Wife deniying sex, acting like deadwood, NON participation @ rituals, deserting husband R cruelty. Husband wins Divorce

Wife refuses sex, refuses to participate in customary ceremonies, leaves husband often and files false complaints. Tries to deprive him of divorce by appealing to HC. HC sees thru the wife’s game and confirms the divorce in favour of the husband.

Also, the importance of proving your case at the lower court comes out in this case. HC relies on lower court case / testimonies to decide on this case

Excerpts and emphasis 

“….There cannot be any straitjacket formula for determining whether there is cruelty or not and each case depends on its own facts and circumstances. What may be cruelty in one case may not be cruelty in other and the parameter to judge cruelty as developed through judicial pronouncements is that when the conduct complained of is such that it is impossible for the parties to stay with each other without mental agony, torture and stress. It has to be something much more than the ordinary wear and tear of married life. …….

…..Trial Court after analyzing the evidence adduced by both the parties found the version of the appellant untrustworthy and unreliable while that of the respondent, much more credible and trustworthy……

11. …..In the present case, the testimony of the respondent (husband) that the appellant (wife) was never responsive and was like a dead wood when he had sexual intercourse with her remained unrebutted. It is not thus that the respondent (husband) had sex with her wife only about 10-15 times from the date of his marriage within a period of five months, but the cruel act of the appellant of denying sex to the respondent especially on the very first night and then not to actively participate in the sex even for the said limited period for which no contrary suggestion was given by the appellant to the respondent in his cross- examination…..”

“…..The respondent has also successfully proved on record that the appellant did not participate in the customary rituals of dud mundri and that of chudha ceremony, which caused grave mental cruelty to the respondent. It is a matter of common knowledge that after the marriage, certain customary rituals are performed and the purpose of these rituals is to cement the bond of marriage. The question whether there was a refusal on the part of the respondent not to perform the ritual of dud-mundari and chudha ceremony is difficult to be answered as on one hand, the appellant has alleged that she had duly participated in the ceremonies while on the other hand the respondent has taken a stand that there was refusal on the part of the appellant to participate in the ceremonies. No doubt the testimony of the respondent has been supported by the evidence of his father and there is no corroborative evidence from the side of the appellant, ………….

“……Undeniably, these customary ceremonies are part of the marriage ceremony and refusal of the same that too in the presence of the family members of the husband would be an act of cruelty on the part of the wife. The appellant has also failed to prove any demand of dowry made by the respondent or his family members as no evidence to this effect was led by the appellant. The appellant herein also filed CRIMINAL COMPLAINTS against the respondent and his family members and later withdrew the same. Undoubtedly, it is the right of the victim to approach the police and CAW cell to complain the conduct of the offending spouse, however, frivolous and vexatious complaints like in the present case led to cause mental torture and harassment to the respondent and his family members. Thus, taking into account the conduct of the appellant in totality, this court is of the view that the same amounts to causing mental cruelty to the respondent……..

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on:    21.03.2012

FAO No.185/2001

Smt. Shashi Bala                                       ……appellant.
Through: Mr. Atul Bandhu, Adv.

Vs.

Shri Rajiv Arora                             ……Respondents
Through: Mr. R.G. Srivastava, Adv.

CORAM:

HON’BLE MR. JUSTICE KAILASH GAMBHIR

KAILASH GAMBHIR, J.

1. By this appeal filed under section 28 of the Hindu Marriage Act, 1955, the appellant seeks to challenge the impugned order and decree dated 12.2.2001 passed by the learned Trial Court whereby a decree of divorce in favour of the respondent husband under Section 13(i)(a) of the Hindu Marriage Act was granted and the counter claim filed by the appellant seeking a decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act was dismissed.

2. Brief facts of the case relevant for deciding the present appeal is that the marriage between the parties was solemnized on 17.2.1991 according to Hindu rites and ceremonies. It was stated by the husband in his divorce petition that after the solemnization of the marriage, right from the inception, the attitude of the appellant was indifferent and she complained that the marriage had not been solemnized with a man of her taste. As per the respondent husband, the appellant had refused to participate in the traditional ceremony of dud-mundri by saying that she did not like all this but without disclosing any reasons. As per the respondent, the appellant also did not take any interest in the dinner which was served on the wedding night i.e. 18.2.1991. It is also the case of the respondent that when both of them went to their bedroom around 11.30 p.m. the appellant was not responsive and she did not allow the respondent to have sexual intercourse with her. The respondent has alleged that it is only on 25.2.1991, that he was allowed to have sexual intercourse with the appellant for the first time, but again the appellant remained unresponsive and such conduct of the appellant caused mental cruelty to the respondent. It is also the case of the respondent husband that on 13.4.1991, the appellant refused to perform “chuda ceremony” which not only hurt the sentiments of the respondent but his parents as well. It was also stated that the appellant in fact removed the chuda and threw it under the bed by saying that she did not believe in all these things. It is also the case of the respondent that the appellant used to visit her parents on her own without even informing the respondent and finally left the matrimonial home on 16.4.1992 and since then she did not come back. It is also the case of the respondent that he had sexual intercourse with the appellant only for about 10-15 times during her stay with him for a period of about 5 months. It is also the case of the respondent that the appellant used to quarrel with his old parents and she also used to insist to shift to her parents’ house at Palam colony. The respondent also alleged that on 11th March, 1991 the appellant tried to illegally remove the jewellery from the almirah which belonged to his mother and which was kept for his unmarried sister and while doing so she was caught red handed. It is also the case of the respondent that the appellant made a false complaint with the Crime Against Women Cell and Family Counsel Office, which complaints were ultimately withdrawn by her. Based on these allegations the respondent husband claimed the decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act.

3. In the written statement filed by the appellant wife, she denied all the abovesaid allegations leveled by the respondent husband. She denied that she had refused to participate in the “Dud Mundari Ceremony”. The appellant had also stated that after taking lunch on the wedding day, one lady relative of her in-laws and parents of the respondent remarked that she did not bring bed and sofa sets in her dowry and in response she informed them that her father had given a bank draft of Rs. 30,000/- besides presenting costly clothes, ornaments, TV, clothes for relatives, utensils and other articles in the marriage. It is also the defence of the appellant that on the wedding night the respondent entered the bedroom showering filthy abuses on the appellant and told her that she had not brought the dowry according to their expectations. It is also her case that she was also told by the respondent that the bank drafts should have been prepared either in the name of the respondent or in the name of his father. It was denied by the appellant that her attitude was indifferent at the time of dinner. She also denied the allegation of non- consummation of the marriage on the wedding night. The appellant took a stand that right from the wedding night i.e. 18.2.1991 the parties had normal physical relationship with each other. She also denied that she did not perform “chuda ceremony” or threw the chuda under the bed. She also denied that she left the matrimonial home on 16.4.1992. The appellant also took a stand that on 23.4.1992 the respondent, his parents and two sisters asked her to bring Rs. 50,000/- or otherwise leave the matrimonial home and on her refusal to meet the said demand, she was thrown out of the matrimonial home. The appellant denied that she had sexual relationship with the respondent only 10-15 times or she had refused to have sex with the respondent. She also denied that she never insisted the respondent to live in the house of her parents. She also denied that on 11th March, 1991 she made any attempt to steal the jewellery or she was caught red handed. She also stated that in the last week of April, 1991 she was told by the respondent to withdraw Rs. 30,000/- from her bank account as the old sofa lying in the house required replacement but no new sofa set was purchased when she brought the said money and gave the same to the mother of the respondent. The appellant also took a stand that she was prepared to live with the respondent as she had withdrawn from her society without any reasonable cause and without any fault on her part.

4. Based on the pleadings of the parties, the learned Trial Court framed the following issues:-

(i) Whether the respondent has treated the petitioner with
cruelty?

(ii) Relief.

(iii) Whether the petitioner has withdrawn from the company of
the respondent without any reasonable cause or excuse? If so, its
effect.

The respondent in evidence examined himself as PW2 besides examining Shri Dalveer Singh, Head Constable as PW1 and Shri Vishwamitra, father of the respondent as PW 3, his colleague Shri Vijay Kumar Taygi PW4. The appellant on the other hand examined herself as RW1 with no other evidence in support.

5. After taking into consideration the pleadings of the parties, the learned Trial Court found that the refusal of the appellant wife to participate in the “Dud Mundari ceremony” and thereafter “Chudha ceremony”, which were customary rituals in the family of the respondent husband caused embarrassment and humiliation to the respondent and such acts on the part of the appellant amounted to cruelty. The learned Trial Court also found that in the span of one year and two months of the married life, the parties had sex only for about 10-15 times and also denial of the appellant for sexual relationship on the very first night of the marriage is a grave act of cruelty as healthy sexual relationship is one of the basic ingredients of a happy marriage. The learned Trial Court also found that filing of the complaints by the appellant with the Crime Against Women Cell and Family Counsel Office also collectively caused mental cruelty to the respondent husband. Accordingly, the learned trial court granted a decree of divorce in favour of the respondent and against the appellant and consequently also dismissed her counter claim for restitution of conjugal rights.

6. Mr. Atul Bandhu, learned counsel appearing for the appellant before this court vehemently argued that the learned Trial Court did not refer to the evidence of the appellant wife wherein she has denied all the allegations leveled by the respondent husband in his petition for divorce. Counsel also contended that the marriage was consummated on the very first night and the appellant wife never denied sexual relationship to the respondent husband. Counsel also submitted that nowhere the respondent husband has stated that as to when he was refused any such sexual relationship by the appellant. Counsel thus argued that the learned Trial Court has granted the decree of divorce merely on the ground that the appellant wife did not participate in the dud-mundari ceremony and chudha ceremony and also she did not allow the husband to have sexual intercourse more than 10-15 times in a period of 5 months and as per the counsel, these grounds cannot be treated sufficient enough to constitute cruelty as envisaged under Section 13(ia) of the Hindu Marriage Act. In support of his arguments, counsel for the appellant placed reliance on the judgment of the Hon’ble Supreme Court in Savitri Pandey vs Prem Chandra Pandey AIR2002SC591 and V. Bhagat vs D. Bhagat (Mrs) (1994) 1 SCC 337.

7. Mr. R.G. Srivastava, learned counsel appearing for the respondent on the other hand fully supported the reasons given by the learned Trial Court which entitled him to claim a decree of divorce under Section 13(ia) of the Hindu Marriage Act. Counsel for the respondent also submitted that the appellant did not respect the sentiments of the respondent and his family members by refusing to perform customary rituals like dud-mundari ceremony and chudha ceremony. Counsel also argued that the appellant did not discharge her matrimonial obligations either towards her husband or even towards his old parents. Counsel also submitted that the appellant made false complaints to the Crime Against Women Cell and to the Family Counsel Office, which she later withdrew and such act of the appellant also caused mental cruelty to the respondent. Counsel also submitted that by denying normal sexual relationship to the respondent, the appellant had shaken and destroyed the very foundation of a sound marriage. Counsel also submitted that the respondent had duly discharged his burden to prove the case set up by him where as the appellant failed to discharge her burden and even could not prove her defence. In support of his arguments, counsel for the respondent placed reliance on the following judgments:-

1. Vinita Saxena vs Pankaj Pandit 2006(3) SCALE (SC) 367.

2. Naveen Kohli vs Neelu Kohli 2006(4) SCC 558.

3. Samar Ghosh vs Jaya Ghosh 2007 (4) SCC 511.

4. Praveen Mehta vs Inderjit Mehta AIR 2002 SC 2582

5. Rajinder Bhardwaj vs Anita Sharma AIR 1993 Delhi 135.

8. I have heard learned counsel for the parties and given my thoughtful consideration to the arguments advanced by them.

9. Cruelty as a ground for divorce is nowhere defined in the Hindu Marriage Act as it is not capable of precise definition. There cannot be any straitjacket formula for determining whether there is cruelty or not and each case depends on its own facts and circumstances. What may be cruelty in one case may not be cruelty in other and the parameter to judge cruelty as developed through judicial pronouncements is that when the conduct complained of is such that it is impossible for the parties to stay with each other without mental agony, torture and stress. It has to be something much more than the ordinary wear and tear of married life. The conduct complained of should be grave and weighty and touch a pitch of severity to satisfy the conscience of the court that the parties cannot live together with each other anymore without mental agony, distress and torture. The main grievance of the respondent herein is the denial of the appellant to have normal sexual relationship with the respondent. As per the case of the respondent, during the short period of 5 months he had sexual intercourse with the appellant only 10-15 time while the plea taken by the appellant is that she had never denied sex to the respondent. The courts have through various judicial pronouncements taken a view that sex is the foundation of marriage and marriage without sex is an anathema. The Division Bench of this Court in the celebrated pronouncement of Mrs. Rita Nijhawan vs. Mr.Bal Kishan Nijhawan AIR1973Delhi200 held as under:

“In these days it would be unthinkable proposition to suggest
that the wife is not an active participant in the sexual life and
therefore, the sexual weakness of the husband which denied normal
sexual pleasure to the wife is of no consequence and therefore cannot
amount to cruelty. Marriage without sex is an anathema. Sex is the
foundation of marriage and without a vigorous and harmonious sexual
activity it would be impossible for any marriage to continue for
long. It cannot be denied that the sexual activity in marriage has an
extremely favorable influence on a woman’s mind and body, the result
being that if she does not get proper sexual satisfaction it will
lead to depression and frustration. It has been said that the sexual
relations when happy and harmonious vivifies woman’s brain, develops
her character and trebles her vitality. It must be recognised that
nothing is more fatal to marriage than disappointments in sexual
intercourse.”

The learned Trial Court referred to the judgment of this court in the case of Shankuntla Kumari vs. Om Prakash Ghai AIR1983Delhi53 wherein it was held that:

“(25) A normal and healthy sexual relationship is one of the
basic ingredients of a happy and harmonious marriage. If this is not
possible due to ill health on the part of one of the spouses, it may
or may not amount to cruelty depending on the circumstances of the
case. But willful denial of sexual relationship by a spouse when the
other spouse is anxious for it, would amount to mental cruelty,
especially when the parties are young and newly married.”

Hence, it is evident from the aforesaid that willful denial of sexual intercourse without reasonable cause would amount to cruelty. In the authoritative pronouncement of the Hon’ble Supreme Court in Samar Ghosh vs Jaya Ghosh (2007)4SCC511, the Hon’ble Supreme Court took into account the parameters of cruelty as a ground for divorce in various countries and then laid down illustrations, though not exhaustive, which would amount to cruelty. It would be relevant to refer to the following para 101 (xii) wherein it was held as under:-

“(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.”

Although it is difficult to exactly lay down as to how many times any healthy couple should have sexual intercourse in a particular period of time as it is not a mechanical but a mutual act, however, there cannot be any two ways about the fact that marriage without sex will be an insipid relation. Frequency of sex cannot be the only parameter to assess the success or failure of a marriage as it differs from couple to couple as to how much importance they attach to sexual relation vis a vis emotional relation. There may be cases where one partner to the marriage may be over sexual and the other partner may not have desire to the same level, but otherwise is fully potent. Marriage is an institution through which a man and a woman enter into a sacred bond and to state that sexual relationship is the mainstay or the motive to be achieved through marriage would be making a mockery of this pious institution. By getting married, a couple agrees to share their lives together with all its moments of joy, happiness and sorrow and the sexual relationship between them brings them close and intimate by which their marital bond is reinforced and fortified. There may not be sexual compatibility of a couple right from inception of the relationship and depending upon physical, emotional, psychological and social factors, the compatibility between some couples may be there from the beginning and amongst some may come later. Undoubtedly, a normal and healthy couple should indulge into regular sexual relationship but there may be exceptions to this and what may be normal for some may not be normal for others as it would depend upon various factors such nature of job, stress levels, social and educational background, mood patterns, physical well being etc. Indisputably, there has to be a healthy sexual relationship between a normal couple, but what is normal cannot be put down in black and white.

10. Adverting back to the facts of the present case, the marriage between the parties was solemnized on 17.2.1991 and according to the appellant she was forced to leave the matrimonial house on 16.4.1992, whereas as per the respondent husband, the appellant wife practically stayed at the matrimonial home only for a period of five months as for rest of the period she stayed at her parental house. The case of the respondent is that he had sex with the appellant only for about 10-15 times in a span of five months of married life and that he was denied sexual relationship on the very first night of their marriage and denial of sex at the wedding night caused great mental cruelty to him. The respondent husband also stated that he was allowed to have sexual intercourse by the appellant for the first time only on 25.2.1991.The appellant wife has denied the said allegations of the respondent husband and in defence stated that she was having normal sexual relationship with her husband and even had sexual intercourse on the wedding night. The learned Trial Court after analyzing the evidence adduced by both the parties found the version of the appellant untrustworthy and unreliable while that of the respondent, much more credible and trustworthy. The appellant on one hand took a stand that on 18.2.1991 the atmosphere on that night was very tense so much so that, both the parties could not sleep and speak to each other and she did not even take proper food and the whole night there was tension between the parties and the atmosphere was fully charged, but at the same time in the cross- examination of PW2 the suggestion was made by counsel that the appellant touched the feet of the respondent when he entered the room on the said wedding night and she also admitted that her husband had never taken liquor in her presence and he had never come to her in drunken state. It would be appropriate to reproduce para 55 of the Trial Court judgment to bring to surface the said contradiction on the part of the appellant.

“55.From the evidence on record, it is gathered that on the
wedding night i.e. on 18.2.91 a “Dud Mundari” ceremony was to be
performed but the respondent wife refused to participate in the same.
This version of PW 2 has been fully corroborated by his father PW 3.
The husband i.e. Rajiv Arora, had entered by both PW 2 and RW1. RW 1
in her cross-examination has stated that their marriage had been
consummated on that very night and her husband had come to her and
she did not have to persuade the petitioner. On the other hand the
petitioner has stated that their marriage could not be consummated on
their wedding night and he had sex with his wife for the first time
only on 25.2.91. RW1 in her cross-examination has stated that the
atmosphere that night was very tense and both the parties could not
sleep and they did not speak to each other and her husband had
grievance about the insufficient dowry which had been given in the
marriage . RW 1 has also admitted that on 18.2.91, she did not take
proper food as she was not feeling well. This version of RW1 that she
did not take food that night is corroborated by the version of PW1
who has stated that on the wedding night at the time when the dinner
was served the attitude of the respondent was indifferent and she did
not take any dinner but she took only a little sweet.”

