FAMILY LAW ASSIGNMENT-

CASE COMMENT: ​Manisha Tyagi v Capt. Deepak Kumar

SUBMITTED BY: ABHIJEET RAI SUBMITTED TO: MS. SARITA

[​Assistant Professor of Law]

ROLL NO. 1120171818

   

​A​CKNOWLEDGEMENT 

On the completion of this project I find that there are many people to whom I would like to
express my gratitude, since without their help and co-operation the success of this educative
endeavour would not have been possible.

I welcome this opportunity to express my sincere gratitude to my teacher and guide, ​Mrs. Sarita,
Faculty of Law, who has been a constant source of encouragement and guidance throughout the
course of this work.

I am grateful to the IT Staff for providing all necessary facilities for carrying out this work.
Thanks are also due to all members of the Library staff for their help and assistance at all times.

I am also grateful to all my friends and colleagues for being helpful in their differences and for
their constant support.

Abhijeet Rai
INTRODUCTION
This case discusses about cruelty and irretrievable breakdown of marriage as grounds of divorce
before and after the 1976 amendment of the Hindu Marriage Act.It also focuses on the surge
positions adopted by the Courts while addressing the issue.At the same time, it is crucial to
understand the judicial approach to deciding whether the factual matrix merits a decree of
judicial separation or divorce.The evolution of cruelty as a ground for divorce encompasses its
different definitions and necessary condition of proof of rational apprehension​.

BACKGROUND
Under the Hindu Marriage Act, 1955 cruelty wasn't a ground for divorce however just for
judicial separation.This was upheld by the Supreme Court within the case of Narayan Ganesa
Dastane v Sucheta Narayan Dastane in 1975.However in 1976 when amendment took place in
the act of cruelty is added as a ground for divorce.Along with the amendment in law, the
definition of cruelty underneath this act was modified.
Before the amendment, to constitute cruelty, the petitioner should have been treated with such
cruelty to cause reasonable apprehension in his/her mind that to continue living with the
respondent would be harmful or injurious to health.This was in accordance with the English law.
However, the Supreme Court in Dastane v Dastane command that whether or not a mate has
suffered cruelty or not may be a subjective matter that courts ought to decide in a very
case-specific manner.This ground was created virtually kind of like the bottom of cruelty
underneath Section 10(1) (b) for legal separation however one distinction was created which was
that the words “persistently or repeatedly” were added.By this addition establishing cruelty as a
ground for divorce was created a lot of demanding as compared to establishing constant for legal
separation.

Even mental cruelty was accounted for as “cruelty”. The section now in the Hindu Marriage Act
imposes no restrictions. This is in order to enable the courts to interpret it in a wider sense. The
basic requirement is that there must be harsh or painful conduct of certain amount and for a
relatively prolonged duration. In all cases of alleged cruelty that come before the courts, a
common practise adopted by them is to adjudicate the matter based on all relevant
circumstances, not just as a solitary incident.

FACTS OF THE CASE

In this case, an army officer, and an advocate, got married according to Hindu rites on
17.11.1991. However, they soon fell apart, and started living separately from 31.12.1992
onwards. The husband filed a petition for divorce on the ground of cruelty, before the District
Court of Gurgaon under Section 13 of the Hindu Marriage Act. The husband alleged that the
wife was rude, ill- mannered, quarrelsome and schizophrenic, and that she had made his life a
living hell. He alleged that she shouted and made scenes and humiliated him in front of his
officers and jawans, made allegations of sodomy against him, and allegations against his old and
infirm father of molesting her. Besides, the husband also alleged that the wife filed various
criminal cases against him, which ended in either his acquittal, discharge, or were quashed,
thereby indicating that they were all false. Further, that she hurled filthy abuses on him and his
family members, compared him to a barking dog, and had erratic sexual behaviour. According to
him, she has been constantly threatening him as well as his family that since she and her two
uncles are advocates they would make the lives of the husband and his family miserable. The
husband complained that the wife had been making baseless complaints to his superiors, which
has affected his career prospects in the Army. The husband filed a claim for cruelty against his
wife.
The wife also made equally vile allegations of dowry demand, sodomy, and mental and physical
torture in various ways. In sum, there were innumerable complaints and allegations made against
each other. Best efforts for reconciliation were made by the Court but to no effect. The trial
Court on evaluation of the entire evidence found that even though it was a case where marriage
had broken, but under the law as it exists, the marriage could not be dissolved on the ground of
irretrievable breakdown. The Court found both the parties at fault, and did not grant the decree of
divorce as the husband could not prove cruelty of wife so as to entitle him to a decree of divorce.
On appeal against this by the husband, the single judge observed that the wife had exceeded all
limits of decency and crossed the ‘Lakshman Rekha’ when she went to the extent of lodging a
false FIR, and when she tried to humiliate him in front of his superiors. The Court found both the
parties at fault, and adopted a middle path by granting a decree of judicial separation under
Section 10 of the Hindu Marriage Act, so that the parties might ponder over their differences and
re-unite, for the welfare of their daughter.

