Tag Archives: baseless allegations

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

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

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

The HC orders and we quote

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

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

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


IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 18.07.2011

C O R A M

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

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

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

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

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

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

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

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

srk

To
I Additional Family Court, Chennai

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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Early morning he wanted VIOLENT SEX. When refused he asked 2lakhs! Wife loose case & NO alimony ! Madras HC gem

Ablaa naari, the beacon of love, embodiment of culture has the following false allegations in addition to saying husband wanted VIOLENT SEX and when refused he threatened to bring call girls and have sex with them in front of the wife !!! On yet another day , “…husband forced the petitioner-wife for sex in the early morning and when she was not willing, the respondent assaulted her severely and threw her from matrimonial home by saying that she was not useful for his sexual life and also asked to bring Rs.2 lakhs from her parents !!!..”

Here is the ablaa’s list !!

“… (1) The entire family of the respondent/husband was depending upon the income of the respondent and his elder brother Kirubakaran who was married and having children was unemployed and the respondent’s father had chosen the petitioner in the interest of income from her employment and the petitioner was treated by cruelty.

(2) The respondent-husband forced the petitioner/wife to collect money from her parents …. and the respondent/husband beaten the petitioner/wife black and blue everyday for not asking money from her parents and the respondent/husband went to the extent of dashing the face and head of petitioner/wife on wall by holding her hair in his hands ……

(3) After vacating the respondent/husband and petitioner/wife from the own house, the respondent’s father constructed shops and at that time, the respondent, his brother and father have jointly humiliated and harassed the petitioner …….

(4) the respondent had behaved brutally in sexual life and he used to wake up the petitioner during the mid-night and had violent sex with her and when the petitioner refused and expressed her tiredness due to over work, the respondent-husband kicked and assaulted his wife and also the respondent blackmailed the petitioner to subject herself for violent sexual life otherwise he will bring call girls home and he will have sex with them in the presence of petitioner-wife.

(5) The respondent was always suspicious and teased the petitioner and the respondent doubted each and every act of the petitioner and also the respondent refused to purchase necessary provisions for the family.

(6) On 25.4.2003, the respondent-husband forced the petitioner-wife for sex in the early morning and when she was not willing, the respondent assaulted her severely and threw her from matrimonial home by saying that she was not useful for his sexual life and also asked to bring Rs.2 lakhs from her parents otherwise he will not accept her.

(7) On 27.4.2003, when the petitioner-wife was standing in Villivakkam Railway Station, the respondent shouted at her in most indecent manner by using unparliamentary words and ……

The Principal family court Chennai does NOT appreciate the evidence and accepts the stories of the wife !!!

The Honourable HC sees thru each of these false complaints and decrees

“…42. From the above discussion, we are of the view that the petitioner/wife has not proved the alleged incidences of cruelty by her husband by adducing reliable evidence and the Trial Court has erroneously held that the alleged incidences of cruelty were proved and granted divorce and therefore the above said order of the Trial Court on the ground of cruelty is liable to be set aside.

43. We are also of the considered view that the petitioner wife is not entitled to any amount as permanent alimony since the petition filed by the petitioner/wife for divorce is not maintainable as already discussed in earlier paragraphs. Therefore the petitioner is not entitled for permanent alimony as prayed for in the petition and we answer the points accordingly……”

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IN  THE HIGH COURT OF JUDICATURE AT MADRAS

DATED :      16 .8.2012

CORAM:

THE HONOURABLE  MR.JUSTICE  C.NAGAPPAN
and
THE HONOURABLE  MR.JUSTICE  R.KARUPPIAH

C.M.A No.887 of 2010
and
MP.No.1 of 2010

A.Sukumar                    .. Appellant/Respondent

Vs.

K.S.Chitra                    .. Respondent/Petitioner

Prayer:  This Civil Miscellaneous Appeal is preferred against the fair and decretal order, dated 27.10.2009, passed  in  F.C.O.P.No.918 of 2003 on the file  of  the  Principal  Family Court, Chennai.

For Appellant            :   Mr.S.Soundararajan for  Mr.K.S.Natarajan

For Respondent         :   Mr.D.J.Venkatesan

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

JUDGMENT

R.KARUPPIAH,J.

This Civil Miscellaneous Appeal is directed against the fair and decretal order, dated 27.10.2009, passed in F.C.O.P.No.918 of 2003 on the file of the Principal Family Court, Chennai. The respondent in the petition is the appellant herein. In this Judgment, for the sake of convenience, the parties are referred to as arrayed in the petition.

