husbnd HAPILY REMARIES durng dvrc appeal, NO arrest, ONLY costs imposed; Husbnd NOT paid 1 penny maintnace !! MADRAS HC

Wife leaves husband some two years after marriage and refuses to return. Police and elders conduct panchayat. Wife seeks separate residence, husband provides separate residence and still wife refuses to live with hubby !!.

Wife goes on to file 498a, husband finally acquitted on appeal in 498a , so husband files divorce on grounds of cruelty. Family court grants divorce to husband on wife’s cruelty , and wife NOT living with husband

Husband remarries during pendancy of the appeal. Ablaa naari wife goes on appeal to HC and case comes for hearing after approx 10 years (14 years from start of original battle!!) the Honorable High court sets aside the original divorce and imposes costs (probably angered by the husband’s NON appearance !!

Notes / Thoughts
*******************************************************
* marriage 04.12.1994
* fights since 22.02.1996, wife left matri house when she was in the family way [ less than 15 months of bliss !!]
* kid born 06.11.1996
* husband NOT allowed to see kid, wife claims husband NOT interested in kid
* wife files police complaint
* panchayat conducted , by police and elders
* wife insists on separate residence as pre condition to return
* husband provides separate residence
* wife just appears for milk boiling but then doesn’t return to live with hubby
* wife goes on to file 498a
* though initially convicted, husband and others acquitted at sessions court in 498a
* husband files divorce on cruelty and desertion
* family court grants husband divorce as wife refusing to return EVEN AFTER notice and separate house by husband !!
* husband re marries
* wife goes on appeal to HC
* some 14 years after original fight and 16 years after marriage HC turns the Family court verdict and says the divorce granted to the husband is set aside
* NOTE THAT THE ONLY PENALTY on the husband is Rs 25000 costs !!
****************************************************

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 21.04.2010

CORAM:

THE HON’BLE MRS.JUSTICE R.BANUMATHI
AND
THE HON’BLE MR.JUSTICE M.VENUGOPAL

C.M.A.No.386 of 2005

Jayakumari ….Appellant

Vs.

Balachander ….Respondent

Civil Miscellaneous Appeal filed under Section19 of Family Courts Act, 1984 against the Order dated 07.04.2004 made in HMOP.No.1596 of 1997 on the file of I Additional Family Judge, Chennai.

For Appellant : Mr.M.Ganesh Babu

For Respondent : Mr.D.Govinda Reddy

JUDGMENT

R.BANUMATHI,J.

This appeal arises out of the Order in H.M.O.P.No.1596 of 1997 dated 07.04.2004 whereby the Family Court has allowed the Petition filed under Sec.13 (1) (i-a) of Hindu Marriage Act dissolving the marriage of the Appellant-wife and Respondent-husband on the ground of cruelty. For convenience, the parties are referred as per their array in the Original Petition.

2. Petitioner-husband filed Petition for dissolution of marriage under Sec.13(1) (i-a) of Hindu Marriage Act. Marriage between the Petitioner-husband and the Respondent-wife was solemnized on 04.12.1994 and after the marriage, the Petitioner and Respondent cohabited as husband and wife at the Petitioner’s house at No.49-A, 1st Cross Road, Pillayar Koil street, Maduvankarai, Chennai. Case of Petitioner-husband is that he was treated like a servant and that Respondent-wife was ill-treating him and he was patient when the Respondent ill-treated him. Further case of the Petitioner is that on the evening of 22.02.1996, Respondent left the Petitioner’s house when she was in the family way. According to Petitioner, father of Respondent performed Seemantham Ceremony on 11.08.1996 and the same was not informed to the Petitioner-husband. Petitioner written a registered letter on 16.08.1996 asking the Respondent to come and live with him amicably, but there was no response. On 06.11.1996, out of lawful wedlock a girl child was born. After the birth of girl child, Respondent had given a complaint to the Police and at the intervention of Police and one Parameswaran, panchayat was held and it was agreed that Petitioner would set up a separate matrimonial house. Accordingly, separate residence was set up at Velachery. According to the Petitioner, after the initial milk boiling ceremony, Respondent was taken back by her father and Respondent has not turned as promised. Petitioner had also issued legal notice on 07.05.1997 calling upon the Respondent to come and live with him, for which the Respondent has sent reply on 02.06.1997.