The husband accepted the order of the single judge, but the wife went in appeal before the
Division Bench of the Punjab and Haryana High Court. This Court also observed that even
though the marriage had irretrievably broken down, but in the absence of such statutory ground
the marriage cannot be dissolved on this ground. The Division Bench proceeded on the basis of
allegations of cruelty, and was convinced that the wife’s behaviour amounted to mental cruelty
of the worst type. Her allegations of sodomy against her husband, lodging false FIRs and
complaints against him, and making allegations against her infirm father-in-law of molesting her,
all amounted to cruelty and were certainly intolerable behaviour. The Court held that cruelty as
alleged by the husband stood proved, and consequently, the single judge order was set aside and
a decree of divorce granted to the husband.
The wife again went in appeal against the Punjab and Haryana High Court, Division Bench
order, and came before the Supreme Court.

JUDGMENT OF THE SUPREME COURT:

The Apex Court in its judgment stated that, “We are of the opinion that the High Court erred in
granting a decree of divorce to the husband. ​She had are available in attractiveness before the
Division Bench protesting that the tribunal had wrong granted the decree of judicial separation
even once accordant with the findings of the court that the husband had didn't establish cruelty
by the married woman.Therefore though the attractiveness had been fired, the findings recorded
by the Trial Court in her favour would have remained intact. The result of the order gone by the
Division Bench is as if an appeal of the husband against the decree of legal separation has been
allowed. Both the parties had didn't figure out a case of divorce against one another. ​The
husband had accepted these findings. Therefore he was quite content to wait for the statutory
period to lapse before filing the petition for divorce, which he actually did on 9.5.2002.
On the idea of the well-tried facts the court was a lot of inclined to believe the woman, whereas
the learned Single Judge of the High Court found both the ​parties to be at fault. ​Hence the center
path of judicial separation had been accepted.​Therefore, it was not a case where it was necessary
for the Division Bench to correct any glaring and serious errors committed by the Court below
which had resulted in miscarriage of justice. ​In our opinion there was no compelling necessity,
independently placed before the Division Bench to justify reversal, of the decree of judicial
separation. ​In such circumstances it was wholly inappropriate for the Division of the High Court
to have granted a decree of divorce to the husband”. The Supreme Court in its judgment held that
the Division Bench of the High Court had committed an error in granting the decree of divorce,
and thus, the Supreme Court ​set aside the Division Bench’s order by restoring the only choose
order of granting judicial separation

ANALYSIS OF THE JUDGMENT:

Section 13(1)(ia) of the Hindu Marriage Act, 1955 states that, “​any marriage solemnized,
whether before or after the commencement of this Act, may, on a petition presented by either the
husband or the wife, be dissolved by a decree of divorce on the ground that the other party- has,
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after the solemnization of the marriage, treated the petitioner with cruelty ”

Cruelty is a ground for matrimonial relief under all the matrimonial law statutes in India.
However, it has not been defined, and the concept of cruelty varies from time to time. What was
cruelty yesterday might not be cruelty today, and what is cruelty today might not necessarily be
understood as an act of cruelty tomorrow. The Supreme Court in Ravi Kumar v. Julmi Devi​[iii]
very aptly said that cruelty has no definition, and in fact, such a definition is not possible. Cruelty
in matrimonial cases can be of infinite variety, it being a very subjective concept. In the case of
Naveen Kohli v. Neelu Kohli​[iv]​, the Supreme Court examined the development of the concept
of mental cruelty in matrimonial cases, and observed that before the 1976 amendment in the
Hindu Marriage Act, 1955 cruelly was not a ground for claiming divorce under the Hindu
Marriage Act. It was only a ground for claiming judicial separation under Section 10 of the Act.
By the 1976 amendment, cruelty was made a ground for divorce and the words which have been
omitted from Section 10 are ​“as to cause a reasonable apprehension in the mind of the petitioner

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​ Section 13(1)(ia) of the Hindu Marriage Act, 1955
that it will be harmful or injurious for the petitioner to live with the other party”.​ Therefore,
today, it is not necessary for a party claiming divorce to prove that the cruel treatment is of such
a nature as to cause a reasonable apprehension that it will be harmful or injurious for him or her
to live with the other party. Now, it is sufficient to show that the conduct of one of the spouses is
so abnormal and below the accepted norm that the other spouse could not reasonably be expected
to put up with it.

