. co On consideration ofcomplete matrimonial life ofthe 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. (ii.

t) 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 a'osolutely intolerable. . ,. (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct t SAMARGHOSH v. JAYA GHOSH [DALVEER BHANDARI, J. ] 465 of other for a long time may lead to mental cruelty. t (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 repreherisible 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 I 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 J( 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 Jong 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 tl. e parties. In such like situations, it may lead to mental cruelty. I02. When we take into consideration aforementioned factors along with an important circumstance that the parties are admittedly living separately for more than sixteen and half years (since 27. 8. 1990) the irresistible conclusion would be that matrimonial bond has been ruptured beyond repair because of the mental cruelty caused by the respondent. 103. The High Court in the impugned judgment seriously erred in reversing the judgment of the learned Additional Sessions Judge.

The High Court in the impugned judgment ought to have considered the most important and vital circumstance of the case in proper perspective that the parties have , been living separately since 27th August, 1990 and thereafter, the parties did not have any interaction with each other. When the appellant was seriously ill and the surgical intervention of bye-pass surgery had to be restored to, even on that occasion, neither the respondent nor her father or any member of her family bothered to enquire about the health of the appellant even on telephone. This instance is clearly illustrative of the fact that now the parties have no emotions, sentiments or feelings for each other at least since 27. 8. 1990. This is a clear case of irretrievable breakdown ofmarriage. In our considered view, it is impossible to-preserve or save the marriage. Any further effort to ~keep it alive would prove to be totally counter-productive. 104. In the backdrop of the spirit of a number of.

decided cases, the learned Additional District Judge was fully justified in decreeing the appellant's suit for divorce. In our view, in a case of this nature, no other logical view is possible. 105. On proper consideration of cumulative facts and circumstances of this case, in our view, the High Court seriously erred in rever::1ing the judgment of the learned Additional District Judge which is based on carefully watching the demeanour of the parties and their respective witnesses and the ratio and SAMARGHOSH v. JAYAGHOSH [DALVEER BHANDARI, J. ] 467 spirit of the judgments of this Court and other Courts. The High Court erred A in setting aside a well-reasoned judgment of the trial court based on the correct analysis of the concept ofmental cruelty. Consequently, the impugned judgment of the High Court is set aside and the judgment of the learned Additional District Judge granting the decree of divorce is restored. 106.

_This appeal is accordingly disposed of but, in the facts and B circumstances of the case, we direct th~ parties to bear their own costs. R. P. Appeal disposed of. .. 1.