2. The respondent/petitioner, who is the wife of the appellant, has filed petition for divorce on the ground of cruelty under Section 13(1)(i)(a) of the Hindu Marriage Act, 1955 and also for permanent alimony of Rs.10 lakhs.

3. Briefly, the case of the petitioner/wife is that the marriage between the petitioner and the respondent was solemnised on 26.1.1996 according to Hindu rites and customs and out of wedlock, a daughter viz. Varshini, aged 6 years and a son viz. Sanjay, aged 1 = years, were born. The respondent is employed as Reservation Clerk in Southern Railway and the petitioner is employed as Clerk in Indian Bank, Perambur.

4. According to the petitioner, at the time of marriage, the respondent’s father informed that all his sons were settled in life and they were all living in their own house and on believing the abovesaid fact, the petitioner’s parents consented for the marriage, but his elder brother Kirubakaran, who was married and having children, was unemployed and the entire family was depending upon the respondent and the respondent’s father had chosen the petitioner in the interest of her income from employment. Further, the respondent’s father and brother insisted the petitioner and the respondent to vacate the house since they wanted to rent out that portion and to utilise the rental income for the said Kirubakaran’s family.

5. It is further stated in the petition that the respondent raised loan and purchased house at No.49, Janagiram Reddy Colony, Villivakkam and as there was insufficiency of funds to purchase the house, he forced the petitioner to collect money from her parents and he had beaten up the petitioner black and blue everyday for not asking money from her parents. The petitioner has further stated that the respondent went to the extent of dashing the face and head of the petitioner on wall by holding her hair in his hands and unable to bear the torture, the petitioner requested her parents, who had helped her by giving Rs.1 lakh from their pension. It is further stated that the petitioner was not even permitted to see or handle the pass-book or cheque books and her jewelleries in the bank locker maintained by the respondent and thus the petitioner was subjected to cruelty both physically and mentally by the respondent.

6. It is further stated in the petition that after vacating from own house, the respondent’s father constructed shops in the building and arranged for permanent income to the said Kirubakaran and for those construction, the respondent, his father and brother jointly humiliated the petitioner to ask for money from her parents and also encouraged the respondent to beat the petitioner severely and also the respondent’s father and brother threatened the petitioner in indecent manner even in the presence of the respondent.

7. The petitioner has further averred in the petition that the respondent had behaved brutally in the sexual life and he used to wake up the petitioner during mid night and had violent sex with her and when the petitioner refused or expressed her tiredness due to over work, the respondent kicked and assaulted the petitioner and also blackmailed the petitioner to subject herself for violent sexual acts otherwise he will bring call girls to home and he will have sex with them in the presence of the petitioner. It is further stated that the respondent was always suspicious and teased the petitioner and also doubted each and every act of the petitioner and the respondent has refused to purchase the necessary provisions for family and also refused even to give Rs.10 extra as pocket money to the petitioner and on many occasions, inspite of ill-health and tiredness, the petitioner was not able to have a cup of coffee or tea at her working place. The petitioner has further stated that harassment and tortures were increasing day by day and the petitioner was waiting with confidence that the respondent will realise his mistakes and correct himself, but the respondent had taken advantage of the goodness and he started her teasing her through the female child by persuading the child.

8. It is further stated in the petition that on 25.4.2003, the respondent forced the petitioner for sex in the early morning and when the petitioner was not willing, he assaulted her severely and threw her out from the matrimonial home by saying that she was not useful for his sexual life and she has to bring Rs.2 lakhs from her parents, otherwise he will not accept her and therefore the petitioner was living with her parents.

9. The petitioner has further stated that on 27.4.2003, when the petitioner was standing in Villivakkam Railway Station, the respondent shouted at her in most indecent manner by using unparliamentary words and hence the petitioner returned her home and took her brother and escorted her to reach her work place and on the same day, after the petitioner left the house, the respondent’s father and brother entered her parents’ house and abused them in the filthy language and threw their chappals on the petitioner’s parents. While the petitioner’s maternal uncle tried to prevent the situation, he was assaulted by the respondent’s father and brother and hence the petitioner lodged police complaint on 28.5.2003 with W-5 All Women Police Station, Anna Nagar, Chennai which has been proved futile and therefore the petitioner has filed this petition to grant a decree of divorce dissolving the marriage between the petitioner and the respondent and also to grant permanent alimony of Rs.10 lakhs for children.

