Tag Archives: cruel wife

#Wife #convicted of murdering 3 children files #false #dowry case. Husband wins #divorce on #cruelty. SCC

Classic case where #matrimonial #cruelty is discussed; Smt. #Mayadevi vs #Jagdish #Prasad on 21 February, 2007; #Supreme #Court of India

A married woman, mother of four kids acts cruelly to her children, keeps them tied with ropes, does NOT even feed the husband, borrows monies and refused to repay the same and finally #kills #three of her children #throwing them into a #well !! She is arrested and #convicted u/s #302IPC. She filed an application for bail. While on bail, she filed a false case alleging dowry demand against the respondent-husband and his family members. Final report was given by police and it was observed that a false case had been lodged. However husband wins divorce on grounds of crulety. Supreme court affirms the same !!

This case establishes that proof beyond reasonable doubt is NOT required in matrimonial disputes: The concept of proof beyond the shadow of doubt is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence. Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial matters.

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Supreme Court of India

Smt. Mayadevi vs Jagdish Prasad on 21 February, 2007

Author: . A Pasayat

Bench: Dr. Arijit Pasayat, Dalveer Bhandari

CASE NO.: Appeal (civil) 877 of 2007

PETITIONER: Smt. Mayadevi

RESPONDENT: Jagdish Prasad

DATE OF JUDGMENT: 21/02/2007

BENCH: Dr. ARIJIT PASAYAT & DALVEER BHANDARI

JUDGMENT:

J U D G M E N T (Arising out of SLP (C) NO. 3686 OF 2006) Dr. ARIJIT PASAYAT, J.

Leave granted.

Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Rajasthan High Court at Jodhpur dismissing the appeal filed by the appellant under Section 28 of the Hindu Marriage Act, 1955 (in short the ‘Act’).

Background facts in a nutshell are as follows:

Respondent filed an application for divorce on the ground of cruelty alleging that because of the acts of cruelty on several occasions perpetuated by the appellant, the respondent- husband was under apprehension that it would not be desirable and safe to stay with the appellant and to continue their marital relationships.

It was, inter-alia, stated in the divorce petition as follows:

Parties got married according to the Hindu rites on 17.4.1993. The appellant’s father was an employee in the Railway department and the appellant used to make demands for money frequently and used to quarrel when money was not paid. She did not even provide food to her husband or the children and used to threaten the husband to falsely implicate him in a case of dowry demand and to kill the children and to put the blame on the respondent-husband and his family members. On 23.10.1999 she took Rs.1,05,000/- from the respondent and acknowledged the receipt of the money in the diary of the respondent-husband. She used to borrow money from time to time at the behest of her parents. From the wedlock four children were borne namely, Neha, Anu, Khemraj and Vishnu Sagar. The appellant used to keep the children tied by ropes and she attempted to throw them down from the rooftop and used to physically torture them. She was temperamentally very cruel and used to behave cruelly with the children also. She always used to threaten that she will destroy the whole family of the respondent and that there would be no successor left in the family. On 5.4.2002 at about 12.00 noon she left her parental home alongwith three children namely, Neha, Anu and Khemraj on the pretext that she was going to her parental house which was located in the same village. Since she did not return till evening as was told to the respondent-husband, he started searching for her. During course of search the garments and slippers of the children and the appellant were found lying near the well of Ramialji. Police was informed and on search dead bodies of the three children were recovered from the well and appellant was also taken out of the well. A criminal case was instituted and she was convicted for an offence under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’). She was pregnant at that time and subsequently delivered a child. She filed an application for bail. While on bail, she filed a false case alleging dowry demand against the respondent-husband and his family members. Final report was given by police and it was observed that a false case had been lodged. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

The appellant filed her response to the petition for divorce and contended that no amount was borrowed by her father or any of her family members. The respondent-husband used to threaten her for dowry and she had never perpetuated any cruelty so far as the children and the husband are concerned. She did not know as to how the children fell into the well. She was herself unconscious and recovered after about four days. The husband, in fact, turned her out of matrimonial home on 5.4.2002 alongwith their three children. Unfortunately, she and the three children fell into the well. The appeal is pending against her conviction. The trial Court found that the allegation of cruelty was established. Several instances were noted. One of them related to her behaviour on the date of judgment in the criminal case. After the judgment of conviction was pronounced, she threatened to kill the husband and prosecute him. It was also noted by the trial Court that the allegation made by her alleging for dowry demand was dis-believed and the police gave final report stating that the case was falsely lodged. The trial Court granted the decree of divorce which was, as noted above, confirmed by the High Court in appeal by dismissing appellant appeal.

