Daily Archives: January 10, 2016

baseless allegation of adultery is an act of cruelty. Husband wins divorce. Madras HC

Wife deserts husband and goes away to brother’s house. She gives all pension and gratuity / superannuation benefits to siblings and not to husband. Attempts by husband to bring her back are not successful. Wife also makes serious allegations of adultery in written statements / counter. She claims husband having illicit relations with a servant maid. Approx 60 year old husband appears party in person and argues at HC

HC appreciates the facts and decrees that baseless and un substantiated allegation of adultery is an act of cruelty. Husband wins divorce

The HC orders and we quote

“….20. A conscious and deliberate statement levelled with pungency and that too placed on record, through the counter statement, cannot so lightly be ignored or brushed aside, to be of no consequence. The allegations levelled against the appellant, in the cases on hand, apart from they being per se cruel in nature, on their own also constitute an admission of the fact that for quite some time past the wife had been persistently indulging in them, unrelated and unmindful of its impact….”

“…. In our considered view, the respondent’s baseless allegation of adultery is an act of cruelty….”

“…21. It has to be pointed out that it is the specific case of the respondent that both in her petition for Restitution of Conjugal Rights and in the counter statements filed in the OP by the appellant for divorce and in her evidence that only because the appellant had illicit intimacy with servant maid Devi, she had left the matrimonial home, but the said allegations have not been made out by the respondent by acceptable evidence. When such serious allegations have not been made out, then the irresistible conclusion that could be reached is that there was no reasonable cause for the respondent to leave the matrimonial home. Admittedly, the respondent had left the matrimonial home in August 2005 with an intention not to return back to the matrimonial home and only after the period of two years, the petition for divorce had been filed and therefore when the respondent had deserted the appellant without reasonable cause the appellant is entitled to get a decree for divorce….”


IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 18.07.2011

C O R A M

THE HONOURABLE MR.JUSTICE K.MOHAN RAM
AND
THE HONOURABLE MR.JUSTICE M.DURAISWAMY

Civil Miscellaneous Appeal Nos.3602 and 3603 of 2010
and M.P.No.1 of 2010

I.Subramanian … Appellant in both CMAs
-Vs.-
C.Kuppammal … Respondent in both CMAs

Prayer in both the CMAs:- Civil Miscellaneous Appeal filed under Section 19 of the Family Courts Act 1984 against the orders passed by the I Additional Family Court, Chennai, in O.P.Nos.3636 of 2007 and 2737 of 2009, respectively.

For Appellant in both CMAs : Mr. I.Subramanian (Party-in-person) For Respondent in both CMAs : Mr. N.Manoharan, Amicus Curiae