10. The respondent-husband has filed detailed counter and denied the averments in the petition and stated that there are no sufficient grounds for the grant of divorce and according to Hindu Law, marriage is a sacrament and the relationship of the husband and wife cannot be severed on such flimsy and frivolous allegations. According to the version of respondent, the marriage was held only after enquiring about status of the respondent by petitioner’s father. Further, respondent’s brother viz. Kirubakaran is a technically qualified person and at the time of marriage, he was working in private concern at Ambattur Industrial Estate and his earning was more than sufficient for entire family expenses and he was never depending upon the income of the respondent and therefore the allegations that Kirubakaran was unemployed and his family was depending upon the respondent are all false. The respondent has also denied the allegation that the petitioner was treated by the respondent’s elder brother Kirubakaran and his father as a money lending machine. According to respondent, his father was a retired Railway employee and he is getting pension and also agricultural income and it is sufficient for his retired life and he is not dependent either on the petitioner or respondent’s income.

11. It is further averred in the counter that at the time of marriage, the petitioner was working at Golden Rock Railway Station, Tiruchirapalli till March, 1998 and the respondent was in Chennai and during the weekends, the respondent used to visit Trichy and similarly the petitioner also used to visit Chennai to spend holidays with the respondent. It is further stated in the counter that the petitioner got transferred in April 1998 and thereafter both the petitioner and the respondent stayed together and led a happy life.

12. The respondent has further stated in the counter that the allegations made in the petition that the petitioner was beaten up by the respondent black and blue every day for not asking money from her parents and he went to the extent of dashing the face and head of the petitioner against the wall are all absolutely false and the respondent never been any rude or atrocious behaviour and in fact the respondent on several occasions has shown his love and affection towards the petitioner in abundance. The respondent has further denied the averment that the petitioner was not even permitted to see or handle the pass book, cheque book and jewellery in the bank locker and the petitioner was never restricted to operate her bank account by the respondent being an Either or Survivor account. It is further stated in the counter that the respondent’s father sold his agricultural land of 3 acres at Magarai village and out of the above said amount and also the loan of Rs. 3 lakhs from Ramakrishnapuram Building Society Limited, Villivakkam, he constructed shops near the existing building and it is false to state that the respondent availed loan for the construction and it is constructed for providing a permanent income to the respondent’s brother Kirubakaran. The respondent has also denied the allegation that the respondent’s father and brother jointly humiliated and harassed the petitioner and insisted her to ask money from her parents and the petitioner never suffered any cruelty through the respondent or by his relatives and also denied the averment that the respondent was always suspicious and teased the petitioner without any limitation. It is further stated in the counter that the respondent had never made any harassment and torture to the petitioner and also denied the allegation that the respondent teased her through female child by pampering the child.

13. The respondent has further stated in the counter that since the petitioner had an aversion in joint family, the respondent availed housing loan of Rs.3 lakhs on 5.8.1998 from his bank, Rs.75,000/- from Ind Bank Housing Limited, received Rs.50,000/- from petitioner’s mother as a hand loan and received Rs.40,000/- from his father and purchased a flat for Rs.4,65,000/- and occupied on 6.9.1998 and the petitioner and the respondent jointly lived for five months from April, 1998 to August, 1998. It is further stated that the respondent had repaid the hand loan obtained from the petitioner’s mother and his father. The respondent has further stated that he availed another housing loan of Rs.1,50,000/- during November, 2001 from his employer for alteration and interior decoration of his flat and repaid the loan amount as Rs.2,200/- pm. The respondent has specifically denied the averment made in the petition that the respondent forced the petitioner to collect money from her parents either for purchase of flat or for repayment of loan and also denied the allegation that petitioner’s parents gave Rs.1,00,000/-.

14. The respondent has further stated in the counter that the alleged incidents happened on 25.4.2003 are false and cooked up for the petition. According to respondent, on 25.4.2003, the respondent planned to go to Thiruttani Temple along with his family and he requested the petitioner to accompany them but the petitioner refused and asked him to take only her children and the respondent requested again and again but the petitioner shouted and quarreled with the respondent. It is further stated that the petitioner has no faith in Hinduism and therefore the respondent had cancelled the programme and went to his office and the petitioner also went to her office without preparing any food and on that day, she went to her parents’ house. The respondent has further stated that he tried to talk with the petitioner over phone but the petitioner refused. It is further stated that besides humiliating the respondent, the petitioner gave strict instruction to her parents not to talk with the respondent and it is clear proof for her bad behaviour with the respondent.