11. In matrimonial cases, more often than not it is a challenging task to ascertain as to which party is telling truth as usually it is the oral evidence of one party against the oral evidence of the other. What happens in the four walls of the matrimonial home and what goes on inside the bed room of the couple is either known to the couple themselves or at the most to the members of the family, who are either residing there or in whose presence any incident takes place. Whether the couple has had sex and how many times or have had not had sex and what are the reasons; whether it is due to the denial or refusal on the part of the wife or of the husband can only be established through the creditworthiness of the testimonies of the parties themselves. Consequently, the absence of proper rebuttal or failure of not putting one’s case forward would certainly lead to acceptance of testimony of that witness whose deposition remains unchallenged. In the present case, the testimony of the respondent that the appellant was never responsive and was like a dead wood when he had sexual intercourse with her remained unrebutted. It is not thus that the respondent had sex with her wife only about 10-15 times from the date of his marriage within a period of five months, but the cruel act of the appellant of denying sex to the respondent especially on the very first night and then not to actively participate in the sex even for the said limited period for which no contrary suggestion was given by the appellant to the respondent in his cross- examination. The respondent has also successfully proved on record that the appellant did not participate in the customary rituals of dud mundri and that of chudha ceremony, which caused grave mental cruelty to the respondent. It is a matter of common knowledge that after the marriage, certain customary rituals are performed and the purpose of these rituals is to cement the bond of marriage. The question whether there was a refusal on the part of the respondent not to perform the ritual of dud-mundari and chudha ceremony is difficult to be answered as on one hand, the appellant has alleged that she had duly participated in the ceremonies while on the other hand the respondent has taken a stand that there was refusal on the part of the appellant to participate in the ceremonies. No doubt the testimony of the respondent has been supported by the evidence of his father and there is no corroborative evidence from the side of the appellant, although her brother had accompanied her in doli and in such backdrop, adverse inference thus has to be drawn against the appellant for not producing her brother in evidence who could be the best witness to prove the defence of the appellant alleging her participation in the dud-mundari ceremony. Undeniably, these customary ceremonies are part of the marriage ceremony and refusal of the same that too in the presence of the family members of the husband would be an act of cruelty on the part of the wife. The appellant has also failed to prove any demand of dowry made by the respondent or his family members as no evidence to this effect was led by the appellant. The appellant herein also filed criminal complaints against the respondent and his family members and later withdrew the same. Undoubtedly, it is the right of the victim to approach the police and CAW cell to complain the conduct of the offending spouse, however, frivolous and vexatious complaints like in the present case led to cause mental torture and harassment to the respondent and his family members. Thus, taking into account the conduct of the appellant in totality, this court is of the view that the same amounts to causing mental cruelty to the respondent. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

12. Before parting with the judgment, this court would like to observe that the sex starved marriages are becoming an undeniable epidemic as the urban living conditions today mount an unprecedented pressure on couples. The sanctity of sexual relationship and its role in reinvigorating the bond of marriage is getting diluted and as a consequence more and more couples are seeking divorce due to sexual incompatibility and absence of sexual satisfaction. As already stated above, to quantify as to how many times a healthy couple should have sexual intercourse is not for this court to say as some couples can feel wholly inadequate and others just fine without enough sex. “That the twain shall become one flesh, so that they are no more twain but one” is the real purpose of marriage and sexual intercourse is a means, and an integral one of achieving this oneness in marriage.

13. This Court therefore, does not find any kind of illegality or perversity in the findings given by the learned Trial Court in the impugned judgment dated 12.2.2001 and the same is accordingly upheld. The present appeal filed by the appellant is devoid of any merits and the same is hereby dismissed.

KAILASH GAMBHIR, J

21.03. 2012

Divorce / Cruelty as ablaa regulrly leaves hubby & files false 498a 406. Ablaa also looses appeal @ Cal. HC !!

Husband gets divorce under grounds of Cruelty as wife regularly left the husband’s house against his wish and also filed false 498a case against husband and MIL, wherein husband was arrested. This 498a also finally ends in acquittal. Wife also files an appeal against the divorce decree (which went in favour of the husband), argues at the HC that she was immensely tortured etc, but she looses appeal @ Cal. HC !!
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* wife files 498a etc
* wife left the matrimonial home along with her father on January 23, 1994 and on that very date lodged a complaint under Section 498A Indian Penal Code against her husband. Husband was arrested by police and had to remain in jail custody for 14 days.
* Wife also lodged another complaint under Section 406 Indian Penal Code against her husband and after trial the accused were acquitted. According to the husband within a very short time thereafter the husband was ill-treated by the wife and her father and brother. He used to be pressurised to desert his old widowed mother and unmarried sister to live as ‘Gharjamai’.

The HON HC goes on the say “….An inference, however, can be drawn by matrimonial Court that by initiating criminal proceedings under Section 498A Indian Penal Code wife has an intention not to live with the husband. This is because the person lodging such complaint under Section 498A is imputed with the knowledge that, if convicted, the accused, would be incarcerated. ….”

* An the HON HCc concludes that “…..30. However, on the authority of the judgment in Nivedita Banerjee, (supra), the act of the wife in the matter of initiating criminal proceedings where the husband was arrested and detained in jail custody, that case having ended in acquittal just as in the case on hand, the judgment under appeal can be sustained. Inference can be drawn that the wife has no intention to go back to the husband and her intention was to terminate the matrimonial relationship. ….”
* so wife looses her appeal against husband’s divorce (i.e. Husband’s divorce is confirmed by HC)

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Calcutta High Court

Smt. Kajal Roy vs Prasanta Kr. Roy on 10 August, 2004

Equivalent citations: (2005) 2 CALLT 567 HC

Author: J Banerjee

Bench: M H Ansari, J Banerjee

JUDGMENT Mahammad Habeeb Shams Ansari, J.

1. Instant appeal is field by defendant-wife aggrieved by the judgment and decree dated September 21, 2000 passed by the learned Additional District Judge, Howrah in Matrimonial Suit No. 37 of 1994. Thereby the suit for divorce filed on the ground of cruelty by the husband was decreed.

2. A perusal of the judgment under appeal would show that the petition under Section 13 was filed by the husband praying for a decree of divorce under Section 13 on the ground of cruelty and desertion. Learned trial Court found that the ground of desertion is not established and with regard to the ground of cruelty it was noticed that the same was founded on the ground that the wife left the matrimonial home at regular intervals and used to come back after 15/20 days and that she refused cohabitation with the husband and that finally on November 13, 1993 she left the matrimonial home with bag and baggage without the consent and knowledge of the petitioner and against the will of the husband’s mother. Learned trial Court found that the factum of cruelty pleaded has not been established but was of the view that the marital tie has deteriorated to such an extent that the parties cannot live together as husband and wife and, therefore, granted a decree of dissolution of marriage.

In coming to the aforesaid conclusion learned trial Court found that the wife admittedly left the matrimonial home along with her father on January 23, 1994 and on that very date lodged a complaint under Section 498A Indian Penal Code against her husband. Whereupon the husband was arrested by police and had to remain in jail custody for 14 days. She also lodged another complaint under Section 406 Indian Penal Code against her husband and after trial the accused were acquitted. Judgment in that case has been marked as Ext.2. The judgment in GR 197/1994 being the case under Section 498A Indian Penal Code was pronounced on April 6, 2004 i.e. after the date of decree under appeal and for that purpose an application being CAN 5626 of 2004 has been field for receiving the said judgment as additional evidence in this appeal. We shall consider this application a little later. Suffice it to state that appellant has not filed any affidavit-in-opposition but his learned counsel made oral submission.

3. It is the correctness of the conclusions arrived at by the learned trial Court and based whereon the decree of divorce was granted that is the subject matter of the instant appeal.

4. It is the contention of Mr. Tapan Mukherjee, learned counsel for the appellant-wife that the husband having failed to establish the acts of cruelty pleaded ought not to have been granted the decree of divorce merely because complaints under Sections 406 and 498A Indian Penal Code had been filed by the wife. It was further contended that it is the appellant-wife that was the victim of immense torture. That the wife had to go with her father for medical treatment and when she returned to her matrimonial home on January 22, 1994 along with her father to live in the matrimonial home the husband and his family members did not allow her to live at the house and thereafter when the father returned on January 23, 1994 he came to know that the wife was assaulted by the husband and his family members whereupon a complaint was filed by the father of the wife under Section 498A and another complaint filed by the wife under Section 406 Indian Penal Code with respect to the wedding gifts and ornaments. It was contended that pursuing a legal remedy for the protection of life limb and property cannot constitute cruelty. Reliance was placed upon the judgment in Smt Bina Rani Banik v. Pradip Kr. Banik, AIR 1999 Gauhati 139. It was further contended that it is the acts of the husband that led the wife to take such action and, therefore, the husband cannot take advantage of his own wrong. Reliance was placed upon the judgments in Savitri Pandey v. Prem Chandra Pandey, , and Smt. Kakali Das (Ghosh) v. Dr. Asish Kumar Das, (2003)3 CLT 60.

5. Mr. Buddhadev Ghoshal appearing along with Mr. Dipanjan Sinha Roy, learned counsel for the respondent-husband at the very outset submitted that the decree of divorce granted by the learned Trial Court can be sustained on the grounds pleaded in the petition.

Relying upon the judgments in Postgraduate Institute of Medical Education & Research and Anr. v. A.P. Wasan and Ors., ; Parma Lal v. State of Bombay, ; Koksingh v. Smt. Deokabari, and Virdhachalam Pillai v. Chaldean Bank Ltd., Trichur and Anr., , it was contended that without filing any cross-appeal or cross-objection the respondent in the appeal is entitled to canvass the correctness of the findings against him in order to sustain the decree that has been passed against the appellant.

6. Having perused the judgments cited by the learned counsel for the respondent-husband, we are of the view that if a party who could have filed a cross-objection under Order 41 Rule 22 Code of Civil Procedure but has not done so is entitled to canvass the correctness of the findings that have gone against him. Further, Appellate Court is empowered under Order 41 Rule 33 Code of Civil Procedure not only to give or refuse relief to the appellant by allowing or dismissing the appeal but is also empowered to give such relief to the respondent as “the case may require”. Accordingly the plea of the respondent herein is sustained. It is open to the respondent to canvass before us the correctness of the findings that have gone against him in the judgment and decree under appeal.

7. Having held as above let us consider whether the grounds pleaded in the petition for divorce stand established by the evidence on record. Before we take up for consideration the rival contentions, a few observations based on judicial precedents need to be noticed.

8. Cruelty is now a ground of divorce. It may be either physical or mental cruelty on the establishment of which an aggrieved spouse is entitled to divorce. Physical cruelty consists of acts of inflicting of bodily injury or giving cause for apprehension of such injury. Mental cruelty consists of conduct which causes mental or emotional suffering. After the amendment by the Hindu Marriage Laws (Amending) Act of 1976 cruelty s a ground of divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 is construed to be an act or omission or conduct of such type that one spouse cannot reasonably be expected to live with the other. Cruelty may consist of acts which are dangerous to life, limb or heath. It may be manifested by such acts to have inflicted bodily injury or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. There may be instances of cruelty by an unintentional but inexcusable conduct of any party. The intention/motive is not a necessary element or ingredient of cruelty. It is the act or conduct or omission which will constitute cruelty. A single act of physical cruelty may itself amount to cruelty. A series of small acts of violence or threats may cumulatively amount to cruelty. In either case of physical cruelty or mental cruelty it is not necessary that such act or conduct be that of the spouse or at the instance of one spouse or at the instigation of one spouse against the other it may emanate from others and the omission of spouse in protecting the other spouse from such act or conduct may itself constitute cruelty in given case.

9. ‘Mental cruelty’ has been given a wide meaning and has been construed as that conduct which inflicts mental pain and suffering upon the spouse making it impossible for him/her to live with the offending spouse. It must be of such nature that the parties to the marriage cannot reasonably be expected to live together nor the parties can reasonably be asked to endure such conduct. In coming to the conclusion as to whether the alleged acts or omissions constitute cruelty, Court has to keep in mind the social status, educational level of the parties as also the society they move in. This is for the reason that what may amount to cruelty in a given case may not be so in another. In so far as mental cruelty is concerned it is no longer necessary to establish that the act or omission or conduct which constitutes cruelty has caused any sort of apprehension in the mind of the aggrieved spouse that it will be harmful or injurious for him/her to live with the other. Judicial precedents under the unamended Act, therefore, laid emphasis on the reasonable apprehension aspect of cruelty and not so much on the act or omission or conduct itself.

10. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. Nor it can be decided on the basis of the sensitivity of the petitioner. Simple trivialities which can be described as the reasonable wear and tear or married life have to be ignored. Courts will have regard only to weighty and grave incidents. Where the case is of accusations and allegations, counter-accusations and counter-allegations the Court is to have regard to the context in which such allegations or counter-allegations have been made. If the conduct complained of itself is bad enough or per se unlawful or illegal then the impact or injurious effect thereof on the other spouse need not be enquired into or considered and any such conduct would constitute cruelty.

11. The Supreme Court in Shobha Rani v. Madhukar Reddi, [a case arising under Section 13(1)(ia) of the Act] has sounded a note of caution when it observed thus;

“…We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents….”

12. The general rule governing pleadings is that the facts and reliefs must be set out in the pleadings. The facts need to be stated succinctly based on which the relief/s is/are sought. This is because the Courts grant relief founded on pleadings. The principle being that the other party is not taken by surprise. If the parties did not know that a particular matter is in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, granting relief on matters not pleaded would introduce considerations of prejudice. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

13. A party in matrimonial proceedings may not be allowed to make out a case on the basis of evidence for which he/she has laid no foundation in the pleadings. The general principle being that any amount of evidence would be of little avail if the same has not been less set up or started in the pleadings.

14. However, on the basis of pleadings and other admitted material divorce can be granted if there are some extraordinary features to warrant grant of divorce. It was so held by the Supreme Court in V. Bhagat v. D. Bhagat, wherein it was observed that “There must be really some extraordinary features to warrant grant of divorce on the basis of pleadings (and other admitted material) without a full trial. Irretrievable break-down of the marriage is not a ground by itself. But while scrutinizing the evidence on record to determine whether the ground(s) alleged is made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind.”

15. It is the contention of Mr. Buddhadev Ghosal, learned counsel for the respondent that the grounds of physical and mental cruelty pleaded in the plaint stand established by the evidence on record and, therefore the conclusion arrived at by the learned trial Court that same are not established is erroneous. On the other hand, learned counsel for the appellant contended that none of the grounds alleged have been established. It was further submitted that the evidence on the side of the respondent is of a general nature. It is the respondent-husband that has inflicted torture upon the wife and is keen to get rid of the wife as can be seen from his attitude in asking the father-in-law to take back his daughter for ever.

16. The facts on which the petition filed for grant of divorce under Section 13 of the Hindu Marriage Act, 1955 is inter alia that the marriage between the parties was performed on August 2, 1992 according to Hindu rites and customs. According to the husband within a very short time thereafter the husband was ill-treated by the wife and her father and brother. He used to be pressurised to desert his old widowed mother and unmarried sister to live as ‘Gharjamai’. Allegations have been made in the petition with regard to acts of mental as also act of physical cruelty which were inflicted by the wife upon the husband but was not disclosed to his family members. Allegations was made that the wife was in the habit of leaving the matrimonial home at regular intervals and used to come back after 15/20 days from her father’s house or from any other place not known to the husband and did not allow the husband cohabitation with her. The husband was made to sleep on the floor. The specific instance cited in the petition for divorce is to be found in paragraph 8 wherein it is alleged that on November 13, 1993 on ‘Kalipuja’ day wife’s father came to the matrimonial home all on a sudden and took away his daughter with bag and baggages, same was in total defiance of the husband’s mother and even without the husband’s consent and knowledge. In paragraph 10, it was alleged that on January 22, 1994 the wife returned along with her father and the father returned after about one hour stay stating that he would come back and take away his daughter. The further allegation is to the effect that;

“…At that time, your petitioner most modestly proposed to the father of the respondent for arranging permanent severance of their conjugal life through the Court of law peacefully instead of committing such wrongful acts perpetually inflicting mental injury to him and to his aged widow mother….”

17. It is alleged that the father became furious and left making threats and he returned on January 23, 1994 along with police officials of Bantra Police Station and on the directions of the father the wife took her remaining belongings and ornaments. The husband and his mother were taken to police station and thereafter the S.I. of Bantra P.S. after hearing both the parties allowed the husband and mother to leave. An allegation as to desertion by the wife has been made in paragraph 13 of the petition. It is stated that on January 23, 1994 the wife left the matrimonial home with all her belongings.

18. The ground of desertion as pleaded for grant of decree of divorce is not maintainable in the case on hand as will be evident from the provisions of Section 13(1)(ib) wherein it is laid down that decree of divorce on the ground of desertion can be granted if the other party has deserted the petitioner for a period not less than two years immediately preceding the presentation of the petition. It is clear that no suit can be decreed on the ground of desertion If the same is filed as in the case on hand within 2 years from the date of alleged desertion. In the case on hand the plea of desertion is founded on the ground that wife left the matrimonial home on January 23, 1994. The suit is filed within a month thereof i.e. on February 7, 1994.

