IN THE HIGH COURT OF JUDICATURE AT PATNA

Miscellaneous Appeal No.205 of 2023

======================================================
Alok Bharti, Son of Sri Anul Lal Sah Permanent resident of Village-Neem
Chowk Tajpur, P.S. Tajpur, District-Samastipur, Currently residing at Type
111/9/7, MSEB Colony, National Park, Borivalli East, Mumbai-400066,
Maharashtra

... ... Appellant/s

Versus

Jyoti Raj W/o Alok Bharti, D/o Sri Umesh Prasad Sah Resident of Village-
Neem Chowk Tahpur, P.S. Tajpur, Currently residing at Indu Sada, Lohsari
Road, Village-Singhray Mahua, P.S. Mahua, District-Vaishali.

... ... Respondent/s

======================================================
Appearance :
For the Appellant/s : Mr. Ankit Katriar, Advocate
Mr. Ankit Kumar Singh, Advocate
For the Respondent/s : Mr. Nikhil Kumar Agrawal, Advocate
Ms. Aditi Hansaria, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)

Date : 18-12-2023

Present Miscellaneous Appeal No. 205 of 2023 is arising

out of Matrimonial (Divorce) Case No. 105 of 2019, on the file of

the learned Principal Judge, Family Court, Vaishali at Hajipur by

which appellant’s petition for divorce under Section 13 1(ia) 1(ib)

of the Hindu Marriage Act, 1955 is declined.

2. Brief facts of the case are that appellant-husband and

respondent-wife married in terms of Hindu rites and customs on

29.11.2012. Out of their wedlock, respondent-wife gave birth to a

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male child on 09.11.2013. Till 04.06.2015/05.06.2015 they were

living together. Appellant-husband at the relevant point of time

was a Junior Engineer in the Maharastra State Power Generation

Company Limited.

3. Respondent was also living with her husband at

Mumbai for sometime. There were certain domestic issues mainly

respondent-wife was not willing to live in husband’s matrimonial

home at village called Neem chowk, Tajpur, P.S- Tajpur, District-

Samastipur, Bihar. Whereas, appellant and his parents were

insisting respondent to stay in the aforementioned village to look

after her in-laws. Further there were allegation against the

husband-appellant and his parents and ten others, who are related

or well wishers of husband. In this regard, criminal proceedings

were initiated under Section 498 A and allied Sections, Mahua P.S.

Case No. 294 of 2016. During pendency of the criminal

proceedings six names were dropped whereas, offences under

Section 498 (A) and allied Sections is still pending against

appellant and his parents. Case for grant of maintenance under

Sections 125 of Cr.P.C proceeded against husband, it is still

pending consideration before the various judicial forums.

4. Simultaneously, respondent filed domestic violence

case by means of filing complaint and it is also pending

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consideration. Further, she had filed complaint against her

husband before his employer to take disciplinary action and

remove him from service. She has also made serious allegations

about the character of the husband and against his mother in the

domestic violence complaint/petition.

5. In this backdrop appellant-husband filed matrimonial

(divorce) case no. 105 of 2019, on the file of learned Family

Principal Judge, Vaishali at Hajipur under Section 13 1(ia) 1(ib) of

Hindu Marriage Act, 1955.

6. The learned Principal Judge, Family Court decline

the appellant’s petition of the matrimonial (divorce) case no. 105

of 2019 on 16.02.2023.

7. Learned counsel for the appellant vehemently

contended that Family Court failed to appreciate cruelty meted out

to the appellant. On this issue learned counsel for the appellant

submitted that respondent was not willing to join her matrimonial

home and stay in a joint family or stay in the in-law’s house.

Criminal proceedings were initiated under Section 498 (A) and

other allied offences. It is also submitted that she had filed

complaint before the employer to take disciplinary action and to

remove him from service and domestic violence petition was filed
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under various Sections like Section 12, 18(d)(e)(f), 19 (f), 20 I(b)

(d), 22 and Section 23.

8. It is submitted that these three issues suffice to say

that appellant is facing character assassination, humiliation and

embarrassment in the family circle and in his work place and in

over all in the society and these issues would fall under mental

torture and leads to cruelty at the hands of the respondent-wife.

9. Learned counsel for the appellant further relied on

documents, Exhibits P/1 to P/4 which are relating to

communication, domestic petition rejection of Criminal

Miscellaneous.