15. It is further stated in the counter that on 27.4.2003, being a holiday, the respondent met the petitioner at Villivakkam Railway Station on her way to office and tried to compromise but she refused to talk with him and returned to her parents’ house. The respondent has further denied the allegation in the petition that the respondent’s father and brother entered the petitioner’s parents’ house and abused them in filthy language and threw chappals on the petitioner’s parents and in fact, the petitioner’s father went to petitioner’s house to persuade the petitioner to live with the respondent and lead a happy married life. The respondent has further stated that the petitioner, on a strong influence of her parents, does not desire to continue the marital tie with ulterior motive.

16. The respondent has also stated in the counter that the petitioner lodged a false police complaint on 28.4.2003 and the police conducted enquiry and tried to compromise them but it failed since the petitioner was adamant. It is further averred in the counter that the female child S.Varshini was staying with the respondent and another male child S.Sanjay was staying with the petitioner and the petitioner never allowed to see the child and it clearly shows the amount of cruelty caused to the respondent by the petitioner. The respondent has further stated in the counter that inspite of various allegations against the respondent, the respondent is for reunion only and the petitioner is not showing any indication to live with the respondent. It is further stated by the respondent that the permanent alimony claimed in the petition is only to harass the respondent and put in mental agony and torture on the petitioner’s hands and at any rate, the claim of permanent alimony is high and not maintainable and therefore prayed for dismissal of the above said petition.

17. Before the trial Court, on the side of the petitioner/wife, she has examined herself as PW.1 and marked 4 documents as Exs.P1 to P4 and on the side of the respondent/husband, he has examined himself as RW.1 and marked 13 documents as Exs.R1 to R13. The Trial Court, after analysing the entire pleadings and evidence on record, came to the conclusion that the contention of the petitioner/wife that the respondent/husband has caused mental and physical cruelty to the petitioner/wife is proved and therefore the petitioner/wife is entitled for divorce on the ground of cruelty. The Trial Court has further held that the petitioner/wife is entitled for permanent alimony of Rs.5 lakhs from the respondent/husband. Aggrieved with the above said order, the respondent/husband has preferred this appeal.

18. The points for determination in this appeal are:

“1. Whether the petitioner-wife is entitled to divorce on the ground of cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, 1955?

2. Whether the petitioner-wife is entitled to permanent alimony as claimed by her in the petition?”

19. Heard the learned counsel on either side and perused the entire materials on record.

20. The learned counsel for the respondent/husband has submitted that the Trial Court came to erroneous conclusion that the respondent/husband continued to demand more money from the petitioner/wife without any oral and documentary evidence and the trial Court without applying its mind and believing the evidence of petitioner-wife, without any proof to the same, has held that the respondent has doubted the act of the petitioner and also the respondent/husband had behaved brutally in sexual life and violent with her. He has further submitted that the Trial Court has failed to consider the evidence of the respondent/husband that the respondent/husband was leading marital life as dutiful husband as well as much abundant of love and affection towards his wife and children beyond doubt, but the Trial Court only based on the police complaint dated 28.4.2003 came to the conclusion that the alleged incidence of cruelty was proved by the petitioner/wife. The learned counsel for the respondent/husband has further contended that the respondent has not caused any mental or physical cruelty to the petitioner as alleged in the petition and the petitioner/wife has failed to prove the alleged incidences of cruelty by any sufficient oral and documentary evidence. He has further submitted that the Trial Court has failed to consider the fact that petitioner/wife was Central Government employee and other material facts and arbitrarily awarded Rs.5 lakhs as permanent alimony and therefore prayed for setting aside the above said order and decree passed by the Trial Court.

21. Per contra, the learned counsel for the petitioner-wife has submitted that the petitioner has alleged several incidences of cruelty in the petition and the petitioner has deposed to prove the same and since the above said incidences happened between the husband and wife, the petitioner-wife alone is competent to speak about the alleged cruelty and the Trial Court has correctly discussed and held that the petitioner-wife has proved the alleged cruelty and granted divorce on the ground of cruelty and also the permanent alimony awarded by the Trial Court is just and reasonable and no need to interfere with the above said findings of the Trial Court.

22. It is not in dispute that the marriage between the petitioner and respondent was solemnised on 26.1.1996 according to Hindu rites and customs and out of wedlock, a daughter viz. Varshini and a son viz. Sanjay were born and it is also not in dispute that both the husband and wife were employees and lived together as husband and wife till 25.4.2003.

