Allegations of illegal intimacy with other women by the wife after successful martial life of 25 years, can be considered as misunderstanding and it can not be considered as mental cruelty for granting divorce -; legal heirs can be added in divorce procedings on the death of spouse .

Allegations of illegal intimacy with other women by the wife after successful martial life of 25 years, can be considered as misunderstanding and it can not be considered as mental cruelty for granting divorce -; legal heirs can be added in divorce procedings on the death of spouse .

the marriage between the parties had taken place in the year 1970 and the undisputed fact is also that the children of the parties are grown up and the very incidents referred to by the appellant regarding the illegitimate relationship were from the point of time when the respondent was posted at Manipur and the appellant herein had shifted there in the year 1991.

By such time the marital bond was quite mature and with regard to certain incidents where there were allegations it can only be considered as a misunderstanding between the parties which only required a minor adjustment to reassure each other and iron out the crease.

Hence, merely because certain issues have been raised with regard to the same, even if it be on a misunderstanding in the instant facts, it cannotbe considered as inflicting mental cruelty in the nature it is required for considering the petition under Section 13 of the Hindu Marriage Act for dissolving the marriage.

NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2021 OF 2010

Ravinder Kaur .…Appellant(s)

Versus

Manjeet Singh (Dead) Through Lrs. …. Respondent(s)

J U D G M E N T

A.S. Bopanna,J.

  1. The appellant herein is the wife of the original

respondent who died during the pendency of this appeal.

Since the order impugned passed by the High Court of

Punjab and Haryana dated 23.08.2006 in F.A.O.No.101­

M of 1999 had allowed the appeal and dissolved the

marriage, the marital status of the appellant is in issue

notwithstanding the death of respondent. As such, the

cause of action has continued to subsist and the legal

C.A.No.2021/2010 Page 1 of 16

representatives namely, the daughter and sons of the

deceased respondent were allowed to be brought on

record by this Court through the order dated 05.09.2014

passed in IA No.3 of 2012. In that light, the instant

appeal was heard in that backdrop. In that situation

the reference made during the course of the order to the

respondent would in effect refer to the original

respondent, namely the deceased husband of the

appellant.

  1. The respondent herein instituted the proceedings

in H.M.A. File No.133 of 16.12.1995 through the petition

filed under Section 13 of the Hindu Marriage Act seeking

dissolution of the marriage which was solemnized

between the appellant and respondent during December,

1970 as per the Sikh rites. As on the date of filing the

petition the parties had spent 25 years of married life and

had be gotten two sons and a daughter from the wedlock,

who were also grown up. At that stage the petition was

filed by the respondent­husband seeking dissolution of

the marriage alleging mental cruelty inflicted upon him

C.A.No.2021/2010 Page 2 of 16

by the appellant herein. The parties herein though had

resided in Ludhiana till 1988, had shifted to Bathinda

thereafter. When this was the position, since the

respondent was serving in the Armed Forces, he was

posted at Nagaland in the year 1989 and was thereafter

posted at Manipur till 1992. From the pleading as put

forth before the District Court in the petition, the trigger

for the dispute between the parties arose at the point

when the appellant and the children had gone over to

stay with the respondent at Manipur. According to the

respondent herein he was suffering from gastric and

related problems and due to his illness, a Punjabi family

of Capt. Inderjit Singh looked after the petitioner. In

that circumstance due to the affinity of the family the

said Capt. Inderjit Singh is said to have sent his wife and

children along with the respondent to Bathinda and they

remained there while the respondent had taken

treatment. Subsequent thereto all of them including the

appellant and the children had also gone back to

Manipur. Though the families were known to each other

in that manner, according to the respondent the

C.A.No.2021/2010 Page 3 of 16

appellant herein started levelling baseless allegations

against the respondent herein and his father. The wife of

Capt. Inderjit Singh had conveyed this aspect to Capt.

Inderjit Singh who thereafter told the respondent. The

said incident is stated to have been raised by the

respondent herein in the presence of the appellant to

clarify the situation, but the appellant herein started

shouting at the respondent and also alleged that the

respondent herein had illegitimate relationship with the

wife of Capt. Inderjit Singh.

  1. The further details which led to the

misunderstanding between the appellant and the

respondent is adverted to in the petition filed before the

court below. The respondent was thereafter posted at

Amritsar and according to the respondent even at that

point whenever the respondent visited Bathinda where

the appellant and two sons were staying, the appellant

again raised the said issue and made false allegations

and also had sent the sons and a friend to keep a watch

over the activities of the respondent. Certain other

C.A.No.2021/2010 Page 4 of 16

incidents which had taken place in Amritsar are referred

to in the petition, which need not be elaborated herein.

Apart from the same, the respondent has contended that

the appellant had intentionally lodged a false report

against the respondent to the S.P.(Operations) Bathinda

due to which a case under Section 107/151 of Cr.PC.

was registered and the father of the respondent as also

the respondent were arrested and the proceedings were

held. In addition, the appellant herein is stated to have

filed a suit against the respondent seeking declaration

and permanent injunction with regard to the House

No.22, Kamla Nehru Colony, Bathinda wherein she had

alleged that the respondent had defrauded her. In that

view the respondent herein had contended in the petition

that the said acts of the appellant had amounted to

mental cruelty and therefore had sought for dissolution of

the marriage.