10. It is submitted that having regard to the

aforementioned allegations of 498 (A) and lodged case of

Domestice Violence Act (D.V. Act), case for grant of maintenance

under Sections 125 of Cr.P.C domestic violence, and complaint

before the employer would suffice to hold that appellant faced a

cruelty at the hands of respondent. The same has not been

appreciated by the Family Court. In support of the aforementioned

contentions learned counsel for the appellant relied on Apex Court

decision in the case of K. Srinivas Rao vs D.A. Deepa (2013) 5

SCC Page No. 226 (Para-11,16,27,29 and 34). In the light of these

facts and circumstances, learned counsel for the appellant

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submitted that impugned order dated 16.02.2023 passed in

matrimonial (divorce) case no. 105 of 2019 on the file of Principal

Judge, Family Court, Vaishali at Hajipur, State of Bihar is liable to

be set aside while allowing the matrimonial case no. 105 of 2019

and to award decree of divorce while dissolving marriage among

appellant and respondent performed on 29.11.2012. No other

contention is urged.

11. Per contra, learned counsel for the respondent

resisted the aforementioned contentions submitted that isolated

incidents does not amount to cruelty. The same has been

appreciated by the Family Court. The respondent is prepare to join

her husband with a rider that she will be withdrawing all pending

litigation filed against the appellant husband and her in-laws.

12. Learned counsel for the respondent relied on Apex

Court decision in the case of Ashok Kumar Jain Vs Sumati

Jain, reported in AIR 2013 SC 2916 (Para 13). In this case Apext

Court has held that isolated certain incidents among the husband-

wife does not amount to cruelty. In the present case isolated

incidents are involved and respondent express that she would be

withdrawing all criminal proceedings as well as domestic violence

litigations in the event of refusal of decree of divorce. Further, it is

addressed that there is no infirmity in the judgment of the Family

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Court. It is also submitted that cited decision on behalf of the

appellant K. Srinivas Rao vs D.A. Deepa (2013) 5 SCC has no

application and it all depends on individual case with reference to

allegations and those allegations amount to cruelty or not.

Therefore respondent submitted that the present Miscellaneous

Appeal is liable to be rejected while affirming the decision of the

Family Court judgement dated 16.02.2023. No other contention is

urged.

13. The Family Court while deciding the matrimonial

divorce case 105 of 2019 relied on twenty six exhibits on behalf

of the appellant and four on behalf of the respondent at the same

time four witnesses have been examined on behalf of the appellant

(including appellant) and on behalf of the respondent three

witnesses (including respondent).

14. Heard learned counsels for the respective parties.

15. On the basis of contentions of the respective parties,

the Family Court framed the following issues:

“I. Is this suit, as framed, maintainable?

II. Whether the petitioner has got valid
cause of action and right to sue?
III. Whether the O.P. has deserted the
petitioner continuously for a period of more than two
years since preceding the presentation of the instance
case?
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IV. Whether the behaviour the O.P. is cruel

towards the petitioner?
V. Whether the petitioner is entitled to get a
decree of divorce against the O.P.?
VI. To what other relief or reliefs the
petitioner is entitled?”

16. The Family Court while deciding the Matrimonial

Divorce Case No. 105 of 2019 relied on 26 Exhibits on behalf of

the appellant and 4 Exhibits on behalf of the respondent. Further,

four and three witnesses on behalf of the appellant and the

respondent were examined and cross-examined respectively.

17. The appellant and respondent married in terms of

Hindu rites and custom on 29.11.2012. Out of their wedlock,

respondent - wife gave birth to a male child on 09.11.2013. Till

04.06.2015, they were living together. Thereafter, they remained

living separately due to various domestic issues. After marriage,

respondent was staying in matrimonial home. It is learnt that

appellant’s parents were also living for some time in Mumbai.