3. Further case of Petitioner is that on 29.09.1997, Respondent had lodged a private complaint before the Court alleging that Petitioner and his family members attempted on her life by pouring kerosene and the same was taken on file as C.C.No.630 of 1998 under Sec.498-A and 406 IPC and other offences. Petitioner and his family members were convicted and sentenced to undergo RI for three months and fine of Rs.3,000/- each was also imposed. Alleging that the offence is of serious in nature which has caused mental cruelty to the Petitioner, Petitioner has filed Petition under Sec.13 (1) (i-a) of Hindu Marriage Act for dissolution of the marriage.

4. Respondent-wife strongly resisted the Petition by filing counter stating that while she was living with the Petitioner and her in-laws, she was treated cruelly and Petitioner and her in-laws tortured her physically and mentally. Respondent has averred that Petitioner and his family members were not satisfied with the quantum of dowry given by the Respondent’s parents and they started demanding cash dowry of Rs.1,00,000/- for the improvement of M/s.Rajeswari Industries belonging to the Petitioner’s father. When the Respondent did not bring the money from her parents house, Petitioner-husband and her in-laws beat her and abused her in vulgar language. Respondent has further alleged that on 22.2.1996, Petitioner and his sister, brother and father attempted to set fire to her and Respondent has narrowly escaped. Respondent has lodged complaint on 23.8.1996 and 31.12.1996 to return the jewels and other belongings, but the Petitioner had not returned anything except few sovereigns of gold jewels. After advice and at the intervention of the Police and one Parameswaran, separate residence was set up at Velachery and there again, Petitioner threatened the Respondent to do away with her life, if she comes back to the house of the Petitioner. Left with no other option, Respondent has left the house and she received legal notice on 07.05.1997 which was suitably replied. Respondent has alleged that she had given a female child on 06.11.1996 which was informed to the Petitioner and his family members, but they did not come and see the child. Respondent has further averred that Petition under Sec.13 (1) (i-a) was filed after she filed a private complaint before IX Metropolican Magistrate Court, Saidapet on 29.09.1997 and Petitioner is not entitled to the relief sought in the Petition.

5. Before the trial Court/Family Court, Petitioner himself was examined as PW1. Respondent herself was examined as RW1. No documents were marked on both sides.

6. Upon consideration of oral and documentary evidence, trial Court/Presiding Officer held that the alleged cruelty on 22.2.1996 and the attempt on the life of Respondent is unbelievable as no complaint was given at that point of time. Trial Court further held that even after separate residence was set up at Velachery, Respondent-wife has not come and rejoined with the Petitioner. Trial Court observed that even though, Respondent has stated that she is ready to live with the Petitioner, she has not chosen to do so even after the receipt of legal notice. Trial Court took the view that there was a complaint that Respondent has lodged a private complaint for demand of dowry and in the criminal case, Petitioner-husband and his family members were convicted and sentenced to undergo imprisonment which amounted to cruelty and on that ground, allowed the Petition filed under Sec.13 (1) (i-a) of Hindu Marriage Act and dissolved the marriage.

7. Challenging the findings of trial Court, Mr.Ganesh Babu, learned counsel for Appellant submitted that dowry harassment was the reasonable cause for the Respondent to live separately which trial Court did not keep in view. It was further submitted to hold that the criminal case for dowry harassment would amount to allowing the Petitioner-husband to take advantage of his own wrong. It was further contended that inspite of efforts taken by the Respondent, Petitioner did not rejoin with the Respondent and the same was not analysed by the trial Court in a proper perspective. It was also contended that trial Judge tried to import his own views and the approach of the trial Court is totally perverse and the Order of the learned trial Court is liable to be set aside.

8. Respondent in this Appeal, earlier who engaged the counsel, later appeared in person and argued the matter. Thereafter on 06.04.2010, Mr.Govinda Reddy, learned counsel entered appearance for Respondent. We have heard the arguments of learned counsel for Petitioner-husband.

