Yogendra Lahu Bhoir v. Prema Yogendra Bhoir

(xi) On 27th January 2025, the respondent filed

(d) The divorce petition was dismissed on 15th May 2019, and the said judgment is impugned in the present appeal. After the filing of this appeal on 28th June 2019, the respondent’s petition for restitution of conjugal rights was dismissed on 10th March 2023. The respondent’s appeal against that order is presently pending. Further, the respondent’s application for maintenance was partly allowed, and the challenge thereto is pending before the Kalyan Court. The rest of the aforesaid proceedings are still pending.

3. The respondent filed an Interim Application No. 15192 of 2024 in the present appeal for payment of the arrears of maintenance. When it was being heard, the respondent alleged that the appellant had remarried and had stopped paying maintenance as directed by the Family Court. By order dated 14th February 2025, this Court directed the appellant not to deal with or dispose of any of his immovable properties in any manner whatsoever. The appellant was further restrained from operating or encashing his Fixed Deposits in the bank or any other movable assets, except to withdraw funds towards basic and essential expenditure. As regards the allegation of remarriage, the appellant had denied the same. He was directed to file an affidavit clarifying his position in that regard. The appellant perjured himself by filing an affidavit dated 14th February 2025 falsely stating that he had not remarried. Meanwhile, this Court also directed the officer-incharge of the concerned Police Station to conduct a discreet inquiry into the said allegation.

4. The police filed a report dated 23rd April 2025, recording that the appellant is residing with one Ms. Jayshree Yogendra Bhoir along with their daughter, Ms. Siddhi Yogendra Bhoir. Thus, it was confirmed that a false affidavit had been filed by the appellant. Nevertheless, considering the complete breakdown of the marital relationship, the appellant expressed his willingness to offer a full and final settlement, which was declined by the respondent. The relevant portions of the orders dated 25th April 2025 and 29th April 2025 passed in Interim Application No.15192 of 2025 are extracted and reproduced below: Order dated 25th “1. We refer to the order passed by this Court on the present proceedings and more particularly our order dated 7 February 2025 in regard to the applicant/wife’s contention that the respondent/husband during the pendency of the present proceedings has remarried which was asserted by the applicant/wife on the basis of materials which she had placed on record. For the correct position to come on the record as directed by this Court, the respondent/husband has placed on record of the present proceedings an affidavit dated 14 February 2025 categorically stating that he has not remarried and that he has no marital relationship with anyone. He also specifically stated that he is not married to one Jaishree Sham Tamboli. He stated that the statement in that regard as made by the applicant/wife is false. In such context, in our order dated14 February 2025. We have made the following observations:- “11. We may also note that the situation is also quite peculiar, inasmuch as the applicant-wife has stated on affidavit that the respondent-husband has re-married. She has also placed evidence in the form of photograph as annexed to her affidavit. Although a vague rejoinderaffidavit of the husband was filed which does not contain a positive statement that he has re-married, and for this to be ascertained when we passed over the matter today, to enable the advocate for the respondent to take instructions, the time was utilized to place on record an affidavit that the respondent has not remarried as per the allegations of the applicant. Responding to this, the applicant, who appears in person, has with all pains stated that the son born from the wedlock is staying with the grandmother in different premises and the respondent-husband is staying with a lady, which according to her is a second wife, at a different place. She has made several other allegations.” (emphasis supplied)

2. We may also observe that, however, considering the materials which were placed before us by the applicant/wife, we had passed a separate order directing a discrete enquiry to be undertaken. It was so ordered, to ascertain whether the allegations which are made by the applicant/wife in regard to the second marriage of the respondent during the pendency of the proceedings were correct. This more particularly that the allegation of the second marriage was without the first marriage being annulled and proceedings in that regard being pending before this Court. We had accordingly directed that a report be placed before this Court.

3. In pursuance thereto the officer in-charge of the concerned police station as directed by the Commissioner of Police (Crime Branch Unit –I, Thane, City) has submitted two reports before this Court. The last report is report dated 23 April 2025 as forwarded to the Registrar Judicial – I of this Court recording that the respondent Yogendra Lahu Bhoir is residing with Jaishree Yogendra Bhoir (maiden name Jaishree Sham Tamboli) along with daughter Kumari Sidhi Yogendra Bhoir at the address Ambarchaya Cooperative Housing Society, B-Wing/Flat No. 104 near railway gate, Neral- 410101. It is further recorded that Kumari. Ridhi Yogendra Bhoir is taking education at Nairs Kinder Garden, Hutib Park, Karjat – Badalapur road, Neral – 410101 and she is stated to be in the junior-KG class.