There were certain domestic issues among the family members

like dislike among the respondent – wife and her husband’s

parents, in-laws resulted in demand of living separately on behalf

of respondent - wife. On the other hand, appellant was insisting to

stay in a joint family, since he was only son to his parents. In fact,

for some time the parents of the respondents were also visited
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appellant and respondent when they were in Mumbai. Respondent

had gone to her parent’s house and, thereafter, she was residing in

Mumbai on her own and not staying with her husband. Similarly,

she was staying in her brother’s place at New Delhi. In this

backdrop, respondent initiated criminal proceedings under Section

498 – A of the Penal Code, 1860 and Sections 3 and 4 of the

Dowry Act, 1961 and allied offences against her husband and her

in-laws and others who are well wishers to her husband in the year

2016. The appellant filed an anticipatory bail in which he had

expressed that he shall look after the respondent and child, but it

was rejected by her and she opposed anticipatory bail application.

However, appellant had a benefit of anticipatory bail on

30.09.2016 before this Court.

18. Faced with aforementioned offences under section

498 A of the IPC and allied cases against respondent and the fact

that appellant had a benefit of anticipatory bail, respondent

proceeded to instigate appellant’s employer while making wild

allegations against appellant and so as to remove him from service.

Thereafter, she has filed Domestic Violence Case No. 95 of 2016

at Patna against appellant of alleging adultery, fornication and

further alleged that appellant and her mother-in-law are involved

in soliciting prostitution. She fought tooth and nail in every reliefs

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sought by the appellant in the Court of law. She was paid interim

maintenance of Rs. 10,000/-.

19. Brief allegations levelled by the respondent are that

filing of criminal case under Section 498 A of the IPC and other

allied offences against appellant and his parents and well wishers

of the appellant. During pendency of the aforementioned criminal

case, six names were dropped while continuing with appellant and

his parents. The second issue is relating to filing of a false

complaint to the appellant’s employer against appellant while

making certain character assassination so as to impress the

employer to take necessary steps to remove the appellant from

service. The third issue is relating to filing of Domestic Violence

Petition under Sections like Section 12, 18 (d) (e) (f), 19 (f), 20 (i)

(b) (d), Sections 22 and 23. Perusal of Exhibit P1, which is a

complaint on behalf of respondent - wife to the employer of the

appellant, except alleged date of demand of dowry i.e. 29.11.2012

and in respect of other allegations stated in paragraph Nos. 3, 4

and 5, they are very vague in the absence of any particular date

and time. Exhibit P2 is the order sheet maintained by the CJM,

Vaishali at Hajipur in respect of recording of certain alleged

incidents and further directing the respective parties to appear

physically on 16.12.2016 and try to restore in their matrimonial

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home. Exhibit P3 is the copy of petition filed in the Court of Chief

Judicial Magistrate, Patna Civil Court namely Domestic Violence

Case No. 95 of 2016. Exhibit P4 is a notice relating to Cr. Misc.

No. 44135 of 2017 filed before this Court. From these documents,

it is only factual aspect of the matter to the extent that respondent

filed complaint and pendency of the litigations and material shown

is relating to cruelty or not? Those cases were required to be

adjudicated, hence, not much relevance in favour of the appellant.

20. Respondent - wife denied the alleged allegations

levelled by her husband – appellant. However, she has admitted

that at the instigation of her advocate she was compelled to make

the aforementioned allegations in all the three issues. However,

she has resisted insofar as offence under Section 498 A of the IPC

and certain domestic violence, in other words, she was subjected to

dowry demand and domestic violence, but she has admitted the

allegations of character assassination against appellant and her

mother-in-law are untrue. She had produced certain material

information relating to domestic violence like injury and its

subject matter of litigation.

21. Taking note of the allegations and counter

allegations between the appellant and the respondent, the Trial

Court while referring to decision in the case of Shailendra

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Kumar Chandra Versus Smt. Bharti Chandra First Appeal

(M) No. 124/2017 and K. Sriniwas Rai versus D.A. Deepa Civil

Appeal No. 1794/2013 and on behalf of respondent – Shobha

Rani versus Madhukar Reddi (1998) 1 Supreme Court Cases

105 proceeded to hold that the appellant has not made out cruelty

with reference to the alleged allegations made by the respondent.

Further, in the absence of pleading, Family Court proceeded to

hold that the appellant has not made out a case of desertion against

the respondent. Ultimately, the following order was passed.