9. Learned counsel for Petitioner-husband submitted that false allegation of demand of dowry and lodging of false complaint would amount to cruelty. In support of his contention, the learned counsel for Petitioner-husband placed reliance upon AIR 1987 Delhi 266 [M.K.Malhotra v. Kirti Malhotra]. It was further argued that inspite of efforts taken by the Petitioner-husband to set up separate residence at Velachery, Respondent-wife has not rejoined her husband. Contending that the concept of cruelty would depend upon the mental set up of a person, learned counsel for Petitioner-husband submitted that lodging of false complaint and making the Petitioner-husband and in-laws to be sent to the prison has caused mental agony and cruelty to the Petitioner-husband and the trial Court rightly granted divorce and the Order of the trial Court cannot be interfered with.

10. Stating that Criminal Appeal in C.A.No.224/2003 ended in acquittal, Petitioner-husband has filed CMP No.627/2010 under Or.41, R.27 CPC to receive additional documents to render substantial justice. Likewise, Respondent-wife also filed CMP No.602/2010 under Or.41, R.27 CPC to receive the second marriage invitation of the Petitioner as additional evidence. To render substantial justice, both the Petitions were allowed on 13.04.2010 and the documents were received as additional evidence and ordered to be marked as Exs.P1 to P3 and Ex.R1 respectively.

11. Upon consideration of the Order of trial Court, evidence and materials on record and the rival contentions of both sides, the following points arise for consideration:-

1)Whether the trial Court was right in finding the Respondent-wife treated her husband with cruelty?

2)Can the evidence of Appellant/Respondent/Wife be disbelieved on the ground of allowing of Appeal in C.A.No.224/2003?

3)Whether the findings of the trial Court/Family Court in HMOP No.1596/1997 can be sustained?

12. There is no dispute that the marriage was solemnized on 04.12.1994 between the Petitioner and Respondent and spouses were living at the Petitioner’s house in Maduvangarai. Out of the lawful wedlock, a girl child was born on 06.11.1996. According to the Respondent-wife, while she was living with the Petitioner and her in-laws, she was treated cruelly and they verbally abused her and that she was tolerated the same with patients. According to the Petitioner-husband, on 22.2.1996 Respondent-wife has left the house and even he was not informed about the Seemantham ceremony. After the birth of girl child, complaint was given before the Guindy Police Station and All Women Police Station, Adyar on 31.12.1996. The Assistant Commissioner of Police and one Parameswaran effected mediation and Petitioner-husband agreed to set up separate residence. Accordingly, separate residence was set up in No.11, Raja street, Gandhi salai, Velachery. Petitioner has alleged that even after setting up of separate house at Velachery, Respondent has attended only the milk boiling ceremony and thereafter, she did not join with him. Petitioner has further averred that without joining him, the Respondent has lodged a private complaint alleging demand of dowry before the IX Metropolitan Magistrate Court which was taken on file in C.C.No.630/1998 in which the Petitioner and his family members were convicted and sentenced to undergo three months RI and also fine of Rs.3000/- each was imposed. Case of Petitioner-husband is that Respondent’s conduct of leaving the matrimonial house without informing Petitioner and performance of Seemantham ceremony without informing him and also filing of private complaint making false allegations of demand of dowry which ended in conviction caused mental cruelty to him.