19. As regards the grounds of cruelty alleged in the petition suffice it to state here that the incidents of cruelty alleged have not been succinctly stated in the petition except that the wife left the matrimonial home on November 13, 1993 and returned on January 22, 1994 when an altercation took place between the husband and father of the wife and another incident of January 23, 1994 when the father of the wife is said to have come with police personnel and taken his daughter away with him, the husband and mother being called to the police station. The other allegations in the petition are vague without any specific particulars having been furnished as to the date of their occurrence. The evidence of the husband as PW1 is on similar lines. He has spoken of physical assault by the wife and also that she did not share the bed with him and he had to sleep on the floor. No such particulars with date as to when said incident occurred has been stated in the plaint. Even in his deposition husband as PW1 has not furnished particulars with regard to alleged assault by the wife upon him nor did he furnish the dates from when she did not allow him to share the bed. It is only in cross-examination that the husband stated that refusal to cohabit on the part of his wife began three months after his marriage in the year 1992. He, however, admitted that from the date of his marriage till January 22, 1994 he lived in the same room with his wife and further admitted that he never informed any person regarding the refusal by the wife to cohabitation. We are, therefore, inclined to agree with the learned Trial Court that the grounds of cruelty as pleaded do not stand established.

20. As noticed supra, the learned Trial Court that the parties cannot live together as husband and wife as the ground of cruelty is established by the criminal cases filed by the wife and detention of husband in jail custody for 14 days. This conclusion by learned Trial Court is founded on the ground of complaints filed under Section 498A and 406 Indian Penal Code. The case under Section 406 Indian Penal Code having ended in acquittal.

21. It was contended by learned counsel for appellant relying upon Savitri Pandey (supra) the marriage between the parts that as the marriage between them has broken down no useful purpose would be served to keep it alive. The sanctity of the marriage cannot be left at the whims of one of annoying spouses. It was further contended that irretrievable break down of marriage is not a ground by itself to dissolve it as held by the Supreme Court in Bhagat v. Bhagat, .

22. From the evidence on record it is apparent that the instant suit was filed after the complaint was made against the husband under Sections 406 and 498A Indian Penal Code. During the pendency of the proceedings the criminal case under Section 406 Indian Penal Code was decided on April 28, 2000 and Ext.2 is the certified copy of the judgment in C.C. No. 281C/1994. The judgment in the criminal case under Section 498A Indian Penal Code had not, till then, been pronounced. Subsequently, the judgment has been pronounced in that case also and as noticed earlier an application has been filed being CAN 5626 of 2004 to receive the judgment as additional evidence in this appeal. The only submission in opposition made by the learned counsel for the appellant is that the complaint under Section 498A Indian Penal Code was made by the father of the appellant and not by the appellant herself. It was further submitted that the allegations based on which the complaint was made is not without any basis. In any event, it was submitted that, the acquittal in that case does not warrant the grant of divorce as prayed for by the respondent. As in our view, the learned Trial Court granted decree of divorce by the judgment under appeal mainly on the ground that the appellant had lodged the complaints under Sections 406 and 498A Indian Penal Code and after noticing that the respondent-husband was arrested by police and had to remain in jail custody for 14 days in connection with the criminal case supposed by the wife, it was concluded that it was not possible for the parties to live together. In order to examine the correctness of the conclusion we are of the view that the judgment in criminal case under Section 498A Indian Penal Code would be relevant for complete and proper disposal of this appeal.

23. Accordingly application being CAN 5626 of 2004 is allowed. Let the certified copy of the judgment in that case be assigned appropriate exhibit number.

24. In Smt. Nivedita Banerjee v. Sanal Kumar Banerjee, 1999(2) CHN 625, Division Bench considered the contention with respect to a complaint against the husband and in-laws made under Section 498A Indian Penal Code a criminal case was started and husband and some members of in-laws were arrested and detained in custody and ultimately the said case ended in acquittal. The Division Bench in that case found substance in the contention advanced on behalf of the husband that such an act on the part of the wife amounted to cruelty and her intention was to terminate the matrimonial relationship forever. It was opined that the act of the wife in the matter of initiating a baseless criminal proceeding amounts to cruelty. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

25. Another Division Bench in Sri Deepayan Chatterjee v. Smt. Papiya Chatterjee, 1990(1) CLJ 74, after having noticed that wife initiated a criminal case against husband and other in-laws under Sections 323, 342, 506/420/120B Indian Penal Code opined that it is not safe to live with a wife who can make such wild allegations.

26. From the decisions cited at the bar we are of the view that mere initiation of criminal proceeding per se would not amount to cruelty within the meaning of Section 13(1)(ia) nor the fact that the criminal case has ended in acquittal. An inference, however, can be drawn by matrimonial Court that by initiating criminal proceedings under Section 498A Indian Penal Code wife has an intention not to live with the husband. This is because the person lodging such complaint under Section 498A is imputed with the knowledge that, if convicted, the accused, would be incarcerated. Taking recourse to law or taking shelter of law or seeking the protection of police cannot constitute an offence nor can the same tantamount to cruelty. Courts cannot discourage much less penalize young wives who are afraid of their safety and who have either suffered or apprehend suffering at the hand of their husbands and in-laws cannot be discouraged to lodge a diary at the thana or to take assistance of police authorities by lodging complaint. In the case of acquittal in criminal case after trial it cannot per se be construed that the same was initiated on a complaint which was either false or baseless. The standard of proof in the two matters i.e. criminal and matrimonial, which is a civil proceeding, are distinct and different. In criminal proceeding the charge has to be established beyond all reasonable doubt whereas the standard proof in matrimonial cases is that preponderance of probabilities. Where, however, the criminal case ends in acquittal and the charges are held to be baseless or unfounded than a matrimonial Court may draw a conclusion that the criminal case was initiated on baseless or unfounded allegations.

27. Keeping the above in view let us now examine the judgment in C.C. No. 281C/1994 Wherein the charge was under Section 406 Indian Penal Code (Ext.2). The Court acquitted the accused in that case on the grounds inter alia that;

(i) there is no evidence as to the weight of the ornaments after remodeling;

(ii) there is no evidence adduced by the prosecution showing that the ornaments were kept in the locker and in apprehension of issuing of the search warrants, the ornaments were taken out from the locker;

(iii) prosecution failed miserably to bring any evidence which shows that the accused person deliberately converted the said property to his own use by selling or by transferring those ornaments; and

(iv) there is no evidence to establish that the bank draft of Rs. 30,000/- was taken as dowry.

28. The judgment of the learned judicial Magistrate in GR 197/1994 for the offence under Section 498A/34 Indian Penal Code was rendered on April 6, 2004. It was held that;

“…prosecution has failed to adduce sufficient evidence to substantiate that the accused persons were guilty of such conduct which made the life of the wife i.e. Kajal unbearable and it was harmful on her part to live with her husband. Several contradictions of oral testimony of PW1 and PW2 when related to their testimony in earlier cases, observation and findings of the Mat Suit decree in favour of accused Prasanta Roy and non-examination of independent witnesses are the factors which lead me to opine that the evidence on record are not enough to substantiate charge under Section 498A Indian Penal Code….”

and it was further held that the prosecution has miserably failed to prove the case beyond all reasonable doubt. It is, therefore, not a case where the charge was found to be baseless or unfounded but that the same was not proved beyond all reasonable doubt and in coming to the said conclusion it was inter alia noticed that instant Mat Suit had been decreed in favour of the accused.

29. In neither of the cases it has been found that the wife field false criminal cases.

30. However, on the authority of the judgment in Nivedita Banerjee, (supra), the act of the wife in the matter of initiating criminal proceedings where the husband was arrested and detained in jail custody, that case having ended in acquittal just as in the case on hand, the judgment under appeal can be sustained. Inference can be drawn that the wife has no intention to go back to the husband and her intention was to terminate the matrimonial relationship. In the circumstances we are of the view that no case has been made out for interference with the decree of the learned trial Court.

Accordingly Appeal is dismissed.

In the facts and circumstances of the case there shall be no order as to costs.

Let urgent xerox certified copy of this judgment be furnished to the appearing parties, if applied for, on priority basis.

Let the Lower Court Records be send down forthwith.

J. Banerjee, J.

I agree.

wife lawyer seeks separate house, files 498a on hubby lawyer. Still NO divorce for such flimsy reason !

Wife lawyer seeks a separate house and also files 498a on hubby lawyer. Wife’s ppl cause a stir. Husband files for Divorce and goes upto HC, … Still divorce DENIED for such flimsy reason !
* husband wife both are lawyers
* soon after marriage wife seeks a separate accommodation …meaning I don’t want your parents here !!
* her parents come to hubby’s house, all fights ensue
* wife also files 498a, police pick up husband at his office, In laws run for anticipatory bail. Following all this, hubby applies for divorce, but lower court disallows the same as the hubby is unable to prove cruelty conclusively
* hubby appeals at HC and HC also dismisses his appeal – meaning NO divorcec
* the HC affirmatively quotes Srikanth Vs. Smt.P.B.Nandhini and states “……….32. This Court in the case of Srikanth Vs. Smt.P.B.Nandhini reported in AIR 2010 KAR 1 (DB), has dealt at length about the allegation of cruelty in matrimonial offenses. It is specifically held by the Division Bench in Srikanth Vs. Nandhini’s case that if marriages are dissolved on trivial issues, no marriage would be saved. It is further held that there has been a recent trend to seek divorce on flimsy grounds. ,……….”
* the HC goes on to state “….We are also of the firm opinion that the possessiveness that the respondent has towards the petitioner has lead to some differences between the two and that has been blown out of proportion. In fact, there was no opportunity for her them to be in the matrimonial house for few months. Before she could settle in the matrimonial house, unfortunate incident took place between the two and that cannot be considered as a severe cause. Both the petitioner and the respondent are well educated people being practitioners of law. Respondent has not made any serious allegation against the petitioner imputing his chastity and the petitioner has also not made any serious allegation against the respondent touching her chastity….”
* So … Hence, we are of the considered opinion that the Trial Court is justified in dismissing the petition. As observed in Srikanth Vs. Nandhini’s case, even now we hope that the appellant would appreciate our concern to save the marriage and would live as good husband and wife. Hence, point No.1 is answered in the affirmative. …”

***************************************************************

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 15TH DAY OF OCTOBER, 2014

PRESENT

THE HON’BLE MR. JUSTICE K.L.MANJUNATH

AND

THE HON’BLE MR. JUSTICE A.V.CHANDRASHEKARA
M.F.A. NO.5813/2013 (FC)

BETWEEN:

SRI S SRIKANTH
S/O LATE S SUBBA RAO
AGED ABOUT 44 YEARS
RESIDING AT NO.32
6TH MAIN, 5TH CROSS
SARASWATHIPURAM
MYSORE- 570 009 … APPELLANT
(BY SRI D.L. JAGADEESH, SR. COUNSEL FOR
SRI: SRINIVASA D C, ADV.)

AND:

SMT B A VANI
W/O SRI S SRIKANTH
D/O B L ANANTHAKRISHNA
AGED ABOUT 39 YEARS
RESIDING AT LOKAMBA NILAYA
NEAR GOVT MODEL SERICULTURE
GRAINAGE, MARALUR
TUMKUR 572 105 … RESPONDENT
(SMT B.A. VANI, PARTY-IN-PERSON )

THIS MFA IS FILED U/S 19(1) OF THE FAMILY COURT, AGAINST THE JUDGMENT AND DECREE DATED:08.04.2013 PASSED IN M.C.NO.409/2011 ON THE FILE OF THE JUDGE, FAMILY COURT, MYSORE, DISMISSING THE PETITION FILED U/S 13(1)(i-a) OF THE HINDU MARRIAGE ACT, DISSOLUTION OF MARRIAGE.

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 12.08.2014 COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, A.V.CHANDRASHEKARA, J., DELIVERED THE FOLLOWING:

JUDGMENT

Present appeal is directed under Section 19 of Family Courts Act, 1984, challenging the order of dismissal of the petition filed under Section 13(1) (ia) of Hindu Marriage Act by the Family Court at Mysore in M.C.No.409/2011.

2. Respondent is the legally wedded wife of the petitioner and their marriage was solemnized on 29.11.2009 at Tumkur, as per Hindu customs. Petitioner had filed a petition before the Family Court at Mysore, seeking a decree of divorce on the ground of cruelty under Section 13(1)(i-a) of Hindu Marriage Act. The said petition has been dismissed after contest. Several grounds have been urged in this appeal memo challenging the dismissal of the petition. Entire records of the Trial Court have been called for. Parties will be referred to as per their ranking given in the Trial Court.

3. The marriage of the parties solemnized on 29.11.2009 at Gayatri Kalyana Mantapa, Tumkur, was an arranged marriage and it was attended by the relatives and well-wishers of both the sides. Appellant is a practicing advocate at Mysore and the respondent was also practicing as an Advocate at Tumkur. After the marriage, respondent joined the appellant in the matrimonial house of the petitioner at Mysore. According to the petitioner, the respondent started pressurizing him to establish a separate house and demanded him to admit his parents to old age home. On 08.01.2010 the respondent’s parents along with their son and some of his colleagues visited the petitioner’s house and manhandled him and his parents and even went to the extent of filing a false complaint against the petitioner before the police. The respondent is stated to have lived in the matrimonial home for only twelve days and during this period his parents were forced to go the Police Station. She is stated to have made false, frivolous and reckless allegation stating that the petitioner had demanded dowry from her family members. Respondent is stated to have treated the petitioner as well as his parents with cruelty.

4. Respondent chose to appear before the Trial Court and filed a detailed statement of objections denying all the material averments except admitting the marriage solemnized between her and the petitioner. She has called upon the petitioner to prove the contents of the petition strictly.

5. It is her case that during her short stay in the matrimonial home of the petitioner between 30.11.2009 to 12.12.2009 she was harassed by the petitioner in many ways. It is alleged that he had demanded her to bring a sum of Rs.5 lakhs from her parents. Petitioner’s mother is stated to have opposed her practicing as an Advocate though the petitioner and respondent had agreed to continue the profession even after marriage, at Mysore.

6. On 02.01.2010 she had come to Tumkur to attend some examination and after the same, her father left her in the matrimonial house at Mysore on 06.01.2010. On that day, petitioner and his family members ill-treated her and on the night of 07.01.2010, petitioner and his mother assaulted her physically and did not give her food on that night. Therefore, she had to intimate her parents over phone immediately and thereafter her parents and her brother reached Mysore at about 3.45 a.m. on the early morning of 08.01.2010. The matter was orally reported to the jurisdictional Saraswathipuram Police Station. A case was registered in NCR No.6/2010 and on the advise of the parents, petitioner agreed not to harass her in future. She came back to Tumkur and waited for three months and there was no communication from the petitioner. There afterwards, respondent was shocked to receive a copy of the petition filed before the Family Court. Though she is willing to join the petitioner, nobody is interested in taking her back. The present petition is stated to have been filed with an oblique motive to get a divorce. Inspite of all these things, the respondent is ready to join and lead a happy matrimonial life with the petitioner.

7. It is her clear case that she has no ill-will whatsoever against her husband inspite of ill- treatment meted out to her. It is her case that she has already completed 36 years and petitioner has completed 42 years and that it would not be advisable to live apart by having a decree of divorce. Hence, she has prayed to dismiss the appeal.

8. Petitioner herself has been examined as PW1. Two witnesses viz., E.Raghavendra and U.S.Vijay have been examined as PWs2. and 3. Respondent is examined as RW1 and three witnesses have been examined on her behalf. After analyzing the oral and documentary evidence the learned Judge has chosen to dismiss the petition by framing following point for consideration:

“Whether the petitioner is entitled for the dissolution of marriage on the ground of cruelty?”

9. Several grounds have been urged in the appeal memo challenging the dismissal of the petition filed before the Trial Court.

10. We have heard the learned counsel appearing for the appellant and the respondent in person at length. After going through the records, following points arise for our consideration:

1. Whether the Trial Court is justified in holding that the petitioner has failed to prove the allegation of cruelty in order to obtain decree of divorce?

2. Whether any interference is called for by this Court and if so, to what extent?

11. Petitioner has examined himself as PW1. On his behalf, two witnesses have been examined to impress upon the Court that at about 10.00 a.m. on 08.01.2010, police came to the office of the petitioner and took the petitioner and his parents telling him that they were wanted in a case filed by the respondent for offence punishable under Section 498-A of IPC.

12. E.Raghavendra and U.S.Vijay examined as PWs.2 and 3 are stated to be the clients of the petitioner and that they were present at the time when police of Sarswathipuram Police Station came to the office of the petitioner at about 10.00 a.m. on 08.01.2010 and took him and his parents to the police station.

13. Ex.P2 is stated to be the complaint lodged by the respondent-wife against the petitioner and his family members on 08.01.2010. The background for filing this report vide Ex.P2 by the respondent will have to be looked into. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

14. Marriage of the petitioner and the respondent was solemnized on 29.11.2009 in Kalyana Mantap at Tumkur. Both the petitioner and the respondent are practicing the Advocates. Petitioner has been practicing as an Advocate at Mysore and respondent was practicing as an Advocate at Tumkur at that point of time. The respondent lived in the house of the petitioner for only twelve days from the date of marriage and according to the petitioner, she lived cordially with him and his parents. It is his case that she insisted him to establish a separate house so that both of them could live independently.

15. The case of the petitioner is that he was not agreeable to the said demand, since his parents were aged and suffering from several ailments. According to him, it was his pious duty to look after them in their evening days of their life. According to him, the respondent left the matrimonial house on 12.12.2009 on her own and stated that she would return only if a separate residence was made and their parents were kept away from them. After she left the house, the petitioner is stated to have visited the house of his in- laws thrice at Tumkur, in order to persuade her to come back to the matrimonial home. It is his assertion that the respondent never cared for his advice and did not return to Mysore.