“The petitioner has failed to prove

desertion or cruelty as claimed. Therefore, the present
case is dismissed. No order with respect to cost is being
passed. The office is directed to hand over copy of the
order to the parties of per law”

22. The law as to matrimonial offences by cruelty by one

or the other spouse has been elucidated by the Supreme Court in

number of rulings. The same are extracted as follows:

23. The Supreme Court in the case of V.Bhagat Vs. D.

Bhagat, reported in AIR 1994 SC 710, has held that, mental

cruelty in Section 13(1) (i-a) can broadly be defined as that

conduct which inflicts upon the other party such mental pain and

suffering as would make it not possible for that party to live with

the other. In other words, mental cruelty must be of such a nature

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that the parties cannot reasonably be asked to put up with such

conduct and continue to live with the other party. It is not

necessary to prove that the mental cruelty is such as to cause injury

to the health of the petitioner. While arriving at such conclusion,

regard must be had to the social status, educational level of the

parties, the society they move in, the possibility or otherwise of the

parties ever living together in case they are already living apart

and all other relevant facts and circumstances which it is neither

possible nor desirable to set out exhaustively. What is cruelty in

one case may not amount to cruelty in another case. It is a matter

to be determined in each case having regard to the facts and

circumstances of that case. If it is a case of accusations and

allegations, regard must also be had to the context in which they

were made.

24. Yet again the Supreme Court in Parveen Mehta Vs.

Inderjit Mehta, reported in AIR 2002 SC 2582, has held thus :

“21. Cruelty for the purpose of Section 13(1)(i-a) is to be taken as

a behavior by one spouse towards the other, which causes

reasonable apprehension in the mind of the latter that it is not safe

for him or her to continue the matrimonial relationship with the

other. Mental cruelty is a state of mind and feeling with one of the

spouses due to the behaviour or behavioural pattern by the other.

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Unlike the case of physical cruelty, mental cruelty is difficult to

establish by direct evidence. It is necessarily a matter of inference

to be drawn from the facts and circumstances of the case. A feeling

of anguish, disappointment and frustration in one spouse caused by

the conduct of the other can only be appreciated on assessing the

attending facts and circumstances in which the two partners of

matrimonial life have been living. The inference has to be drawn

from the attending facts and circumstances taken cumulatively. In

case of mental cruelty it will not be a correct approach to take an

instance of misbehaviour in isolation and then pose the question

whether such behaviour is sufficient by itself to cause mental

cruelty. The approach should be to take the cumulative effect of

the facts and circumstances emerging from the evidence on record

and then draw a fair inference whether the petitioner in the divorce

petition has been subjected to mental cruelty due to conduct of the

other”.

25. In the case of A. Jayachandra Vs. Aneel Kaur,

reported in AIR 2005 SC 534, the Supreme Court has held that, the

expression ‘cruelty’ has not been defined in the Act. Cruelty can be

physical or mental. Cruelty which is a ground for dissolution of

marriage may be defined as willful and unjustifiable conduct of

such character as to cause danger to life, limb or health, bodily or

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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 of a matrimonial wrong. Cruelty need not

be physical. If from the conduct of the spouse same is established

and/or an inference can be legitimately drawn that the treatment of

the spouse is such that it causes an apprehension in the mind of the

other spouse, about his or her mental welfare then this conduct

amounts to cruelty. In a delicate human relationship like

matrimony, one has to see the probabilities of the case. 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, the
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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 one has to consider the evidence in matrimonial disputes.

26. In the case of Naveen Kohli Vs. Neelu Kolhi,

reported in AIR 2006 SC 1675, the Supreme Court has held that,

the word “Cruelty” has to be understood in the ordinary sense of

the term in matrimonial affairs. If the intention to harm, harass or

hurt could be inferred by the nature of the conduct or brutal act

complained of, cruelty could be easily established. But the absence

of intention should not make any difference in the case. There may

be instances of cruelty by unintentional but inexcusable conduct of

any party. The cruel treatment may also result from the cultural

conflict between the parties. Mental cruelty can be caused by a

party when the other spouse levels an allegation that the petitioner

is a mental patient, or that he requires expert psychological

treatment to restore his mental health, that he is suffering from

paranoid disorder and mental hallucinations, and to crown it all, to

allege that he and all the members of his family are a bund of

lunatics. The allegation that members of the petitioner’s family are

lunatics and that a streak of insanity runs through his entire family

is also an act of mental cruelty.