4. Considering the report as received by us from the police department, it is apparent that the affidavit dated 14 February 2025 filed by the respondent/husband - Yogendra Lahu Bhoir is a false affidavit. Filing false affidavit in the judicial proceedings, certainly would amount to not only perjury but also attracting the provision of Section 277 of the Bhartiya Nyaya Sanhita, 2023 but also would amount to Criminal Contempt of Court as defined under Section 2(c)(ii) of the Contempt of Courts Act, 1971 read with Article 215 of the Constitution. The position in law in this regard is well settled. We would pass further appropriate orders in this regard on the adjourned date of hearing. We direct that the respondent - Yogendra Lahu Bhoir to remain present in the Court on the adjourned date of hearing.

5. The learned counsel for the respondent/husband has very fairly and ably assisted the court in the present proceedings despite such conduct of the client. The respondent is present in the court, on whose instruction, learned counsel for respondent has placed before the Court an offer for “full and final settlement”, as being extended by the respondent/husband to the applicant/wife. A copy of the same is taken on record. Such offer is also handed over to the respondent-wife who appears in person. She states that she will consider the offer and inform the Court, the position she intends to take on such offer.

6. We shall accordingly proceed to pass further appropriate orders on the adjourned date of hearing on the present proceedings and more particularly on the issues as flagged by us, which are very serious in nature touching the administration of justice.

7. Stand over to 29 April 2025.” Order dated 29th “1. We have heard the parties on the backdrop of the order dated 25 April 2025 when we had recorded that the respondenthusband has given an offer to the applicant vide letter dated 25 April 2025, a copy of which is placed on record. However, it appears that such offer is not agreeable to the applicant. She has also given a counter offer. It is informed by thelearned counsel for the respondent-husband that the counter offer is animpossibility for the respondent to be accepted.

2. In this view of the matter, we record the settlement between the parties is not possible. Insofar as the other observations are concerned, we shall hear the parties on the adjourned date of hearing.

3. Stand over to 27 June 2025.”

5. It is in this background that the appeal has been argued finally before us. Ms. Divya Pawar, the learned counsel for the appellant assailed the judgment on the ground that the parties have been residing separately since

2012. The trial Court failed to appreciate that the instances of cruelty, desertion, suspicion, as well as the attempt by the respondent to commit suicide were sufficient for the grant of divorce under Section 13 of the Act. These instances have been stated in detail in the record before the trial Court and evidence was led by the appellant to confirm the same. The respondent neither filed her affidavit of evidence nor stepped into the witness box for cross-examination. It was submitted that not only the appellant’s case ought to have been accepted but an adverse inference ought to have been drawn by the trial Court against the respondent. Reliance was placed on the judgment of the Hon’ble Supreme Court in “Pradeep Bhardwaj v. Priya”, 2025 SCC OnLine SC 1436, wherein it has been held that in cases of irretrievable breakdown of marriage, compelling the parties to continue in a dead marriage serves no purpose and only perpetuates mental agony and social burden.

6. On the other hand, Ms. Lucy Massey learned counsel for the respondent supported the findings of the trial Court and submitted that the impugned judgment suffers from no perversity. It was submitted that the burden to prove the allegations was upon the appellant, and having failed to discharge the same, the question of drawing any adverse inference against the respondent does not arise. It was further submitted that the trial Court, having recorded findings of fact based on the material on record, this Court ought not to interfere with the same. Accordingly, it was prayed that the appeal be dismissed with costs.

7. We have heard the learned counsel for the parties and perused the record. It is not in dispute that several proceedings between the parties are still pending. The appellant and the respondent are residing separately since 2012 is also not in dispute. Both parties were referred to a marriage counsellor, who, by her report dated 23rd March 2015 (Exhibit–15 before the Trial Court), recorded that neither amicable settlement nor reconciliation was possible between them. The situation has only deteriorated since then, as is evident from the litigations noted hereinabove. In

8. The Appellant’s main submission is that divorce ought to be granted on grounds of cruelty. The law in this regard is well settled as held by the Hon’ble Supreme Court in “Savitri Pandey v. Prem Chandra Pandey”, (2002) 2 SCC 73, the Hon’ble Supreme Court has held: “6. … Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. 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 the 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 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.”