C O M M O N J U D G M E N T

(JUDGMENT OF THE COURT WAS DELIVERED BY JUSTICE K.MOHAN RAM

  1. The appellant in the above appeals is the husband of the respondent. The marriage between the appellant and the respondent took place on 18.04.1975 as per Hindu Rites and Customs. On 29.03.1976 a son was born to them. Both of them are employed. On 10.07.1999 their son died.
  2. It is the case of the appellant that from August 2005 onwards the respondent started living with her brother in order to give all her retirement benefits to his family, as she was to retire from service on super-annuation on 31.12.2005. Since the respondent refused to come to the matrimonial home, the appellant filed HMOP No.529 of 2006 against the respondent on 02.03.2006 seeking Restitution of Conjugal Rights. As the respondent expressed her unwillingness to live with the appellant, the appellant withdrew the OP and the same was dismissed on 18.12.2007. On the same day, the appellant filed OP No.3836 of 2007 seeking a decree of divorce on the ground of cruelty and desertion. It is the further case of the appellant that the respondent never cooked meals regularly and the respondent would leave to her brothers’ and sisters’ house very often and the respondent would make untrue allegations about the character of the appellant to relatives and family friends as an excuse to leave home often and thus the respondent made the life of the appellant miserable and because of such conduct of the respondent, the health of the appellant was affected. She used to abuse the appellant in vulgar and filthy language in the presence of others. The respondent behaved in a rude and uncaring manner towards the son also. On 19.08.2005, the respondent with an intention to give all the retirement benefits to her brothers and sisters, without the consent of the appellant, deserted the appellant without any reasonable cause. The respondent retired from Government Service on 31.12.2005 and the respondent had given all her retirement benefits and the monthly pension to her brothers and sisters. All the efforts taken by the appellant with the help of the family members and friends to bring the respondent back to the matrimonial home proved futile. She lodged a police complaint against the appellant with G-5 All Women Police Station, Ayanavaram. In O.P.No.529 of 2006 filed by the appellant seeking Restitution of Conjugal Rights, the respondent filed a counter statement making untrue allegations regarding the character of the appellant and alleged that the appellant had brought one servant maid, by name, Devi, with whom he had illicit intimacy. It was further alleged in the counter statement by the respondent herein that the appellant sometimes used to live at the residence of the servant maid, Devi, and that was the reason why the respondent had to leave the matrimonial home. During counselling, the respondent firmly stated that she has no intention to reunite with the appellant and she openly challenged the appellant in the court premises that she would not allow the appellant to live peacefully. The reckless and untrue allegations made by the respondent and her uncaring attitude has caused inexplicable mental agony due to which the appellant’s health got deteriorated and he was mentally disturbed. The respondent had deserted the appellant without any reasonable cause and has caused great mental cruelty by her acts. On the aforesaid grounds, the appellant sought for divorce.
  3. In the counter statement filed by the respondent, the respondent herein denied the allegation that she did not care for the appellant and their son. She had stated that as a dutiful wife she did all the household work and never let the appellant and their son starve for food. The respondent would never leave the house or make wild and reckless allegations against the appellant. It is specifically stated in the counter statement that the appellant had illegal relationship with a servant maid, named Devi, who was residing very next to the ICF quarters and because of that lady only, the respondent left the matrimonial house and before leaving the house, she had given a police complaint at All Women Police Station (W-6), Ayanavaram. The police authorities advised the appellant to mend his ways, but he did not change his behaviour and because of that reason only, the respondent left the matrimonial home. The appellant filed OP No.529 of 2006 seeking Restitution of Conjugal Rights, but when the respondent expressed her willingness to live with the appellant, the appellant changed his attitude and withdrew the OP and immediately had filed the divorce petition. During the time when the respondent was living with the appellant, she had tolerated all the ill-treatment meted out to her with the hope of leading a happy marriage life with the appellant and now, at the age of 61, she does not need a divorce. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  4. When the respondent was to be examined as a witness in the OP, she filed OP No.2737 of 2009 seeking Restitution of Conjugal Rights. In that OP also, similar allegations, which are made in the counter statement in OP No.3836 of 2007, have been repeated. Denying all the allegations contained in the OP, a counter statement was filed by the appellant. Both the OPs were tried together.
  5. Before the Court below, the appellant was examined as P.W.1 and Exs.P-1 to 4 have been marked on his side. On the side of the respondent, the respondent was examined examined as R.W.1 and Exs.R-1 to R-5 have been marked. On a consideration of the evidence on record, the Court below came to the conclusion that the appellant had not established cruelty and desertion on the part of the respondent and accordingly dismissed the petition for divorce and consequently allowed the petition filed by the respondent for Restitution of Conjugal Rights. Being aggrieved by the dismissal of OP No.3836 of 2007, CMA No.3602 of 2010 has been filed. Being aggrieved by the order passed in OP No.2737 of 2009 ordering Restitution of Conjugal Rights, the appellant has filed CMA No.3603 of 2010.
  6. Heard the appellant, who is appearing in-person. As the respondent had been served and her name shown in the cause list, she is neither appearing in-person, nor through counsel, Mr.N.Manoharan, learned counsel, was appointed as Amicus Curiae to assist this Court and he was heard.
  7. The appellant submitted that from August 2005, the respondent had deserted him without any reasonable cause and she left the matrimonial home and started living with her brother. The appellant submitted that in OP No.529 of 2006 filed by him seeking Restitution of Conjugal Rights, the respondent filed a counter statement containing the following allegations:-
    • “….. Actually the petitioner had illegal relationship with the servant named Devi who was residing very next to the ICF quarter’s and because that lady only the respondent left the matrimonial house and before leaving the house she had given a police complaint at All Women Police Station (W-6) at Ayanavaram, were enquiry was conducted and adduced the petitioner to mend his ways. But after that incident the petitioner had never stopped his misbehaviour and only for that reason the respondent left the matrimonial home.” 
    • It is further stated in the counter statement as follows:-
    • “… the respondent left the house only due to the misbehaviour of the petitioner with the servant. …. on 23.8.2005 the respondent gave the Police complaint after knowing the illegal relationship of the petitioner.”
  8. The appellant further submitted that it was suggested to the appellant / P.W.1 during the cross-examination that in his house the servant maid by name Devi was employed, but the said suggestion was denied by the appellant. The appellant further submitted that in OP No.2737 of 2009 filed by the respondent seeking Restitution of Conjugal Rights the respondent had stated as follows:-
    • “5. …. Moreover the respondent developed illegal relationship with one of the servant maid and this came to the knowledge of the petitioner. When the petitioner questioned about the same to the respondent, he started beating the petitioner due to which she was forced to give a Police complaint in G-5, All Women Police Station. After that the respondent developed vengeance against the petitioner and did not allow the petitioner to live in the matrimonial house.”
  9. The appellant submitted that the aforesaid very same allegations have been repeated in the proof affidavit filed by the respondent. During her cross-examination it was suggested to R.W.1 / the respondent herein that on the basis of the complaint lodged by her against the appellant before Ayanavaram Police Station the servant maid Devi was not enquired the suggestion has been admitted, but the suggestion put to her that there is no relationship between the appellant and the servant maid Devi had been denied; a further suggestion was put to R.W.1 that because of the complaint lodged with the police and the allegations made before the relatives, the reputation of the appellant was spoiled, but the said suggestion has been denied; she has further denied the suggestion that because of the false allegations made by her against her husband, he was put to great mental cruelty; it has been further suggested to R.W.1 that there is absolutely no proof for the allegation that the appellant had illicit intimacy with Devi, but the same has been denied. According to the appellant, the aforesaid unfounded and serious allegation maligning the character of the appellant made in the police complaint, made before the relatives and friends and made in the counter statements filed in OP No.529 of 2006 and in OP No.3836 of 2007 and in the counter statement filed in OP No.3836 of 2007 and in her evidence has caused great mental agony and strain and the same will amount to cruelty; having made such serious allegations against the appellant and without any justifiable cause, the respondent had deserted the appellant from 19.08.2005, but these aspects have not at all been considered by the Court below.
  10. Mr. N.Manoharan, learned Amicus Curiae, appointed by this Court submitted that the allegations regarding the character of the appellant had been made by the respondent in her counter statement and in her OP No.2737 of 2009 only by way of defence and the same will not amount to mental cruelty. He further submitted that there is no acceptable evidence to show that the respondent is living away from the appellant for over two years and therefore, even if the respondent was living away from the appellant, he is not entitled to seek divorce on the ground of desertion; only because of the ill-treatment and harassment meted out to the respondent and because of the unbearable behaviour of the appellant the respondent had to leave the matrimonial home. He further submitted that the appellant has not examined any other witness to corroborate his evidence and therefore the finding recorded by the Court below does not call for any interference; simply because the respondent had lodged the complaint against the appellant that will not amount to causing mental cruelty. He further submitted that admittedly the respondent is aged about 62 years and the appellant is 60 years of age and at this fag end of their life a decree for divorce may not be granted and the respondent may be allowed to spend the rest of her life as wife of the appellant; these aspects have been rightly taken into consideration by the Court below and has rightly rejected the petition for divorce filed by the appellant and rightly granted the decree for Restitution of Conjugal Rights in favour of the respondent.
  11. We have carefully considered the aforesaid submissions made by the appellant, who appeared as party-in-person, as well as the learned Amicus Curiae and perused the materials available on record.
  12. The Court below has observed that P.W.1 has not stated any specific incident of cruelty, but R.W.1 has deposed that she was driven out from matrimonial home by the petitioner on 23.08.2007; Ex.P-4 will show that the petitioner’s health deteriorated because of the respondent; there is no proof to show that the respondent is responsible for the death of their son; there is no proof to show that the respondent treated the petitioner cruelly; there is no proof that the respondent used filthy language against the petitioner; there is no proof for any harassment by the respondent; the allegations stated by the petitioner are general and vague and the allegations stated by the petitioner are only wear and tear of the family life. The Court below has further observed that there is no evidence that the petitioner has taken steps to live together; the withdrawal of the petition for Restitution of Conjugal Rights by the appellant is not bona fide and it will clearly show that his intention is to get divorce only; the general allegations made by the petitioner have not been proved. The Court below has further observed that the appellant had not produced any material evidence in support of his allegations of cruelty and the appellant has not proved cruelty and desertion; the appellant had relied upon the decision reported in 2009 (3) CTC 15 (D.Nagappan v. T.Virgin Rani) in support of his contention that making false allegations of living in adultery against the appellant will amount to cruelty, but the Court below, without considering the allegations made by the respondent against the appellant, has simply stated that in the present case, there is no proof for continuing accusation against the husband. The Court below has observed that the appellant has not taken any steps for reunion, whereas the respondent wants reunion. On the aforesaid observations, the Court below has dismissed the petition for divorce and ordered the petition for Restitution of Conjugal Rights.
  13. A perusal of the order of the Court below shows that it has not at all referred and considered the serious allegations made by the respondent against the appellant. As pointed out above, the respondent has in her counter statement filed in OP No.529 of 2006, in the counter statement filed in OP No.3836 of 2007 and in the petition in OP No.2737 of 2009 and in her proof affidavits filed in the above petitions, have repeatedly made an allegation that the appellant had illicit intimacy with the servant maid, by name, Devi, and he started living with her in her house. She had also alleged that only because of the illicit intimacy of the appellant with the servant maid Devi, she had to leave the matrimonial home. The Court below ought to have considered as to whether the aforesaid serious allegations levelled by the respondent against the appellant had been established by her by acceptable evidence or not. The Court below should have further considered the effect of such allegations made against the appellant. But unfortunately the Court below has not considered these aspects in the light of the decision reported in 2009 (3) CTC 15 (referred to supra) which was relied upon by the appellant. It has to be further pointed out that the Court below ought to have independently considered the OP for Restitution of Conjugal rights on the basis of the evidence on record. Simply because the Court had dismissed the OP for divorce, it ought not to have granted an order for Restitution of Conjugal Rights. The Court below ought to have independently considered as to whether the respondent / wife is entitled to get an order for Restitution of Conjugal Rights, but the Court below has granted the relief of Restitution of Conjugal Rights as a consequential relief on the dismissal of the petition for divorce. The said procedure adopted by the Court below is not in accordance with law.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  14. In these cases, a perusal of the evidence of P.W.1 / appellant shows that he had stated that the respondent had repeatedly made a false allegation that he was having illicit intimacy with Devi and the said allegation has caused mental agony to him and the same has affected his reputation; she has also lodged a complaint against him on the very same allegations before All Women Police Station, Ayanavaram. In the course of his cross-examination also, the very same allegations have been suggested to him, which he denied. R.W.1 / respondent in her evidence has repeated the same allegations and it has been suggested to R.W.1 in her cross-examination that the allegations made against the appellant by the respondent are not true. Except denying the suggestion, no other details have been given by the respondent. The respondent has not even furnished the details regarding Devi, such as her husband’s name, her house address, etc., It has not even been stated in the counter statements filed by her in the aforesaid OPs and in the petition filed by her for Restitution of Conjugal Rights or in her evidence that she had ever seen the appellant and the said servant maid Devi in a compromising position. Except making a wild allegation, no other details, whatsoever, have been furnished. Even the said wild allegation has not been proved by the respondent by acceptable evidence, but the Court below has not considered the aforesaid aspects and the effect of such allegation on the appellant.
  15. Now the question is, when the aforesaid allegations made against the appellant by the respondent have not been substantiated, that will amount to causing mental cruelty. To decide the aforesaid question, it will be useful to refer to the following decisions:-
    • (i) In the decision reported in AIR 2005 BOMBAY 180 (Manisha Sandeep Gade v. Sandeep Vinayak Gade) a Division Bench of the Bombay High Court, while considering the question as to whether the unsubstantiated and unproved allegation of adultery levelled against the husband by the wife would amount to mental cruelty, has held that it will amount to mental cruelty. It was a case where the husband has sought for divorce on the ground of cruelty and while defending the petition, the wife in her written statement, apart from defending her and refuting the allegations made against her, had made several allegations against her husband and one such allegation was that he had illicit relationship with one Leena, wife of Vivek and in fact he wanted to marry her. While considering the legal effect of such an allegation, the Division Bench has held as follows:-
      • “30. What we have to note is that when one party to the petition has sought divorce on some ground and the respondent to that petition does not merely defend it to get it defeated, but makes further serious allegations against the petitioner, it becomes a clear step towards the dissolution of the marriage. In the present matter, the petitioner has approached the Court seeking dissolution of his marriage. It is his case that there is a failure of the marriage and he seeks to point it out by invoking a ground available under the law. At that point of time, if the respondent makes a counter allegation in the written statement, that by itself shows a prima facie failure of the marriage. ….
      • 31. …. In a matrimonial matter, one cannot apply the standard of stricter evidence. Nothing prevented her from establishing her allegations. The respondent could not have established the negative by leading any further evidence that the allegations made by the wife were false. The appellant had made the allegations. The burden was on her. She had failed to prove those allegations. Once she fails to prove those allegations and if those allegations are not in consonance with matrimonial relationship, and the husband complains that they have caused him agony, the inference that they constitute cruelty has to follow.
      • 32. In the circumstances we are satisfied that the learned Judge was right in coming to the conclusion that the allegations made by the appellant wife were baseless and false and constituted a cruelty. He was, therefore, right in granting the decree of divorce on that ground. …”
    • (ii) In AIR 1989 PUNJAB AND HARYANA 310 (Kiran Mandal v. Mohini Mandal) a Division Bench of that Court, has held as follows:-
      • “14. … She made false allegations against her husband that he had illicit relations with his brother’s wife. These false allegations did have an injurious effect on the husband. 15. Cruelty within the meaning of S. 13 of the Hindu Marriage Act is not confined to physical violence but includes mental torture caused by one spouse to the other. The wife had made it insufferable for the husband to live with her. Any man with reasonable self respect and power of endurance will find it difficult to live with a taunting wife, when such taunts are in fact insult and indignities. Human nature being what it is, a reasonable man’s reaction to the conduct of the offending spouse is the test and unending accusations and imputations can cause more pain and misery than physical beating. ….”
    • (iii) In Smt. Chanderkala Trivedi v. Dr. S.P.Trivedi, 1993 (3) Scale 541, the husband sued for divorce on the ground of cruelty by wife. The wife filed a written statement wherein she attributed adultery to the husband. In reply thereto the husband put forward another allegation against the wife that she was having undesirable association with young boys. Considering the mutual allegations, His Lordship, R.M.Sahai, J., speaking for Division Bench, observed:
      • “Whether the allegation of the husband that she was in the habit of associating with young boys and the findings recorded by the three Courts are correct or not but what is certain is that once such allegations are made by the husband and wife as have been made in this case then it is obvious that the marriage of the two cannot in any circumstance be continued any further. The marriage appears to be practically dead as from cruelty alleged by the husband it has turned out to be at least intimacy of the husband with a lady doctor and unbecoming conduct of a Hindu wife.”
  16. In the light of the law laid down in the aforesaid decisions, if the facts of the present cases are considered, it could be seen that when serious allegations of adultery is made by the wife against the husband and the same stands unsubstantiated that will definitely amount to mental cruelty as far as the husband is concerned. The unfounded allegations made by the wife against her husband by itself shows the prima facie failure of the marriage.
  17. In the decision reported in 2002 (5) Law Weekly 250 (P.Natarajan v. Thamizhmani), Mr. Justice K.P.Sivasubramanian, has observed as follows:-
    • “24. ….. Husband and wife constitute a family and the house is their fort. What happens within four walls of a house has its severe impact on the mind of the respective spouse. One spouse accusing another spouse of adultery, irrespective of sex, is the worst form of mental cruelty. The relationship of a husband and wife is built upon on mutual trust, devotion and confidence with each other. An accusation of adultery either by the husband or wife is bound to have serious adverse influence on such mutual trust, confidence and mental peace. If the said element of confidence and trust is lost, there can be absolutely no peace of mind and no rapport between the two. Therefore, there is no justification in being diverted by the reasons behind why adultery was not made an offence as against woman under the Indian Penal Code which was drafted more than a century ago, which appears to have weighed with the learned Judge. Social values and ideas have undergone many changes. Further we are only concerned with the impact on personal relationship, mutual respect and confidence between spouses.”
  18. In Vijayakumar Ramachandra Bhate v. Neela V.Bhate, 2003 (2) CTC 375 (SC) : 2003 (4) LW 609, the Supreme Court held that aspersions regarding infidelity is the worst form of insult and cruelty and that a wife is likely to feel deeply hurt and reasonably apprehend that it will be dangerous to live with a husband who was taunting her like that.  http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  19. In the decision reported in 2009 (3) CTC 15 (referred to supra), the Division Bench has held as follows:-
    • “20. In the present case, the respondent seeks divorce on two grounds, one of cruelty and the other regarding desertion. The allegation of illicit intimacy is made in the counter to the petition for divorce. In her cross-examination, which has been extracted above, she had admitted that she had made such allegations and right even from the time the first child was born, she had been making these allegations and that she has the right to continue to make such allegations. There is no iota of proof that the wife of Viswanathan and the appellant had had any intimate relationship. No instances where she had seen them together or apprehended them in compromising position is spelt out either in the pleadings or in the evidence. Therefore, apart from her allegation of illicit intimacy, there is no evidence in this behalf. What is more, she has admitted in her cross-examination that she had gone and told Viswanathan that there is illicit intimacy between his wife and her husband, for which he has stated that there is nothing of that sort and that she should go with her husband. She had also made these allegations to the Chief Minister’s Cell, which had resulted in the Deputy Secretary issuing a notice to the Syndicate Bank, the employer of Viswanathan. When she is unable to prove adultery, the false allegation of adultery becomes an act of cruelty.”
    • …. In A.Jayachandra v. Aneel Kaur, 2005 (1) CTC 215 (SC) : 2005(2) SCC 22, the Supreme Court considered the various ingredients that constitute cruelty :
    • “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 fulfil and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give 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... 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.
    • 11. The expression ‘cruelty’ has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course of conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. … In such cases, the cruelty will be established if the conduct itself is proved or admitted (See Sobha Rani v. Madhukar Reddi, 1988 (1) SCC 105. …. 
    • 14. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hyper-sensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husband and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court. (See Dastane v. Dastane, 1975 (2) SCC 326).”
    • In that case, the respondent / wife had used abusive language and made allegations of adultery of her husband with the nursing staff.”
  20. A conscious and deliberate statement levelled with pungency and that too placed on record, through the counter statement, cannot so lightly be ignored or brushed aside, to be of no consequence. The allegations levelled against the appellant, in the cases on hand, apart from they being per se cruel in nature, on their own also constitute an admission of the fact that for quite some time past the wife had been persistently indulging in them, unrelated and unmindful of its impact. In his petition for divorce, the appellant had stated that the allegations of adultery made against him by the respondent amount to cruelty and the complaint lodged by the respondent against the appellant before the Police amount to cruelty and the same has been repeated in his oral evidence, but, as pointed out above, the Court below utterly failed to consider the same and it has not focussed its attention on the real facts in issue. In our considered view, the respondent’s baseless allegation of adultery is an act of cruelty.
  21. It has to be pointed out that it is the specific case of the respondent that both in her petition for Restitution of Conjugal Rights and in the counter statements filed in the OP by the appellant for divorce and in her evidence that only because the appellant had illicit intimacy with servant maid Devi, she had left the matrimonial home, but the said allegations have not been made out by the respondent by acceptable evidence. When such serious allegations have not been made out, then the irresistible conclusion that could be reached is that there was no reasonable cause for the respondent to leave the matrimonial home. Admittedly, the respondent had left the matrimonial home in August 2005 with an intention not to return back to the matrimonial home and only after the period of two years, the petition for divorce had been filed and therefore when the respondent had deserted the appellant without reasonable cause the appellant is entitled to get a decree for divorce.
  22. For the aforesaid reasons, the orders of the Court below passed in O.P.Nos.3636 of 2007 and 2737 of 2009, are set-aside and the Civil Miscellaneous Appeals are allowed. However there will be no order as to costs. Consequently, the connected MP is closed.

srk

To
I Additional Family Court, Chennai

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How a Child Prodigy lost entire youth fighting cases JUST bcaz of marriage! Madras HC Irretrievable b/down & Cruelty

How a Child Prodigy a great musical talent, Late Mandolin U Shrinivas lost his entire youth fighting matrimonial cases JUST because of ONE big mistake in his life …that he got married in spite of being a male !!