16. It is stated by the petitioner that on 04.01.2010 when he contacted her over phone, she had assured to come back on 06.01.2010 to join him at the matrimonial home. Accordingly, she returned on 06.01.2010 and on the very next day, she started demanding him to establish a separate house, failing which, she would file a police complaint against him and his parents. It is his case that he tried his best to pacify her, but the respondent was so rude that she locked her room from inside and threatened to commit suicide. Thereafter, she contacted her parents and her brother over phone and at about 4.30 a.m. on the early morning of 08.01.2010, the brother and parents of the respondent came from Tumkur, and took her away with her belongings. She is stated to have taken even the mobile phone of the petitioner and cash of Rs.5,000/-.

17. It is his further case that at about 10.00 a.m. on 08.01.2010 when he was working in his office, the police of Saraswathipuram Police Station came there and took him and his parents stating that his wife had lodged a complaint against him. According to him, the said complaint was baseless. Whether Ex.P2 lodged by the respondent is really a complaint will have to be seen. Police have not registered any case on the basis of this report dated 08.01.2010.

18. On going through Ex.P2, it appears that the petitioner himself had abused the respondent by making reference to his sister-in-law. It is further mentioned that on 07.01.2010, the petitioner picked up a quarrel with him demanding her not to continue her practice and her in-laws also insisted her not to do so. The prayer sought for in Ex.P2 by the respondent-wife is to call her husband and in-laws and to suitably advise them not to do so and to give her protection. On the basis of the same, NCR No.6/2010 was registered. If the police had really treated this as a complaint of harassment to be punishable under Section 498-A of IPC, they would not have registered NCR; they would have registered a regular criminal case.

19. The intention of making a report to the police is not to harass them by filing a criminal case, but to see that no uncomfortable atmosphere was created in the matrimonial home. In response to the enquiry conducted by the police on the basis of NCR No.6/2010, both the parties had given their statement before the Police. Ex.P5 is the statement given by the petitioner and Ex.P6 is the statement given by the respondent-wife to the police on 08.01.2010.

20. The gist of the statement given by the petitioner Srikanth to the police on 08.01.2010 as evidenced in Ex.P5 is that there was a demand by his wife to establish a separate house and that he had not acceded to her demand. He had assured the police that his wife would go back to Tumkur for 15 days and then he would bring her back.

21. The gist of Ex.P6 the statement of respondent- wife given to the police is that she was going to back to Tumkur, along with her parents and that after 15 days her husband would come to Tumkur to take her back and look after her with all love and affection.

22. Unfortunately, some differences had cropped up between the husband and wife on the night of 07.01.2010 and as result of the same, she had approached the police for protection and not to file any criminal case against him or his parents. The reasonable inference that could be drawn from a conjoint study of Exs.P5 and P6 is that she wanted the matrimonial tie to continue and that she wanted to come back.

23. On 27.01.2010 respondent had written a letter from Tumkur to her husband and had even reminded him of his birthday on 1st February. The gist of the letter written by her as evidenced in Ex.P7 dated 27.01.20210 is that she did not like the authoritative nature of her mother-in-law i.e., the mother of the petitioner. This would also disclose that petitioner had suppressed some material fact regarding his character.

24. What is highlighted by her is that, it is but natural for a man to commit some mistakes and that the said mistakes must be rectified at the earliest. She was worried about the bad habit to which the petitioner was addicted and she was proud of her husband being an Advocate. She wanted her husband to give up the bad habit and lead a happy married life. If she had really made up her mind to severe her marital tie, a letter in the nature of Ex.P7 would not have emanated from her, that too within a span of 15 days from the alleged differences. On 24.04.2010 she approached the Saraswathipuram Police Station on the basis of NCR No.6/2010 dated 08.01.2010. She had referred to the undertaking given by her husband to take her back within 15 days from Tumkur to Mysore. Since he did not keep up his words, she wanted the police to intervene and persuade him so that he could take her back by creating a good atmosphere. This would also fortify her intention to lead her marital life with the petitioner. Against this, an endorsement was given to the petitioner stating that the matter was civil in nature and that they must approach the Court. It was but natural that the petitioner was torn between his wife and his parents.

25. What is argued before this Court is that as a result of the complaint lodged by the respondent, the petitioner and his parents had to approach the Sessions Court seeking anticipatory bail since there was an imminent threat of their arrest by the police. It is in this regard, the petitioner has relied upon Ex.P13 an order passed by the learned II Addl. Sessions Judge, Mysore, in Crl.Misc.No.1500/2010 on 23.08.2010 granting anticipatory bail to the petitioner and his parents. It is true that even in the absence of registration of a criminal case, anticipatory bail can be granted under Section 438 Cr.P.C. Whether the apprehension of the petitioner and his parents were well-founded to seek such anticipatory bail is the question?

26. A specific reference is already made to Ex.P2 alleged complaint or report lodged by the respondent to the Inspector of Police, Saraswathipuram Police on the morning of 08.01.2010. By no stretch of imagination it could be considered as one to rope in the petitioner and his parents in a criminal case and to prejudice them. One cannot forget that some unfortunate incident took place in the house of the petitioner within a few days of her marriage. A married lady requires some reasonable time so that she can adjust to the new atmosphere in the matrimonial house. Suffice to state that the petitioner did not give her sufficient time so that she could adjust to the new environment. On the other hand, he did not go to Tumkur to bring her back though he had undertaken to get her back within 15 days. On the other hand, he went to the extent of seeking anticipatory bail in the month of August 2010 on a report lodged on 08.01.2010 by the respondent.

27. He has placed reliance upon another report submitted vide Ex.P8 on 24.04.2010. She wanted the police to persuade her husband to take her back to the matrimonial home. If the contents of Ex.P8 are read as a whole, it is evident that it is not a complaint of another allegation made against her husband. Therefore, even if the petitioner and his parents have obtained anticipatory bail, it can only be said that it was obtained on an ill-founded apprehension.

28. What is argued before this Court is that cases came to be filed against the petitioner and his family members in the High Court by the respondent and hence, Ex.P15 is relied upon.

29. Ex.P15 is the certified copy of the writ petition filed by the respondent Smt.B.A.Vani, against her husband in W.P.No.22848/2010. The prayer sought for in the said writ petition is to issue a writ in the nature of prohibition, forbidding the proceedings initiated by her husband in case bearing M.C.No.235/2010 on the file of Family Court at Mysore, even before one year of her marriage. Of course, the petitioner had chosen to file a petition under Section 13(1)(ia) of Hindu Marriage Act, seeking divorce on the ground of cruelty even before the expiry of mandatory period of one year. He had chosen to file within a period of six months and 20 days of his marriage with the respondent. This also shows that the petitioner was more eager to have a divorce than sustaining the marriage.

30. What is argued before this Court by the learned Counsel for the petitioner is about the writ petition filed in W.P.No.37514/2010 (GM-FC) before this Court. The certified copy of the writ petition is marked as Ex.P17. The prayer sought for in the said writ petition is to prohibit further proceedings of M.C.No.235/2010 and for a direction to her husband to take her and provide her, harassment free atmosphere. All these would go to show that the respondent-wife was more interested in joining him than deserting him.

31. The innumerable SMSs sent by her through her mobile to her husband’s mobile are forthcoming in Ex.R3. The innumerable SMSs sent through her mobile to her husband’s mobile would clearly indicate that she was more possessive towards her husband and at any cost she wanted the marriage to remain. Instead of understanding the real intention of the respondent, the petitioner chose to file a petition for divorce even before the expiry of mandatory period of one year.

32. This Court in the case of Srikanth Vs. Smt.P.B.Nandhini reported in AIR 2010 KAR 1 (DB), has dealt at length about the allegation of cruelty in matrimonial offences. It is specifically held by the Division Bench in Srikanth Vs. Nandhini’s case that if marriages are dissolved on trivial issues, no marriage would be saved. It is further held that there has been a recent trend to seek divorce on flimsy grounds. Referring to various decisions of the Hon’ble Apex Court, more particularly, the cases of V.Bhagat Vs. D.Bhagat reported in AIR 1994 SC 710 and A.Jayachandra Vs. Aneel Kaur, reported in AIR 2005 SC 534, Naveen Kohli Vs. Neelu Kohli reported in AIR 2006 SC 1675, it is reiterated that public interest demands not only that the married status should as far as possible, as long as possible and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

33. It is not as though the parties lived as husband and wife for few years and that they have not been living separately for quite a long time. If the parties have been living separately for several years and if there is no possibility of rapprochement and if the marriage has irretrievably virtually broken down, that can only be taken as an additional ground, provided other main grounds are made out.

34. Learned Counsel for the appellant has relied upon the decision in the case of K.Srinivas Rao Vs. D.A.Deepa reported in AIR 20213 SC 2176. We have perused the said decision. The ratio of the said decision is that all honest efforts must be made when husband and wife approach a criminal Court with the allegation of dowry demand or harassment. As per the facts of the said case, the marriage between the parties had broken down irretrievably and they had been living separately for several years. False cases had been foisted by Deepa against her husband. Taking all these into consideration and invoking Article 142 of the Constitution of India, the marriage came to be dissolved. While granting the decree of divorce, a specific direction has been given to all the Criminal Courts dealing with matrimonial offences under Section 498-A of IPC that honest efforts should be made to send the parties for mediation and in this regard, pre- litigation mediation clinics will have to be established. Therefore, the said decision so cited on behalf of the appellant is not of any assistance.

35. After re-assessment of the entire oral and documentary evidence, we are of the considered opinion that the Trial Court has adopted right approach to the real state of affairs keeping in mind the law laid down by the Hon’ble Supreme Court in regard to the divorce to be granted on the ground of cruelty. We are also of the firm opinion that the possessiveness that the respondent has towards the petitioner has lead to some differences between the two and that has been blown out of proportion. In fact, there was no opportunity for her them to be in the matrimonial house for few months. Before she could settle in the matrimonial house, unfortunate incident took place between the two and that cannot be considered as a severe cause. Both the petitioner and the respondent are well educated people being practitioners of law. Respondent has not made any serious allegation against the petitioner imputing his chastity and the petitioner has also not made any serious allegation against the respondent touching her chastity.

36. The petitioner should have waited for sometime so that the differences could have been ironed out. Instead of doing so, he chose to approach the Court seeking the relief of divorce within a short period. Hence, we are of the considered opinion that the Trial Court is justified in dismissing the petition. As observed in Srikanth Vs. Nandhini’s case, even now we hope that the appellant would appreciate our concern to save the marriage and would live as good husband and wife. Hence, point No.1 is answered in the affirmative.

Point No.2: In view of our finding on point No.1, the appeal is dismissed.

ORDER

The appeal filed under Section 19(1) of the Family Courts Act, is dismissed, by upholding the judgment and decree dated 08.04.2013 passed in M.C.No.409/2011 on the file of the Judge, Family Court, Mysore.

Sd/-

JUDGE Sd/-

JUDGE JT/-

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Wife left 39yrs ago!! Husband unable 2 prove desertion. Goes 2 HC, Escapes under irretrievable break down of marriage !!

Anyone dejected about fighting their matri case last 5 years … 7 years … 10 years …. Make way, here comes the Marathon runner !! Yes, wife away from 1972 and that’s 39 years as on year of decision… So…. I did NOT make it up !! Please see “…  2) Whether the lower appellate court is right in reversing the decree of divorce when admittedly, the parties are living separately since 1972 and the marriage has irretrievably broken.” …  and the wife’s side says “….10. On the other hand, the learned counsel for the respondent submitted that even though the parties are living separately for the past thirty years, that cannot be a reason for dissolving the marriage and the marriage cannot be dissolved on the ground that the marriage has been irretrievably broken ….”

Initially the Hon HC says “…. I therefore, hold that the respondent (wife) is not guilty of desertion nor guilty of treating the appellant (husband) with cruelty and the finding of the Trial Court on that ground is erroneous and that has been rightly reversed by the first appellate court. Hence, the substantial question of law No.1 is answered against the appellant (husband)….”

Luckily the Hon HC grants divorce on grounds of irretrievable break down of marriage, but …but the maintenance continues “…..However, it is made clear that the grant of divorce will not disentitle the respondent from claiming maintenance….”

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATE:   1.3.2011.

CORAM

THE HON’BLE MR.JUSTICE R.S.RAMANATHAN

C.M.S.A.No.38 of 2000

K.Vembadurai                            Appellant

vs.

Padmavathy                             Respondent

Civil Miscellaneous Second Appeal filed against the judgment and decree dated 29.6.2000 in C.M.A.No.44 of 1999 on the file of the II Additional District Judge, Erode reversing the judgment and decree dated 1.4.1999 in H.M.O.P.No.8 of 1997 on the file of the Principal Sub Judge, Erode.

For appellant     : Mr.K.S.Jeyaganeshan

For respondent : Mr.A.R.Nixon

JUDGMENT

The husband is the appellant. He filed a petition for divorce on the ground of desertion.

  1. The case of the appellant was that the marriage took place on 5.7.1971 and within a few months from the date of marriage, the respondent left the matrimonial home without any justifiable cause, to her parents house and then she returned to the matrimonial home after request made by the appellant and thereafter in November 1972 she again left the matrimonial home without any reasonable and justifiable cause. A female child was born in February 1973 and the appellant and his parents were not permitted to see the child. The respondent also refused to come and live with the appellant. The respondent also filed O.S.No.364 of 1974 for maintenance and maintenance was ordered. Even for the daughter’s marriage, he was not invited. As the respondent is living separately without reasonable and justifiable cause from 1972 onwards, the petition was filed for divorce.
  2. The respondent denied the allegations made in the petition and stated that she was driven away from the house by the appellant and his parents and they demanded 50 sovereigns and even after the birth of the child, they did not come and take back the respondent and therefore, there is no desertion on her part.
  3. The Trial Court held that the conduct of the respondent in living away from the appellant without any reasonable and justifiable cause will amount to mental cruelty and granted divorce.
  4. The first appellate court reversed the finding and held that the respondent was prevented from living with the appellant by reason of cruelty meted out to her by the appellant and his parents and therefore, the finding of the Trial Court that the respondent was guilty of desertion and she has treated the appellant cruelly cannot be sustained and allowed the appeal.
  5. Aggrieved by the same, this second appeal is filed.
  6. At the time of admission, the following substantial questions of law were framed by this court:- “1) Whether the lower appellate court is correct in holding that the appellant has treated the respondent with cruelty in the absence of any evidence to that effect. 2) Whether the lower appellate court is right in reversing the decree of divorce when admittedly, the parties are living separately since 1972 and the marriage has irretrievably broken.”
  1. Mr.K.S.Jeyaganeshan, learned counsel for the appellant submitted that, admittedly, the parties are not living together and the respondent is living separately from the year 1972 and the appellant was prevented from attending the marriage of his daughter and the appellant was also not informed about the marriage and no reasonable excuse was given for staying away from the husband and these facts would prove that the respondent treated the appellant with cruelty and she has wilfully deserted the appellant and in any event, the marriage has irretrievably broken and there is no purpose in keeping the marriage alive and hence, the appeal must be allowed. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  2. It is further submitted by the learned counsel for the appellant that, admittedly, the parties are living separately from 1972 onwards and even in mediation also it was made clear that they are not ready to settle the matter and therefore, no useful purpose will be served and the marriage has been irretrievably broken down and therefore, divorce can be granted on the ground of irretrievable break down of the marriage. He also relied upon the decision in DURGA PRASANNA TRIPATHY v. ARUNDHATI TRIPATHY (2005(4) CTC 287) in support of his contention.
  3. On the other hand, the learned counsel for the respondent submitted that even though the parties are living separately for the past thirty years, that cannot be a reason for dissolving the marriage and the marriage cannot be dissolved on the ground that the marriage has been irretrievably broken and the Honourable Supreme Court has also held that unless the statute is amended introducing a clause for divorce on the ground of irretrievable break down of the marriage, the marriage cannot be dissolved on that ground.
  4. The learned counsel for the respondent further submitted that the appellant cannot take advantage of his own wrong and the respondent was forced to live separately from her husband by reason of the conduct of the appellant and therefore, he is not entitled to get divorce taking advantage of his own wrong and divorce cannot be granted on the ground of irretrievable break down of the marriage and hence, the first appellate court has rightly refused to accept the plea and dismissed the petition filed by the appellant.
  5. Heard both side. It is seen from Ex.P1 that in the suit filed by the respondent claiming maintenance for herself and her minor daughter, decree was passed granting maintenance to the respondent and her minor daughter. In that suit, the court found that the appellant treated the respondent with cruelty and the respondent is entitled to separate residence. It has been upheld by this court in Appeal Suit Nos.206 of 1977 and 505 of 1978 and this court enhanced the maintenance to Rs.100/= per month for the respondent and Rs.50/= per month for the child. Therefore, the finding of this court that the respondent was treated cruelly by the appellant cannot now be canvassed by the appellant stating that he has not treated the respondent with cruelty. I therefore, hold that the respondent is not guilty of desertion nor guilty of treating the appellant with cruelty and the finding of the Trial Court on that ground is erroneous and that has been rightly reversed by the first appellate court. Hence, the substantial question of law No.1 is answered against the appellant. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  6. As per the provisions of the Hindu Marriage Act, divorce can be granted as per the grounds stated in section 13 of the Act. Admittedly, divorce cannot be granted on the ground of irretrievable break down of marriage. No doubt, the Honourable Supreme Court has held in various judgments that when the parties are living separately for many years, divorce can be granted on the ground of irretrievable break down of the marriage. In the recent judgment reported in MANISH GOEL v. ROHINI GOEL ((2010) 4 SCC 393), the Honourable Supreme Court has reiterated the principle that the dissolution of the marriage can be granted where the marriage is totally unworkable, emotionally dead beyond salvage and broken down irretrievably, even if facts of case do not provide ground in law on which divorce could be granted.
  7. In the judgment reported in VISHNU DUTT SHARMA v. MANJU SHARMA ((2009) 6 SCC 379), the Honourable Supreme Court refused to grant divorce on the ground of break down of marriage as it is not provided under the Hindu Marriage Act. That judgment was rendered by two Honourable Judges of the Supreme Court. In the judgments reported in VINITA SAXENA v. PANKAJ PANDIT ((2006) 3 SCC 778), A.JAYACHANDRA v. ANEEL KAUR ((2005) 2 SCC 22) and SAMAR GHOSH v. JAYA GHOSH ((2007) 4 SCC 411), larger Bench of the Honourable Supreme Court held that divorce can be granted on the ground of irretrievable break down of the marriage.
  8. Therefore, having regard to the judgments reported in 2005 (4) CTC 287, (2006) 3 SCC 778, (2005) 2 SCC 22, (2007) 4 SCC 411 and 2010 (4) SCC 393 cited supra decided by the three Honourable Judges of the supreme Court granting divorce on the ground of irretrievable break down of marriage, the appellant has also proved his case for divorce on the ground of irretrievable break down of marriage. Admittedly, both the parties are living separately for more than thirty years and the marriage has become dead and no useful purpose would be achieved in keeping the marriage live. Hence, the appellant is entitled to decree of divorce on the ground irretrievable break down of marriage and substantial question of law No.2 is answered in favour of the appellant. However, it is made clear that the grant of divorce will not disentitle the respondent from claiming maintenance.