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27. In the case of Ramchander Vs. Ananta, reported in

(2015) 11 SCC 539, the Supreme Court has again held that

instances of cruelty are not to be taken in isolation but cumulative

effect of facts and circumstances emerging from evidence on

record and then drawing a fair inference whether plaintiff has been

subjected to mental cruelty due to conduct of other spouse has to

be culled out.

28. The principle is, thus, settled that whether in the

facts and circumstances of a given case, the petitioner has been

able to make out a case of grant of divorce on the ground of

cruelty would depend upon the nature of pleadings and evidence in

that case and there can be no straitjacket formula nor an exhaustive

list of instances can be prepared, where cruelty is said to have been

committed by one or other party to the marriage. Cruelty can also

not be inferred by applying any formula because the said question

is to be determined keeping in view the social status of the parties,

their financial and other conditions, the atmosphere and the kind of

employment or vocation which they carry out would all be

important to interfere whether on the given set of allegations it has

become difficult for the petitioner to live with the other side and

the behaviour of such degree which amounts to the cruelty.

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29. Learned counsel for the appellant relied upon the

judgment in the case of K. Sriniwas Rai cited supra, in Paragraph

Nos. 11, 16, 27, 29 and 34 held as under:

11. In Samar Ghosh [(2007) 4 SCC 511]

this Court set out illustrative cases where inference of
“mental cruelty” can be drawn. This list is obviously
not exhaustive because each case presents its own
peculiar factual matrix and existence or otherwise of
mental cruelty will have to be judged after applying
mind to it. We must quote the relevant paragraph of
Samar Ghosh [(2007) 4 SCC 511] . We have
reproduced only the instances which are relevant to
the present case: (SCC pp. 546-47, para 101)
“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)***
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(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)-(ix)***
(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)-(xiii)***
(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.”
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16. Thus, to the instances illustrative of

mental cruelty noted in Samar Ghosh [(2007) 4 SCC
511] , 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.
27. We need to now see the effect of the
above events. In our opinion, the first instance of
mental cruelty is seen in the scurrilous, vulgar and
defamatory statement made by the respondent wife in
her complaint dated 4-10-1999 addressed to the
Superintendent of Police, Women Protection Cell. The
statement that the mother of the appellant husband
asked her to sleep with his father is bound to anger
him. It is his case that this humiliation of his parents
caused great anguish to him. He and his family were
traumatised by the false and indecent statement made
in the complaint. His grievance appears to us to be
justified. This complaint is a part of the record. It is a
part of the pleadings. That this statement is false is
evident from the evidence of the mother of the
respondent wife, which we have already quoted. This
statement cannot be explained away by stating that it
was made because the respondent wife was anxious to
go back to the appellant husband. This is not the way
to win the husband back. It is well settled that such
statements cause mental cruelty. By sending this
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complaint the respondent wife has caused mental

cruelty to the appellant husband.
29. In our opinion, the High Court wrongly
held that because the appellant husband and the
respondent wife did not stay together there is no
question of the parties causing cruelty to each other.
Staying together under the same roof is not a
precondition for mental cruelty. Spouse can cause
mental cruelty by his or her conduct even while he or
she is not staying under the same roof. In a given
case, while staying away, a spouse can cause mental
cruelty to the other spouse by sending vulgar and
defamatory letters or notices or filing complaints
containing indecent allegations or by initiating
number of judicial proceedings making the other
spouse's life miserable. This is what has happened in
this case.
34. In the ultimate analysis, we hold that
the respondent wife has caused by her conduct mental
cruelty to the appellant husband and the marriage has
irretrievably broken down. 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 appellant husband, but, that is not
possible now. The appellant husband is not willing to
take her back. Even if we refuse decree of divorce to
the appellant husband, there are hardly any chances
of the respondent wife leading a happy life with the
appellant husband because a lot of bitterness is
created by the conduct of the respondent wife.
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He is also relying on Apex Court decision in the

case of Ashok Kumar Jain vs. Sumati Jain reported in

AIR 2013 SC 2916, Para 13 reads as under:

13. The High Court perused the divorce

petition as was filed by the appellant against his first
wife as well as the divorce petition filed by the
appellant against the present respondent and noticed
that they are almost identical in their content. The same
sets of allegations were levelled against the first wife as
levelled against the present respondent. This clearly
shows the modus operandi of the appellant.