Madras HC Irretrievable breakdown

Here is a very short glimpse of the terror he faced

“….Within few weeks of marriage, the Appellant /Wife started finding fault with his life style, his daily routine, his likes and dislikes and constantly picked up quarrels on some pretext or other and throw tantrum when she did not had her way….”
“….His daily routine began in learning music lessons from his father and the Appellant/ Wife by interrupting them by hurling, abuses and screaming and shouting followed invariably by arguments and quarrels between the Appellant/Wife and the Respondent/Husband. The rehearsals would end abruptly…”.
“….Occasionally, he would like the Appellant/Wife jointly in paying respects to the senior members of his profession, who either visit him or whom he visit or meet in public. The seeking of blessings from such elders was customary in music circles. But, the Appellant/ Wife started hurling abuses at him on such occasions and walked away from the scene much to his acute embarrassment…”.
“….The Appellant/Wife behaved in a hard headed, arrogant, merciless, thoughtless and unbalanced manner, devoid of affection or any sense of respect or duty and subjecting the Respondent/Husband to a lot of embarrassment in private as well as in public and gave a beating to his reputation and image all of which constituted mental cruelty. He was conservative by nature and was an introvert who prefers to spend his leisure time quietly in the company of the Appellant/Wife and the child…”
“….The Appellant/Wife called her parents to go over frequently to Madras and threatened him with proceedings under Indian Penal Code. The Appellant’s father was an I.A.S. Officer in Vigilance Department in Government of Andhra Pradesh. At the instigation of Appellant/Wife, her father started threatening him that he would use the official machinery at his disposal to initiate several criminal proceedings against him for an alleged offence under the Indian Penal Code and Dowry Prohibition Act, if he had not towed the line of his wife….”
“…The Appellant/Wife with her father’s support became abnormally aggressive with the Respondent/Husband and never allowed him to go near her or their son. He was prevented from playing or feeding his son or accompanying her and her son on outdoor trips. Each day passed with the threat of the Appellant/Wife’s father looming large over the Respondent/Husband….”

“…. She filed applications before the Hon’ble Supreme Court of India seeking transfer of the matrimonial proceedings pending before the Family Court, Chennai to the Courts in Hyderabad. After the dismissal of the applications for transfer before the Hon’ble Supreme Court of India, the Appellant/Wife was started humiliating him in public by levelling baseless, false and scandalous allegations and charges to the effect that he was indulging in sexy conversations or having illicit affairs with his lady fans. These accusations were made by the Appellant/Wife during the course of counselling proceedings in the chambers of the trial Court as well as before the Lok Adalat. The counsellors because of the reprehensible conduct of the Appellant/Wife terminated the session after one sitting based on the reason that a reconciliation between the parties was an impossibility….”

and finally after some one an half decades, the matter reached supreme court where Late U Srinivas was asked ot pay many many lakhs as alimony !!


IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated:26.09.2011

Coram

THE HONOURABLE Mr. JUSTICE ELIPE DHARMA RAO
AND
THE HONOURABLE Mr. JUSTICE M.VENUGOPAL

C.M.A.Nos.1656 and 1657 of 2010 and
M.P.Nos.1 and 1 of 2010

U.Sree … Appellant in both CMAs

Vs.

U.Srinivas … Respondent in both CMAs

Prayer: Appeals filed against the Common Order dated 22.12.2009 made in F.C.O.P.No.568 of 1997 and F.C.O.P.No.805 of 1998 on the file of the Principal Family Court, Chennai.

For Appellant : Mr.R.Swaminathan

For Respondent : Mr.V.Lakshmi Narayanan

COMMON JUDGMENT : M.VENUGOPAL,J.

The Appellant/Wife has preferred these two Civil Miscellaneous Appeals as against the Common Order dated 22.12.2009 in F.C.O.P.Nos.568/1997 and 805/1998 on the file of the Principal Family Court, Chennai.

2.The Appellant/Wife has filed F.C.O.P.No.568 of 1997 [under Section 9 of the Hindu Marriage Act, 1955] on the file of Principal Family Court, Chennai praying for restitution of conjugal rights.

3.The Respondent/Husband has filed F.C.O.P.No.805 of 1998 [under Section 13 (1)(i-a), Sections 26 and 27 of the Hindu Marriage Act, 1955, read with Section 7 of the Family Courts Act, 1984] on the file of Principal Family Court, Chennai praying for dissolution of marriage that took place between him and the Appellant/Wife on 27.05.1994 at Thirupathi.

4.Before the trial Court, O.P.Nos.568/1997 and 805/1998 were tried jointly and common evidence was recorded. On the side of the Appellant/Wife, witness P.W.1 was examined and Exs.P.1 to P.14 were marked. On the side of Respondent/Husband, witness R.W.1 was examined and Exs.R.1 to R.11 were marked.

5.The trial Court, on an appreciation of oral and documentary evidence on record and after scrutinising the same, had resultantly dismissed the relief of restitution of conjugal rights in F.C.O.P.No.568 of 1997 filed by the Appellant/Wife without costs and allowed F.C.O.P.No.805 of 1998 filed by the Respondent/Husband, by dissolving the marriage between the parties that took place on 27.05.1994 at Thirupathi.

6.Being dissatisfied against the Common Order dated 22.12.2009 in F.C.O.P.Nos.568/1997 and 805/1998, the Appellant/ Wife had preferred the present Civil Miscellaneous Appeals before this Court as an aggrieved person.

7.Facts in O.P.No.568 of 1997:

(a)The Appellant/Wife in her Petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act had averred that her marriage with the Respondent/Husband took place on 27.05.1994 in accordance with the customary rites and ceremonies prevalent in Telugu communities living in Andra Pradesh and that the marriage was an arranged one. After marriage, the parties lived together at Maruthi Nilayam, 12-A, Venkateswara Street, Dhanalakshmi Colony, Vadapalani, Chennai 600 026 till 03.01.1996, the date on which she was taken by her father-in-law to her parents house. They lived in the aforesaid address along with her husband’s parents, married sister with her husband and younger unmarried brother and sister in a joint family after marriage. On 19.11.1994 she was sent to her parents house for medical check up and treatment. Again she was brought back by her mother-in-law on 26.01.1995 from her parents house to Chennai and she lived in Chennai with the Respondent upto 12.03.1995, when she was sent back for delivery to her parents house. The Respondent/Husband visiting the Appellant/Wife on 27.05.1995 to celebrate their first wedding anniversary. Again, the Respondent/Husband visited on 30.05.1995, when she delivered a male child. After delivery, on 13th day, Respondent/Husband came with his family members to the Appellant/Wife’s parents house where she was staying after delivery. The Respondent/Husband visited the Appellant in August and September 1995 at her house at Hyderabad. She came back to Chennai on 04.10.1995 after her delivery and from then onwards she was living with the Respondent/Husband till 03.01.1996 together with the child.

(b).The Appellant/Wife was always quite accommodative, adjusting and gave respect to Respondent/Husband’s family members, fellow musicians and senior members of her husband’s profession. She never detested the visitors nor troubled the nest for any matters. She was taken by her father-in-law on 03.01.1996 to her parents house without her consent and thereafter, the Respondent/Husband had not visited her. From 03.01.1996, the Respondent/Husband without any reasonable excuse and with a view to leave the matrimonial home, withdrew from the society of the Appellant/Wife. Her parents move to contact the Respondent/Husband and the family members to find a solution had not yielded any fruitful result. Even the common relatives and friends tried to bring about solution, but it ended in vain. Hence, she filed the petition praying for restitution of conjugal rights.

8.Counter Pleas:

(a).The Respondent/Husband, in his counter, had stated that there was a total mental incompatibility between him and the Appellant /Wife. According to him, within a few weeks of marriage, the Appellant /Wife started finding fault with his life style, his daily routine, his likes and dislikes and constantly picked up quarrels on some pretext or other and throw tantrum when she did not had her way. His daily routine began in learning music lessons from his father and the Appellant/ Wife by interrupting them by hurling, abuses and screaming and shouting followed invariably by arguments and quarrels between the Appellant/Wife and the Respondent/Husband. The rehearsals would end abruptly. Occasionally, he would like the Appellant/Wife jointly in paying respects to the senior members of his profession, who either visit him or whom he visit or meet in public. The seeking of blessings from such elders was customary in music circles. But, the Appellant/ Wife started hurling abuses at him on such occasions and walked away from the scene much to his acute embarrassment. The Appellant/Wife behaved in a hard headed, arrogant, merciless, thoughtless and unbalanced manner, devoid of affection or any sense of respect or duty and subjecting the Respondent/Husband to a lot of embarrassment in private as well as in public and gave a beating to his reputation and image all of which constituted mental cruelty. He was conservative by nature and was an introvert who prefers to spend his leisure time quietly in the company of the Appellant/Wife and the child.

(b).The Appellant/Wife called her parents to go over frequently to Madras and threatened him with proceedings under Indian Penal Code. The Appellant’s father was an I.A.S. Officer in Vigilance Department in Government of Andhra Pradesh. At the instigation of Appellant/Wife, her father started threatening him that he would use the official machinery at his disposal to initiate several criminal proceedings against him for an alleged offence under the Indian Penal Code and Dowry Prohibition Act, if he had not towed the line of his wife.

(c).The Appellant/Wife with her father’s support became abnormally aggressive with the Respondent/Husband and never allowed him to go near her or their son. He was prevented from playing or feeding his son or accompanying her and her son on outdoor trips. Each day passed with the threat of the Appellant/Wife’s father looming large over the Respondent/Husband. He was unable to take on the cruel behaviour of the Appellant/Wife and had not stopped her on 03.01.1996, when she expressed her desire to visit her parents for a couple of months. He had not stood in the way, when she packed her belongings and took away with some of the costly gifts presented to him in India and abroad in appreciation of his music and left the matrimonial home on 03.01.1996. Fearing for the physical safety of the Appellant/Wife and his child, the Respondent /Husband requested his father to escort the Appellant/Wife and the son to Hyderabad and entrusted both of them to the care and custody of her parents. Even while at her parents house in Andhra Pradesh, the Appellant/Wife through remote control continued to indulge in every sort of harassment and mental cruelty on the Respondent/Husband by threatening him through her father and other relatives and friends who began spreading rumours in India and abroad on his fidelity and character and besmirched his hard earned reputation.

(d).The Appellant/Wife filed a Petition under Section 9 of the Hindu Marriage Act, 1955 to forestall the proceedings in India initiated by the Respondent/Husband in O.P.No.208 of 1997 under Section 10 of the Hindu Marriage Act, 1955 for judicial separation from him. The present petition under Section 9 of the Hindu Marriage Act was filed on 21.04.1997 and a counter in O.P.No.208 of 1997 was filed on by the Appellant/Wife.

(e).The averments made by the Appellant/Wife in the counter to O.P.No.208 of 1997 that she was ready and willing to join the Respondent/Husband, was made for the sake of making an averment. Since the Respondent/Husband was subjected to mental cruelty by harassing her as narrated by him in O.P.No.208 of 1997 as well as in the present counter, no decree can be passed forcing either of the parties to live with the other in such attitude of mind.

9.Factual Matrix in O.P.No.805 of 1998 (filed by the Respondent /Husband):

(a)The Respondent/Husband in his petition filed under Section 13(1)(1-a), Sections 26 and 27 of the Hindu Marriage Act read with Section 7 of the Family Courts Act, 1984 had averred that the marriage between him and the Appellant/Wife was solemnised at Thirupathi on 27.05.1994 in accordance with customary rites and ceremonies prevalent in Telugu Communities living in Andhra Pradesh. According to him, the marriage was consummated at Chennai sometime thereafter. As a result of wedlock, a son was born to him at Vijayawada on 30.05.1995.