9. In “Ravi Kumar v. Julmidevi”, (2010) 4 SCC 476, the “19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty.

20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial cases can be of infinite variety—it may be subtle or even brutal and may be by gestures and words. That possibly explains why Lord Denning in Sheldon v. Sheldon held that categories of cruelty in matrimonial cases are never closed.”

10. Thus, it is well-settled that the expression “cruelty” as envisaged in Section 13(1)(i-a) of the Hindu Marriage Act, 1955 refers to human conduct or behaviour in relation to matrimonial duties and obligations. It refers to a course of conduct of one spouse that adversely affects the other. Cruelty may be physical or mental, intentional or unintentional. When the allegation pertains to physical cruelty, it becomes a question of fact and degree. In cases of mental cruelty, the enquiry must first focus on the nature of the alleged conduct, and thereafter on its impact on the mind of the aggrieved spouse. Ultimately, whether such conduct gives rise to a reasonable apprehension that it would be harmful or injurious for the spouse to continue living with the other is a matter of inference, to be drawn from the nature of the conduct and its overall effect on the complaining party.

11. The finding of the trial Court is that the Appellant has failed to prove the allegations of cruelty. It has been held that there is no material on record to substantiate the said allegations. We find that the trial Court has failed to appreciate the evidence and circumstances in its proper perspective. We find that the pleadings filed by the Appellant refers to several instances of cruelty. Evidence has been led by the appellant in support thereof. The respondent did not file an affidavit of evidence nor stepped into the witness box to deny the allegations made against her. The respondent did not make submissions before the trial Court, though her advocate appeared in the Court. There is no explanation from the respondent advocate for this omission. In matrimonial disputes, it is often a case of one party’s word against the other’s, and therefore, the respondent’s failure to depose in evidence and argue her case assumes significance.

12. We are unable to concur with the trial Court’s finding that the respondent would not have left the matrimonial home if she had been subjected to ill-treatment. There is no evidentiary basis for such a conclusion, and the appellant has denied the respondent’s allegations in his crossexamination. We also find no merit in the trial Court’s observation that the respondent’s attempt to commit suicide was not followed by a police complaint. It is well-settled, as held by the Hon’ble Supreme Court in “N. G. Dastane (Dr) v.

Dimple”, (2011) 12 SCC 1, that threats of suicide by a spouse amount to cruelty. When such conduct is repeated, whether through words, signs or gestures, it becomes impossible for the other spouse to continue in the matrimonial relationship in a peaceful environment. The absence of a police complaint cannot, in every case, be treated as a circumstance against the aggrieved spouse, as complaints are often not lodged to avoid further escalation of the dispute. The allegations of suspicion and the attempt to commit suicide, as culled out from the pleadings and the appellant’s evidence, indicate the respondent’s conduct towards the appellant. On a holistic consideration of the materials on record, it is evident that it is no longer possible for the parties to live together, and a decree of divorce deserves to be granted. The findings recorded in the impugned judgment appear to be influenced by the trial Court’s generalised perceptions rather than a proper appreciation of the evidence. The trial Court also failed to consider that the respondent did not initiate any proceedings for the custody of the minor child. We do not consider it necessary to examine each allegation of cruelty in detail. In our view, the trial Court erred in dismissing the divorce petition without due regard to the fact that the parties have been residing separately since 2012 and have not cohabited for over a decade. This, by itself, constitutes sufficient ground for dissolution of marriage on the ground of cruelty. In “Samar Ghosh v. Jaya Ghosh”, (2007) 4 SCC 511, the Hon’ble Supreme Court has dealt in detail as to what would constitute cruelty under section 13(1)(i-a) of the Act. This includes long period of continuous separation.

13. In “Rakesh Raman v. Kavita”, (2023) 17 SCC 433, the “22. Irretrievable breakdown of a marriage may not be a ground for dissolution of marriage, under the Hindu Marriage Act, but cruelty is. A marriage can be dissolved by a decree of divorce, inter alia, on the ground when the other party “has, after the solemnisation of the marriage treated the petitioner with cruelty” [ Section 13(1)(i-a) of the Hindu Marriage Act, 1955].