13. Per contra, Respondent-Appellant-wife contended that at the time of marriage she was given 35 sovereigns of gold jewels and cash of Rs.1,00,000/- and while she was living in the matrimonial house in Maduvangarai, Petitioner and his family members insisted more dowry and she was treated cruelly. In her evidence, Respondent has stated that her father is running a company and Petitioner insisted that he has to be taken as partner in the said company for which her father refused. Respondent-wife has further averred that Petitioner and his family members were demanding dowry of Rs.1,00,000/- and Petitioner used to beat her. Petitioner and his family members beat the Respondent on 22.2.1996. Petitioner and his family members have planned to attempt on her life by pouring kerosene and set her on fire. In her evidence, Respondent-RW1 has further stated that she came out of the house and standing outside the house and with the help of neighbours, her brother came and took her. Respondent has further stated that her repeated efforts to rejoin the Petitioner ended in vein. Respondent has further stated that even though, Petitioner was informed about the Seemantham ceremony, he did not attend the Seemantham ceremony. Respondent has also stated that even after the birth of girl child and inspite of being informed, Petitioner and his family members did not come and see the child. Thereafter, at the intervention of Police and mediator Paramasivam, separate house was set up in Velachery. Respondent has alleged that when she went to Velachery immediately after milk boiling ceremony, Petitioner insisted that Respondent has to come to the house only with more money and jewels and only then she can rejoin him. Thereafter, Respondent has given a Police complaint. In her evidence, RW1 has categorically stated that she was always ready and willing to live with the Petitioner, but the Petitioner has been indifferent.

14. Alleged cruelty because of lodging criminal complaint:-Finding that Respondent-wife treated the Petitioner-husband cruelly, trial Court arrived at the conclusion of ‘cruelty’ mainly on the following grounds:-

(i) Respondent-wife has left the matrimonial house without informing him. On the alleged cruelty and plan on attempt on her life on 22.2.1996, Respondent has not lodged any complaint at that time;

(ii) Respondent has filed private complaint making false allegation of demand of dowry which was taken on file in C.C.No.630/1998 in which Petitioner and his family members were convicted and sentenced to undergo three months Rigorous Imprisonment and imposed fine of Rs.3000/- each and Petitioner was in jail for 25 days. Learned trial Judge took the view that Respondent was interested only in sending the Petitioner-husband to the prison and that she was not interested in joining the Petitioner-husband.

15. In her evidence, Respondent-wife has stated that she was subjected to ill-treatment and that her in-laws attempted to pour kerosene and set fire to her. She has also stated that her brother-in-law attempted to cause injury with Coconut scrapper (nj’;fha;JUtp)/ Respondent-wife further stated that on 22.2.1996, her brother-in-law and other in-laws were planning to attempt on her life by pouring kerosene and therefore, she was compelled to leave the matrimonial house because of the cruelty meted to her. Trial court rejected the version of the Respondent-wife observing that complaint ought to have been given then and there and absolutely, there is no evidence to show that she lodged the complaint. In our considered view, Trial Court was not right in disbelieving the evidence of Respondent-wife that her in-laws treated her with cruelty and she was forced to leave the matrimonial house. Trial court was not justified in faulting the Respondent-wife for not lodging the complaint as she was only making efforts to rejoin her husband. Since, she was only taking efforts to rejoin her husband, she cannot be expected to lodge a complaint.

16. In his evidence, Petitioner-husband has stated that on 22.2.1996 Respondent and her father and brother came to the house and insisted to come to their house which he refused and thereafter, the parents and brother of Respondent had taken her from his house. In the notice sent by the Petitioner [Ex.P2], it is alleged that Respondent-wife left the house without his knowledge. Petitioner-husband’s consistent version is as to how the Respondent left the house on 22.2.1996. Per contra, Respondent-wife has stated that on 22.2.1996, she came out of the house and neighbours phoned her parents and she went along with her father and brother. Wife can always show justification for living separately. In view of the ill-treatment, Respondent-wife was forced to go with her parents. She was making earnest endeavour to rejoin with her husband and while so, she cannot be expected to lodge a complaint.

17. Contention that there was no such incident as alleged on 22.2.1996 much argument was advanced submitting that even though criminal case in C.C.No.630/1998 ended in conviction, the Appeal preferred in C.A.No.224/2003 was allowed and Petitioner-husband and his brother and father were acquitted. In this Appeal, Petitioner-husband has filed C.M.P.No.627/2010 to receive copy of the Judgment in C.A.No.224/2003 and legal notice issued by him dated 07.5.1997 and reply by Respondent-wife dated 02.6.1997. By the order dated 13.04.2010, the documents filed by the Petitioner-husband ordered to be received as documents and marked as Exs.P1 to P3.