(b).It is the case of the Respondent/Husband that serene atmosphere is a sine qua non for the pursuit of music, which has become a rare entity. Further, the time and concentration required for sadhana could not be compromised at the alter of other interests. He had given up formal education and devoted himself totally to the pursuit of music in the belief that it was a form of ‘Bhakthi’ a faith and commitment to something he loves.

(c).Each day the Respondent/Husband’s life begins with ‘Sadhana and Sadhakam’. His daily practices helped increase his repertoire under the guidance of his father who was his guru since childhood and to whom he looked upon for his sadhana, in the true guru sishya relationship that existed between them. The details were invariably followed by a steady stream of visitors to the Respondent/ Husband’s house. He exchanged his views and ideas on the nuances of music with the fellow musicians. Senior members of his profession is impart knowledge and share their own experiences with him. Also, his other friends and members of the public will come over to invite him to participate in musical or cultural programmes.

(d)immediately, on arrival to the matrimonial house, the Appellant/Wife started finding fault with his lifestyle, his daily routine and his likes and dislikes, and also constantly picked up quarrel with him on some pretext or other. According to him, the Appellant/Wife’s grand-father has been a famous violinist and she knew that his father has no guru but only claimed to be one. The early morning music sessions between him and his father were interrupted by the Appellant/Wife’s abuses hurled at him for considering his father as his guru. This culminate in arguments and quarrels between the parties and the sadhakams would end abruptly with the Appellant/Wife striking discordant notes in his mind and spoiled the surrounding atmosphere.

(e)The Respondent/Husband also averred that he occasionally asked the Appellant/Wife to join with him in offering respects to the senior members of his profession who either visit him or when he visits or meets in public. In music circles, seeking the blessings from elders was a customary one. However, the Appellant/Wife turned stony glares at him on occasions and walked from the scene much to his acute embarrassment. The hard headed, arrogant, merciless, thoughtless and unbalanced behaviour of the Appellant/Wife, devoid of any affection or a sense of respect or duty put him in a very unenviable position, giving a beating to his reputation and public image. If he refused to sail along with the Appellant/Wife, she went berserk and flung things at him.

(f)The Appellant/Wife solely started inviting her parents to go over frequently to Madras and threaten him with proceedings under the Indian Penal Code. At the instigation of the Appellant/Wife, his father-in-law started threatening him that he would use the official machinery at his disposal to initiate several criminal proceedings against him for alleged offences under the Indian Penal Code and Dowry Prohibition Act, if he was not towing the line of the Appellant/ Wife, change his guru and his conservative life style. The Appellant/ Wife’s father was an officer in the Vigilance Department, Government of Andhra Pradesh and encouraged by his support, the Appellant/Wife was abnormally aggressive in a relationship with him and never allowed him to come anywhere near the Appellant/Wife or their son. He was deprived of his conjugal rights and also physically prevented from playing with or feeding his son or accompanying the Appellant/ Wife and son on outdoor trips. He started realising gradually that the Appellant/Wife’s want of civil attention of his needs, her petulance of manners, rudeness of language and outbursts of temper were not ordinary wear and tear of married life to be suffered in silence. The outbursts of temper made by the Appellant/Wife with its degree, frequency and regularity became a menace to the peace and well being of the petitioner, affecting his career as a musician, as also affecting his mental and physical and emotional well being.

(g).Inspite of many sacrifices and adjustments made by him the Appellant/Wife adamantly refused to adapt herself to the Guru Sishya Parampara Pani way of life in the house of a traditional performing musician. He was not stopped the Appellant/Wife on 03.01.1996 when she decided to spend a couple of months in her parents house, she packed with her belongings viz., the ancestral jewellery presented to her by her mother-in-law at the time of their marriage and left the matrimonial home. He remained as a mute spectator when she took away with her some of the costly and cherished gifts and mementoes presented to him by connoisseurs of his music in India and abroad. He requested his father to escort his wife and their son to Hyderabad and entrust both of them to the care of his wife’s parents.

(h).The Respondent/Husband filed O.P.No.208 of 1997 on the file of the Principal Judge, Family Court seeking the relief of judicial separation. But the Appellant/Wife filed O.P.No.568 of 1997 praying for restitution of conjugal rights and contested the O.P.No.208 of 1997 filed by him.

(i).In the counter statement to O.P.No.208 of 1997, the Appellant/Wife stated that she was ready and willing to join him and these averments were made with no intention of pursuing the matter in real earnest. She filed applications before the Hon’ble Supreme Court of India seeking transfer of the matrimonial proceedings pending before the Family Court, Chennai to the Courts in Hyderabad. After the dismissal of the applications for transfer before the Hon’ble Supreme Court of India, the Appellant/Wife was started humiliating him in public by levelling baseless, false and scandalous allegations and charges to the effect that he was indulging in sexy conversations or having illicit affairs with his lady fans. These accusations were made by the Appellant/Wife during the course of counselling proceedings in the chambers of the trial Court as well as before the Lok Adalat. The counsellors because of the reprehensible conduct of the Appellant/Wife terminated the session after one sitting based on the reason that a reconciliation between the parties was an impossibility.

(j).It is the case of the Respondent/Husband that the Appellant / Wife went to the extent of communicating to his common friends and relatives that she would derive the utmost pleasure he would put behind bars if only for a day as in the case of Dr.Ambadi and his family. She expected to succeed in her plans through her petition in O.P.No.568 of 1997 for restitution of conjugal rights she further stated that once the petition was allowed, she proposed to return to his house for a short while only to shout for help alleging dowry harassment. Moreover, the Appellant/Wife stated that her husband entered the city of Hyderabad for giving music concerts, she would with the help of her parents and his henchmen kidnap him for life. When the news of these threats reached him, he started traveling to Hyderabad and returned in fear, humiliation and shame amidst private security against the threats posed by his wife. He also contemplated simultaneously initiating divorce proceedings. He was awarded with the Padmashree title in recognition of the contributions of the music.

(k).The Appellant/Wife filed O.P.No.86 of 1998 and I.A.No.141 of 1998 in O.P.No.86 of 1998 before the Family Court at Hyderabad for maintenance and separate residence under the Hindu Adoption and Maintenance Act, 1956, during the pendency of matrimonial proceedings in Chennai Courts and after the dismissal of her transfer applications before the Supreme Court.

(l).The Appellant/Wife did not bring any kind of Shridhana, be it jewellary or anything else to the matrimonial home. However, in January 1996 when she left for her home at Hyderabad, she took away with her all the following items of jewellary which formed part of the Shridhana of his mother and which were gifted to her by his parents at the time of her marriage.

Description of the jewel Approximate weight in grams 1 Gold Oddiyanam 1 Gold Haaram 1 Gold chain for Mangala Sutra 1 Gold chain with black beads 2 Gold bangles studded with Semi Precious stones 6 Gold Bangles plain 1 Gold Strap for wrist watch 4 Gold ear studs

(m).Apart from the above, the Appellant/Wife was in possession of the following gold ornaments, silver ware and cash gifts aggregating to a sum of Rs.10,000/- presented to him by his parents and his family friends on the occasion of the child’s first birthday and the said details are hereunder:

Description of the jewel Approximate weight in grams 1 Gold chain with dollar 4 Gold chain plain 1 Gold Bracelet 4 Gold rings 1 Silver Kancham 8 Silver tumblers 6 Silver cups

(n).The intense hatred and animosity displayed by the Appellant/ Wife towards him, followed by her cruel treatment, was caused so much mental anguish and pain that it is not possible for him to live with her any more. The wounds inflicted upon him by the Appellant/ Wife will never heal and even if they did, the scars would be for there ever. As a matter of fact, any rapprochement between the parties was therefore in the realm of impossibility. The marriage was failed totally. A lonely house devoid of people other than the mother would rob his son of the warmth and security guaranteed in a large family and could lead to mental aberrations. His little more than 3 years child was at the right age when such change of surroundings would not also have adverse psychological impact on him etc. If the custody of the child was made over to him rather than few years later, it would certainly be in the interests of the child. He was vitally interested in the future of his minor son. His father trained him. He would like to continue to Guru-Sishya lineage in the family by becoming his son’s guru. The welfare of the child was of paramount importance to him and therefore, he may be given the custody and guardianship of his minor son.

10.Counter Averments:

(a)The Appellant/Wife denied that she went to her parents house on 03.01.1996 and instead she was sent back by the Respondent/ Husband and his parents-in-law. She was also from a music family and knew the importance of music. The devotion and dedication to a profession was very important. At the same time, dedication to build up a strong matrimonial home was equally necessary for peace, happiness and bliss. She was a Veena player and aware of the efficacy and efficiency of music. It was because of her sacrifice, devotion and dedication towards the Respondent/Husband, he started touching the heights of music, gaining reputation and also popularity apart from increase in financial status. The Respondent/ Husband was negligent and careless in performing his duties as husband. Hence, he was no manner of right to take the plea of cruelty nor he was entitled to seek any relief on the basis of cruelty.

(b).The Respondent/Husband used to give public performances only by charging huge amounts which ranging from Rs.30,000/- to Rs.40,000/- per show depending upon the venue of performance. Her family background and their lifestyle daily routine was one and the same which the Respondent/Husband and his family members possess. The allegations that early morning music sessions were interrupted by her abuses, for his father to be accepted as guru or allegations with regard to arguments, quarrels etc. are all denied by her. He never cared to provide love and affection either to her or to the child. She was always ready and willing to join the company of the Respondent/Husband and to preserve the matrimonial home from being wretched. Her husband was directly under the strong influence of his parents, sister and brother in law.

(c).The Appellant/Wife was married at the age of 18 years to the Respondent/Husband and blessed with the son at the age of 20 years. She was no moral support in her husband’s family and the husband’s family members used to harass her for one reason or other. Her husband and his parents sent her to her parents house on the pretext of temporary short visit and it was only on the basis of her husband’s assurance that he would take her back she would left the matrimonial home. However, he failed to bring her back from her parents house. He filed O.P.No.208 of 1997 before the Family Court. Her father was always keen in her welfare and her husband. Her husband having gained reputation and name in the field of music, his rich parents were making attempts to have an alliance with her husband and also offering huge amounts of dowry to which the parents of her husband, sister and brother-in-law are playing a very key role in instigating him to go for a second marriage and for such purposes, the parents, sister and brother-in-law of her husband were not only influencing him but also putting so many ways of pressure to attain their goal. Her husband trapped under the influence, was compelled to file the present petition and only for this reason, had narrated the events for the purpose of constituting the grounds for divorce on the basis of cruelty.

(d).Her husband’s family members were already threatened her by dire consequences if he reached Chennai and in those circumstances, it was difficult to prosecute the pending case before the Chennai Court. Moreover, she was compelled to file the transfer petition before the Hon’ble Supreme Court, as it was very difficult to conduct the case in Chennai and to produce witnesses and to meet the travelling expenses, lodging charges etc.

(e).The Appellant/Wife never indulged in scandalous accusations during counselling proceedings either before the Court or before the Lok Adalat. The conciliation proceedings terminated the case of her husband’s refusal to accept the restitution of conjugal rights. She was in fact proud of her husband’s accomplishments and also when he was awarded Padmasri by the Government of India. She exercised her rights rightfully in filing the petition for maintenance at Hyderabad, since the cause of action arose at Hyderabad Court, which had also got the jurisdiction to entertain the petition. Being a stranger to Chennai city, except to her husband and his family, it was difficult for her to stay alone in Chennai. Hence, she filed a petition before the Competent Court having the concurrent jurisdiction.

(f).According to the Appellant/Wife, whatever type of gifts, the wife got at the time of marriage either from her parents or relatives or from her in-laws side or their relatives it became the property of the wife and it was her shridhana property. The Respondent/Husband was only the custodian of the shridhana property. Shridhana property absolutely belongs to her. It was false to state that the jewellery given to her by her husband’s mother at the time of marriage belongs to her mother-in-law. Even otherwise, a shridhana property could not be returned nor her husband can claim the relief. The Appellant/Wife was capable of providing all love, affection, care, security and protection to the child, as the attachment between the child and herself is so strong, but the Respondent/Husband was careless and negligent insofar as the care, custody and welfare of the child. The child was attending to the school in which he was admitted and she had taken proper care of the child. Hence, the Respondent/Husband could not claim custody of the child and the relief of custody of the child was unsustainable.