30. It is submitted that the aforementioned decisions

have not been appreciated by the Family Court. Of course, it all

depends on each individual case. Ultimately, how cruelty is meted

out to a particular party is required to be examined with reference

to the material available on record. In the present case, either of

the parties should have invoked Section 9 of the Hindu Marriage

Act, 1955 for restitution of conjugal rights before the jurisdictional

forum. On the other hand, respondent, if she had meted out any

domestic violence or dowry harassment, she should have resorted

appropriate remedy with due care since her marital life was under

threat. Initially, she should have resorted for Panchayat or filing of

restitution of conjugal rights. On the other hand, she straightway

initiated criminal proceedings under Section 498 A of the IPC and

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allied Sections against appellant and his parents and his well

wishers. Dropping of six names from the above proceedings, it is

evident that unnecessarily she has dragged some of the parties to

the lis. Further, taking note of complaint made by the respondent

to the employer of the appellant while alleging character

assassination and to see that he should be removed from service

and further filing of domestic violence while alleging that

appellant was in adultery, fornication and further alleging

allegations against appellant and his mother that they are involved

in soliciting prostitution, these are all serious allegations touching

the character of respective persons and it would hurt mentally and

their image in the society and family circle is tarnished. That apart,

each individuals dignity/human dignity is to be valued. Privacy

includes at its core the preservation of personal intimacies, the

sanctity of family life, marriage, procreation, the home and sexual

orientation. Privacy also connotes right to be left alone. Privacy

safeguards individual autonomy and recognizes the ability of

individual to control vital aspects of his or her life. Personal

choices governing way of life are intrinsic to privacy. Privacy

protects heterogeneity and recognizes plurality and diversity of our

culture. While the legitimate expectation of privacy may vary from

the intimate zone to the private zone and from the private to the
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public arenas. It is important to underscore that privacy is not lost

or surrendered merely because the individual is in a public place.

Privacy attaches to the person since it is an essential facet of the

dignity of the human being.

31. Apex Court in the case of K.S. Puttaswamy vs.

Union of India reported in (2017) 10 SCC 1 in paragraph Nos.

298, 299 and 323 held as under:

“298. Privacy of the individual is an

essential aspect of dignity. Dignity has both an intrinsic
and instrumental value. As an intrinsic value, human
dignity is an entitlement or a constitutionally protected
interest in itself. In its instrumental facet, dignity and
freedom are inseparably intertwined, each being a
facilitative tool to achieve the other. The ability of the
individual to protect a zone of privacy enables the
realisation of the full value of life and liberty. Liberty
has a broader meaning of which privacy is a subset. All
liberties may not be exercised in privacy. Yet others can
be fulfilled only within a private space. Privacy enables
the individual to retain the autonomy of the body and
mind. The autonomy of the individual is the ability to
make decisions on vital matters of concern to life.
Privacy has not been couched as an independent
fundamental right. But that does not detract from the
constitutional protection afforded to it, once the true
nature of privacy and its relationship with those
fundamental rights which are expressly protected is
understood. Privacy lies across the spectrum of
protected freedoms. The guarantee of equality is a
guarantee against arbitrary State action. It prevents the
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State from discriminating between individuals. The

destruction by the State of a sanctified personal space
whether of the body or of the mind is violative of the
guarantee against arbitrary State action. Privacy of the
body entitles an individual to the integrity of the
physical aspects of personhood. The intersection
between one's mental integrity and privacy entitles the
individual to freedom of thought, the freedom to believe
in what is right, and the freedom of self-determination.
When these guarantees intersect with gender, they create
a private space which protects all those elements which
are crucial to gender identity. The family, marriage,
procreation and sexual orientation are all integral to the
dignity of the individual. Above all, the privacy of the
individual recognises an inviolable right to determine
how freedom shall be exercised. An individual may
perceive that the best form of expression is to remain
silent. Silence postulates a realm of privacy. An artist
finds reflection of the soul in a creative endeavour. A
writer expresses the outcome of a process of thought. A
musician contemplates upon notes which musically lead
to silence. The silence, which lies within, reflects on the
ability to choose how to convey thoughts and ideas or
interact with others. These are crucial aspects of
personhood. The freedoms under Article 19 can be
fulfilled where the individual is entitled to decide upon
his or her preferences. Read in conjunction with Article
21, liberty enables the individual to have a choice of
preferences on various facets of life including what and
how one will eat, the way one will dress, the faith one
will espouse and a myriad other matters on which
autonomy and self-determination require a choice to be
made within the privacy of the mind. The constitutional
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right to the freedom of religion under Article 25 has