Cruelty not only includes physical cruelty, but also mental cruelty. In Shobha Rani v. Madhukar
Reddi​[v]​, the Supreme Court held that that cruelty may be mental or physical, intentional or
unintentional. The Supreme Court defined mental cruelty in V. Bhagat v. D. Bhagat​[vi] 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. The situation 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.

Thus, in the case of Manisha Tyagi v. Capt Deepak Kumar, both the trial Court and the appellate
Court (single judge) had upon after carefully examining the case and considering the conduct of
the parties over a period of time, found that the husband could not prove cruelty on the part of
the wife. The trial Court explained that to say that a person started to bark like a dog, and a
person is a dog are two different things. The Court also said that the allegations of the wife
against the husband of unnatural sex cannot be equated with sodomy. Thus, the fact that the wife
had been treating her husband with cruelty could not be established. Both the Courts had agreed
that the marriage had broken down, and was irretrievable, but, since that was not a valid ground
for divorce under the Hindu Marriage Act, divorce could not be granted.

The Appellate Court granted a decree of judicial separation to the husband, since it came to the
conclusion that by doing this, the couple could get more time to ponder over the issues, while
keeping in mind the welfare of their daughter. If the parties reconcile their differences, then the
decree of judicial separation would not hold valid, and if, they do not decide to reconcile, then,
either party could ask for the dissolution of marriage on the basis of the decree of judicial
separation. As is known to us by the facts, the husband had accepted the decree granted by the
single judge, and after the expiry of one year, even filed for divorce. However, the wife
challenged the grant of decree of judicial separation to the husband by the Appellate Court. The
wife complained that the single judge had wrongly granted the decree of judicial separation to
the husband, despite both the Courts (trial and appellate) coming to the conclusion that the
husband could not prove cruelty of wife. The Division Bench held that that the wife’s acts
amounted to cruelty of the worst kind, and thus it granted a decree of divorce to the husband.

It is important for us to note here, that it was not the husband who went in appeal against the
grant of decree of judicial separation. Rather, it was the wife who had challenged the decree, and
later even challenged the order of the Division Bench. Still, the Division Bench of the Punjab
and Haryana High Court granted the relief of divorce, as initially sought by the husband, as if, it
was he who had challenged the decree of separation and appealed for divorce. Also, even if the

wife’s appeal against the decree of separation had been dismissed, the trial Court’s findings of
her acts not amounting to cruelty towards the husband would still have remained intact. And as
mentioned above, the effect of the order passed by the Division Bench is as if an appeal of the
husband against the decree of separation has been allowed.

As is proved by the facts, the Trial Court was more inclined to believe the wife, whereas the
learned Single Judge of the High Court found both parties to be at fault. Thus, the middle path of
judicial separation had been accepted. There was no need for the Division Bench to grant the
decree of divorce as this was not a case where there was a need for the Court to correct any
glaring and serious errors committed by the Courts below which had resulted in a miscarriage of
justice. The trial Court and the appellate Court had both concluded that the husband could not
prove cruelty by the wife. Thus, the Apex Court very aptly stated that, “​In our opinion, there was
no compelling necessity, independently placed before the Division Bench to justify reversal, of
the decree of judicial separation. In such circumstances it was wholly inappropriate for the
Division of the High Court to have granted a decree of divorce to the husband”​.

CONCLUSION:
Manisha Tyagi v. Capt Deepak Kumar is a matrimonial case with a chequered history which
indicates element of subjectivity in judicial approach in the same set of circumstances. Firstly,
the trial and appellate Courts found that the husband could not establish that his wife had treated
him with cruelty, and thus divorce could not be granted. The middle path of judicial separation
was adopted. However, the Division Bench of the Punjab and Haryana High Court granted
divorce, and concluded that the acts of the wife amounted to cruelty. The Division Bench
completely ignored the findings of the two previous Courts, and held the wife’s acts as cruelty
towards husband. The Court granted divorce to the husband, and by doing so, in a way
responded as if the husband had appealed against judicial separation. Thus, the Supreme Court
aptly reversed the order of the Division Bench, and upheld the granting of judicial separation by
the single judge of the High Court, as the Division Bench had no need to justify their reversal of
judicial separation, and grant divorce.