(g).The Appellant/Wife never caused any cruelty to the Respondent/Husband at any time nor caused any embarrassing situation at any point of time. She is an obedient wife and always respecting not only the sentiments of her husband, but also respecting the family members and very dutiful to her husband. The grounds mentioned in the divorce petition were vexatious, frivolous and bald one, therefore, the Respondent/Husband was not entitled to seek any relief.

11.In the present case, useful reference could be made to the evidence of P.W.1 (Appellant/Wife) and the evidence of R.W.1 (Respondent/ Husband) for proper and fuller appreciation of the case.

12.Evidence of P.W.1 (Wife):

(a)P.W.1, in her Proof Affidavit, averred that her first contact with the Respondent/Husband was on 20.11.1986 when he was given a Mandolin recital in connection with “Nada Sudharanva Sanmana Mahorchavam” of her grand-father Annavarpu Ramaswamy Garu, a renowned Violin Vidwan, who attained international fame. Further, she was attending her husband’s Mandolin concerts in Hyderabad from her 7th class student days onwards and she adored his concerts. Since then, they liked each other because of the music bond between their families.

(b).It is the further evidence of P.W.1 that before their marriage, both the families were visiting each other and moving very closely and her husband, only after seeing her dedication and devotion towards music and their music ‘Parambara’ and also the like-minded nature, married her. Further, the Betrothal ceremony was celebrated on 18.02.1993 at Hyderabad. The marriage between herself and the Respondent/Husband took place on 27.05.1994 at Thirumala, Andhra Pradesh, as per Hindu Customary rites and ceremonies prevalent in Telugu Communities living in Andhra Pradesh. Within few months of marriage, she conceived and on 12.03.1995 she was sent to her parents house for delivery. Her husband visited them for the first wedding anniversary on 27.05.1995. As a result of wedlock, a male child was born on 30.05.1995 and her husband visited at Hyderabad to see the child and the child was named as ‘Swaminath Sai Krishna’. After 13 days of the birth of her child, her husband with his parents came and saw the child. Again, in August and September 1995 he visited them at Hyderabad.

(c).The evidence of P.W.1 was to the effect that she always respected Guru-Sishya bond between her husband and his father and at no time criticised the Bond. Added further, P.W.1, in her evidence, deposed that she knew that it was a sin to bring disrespect to Guru and ending ‘Sadhakams’ and further, she learnt Veena from her mother only on Guru-Sishya bond. Moreover, she was quite familiar and aware of the life style and daily routine of the Musicians at home. The ‘Sadhana’ paying respect to elders etc. were all part of the Hindu culture, especially those from the field of music and therefore, every lover of music also follows the same system.

(d).Continuing further, P.W.1 stated that her husband could not totally avoid the role of a husband, as though he was wedded only to music and further that the concentration required for ‘Sadhana’ could not be at the sacrifice of other interests viz., his marriage life. As a matter of fact, one of the reasons for his reaching the heights in music field was her devotion to her husband, her maximum help and co-operation.

(e).According to P.W.1, her parents were at Hyderabad in Andhra Pradesh and her father was a Government Servant and he could not often get leave to proceed to Madras to give threats to his son-in-law and also that she was the only daughter of her parents. Indeed, all her family members and her husband’s parents and his family members enjoyed her husband playing with their son. There was no necessity for her to humiliate her husband at any time levelling scandalous allegations like her husband indulging in sexy conversations or having illicit affairs with his lady fans.

(f).P.W.1 proceeds to state, in her evidence, that she did not know who Ambadi was and what criminal offence he committed. She did not dream of cruel acts happening to her beloved husband. When her husband neglected to maintain her and the child, she sought the legal remedy of filing O.P.No.86 of 1998 for maintenance against her husband in Hyderabad Court. For want of jurisdiction, on technical grounds, the petition was returned from the Court at Hyderabad, which could not be termed as an act of cruelty. As a dutiful, devoted Hindu wife, she was anxious, ready and willing to live with her husband and lead a happy married life for ever. Her husband could not be permitted under law to divorce her at his whims and fancies, to suit his convenience purpose on the alleged flimsy acts of cruelty.

(g).P.W.1 deposed that she fully believed her husband and went to Hyderabad with the tender child and to her utter surprise and inspite of repeated requests, her husband (Respondent) had not taken care to come and take her back to the matrimonial home at Chennai. Also, she received summons in O.P.No.208 of 1997 on the file of the Family Court, Chennai filed by her husband praying for judicial separation on the very same false grounds now set up against her. Since her husband did not take steps to take her back as promised, she filed O.P.No.568 of 1997 seeking the relief of restitution of conjugal rights.

(h).The Respondent/Wife was taken to her parents house at Hyderabad by her father-in-law with a promise by her husband that he would come to Hyderabad and take her back after Sankaranthi (Pongal) festival and that there was no necessity to take any jewel except Mangalya Suthra, she was wearing. At the time of marriage, her parents presented her 40 Thulams of Gold Jewellery, 2 kilograms of Silver articles, 12 costly silk Sarees and other articles for marriage. All the jewels listed in the petition, costly sarees and other valuables and gifts were given at the time of her marriage are in the custody of her husband and his parents at the matrimonial home and not with her and that her husband was bound to return the jewels and other items to her.

(i).In her evidence, the Appellant/Wife as P.W.1 deposed that the Respondent/Husband was only interested in his Mandolin music profession and due to the number of programmes and different places, both in India and through out the world due to very very busy schedule, he hardly stayed at home and therefore, it was misnomer to state that he would take care of his son. Even the past conduct of the Respondent/Husband towards his son, his status as a person fully devoted only to Carnatic music and had not cared for his wife and son. Also, his busy schedule through out the world and other circumstance would speak volumes of the fact that her husband was only an unfit person to protect the interests of his son. She needed the wants, likes and dislikes of her son, she took care of his education, dress, medical care etc. and she was the fit and proper person to continue to have the custody of her son. He was studying in 7th standard, standing first in the class and secured many prizes in education and extra curricular activities due to her untiring efforts. There was no justification to put her son in hell from heaven. Further, the Respondent/Husband had to pay arrears of maintenance amounting to Rs.69,000/- from July 2005 to May 2007 at the rate of Rs.3,000/- per month.

(j).P.W.1 (in her cross examination) deposed that to the Sastiyapoorthi function of her grand-father the Respondent/Husband during the year 1986 gave the Mandolin performance and that she did not treat her husband cruelly at any time and that she had not taken the articles when she left the matrimonial home.

(k).It is the further evidence of P.W.1 that in Ex.R.2-Xerox copy of the petition in O.P.No.86 of 1998, in paragraph 5, she stated that her husband left her company from living together and that he treated her cruelly. She further stated, in Ex.R.3-Certified copy of petition O.P.No.86 of 1998 and in her cross examination, that she was treated cruelly by her husband and the family and it was also correct to state that she had stated, in her cross examination, at page 5, that her husband would not talk more and even though at the time when she left Chennai, at that time there was good relationship and every now and then, he used to behave like the Sadist and also that he has treated her cruelly, mentally and further, her husband was a Spectator for her crying, but she never informed about this to her father-in-law and mother-in-law because she was afraid of them. Subsequently, while deposing, she stated that what she stated in her cross examination in that case were not true.

(l).P.W.1, in her cross examination, also stated that when she came from Vadapalani, Chennai on 03.01.1996 and after coming to her parents house till date her husband had not come to her house and that she was residing with her parents. She also categorically denied that she scolded her mother-in-law in filthy language.

(m).Apart from the above, it is the evidence of P.W.1 that the Telugu Letter dated 18.10.1995 and later translated, was not written by her and to the summons issued to her father to produce the letter, her father stated that he does not remember to have received the same.

(n).Also, it is her evidence that her husband had no avocation except playing the Mandolin instrument and for 5 or 6 days her husband used to go out side for playing Mandolin and would also go for playing Violin for the whole year.

13.Evidence in R.W.1 (Husband):

(a).R.W.1, in his evidence, stated that his wife (P.W.1) started finding fault with even the ‘Guru-Sishya’ relationship that existed between him and his father, who was also a Mandolin Artist and the morning practice session between himself and his father were interrupted by his wife, who used to hurl abuses for considering the father as Guru resulting in quarrels and abrupt ending of the practice sessions. Further, his wife cultivated the habit of interfering in the middle of the practice demanding him to carry out or look after the trivial matters.

(b).It is the evidence of R.W.1 that his father-in-law, (officer of the Vigilance Department, Government of India, Andhra Pradesh) also at the instigation of his wife started threatening him that he would use his official machinery to initiate criminal proceedings against him under the Indian Penal Code and the Dowry Prohibition Act. Moreover, she became aggressive and never allowed him to come either near her or his son thus deprived of his conjugal rights and the rights to be with his son. She further harassed him in public by levelling baseless, false, scandalous allegations and charges that he was indulging in sexy conversations/having illicit affairs with lady fans.

(c).The evidence of R.W.1 is to the effect that the Appellant/Wife left the company on 03.01.1996 and she was not interested in keeping the marriage bond intact and wanted to put an end by seeking divorce from him as evidenced by the photocopy of letter Ex.R.8 dated 18.10.1995. In the said letter, she made unpleasant comments about the conduct of other family members which resulted in metal agony and the contents of the letter amount to acts of cruelties.

(d)Further, it is the evidence of R.W.1 that the evidence given by the Appellant/Wife in O.P.No.86 of 1998 before the Family Court, Hyderabad was mutually destructive of the stand taken by her insofar as the acts of cruelty raised by him in his petition for divorce. There was total mental incompatibility between him and the Appellant/Wife leading to irretrievable breakdown of marriage. Moreover, even during the Appellant/Wife’s staying at the matrimonial home, he was deprived of the marital happiness. She took away with her all the Jewellery items which formed part of shridhana on his mother and which were gifted to her by his parents at the time of marriage (as already mentioned in the Petition in O.P.No.805 of 1998).

(e).Even when a meeting with the Appellant/Wife and her family members was arranged at Hyderabad in the presence of J.Venugopal Rao, retired District Judge, she refused to join him and in the Mediation, she admitted her misdeeds and expressed regret and on the advise of the Mediators, she and her parents expressed regret and has given an assurance that she would behave properly and expressed her readiness and willingness to join his company, but has not done so.

(f).In his evidence, R.W.1 added that a notice has been issued to the Appellant/Wife on 01.03.2000 as per Order XII Rule 2 of Civil Procedure Code calling upon her to admit within 15 days from the date of service of that notice, the fact of writing the letter dated 18.10.1995 to her parents residing at Hyderabad, enclosing a photocopy of the same. For that notice, no reply was received by him.

(g).R.W.1, in his evidence, stated that his wife often asked him to take her to see the Chennai around and the news item was come to the effect that Dr.Ammarini was sent to jail for dowry harassment and based on that his wife informed him that she will sent him to prison and his father-in-law’s brother Sathiyanarayanan, Vijayawada, was served in Police Department, who threatened him. But, he had not given any police complaint and further that he went to Hyderabad on numerous occasions for giving performances and even after he was threatened during January 1997, he went to Hyderabad on numerous occasions for the purpose of giving performances.

(h).R.W.1, in his cross examination, deposed that it was not correct to state that R.8-Letter was not written by the Appellant/Wife and after 03.01.1996 he could not see his child.

14.The Point that arises for consideration in C.M.A.No.1656 of 2010 is:

“Whether the trial Court is correct in dismissing the restitution of conjugal rights petition in F.C.O.P.No.568 of 1997 dated 22.12.2009?”

The Point that arises for consideration in C.M.A.No.1657 of 2010 is:

“Whether the trial Court’s Order in F.C.O.P.No.805 of 1998 granting the relief of Divorce dated 22.12.2009 is a valid and justifiable one in the eye of law?”