18. In the private complaint lodged by the Respondent-wife, she has averred about the demand of dowry and ill-treatment meted to her on 22.2.1996 and that her father-in-law attempted to cause injury to her with Coconut scrapper (nj’;fha;JUtp) and her brother-in-law provoked saying that they set fire to the Respondent by pouring kerosene. In the trial Court, C.C.No.630/1998 ended in conviction which was challenged by the Petitioner-husband and other accused in C.A.No.224/2003. Pointing out certain discrepancies in the evidence of Respondent-wife [RW1] and that there is no clarity as to the time of alleged ill-treatment and giving benefit of doubt, by the Judgment dated 06.01.2005 Appellate Court allowed the Appeal.

19. Laying emphasis upon Ex.P1 Judgment passed in C.A.No.224/2003, the learned counsel for Petitioner-husband contended that the finding of the Appellate Court would strengthen the Petitioner-husband’s case that there was no such harassment or ill-treatment as alleged by the Respondent-wife. Much emphasis was laid upon the findings of the Appellate Court in C.A.No.224/2003. Decision of a criminal case cannot be relied on as one binding in a civil action. Equally, the findings in a civil proceeding are not binding on a subsequent prosecution founded upon the same or similar allegations.

20. The standard of proof for imposing liability is widely different between the civil and criminal courts and while in a civil suit a Defendant can be made liable on preponderance of probabilities or the action decided on a mere consideration of the burden of proof in the absence of other evidence. Whereas in a criminal case the parties are to be proved beyond reasonable doubt and accused would also be entitled to benefit of doubt.

21. Judgment of the acquittal is irrelevant in a civil case based on the same cause of action, just as a judgment of conviction is irrelevant in a subsequent civil suit.

17. Holding that decision of a criminal case cannot be relied on as one binding in a civil action, in AIR 1966 Madras 425 [Krishnan Asari and another v. Adaikalam and others], the Supreme Court held as under:- " ………. any decision of a criminal case cannot be relied on as one binding in a civil action. Equally the findings in a civil proceeding are not binding on a subsequent prosecution founded upon the same or similar allegations."

Only exceptional cases, the circumstances which resulted in the acquittal would be relevant. In the instant case, in the trial Court C.C.No.630/1998 ended in conviction. Only in the Appellate Court, benefit of doubt was given to the Petitioner-husband and other accused. In our considered view, the Judgment of the acquittal in C.A.No.224/2003 is no way conclusive to hold that it is a case of ‘no’ evidence.

22. Non-inviting for Seemantham – According to the Petitioner-husband, he was not invited for Seemantham ceremony which caused agony and mental cruelty to him. In her evidence, RW1 has stated that she went to her parents house, she informed the Petitioner about her pregnancy and he refused to believe the same and Petitioner is said to have contacted the wife of one Devaraj to confirm the same. In her evidence RW1 has further stated that her brother and sister’s husband went to Petitioner’s house and informed about the Seemantham ceremony to be performed. RW1-wife has further stated that inspite of informing the Petitioner, he did not attend the Seemantham ceremony. Likewise, RW1 has stated that even though, Petitioner was informed the birth of girl child, he did not visit the new born girl child. Contention of the Petitioner/PW1 that he was not informed about the Seemantham ceremony which caused mental cruelty to him is not acceptable.

23. Since, Petitioner-husband did not visit the Respondent and the new born girl child, parents of Respondent and elders mediated and at the intervention of the mediators separate residence was set up at Velachery. In her evidence, RW1 has stated that her mother and other family members who accompanied her told the Petitioner that they would bring her and child after three months. RW1 has further stated that she had tried to contact the Petitioner over telephone and Petitioner did not respond. In her evidence, RW1 has categorically stated that she is always ready and willing to live with her husband and that she has been making efforts to join her husband. We may usefully refer the evidence of RW1 which reads as under:-

VERNACULAR (TAMIL) PORTION DELETED

The learned trial Judge did not take into account the categorical evidence of RW1/Respondent. When the Petitioner-husband has created a situation compelling her to leave the matrimonial house, Petitioner-husband cannot allege that Respondent-wife has left without informing him. The learned trial Judge was not right in faulting the Respondent-wife for not lodging the complaint then and there.