In the result, the judgment and decree of the lower appellate court is set aside and the second appeal is allowed.

ssk.

To

  1. The II Additional District Judge, Erode.
    2. The Principal Sub Judge, Erode.
    3. The Record Keeper, V.R. Section, High Court, Chennai

Wife making false adultery allegations & filing complaints with husband’s employer is cruelty. Madras HC sees thru wife’s game

Wife making false adultery allegations & filing complaints with husband’s employer is cruelty. Wife also deserts husband using one pretext or other. Family court rejects husband’s divorce and allows wife’s RCR ! HC seeks wife’s game and orders divorce in favour of husband on both grounds cruelty and desertion! HC sets aside wife’s RCR !!

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 15..04..2009

C O R A M

THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN

and

THE HONOURABLE MR. JUSTICE T.S. SIVAGNANAM

C.M.A. Nos.2871 and 2872 of 2004

Nagappan                                                        .. Appellant

versus

Virgin Rani .. Respondent

******************

For Appellant     : Mr. K.P. Gopalakrishnan

For Respondent : Mr. V. Raghavachari for Mr. Krishnamoorthy

******************

PRAYER : Appeals against the judgment and decree dated 16.6.2004 made in F.C.O.P. Nos.674 of 1997 and 623 of 1995 respectively on the file of the Principal Judge, Family Court, Chennai.

******************

J U D G M E N T

PRABHA SRIDEVAN, J.

Both these appeals have been filed by the husband. The Family Court dismissed F.C.O.P. No.674 of 1997 filed by the husband for divorce and allowed F.C.O.P. No.623 of 1995 filed by the wife, the respondent herein, for restitution of conjugal rights. The parties will be referred to as appellant and respondent, which is how they are arrayed in these appeals, so that there may be consistency in reference.

  1. F.C.O.P. No.623 of 1995 was filed first and therefore, we will look at the pleadings therein.The couple got married in a Roman Catholic Church in Kanyakumari on 16.1.1989. According to the respondent, since she was the only daughter of her parents, her parents performed the marriage lavishly and bore the entire expenses. She is a Physics Graduate and had completed her P.G. Diploma Course in Computer Science. The appellant gave her to understand that he was qualified as an Engineer working in the Railways. To her shock, she found that he was only a Head Draftsman. Her parents questioned him as to why he uttered falsehood, but since the marriage preparations were at an advanced stage, they did not cancel the marriage. After the marriage, they resided together as husband and wife in Perambur. The appellant allegedly behaved in a rude and crude manner and used to ill-treat the respondent to appease his mother. It is stated that the appellant’s mother was a cruel lady. But, inspite of all this cruel treatment, the respondent was carrying on as a dutiful wife. The respondent became pregnant. The delivery was complicated and the female child died. The appellant never cared to take her back to Chennai and after repeated requests, he reluctantly took her back to Chennai. The appellant was very friendly with one Viswanathan. The respondent did not like this and when she pointed this out to him, he abused her in unprintable language saying she should not question his relationship with Viswanathan and if she was unhappy, she could go back to her parents house. Then, she conceived her second baby. A female child was born on 31.7.1991, but that child also died. Due to prolonged medical treatment, the respondent suffered mental and physical agony. The appellant’s attitude towards her was very bad and he did not pay her any care or attention and it was only the respondent’s parents and brothers who gave her necessary support. When it was time to return to Chennai, she informed the appellant over telephone, when her parents took her to Chennai to her matrimonial home, they found the house locked. He had vacated the house on the previous midnight only with the motive of putting her to hardship. Therefore, the respondent stayed with her elder brother at Chennai. Since her efforts to find out his place of residence were unsuccessful, her brother went to his office, but on seeing her brother, the appellant left the office. After repeated efforts, they found out his address at Periyar Nagar and after much persuasion, he agreed to live with the respondent. The appellant’s attitude towards the respondent became worse and worse and he also ill-treated her by demanding additional dowry for starting a rubber business with Viswanathan. Her pleas that he should not insist on further dowry fell on deaf ears and he also said that unless and until she brought the additional dowry, there would not be a peaceful marital life. Then he took to the old habit of spending time with his friends in clubs and other places. The respondent again conceived for the third time. This time, the appellant suggested that she should go to her parents’ house at Nagercoil to have her parents’ support, to which the respondent agreed. This time a male child was born. The entire medical expenses were born only by her parents. Even thereafter, he did not agree to take her back. The appellant was not agreeable to her joining him because she was complaining that his mother was treating her cruelly. Every time she requested him to take her back, he would avoid it on some pretext or the other. And again, she found that he would be satisfied only if the additional dowry was paid. The respondent once again came over to Chennai to join him, but again, the appellant had vacated the house at Periyar Nagar and she had to live with her brother. He told her that if she wanted to join him, she should go and reside with his parents and conduct herself as a servant and only then she could have conjugal rights. When she went to the Southern Railway Office to request for reunion, he physically dragged her to the Reception Desk to register her name, then took her to the police station to give a complaint. The Inspector of Police heard them and advised them to lead a happy married life. On 29.3.1995, when she went back to his office, the appellant took her in an auto-rickshaw pretending to take her to his home and then dropped her somewhere near his sister’s house and ran away. On 31.3.1995, the respondent and her brothers sent to well wishers, Dorairaj and Sampath to do mediation between the couple, but they were informed that he was not willing because she did not pay the additional dowry and that she should live with his mother at Kulasekaram and that she should not come to Chennai. He had also given a false complaint that her brother had threatened her. So, she lodged a complaint in the All Women Police Station. In these circumstances, she filed the petition for restitution of conjugal rights.
  1. The appellant filed his counter in July, 1995 wherein he denied all the averments that lavish expenditure was made for the marriage. He denied the allegation that he had informed her father that he was a qualified Engineer. He denied that the marriage was performed only because the preparations were at an advanced stage, inspite of his misrepresentation regarding his educational qualification. According to him, he could not complete his part-time B.E. because of her mental cruelty. He denied the allegations made against his mother. He said that she was a very nice person and that in all the years since the marriage, the respondent had stayed only for one week in the house along with his mother and therefore, the question of cruelty does not arise. The death of the first female baby was accepted, but the appellant would state that he took back the wife after she had taken the required rest at her parents’ place. The innuendo regarding his association with Viswanathan was denied and according to him, the friendship with Viswanathan is true and a genuine one and it was only because the respondent had a suspicious mind that she made all the allegations. The appellant would state that because of some complications, the second baby also died. The averment that the respondent came on her own accord to Chennai and found that his address was changed was denied. According to him, these allegations are made only to cover up the long period of desertion. The demand for additional dowry was denied and it was stated that it was a product of a fertile imagination. All other allegations regarding his character were denied. As regards the third pregnancy, according to the appellant, he paid sufficient amount and the respondent’s parents voluntarily shared the expenses because the appellant was in a financial problem. According to him, he suggested that she should go to his parents’ house at Kulasekaram because the third baby was a precious one, especially because the two earlier babies had died and since her health would be taken care of if she was in his parents’ house as he might not be able to give her that care in the busy city life. He denied the allegation of dowry harassment and demand for additional dowry. According to him, the complaint given against her brother was truthful and the cruelty towards him was so grave. She indulged in character assassination and gave false complaints to various authorities taking advantage of the fact that her close relative was a Section Officer in the State Secretariat and therefore, a false complaint was made to the Chief Minister’s Cell and the appellant was summoned. According to him, it was only because of her cruelty and suspicious character that was the cause of all the problems.
  2. Thereafter, the appellant filed F.C.O.P. No.674 of 1997 for divorce under Section 22 of the Indian Divorce Act. In this petition, he had admitted that originally they were happy, but because of some bad influence, she changed drastically. Many of the averments in this petition are akin to what is stated in his counter to the petition filed by the respondent for restitution of conjugal rights. According to the appellant, he had sent letters to her, to which she had not responded and therefore, a clear case of desertion had been made out. The final blow to the conjugal bliss came when she lodged a complaint against the appellant for dowry harassment in the year 1995. The appellant was grilled by police personnel. Goondas had been hired, who came to his place of employment and physically assaulted him. According to him, his life has become meaningless and he had suffered the repeated acts of cruelty at the hands of the respondent. According to him, she had deserted the matrimonial home in December, 1993 and therefore, he was entitled to divorce on that ground. The respondent filed her counter in this O.P. in which she has repeated all the allegations made in her petition for restitution of conjugal rights. In this counter, she had stated that the appellant’s illicit intimacy with the wife of Viswanathan is the cause for all these problems. According to her, the petition for divorce was a counter blast to her petition for restitution of conjugal rights. In the year 2001, the appellant filed an amendment petition, adding the ground of cruelty for seeking the prayer for divorce. To this, an additional counter was also filed.
  3. Three witnesses were examined on the side of the respondent and one witness was examined by the appellant, which was himself. Thirteen documents were marked by the respondent and five by him. The learned Principal Judge, Family Court, found that the appellant had not proved his case that the respondent was residing with one Dorairaj. The Family Court had observed that the couple had lived separately without having any intentions of separating from each other and that none of the documents support the case of the appellant. We will have to examine whether the judgment of the Family Court is sustainable.
  4. Learned counsel appearing for the appellant submitted that all the allegations made by the respondent were not proved and on the other hand, the appellant’s case of cruelty was supported by evidence. In fact, one should only look at the counter affidavit filed by the respondent which itself would prove the acts of cruelty alleged by the appellant. The learned counsel made impassioned submissions regarding the ordeal suffered by litigants seeking reliefs under the Family Courts Act. He submitted that it is not as if litigants in India rush to the Family Courts without any excuse. Conciliation and mediation takes place at every level within the family, amongst the friends, within the community and only when everything fails that the litigants approach the Family Court and thereafter, there is very little scope for reconciliation. In this case, the appellant had been harassed by the respondent in the office and she had made wild allegations without any justification. She had made allegations regarding adultery, which was not proved, which itself is an act of cruelty and therefore, the Family Court had erred in accepting the case of the respondent. Learned counsel referred to several decisions in support of his submissions.
  5. Learned counsel appearing for the respondent submitted that the appellant cannot cite letters written by him requiring his wife to come to his parents house at Kulasekaram as a bona fide request for reunion. His mother was a cruel lady and to ask his wife to go to his mother’s house at Kulasekaram was not bona fide. He submitted that a husband who vacates the house a day prior to the day when the wife was coming to rejoin him is the person who has committed the wrong and he cannot take advantage of the same.
  6. We made an effort to see if the parties could rejoin at least for the sake of their son. But the appellant appeared very disturbed at the very thought of reunion. Therefore, we proceeded to decide the matter on merits.
  7. Since the petition filed by the respondent was the earlier in point of time, she was examined as P.W.1. Whatever she had stated in her petition was stated in her chief-examination. During her cross-examination, she had admitted that since she did not like Viswanathan’s attitude, she had asked the appellant not to have any connection with him. She had admitted that she had given notice to her husband alleging illicit intimacy with Viswanathan’s wife. Her statement is that even though he treats her cruelly, she wants to live with him. According to her, right from the beginning she had been making these allegations regarding illicit intimacy. She had admitted that since he continues to go to Viswanathan’s house, she has the right to continue to make the same allegation again :எதிர்மனுதாரர் தொடர்ந்து விசுவநாதன் என்பவர் வீட்டிற்கு இப்போதும் போய்க்கொண்டிருப்பதால் நான் அவர் பேரில் காட்டிய குற்றச்சாட்டை தொடர்ந்து சொல்ல எனக்குரிமை உண்டு. She had admitted that there is no evidence to show that her parents gave Rs.25,000/- as dowry. According to her, she and her mother-in-law stayed together for one week in 1991 and that they did not have a cordial relationship. She had admitted that she had not written any letters to the appellant describing the acts of cruelty by her mother-in-law. She had stated that she went and told Viswanathan that his wife behaves improperly, but that Viswanathan denied that there was any extramarital relationship between his wife and the appellant. She has admitted that there is no evidence regarding the illicit intimacy between her husband and Viswanathan’s wife. She has admitted that she has not written to her relatives about the physical cruelty meted out to her by the appellant. According to her, she had made several attempts through the appellant’s sister’s husband for reunion, but she does not have any proof for that. According to her, she is aware of her husband’s sister’s address, but not her husband’s address.
  1. One Thangamani, who is said to be a Section Officer in the Secretariat, was examined as P.W.2. In his chief-examination, he has stated that the respondent had written several letters to the appellant to take her back, but there was no response and that he was informed by the respondent that when she went to her husband’s house, the door was locked and thereafter, they left the respondent with the appellant. When she became pregnant for the third time, the appellant left the respondent in her parents’ house. Even this time, he did not take her back. He, Dorairaj and Sampath went and requested him in his office, but it was of no avail. In cross-examination, he had admitted that he is the appellant’s sister’s husband. He has admitted that he has no specific knowledge about the husband and wife relationship between the parties and that he knows only what has been told by the respondent. A suggestion was put to this witness that since there is friction in his relationship with his wife, who is none other than the appellant’s sister, he has falsely given evidence to punish him. One Christopher, who is the brother of the respondent, was examined as P.W.3. The cross-examination is restricted to whether he knew the address of the appellant.
  2. The appellant, in his chief-examination, has reiterated the contents of his affidavit. He has stated in his evidence that whenever he went to Palliyadi to bring the respondent back, her parents would state that she is staying with Dorairaj in Chennai. According to him, P.W.2 would not give evidence to support him because there is some family friction between them. According to him, the first child was buried even before he went to see her. He has denied that it is only after the allegation of illicit intimacy was made that the third child was born.
  3. Ex.P.3 is a letter written by the respondent. It is an eight page typed letter sent by a wife to her husband. In this, she has stated that she had given some letters which were written with anger and after that, her brother and her parents left her at his home and that the appellant was happy with her:அப்புறம் ரொம்ப நாள் கழித்து நீங்கள் சென்னை பெரியா நகரில் திரு,ரங்காராம் அவர்களை போயி பார்த்து என்னுடைய விக்ஷயங்கள் அனைத்தும் பேசி நான் ஆத்திரத்தில் உங்களுக்கு எழுதிய கடிதத்தின் ஜெராக்ஸ் காபியும் அவருக்கு கொடுத்து பெரியார் நகர் நீங்கள் இருக்கும் வீட்டு முகவரியும் (சி,474. 9வது தெரு) சொன்னதினால் தான் அவர் மு்லமாக விபரங்கள் தெரிந்து எங்களுடைய அண்ணன் அப்பா அம்மா ஆகியோர் என்னை கூட்டி கொண்டு வந்து உங்கள் வீட்டில் விட்டார்கள், அப்புறம் நீங்களும் என்னிடம் அன்பாக நடந்துக் கொண்டீர்கள் . She has stated that when she wanted to set up a matrimonial home in Chennai, he had replied that she should stay at least for six months at Kulasekaram and only then establishment in Chennai was possible and thereafter, she has referred to the ‘saddist’ Viswanathan. She has then stated that, therefore, she waited and waited and came to the Periyar Nagar house in Chennai and they found the door of the house locked. She has again referred to a threat letter written by the appellant to her father and since all the time he was living with the ‘saddist’ Viswanathan, unable to come and live in the same house in Chennai, she stayed in her brother’s house. She has written that her brother asked her whether the appellant said anything about the death of his brother and that she stated that she did not know anything. She has also said that she was asked how she will go to her husband’s house, especially when the world speaks so differently about him. According to her, she was asked whether she would be able to bear it and whether the circumstances in the house would be conducive for the good upbringing of the child :உன்னால் தாங்க முடியுமா? என்று கேட்டு குழந்தையை நன்றாக வளர்ப்பதற்கு அந்த வீட்டு குழ்நிலை சரியாக அமையாது என தான் கருதுவதாகவும் கூறியுள்ளார். And that every one who knew the appellant’s mother told her parents and her brother that on no account should she be sent to the house of those poisonous people : உங்கள் அம்மாவைப் பற்றி தெரிந்தவர்கள் அனைவரும் என்னுடைய அம்மா. அப்பா. அண்ணன் எல்லோரையும் பார்த்து எக்காரணம் முன்னிட்டும் அந்த விக்ஷ நாசினிகள். அதாவது அவர்கள் வீட்டு மரபு பெரிய பையன் ஏற்கனவே அம்மா துணையோடு ஒரு பெண்னை மேரேஜ; பண்ணி னiஎடிசஉந பண்ணினவர். அந்த மரபுப்படி விளங்கும் அந்த நமது வீடு என்ற ஊருக்கு அனுப்பாதீர்கள். ஒரு குழந்தை பிறந்தே வந்து பார்க்கவில்லை என்னப்பாச நோக்கத்தோடு, உங்கள் பெண்ணை உங்கள் பெண்ணின் கணவர் நமது வீடு என அழைக்கிறாரோ என எச்சரித்ததன் பேரிலும் எனக்கு விருப்பம் இல்லாத இடத்துக்கு என்னை என் அண்ணனோ. அம்மாவோ. அப்பாவோ அனுப்பி வைக்க மாட்டார்கள், .Therefore, since they were warned regarding the motive with which the appellant was inviting her to come to “our house” (நமது வீடு) and that neither her parents nor her brothers will ever sent her to that house against her will :நானும். நமது வீடு என வந்தால் எனக்கு அந்த கதிதான், என்னையும் வழக்கத்துக்கு மாறாக கொளுத்தி இரவோடு இரவாக எரித்தால் என் குழந்தைக்கு யார்? ஆகவே நீங்கள் இருக்கும் சென்னையில் உங்களோடுதான் இருப்பேன். Therefore, according to her, the appellant’s mother would burn her if she goes to Kulasekaram and that she would live with him only in Chennai. According to her, if he did not turn up, she would herself go over to Chennai. This letter is dated 10.11.1994.
  1. Ex.P.4, which is the appellant’s letter, is to the effect that the respondent had not returned even after delivery :நான் எவ்வளவு அறிவுறுத்தியும் நீங்கள் குலசேகரத்தில் உள்ள நமது வீட்டிற்கு வரவில்லை, He has also written that she was on that date not with her parents and she was somewhere without informing him of her whereabouts. He had stated that she should immediately go to his parents house in Kulasekaram and as soon as she goes there, she should send a letter. He sent another letter dated 15.12.1994, in which he again addresses her as “Dear Rani” (அன்புள்ள ராணி). He has stated that for some months, she had not been with her parents and not gone to Kulasekaram and he has asked her why without telling him she had gone and stayed in different places and that she should give up her ego and come to his house in Kulasekaram. He has asked her whether she can go to Kulasekaram or not. He has also stated that to resume matrimonial life, she should go to Kulasekaram with the child and that she should let him know within one week her decision. Next is the letter, Ex.P.6, which is written by the appellant to the Father of the Roman Catholic Church and this is dated 11.1.1995. In this letter, he has stated that there had been marital problems and that they are living separately. He had stated that he had requested the respondent several times to join him, but she had refused to do so. என் துணைவியாரை என்னோடு குடும்பம் நடத்த பலமுறை அழைத்த போதும் என் துணைவியார் என்னோடு குடும்பம் நடத்த மனது இல்லாமல் விவாகரத்து செய்வதாக பலமுறை என்னிடம் கூறியுள்ளார்,
  1. Ex.P.7 is a letter dated 14.12.1993 written by one C. Rajabai to the respondent. In this, there is reference to the respondent’s acts of cruelty. Then comes Exs.P.8 and P.9, which is a letter sent by the respondent to the husband by registered post. In this, she has stated that the appellant must be mentally disturbed to behave like this. She has regretted his disinterest in the child. This is written on 11.1.1995. Next is Ex.P.10, which is a copy of the petition submitted to the Chief Minister of Tamil Nadu with serious allegations against Viswanathan, an employee of Syndicate Bank requesting that Viswanathan should be warned and therefore, the Deouty Secretary to the Chief Minister had addressed a letter to the Zonal Manager, Syndicate Bank, giving directions to warn Viswanathan. As a follow up to this, in Ex.P.11, the General Manager, Southern Railway is addressed to get the address of the respondent. Exs.P.12 and P.13 are greeting cards sent by the appellant to his son N.V. Anginio calling himself his loving father.
  2. Ex.R.1 Series are the ackowledgment cards for money orders sent by the appellant. Ex.R.2 is the letter written by the respondent’s brother Gnanaseelan to the appellant. This is dated 19.1.1995. In this letter, it is stated that the appellant had gone on 14.1.1995 to Palliyadi where his wife was residing and on the next day, the brother of the respondent, Gnanaseelan had gone to Palliyadi and that he got all the details and told them that the respondent and the child should be first taken to Kulasekaram and from there, they can go to Chennai. Another request is made where the father of the respondent has stated that the respondent had enlisted in a Computer Training Course and the Course would be over by February and that he would send her back after February when the Course concludes and by that time, he should fix the house in Perambur as stated by the appellant. Then he has stated that whatever may be the mistakes, he should forgive :எவ்வளவு குற்றம் குறைகள் இருந்தாலும் அதை பொறுத்து. மன்னித்து இனிமேல் ஒற்றுமையாக நம் இரு குடும்பமும் வாழ என் வாழ்த்துக்கள். He has also stated that he is so happy that the appellant went to his house and spent time with his children. Ex.R.3 is another letter dated 7.3.1995 written by Gnanaseelan, in which he has stated that he had gone and told his father about it and he had stated that they would send the respondent after Easter. Ex.R.4 is the notice from the police. These then are the documents filed by the parties before the Family Court.
  1. The following decisions have been relied on by the counsel for the appellant :1995 (2) L.W. 42 [Romesh Chander vs. Smt. Savitri] 2002 (5) L.W. 250 [P. Natarajan vs. Thamizhmani] 2003 (4) L.W. 609 : 2003 (2) C.T.C. 375 [Vijaykumar Ramachandra Bhate vs. Neela V. Bhate] (2005) 2 S.C.C. 22 [A. Jayachandra vs. Aneel Kaur] 2005 (4) C.T.C. 287 : 2006 (1) L.W. 512 [Durga Prasanna Tripathy vs. Arundhati Tripathy] 2007 (2) L.W. 340 [Manjula vs. K.R. Mahesh] 2007 (2) L.W. 902 [A. Viswanathan vs. G. Lakshmi @ Seetha]
  1. 1995 (2) L.W. 42 is a case where the Supreme Court, in exercise of its powers under Article 142, dissolved the marriage since the marriage was dead. 2002 (2) L.W. 250 is a judgment of K.P. Sivasubramaniam, J. sitting singly. Some of the observations made by the learned Judge throw light on such matrimonial problems and therefore, we will refer to them:

“17. I have considered the submissions of both sides with seriousness which a matrimonial proceeding deserves. It is true that the Court should generally as far as possible avoid taking a decision which would result in the disruption of the matrimonial home. At the same time, this Court has also to consider as to whether the decision rendered by the Courts below and the reasonings stated thereon are consistent with the evidence. On an overall consideration I am inclined to hold that the manner in which the Appellate Court had recorded its. findings and conclusions are found to be unsatisfactory in comparison with the detailed analysis of the evidence by the Trial Court. Not only the Appellate Court had refused to look into the pleadings and the evidence, but also gone to the extent of justifying the conduct of the wife without any proper reasons. It may be that the Appellate Court was interested in keeping the matrimonial tie intact. But in matrimonial proceedings, it is also important to see that parties come to Court only when the continued relationship becomes unworkable. Blind refusal to recognise the same, by giving over importance to sentimental views would ultimately render the provisions entitling divorce ineffective and meaningless. In this case, a reading of the pleadings and evidence disclose the conduct on the part of the wife which appears to be very inflexible and with an attitude of financial superiority of her own family, refusal to adjust with the conditions of life in the husband’s place, heaping insults on the husband and last but not the least, allegations of theft and frequent accusations of adultery against the husband. If these features do not justify the husband seeking divorce on the ground of mental cruelty, there will no justification for retaining the ground of mental cruelty as one of the grounds for divorce.

  1. In her evidence, she very frankly admits that she found it impossible to eat the equality of the rice which was used in her husband’s place and, therefore, she used to get food from her parents house in Thiruvannamalai. She also says that even now (after the filing of the petition for divorce), she was not prepared to live at Vettavalam (husband’s place). Even these admitted pleadings and the evidence on the side of the wife herself have been ignored by the Appellate Court. There cannot be any better material than her own admissions as above, to prove that by her conduct, she had been deliberately insulting and hurting her husband and his family with a show of financial superiority of her own family. Leave alone the traditional obligations of woman/wife in a Hindu society; even in a western family, such a behaviour is bound to be treated as clear instance of a wife torturing her husband.”

The learned Judge differed from the views expressed in 1995 (2) L.W. 42 that an allegation that a man is living in illicit intimacy with another woman will not amount to cruelty and observed as follows :

“24. With due respect I am unable to agree with the said view. In my opinion, it is not proper to mix up sociological notions and reactions while considering the sacred and personal relationship between a husband and a wife. 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 art only concerned with the impact on personal relationship, mutual respect and confidence between spouses. …

  1. The only other point which was raised by the respondent which has to be dealt with is that the fact that the plaintiff had filed an earlier petition for divorce would mean that the complaining spouse had condoned the past conduct and, therefore, will not be entitled to raise the same ground again in a subsequent petition for divorce, I am unable to agree. The mere hopeful retreat by one spouse with the idea that the other spouse would properly behave at least in future, cannot have the result of completely wiping out the misconduct. The past misconduct would be certainlpast y relevant in assessing the cumulative effect of the conduct of offending spouse on the victim spouse. … “
  2. Therefore, here is a case in which the respondent has been indulging in a series of provocative conduct as against the husband as mentioned above inclusive of accusing him of theft and adultery. She has also been giving frequent pinpricks, by even visiting his work place, and behaving in a very violent manner in front of others thereby creating problems to the husband. … The cumulative effect of the various actions on the part of the respondent, clearly establishes mental cruelty. In spite of the aforementioned reasons, the Trial Court instead of granting divorce, granted only a decree for judicial separation. In the said background there was absolutely no justification for the Appellate Court to have interfered with the decree of the Trial Court.”

In 2003 (4) L.W. 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.

2005 (4) C.T.C. 287 : 2006 (1) L.W. 512 was a case where the parties had spent a good part of their lives in litigation and the Supreme Court defined the ingredients of desertion where the wife had insisted on the husband shifting from the village to the place where she was working; did not visit him on the death of her father-in-law, did not attend the wedding of her brother-in-law; and the Conciliation Officer’s report was that the wife was willing to live with the husband only if they live separately. In that case also, the Supreme Court, holding that the marriage was as good as dead and dissolved the marriage on the ground of irretrievable breakdown.

On the same footing is 2007 (2) L.W. 340. In 2007 (2) L.W. 902, it was held as follows:

  1. It is unnecessary for a party claiming divorce to prove that the cruel treatment is of such nature as to cause apprehension, a reasonable apprehension that it will be harmful or injurious for him or her to live with the other party. Cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions and their culture and human values to which they attach importance.

  1. It can be clearly seen that the acts of cruelty had become routine day-to-day affairs and not an isolated affair since 1995 and were not restricted to isolated instances. This has not been rightly assessed by the Family Court. The material facts as to cruelty have been pleaded and the insistence of the Trial Court is for pleading evidence which is legally impermissible. It is only that all material factors needed to clothe the cause of action have to be pleaded while material particulars need not be pleaded.”
  2. The following decisions have been relied on by the counsel for the respondent :

1992 (2) Current Civil Cases (Rajasthan) 104 [Rajendra Prasad Pareek vs. Smt. Krishnadevi Pareek] I (2007) D.M.C. 211 [Pran Nath vs. Pushpa Devi] I (2007) D.M.C. 510 [Narinder Singh vs. Rekha @ Pushpa] (1989) 1 M.L.J. 21 [Saroja vs. Arumugam] I (2007) D.M.C. 492 [Sukhwinder Kaur vs. Jatinderbir Singh] (2001) 1 M.L.J. 224 [Sarada vs. V. Satyamurthi] I (2007) D.M.C. 460 (DB) [Binapani Bhattacharjee vs. Pratap Bhattacharjee] 2009 (3) SCALE 425 [Vishnu Dutt Sharma vs. Manju Sharma]

  1. In 2009 (3) SCALE 425, the Supreme Court held that irretrievable breakdown is not provided by the legislature for granting a decree for divorce and Courts cannot add such a ground to Section 13 of the Hindu Marriage Act. In I (2007) D.M.C. 460 (DB), the appellant/wife came to her parents’ house for the purpose of delivery and she stayed back to appear for her M.A. Examinations. The High Court held that appearance in examination cannot be termed as a circumstance of cruelty and refused to grant divorce. In (2001) 1 M.L.J. 224, this Court held that there is no evidence of cruelty by the wife. In I (2007) D.M.C. 492, a single Judge of the Punjab and Haryana High Court held that there is no evidence on the record to substantiate the plea of cruelty, physical or mental, and that mere allegation that the wife used to stay away for two to three days will not constitute cruelty.  (1989) 1 M.L.J. 1 is perhaps relied on by the counsel for the respondent on the ground that non-mentioning of demand of dowry or holding of panchayat will not falsify the case of the petitioner.I (2007) D.M.C. 510 was a case where the trial court had found that it was the appellant/husband who had deserted his wife.In I (2007) D.M.C. 211, a learned single Judge of the Delhi High Court held that no specific acts of cruelty are made out, apart from the respondent staying away from matrimonial home and that no instances of unacceptable behaviour which would amount to cruelty are made out.
  1. 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.
  2. The following decisions can be referred to in the context as to how cruelty can be construed. In (2005) 2 S.C.C. 22 (supra), 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 willful 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.

  1. The expression ‘cruelty’ has been used in relation to human conduct or human behavior. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or 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 S.C.C. 105]. …

  1. 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 husbands 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 S.C.C. 326].”

In that case, the respondent/wife had used abusive language and made allegations of adultery of her husband with the nursing staff. In Collins v. Collins, 1963 (II) All. ER 966, (House of Lords) Lord Reid observed as follows:

   “A Judge does and must try to read the minds of the parties in order to evaluate their conduct. In matrimonial cases we are concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people”.

“In Shoba Rani v. Madhukar Reddi, (1988) 1 S.C.C. 105, the Supreme Court observed that the Court should not import its own notions of customs and society while considering allegation of cruelty :

“It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea-change. They are of varying degrees from house-to-house or person-to-person. Therefore, when a spouse makes complain’ about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents. Because as Lord Denning in Sheldon v. Sheldon, 1966 (2) All. ER 257, 259, “the categories of cruelty are not closed : Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty”.”

In 2003 (2) C.T.C. 375, the Supreme Court observed as follows:

“A conscious and deliberate statement leveled with pungency and that too placed on record, through the written statement, cannot so lightly be ignored or brushed aside, to be of no consequence merely because it came to be removed from the record only. The allegations levelled and the incidents enumerated in the case 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 husband had been persistently indulging in them, unrelented and unmindful of its impact. That the husband in this case has treated the wife with intense cruelty is a fact, which became a fait accompli the day they were made in the written statement.”