The Contentions, Discussions and Findings on Points in both CMAs:

15.The Learned Counsel for the Appellant/Wife urges before this Court that the trial Court had passed the impugned common order in favour of the Respondent/Husband on assumptions and presumptions.

16.It is the contention of the Learned Counsel for the Appellant/ Wife that the Appellant/Wife inspite of all humiliations and hardships, she suffered in the hands of family members of the Respondent/ Husband had never shown any dissent and withstood the same because of her love for the Respondent/Husband and also with a view to lead a peaceful life with the Husband. But, these were not appreciated by the trial Court in a proper perspective which had occasioned in an erroneous order being passed against the Appellant/ Wife.

17.According to the Learned Counsel for the Appellant/Wife, the Appellant took initiatives by contacting the Respondent/Husband and his family members personally through common friends and relatives. But, he did not bring any solution and finally approached the trial Court for the relief of restitution of conjugal rights. But, the trial Court committed an error in coming to the wrong conclusion that the Appellant/Wife had not taken any steps for reunion and deserted the Respondent/Husband for the past 13 years.

18.Advancing his arguments, it is the submission of the Learned Counsel for the Appellant/Wife that the Respondent/Husband drew the Appellant/Wife out of the matrimonial home with oblique motives and intention. But the trial Court failed to appreciate the same.

19.Proceeding further, the Learned Counsel for the Appellant/ Wife contends that the Respondent/Husband left the Appellant/Wife in her parents place on 03.01.2006 for no reason and had not even care to take back the Appellant and the child to the matrimonial home and instead of filed O.P.No.208 of 1997 before the Principal Family Court, Chennai seeking the relief of judicial separation.

20.Expatiating his submissions, the Learned Counsel for the Appellant/Wife raises a legal plea that the trial Court erroneously placed reliance on Ex.R.8-Xerox Copy of Letter dated 18.10.1995 [written by the Appellant/Wife to her parents in Telugu] and in fact, in law, marking of a xerox copy of the Letter Ex.R.8, in the absence of its original, was against law.

21.The Learned Counsel for the Appellant/Wife projects an argument that the trial Court’s basis in relying upon Ex.R.8-Xerox Copy of Letter and granting divorce to the Respondent/Husband was really an unacceptable one.

22.That apart, the Learned Counsel for the Appellant/Wife submits that the Appellant/Wife hailed from a musical family and was quite conversant with playing of classical instrument Veena and in fact, both the Appellant/Wife and the Respondent/Husband were made for each other and they could lead a normal and happy life. But, these vital facts were not taken into account by the trial Court.

23.Yet another submission of the Learned Counsel for the Appellant/Wife is that there were no proper pleadings with regard to cruelty and no case was made out by the Respondent/Husband for the relief of divorce and only with a view to get rid of the Appellant/Wife, the Respondent/Husband had filed the Original Petition with false allegations.

24.It is the stand of the Appellant/Wife that the trial Court had erred in not taking into consideration the important documents filed on her side and also failed to pass a reasoned order and also not discussed the facts as stated by the Appellant/Wife in her pleadings.

25.It is the case of the Appellant/Wife that the Respondent/ Husband had not denied the facts as stated by Appellant/Wife amounting to admission and based on admission, the trial Court should have allowed the petition filed by the Appellant/Wife praying for restitution of conjugal rights and consequently should have dismissed the petition filed by the Respondent/Husband praying for the relief of divorce.

26.In conclusion, the Learned Counsel for the Appellant/Wife contends that the trial Court had committed an error in granting permanent alimony of Rs.5,00,000/- each to the Appellant/Wife and her son.

27.In response, the Learned Counsel for the Respondent/ Husband submits that the trial Court had considered the entire oral and documentary evidence available on record in a proper perspective and had come to a fair, just and correct conclusion in dismissing the O.P. filed by the Appellant/Wife praying for the relief of restitution of conjugal rights and in allowing O.P. filed by the Respondent/Husband seeking the relief of divorce.

28.The Learned Counsel for the Respondent/Husband cites the decision in Smt. Shanti Devi V. Raghav Prakash [AIR 1986 Raj. 13: 1985 (1) WLN 437] at paragraph 32, wherein it is held as follows:

“32. In the result, this appeal is partly allowed and the cross-
objections filed by the respondent are dismissed. The impugned
judgment and decree dt. the 17th Dec., 1981, passed by the District
Judge, Jaipur, District Jaipur so far as it relates to the passing of
decree of divorce under Section 13(1)(1a) of the Hindu Marriage Act,
1955, against the appellant, is upheld. So far as it relates to the
grant of permanent alimony in favour of the wife-appellant, the
impugned judgment and decree is modified and it is directed that the
amount of maintenance and permanent alimony would be Rs. 350/-
(Rupees three hundred fifty) per month from today. This amount would
be paid by the husband Raghav Prakash to Shanti Devi directly by
demand draft every month in her favour and every month this would be
sent to her at the address care of her father where she is living
unless the same is changed. This amount would be payable till Shanti
Devi conducts any remarriage. In addition to the above amount every
month, the respondent Raghav Prakash would pay Rs. 5,000/- as lump
sum to Smt. Shanti Devi within one month from today by a bank draft
in the name of Shanti Devi and, this bank draft would be deposited by
Raghav Prakash in the name of Shanti Devi at a scheduled bank having
branch at Bassi where Shanti Devi is residing by opening an
appropriate account. Then this amount of Rs. 5,000/- would be kept in
a fixed deposit by the bank for 6 years, to be renewed after 6 years
and the interest would be paid to Shanti Devi only. The amount as a
whole would be paid to Smt, Shanti Devi after obtaining the orders of
the trial Court in case Shanti wanted to withdraw it finally.”

29.A Petition praying for Restitution of Conjugal Rights is to be based on the withdrawal of the society of the Petitioner by the Respondent without any reasonable or justifiable cause. Admittedly, the terms ‘reasonable excuse’ have not been defined under the Hindu Marriage Act, 1955. If the Petitioner is guilty of misconduct, the Respondent has a reasonable excuse to withdraw from the society of the Petitioner and that the petition may be dismissed as per the decision in Anna Saheb V. Tarabai, [AIR 1970 Ministry of Personnel 36 (DB)]. The aspect of ‘reasonable excuse’ is a question of fact and each case is to be considered independently with reference to the facts and circumstances as per the decision in Krishnamurthy V. Symanthakamani [ILR (1977) 1 Kant 246].

30.In a Petition under Section 9 of the Hindu Marriage Act, the Court has to determine in case of dispute whether the relationship of husband and wife exists between the parties and then to proceed to find out if the case is fit for granting a decree of restitution of conjugal rights as per the decision in Gurdial Kaur V. Mukand Singh [AIR 1967 Punjab 235]. A Court of Law has to the discretion based on the facts and circumstances of a given case to pass a decree for restitution of conjugal rights. The said discretion, however, must be exercised with caution and after due deliberation.

31.As a matter of fact, in view of explanation to Section 9 of the Hindu Marriage Act, the early onus is on the Petitioner to prove the pleading in a petition under Section 9 of the Act. As per Section 9 of the Act, the Petitioner will have to establish (a) that the Respondent has withdrawn from the society of himself/herself (b) that such withdrawal has been made without reasonable excuse. The term ‘excuse’ is something more than a mere whim, fad or brain-wave of the Respondent. Proving the aforesaid two conditions in Section 9 of the Act squarely falls on the Petitioner. The Petitioner has to succeed on the strength of his/her own case. The object of a decree for restitution of conjugal rights is to compel through judicial process and unwilling party to have cohabitation.

32.According to Hindu Law, marriage is a holy union for the performance of religious duties. It is not a contract. It is a Sanskara or Sacrament. It is the last of the ten sacraments enjoined by the Hindu religion for purifying the body from inherited taint etc. as per the decision Joyita Saga V. Rajesh Kumar Pandey [AIR 2000 Calcutta page 109 (DB)].

33.Indeed, the wording of Section 9(1) of the Hindu Marriage Act clearly point out that even if the ingredients mentioned in the provision are fulfilled, yet, it is the discretion of a Court of Law whether or not to pass a decree for restitution of conjugal rights.

34.The expression under Section 9 of the Hindu Marriage Act ‘withdrawn from the society of the other spouse’ is similar in its connotation and legal effect with the term ‘desertion’ as per Section 13(1)(i-b) of the Act. The term ‘restitution of conjugal rights’ in ordinary sense mean restoration of conjugal rights which have been enjoyed by the parties earlier. The remedy mentioned in Section 9 of the Hindu Marriage Act is something more than mere reinstatement of something which was already enjoyed, and it would mean compelling one of the spouses to fulfil the matrimonial obligations which arose because of the marital bond.

35.Interestingly, in the case of restitution of conjugal rights as per Section 9 of the Hindu Marriage Act, the term ‘withdrawal from the society of the other’ is employed. But, in the case of judicial separation under Section 10 read with Section 13 of the Act ‘desertion has to be proved’. As a matter of fact, the term ‘Desertion’ is not used in Section 9 of the Act.

36.The term ‘Society’ mentioned in Section 9 of the Act ought to be understood as marital cohabitation. In Halsbury’s Law of England, 4th Edition, Volume 13, para 623, it is stated as follows:

“Choice of matrimonial home it is a husband’s duty to provide his wife with a home according to his circumstances. There is no absolute rule whereby either party is entitled to dictate to the other where the matrimonial home shall be; the matter is to be settled by agreement between the parties, by a process of give and take and by reasonable accommodation.”

37.The term ‘reasonable excuse’ is not defined under the Hindu Marriage act, 1955. At this stage, it is to be pointed out that the ‘reasonable excuse’ cannot be equated with a matrimonial offence nor it can be said that a reasonable excuse cannot exist except in the form of a ground recognised by the Act as valid for judicial separation or for nullity of marriage or for divorce. Something less than such a ground or a matrimonial offence may, as such, amount to a ‘reasonable excuse’ within the meaning of Section 9(1) of the Act.

38.Coming to the aspect of cruelty, it is to be pertinently point out that the Shorter Oxford Dictionary defines ‘Cruelty’ as ‘the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another’s pain; mercilessness; hard-heartedness’.

39.We aptly point out that the term ‘mental cruelty’ according to Black’s Law Dictionary [8th Edition, 2004] is defined as follows:

“Mental Cruelty – As a ground for divorce, one spouse’s course of
conduct (not involving actual violence) that creates such anguish
that it endangers the life, physical health, or mental health of the
other spouse.”

40.In Halsbury’s Laws of England [Vol.13, 4th Edition, Para 1269], the concept of cruelty is stated thus:

The general rule in all cases of cruelty is that the entire
matrimonial relationship must be considered, and that rule is of
special value when the cruelty consists not of violent acts but of
injurious reproaches, complaints, accusations or taunts. In cases
where no violence is averred, it is undesirable to consider judicial
pronouncements with a view to creating certain categories of acts or
conduct as having or lacking the nature or quality which renders them
capable or incapable in all circumstances of amounting to cruelty;
for it is the effect of the conduct rather than its nature which is
of paramount importance in assessing a complaint of cruelty. Whether
one spouse has been guilty of cruelty to the other is essentially a
question of fact and previously decided cases have little, if any,
value. The court should bear in mind the physical and mental
condition of the parties as well as their social status, and should
consider the impact of the personality and conduct of one spouse on
the mind of the other, weighing all incidents and quarrels between
the spouses from that point of view; further, the conduct alleged
must be examined in the light of the complainant’s capacity for
endurance and the extent to which that capacity is known to the other
spouse. Malevolent intention is not essential to cruelty but it is an
important element where it exits.”

41.The expression ‘mental cruelty’ in 24 American Jurisprudence 2d, has been described hereunder:

“Mental Cruelty as a course of unprovoked conduct toward one’s spouse
which causes embarrassment, humiliation, and anguish so as to render
the spouse’s life miserable and unendurable. The plaintiff must show
a course of conduct on the part of the defendant which so endangers
the physical or mental health of the plaintiff as to render continued
cohabitation unsafe or improper, although the plaintiff need not
establish actual instances of physical abuse.”

  1. In the instant case, our main endeavour would be to define broad parameters of the concept of ‘mental cruelty’. Thereafter, we would strive to determine whether the instances of mental cruelty enumerated in this case by the appellant would cumulatively be adequate to grant a decree of divorce on the ground of mental cruelty according to the settled legal position as crystallized by a number of cases of this Court and other Courts.