24. Trial Court also brushed aside the evidence of RW1 that she was always ready and willing to live with her husband. Trial Court observed if really the Respondent-RW1 was ready and willing to live with her husband, after Ex.P2 notice she ought to have taken steps to join her husband. The findings of the trial Court read as under:-

VERNACULAR (TAMIL) PORTION DELETED

Here again, trial Court did not properly appreciate the evidence of RW1-Respondent. Narrating the events and stating that Petitioner is not able to come out from the clutches of his father and brother, in Ex.P3-reply, Respondent-wife has asserted her readiness for reunion if the Petitioner arranges for separate residence. Trial Court did not properly appreciate the evidence of RW1 that immediately after the milk boiling ceremony in the house at Velachery, the mother and family members of Respondent who accompanied her informed the Petitioner that they would bring the Respondent and the new born child within three months. In her evidence, RW1 has stated that she was trying to contact the Petitioner and there was no response from the Petitioner and that he was indifferent. Without properly appreciating the evidence, trial Court erred in saying that after the receipt of Ex.P2-notice, Respondent did not take steps to rejoin her husband. We do not find any cruelty caused to the Petitioner-husband by the conduct of Respondent-wife in not joining her husband.

25. Learned counsel for Petitioner-husband contended that the allegation of dowry demand and lodging of private complaint in C.C.No.630/1998 under Sec.498-A and 406 IPC and Sec.3(1) and 4 of Dowry Prohibition Act would amount to cruelty. In support of his contention, learned counsel for Petitioner placed reliance upon number of decisions. In (2008) 4 MLJ 1172 [R.Anand v. P.Indu], husband sought divorce on the ground of cruelty by wife and records would show that wife filed false criminal complaints and was bent upon in giving mental and physical torture to the husband and his relatives and the allegation of dowry harassment also found to be false. In the facts and circumstances of the case, the learned single Judge upheld the order of trial court granting divorce and dismissed the appeal preferred by the wife.

26. In the above said case husband lived with the wife amicably in Chennai during her pregnancy and also started living with her in Coimbatore thereafter also. In such facts and circumstances, the learned single Judge held that the cordial relationships would not have existed between the two families, had there been such demand of dowry of Rs.5,00,000/-. The facts and circumstances of the said case are entirely different from the case on hand wherein the Respondent-wife was forced to leave the house even in the initial stage of her pregnancy and Petitioner has not chosen to visit the mother and new born child even after being informed the birth of the child.

27. In AIR 2003 SC 2462 : (2003) 6 SCC 334 [Vijayakumar Ramachandra Bhate v. Neela Vijaykumar Bhate], the Supreme Court held as under:-

"6. In V.Bhagat v. D.Bhagat [1994-1 LW 27] it was observed that mental cruelty in Section 13(1)(i-a) can broadly be defined 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 and the parties cannot reasonably also be expected to live together or that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It was also considered to be not necessary to prove that the mental cruelty is such as to cause injury to the health of the wronged party. ………

11. ……… To satisfy the requirement of clause (i-a) of sub-section (1) of Section 13 of the Act, it is not as though the cruel treatment for any particular duration of period has been statutorily stipulated to be necessary. As to what constitutes the required mental cruelty for purposes of the said provision, in our view, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct, but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the Courts perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer. ……."

28. In AIR 2002 SC 2582 : (2002) 5 SCC 706 [Parveen Mehta v. Inderjit Mehta], the Supreme Court held as under:-

"17. This Court, construing the question of mental cruelty under Section 13(1)(i-a) of the Act, in the case of G.V.N.Kameswara Rao v. G.Jabilli (2002) 2 SCC 296 observed:

"12. The Court has to come to a conclusion whether the acts committed by the counter-petitioner amount to cruelty, and it is to be assessed having regard to the status of the parties in social life, their customs, traditions and other similar circumstances. Having regard to the sanctity and importance of marriages in a community life, the Court should consider whether the conduct of the counter-petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible, and then only the Court can find that there is cruelty on the part of the counter-petitioner. This is to be judged not from a solitary incident, but on an overall consideration of all relevant circumstances.’

21. Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other."

29. In 2005-2-LW 149 [A.Jayachandra v. Aneel Kaur], the Supreme Court held as under:-

"10. The expression "cruelty" has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb, or health, bodily or mental, or as to given rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes."

The above decisions elucidate the well settled principles as to what type of conduct of a spouse would constitute cruelty.

30. The term ‘cruelty’ consists of unwarranted and unjustifiable conduct on the part of defendant causing other spouse to endure suffering and distress thereby destroying peace of mind and making living with such spouse unbearable, completely destroying real purpose and object of matrimony. It would of course be difficult to define the expression "cruelty’. There cannot be any hard and fast rule in interpreting the same. As pointed out, the word "cruelty" cannot be put in a strait-jacket of judicial definition. It must be judged on the facts of each case having regard to the surrounding circumstances. Whether one spouse is guilty of cruelty is essentially a question of fact and previously decided cases have little, if any, value. The term ‘cruelty’ is not defined in the Act. It is to be judged by taking into consideration the status of life, the standard of living, the family background and the society in which the parties are accustomed to move because particular behaviour may amount to cruelty in one set of circumstances and may not be so in other set of circumstances.

31. Learned counsel for Petitioner-husband contended that lodging of false complaint containing allegations of demand of dowry and ill-treatment would amount to cruelty. In support of his contention, learned counsel for Petitioner-husband placed reliance upon AIR 1987 Delhi 266 [M.K.Malhotra v. Kirti Malhotra]. In the said case before the learned single Judge of Delhi High Court, the wife who herself a Government servant made complaint to Prime Minister making allegations that her husband demanded Rs.5000/- and gave threat of disfiguring her permanently. She also alleged that her husband had illicit relations with another woman before his marriage and he had relationship with several women. On those allegations, departmental enquiry was held into the charges and charges were found to be not proved in the enquiry. In such facts and circumstances of the case, learned single Judge of Delhi High Court held that such conduct of sending Petition to the Prime minister making false allegations of demand of dowry would cause mental cruelty. In the case on hand, the Respondent-wife cannot be said to have lodged the complaint containing false allegations. RW1-Respondent has categorically asserted that she was treated with cruelty and that on 22.2.1996, her in-laws planned for attempt on her life. In the trial Court the case ended in conviction. Only in the Appellate Court, benefit of doubt was given to the Petitioner and his father and brother and the case ended in acquittal. Merely because the Appeal was allowed, it cannot be said that it is the case of ‘no evidence’ or false allegations.

32. Observing that merely because criminal proceedings under Sec.498A IPC initiated by wife against her husband and his parents ended in acquittal and it cannot be treated as an instance which goes infavour of the husband to substantiate the plea of cruelty, in AIR 2006 AP 269 [Chiranjeevi v. Lavanya], the Division Bench of Andhra Pradesh High Court held as follows:-"22. Much arguments have been advanced by the learned counsel appearing for the appellant-husband and his parents in a criminal case on a full fledged trial is an incident which constitutes cruelty on the part of the respondent-wife who initiated criminal proceedings. We have gone through the judgment, which has been marked as Ex.B-6. The criminal case ended in acquittal on the ground that the prosecution failed to prove the case against the accused beyond all reasonable doubt. The acquittal of the case is not on the ground of no evidence. It is settled law that nature of evidence required in a criminal case is of different standards and the same standards and proof is not required in civil proceedings. Therefore, mere acquittal of the appellant-husband and his parents in criminal case cannot be treated as instance which goes in favour of the appellant-accused to substantiate the plea of cruelty, on which a decree of divorce has been sought for."

33. Similar view was taken in AIR 2007 (NOC) 2205 (Del.) [Vishnu Dutt Sharma v. Manju Sharma].

34. The trial Court took the view that accusations and allegations of dowry harassment amounts to cruelty. In our considered view the approach of the trial Court is erroneous and cannot be endorsed with. While considering the accusations, regard must be had to the context in which they are made. When there was demand of dowry and ill-treatment, on that account necessarily Respondent has to lodge a complaint. If that is to be taken as cruelty, it would amount to allowing the Petitioner to take advantage of his own wrong. As per Sec.23(a) for granting any relief under the Hindu Marriage Act, the party should not be allowed to take advantage of own wrong.