Learned counsel for the appellant submitted that the foundation of decree for divorce is the alleged conviction for which the appeal is pending and, therefore, the High Court should not have disposed of the matter. In any event, it is submitted that it was the husband and his family members who were torturing her and being threatened by the husband she had not made any grievance with the police. Unfortunately, when she made the allegation, the police did not properly investigate the matter and gave a final report exonerating the husband.

Learned counsel for the respondent on the other hand submitted that the instances highlighted by the trial Court and analysed in great detail by the High Court clearly made out a case for dowry and no interference is called for in this appeal.

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 wilful 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. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.

The 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 or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or 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 (See Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121 and A. Jayachandra v. Aneel Kaur 2005 (2) SCC 22 ).

To constitute cruelty, the conduct complained of should be “grave and weighty” so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tear of married life”. The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse’s conduct have to be borne in mind before disposing of the petition for divorce. However insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.

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, AIR 1975 SC 1534). http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

The instances of cruelty highlighted by the trial Court and also by the High Court clearly prove that the husband was subjected to mental and physical cruelty. It is not a fact as submitted by learned counsel for the appellant that the conviction in the criminal case was the foundation for the decree. On the contrary, the trial Court clearly mentioned that the aspect was not taken note of as the appeal was pending.

In view of what has been stated above, the inevitable result is dismissal of the appeal which we direct. There will be no order as to costs.

Wife left 12 years ago. All accused in DOWRY case DISCHARGED !! Still NO divorce for man!

husband-wife-quarrel

When I tell ppl that A MAN filing for divorce is taking a gamble and that could be costly and FUTILE, ppl just laugh at me !! Now guys tell me what this is ???

“…In his plea, the husband argued that since he and his wife had been living separately for the past 12 years, he should be allowed to end his marriage. ……”

“…On her part, the wife claimed she was harassed for dowry but HC found that everyone was discharged for lack of evidence by the trial court…”

No proof wife’s cruel, divorce plea junked

 

TNN | Sep 10, 2016, 01.02 AM IST

New Delhi: A man living separately from his wife for over a decade failed to get a divorce from the Delhi high court after he couldn’t prove that his wife was cruel.

A bench of Justices Pradeep Nandrajog and Pratibha Rani dismissed the appeal filed by the husband, pointing out that divorce can’t be granted merely on the grounds that a marriage is dead and there has been a breakdown.

“We know that the parties have been living separately for the past 10 years. Efforts made at different levels by the family court could not resolve the issue. Parties may claim that the marriage has broken down irretrievably as they could not reconcile themselves but the question is whether this is reason enough to be granted divorce. The answer is no according to the decision of the apex court,” the bench noted, refusing relief.

In his plea, the husband argued that since he and his wife had been living separately for the past 12 years, he should be allowed to end his marriage. The man had filed a petition seeking dissolution of marriage on account of cruelty.

But the trial court, on the basis of evidence, concluded that the accusations of cruelty against the wife could not be proved.

“We have no hesitation to conclude that the instances given by him are nothing but normal wear and tear in a matrimonial life, which cannot constitute mental cruelty and aren’t weighty enough to dissolve the marriage,” the court said.

On her part, the wife claimed she was harassed for dowry but HC found that everyone was discharged for lack of evidence by the trial court.

“What actually led the wife to separate from her husband along with her daughter is something only the couple knows,” HC noted.

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Un proven criminal cases, wild allegations, is cruelty ! Divorce even before 498a decreed !!

Husband files restitution case on wife requesting her to return to matrimony. Once the notice is served on wife, she unleashes a 498a, 406, CrPC 125 etc cocktail on husband (circa year 2002). She is unable to prove any of the allegations. The Hon Allahabad HC notices that “….Admittedly during this period, respondent had not only levelled wild allegations of cruelty etc. but had also initiated criminal proceedings due to which petitioner and his family members had to be released on bail in criminal cases. Admittedly, said criminal proceedings are still continuing and being prosecuted by respondent. In written-statrment the respondent had declined to live with husband…” categorically states that such false allegations and criminal case tantamount to cruelty on the husband and grants divorce !!


HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Court No. – 19

Case :- SECOND APPEAL No. – 844 of 2006

Appellant :- Narayan Prasad Saraswat

Respondent :- Smt. Shaifali @ Muniya

Counsel for Appellant :- M.K. Gupta, Pankaj Agarwal

Counsel for Respondent :- D.K. Dwivaedi

Hon’ble Pramod Kumar Srivastava, J.

  1. At the time of hearing only counsel for the appellant was present. None was present on behalf of respondent even in cause list was revised. This appeal had already been admitted, but at that time substantial question of law was not framed. Heard arguments of learned counsel for the appellant.
  2. Original suit Matrimonial Petition no. 397/2002 (Narayan Prasad Saraswat v. Smt. Shaifali @ Muniya) was initially filed for the relief of restitution of conjugal rights. After it some criminal case was instituted by opposite-party (wife Smt. Shaifali @ Muniya). Then plaint was amended for the relief of divorce on ground of desertion, adultery and cruelty.
  3. In written-statement filed in trial court, O.P.- Smt. Shaifali @ Muniya had admitted her marriage with petitioner and pleaded that petitioner and his family members had been treating her with physical and mental cruelty. She had not committed any cruelty. The petitioner had tortured her by beating her and by demanding dowry. So she is not ready to live with her husband-petitioner. The petitioner had evicted her from his house and had filed suit on incorrect facts; therefore petition is liable to be dismissed.
  4. After framing issues and accepting evidences of the parties, the Civil Judge, S.D. (/J.S.C.C.), Aligarh had dismissed the divorce petition. The trial court had given finding that although it is admitted that criminal case was initiated by O.P. against the petitioner and his family members, who had been released on bail, but said criminal cases did not amount to desertion or cruelty. Trial court had found that in written-statement the O.P. had pleaded that she is not willing to reside with husband-petitioner, and although several attempts of mediation and reconciliation between parties had failed, but learned Civil Judge has also given finding that petitioner had failed to prove the grounds of desertion, adultery or cruelty, therefore divorce petition is dismissed.
  5. Aggrieved by the judgment of trial court, Civil Appeal no. 41/2006 (Narayan Prasad Saraswat v. Smt. Shaifali @ Muniya) was preferred which was heard and dismissed by the judgment dated 14.08.2006 of Additional District Judge, Court No.-2, Aligarh. Lower appellate court had held in this judgment that during evidence O.P.-wife had file affidavit to the effect that she is willing to continue her matrimonial relationship with her husband, and the petitioner-appellant had failed to prove that irretrievably broken. With these findings, first appellate court had confirmed the finding of trial court and dismissed the first appeal.
  6. Aggrieved by the judgment of trial court, as well as of the first appellate court, present second appeal has been preferred by petitioner of the original case.
  7. Present appeal has been admitted but at that time substantial question of law was not framed, which is framed as under: “Whether the marriage of the parties had irretrievably broken due to desertion, adultery and cruelty; and otherwise finding of the lower courts are erroneous and perverse ? If so its effect ?”
  8. Learned counsel for the petitioner-appellant contended that in her written-statement she is not ready to live with her husband-petitioner, and several proceedings of mediation and reconciliation between parties, and attempts of courts in this regard had failed. Respondent had committed cruelty by lodging several false criminal cases against the appellant and his family members and by leveling false allegations in her pleading, parties are living separately for last about 15 years and there is no chance of their compromise or living together; therefore appeal should be allowed for the decree of divorce.
  9. In present matter petitioner-appellant had filed suit for the relief of restitution of conjugal rights with O.P.-respondent on 01-05-2002, but when summons of this case was served then O.P.-wife had filed several criminal cases for cruelty due to dowry demand and manhandling for offences u/s 498-A, 323 IPC & section ¾ Dowry Prohibition Act, case of maintenance u/s 125 CrPC, criminal complaint case u/s 406, 109 IPC. The burden of proving the fact of expelling wife-O.P. by petitioner without any sufficient reason is on wife- O.P. (complainant) because negative facts cannot be proved. It is the respondent-wife who has been alleging such facts, therefore the burden of proving these facts were on her, and in absence of any such evidence, the plea of desertion and living separately by her without sufficient reasons should have been accepted by lower courts.