  1. The appellant herein who was the respondent had

filed detailed objections disputing the averments put

forth by the respondent herein in his petition. Insofar as

C.A.No.2021/2010 Page 5 of 16

the incident relating to House No.22, Kamla Nehru

Colony, Bathinda it was contended that the plot was

allotted to the appellant in 1987 and the construction

was put up after obtaining money from the father of the

appellant, after which they were residing along with their

two sons. The appellant has further referred to the

nature of relationship the respondent herein was

maintaining with Mrs. Nirmaljit Kaur wife of Capt.

Inderjit Singh, regarding which she had raised objections

and despite the same they were living in the same room

of the house belonging to the appellant. Certain

incidents in that regard are referred to in her objection

statement so as to justify her action. Insofar as the

action initiated by the appellant by lodging a complaint to

the police, it is contended that in July, 1995 the

respondent along with the relations came to the house of

the appellant, began to attack her, removed the articles

from the house and was forcing her to vacate the house.

It is in that view she had approached the police

authorities pursuant to which the action was taken. In

that light it was contended by the appellant that the act

C.A.No.2021/2010 Page 6 of 16

of the respondent herein in fact would amount to

inflicting cruelty on the appellant herein and not as

alleged by the respondent.

  1. The trial court in that light proceeded to consider

as to whether the appellant herein had treated the

respondent with cruelty and as to whether the appellant

had deserted the petitioner for a continuous period of two

years. While taking note of the same the trial court has

referred to the pleadings of both sides and has taken note

of the nature of allegations that were in fact made by the

respondent­husband against the appellant­wife by

securing the evidence of the witness Sri Daya Singh as

PW­1, to state that the appellant herein had illegitimate

relations with the driver named Swarna. To that effect

the plea taken by the respondent about such relationship

when they were residing in Ludhiana has been referred

and the incident was sought to be raised through the

evidence of the said Sri Daya Singh­PW­1. The trial court

has thereafter referred to the evidence of another witness

on behalf of the respondent herein namely Col. M.S.

C.A.No.2021/2010 Page 7 of 16

Sidhu, a colleague and in that regard having referred to

his evidence has indicated that his evidence is not

trustworthy going by the very nature in which he has

referred to every aspect as if he was privy to all matters of

the family. In that background the trial court had

thought it fit to rely on the evidence of Pritam Singh who

was examined as RW­1, a resident of Gobindgarh as also

the evidence of Gurudayal who was examined as RW­2.

  1. The incident as stated by the respondent herein as

the petitioner before the court below by examining

himself as PW­6 was referred and the entire narration

relating to relationship with Smt. Nirmaljit Kaur was

taken note. In addition the trial court has made a

detailed reference to the evidence of the other witness

who had been examined before it, the details of which

need not be adverted to herein. However, it is seen that

the trial court on such basis had taken note that the

entire issue revolves around the allegations said to have

been made by the appellant against the respondent by

calling the relationship as an illegitimate affair. To that

C.A.No.2021/2010 Page 8 of 16

extent the evidence of one of the sons of the parties Shri

Iqbaal Singh who was examined as RW­6 was taken note,

wherein he has stated that the respondent herein and the

said Smt.Nirmaljit Kaur were behaving like husband and

wife. Insofar as the incident relating to the house which

had resulted in filing the complaint with the police under

Section 107/151 of Cr.PC it was taken note that the

appellant had to take recourse to such proceedings to

protect her right. In that light the trial court having

assessed the totality of the facts and circumstances and

also having taken note about the allegations of

illegitimate affair made by the respondent herein against

the appellant by introducing the name of a person who

did not exist, was of the view that in the existing state of

affairs the incidents as stated by the respondent cannot

be treated as a ground to dissolve the marriage on the

allegations of mental cruelty. Hence, the trial court has

dismissed the petition.

  1. In the appeal filed by the respondent herein before

the High Court, as rightly pointed out by the learned

C.A.No.2021/2010 Page 9 of 16

counsel for the appellant herein the High Court in fact,

has proceeded in the matter with the preconceived

notion that the marriage is irretrievably broken down and

that the dispute is between a couple who have grown up

married children, which has influenced its decision. In

fact, the High Court while finding fault with the judgment

of the trial court has taken exception to the observations

made by the trial court that the parties were living a

happy married life till the third lady intruded in the life of

the appellant and spoiled the whole family atmosphere.

In that regard it is commented by the High Court that the

trial court has not appreciated the allegations made by

the respondent herein regarding the illegitimate

relationship of the appellant­wife with the so­called

driver. The High Court has further observed that it is

noticeable that the appellant had not sought divorce on

the ground of appellant­wife having illegitimate relations

with the driver, but this fact has been mentioned in the

petition, which would indicate that the respondent had

condoned. Having taken note of such observations made

by the High Court it gives the impression that the High

C.A.No.2021/2010 Page 10 of 16

Court has proceeded on the footing as if the allegations

made by the respondent husband against the appellant

wife had been proved before the trial court.