implicit within it the ability to choose a faith and the
freedom to express or not express those choices to the
world. These are some illustrations of the manner in
which privacy facilitates freedom and is intrinsic to the
exercise of liberty. The Constitution does not contain a
separate article telling us that privacy has been declared
to be a fundamental right. Nor have we tagged the
provisions of Part III with an alpha-suffixed right to
privacy : this is not an act of judicial redrafting. Dignity
cannot exist without privacy. Both reside within the
inalienable values of life, liberty and freedom which the
Constitution has recognised. Privacy is the ultimate
expression of the sanctity of the individual. It is a
constitutional value which straddles across the spectrum
of fundamental rights and protects for the individual a
zone of choice and self-determination.
299. Privacy represents the core of the
human personality and recognises the ability of each
individual to make choices and to take decisions
governing matters intimate and personal. Yet, it is
necessary to acknowledge that individuals live in
communities and work in communities. Their
personalities affect and, in turn are shaped by their
social environment. The individual is not a hermit. The
lives of individuals are as much a social phenomenon. In
their interactions with others, individuals are constantly
engaged in behavioural patterns and in relationships
impacting on the rest of society. Equally, the life of the
individual is being consistently shaped by cultural and
social values imbibed from living in the community. This
state of flux which represents a constant evolution of
individual personhood in the relationship with the rest of
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society provides the rationale for reserving to the

individual a zone of repose. The lives which individuals
lead as members of society engender a reasonable
expectation of privacy. The notion of a reasonable
expectation of privacy has elements both of a subjective
and objective nature. Privacy at a subjective level is a
reflection of those areas where an individual desires to
be left alone. On an objective plane, privacy is defined
by those constitutional values which shape the content of
the protected zone where the individual ought to be left
alone. The notion that there must exist a reasonable
expectation of privacy ensures that while on the one
hand, the individual has a protected zone of privacy, yet
on the other, the exercise of individual choices is subject
to the rights of others to lead orderly lives. For instance,
an individual who possesses a plot of land may decide to
build upon it subject to zoning regulations. If the
building bye-laws define the area upon which
construction can be raised or the height of the boundary
wall around the property, the right to privacy of the
individual is conditioned by regulations designed to
protect the interests of the community in planned spaces.
Hence while the individual is entitled to a zone of
privacy, its extent is based not only on the subjective
expectation of the individual but on an objective
principle which defines a reasonable expectation.
323. Privacy includes at its core the
preservation of personal intimacies, the sanctity of
family life, marriage, procreation, the home and sexual
orientation. Privacy also connotes a right to be left
alone. Privacy safeguards individual autonomy and
recognises the ability of the individual to control vital
aspects of his or her life. Personal choices governing a
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way of life are intrinsic to privacy. Privacy protects

heterogeneity and recognises the plurality and diversity
of our culture. While the legitimate expectation of
privacy may vary from the intimate zone to the private
zone and from the private to the public arenas, it is
important to underscore that privacy is not lost or
surrendered merely because the individual is in a public
place. Privacy attaches to the person since it is an
essential facet of the dignity of the human being.”

The aforementioned observations of the Apex Court has

some bearing on the present case to the extent that respondent -

wife tarnished the character of the appellant - husband in the

working place and so also in the society and it amounts to cruelty

meted out to the appellant.

32. Due to the above allegations and initiation of cases

against the appellant by the respondent would fall under the

definition of cruelty meted out to the appellant. Nodoubt,

respondent also suffered certain domestic issues like abuse and the

fact that respondent got injured and so also her son when they

were traveling in car, it is alleged that mother of the appellant

stated to have pushed them from the car. However, appellant has

approached Court of law alleging that he was subjected to cruelty.