23. The incidences of cruelty alleged by the petitioner/wife are as under:

(1) The entire family of the respondent/husband was depending upon the income of the respondent and his elder brother Kirubakaran who was married and having children was unemployed and the respondent’s father had chosen the petitioner in the interest of income from her employment and the petitioner was treated by cruelty.

(2) The respondent-husband forced the petitioner/wife to collect money from her parents when the respondent raised loan and purchased house at No.49, Janagiram Reddy Colony, Villivakkam as there was insufficiency of funds to purchase the house and the respondent/husband beaten the petitioner/wife black and blue everyday for not asking money from her parents and the respondent/husband went to the extent of dashing the face and head of petitioner/wife on wall by holding her hair in his hands and unbearable with the above said tortures, the petitioner-wife requested her parents, who had helped her by giving Rs.1 lakh from their pension.

(3) After vacating the respondent/husband and petitioner/wife from the own house, the respondent’s father constructed shops and at that time, the respondent, his brother and father have jointly humiliated and harassed the petitioner to ask for money from her parents and also encouraged the respondent to beat the petitioner-wife severely so that she will collect money from her parents.

(4) the respondent had behaved brutally in sexual life and he used to wake up the petitioner during the mid-night and had violent sex with her and when the petitioner refused and expressed her tiredness due to over work, the respondent-husband kicked and assaulted his wife and also the respondent blackmailed the petitioner to subject herself for violent sexual life otherwise he will bring call girls home and he will have sex with them in the presence of petitioner-wife.

(5) The respondent was always suspicious and teased the petitioner and the respondent doubted each and every act of the petitioner and also the respondent refused to purchase necessary provisions for the family.

(6) On 25.4.2003, the respondent-husband forced the petitioner-wife for sex in the early morning and when she was not willing, the respondent assaulted her severely and threw her from matrimonial home by saying that she was not useful for his sexual life and also asked to bring Rs.2 lakhs from her parents otherwise he will not accept her.

(7) On 27.4.2003, when the petitioner-wife was standing in Villivakkam Railway Station, the respondent shouted at her in most indecent manner by using unparliamentary words and hence the petitioner-wife returned back home and took her brother to escort her to reach her work place and on the same day, after the petitioner-wife left the house, the respondent’s father and brother entered the petitioner-wife’s parents house and abused them in filthy language and threw chappals on the petitioner-wife’s parents and therefore the petitioner-wife lodged a complaint on 28.4.2003 with W.5 All Women Police Station.

24. The learned counsel for the appellant/respondent has relied on the following decisions:

“1. DR.N.G.DASTANE Vs. MRS. S. DASTANE (AIR 1975 SC 1534)

2. P.ABIRAMI Vs. D.E. TAMILARASAN (2012 (2) CTC 607) and

3. SAMAR GHOSH Vs. JAYA GHOSH (2007 (3) CTC 464)”

and contended that the burden of proof lies only on the petitioner to establish her case and also contended that mere trivial irritations, quarrels and normal wear and tear of married life, which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty and the petitioner has not pleaded with material particulars like date and month and also not pleaded and proved the specific acts of cruelty and therefore the petitioner-wife is not entitled to the relief of divorce on the ground of cruelty.

25. Per contra, the learned counsel for the petitioner-wife relied on the following decisions:

“1. SATISH SITOLE Vs. SMT. GANGA (AIR 2008 SC 3093)

2. SAPNA Vs. B. PRADEEP KUMAR (MANU/TN/0823/ 2012 = II (2012 DMC 35)

3. VISHWANATH S/O SITARAM AGRAWAL Vs. SAU. SARLA VISHWANATH AGRAWAL (MANU/SC/0513/2012) and

4. SAMAR GHOSH Vs. JAYA GHOSH (2007 (3) CTC 464)”

and would submit that the petitioner-wife has clearly stated the incidences of mental and physical cruelty in the petition and also the petitioner has testified the above said facts at the time of evidence and further submitted that the marriage between the petitioner and the respondent was solemnised on 26.1.1996 and on 25.4.2003 onwards the petitioner and respondent were not living together and the petition was filed on 14.5.2003 and it would not be possible for them hereafter to live as husband and wife unitedly and the marriage between the petitioner and the respondent had completely broken down beyond repair and therefore it is a clear case of irretrievable break down of marriage between the parties and therefore the petitioner-wife is entitled to obtain a decree of divorce and the trial Court has correctly dissolved the marriage by granting divorce on the ground of cruelty.