  1. In a proceeding of the present nature when the

respondent herein was contending that the allegations of

illegitimate relationship being made against him had

amounted to mental cruelty and in a situation where the

existence of Smt. Nirmaljit Kaur was not a fiction but

there were two versions to the nature of relationship, the

same cannot be weighed in the same scale when the

allegations against the appellant­wife was made by the

respondent about a non­existent person. If the

respondent­husband is to contend that the allegations of

illegitimate relations made against him has amounted to

mental cruelty, in fact as rightly observed by the trial

court, the bald allegations made by the respondent

against the appellant­wife would also amount to the

same. If that be the position insofar as the allegations to

that effect, the trial court had in fact referred to the

evidence in detail and has arrived at the conclusion that

C.A.No.2021/2010 Page 11 of 16

the ground of mental cruelty in that regard so as to

dissolve the marriage cannot be accepted.

  1. Insofar as the action taken by the appellant herein

to file a police complaint and the proceedings initiated

under Section 107/151 of Cr.PC it is the natural legal

course adopted by respondent to protect her right and

possession of the property. It is not in dispute that at the

point when a complaint was filed and a suit was also

stated to have been filed by the appellant herein on

05.09.1995 there was misunderstanding brewing in the

marital life of the parties and in that circumstance the

appellant herein had adopted the legal course to protect

her rights. Such action taken in accordance with law

cannot, in any event, be considered as inflicting cruelty

as the legal proceedings was used only as a shield

against the assault. In this regard the decision of this

Court in the case of Ramchander vs. Ananta (2015) 11

SCC 539 relied on by the learned counsel for the

appellant would be relevant, wherein while taking note of

similar instances this Court has held that the same

C.A.No.2021/2010 Page 12 of 16

would not amount to cruelty and such instances would

not be convincing enough to lead to a conclusion that the

marriage is irretrievably broken down.

  1. In the above background, keeping in view the

nature of allegations made and the evidence tendered in

that regard, we find that the consideration made by the

trial court with reference to the reliability of the evidence

is more appropriate. As already noticed the High Court,

while taking note of the nature of allegations made has

proceeded on the basis that there is irretrievable

breakdown of the marriage. Needless to mention that

irretrievable breakdown of marriage by itself is not a

ground provided under the statute for seeking dissolution

of marriage. To this effect it would be apposite to refer to

the decision rendered by this Court to that effect in the

case of Vishnu Dutt Sharma vs. Manju Sharma (2009)

6 SCC 379 relied upon by the learned counsel for the

appellant. No doubt on taking note of the entire material

and evidence available on record, in appropriate cases

the courts may have to bring to an end, the marriage so

C.A.No.2021/2010 Page 13 of 16

as not to prolong the agony of the parties. However, in

the present facts, at this point in time even that situation

does not arise in view of the changed scenario on the

death of the respondent herein.

  1. As already taken note, the marriage between the

parties had taken place in the year 1970 and the

undisputed fact is also that the children of the parties are

grown up and the very incidents referred to by the

appellant regarding the illegitimate relationship were

from the point of time when the respondent was posted at

Manipur and the appellant herein had shifted there in

the year 1991. By such time the marital bond was quite

mature and with regard to certain incidents where there

were allegations it can only be considered as a

misunderstanding between the parties which only

required a minor adjustment to reassure each other and

iron out the crease. Hence, merely because certain

issues have been raised with regard to the same, even if it

be on a misunderstanding in the instant facts, it cannot

be considered as inflicting mental cruelty in the nature it

C.A.No.2021/2010 Page 14 of 16

is required for considering the petition under Section 13

of the Hindu Marriage Act for dissolving the marriage.

Though the learned counsel representing the respondents

referred to the incidents by which the appellant had

hurled false allegations against the respondent, presently

when the respondent has died and in a circumstance

where one of the legal representatives, namely Shri Iqbbal

Singh was examined as RW­6 in support of the case of

the appellant herein and the legal representatives No.1

and 3, though were majors had not been examined in the

proceedings, any contention raised on their behalf would

not be of any assistance to take any other view.

Therefore, if all these aspects are kept in perspective, we

are of the view that the High Court was not justified in

reversing the well­considered judgment passed by the

trial court.

  1. Accordingly, the judgment dated 23.08.2006

passed in F.A.O. No.101­M/1999 is set aside and the

judgment dated 08.04.1999 passed in H.M.A. File No.133

of 16.12.1995 by the Additional District Judge, Bathinda

C.A.No.2021/2010 Page 15 of 16

is restored. The instant appeal is allowed with no order

as to costs. All pending applications also stand disposed

of.

…………………….….J.

(R. BANUMATHI)

……………………….J.

                                          (A.S. BOPANNA)

New Delhi,

August 21, 2019

C.A.No.2021/2010 Page 16 of 16