42.We worth recall the decision of the Hon’ble Supreme Court in N.G. Dastane v. S. Dastane [(1975) 2 SCC 326 at page 337, para 30] wherein it is laid down as follows:

“The enquiry therefore has to be whether the conduct charges as
cruelty is of such a character as to cause in the mind of the
petitioner a reasonable apprehension that it will be harmful or
injurious for him to live with the respondent.”

43.In Rajani v. Subramonian [AIR 1990 Kerala 1], it is observed that ‘the concept of cruelty depends upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance, judged by standard of modern civilization in the background of the cultural heritage and traditions of our society.’

44.In Parveen Mehta v. Inderjit Mehta [(2002) 5 SCC 706 at page 716-17 (para 21)], the Hon’ble Supreme Court has laid down as follows:

“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.”

45.Moreover, the Hon’ble Supreme Court, in Gananath Pattnaik v. State of Orissa in [(2002) 2 SCC 619: 2002 SCC (Cri) 461], has held hereunder:

“The concept of cruelty and its effect varies from individual to
individual, also depending upon the social and economic status to
which such person belongs. “Cruelty” for the purposes of constituting
the offence under the aforesaid section need not be physical. Even
mental torture or abnormal behaviour may amount to cruelty and
harassment in a given case.”

46.It cannot be gainsaid that the Hon’ble Supreme Court in Shobha Rani v. Madhukar Reddi [(1988) 1 SCC 105: 1988 SCC (Cri) 60], has observed thus:

“This Court had an occasion to examine the concept of cruelty. The
word ‘cruelty’ has not been defined in the Hindu Marriage Act. It has
been used in Section 13(1)(i)(a) of the Act in the context of human
conduct or behaviour in relation to or in respect of matrimonial
duties or obligations. It is a course of conduct of one which is
adversely affecting the other. The cruelty may be mental or physical,
intentional or unintentional. 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. There may, however, be cases where the conduct
complained of itself is bad enough and per se unlawful or illegal.
Then the impact or the injurious effect on the other spouse need not
be enquired into or considered. In such cases, the cruelty will be
established if the conduct itself is proved or admitted. 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.”

47.Added further, in the aforesaid decision, at Page 546 and 547 in Paragraph 101, the Hon’ble Supreme Court has enumerated some instances of human behaviour, which may be relevant in dealing with the cases ‘mental cruelty’ etc. and the same runs as follows:-

“…..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.

(ii) On comprehensive appraisal of the entire matrimonial life of
the parties, it becomes abundantly clear that situation is such that
the wronged party cannot reasonably be asked to put up with such
conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty,
frequent rudeness of language, petulance of manner, indifference and
neglect may reach such a degree that it makes the married life for
the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish,
disappointment, frustration in one spouse caused by the conduct of
other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment
calculated to torture, discommode or render miserable life of the
spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse
actually affecting physical and mental health of the other spouse.
The treatment complained of and the resultant danger or apprehension
must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference
or total departure from the normal standard of conjugal kindness
causing injury to mental health or deriving sadistic pleasure can
also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness,
possessiveness, which causes unhappiness and dissatisfaction and
emotional upset may not be a ground for grant of divorce on the
ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the
married life which happens in day to day life would not be adequate
for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few
isolated instances over a period of years will not amount to cruelty.
The ill-conduct must be persistent for a fairly lengthy period, where
the relationship has deteriorated to an extent that because of the
acts and behaviour of a spouse, the wronged party finds it extremely
difficult to live with the other party any longer, may amount to
mental cruelty.

(xi) If a husband submits himself for an operation of sterilization
without medical reasons and without the consent or knowledge of his
wife and similarly if the wife undergoes vasectomy or abortion
without medical reason or without the consent or knowledge of her
husband, such an act of the spouse may lead to 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….”

48.In Manisha Tyagi -vs- Deepak Kumar [I (2010) DMC 451 (SC)], the Hon’ble Supreme Court has held that ‘even the continued ill-treatment, cessation of marital intercourse, studied neglect, indifference of one spouse to other may lead to inference of cruelty’.

49.In Wilde, J.O. in Power v. Power [(1865) 4 SW & Tr. 173 : 12 LT 824], it is observed that ‘cruelty lies in the cumulative ill conduct which the history of marriage discloses.’

50.Continuing further, the term ‘mental cruelty’ ought to be of such a nature that the parties cannot reasonably be expected to live together. A fact situation must be such that the wronged party cannot reasonably be required to put up with the other side. It is a well settled proposition in law that in the absence of a positive act of cruelty, an individual is not entitled to secure a decree of divorce.

51.In Smt. Priti Parihar V. Kailash Singh [AIR 1975 Rajesthan 7], it is held that ‘Cruelty includes action or omission which injures the susceptibilities of the affected spouse and causes him or her mental agony to which the sufferer alone can state’.

52.In Gangadharan V. T.K.Thankam [AIR 1988 Kerala 244, 249], it is held that ‘Physical violence is not absolutely essential to constitute cruelty. A consistent course of conduct inflicting immeasurable mental agony and torture will constitute cruelty’.

53.In Gopal Krishnan Sharma V. Dr.Mithilesh Kumari Sharma [AIR 1979 Allahabad 316 at page 323], it is held that ‘Cruelty is frequently a term of relative meaning. It includes “every wilful act, omission or negligence whereby unjustifiable physical pain, suffering or death is caused or permitted”.’

54.In Sukumar Mukherjee V. Tripti Mukherjee [AIR 1992 Patna 32], it is held that ‘The question whether a particular act or behaviour will amount to cruelty or not depends upon the character, way of the life of the parties, their social and economic conditions, their status, customs and traditions’.

55.In the decision of the Hon’ble Supreme Court in Sujata Uday Patil V. Uday Madhukar Patil [2007 (3) SCJ 454 at page 459], it is held that ‘neither actual nor presumed intention to hurt the other spouse is a necessary element in cruelty’.

56.Under the Indian Evidence Act, the standard of proof in matrimonial proceedings is not essential one. It is enough if the Judge trying the case is satisfied that a matrimonial offence had been committed as per the decision Popuri Sunita Lakshmi V. Popouri Srinivas [(2004) II DMC 283 at page 287 (Appellant/Plaintiff)].

57.In Bhagwanti v. Laxman Das Panjawani [2000 [1] MPLJ 631 at page 634], it is held that ‘What conduct will amount to cruelty is a matter of fact and it is to be decided on various considerations of each particular case.’

58.The term ‘Cruelty’ may be concerned with complaints, accusations, taunts, etc. It is difficult to establish mental cruelty by means of a direct evidence as per the decision in Victor Sebastain v. Thorulatha [2006 (4) RCR [Civ] 577 at page 579 (Karnataka)(DB)].

59.In Simpson V. Simpson, 1951 P 320, the Court has observed as follows:-

“….When the legal conception of cruelty is described as being
conduct of such a character as to cause danger to life, limb or
health, bodily or mental, or to give rise to a reasonable
apprehension of such danger, it is vital to bear in mind that it
comprises two distinct elements: first, the ill-treatment complained
of, and, secondly, the resultant danger or the apprehension thereof.
Thus, it is inaccurate, and liable to lead to confusion, if the word
cruelty is used as descriptive only of the conduct complained of,
apart from its effect on the victim….”

60.In Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan reported in [(1981) 4 SCC 250], the Hon’ble Supreme Court has laid down thus:

“… The concept of legal cruelty changes according to the changes
and advancement of social concept and standards of living. With the
advancement of our social conceptions, this feature has obtained
legislative recognition, that a second marriage is a sufficient
ground for separate residence and maintenance. Moreover, to establish
legal cruelty, it is not necessary that physical violence should be
used. Continuous ill-treatment, cessation of marital intercourse,
studied neglect, indifference on the part of the husband, and an
assertion on the part of the husband that the wife is unchaste are
all factors which lead to mental or legal cruelty.”

61.The term ‘mental cruelty’ may encompass all verbal abuses and and insults by using filthy and abusive language resulting in persistent disturbance of mental peace of the other individual. No wonder, the term ‘mental cruelty’ is a problem of human behaviour.

62.In Richardson V. Richardson, [1949 2 All E.R. 330 at page 332] Bucknill L.J. has opined that ‘A matrimonial offence, seems to mean an offence against the vows of marriage. The vows of marriage are well known. Desertion is certainly one offence, and cruelty as defined by the law is another’.

63.In Chanderkala Trivedi (Smt.) V. Dr.S.P.Trivedi [1993 (4) SCC at page 232], the Hon’ble Supreme Court has held that ‘If a marriage was dead and there was no chance of its being retrieved it was better to bring it to an end.’

64.In the decision of the Hon’ble Supreme Court in Pranay Majumdar V. Bina Majumdar [(2007) 9 SCC 217] at paragraph 7, the Hon’ble Supreme Court has observed as follows:

“It is now represented by the learned counsel for the appellant that
pursuant to the joint Memorandum of Settlement, a sum of Rs.3,00,000/-
(three lacs) in full and final settlement of all the claims of the
respondent-wife as a permanent alimony was paid to him by way of a
demand draft. The learned counsel for the respondent-wife has also
stated that he has received the demand draft for a sum of
Rs.3,00,000/- (three lacs). The respondent, as per Memorandum of
Settlement, shall not claim any future claim for her and her daughter
who is residing with her first husband. In view of the settlement now
reached between the parties, the order of the High Court impugned in
this appeal is set aside and there will be a decree of divorce as
ordered by the trial court in respect of the appellant and the
respondent. The appeal stands disposed of accordingly. No costs.”

65.When a party seeks the relief of divorce on the ground of ‘Desertion’ under the Hindu Marriage Act, 1955, there must be an element of wilful permanent forsaking and abandonment of one’s spouse by the other without that person’s consent and without an acceptable cause. Desertion is not a solo act complete in itself. Per contra, it is a continuous course of conduct to be determined based on the facts and circumstances of each case.

66.In Vinita Saxena V. Pankaj Pandit [AIR 2006 S.C. 1662], it is held that ‘It must be proved that one partner in the marriage, however, mindless of the consequences has behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury.’

67.In Asoka Mitra V. S.K.Mitra [2008 (63) A.I.C. 612 at p. 616 (Cal.)], it is held that ‘For ordering a decree for divorce on the ground of cruelty, the acts complained of should be so grave and weighty so as to come to the conclusion that the husband cannot reasonably be expected to live with the wife.’

68.As per the scheme of the Hindu Marriage Act, 1955, dissolution of a marriage is generally the last option which the Court should resort to. However, if a situation crops up, where living together for both parties is no longer either practical or possible, directing them to live together as husband and wife, would be totally meaningless.

69.The aspect of cruelty may be mental or physical. It may be intentional or unintentional also. In case, it is physical, it is an issue of degree which is relevant. If it is mental, an enquiry should commence as regards the nature of cruel treatment and then as to the impact of such treatment on the mind of the other spouse whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Finally, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining party.

70.In Suman Kapur V. Sudhir Kapur [A.I.R. 2009 S.C. 589], it is held that ‘There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal.’

71.In Vimala Mehra V. K.S.Mehra [158 (2009) D.L.T. 136 at p. 150 (Delhi)], it is held that ‘it is not necessary to establish that the mental cruelty is such as to cause injury to the health of the Petitioner.’

72.In Heema Devi V. Arvind Kumar [A.I.R. 2009 H.P.83 at p.85], it is observed that ‘A wife who denies conjugal bliss to the husband, would be accountable on a charge of having caused mental cruelty to him’.

73.In C.R.Chenthil Kumar V. K.Sutha [II (2008) D.M.C. at p. 286 (Madras)], it is held that ‘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’.

74.Even some casual acts would be a grave act of cruelty to others. It depends on the facts of a particular case whether these acts were “cruel” to the subject person, and such person has to prove as to how he suffered due to said acts which were to him or her, acts of mental cruelty as per the decision in Nitin Bhaurao Tidke V. Sujata [1 (2007) D.M.C. 446 at pp. 450, 451 (Bom.)]. The mental cruelty differs from individual to individual based in intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty. The impact of taunts, accusations and complaints on a person amounting to cruelty will depend on diverse factors like the sensitivity of the victim concerned, the environment, education and social background.