26. In the decision relied on by the respondent-husband in DR.N.G.DASTANE Vs. MRS. S. DASTANE (AIR 1975 SC 1534), it is observed in para No.23 as under:

“23. …. First, as to the nature of burden of proof which rests on a
petitioner in a matrimonial petition under the Act. Doubtless, the
burden must lie on the petitioner to establish his or her case for,
ordinarily the burden lies on the party which affirms a fact, not on
the party which denies it. This principle accords with commonsense as
it is so much easier to prove a positive than a negative. The
petitioner must therefore prove that the respondent has treated him
with cruelty within the meaning of Section 10(1)(b) of the Act. “

In the above said decision, the Honourable Supreme Court has clearly laid down the principle that the burden of proof lies on the petitioner to establish his or her case and therefore the petitioner must prove that the respondent has treated her with cruelty.

27. The learned counsel for the respondent-husband has relied on another decision of a Division Bench of this Court in P.ABIRAMI Vs. D.E. TAMILARASAN (2012 (2) CTC 607), in which, para 16 reads as under:

“16. As far as the allegation of mental cruelty is concerned, as
rightly submitted by the learned counsel for the Appellant, the acts
alleged against the Appellant, which according to the Respondent,
amounts to causing mental cruelty, have not been pleaded with
material particulars like the date and month. No specific acts which
amounted to causing mental cruelty have been pleaded with material
particulars. Only general allegations have been made against the
Appellant by the Respondent in the Petition. In the Petition before
the Court below, it has not been stated that due to the Appellant’s
higher education and wealth and due to superiority complex what was
the nature of the behaviour and what was the activity of the
Appellant, which caused mental cruelty to the Respondent. Though it
has been alleged in the Petition that the Appellant failed to act as
a dutiful wife from the date of marriage till the date she left the
matrimonial home, the Petition is silent as to what was the duty that
was not performed by her.”

In the above decision, this Court has clearly held that as far as the allegation of mental cruelty, the alleged acts have not been pleaded with material particulars like date and month and no specific acts which amounted causing mental cruelty have been pleaded with material particulars and only general allegations have been made and therefore this Court has set aside the decree of divorce granted on the ground of mental cruelty.

28. Further, in the decision of the Honourable Supreme Court in SAMAR GHOSH Vs. JAYA GHOSH (2007 (3) CTC 464), relied on by both the learned counsel for the petitioner/wife and the respondent/husband, it is held in para 74 as under:

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

In the above said decision, the Honourable Supreme Court has held that mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

29. In the instant case, the petitioner-wife has filed petition for divorce on the ground of cruelty and therefore as per the law laid down by the Honourable Supreme Court in the above decision relied on by the respondent/husband, the petitioner/wife has to prove the alleged incidences of cruelty by adducing reliable evidence.

30. Admittedly, to prove the above said incidences of cruelty, on the side of the petitioner/wife, she has not examined any other witness except the interested testimony of the petitioner. Further, on the side of the petitioner, she has marked the marriage invitation as Ex.P1, marriage photo as Ex.P2 and the copy of alleged police complaint dated 28.4.2003 as Ex.P3, given by the petitioner 16 days prior to filing of the petition for divorce and copy of receipt dated 29.4.2003 as Ex.P4 and therefore the oral testimony of the petitioner alone is available to prove the alleged incidences of cruelty. On the side of the respondent/husband, to falsify the contention of the petitioner, the respondent has deposed as RW.1 and also marked Exs.R1 to R13. Admittedly, the marriage was solemnised after six months of betrothal and both the petitioner and respondent’s parents’ houses are situated nearby. Further, the petitioner herself has admitted in her evidence that the petitioner and respondent were not living along with other family members and immediately after marriage, a separate portion was allotted for them and the parents of the respondent and one brother of the respondent viz. Ravikumar were living in another portion and another elder brother of the respondent viz. Kirubakaran was living in upstair portion separately and both the petitioner and the respondent were living only for six months in the above said house and then constructed a new house and lived separately.

31. Further, it is an admitted fact that the respondent’s father viz. Appadurai is a retired Railway employee and getting his pension and also having agricultural lands. It is also revealed that the elder brother of the respondent viz. Kirubakaran is a technically qualified person and he was working in private concern at Ambattur Industrial Estate. Further the petitioner has admitted in her evidence that there is no quarrel between her and the parents of the respondent while living separately in respondent’s parents’ house and after shifting to new house also, the parents of the respondent came there and the petitioner and respondent also used to visit the respondent’s parents’ house and also admitted that even after vacating the house, only the brother of the respondent viz. Kirubakaran was living in the portion and not rented out to anybody. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

32. In the above circumstances, on the side of the petitioner, she has not stated any specific incident of demanding money from the petitioner by the family members of the respondent, particularly, by the respondent’s elder brother Kirubakaran. Therefore the allegations of the petitioner that the respondent’s father has chosen the petitioner only in the interest of her income from employment and the entire family of the respondent was depending upon the income of the respondent are not proved by reliable documentary evidence except the interested testimony of the petitioner and as rightly contended by the learned counsel for the respondent, the particulars of demand of money from the petitioner like date, month etc. are not stated in the petition and also not deposed at the time of evidence by the petitioner and therefore the above said incidences of cruelty alleged by the petitioner are not proved.

