- (1.) The cause of action in the plaint is framed principally on the ground of cruelty. On making a search of the facts pleaded in support of the cause of action, the major part of it, if not the whole, relates to refusal of sex by the wife. They had physical relationship for a few days only. This pleading in the plaint is not controverted in the written statement. The trouble seems to have taken firm root by 2001. According to the respondent/husband the wife completely refused to have physical relationship with him from that time. Admittedly, the appellant/wife a junior school teacher is staying in a house in Raiganj, Uttar Dinajpur built with a contribution from the husband. The suit was filed in 2008 by the husband in the Court of the Additional District Judge, 1st Court, Raijanj, Uttar Dinajpur and was decreed in his favour on 11th December, 2015, on the ground of irretrievable breakdown of marriage. The wife preferred an appeal before us against the said judgement and decree.
(2.) The judgement analyses the relationship of the parties from the very beginning, the absence of physical relationship between them from 2001, their separated lives and so on and came to the conclusion that the marriage between the parties had broken down irretrievably. On that ground divorce was granted. The Supreme Court has specifically opined in (Vishnu Dutta Sharma - versus- Manju Sharma reported in (2009) 6 Supreme Court Cases 379) and (Darshan Gupta -versus-Radhika Gupta reported in (2013) 9 Supreme Court Cases 1) that irretrievable break down is not a ground to grant divorce in a contested action. So, the legal premises for granting divorce was incorrect The learned Judge of the Court below upon analysis of the evidence has also come to the conclusion that no mental cruelty was reached by the respondent/husband to the wife.
(3.) In my opinion, here he was in complete error. The Supreme Court in (Satish Sitole -versus-Smt. Ganga reported in AIR 2008 SC3093) remarked that out of sixteen years of marriage in that case the parties had been living separately for fourteen years. The marriage had broken down irretrievably. Since the marriage between the parties was dead for all practical purposes and there was no chance of it being retrieved, "the continuance of such marriage would amount to cruelty". In (V. Bhagat-versus-Mrs. D. Bhagat reported in A.I.R 1994 SC 710 paragraph 17), the Supreme Court has defined mental cruelty as the pain or suffering which a party to a marriage suffers internally. In my opinion, when the psychological feeling of pain becomes unbearable, the Court takes note of it as mental agony or cruelty and relieves the parties of the relationship, which is causing this pain and suffering. Obviously the assessment of the Court has to be made in a subjective manner. What would amount to mental cruelty is not a closed category and would depend from case to case on the subjective satisfaction of the learned Judge. "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" as per Justice B. P. Jcevan Reddy in the above case. ;