75.To put it differently, each case has to be determined based on its own facts and circumstances, as per the decision of the Hon’ble Supreme Court in Mohammed Hoshan V. State of A.P. [(2002) 7 S.C.C. 414 at p. 418 (S.C.)].

76.In Rosenbaum v. Rosenbaum [(1976) 38 111 App 3d 1], the Appellate Court of Illinois has held hereunder:-

“…..To prove a case entitling a spouse to divorce on the ground of
mental cruelty, the evidence must show that the conduct of the
offending spouse is unprovoked and constitutes a course of abusive
and humiliating treatment that actually affects the physical or
mental health of the other spouse, making the life of the complaining
spouse miserable, or endangering his or her life, person or
health….”

77.The Hon’ble Supreme Court of Hawli, in Jem v. Jem [33 reported [(1937) 34 Haw 312], has held that ‘cruel treatment not amounting to physical cruelty is mental cruelty.’

78.In the decision in Manisha Tyagi v. Deepak Kumar [I (2010) DMC 451 (SC)], the Honourable Supreme Court, in paragraph 24, has laid down as follows:

“24. This is no longer the required standard. Now it would be
sufficient to show that the conduct of one of the spouses is so
abnormal and below the accepted norm that the other spouse could not
reasonably be expected to put up with it. The conduct is no longer
required to be so atrociously abominable which would cause a
reasonable apprehension that it would be harmful or injurious to
continue the cohabitation with the other spouse. Therefore to
establish cruelty it is not necessary that physical violence should
be used. However, continued ill-treatment, cessation of marital
intercourse, studied neglect, indifference of one spouse to the other
may lead to an inference of cruelty. However, in this case even with
aforesaid standard both the trial court and the appellate court had
accepted that the conduct of the wife did not amount to cruelty of
such a nature to enable the husband to obtain a decree of divorce.”

79.As far as the present case is concerned, the marriage has taken place on 27.05.1994 at Thirupati as per Customary rites and ceremonies prevalent in Telugu communities living in Andra Pradesh. It is also admitted that as a result of wedlock, a male child has been born on 30.05.1995. It is the case of the Appellant/Wife that on 03.01.1996 she has been taken away by her father-in-law to her parents house without her consent and that the Respondent/Husband has not visited her. Hence, the Respondent/Husband, without any just excuse, has withdrawn from her society. Therefore, she has prayed for restitution of conjugal rights in O.P.No.568 of 1997 on the file of the Family Court, Chennai.

80.According to the Respondent/Husband, it is only the Appellant /Wife with her child has gone to her parents place along with his father and has not returned back to the matrimonial house. It is also the case of the Respondent/Husband that his morning regular life begins with ‘Sadhana and Sadhakam’ under the guidance of his father who happens to be his Guru and this session has been interrupted by the Appellant/Wife by hurling abuses at him and this resulted in arguments and quarrels between him and the Appellant/Wife and the entire atmosphere would get spoiled and the morning session would end abruptly. Further, various such instances has marred his daily life because of the intolerable behaviour and attitude of the Appellant/ Wife.

81.The Appellant/Wife has denied the allegations made by the Respondent/Husband against her. She denied the allegation that the morning music sessions of her husband have been interrupted by her abuses hurled for considering his father as his Guru. It is also her case that the Respondent/Husband and his parents sent her to her parents house on the pretext of temporary short visit and only on the basis of her husband’s assurance that he would take her back, she left the matrimonial house.

82.In the present case, each party has levelled allegations and counter allegations against the other party. The Appellant/Wife has not examined any witness on her side either than herself to be examined as P.W.1 before the trial Court. Equally, the Respondent/Husband has not examined any independent witness other than himself being examined as R.W.1. The Appellant/Wife has not made any endeavour to examine the Respondent/Husband’s father. Though the Appellant/ Wife, in her counter to O.P.No.805 of 1998, has, inter alia, averred that her husband’s parents, sister and brother-in-law are playing a very key role in instigating him to go in for a second marriage and they are not only influencing him but also putting so may ways of pressure to reach their goal, she has not proved the said allegation before the trial Court.

83.It is not in dispute that the Appellant/Wife’s Husband (Respondent) is a world reputed Mandolin Instrument Player. According to the Appellant/Wife, as per Proof Affidavit, the Respondent /Husband is interested only in Mandolin Instrument Profession and since he has programmes both in India and abroad, he has a very busy schedule and he hardly stays at home, therefore, she is the fit and proper person to have the custody of her son.

84.The Appellant/Wife after going to her parents house on 03.01.1996 and thereafter has not made any efforts to get herself reunited with the Respondent/Husband. Even as per the decision taken in the Panchayat, the Hanmanth Rao was directed to take the Appellant/Wife to Madras, but he has not taken her. The Appellant/ Wife, in her cross examination, as P.W.1 and also in O.P.No.86 of 1998, has categorically stated that she has been treated cruelly by the Respondent/Husband and his family members. But, in O.P.No.568 of 1995 she has stated that the relationship between her and the Respondent/Husband has been cordial, till she left the matrimonial home on 03.01.1996. Thus, it is candidly clear that the Appellant/Wife has taken a divergent position and a contradictory stand which circumstance clearly goes against the Appellant/Wife.

85.Though the Appellant/Wife has denied that she has written the original letter of Ex.R.8 dated 18.10.1995 in Telugu to her parents and even when the said original letter has been sought to be summoned from her father, he has stated that there is no such letter. The main objection to the marking of Ex.R.8-Xerox copy of letter is that there is no corresponding original letter and therefore, Ex.R.8-Letter cannot be marked. It is to be pointed out that if the primary evidence is not obtainable, the secondary evidence becomes the best which a Court of law can procure and consequently satisfies the rule envisaged under Section 63 of the Indian Evidence Act. As a rule, the secondary evidence is not admissible until the non-production of primary evidence is satisfactorily accounted for. The secondary evidence is more often than not admitted by a Court of law than secondary oral evidence. A party desiring to let in a secondary evidence should do so before the Judge recording the evidence. It is the Judge recording evidence who should decide, if any objection as raised, whether or not to admit the secondary evidence in law.

86.In view of the fact that the Appellant/Wife’s father has stated that there is no original letter of Ex.R.8 dated 18.10.1995, in the absence of the said original letter of Ex.R.8 dated 18.10.1995, the secondary evidence is permissible in law by marking Ex.R.9-English Translation Copy of Ex.R.8-Telugu Letter dated 18.10.1995. In Ex.R.9-English Translation copy of Letter written by the Appellant/Wife dated 18.10.1995 addressed to her parents, the Appellant/Wife has spoken ill of her mother-in-law etc. and has prayed for saving her from these devils. She has also desired to take divorce, since she cannot stay in this Kompa any longer and has asked her father to apply divorce.

87.The English Translation of Ex.R.9-Letter dated 18.10.1995, as referred to supra, clearly spells out the attitude and conduct of the Appellant/Wife and to obtain divorce. In short, the contents of Ex.R.9-Letter dated 18.10.1995 has caused mental cruelty to the Respondent/ Husband and in the instant case, the distance between the parties as widened so deeply that it is impossible for the Appellant/Wife and the Respondent/Husband to live together in an harmonious condition. The marriage between the parties have irretrievably broken down. Each party has a feeling of anguish, disappointment and frustration over the other, as seen from the attendant facts and circumstances of the present case.

88.In short, it would be difficult for the parties to bury the past and to begin a new relationship of Husband and Wife. For the past 15 years both parties have remained separately. During these years, they developed their own life style, remained in isolation and grown in their own thoughts. Marriage tie between the parties has become emotionally dead and the same is beyond repair because of the emotionally dead relationship which is a positive act of oppressive mental cruelty, in our considered opinion. There is no chance for both parties to live together in future. In such a context, the decree of Divorce is the only remedy to be passed, so that the parties may choose their life of their own way, when there has been no scope for their reunion.

89.The very fact that the Appellant/Wife has left the matrimonial house on 03.01.1996 and has not returned till date shows that there is animus deserendi on her part which is clearly established. Her course of conduct clearly establishes her desertion also. In the instant case, the marriage tie between the parties has damaged beyond any salvation. Merely to keep the marriage as a sham one is not a desirable one.

90.When the parties cannot live in peace, no purpose will be served in keeping the parties tied by the bond of marital relationship. While granting the relief, a Court of Law should not shy away from the realities. In the present case, the stage has reached between the parties that it is impossible for them to live together in view of the allegations and counter allegations made by each of the parties mentally and psychologically affecting them and the same has gone to such an extent that each party has developed repulsion to the other. This Court opines that no useful purpose will be served in keeping the marriage intact and make the party suffered, in fact, the marital tie has broken down. A marriage which is dead practically and emotionally, the continuance of the same will prolong the mental agony and affliction and it is cruelty. The relationship between the parties has strained a lot and it has reached a stage of point of no return. The Ex.R.9-Letter dated 18.10.1995 contents has caused mental cruelty to the Respondent/Husband, as a result of which, the parties cannot be expected to live together.

91.In the present case on hand, taking note of the social status of the parties, the society they move in and since there is no possibility for the parties to come together and to lead a new leaf of life and all other relevant facts and circumstances, this Court comes to an escapable conclusion that the Appellant/Wife has caused mental cruelty to the Respondent/Husband and he has proved the same before the trial Court, which rightly granted the dissolution of marriage that took place between the parties on 27.05.1994 at Thirupati. Consequently, it also rightly rejected the relief of restitution of conjugal rights as prayed for by the Appellant/Wife in O.P.No.568 of 1997. Resultantly, both the Civil Miscellaneous Appeals fail.

92.Coming to the plea of the Appellant/Wife that the trial Court committed an error in awarding a sum of Rs.5,00,000/- each towards permanent alimony to her and her minor son, aggregating in all a sum of Rs.10,00,000/-, it is to be pointed out that the trial Court, while granting main relief in the Original Petition, has inherent powers to award permanent alimony to the concerned parties to prevent an aberration of justice, in the considered opinion of this Court.

93.At this stage, we aptly point out the decision of the Hon’ble Supreme Court in Satish Sitole V. Ganga (Smt) [(2008) 7 SCC 734] wherein the Hon’ble Supreme Court following the precedent in Romesh Chander V. Savitri [(1995) 2 SCC at page 7)] while invoking Article 142 of the Constitution of India, dissolved the marriage subject to the husband paying permanent alimony of Rs. Two lakhs and cost of the appeal assessed at Rs.25,000/-.

94.Admittedly, R.W.1 (Husband), in his cross examination, deposed that as per Order of Hyderabad Court, he is paying a maintenance of Rs.12,500/- to the Appellant/Wife and his son. Considering the interest and welfare of the Appellant/Wife and her son, their status, bearing in mind the rise in prices of essential commodities and the cost of inflation, this Court, on the basis of Equity, Fair Play and even as a matter of prudence, directs the Respondent/Husband to pay the maintenance amount of Rs.12,500/- to the Appellant/Wife and her son from the date of order of Hyderabad Court till date and further, he is directed to pay a sum of Rs.5,00,000/- each to the Appellant/Wife and her son towards permanent maintenance in full and final settlement within a period of one month from the date of receipt of a copy of this Judgment.

95.Further, the trial Court has dismissed the relief of return of jewels and custody of minor child as prayed for by the Respondent/ Husband based on the reason that the Respondent/Husband has not proved by way of documents that the jewels are with the Appellant/ Wife and further, it is also held that the custody of the child cannot be given to him, because of the fact that he has failed to maintain the child, till date of filing of the maintenance petition by the wife and in this regard, we confirm the finding of the trial Court.

In the result, both the Civil Miscellaneous Appeals are dismissed, leaving the parties to bear their own costs. Connected Miscellaneous Petitions are also dismissed.

(E.D.R.J.) (M.V.J.) 26.09.2011

Index :Yes

Internet :Yes

Sgl

ELIPE DHARMA RAO,J.

AND

M.VENUGOPAL,J.

Sgl

To The Principal Family Court, Chennai.

JUDGMENT IN C.M.A.Nos.1656 and 1657 of 2010 26.09.2011

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