  10. The petition of divorce was filed on three grounds. The first was desertion and second was cruelty. So far as the first point of desertion is concerned, it is admitted fact that petitioner-appellant had filed original suit no. 397/2002 against his wife-respondent u/s 9 of the Hindu Marriages Act for restitution of conjugal rights. During pendency of said proceedings, he amended the original suit for divorce under Section 13 of the Hindu Marriage Act. There has been no finding of any of the lower court that during pendency of original suit, the parties were willing to live together together. On the contrary it was found that initially petitioner-appellant was willing to live with respondent-wife, but when she started filing several criminal cases then he amended the suit for the relief of divorce. It is pertinent to mention that in her written-statement O.P.-respondent had specifically declined to live with husband-appellant. The differences between the parties from the beginning and their living separately for more than 14 years is admitted fact, but there is no evidence that respondent was expelled from house of appellant or that she is residing separately for any sufficient reason. This proves the ground of desertion as required u/s 13 of Hindu Marriage Act.
  11. Apart from it, in matrimonial disputes propriety of the things should also be specially considered. In present matter, according to the petitioner the parties are living separately from 19-08-2001, and according to respondent-wife they are living separately since 2002. Thus, admittedly parties are living separately for many years. Admittedly during this period, respondent had not only levelled wild allegations of cruelty etc. but had also initiated criminal proceedings due to which petitioner and his family members had to be released on bail in criminal cases. Admittedly, said criminal proceedings are still continuing and being prosecuted by respondent. In written-statrment the respondent had declined to live with husband, , and several mediation and reconciliation proceedings between parties has also failed. These facts make it explicitly clear that there appears no chance of reconciliation between the parties who have developed feelings of ill will, hatred, antagonism and animosity; and the respondent is prosecuting the criminal case for conviction and incarceration of appellant and his family members.
  12. So far as another plea of cruelty in present matter is concerned, it has been not proved till now that petitioner had treated the respondent-wife with cruelty or had committed unnatural sexual activities with her as pleaded in written-statement. The burden of proving such facts lies on the person who has asserted these facts, that is, respondent-wife, but these facts could not be proved till now. Leveling wild allegation and prosecuting proceedings for conviction of husband as well in-laws for sending them in jail amounts to cruelty.
  13. The word ”cruelty’ has not been defined anywhere in the Act. The word appears to have been used in the Section 13 of Hindu Marriage Act in context of human behaviour in relation to or in respect of matrimonial obligations or duties. Cruelty can be termed as behaviour or conduct of one spouse which adversely affects the other. Thus broadly speaking ‘‘cruelty’ as a ground for the purpose of divorce under Section 13(1)(i-a) can be taken as a behaviour of one spouse towards the other which causes reasonable apprehension in his or her mind that it is not safe to continue the matrimonial relationship. Cruelty can be physical or mental or even intentional or unintentional. The mental cruelty is difficult to establish by direct evidence. It is a matter of inference to be drawn from facts and circumstances of the case. A feeling of anguish and frustration in one spouse caused by the conduct of other can be appreciated on the assessment of facts and circumstances in which the two of them have been living. The inference has to be drawn from overall facts and circumstances considered cumulatively. The allegation of criminal mis-appropriation of stridhan, dowry demand and physical torture made by the respondent-wife against the appellant husband in her written statement, is nothing but mental cruelty of such a nature that appellant husband cannot be reasonably asked to live with the wife. The allegation of serious nature, and as stated above, constitutes grave assault on the character, honour and reputation of husband. Such allegations amount to cruelty entitling the petitioner to a decree of divorce. It cannot be doubted that the appellant-husband must have suffered traumatic experience because of the criminal proceedings against his father, mother and himself. The arrest and getting bailed out for criminal offences must have resulted in the loss of reputation and prestige of the husband and his family in the society. The mental agony of being arrested and detention in a criminal case resulting into loss of reputation and prestige in the society would also amount to cruelty.
  14. In V. Bhagat v. D. Bhagat, (1994) 1 SCC 337 the Apex Court had held: “Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”
  15. In Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, (2003) 6 SCC 334 the Apex Court had held as under:
    • “7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. – – –
    • 8. The allegations made in this case do not appear to have been the result of any sudden outburst. On the other hand, such injurious reproaches, accusations and taunts as were found to have been made in this case lend credence to the fact that the husband was persisting in them for sufficiently a long time humiliating and wounding the feelings of the wife to such an extent as to make it insufferable for the wife to live in matrimonial home any longer with the husband. – – – –