33. The second and third incidences of cruelty alleged by the petitioner are that the respondent had beaten the petitioner black and blue everyday for not asking money from her parents at the time of purchasing the house at No.49, Janagiram Reddy Colony, Villivakkam and also the respondent went to the extent of dashing the head of the petitioner on the wall by holding her hair in his hands and tortured the petitioner and hence the petitioner requested her parents, who helped by giving Rs.1 lakh from the pension and the respondent and his parents humiliated the petitioner and beaten severely. To prove the above said allegations, except the oral testimony of the petitioner, there is no other oral and documentary evidence. The petitioner has not stated any reason for non-examining the parents of the petitioner to prove the above said demand of money and payment of Rs.1 lakh amount as demanded by the respondent. Further, a perusal of oral evidence of the petitioner reveals that she has deposed completely contradictory with the averments in the petition. In one place, she has stated that before registering document, as demanded by respondent, Rs.25,000/- and after that another Rs.25,000/- was given by her mother and Rs.50,000/- was given by her father and totally Rs.1 lakh was given and after retirement, her father had given Rs.50,000/- i.e., after 2002. The above said fact is not stated in the petition. The same petitioner had again deposed contrary to the above said fact that at the time of purchase of the above said house, the father of the petitioner has not given any amount and only after retirement, he has given amount to the respondent. Admittedly, the above said flat purchased in the year 1998 and the father of the petitioner was retired only in the year 2002 and hence out of retirement benefits, Rs.1 lakh was given to purchase flat is proved as false. The parents of the petitioner alone are competent persons to speak about the facts but they were not examined by the petitioner. Therefore a perusal of oral testimony of the petitioner reveals that the petitioner has falsely deposed about the demand of money as alleged in the petition. The learned counsel for the respondent has further submitted that in the year 1998, the flat was purchased for Rs.4,65,000/- by availing housing loan for Rs.3 lakhs on 5.8.1998 from respondent’s bank under the capacity of an employee and to prove the same, Ex.R2 loan sanction letter has been marked and the respondent has availed Rs.75,000/- from Ind Bank Housing Limited on 17.8.1998 and to prove the same, Ex.R3 was marked and the petitioner’s mother gave hand loan of Rs.50,000/- and the respondent’s father gave hand loan of Rs.40,000/- and the respondent has repaid the hand loan of the petitioner’s mother and also the respondent’s father on instalment basis. The oral and documentary evidence adduced by the respondent reveal that the allegation of the petitioner that Rs.1 lakh was paid for purchase of the above said flat is false and therefore the alleged second and third cruelties are not proved.

34. With regard to fourth and fifth incidences of cruelty are concerned, except the oral testimony of the petitioner, no other evidence was adduced to prove the above said allegations.  The learned counsel for the petitioner would contend that the above said incidences happened between the husband and wife and therefore the petitioner alone is competent to speak about the said fact. Per contra, the learned counsel for the respondent has submitted that if really the above said incidences happened, certainly the petitioner would have informed her parents or relatives or co-workers, but in this case, except the petitioner nobody was examined to prove the above said allegations.

35. Further, the petitioner has stated in her evidence that the respondent assaulted the petitioner and caused injuries and taken treatment in the hospital but she has not produced any document and not examined the doctor or parents of the petitioner or neighbour to prove the above said incident. It is further contended that the petitioner was forced to collect money from her parents and the respondent has beaten black and blue everyday for not asking money from her parents and also alleged that the respondent, his brother and father have jointly humiliated and harassed the petitioner to ask for money from her parents and also encouraged the respondent to beat the petitioner to collect money from her parents. The above allegations are all not proved by adducing reliable evidence. Therefore the fourth and fifth incidences of cruelty are not proved by the petitioner as rightly contended by the learned counsel for the respondent. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

36. With regard to sixth and seventh incidences of cruelties are concerned, except the oral testimony of the petitioner, no other evidence like parents, brother, neighbour, co-worker who are competent witnesses was adduced to prove the above said allegations. As already discussed, the marriage between the petitioner and the respondent was held on 26.1.1996 and they were living as husband and wife till 25.4.2003. During the above said period, no complaint of any harassment or any complaint to the police was filed and therefore as contended by learned counsel for appellant/respondent the above said allegations have been made in the petition only for filing the petition for divorce and therefore the above said sixth and seventh cruelties are also not proved.