35. Respondent-wife and her minor daughter filed O.S.No.133/2001 for claiming maintenance of Rs.1000/- each per month. By the Judgment dated 24.3.2004, the Family Court decreed the suit for maintenance ordering payment of Rs.1000/- each to the Respondent-wife and the daughter. It was stated before us that Petitioner-husband has not complied with the decree and that he has not paid any maintenance amount in compliance with the decree.

36. By the order dated 07.04.2004 in H.M.O.P.No.1596/1997, the Family Court granted decree for dissolution of marriage. Even during the pendency of the Appeal, Petitioner-husband remarried on 12.6.2008. By the order in C.M.P.No.602/2010 dated 13.4.2010, the marriage invitation with one Manju filed by the Respondent-wife was ordered to be received and marked as Ex.R1. In the counter-affidavit filed by the Petitioner-husband in C.M.P.No.602/2010, he has admitted his remarriage stating that he married one Manju in Kerala on 12.6.2008 and that a male child was also born on 03.05.2009. By perusal of order sheet, on 06.3.2009, the Petitioner-husband did not appear in the Court and only his brother [Sathyaseelan] appeared. It is pertinent to note that during March-April 2009, the earlier Bench [PSDJ & MSNJ] has called the matter in the Chamber and the husband appeared on 30.3.2009. The earlier Bench has directed the Petitioner-husband to pay Rs.75,000/- and thereafter the matter was adjourned to 13.04.2009. On 13.4.2009, Petitioner-husband paid Rs.10,000/- in cash and the matter was then adjourned to 23.6.2009. Thereafter, inspite of direction from the Court, Petitioner-husband has neither paid the amount nor appeared in the Court.

37. When the Appeal was called by the earlier Benches, the factum of second marriage was not at all brought to the notice of the Court. After the Appeal was listed before us, the learned counsel then appeared for the Respondent-husband reported no instructions and only on being insisted the Respondent-husband engaged another counsel and Appeal could be heard. The second marriage of the Respondent-husband with one Manju at Kerala during the pendency of the Appeal is in clear violation of Sec.15 of H.M. Act and is not a legal marriage. The act of the Respondent-husband getting remarried pending final disposal of the Appeal cannot have the effect of rendering the proceedings infructuous.

38. The learned trial Judge failed to properly appreciate the evidence in the light of the well settled principles. The learned trial Judge appears to have imported his personal notions in analysing the evidence. The learned trial Judge erred in disbelieving the evidence of RW1-wife and the decree of divorce granted by the trial Court cannot be sustained and the same is liable to the set aside.

39. In the result, the order in H.M.O.P.No.1596/1997 dated 07.04.2004 on the file of I Additional Family Court, Chennai is set aside and this Appeal is allowed. H.M.O.P.No.1596/1997 filed by the Petitioner-husband is dismissed. Having regard to the facts and circumstances of the case, Petitioner-husband is directed to pay cost of Rs.25,000/- to the Respondent-wife.

Petitioner-husband side exhibits [Marked as per order in CMP.No.627/2010 dated 13.04.2010]:

Ex.P1
06.01.2005
Certified copy of Judgment in C.A.No.224/2003 on the file of Additional District & Sessions Judge, Fast Track Court No.II, Chennai.

Ex.P2
07.05.1997
Xerox copy of notice issued by Petitioner-husband to the Respondent-wife.

Ex.P3
02.06.1997
Xerox copy of reply notice.

Respondent-wife side exhibits [Marked as per order in CMP.No.602/2010 dated 13.04.2010]:

Ex.R1

Copy of marriage invitation of Manju and Sreekanth.

bbr

Copy to:

The I Additional Family Judge,
Chennai

*****************************************************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
******************************************************************
CASE FROM JUDIS DOT NIC DOT IN SITE
******************************************************************

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s