    • 11. That apart, in our view, even the fact that the application for amendment seeking for deletion of the accusations made in the written statement was ordered and amendments carried out subsequently does not absolve the husband in this case, from being held liable for having treated the wife with cruelty by making earlier such injurious reproaches and statements, due to their impact when made and continued to remain on record. – – – – A conscious and deliberate statement levelled 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.”
  16. Mental cruelty and its effect cannot be stated with arithmetical accuracy. It varies from individual to individual, from society to society and also depends on the status of the persons. What would be mental cruelty in the life of two individuals belonging to a particular stratum of the society may not amount to mental cruelty in respect of another couple belonging to a different stratum of society. The agonized feeling or for that matter a sense of disappointment can take place by certain acts causing a grievous dent at the mental level. The inference has to be drawn from the attending circumstances.
  17. In present matter living separately of the parties for long time, prosecution and incarceration in criminal case of appellant, the agony and humiliation suffered, charging him with serious allegations and others family members and still facing prosecution for conviction and apprehension of incarceration amounts to cruelty to appellant.
  18. The third ground for divorce taken by petitioner-appellant was that of adultery. Section 497 IPC reads- “whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery”. In this regard trial court had given finding that when Smt. Kamlesh saw her husband during physical relationship with respondent (Smt. Shaifali @ Muniya) then she (respondent) was not married. So at the relevant time respondent was un-married, therefore this allegation of involvement in adultery after marriage of respondent was rightly held not proved by lower courts.
  19. On the basis of above discussion and considering the facts and circumstances of this matter, it appears that relationship of parties had been deteriorated to the extent that there is no possibility of any reconciliation. Their relationship have reached to the point from where there appears no possibility of any harmonious conjugal relations or their being living together as husband and wife and discharging matrimonial duties.
  20. It would mean that apart from other problems that had come in their way, the main problem is the failure of matrimonial life. It would be seen that the appellant had not immediately rushed to sever his marital relations with the respondent. He had sufficiently waited for long time to see whether there would be any improvement in the relations with respondent and for the same reason he had filed petition u/s 9 of Hindu Marriage for restitution of conjugal rights. Having found no hope, he chose to file suit for divorce. In her pleading respondent refused to live with appellant. Even the mediation proceedings between the parties have failed. Therefore, it could safely be concluded that the appellant having tried all means to sustain the marital relations but having found that it was impossible for the respondent to gain such relationship, he had chosen to live apart from the respondent by moving petition for divorce. Therefore, there was sufficient ground for the husband-appellant to get relief of divorce.
  21. In addition to legal errors as discussed above, the two lower courts have not considered these important material points at the time of deciding the matrimonial disputes, which amounts to infirmity and perversity in their judgments. Considering past experiences I am convinced that any further attempt at reconciliation will be futile and it would be in the interest of both the parties to sever the matrimonial ties since the marriage has broken down irretrievably. In light guidelines laid down by Apex court in Satish Sitole v. Ganga, (2008) 7 SCC 734 I am 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. This contention of appellant’s side is not unacceptable that the appellant’s marriage with the respondent had completely broken down with no hope of revival and compelling them to live together would be very harsh, insensitive and unjust. Therefore said impugned judgments being erroneous and perverse are liable to be set aside.
  22. Considering these facts, circumstances, the factum of living separately for many years and no possibility of any reconciliation, harmonious conjugal relations or future congenial matrimonial relations, it appears appropriate that when it is not possible for the parties to live together and to discharge their marital obligations towards each other, then there is no reason to continue their agony. Therefore on the basis of the forgoing discussion, the decree for dissolution of marriage should be granted on the ground of desertion and mental cruelty. The above substantial question of law is decided accordingly.
  23. Accordingly the appeal is allowed. The impugned judgments dated 24.04.2006 and 24.08.2006 of the lower courts are set aside and matrimonial original suit no. 397/2002 (Narayan Prasad Saraswat v. Smt. Shaifali @ Muniya) for the divorce is decreed. The decree of divorce is granted, and it is directed that the marriage between the parties shall stand dissolved.