37. The Trial Court, only relying on the oral testimony of the petitioner, who is interested witness, granted divorce as if the alleged incidences were proved. The Trial Court has not considered the contentions of the respondent and the oral and documentary evidence adduced on the side of the respondent to disprove the contentions of the petitioner. Therefore, a careful reading of oral and documentary evidence adduced by both sides reveal that the petitioner has not proved the alleged incidences of cruelty by reliable oral and documentary evidence, but the Trial Court has wrongly held that as if the petitioner has proved the alleged incidences of cruelty.

38. At the time of argument before this Court, the learned counsel for the petitioner has contended that the marriage was held on 26.1.1996 and from 25.4.2003 onwards both husband and wife were not living together and therefore the marriage between the petitioner and the respondent has completely broken down beyond repair and it is a clear case of irretrievable break down of marriage between the parties and on that ground, he prayed for divorce. To substantiate the above said contention, he relied on two decisions as already stated. In the decision reported in SATISH SITOLE Vs. SMT. GANGA (AIR 2008 SC 3093), the Honourable Supreme Court has observed in para 12 as under:

“12. In the said circumstances, following the decision of this Court in Romesh Chander’s case (supra) we also are of the view that since the marriage between the parties is dead for all practical purposes and there is no chance of it being retrieved, the continuance of such marriage would itself amount to cruelty, and, accordingly, in exercise of our powers under Article 142 of the Constitution we direct that the marriage of the appellant and the respondent shall stand dissolved, subject to the appellant paying to the respondent a sum of Rupees Two lakhs by way of permanent alimony. In addition, the appellant shall also pay the costs of this appeal to the respondent assessed at Rs.25,000/-. The appeal is disposed of accordingly.”

39. As rightly contended by the learned counsel for the respondent, the Honourable Supreme Court has exercised the power under Article 142 of the Constitution and held that since for 14 years the appellant and respondent lived separately and all attempts for re-union failed, the marriage has been broken down irretrievably and dissolved the marriage in the above decision.

40. In another decision in SAPNA Vs. B. PRADEEP KUMAR (MANU/TN/0823/ 2012 = II (2012 DMC 35), relied on by the learned counsel for the petitioner, this Court also held that the marriage between the wife and husband has completely broken down beyond repair and it is clear case of irretrievable break down of marriage between the parties and therefore granted divorce.

41. In the instant case, the marriage was held on 26.1.1996 and both the respondent and petitioner were living together till 25.4.2003 as husband and wife and out of the said wedlock, they have two children. On the side of the petitioner, she has not proved the fact that the marriage has broken down irretrievably and on that ground alone the petitioner is not entitled to divorce.

42. From the above discussion, we are of the view that the petitioner/wife has not proved the alleged incidences of cruelty by her husband by adducing reliable evidence and the Trial Court has erroneously held that the alleged incidences of cruelty were proved and granted divorce and therefore the above said order of the Trial Court on the ground of cruelty is liable to be set aside.

43. We are also of the considered view that the petitioner wife is not entitled to any amount as permanent alimony since the petition filed by the petitioner/wife for divorce is not maintainable as already discussed in earlier paragraphs. Therefore the petitioner is not entitled for permanent alimony as prayed for in the petition and we answer the points accordingly.

44.  In the result, the Civil Miscellaneous Appeal is allowed and the order and decretal order dated 27.10.2009 passed by the          Trial Court in F.C.O.P.No.918  of 2003  are set aside and the petition in  F.C.O.P.No.918  of 2003  is dismissed.   Considering the relationship of the parties, there shall be no order as to costs.  Connected  MP.No.1 of 2010 is  closed.

(C.N.J.)          (R.K.J.)
16.8.2012
Index   : yes

Internet: yes

vks

Copy  to:

The Registrar,
Family Court,
Chennai.

C.NAGAPPAN, J.

and

R.KARUPPIAH, J.

vks

Pre-delivery Judgment in
C.M.A No.887 of 2010
and
MP.No.1 of 2010

16.8.2012.

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