LexSUMAN KAPUR versus SUDHIR KAPUR
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[2008] 15 S.C.R. 972 ...... " .. A SUMAN KAPUR · ~ v. SUDHIR KAPUR (Civil Appeal No. 6582 of 2008) L I ~ NOVEMBER 7, 2008 I B [C.K. THAKKER AND D.K. JAIN, JJ.] \.- t- j.. .~ '-· Hincju Marriage Act, 1955 - s. 13 (1) (ia) - Divorce i-- sought by husband - On the ground of mental cruelty ,..... ' c Decreed by courts below - Wife alleging that the husband remarried a third party before expiry of period of limitation for filing SLP - Held: The finding relating to mental cruelty by courts below does not suffer from any infirmity - Hence I confirmed - However, husband should not have remarried r- before expiry.of limitation period- Though filing petition under ,,, ' D , Article 136 of Constitution is not a right of party - But since } ; constitution allows party to approach Supreme court within a l specified period, no precipitate action could have been taken by the husband - Constitution of India, 19!50 - Article 136; E Words and Phrases ...;.. 'Cruelty' - Meaning of, in the context of Hindu Marriage Act, 1955. Respondent;.husband filed petition u/s.13 (1) (ia) and .,._ (ib) of Hindu Marriage Act, 1955 seeking divorce on the · F grounds of cruelty and desertion. He alleged that the appellant-wife was only concerned about her career and l· thus deprived him of conjugal· rights and matrimonial obligations. She treated the respondent as well as members of his family with cruelty. She got her -1· pregnancy terminated twice without his consent or . /~ G knowledge. She also did not tell him about her t miscarriage. She had told him that she did not want to 0-- be a mother at the cost of her career. She had issued a notice to him for peaceful separation. Appellant-wife H 972 SUMAN KAPUR v. SUDHIR KAPUR 973 f r ,1 denied the allegations. Trial court denied the divorce on A the ground of desertion but passed decree of divorce on the ground of cruelty. High Court confirmed the decree. In appeal to this court, appellant contended that allegations against her did not amount to mental cruelty, a ~ they were in the nature of 'normal wear and tear'; and that ... she was also entitled to appropriate relief in as much the respondent-husband entered into re-marriage with a third party before expiry of limitation period for filing Special Leave Petition and out of that wedlock, he was also c h~ving an issue. Disposing of the appeal, the Court HELD: 1. It cannot be said that by recording a finding ~ as to mental cruelty by the wife against the husband, the D ' Courts below had committed any illegality. Sub-section .... , . ' (1) of Section 13 of Hindu Marriage Act, 1955 declares that ,' ' 3 decree of divorce may be passed by a Court on the ground that after the solemnization of marriage, the 4 opposite party has treated the petitioner with cruelty. The E expression 'cruelty' includes both (i) physical cruelty; and (ii) mental cruelty. [Paras 19, 20 and 21] [982-C, D, E, F] N.G. Dastane v. S. Dastane 1975 (2) SCC 326; Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan and Anr. 1981 (4) SCC 250; Shobha Rani v. F Ma.dhukar Reddi 1988 (1) SCC 105; V. Bhagat v. D. Bhagat (Mrs.) 1994 (1) SCC 337; Chetan Dass v. Kam/a Devi 2001 (4) SCC 250; Parveen Mehta v. lnderjit Mehta 2002 (5) SCC 706; A. Jayachandra v. Aneel Kaur 2005 (2) SCC 22; Vinita Saxena v. Pankaj Pandit 2006 (3) SCC 778; Samar Ghosh G v. Jaya Ghosh 2007 (4) SCC 511, relied on . 't·· ...; f Gal/ins V. Gal/ins 1964 AC 644: 1963 (2) All ER 966; Russell v. Russell (1897) AC 395: (1895-99) All ER Rep 1, referred to. H 974 SUPREME COURT REPORTS [2008] 15 S.C.R. A Halsbury's Laws of England Vol.13, 4th Edition Para 1269, referred to. 2. However, the respondent-husband should not have re-married, before the expiry of period stipulated for B filling Special Leave to Appeal in this Court by the wife. It is true that filing of appeal under Article 136 of the Constitution is not a right of the party. It is the discretion ~ . conferred on this Court to grant leave to the applicant to J ... file appeal in appropriate cases. But, since the c Constitution allows a party to approach this Court within a period of ninety days from an order passed by the High ~ Court, no precipitate action could have been taken by the respondent-husband by creating the situation of fait accompli. [Paras 47 and 48] (999-B-F] D 3. Considering the matter in its entirety, ends of -r just
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