  1. The respondent had stated that her mother-in-law is a very cruel lady, who had treated her like a servant. According to the appellant, the respondent had stayed only for one week along with his mother, after which the old lady had gone back to Kulasekaram. Therefore, this allegation that her mother-in-law had treated her cruelly and as a servant and that the appellant said that she should go to Kulasekaran and conduct herself as a servant is also baseless.
  2. The marriage between the couple took place on 16.1.1989. In the same year, she became pregnant and the appellant had taken her to her parents’ house and on 18.12.1989, the first child died. According to the respondent, she was an in-patient in the hospital for three months. Therefore, even assuming she had left the matrimonial home only in October or November, 1989, she would have stayed with her husband for about nine months. Then she had returned back to her matrimonial home and went back to her parents’ house after about a year, i.e., 21.6.1991 for the second delivery. The second child also died on 31.7.1991 and she had come back only after about eight months, i.e., some time in the year 1992. The third child was born in the year 1992. The respondent admits in paragraph 11 of her petition for restitution that for a period of two years after the birth of the third child, the appellant would come to her native village Palliyadi, stay with her for two days and return. And that on all these days, she requested him to take her and her child back to Chennai, but he refused to do so on some pretext or the other. This statement is clearly false, since we find that in 1995, he had gone to Palliyadi twice, as seen from the letters of Gnanaseelan, the respondent’s brother. From these letters, we also see that the appellant had requested them to send the respondent with him and once, her father appears to have said that she had joined a Computer Training Course and that she would go and join him in February, after she completed the Course. Then again when he went to bring her back, her father said that he would send her after Easter. The child was born in 1993 and even after two years, the respondent did not intend to return to the matrimonial home and was giving one excuse or the other and we also see from this letter that it is only the parents of the respondent who replied to the appellant’s request and as stated in the letters which are marked as exhibits, the appellant was not staying with her parents whenever he went there and in fact, he did not know here whereabouts. It is clear from this, that the appellant had gone to Palliyadi and therefore, it is incorrect to state that he was not interested in taking the respondent back.
  3. Learned counsel for the respondent submitted that a command to go to his parents’ house cannot be seen as a genuine intention to rejoin. We are unable to read the letter as though it was a command by the appellant to the respondent to go to his parents’ house. In fact, the appellant has stated in his pleadings that because it was a troubled and difficult pregnancy and since he had already lost two children, he felt that instead of leaving her and her child alone in the house in Chennai when he went to work, it will be better for her to spend some time in Kulasekaram where she would have the support of his mother. In fact, the letter written by Gnanaseelan, the respondent’s brother, indicates that the appellant had told the respondent’s father that first she should be taken to Kulasekaran and he would take her to Chennai thereafter. The custom is not unknown in our part of the country that after delivery, the mother and the child are first taken to the husband’s parents’ house and thereafter from there, to the husband’s house, if the husband is not living in a joint family along with his parents. Therefore, this is not something that shocks us and makes us look at the appellant’s request to the respondent to go over to Kulasekaram as a request that is made with an oblique motive just to harass her. It is clear that the appellant had made several attempts to go to her native place to bring her back. But it was postponed on one pretext or the other. According to the appellant, the statement that he had shifted houses just to avoid her does not appear to be correct. Now, across the Bar, learned counsel for the appellant stated that he could not receive her in that small room at Perambur because it could not accommodate the child and that it was explained, but there is no evidence for that. But, however, we see from the letter of the respondent’s brother that first of all, he knew where to contact the appellant and also there was an agreement as to the house which he would identify for taking the respondent and the child. Therefore, the statement that his whereabouts was not known appears to be false; on the other hand, the statements made in the appellant’s letter that the whereabouts of the respondent were not known appears to be more creditworthy. Whenever he had gone to her house, she was not with her parents and she was living somewhere else and he did not know where she was.
  4. Learned counsel for the respondent submitted that allegations were made regarding the respondent’s relationship with one Dorairaj, which were not proved. We need not consider this very seriously because there is no pleading regarding adultery committed by the respondent with Dorairaj or anyone else. Or even if he had stated so in his own evidence, we will ignore that. However, definitely he has made out a case both of desertion and cruelty. The desertion commenced in 1993 when she had not returned to her matrimonial home inspite of repeated requests and cruelty because of the wild allegations of adultery and also the allegations regarding the demand of additional dowry have been proved to be false. In fact, the respondent’s brother had stated in his letter that he should forgive and they should live together.
  5. Several decisions had been cited, but ultimately whether it is cruelty or whether it is desertion, the question if the ingredients of cruelty or the ingredients of desertion are made out will depend upon the pleadings and the evidence. Multiplication of decisions or citations is not going to improve the case of either party. From the pleadings and evidence, we find that the appellant had made out a case of cruelty and desertion. The learned Principal Judge, Family Court had summarily referred to the allegation regarding Dorairaj and observed that if the respondent’s adultery had caused him mental agony and cruelty, he should have proved it. Adultery is not the ground on which he had come to Court. In his petition for divorce, he has stated that the allegation of adultery made against him by the respondent amounted to cruelty and that harassment by them in his office and police complaints amounted to cruelty. We feel that the Family Court had digressed in this regard and had not focussed on the real facts in issue.
  6. We hold that the appellant has succeeded in proving desertion and cruelty, because(a) The respondent left the appellant’s house in 1993 and did not return, though the appellant went and requested her to return (see Exs.R.2 and R.3); she had joined a Computer Training Course while being in her parents’ house, which shows her intention not to return to the appellant’s house. So, both the intention and the fact of abandoning the matrimonial house is proved.(b) The respondent’s baseless allegation of adultery is an act of cruelty and her evidence that she will continue to accuse him shows her persistence in cruelty.
  1. An attempt was made here to see if the appellant could at least have some contact with his son, but the appellant seems to be in a state of great distress. Therefore, we felt that if he was not ready to patch up or build a relationship with his son, it is not for us to force anything on any part. The appellant was ready to give any financial help within his capacity.
  2. As regards the petition for restitution of conjugal rights, the petition itself does not appear to be bona fide. Throughout in her pleadings, i.e., in her petition for restitution of conjugal rights as well as in her counter to the petition filed by the appellant for divorce, there are constant allegations of cruelty and torment. The letters which were marked as exhibits also repeat the same things. She is obsessed with the presence of Viswanathan in her husband’s life and the letters repeatedly talk to the ‘saddist’ Viswanathan. If she had genuinely wanted to resume her conjugal relationship with her husband, when the husband went to Palliyadi in 1995, she would have gone back with him soon after she completed the Computer Training Course. She did not do so.
  3. One more aspect has to be taken note of. If a girl marries while she is pursuing her degree course and soon after the delivery of the child her examinations commence, then she may justifiably continue to stay in her parents’ house to appear for her examinations while the infant is in her mother’s care. But a person who had gone to her parents’ house for the third delivery in 1993, takes up a Computer Training Course which she is unable to complete even in 1995, then it definitely shows an intention not to return to her husband’s house. And thereafter, to claim that she has a bona fide intention to resume conjugal relationship which is thwarted and frustrated by the husband does not appear to be genuine. The two letters written by the respondent’s brother Gnanaseelan really close the case for the respondent and therefore, the Family Court ought not have automatically granted the decree for restitution of conjugal rights. She has admitted in her evidence that, அண்ணன் ஞானசீலன் எழுதிய கடிதங்கள்“; so she has admitted both the letters. She has also admitted that her father said that he would sent her later, i.e., after Easter. Therefore, after all this, to come to the Court seeking to restore conjugal rights does not appear to be justified.
  4. Family Courts should independently examine the facts in each case before granting the prayer for divorce as well as for restitution of conjugal rights. Sometimes, one petition is filed by one spouse, and perhaps in retaliation, the second petition is filed by the other spouse. In this case, the petition for restitution of conjugal rights was filed first and then the petition for divorce. If a decree for restitution of conjugal rights is granted, the petition for divorce by the other party may have to be consequently rejected. But, if a petition for divorce is dismissed because the grounds have not been proved, the petition filed by the other spouse for restitution of conjugal rights may not necessarily be decreed. The Courts still must examine whether the prayer for restitution of conjugal rights is bona fide or not.
  5. For all the reasons aforementioned, the judgment and decree of the Principal Judge, Family Court, Chennai in F.C.O.P. Nos.674 of 1997 and 623 of 1995 are set aside and both these civil miscellaneous appeals are allowed. There shall be no order as to costs.

(P.S.D., J.)   (T.S.S., J.)

April 15, 2009.

ab

Index     : Yes

Website : Yes

To

The Principal Judge,

Family Court,

Chennai.

ab

PRABHA SRIDEVAN, J.

and

T.S. SIVAGNANAM, J.

Pre-delivery Judgment in

C.M.As.2871 & 2872 of 2004

Delivered on

15..04..2009

When cruelty desertion alleged by wife NOT true, wife not caring, living away, she canNOT take advantage of own wrong Wife DENIED divorce !!

This is the sad case of a 56 year old woman and 58 year old male fighting in courts. The lady is seeking divorce and alleging that her husband has been cruel and has deserted her. The lower court dismisses her case. The matter moves to HC. The HC appreciates the arguments and states as follow. We have given the Hon court’s reasoning with some empahsis / addendum in brackets ()

“….18. So, the evidence of R.W. 1 (husband) is that he never ill-treated the petitioner. P.W. 1 (wife) has clearly admitted that the respondent took keen interest as normal father towards his son and he only used to ask the petitioner for some money and he was in the habit of giving his salary cover to the petitioner. So, it is well-evident that the respondent never ill-treated the petitioner and he was very cordial to the petitioner and the petitioner only acted in an indifferent manner towards the respondent. R, W. 1 further says that when he met with an accident and sustained injuries, the petitioner did not attend to him, P.W. 1 has also stated that at one time, she removed the “Thirumangalyam” as she is employed. R.W. 1 has stated that the petitioner removed her “Mangalyam” and he was upset by it. No Hindu women will be so dare enough to remove the “Thirumangalyam” by herself. Her admission that she removed her “Thirumangalyam” goes to establish her indifferent attitude towards the respondent….”

“….21. On going through the evidence of P.W. 1 and R.W. 1, we are clearly of the view that cruelty as alleged by the petitioner is not true and the petitioner is not entitled to divorce on either of the grounds. The Family Court has carefully analysed the entire evidence and has dismissed the petition. We find no infirmity in the order passed by the Family Court…”

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Madras High Court

Sarada vs V. Satyamurthi on 4 December, 2000

Equivalent citations: I (2001) DMC 210, (2001) 1 MLJ 224

Author: A Subbulakshmy

Bench: P Shanmugam, A Subbulakshmy

JUDGMENT A. Subbulakshmy, J.

1. Unsuccessful petitioner, the wife who filed the petition for divorce on the ground of desertion and cruelty is the appellant herein.

2. The case of the petitioner is that she married the respondent on 26.1.1975 according to Hindu ceremonies and customs and their marriage was also registered in the Hindu Marriage Register maintained by the Marriage Registrar and they lived together at T. Nagar, Madras and then they moved to Defence Colony, Nandambakkam, Madras and a son was born to them on 20.3.1976. The petitioner contends that from 1975 to 1989 the petitioner and the respondent were living together and in the month of December/1986 the respondent deserted the petitioner without any cause and consent of the petitioner and the respondent abandoned his duties and thereafter the petitioner lived with her son in the Defence Colony, Nandambakkam and then she moved to Kasturiba Nagar, Adyar, Madras. The petitioner further contends that the conduct of the respondent is against the wish of the petitioner and there is no possibility of the respondent returning again to matrimonial home and the inhuman attitude and the oppressive conduct of the respondent, extracting heavy and unnecessary work by humiliating the petitioner amounts to cruelty and torture to the petitioner and the respondent is not evincing any interest towards the petitioner and the family. The petitioner further contends that the respondent was in the habit of taking non-vegetarian food and he forced the petitioner to cook and serve the same and thus caused great mental agony and thus the petitioner contends that she is entitled to seek for divorce on the ground of desertion and cruelty.

3. The respondent contends that he only admitted his son at Rishi Valley, Madanapalli, a residential school and he is very much interested in the welfare of his son and the family and only the petitioner who was influenced by her widowed sister Visalam and her brother Radhakrishnan, began to neglect the interest in the family and a major portion of the income of the family was spent for her sister and brother and only the petitioner, her sister and brother created a situation and made impossible for the respondent to stay there and the petitioner only never cared the respondent and forced him to stay away from the house and inspite of her attitude the respondent is keeping touch with the petitioner and he also suggested for fixing a separate house without interference of the petitioner’s sister and others and only the petitioner did not listen to that and the petitioner moved to Adyar in 1989 without informing the respondent and the respondent never deserted the petitioner and the respondent has no intention to desert the family and the cruelty alleged is also a myth.

4. The petition was tried by the Family Court Judge and it was dismissed.

5. Aggrieved against that order, the present appeal is filed by the petitioner/ appellant.

6. Point that arises for consideration in this appeal is whether the petitioner is entitled to divorce on the ground of desertion and cruelty.

7. Learned Counsel for the appellant submitted that the respondent completely deserted the family viz., the appellant and her son and there is no possibility of the appellant living with the respondent and because the respondent deserted the appellant and did not attend to the needs of her son and as the appellant was also asked to prepare non-vegetarian food and the respondent did not participate in the household activities, the appellant was subjected to cruelty by the conduct of the respondent and on these grounds, decree for divorce has to be passed.

8. The appellant is now aged about 56 years and the respondent aged about 58 years. The appellant/petitioner who has been examined as P.W. 1 has spoken in her evidence that the respondent left the matrimonial home in the’ month of December, 1986 and thereafter, he did not return at all and he also did not show any interest to return to the matrimonial home and he also did not call the petitioner to live with him and there is no possibility of joining together. So, the appellant/ petitioner contends that without any reasonable cause and without consent of the petitioner, the respondent left the matrimonial home and so, the respondent completely deserted the petitioner.

9. The respondent who has been examined as R.W. 1 has spoken in his evidence that he never deserted the petitioner and only by mutual agreement their son was sent to Rishi Valley School, Madanapalli. He further says that both the petitioner’s sister Visalam and her brother Radhakrishnan started to stay with the petitioner and the respondent during which time more money was spent for them and when he cautioned the petitioner to be careful in spending money, that resulted in the petitioner ill-treating the respondent. He further says that the petitioner stopped talking to him and she did not serve him food and she did not stay with the respondent during night and she stayed only with her brother and sister in the same house. His evidence shows that the respondent was also met with an accident in December, 1986 and he was injured and while he was at home, the petitioner never attended to him and she ignored him completely and only with the help of his brother he got admitted in the hospital and recovered. R.W. 1 further says that even the suggestion by him to move back to Mahalakshmi Street Flat and to live separately was rejected by the petitioner. The specific evidence of R.W. 1 is that he never deserted the petitioner. The evidence of R.W. 1 is that he was very cordial to his wife and only the petitioner never cared for him.

10. The petitioner as P.W. 1 has also admitted in her evidence that the respondent was always in the habit of giving his salary to her and her salary was also credited in the bank account and the salary of the respondent was utilised to run the household and even for his personal requirements, the respondent had to approach the petitioner for some money. So, even the evidence of P.W. 1 establishes that the entire money i.e. the earnings of both the petitioner and the respondent was available only with the petitioner and not with the respondent. The petitioner had also admitted in her evidence that at times both of them used to go for shopping.

11. So, the conduct of the respondent by giving his entire salary to her and then getting money from her for his personal requirements and also going to shopping together and admitting the child in the Rishi Vailley School by both of them together, all these things cumulatively establish that the respondent had no intention to desert the petitioner and the family and only the petitioner was not amenable to the respondent. Animus deserendi for desertion is completely absent in this case. The allegation of the petitioner that the respondent deserted the petitioner is wholly unsustainable on the evidence of P.W. 1 and R.W. 1 adduced in this case and also on the facts and circumstances of the case. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

12. Counsel for the appellant relies upon a decision in Pawan Kumar v. Chanchal Kumari, 1999 CIV. CR 385, wherein the Punjab and Haryana High Court has held that when the parties lived separately for over 13 years and the husband remarried and the wife is unwilling to join her husband, the marriage is irretrievably broken and divorce can be granted. He also relies upon another decision in Bipinchandra Shah v. Prabhavati, , wherein the Apex Court held that for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there namely, (1) the factum of separation; and (2) the intention to bring cohabitation permanently to an end and similarly two elements are essential so far as the deserted spouse is concerned i.e., (1) the absence of consent; and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention and desertion is a matter of inference to be drawn from the facts and circumstances of each case.

13. In the decision reported in 1999 CIV. CR 385 cited supra, the facts are the husband re-married and there was, irretrievable breakdown of the marriage and hence, divorce was granted. In the case on hand, no question of re-marriage by the husband and this case is entirely on a different footing and the principles laid down in the said decision cannot be applied to the case on hand. In the case on hand, the oral evidence adduced proves that the petitioner who was living with her sister and brother never cared for the respondent and inspite of the request by the respondent to set up a separate family for themselves in a different place was turned down by the petitioner and the petitioner only did not co-operate with the respondent for running their family smoothly. The evidence proves that the conduct of the petitioner was not conducive for the respondent to live with the petitioner. The petitioner must establish that the respondent deserted her completely. In the proceedings for divorce the party who alleges desertion must prove the offence of desertion.

14. On a perusal of the evidence of P.W. 1 and R.W. 1, I find that there is no ground at all to come to the conclusion that the respondent without any reason or cause deserted the petitioner. Nothing transpires from the evidence that inference can be drawn with regard to desertion on the part of the respondent. The evidence of P.W. 1 and R.W. 1 clearly establishes that there was no intention on the part of the respondent to desert the petitioner and the family and the desertion as alleged by the petitioner is not true. The Trial Court has correctly come to the conclusion in this aspect.

15. With regard to cruelty it is the case of the petitioner that the respondent did not show any interest in the education of the child and the respondent did not participate in the household activities and the respondent extracted more work from the petitioner and he also demanded the petitioner to cook non-vegetarian food. It is the case of the respondent that he was having much interest in the family and himself and the petitioner together admitted the child in the Rishi Valley School.

16. P.W. 1 also admitted in her evidence that her child was studying in the Rishi Valley School and only afterwards the child was transferred to Madras School. P.W. 1 admitted in her evidence that herself and the respondent wanted to give best education to their son and so, they admitted the child in the Rishi Valley School and the respondent also joined with her when the child was admitted in the school. She further admits that at times the respondent used to visit the child and she also visited his son and there were occasions when both of them together visited the child. It seems that the respondent has taken keen interest towards his son’s education as normal father. So, it cannot be stated that the respondent did not evince any interest in the education of his son. The evidence of R.W. 1 is that he took all responsibilities of attending of his son’s needs such as giving him bath, taking him to school and bringing him back from school and also preparing him for music class, etc. He further says that he has also helped the petitioner in the household work and for purchase from the market.

17. The petitioner is working as computer consultant in Shaw Wallace, Madras. The evidence of R.W. 1 is that he helped her in the household work also and in purchases from the market. He would further say that when his sister-in-law and brother-in-law joined his family and stayed with the petitioner and the respondent, the respondent, only cautioned the petitioner to be careful in spending and only the petitioner began to ill-treat him and the petitioner stopped talking with the respondent she did not even call him for taking food and she did not serve him food and she also did not stay with the respondent during night and in contrary, her brother and sister stayed in the same apartment and he also did not demand for any non-vegetarian food.

18. So, the evidence of R.W. 1 is that he never ill-treated the petitioner. P.W. 1 has clearly admitted that the respondent took keen interest as normal father towards his son and he only used to ask the petitioner for some money and he was in the habit of giving his salary cover to the petitioner. So, it is well-evident that the respondent never ill-treated the petitioner and he was very cordial to the petitioner and the petitioner only acted in an indifferent manner towards the respondent. R, W. 1 further says that when he met with an accident and sustained injuries, the petitioner did not attend to him, P.W. 1 has also stated that at one time, she removed the “Thirumangalyam” as she is employed. R.W. 1 has stated that the petitioner removed her “Mangalyam” and he was upset by it. No Hindu women will be so dare enough to remove the “Thirumangalyam” by herself. Her admission that she removed her “Thirumangalyam” goes to establish her indifferent attitude towards the respondent. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

19. Counsel for the appellant submitted that removal of Mangalsutra by wife does not amount to cruelty and to substantiate his contention he relies on the decision in S. Hanumahtha Rao v. S. Ramani, 1999 CIV. CR 730=1 (1999) DMC 628, wherein it has been held that removal of Mangalsutra by wife on the instigation of husband does not constitute cruelty.

20. Instant case stands on a different footing. Removal of Mangalsutra by the wife, the petitioner is not at the instigation of the husband. The categorical admission of P.W. 1 in her evidence is that she removed her “Thirumangalyam” as she no longer wanted it as she is employed. She has further admitted that since October, 1986, she stopped wearing “Thirumangalyam” and she herself removed it. The conduct of the petitioner does not show her as an ideal Hindu woman. Removing Mangalyam by herself of her own accord not at the instance of her husband shows only her indifferent attitude.

