Samar Ghosh v. Jaya Ghosh (2007)

This is the judgment that gives a student the working catalogue of mental cruelty — fourteen illustrative instances, expressly not exhaustive — after holding that no comprehensive definition should even be attempted. It is also the leading statement on irretrievable breakdown: not a ground under the statute, but a circumstance which, combined with a long separation, the Court treats as decisive of mental cruelty.

Both parties were senior officers of the Indian Administrative Service. They married on 13 December 1984 at Calcutta under the secular marriage statute. The wife was a divorcee with a daughter from her first marriage, whose custody she had been given; her first husband had filed a belated appeal against the divorce decree, and she persuaded the appellant to marry at once so that the appeal might become infructuous.

The husband's case was that soon after the marriage she told him not to interfere with her career; that she unilaterally declared she would not have a child for two years, and later that she would have no child at all; that he should not be inquisitive about her daughter and should keep himself aloof from her as far as possible. He described a rationing of emotion in the arena of love, affection, future planning and normal human relations.

In February 1985 he was ill with high fever; she went to Bareilly with her parents and her daughter although there was no one to look after him, and on her return remained in Calcutta some days without meeting him or enquiring about his health. He travelled every weekend to where she was posted, but she was overtly indifferent, and he returned dejected, feeling a stranger in his own family. She used to suggest that her daughter was being neglected and might be harmed, the indication being towards the domestic servant.

The parties separated on 27 August 1990 and thereafter had no interaction whatever. When the husband was seriously ill and had to undergo bypass surgery, neither she nor anyone in her family enquired about his health, even by telephone. By the time the matter reached the Supreme Court they had lived apart for more than sixteen and a half years.

The trial judge decreed divorce. The High Court reversed. The husband appealed.

The High Court's judgment was set aside and the decree of divorce restored. Taking the enumerated factors together with the separation of more than sixteen and a half years, the matrimonial bond had been ruptured beyond repair by the mental cruelty caused by the respondent. It was a clear case of irretrievable breakdown, and any further effort to keep the marriage alive would prove totally counter-productive.

1. Refuse to define. There cannot be any comprehensive definition of mental cruelty within which all cases can be covered, and no court should even attempt one. The human mind is extremely complex and human behaviour equally complicated; human ingenuity has no bound. What is cruelty in one case may not be cruelty in another.

1. Cruelty is relative to the person. The concept differs from person to person depending on upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and value system.

1. And relative to the age. Mental cruelty cannot remain static; it is bound to change with the passage of time and with the impact of modern culture. What is mental cruelty now may not remain so later, or the reverse. There can never be a straitjacket formula; each case is evaluated on its own facts.

1. Still, give the courts guidance. The judgment then enumerates fourteen illustrative instances. Among them: acute mental pain, agony and suffering that make it impossible for the parties to live together; a situation in which the wronged party cannot reasonably be asked to put up with the conduct; frequent rudeness, petulance, indifference and neglect reaching a degree that makes married life absolutely intolerable, though mere coldness or lack of affection is not cruelty; deep anguish, disappointment and frustration caused over a long time, mental cruelty being a state of mind; a sustained course of abusive and humiliating treatment calculated to torture or render life miserable; sustained unjustifiable conduct actually affecting the other's physical and mental health, the danger being grave, substantial and weighty; studied neglect, indifference, or a total departure from the normal standard of conjugal kindness, or the deriving of sadistic pleasure. Excluded are jealousy, selfishness and possessiveness that merely cause unhappiness, and trivial irritations and quarrels that are the normal wear and tear of married life. The married life is reviewed as a whole, and a few isolated instances over years will not do; the ill-conduct must be persistent for a fairly lengthy period.

1. Four instances matter especially for this paper. Sterilisation by a husband, or a wife undergoing an abortion, without medical reason and without the other's consent or knowledge, may amount to mental cruelty. So may a unilateral refusal of intercourse for a considerable period without physical incapacity or valid reason. So may a unilateral decision after marriage not to have a child. And so may a long period of continuous separation, from which it may fairly be concluded that the bond is beyond repair.

1. Recognise the broken marriage. Where a marriage has broken down beyond repair it is unrealistic for the law not to take notice; the marriage becomes a fiction supported by a legal tie, and refusing to sever it does not serve the sanctity of marriage but shows scant regard for the feelings and emotions of the parties. Public interest demands that the married status be maintained as far and as long as possible, but where a marriage has been wrecked beyond hope of salvage, public interest lies in the recognition of that fact. Since no spouse can be compelled to resume life with the other, nothing is gained by keeping the parties tied for ever to a marriage that has ceased to exist. A law of divorce based mainly on fault is inadequate to deal with a broken marriage. The contrary apprehension — that such a ground would put human ingenuity at a premium and open the doors to litigation — is noted and answered by the majority view that human life has a short span and situations causing misery cannot be allowed to continue indefinitely.

1. Where separation is long, presume the breakdown. Once the parties have separated for a sufficient length of time and one has petitioned, it may well be presumed that the marriage has broken down. The court should still seriously endeavour to reconcile them; but if the breakdown is irreparable, divorce should not be withheld.

It opens every question on mental cruelty. The examinable structure is: no definition possible; cruelty is subjective and changes with the times; then the illustrative list, of which the four instances above are the ones to name; then the breakdown material.

It disposes of the demand for a fixed test of mental cruelty, and the argument that indifference and neglect can never be cruelty.

It does not decide that irretrievable breakdown is by itself a ground for divorce — it is not one under the statute. What the Court does is treat the long separation and the total absence of feeling as evidence of mental cruelty, which is a ground. Keep that distinction: a student who writes that this case made breakdown a ground has misstated it. Read it with the earlier decision that fixed the subjective test of cruelty and the civil standard of proof, on which this judgment builds.