33. The Family Court has failed to appreciate the

aforementioned issues of initiation of criminal proceedings,

domestic violence and giving complaint to appellant’s employer

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which has tarnished the image of the appellant at his working

place. Character assassination of adultery, fornication and alleging

that appellant and his mother are involved in soliciting

prostitution. These are the elements of cruelty and it has hurt

mentally to the appellant. The Family Court has not taken note of

the fact that respondent’s intention was not to join her husband in

the light of three cases initiated against her husband and she has

admitted certain allegations made in the litigations were at the

instigation of her Advocate. If it is so, she should have

immediately shown concern in withdrawing those allegations.

Even to this day, she has not made any efforts to withdraw those

allegations. In other words, she has adhered to the arm twisting

method instead of resolving in a polite manner. Further it is to be

noticed that they are living separately from 04.06.2015 and we are

in the month of December, 2023. The appellant is not willing to

condone the lapses or allegations levelled by the respondent, even

though respondent is prepared to give up her allegations at this

hour. The leveling of false allegation by one spouse to the other

having alleged illicit relations with different persons outside the

wedlock amounted to mental cruelty. In the present case,

respondent – wife alleged allegations before the employer of

appellant and in the domestic violence allegations of soliciting

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prostitution by appellant and his mother and appellant involved in

adultery and fornication etc. Respondent admitted those

allegations are at the instigation of her advocate and they are not

true. Social torture by anyone of the spouses to the other, found to

be as the mental torture and cruelty. Respondent harassing

appellant in filing false cases of domestic violence and she has

admitted certain allegations are false and such behaviour amounts

to cruelty. It is also sufficient that if the cruelty is of such type that

it becomes impossible for spouses to live together. Therefore, it is

a marriage irretrievably broken down during the period from

04.06.2015 to this day in the light of institution of criminal

proceedings, domestic violence and complaint to the employer.

34. Recently Apex Court in the case of Roopa Soni vs.

Kamalnarayan Soni reported in 2023 SCC Online SC 1127

decided on 06.09.2023 examined the Statement of objects and

reasons for the Marriage Laws (Amendment) Bill, 1976, clauses

(ia) and (ib) were added to Section 13 and Section13 A while

formulating the objectives which are as under:

“(1) to liberalize the provisions relating to

divorce;
(2) to enable expeditious disposal of
proceedings under the Act;
(3) to remove certain anomalies and
handicaps that have come to light after the passing of
the Acts.”
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In the aforementioned case allegations and counter

allegations by the respondent – wife and appellant - husband, both

the parties are living separately for decade and half. Even in the

aforementioned case marriage was solemnized in the year 2002,

thereafter, a child was born, wife filed a petition under Section

498 A of the Penal Code, 1860 and Section 3 and 4 of the Dowry

Act, 1961 and character assassination whereas in the present case

also identical situation crept in. Therefore, the principle laid down

in the aforementioned decision is aptly applicable to the case in

hand.

35. Gist of allegations in all the three petitions, it is

evident that they amount to cruelty. Therefore, the Family Court

has committed error in dismissing the appellant’s Matrimonial

Divorce Case No. 105 of 2019. Thus, appellant has made out a

prima facie case so as to grant decree of divorce on the ground of

cruelty. Therefore, present appeal is allowed while accepting the

Matrimonial Divorce Case No. 105 of 2019 and ordering

dissolution of marriage between the appellant and respondent

dated 29.11.2012. No order as to costs.

36. Considering the fact that appellant - husband is

Deputy Executive Engineer, Maharashtra State Power Generation

Corporation Limited, he may be holder of the post of Class I

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Officer and he must be well paid and the respondent has to meet

educational expenses of her son and so also maintain herself, we

deem it fit and proper that he shall give an amount of Rs.

10,00,000/- (Rupees Ten Lakhs) to the respondent – wife as

interim alimony subject to adjustment in the case of maintenance

which is pending consideration before the jurisdictional Court.

This amount of Rs. 10,00,000/- (Rupees Ten Lakhs) shall be

deposited in the name of respondent within a period of three

months from today with the Registry of this Court.

37. The decree of divorce shall be made effective only

from the date of such deposit. In the event of such deposit, the

Registry after verifying identity or credentials of the respondent -

wife shall disburse the amount to the respondent – wife without

further reference to this Court.

38. Registry is requested to draw decree in accordance

with law.

(P. B. Bajanthri, J)

( Ramesh Chand Malviya, J)

GAURAV S./-
AFR/NAFR
CAV DATE 07.12.2023
Uploading Date 18.12.2023
Transmission Date