21. On going through the evidence of P.W. 1 and R.W. 1, we are clearly of the view that cruelty as alleged by the petitioner is not true and the petitioner is not entitled to divorce on either of the grounds. The Family Court has carefully analysed the entire evidence and has dismissed the petition. We find no infirmity in the order passed by the Family Court.

In the result, the appeal is dismissed. The order passed by the Family Court is confirmed. No costs.

Suicide attempt as husband did NOT set up separate house is cruelty. Husband gets divorce ! Madras HC

GIST
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* Wife attempts suicide on multiple occasions
* She is taken to the Govt Stanley medical hospital and treated
* She claims that she tried to commit suicide because husband refused to set up a separate house
* Lower courts REJECT husband’s plea of cruelty
* Madras HC appreciates the evidence and conduct of parties and concludes that the wife treated the husband with cruelty
* Though desertion is NOT proven by the husband in this case, cruelty is proven and so divorce granted

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Madras High Court

A.P. Ranga Rao vs Vijayalakshmi on 26 September, 1988

Equivalent citations: I (1990) DMC 567

Author: K Natarajan

Bench: K Natarajan

JUDGMENT K.M. Natarajan, J.

1. This second appeal is directed by the petitioner husband challenging the legality and correctness of the judgment passed by the VI Additional Judge, City Civil Court, Madras, in C.M.A. 54 of 1979, confirming the decree and judgment passed by the IV Assistant Judge, City Civil Court, Madras, dismissing the petition for dissolution of marriage.

2. The facts which are necessary for the disposal of this appeal can be briefly stated as follows : The appellant (herein after referred to as the petitioner) married the respondent on 9 9-1968, according to caste custom. On account of the lawful wedlock she gave birth to a daughter on 3-7-1969. The case of the petitioner is that the respondent used to tease him and provoke him often. On several occasions she threatened to commit suicide. She insisted on the petitioner to start a separate establishment after severing his connection with the other members of his family, namely, mother, brother, brother’s wife and unmarried brother. In or about March 1969, the respondent consumed bug poison and she was admitted in the Government Stanley Hospital. She deserted the petitioner in June 1970. By the intervention of mediators, who consisted of close relations, she later joined and she again left the house in February 1971. Subsequently in October 1972 she returned. In June-July 1973, she again attempted to commit suicide by consuming glass pieces. According to him, Mr. V.M. Day, Advocate, attempted to settle the matter amicably, but of no use. On account of the various acts of the respondent, he is put to extreme mental agony and that the respondent has also developed ulcer. Hence, he filed the petition for dissolution of marriage on the ground of desertion and cruelty. In addition he prayed for custody of the minor child.

3. The said position was resisted by the respondent and she would contend that all the allegations in the petition are untrue. The petitioner agreed to pay Rs. 100 per mensem to her as maintenance. He failed to do so. He later filed O.P. 407 of 1973, for judicial separation. It was not pressed. She went to the house of the petitioner to reside with him even after the dismissal of the said petition. But it was only the petitioner who suddenly left the house without intimating the respondent. She would state that she is willing to reside with her husband, the petitioner. To substantiate the allegations, the-petitioner examined himself as PW 1 and also examined seven other witnesses and filed Ex. A. 1 to A. 11. On the side of the respondent, besides examining herself, three other witnesses were examined and Ex. B. 1 to B. 3 were marked.

4. The trial Assistant Judge dismissed the petition holding that the petitioner has not made out any of the grounds of desertion or cruelty. He was unsuccessful before the appellate court. Hence this second appeal.

5. The second appeal was admitted on the following substantial question of law :–

“Whether in view of the conclusion of the lower appellate Court that there had been several attempts on the part of the respondent to commit suicide, the ground of cruelty has not been made out within the meaning of Section 13(1)(i-a) of the Hindu Marriage Act 1955 ?

6. Learned counsel for the appellant, Mr. G.M. Nathan, submitted that within six months the marriage the respondent attempted to commit suicide by consuming bug poison and that she was taken to the Stanley Medical Hospital and examined by the doctor PW 7 who certified that she consumed bug poison. Subsequently in July, 1973, she again consumed glass pieces and that she was taken to the house of one lawyer V.M. Dev (PW 8) who is his family friend. PW 8 directed his son to admit her in the Stanley Medical College Hospital, Madras PW 5, doctor, treated her. It is supported by Ex. A. 6 and A. 7. The lower appellate Court came to the conclusion that it has been established that she attempted to commit suicide on those occasions. But the lower appellate court held that the reason for the respondent to commit suicide was the refusal of the appellant to set up separate residence and his disliking towards her and as such, it cannot be said that the appellant suffered any mental cruelty on account of the above facts, namely, her attempt to commit suicide on more than one occasion which amounted to mental cruelty. Learned counsel for the appellant in this connection submitted that the very approach of the lower appellate Court is not proper especially in view of the introduction of Section 13(1)(i-a), by virtue of the amendment Act 68 of 1976 and the ratio laid down by the Supreme Court and High Courts. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

7. In the instant case, admittedly, the marriage between the parties took place on 9-9-1968 and a child was born on 3-7-1969. According to the appellant the respondent was not behaving like a normal woman and that she was behaving like person affected with hysterical complaint. It is seen that the respondent insisted the appellant to separate from his family which consisted of his mother, elder brother, brother’s wife and married younger brother and set up a separate family, to which the appellant was not agreeable. Even according to the case of the respondent, the appellant’s brother’s wife was responsible for the disharmony and that her efforts to set up a separate residence was not fruitful.

8. It is seen from the evidence of PW 7, who is a Civil Assistant Surgeon, attached to the Stanley Medical Hospital, that the respondent was admitted into the hospital on 14-3-1969 at 8.15 p.m. for consuming bug killer poison. The respondent complained of vomiting and pain in the abdomen. She has stated that she took bug killing poison at 8 p.m. According to AW 7, the diagnosis also showed that she consumed bug killer poison and the medical opinion also was to the same effect. Learned Counsel for the respondent submitted that in cross-examination, this witness has stated that he spoke only from the records and the symptoms noticed by his assistants who treated her and hence no reliance could be placed on this evidence. The learned counsel also submitted that even the finding of the lower appellate Court on this aspect should not be accepted. I do not find any merit in the said contention. The evidence of PW 7 clearly establishes that her respondent took bug killer poison, that she was treated for the same, that there were symptoms of consuming bug killer poison and that that is the diagnosis by the medical authorities. Again, the respondent consumed glass pieces on 30-7-1973 for which she was admitted in the Stanley Medical College Hospital. PW 5, Civil Assistant Surgeon, gave treatment to her. He had stated that the respondent herself stated that she swallowed glass pieces. He had made a note of it in the case sheet Ex. A. 6, and Ex. A. 7 is her O.P. ticket. Learned counsel for the respondent, relying on the answer given by this witness in cross-examination that no glass pieces were detected and that he cannot say whether she consumed glass pieces, contended that it cannot be said that she consumed glass pieces. On a careful reading of the evidence of PW 5,1 find that the respondent not only admitted that she had taken in glass pieces, but also she vomited once or twice. It is also seen that she was given drugs to bring the glass pieces out, that she refused to take them and that she also refused to get proper ., treatment. She also refused to given reasons for consuming glass pieces. Besides the evidence of PW 5, we have got the evidence of PW 8, an advocate, who mediated and who admitted her in the hospital through his son PW 5. The appellant also examined PW 2, 3 and 4 to establish the above act of the respondent in attempting to commit suicide. It is also in evidence that the respondent was in a state of pregnancy when for the first time she consumed bug poison. In evidence she would come forward with the version that she took it by mistake. But such defence was not taken by her in her counter. As regards the reasons for attempting to commit suicide PW 2 would say that there were frequent quarrels and that on account of the same, the respondent took bug poison. The evidence of PW 4 is to the effect that in June 1973, the respondent was actually seen taking glass pieces and was anxious to put an end to her life. With regard to this incident, we have got the evidence of the advocate PW 6 who mediated the dispute between the parties. The finding of the lower appellate Court in para 9 of its judgment is to the effect–

“The lower court has taken these instances and has held that there was no conclusive proof about the consumption of bug poison or of having taken glass pieces. I do not accept this finding of the lower court. As pointed out by the Supreme Court, the court has come to a conclusion on a preponderance of probabilities. The evidence taken as a whole establishes that the respondent was dissatisfied with her marital life and was deeply affected and agitated by the lack of affection and courtesy by her husband. If she had resorted on more than one occasion to put an end to her life, it was not because of any dislike for family life, but because she was dissatisfied with her surroundings.”

Again, in para 10, the lower appellate Court has pointed put–

“Of course, there have been attempts to commit suicide, but on that ground it cannot be said that the petitioner was put to mental agony. It is urged that the behaviour of the wife was such as to cause an extreme mental upset and detriment to the health of the petitioner.”

In para 10, it was also observed–

“His admission that PW I attempted to commit suicide because he was not prepared to set up a separate residence, indicates that cause for dejection of the respondent. It is not a case of mental cruelty by the respondent, but a marked obsession on the part of the petitioner to tear away from the other members of his family.”

Finally, the lower appellate Court gave a finding–

“On the facts of the case, I am satisfied that the respondent has not been guilty of mental cruelty, and if the petitioner entertained feeling that he has been treated with cruelty, it is due to his own making. Point No. 1 is found against the petitioner.”

It is clear from the above finding of the lower appellate court, that the respondent attempted to commit suicide on more than one occasion by consuming bug poison and taking glass pieces. The lower appellate Court held that those acts would not amount to mental cruelty as the appellant was resposible for those acts since he refused to set up separate family and that he did not like her. It is only this reasoning which is now challenged by the learned counsel for the appellant by contending that the refusal of the appellant-husband to set up a separate family and his disliking is quite immaterial and if it is established that there was an attempt on the part of the wife to commit suicide, the reason for the same has no consequence and the very act would amount to mental cruelty. In this connection, my attention was drawn to the fact that prior to the amendment Act 68 of 1976, ‘cruelty’ was not shown as one of the grounds for divorce, but it was shown as one of the grounds for judicial separation after amendment. By virtue of the amendment Act, Section 13(1)(i-a) was introduced under which ‘cruelty’ was also mentioned as one of the grounds for divorce. It is worthwhile to quote Section 13(1)(i-a) of the Act–

“13(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-(i). …

(i-a) has, after the solemnisation of the marriage, treated the petitioner with cruelty.”

This provision came up for interpretation before a Full Bench of the Bombay High Court in the case reported in Keshacrao v. Nisha, it has been held :–

“The cruelty contemplated under Section 13(1)(i-a) of the Act neither attracts the old English doctrine of danger nor the statutory limits embodied in old Section 10(1)(b). The cruelty contemplated is a conduct of such type that the petitioner cannot reasonably be expected to live with the respondent”.

It was therefore held in that case, that the decision in Madanlal Sharma v. Santosh Sharma, 1980 Mah. LJ 391, does not lay down the law on the point correctly.

9. Learned counsel for the appellant invited the attention of this Court to the decision reported in Shobha Rani v. Madhukar Reddi, AIR 1980 SC 121, wherein it was held–

“The demand for dowry is prohibited under law. That by itself is bad enough. That amounts to cruelty entitling the wife to get a decree for dissolution of marriage.”

It was further observed–

“The word ‘cruelty’ has not been defined and could not have been defined. It has been used in relation to human conduct or; human behaviour. It is conduct in relation to or in respect of matrimonial duties and 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. There may be cases where the conduct complained of itself is bad enough and perse 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 learned Judge further observed–

“A new dimension has been given to the concept of cruelly. Explanation to Section 498-A I.P.C. provides that any wilful conduct which is of such a nature as is likely to drive a woman to commit suicide would constitute cruelty. Such wilful conduct which is likely to cause grave injury or danger to life, limb or health (whether mental or physical of the woman) would also amount to cruelty. Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security would also constitute cruelty. The cruelty as a ground for dissolution of marriage if not admitted requires to be proved on the preponderance of probabilities as in civil cases and not beyond a reasonable doubt as in criminal cases.”

Learned counsel for the appellant submitted that the attempt to commit suicide is per se an offence punishable under the Penal Code, and is like the demand for dowry which is prohibited under law and which by itself is bad enough and the same would amount to cruelty as per the decision of their Lordships of the Supreme Court in the case reported in Shobha Rani v. Madhukar Reddi (supra). Certainly, the attempt to commit suicide would also amount to mental cruelty to the husband by the wife. In para 17 of the judgment, it was observed —

The cruelty treatment may also result by the cultural conflict of the spouses, in such cases, even if the act of cruelty is established, the intention to commit cannot be established. The aggrieved party may not get relief, we do not think that was the intention with which the Parliament enacted Section 13(1)(i-a) of the Hindu Marriage Act. The context and the set up in which the word ‘cruelty’ has been used in the section seems to us, that intention is not necessary element in cruelty. That word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, that act complained of could otherwise be regarded as cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment. The same is also the line of reasoning adopted by the House of Lords in Collins v. Collins, 1963-2-All ER 966, at page 976 where Lord Evershed said–

‘I am unable to accept the premise that ‘cruelty’ in matrimonial proceedings requires or involves of necessity the element of malignity though I do not of course doubt that if malignity be in fact established it would be highly relevant to a charge of guilty.

In my opinion, however, the question whether one party to a marriage has been guilty of cruelty to the other or has treated the other with cruelty does not according to the ordinary sense of the language use by Parliament, involve the presence of malignity (or its equivalent); and if this view be right it follows, as I venture to thick, that the presence of intention to injure on the part of the spouse charged or (which is, I thing, the same thing) proof that the conduct of the party charged was ‘aimed at’ the other spouse is not an essential requisite for cruelty. The question in all such cases is, to my mind, whether the acts or conduct the party charged were ‘cruel’ according to the ordinary sense of that word, rather than whether the party charged was himself or herself a cruel man or woman.. ..”

It is clear from the above decision that the proper approach in matrimonial cases is whether the acts or conduct of the party charged were cruel according to the ordinary sense of that word. Further, the intention to cause such cruelty is not a necessary element and it is no answer that for committing the acts the party charged himself was responsible as was done in case by the lower appellate Judge. In Narayan Ganesh Dastane v. Sucheta Narayan Dastane, , it was held that the threat given by wife to her husband that she will put an end to her life was cruelty towards her husband. In that case, the act of taking poison by wife was held to be cruelty to her husband. In Savitri v. Mulchand, , it was observed in para 28 at page 57 :

“The respondent petitioner husband had deposed that on his return from London the wife took poison when she saw him, and that she was saved by Jethanand. Attempt to commit suicide with a view to coerce the husband into doing something which he is not inclined to do, for whatever reason, I am of the view, is also a cruelty on the husband. Justice Leila Seth in her judgment reported as Shakunlala Kumari v. Om Prakash Ghai, I (1981) DMC 25=AIR 1981 Delhi 53, also said that threat to commit suicide by the wife amounts to cruelty on the husband. In my view attempt to commit suicide by taking poison would also amount to cruelty.”

In that case, the learned Judge referred to the decision reported in Narayana Ganesh Dastane v. Suchita Narayana Dastane, (supra), also. Applying the ratio mentioned in the above quoted decisions to the facts of this case, it can be held that merely because the husband was not agreeable to separate from the members of the family and set up separate family as desired by his wife, she was not justified in resorting to attempt to commit suicide by consuming poison or glass pieces on more than one occasion. She could have worked out her remedy by taking such legal action open to her under law. It is not open to her to remain in the house of the husband and threaten to commit suicide by consuming poison etc. and cause mental cruelty to him. In Harbajan Singh v. Amarjeet Kaur, , it has been held “For these reasons it is established that the defendant respondent held out threats of committing suicide. It is needless to add that such threats constitute cruelty.”

Therein also, reliance was placed on the decision of the Supreme Court, in Dastane’s case (supra). As already stated, in the instant case, the lower appellate Court came to the conclusion, after differing from the view taken by the trial court, that there has been attempts to commit suicide. But, he came to the conclusion that on that ground it cannot be said that the husband was put to mental cruelty. According to the lower appellate Judge, the admission of the husband that his wife attempted to commit suicide because he was not prepared to set up a separate residence, indicates the cause for dejection, the appellant-husband should blame himself for his lapse and it is not open to him to contend that the threat to commit suicide and various acts attributed to the wife would amount to cruelty. In view of the ratio laid down in the above decisions, the said reasoning of the lower appellate judge is not tenable and on the established facts it is clear that the appellant has made out a case for mental cruelty so as to get a decree for dissolution of marriage under Section 13(1)(i-a) of the Hindu Marriage Act, as amended by Act 68 of 1976. Thus the substantial question of law is answered in favour of the appellant and against the respondent.

10. As regards the question of desertion, I do not find any irregularity or illegality in the finding rendered by both the courts below. Though their marriage was celebrated in 1968. they lived together till about 1973 and according to the appellant, there was desertion from 1973. It is seen from the evidence of PW 1 that even after the orders passed in O.P. 407 of 1973 she came and lived with him and subsequently she left only on 22-3-1976. The Original Petition was filed on 25-11-1977 which is less than two years immediately after leaving the appellant, and in view of Section 13(1)(i-b) the said ground is not tenable. It cannot be said from the circumstances that there was any animus deserendi on her part so as to constitute desertion. Hence no interference is called for in the finding on the question of desertion by the respondent wife. However, in view of the finding on the ground of cruelty, the appellant is entitled to the relief of dissolution of marriage. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

11. In the result, the appeal is allowed. The judgment and decree of the courts below are set aside and the petition O.P. 629 of 1977 filed by the appellant is allowed and there will be a decree for dissolution of marriage between the appellant and the respondent under Section 13(1)(i-a) of the Hindu Marriage Act. In the circumstances, of the case, there will be no order as to costs.

12. Before parting with the case, I wish to place on record the valuable assistance rendered by Mr. S. Swaminathan, Advocate, who acted as amicus curiae on behalf of the respondent in the case, and my appreciations to him.