23. In our considered opinion, a marital relationship which has only become more bitter and acrimonious over the years, does nothing but inflict cruelty on both the sides. To keep the façade of this broken marriage alive would be doing injustice to both the parties. A marriage which has broken down irretrievably, in our opinion spells cruelty to both the parties, as in such a relationship each party is treating the other with cruelty. It is therefore a ground for dissolution of marriage under Section 13(1)(i-a) of the Act.

24. “Cruelty” has not been defined under the Act. All the same, the context where it has been used, which is as a ground for dissolution of a marriage would show that it has to be seen as a “human conduct” and “behaviour” in a matrimonial relationship. While dealing in Samar Ghosh [Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511] this Court opined that cruelty can be physical as well as mental: (SCC p. 531, para 46) “46. … If it 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.”

25. Cruelty can be even unintentional: (Samar Ghosh case [Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511], SCC p. 531, para 46) “46. … 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 cannot be denied on the ground that there has been no deliberate or wilful ill-treatment.”

26. This Court (in Samar Ghosh [Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511] ) though did ultimately give certain illustrations of mental cruelty. Some of these are as follows: (Samar Ghosh case [Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511], SCC pp. 546-47, para 101) “101. … (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. * * * *

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” (emphasis supplied)

27. We have a married couple before us who have barely stayed together as a couple for four years and who have now been living separately for the last 25 years. There is no child from the wedlock. The matrimonial bond is completely broken and is beyond repair. We have no doubt that this relationship must end as its continuation is causing cruelty on both the sides. The long separation and absence of cohabitation and the complete breakdown of all meaningful bonds and the existing bitterness between the two, has to be read as cruelty under Section 13(1)(ia) of the 1955 Act.

28. We therefore hold that in a given case, such as the one at hand, where the marital relationship has broken down irretrievably, where there is a long separation and absence of cohabitation (as in the present case for the last 25 years), with multiple court cases between the parties; then continuation of such a “marriage” would only mean giving sanction to cruelty which each is inflicting on the other. We are also conscious of the fact that a dissolution of this marriage would affect only the two parties as there is no child from the wedlock.

29. Under these circumstances, we uphold the order of the trial court, though for different grounds given by us in our order, and we set aside the order [Kavita v. Rakesh Raman, 2011 SCC OnLine Del 1768] of the High Court and grant a decree of divorce to the appellant husband. Their marriage shall stand dissolved.”

14. From the facts on record, it is evident that the marital relationship between the parties has completely broken down and reconciliation is no longer possible. At paragraph 32 of the impugned judgment, the trial Court opines that “It is very unfortunate case where both the spouses have alleged against each other that after marriage each one told the other that they were not interested in getting married to each other.” Thereafter, the litigation between the parties only escalated. The respondent’s petition for restitution of conjugal rights has already been dismissed. It is also on record that the appellant has contracted a second marriage during the subsistence of the first and has a child from such relationship. In these circumstances, it is impossible for the parties to resume cohabitation. Continuation of such a marriage would only perpetuate the cruelty, which the parties are inflicting on each other. Hence, we pass the following order: a. This appeal is allowed and the judgment and decree passed by the Family Court, Thane dated 15th May 2019 in Petition No. A-213/2013 is set aside. b. The marriage between the appellant and the respondent solemnized on 10th May 2006 stands dissolved and a decree of divorce is granted. c. As full and final settlement between the parties, we pass the following directions: i. As per offer by the Appellant in his letter dated 25th April 2025, appellant is hereby directed to transfer the ownership of following properties to the respondent:

I. Flat situated at Flat no. 407, Fourth

II. Flat situated at Flat no. 204, second floor, Sumit Heights, Suresh Nagar,

Mumbra Devi Colony, Diva Station East. ii. As further stated in the said letter, the appellant shall transfer 80 gms of gold as final settlement towards streedhan. iii. The appellant is directed to further pay Rs.25,00,000/- as the full and final settlement. d. The Interim Application No.15192 of 2025 is disposed of. e. No order as to costs. [GAUTAM A. ANKHAD, J.] [CHIEF JUSTICE]