 

Order Date :- 18.04.2016 SR

Divorce 42 years after marriage. Wife seeks 1.5crore from 75 yr old hubby while she has crores. Bangalore HC

Divorce granted 42 years after marriage. Wife seeks 1.5crore from 75 yr old hubby while she has crores in shares and property. Classic Bangalore HC divorce case which husband WINS on grounds of cruelty and desertion by wife !!

In this sad case, a 75 year old man in his advanced age is fighting against his wife’s appeal (at HC) seeking 1.5 crores as permanent alimony. There are claims and counter claims, but it is on record that (a) wife has filed (MC) cases alleging that husband had illicit relations with his own employee and (b) she has made a suicide attempt and had to be hospitalised after consuming huge dose of sleeping tablets. Husband also alleges that she was the cause of his business failure. Wife cross-alleges husband sold his ancestral house and took away part of the proceeds, but the wife is not convincing in her cross examination replies as well, leading the Hon HC to doubt her claims of living under one roof with this husband (i.e.) thus accepting husband’s claim of desertion. Finally the Hon Bangalore HC confirms the divorce and directs her to approach lower court for maintenance

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 17TH DAY OF FEBRUARY 2016

PRESENT

      THE HON’BLE MR.JUSTICE N K PATIL
AND
      THE HON’BLE MRS.JUSTICE S SUJATHA

MFA No.10709/2011 (FC)

BETWEEN

Rupa Mahajan
W/o Satish Mahajan
Aged 57 years
Presenty Residing at
No.011, ‘B’ Block
Sterling park Apartments
Kodigehalli Main Road
Sanjeevinagar
Bangalore-560 092.                     ….Appellant
(By Sri.S.S.Ramdas, Senior Advocate for M/s. Sundara swamy & Ramdas Associates)

AND

Satish Mahajan
S/o Late D.R.Mahajan
Aged 67 years
Residing at
No.603 B St Johns Woods Apartments
80St John Cross Road
Bangalore-560 029.                …Respondent
(By Sri.J.Kanikaraj, Advocate)

This Appeal is filed under Section 19(1) of Family Courts Act, against the Judgment and Decree dated 30.06.2011 passed in M.C.No.1933/2008 on the file of 4th Additional Principal Judge Family Court, Bangalore, allowing the petition filed under Section 13(1) (ia) (ib) of Hindu Marriage Act for divorce and rejecting the prayer filed under Section 3.

This Appeal having been heard and reserved for Judgment on 05th February 2016, coming on for pronouncement of Judgment this day, S.Sujatha J., delivered the following

JUDGMENT

  1. This appeal is directed against the judgment and decree dated 30.06.2011 passed by the 4th Addl. Principal Judge, Family Court, Bangalore in M.C.No.1933/2008, allowing the petition filed by the respondent for dissolution of marriage.
  2. The facts in brief are:- that the marriage between the appellant and respondent was solemnized as per Hindu Rites on 18.01.1974 at Chennai. It transpires that after their marriage, the respondent and appellant lived at No.58, Cunningham Road, Bangalore happily for a period of 16 years upto 1990. Their marriage was consummated and the couple were blessed with twins (sons) named Gaurav and Vaibhav in the year 1980. It is stated that both the appellant and respondent jointly purchased a land situated at No.328, 5th Main, 1st Block, Koramangala in the year 1990 and after constructing a house on the said land, they shifted their residence to the newly built house in 1990 and were residing therein. When the relationship between the parties was amicable, respondent along with his brother for the purpose of running a business, floated a company in the name of M/s Garments International Pvt. Ltd. Respondent along with his brother were the directors of the said company. However, subsequently, appellant, Gaurav and Vaibhav (sons) were inducted as Directors in the years 1990, 1998 and 2000 respectively. Due to the differences that developed between the appellant and respondent, the respondent filed M.C.No.1933/2008 before the 4th Addl. Principal Judge, Family Court seeking a decree of divorce under Section 13(1) (1a) and 13(1b) and (iii) of the Hindu Marriage Act, 1955 (the ‘Act’ for short). Appellant contested the matter. After considering the evidence placed by the parties, the Family Court allowed the petition under Section 13(1)(ia) and (ib) of the Act and rejected the petition under Section 13(1)(iii) of the Act. Being aggrieved by the said judgment and decree passed by the Family Court, the appellant is before this Court.
  3. Heard Learned Senior Counsel Sri. Ramdas for appellant as well as Sri.Kanikraj for respondent. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  4. The learned counsel for appearing for the appellant would contend that the Family Court failed to consider the evidence on record in a right perspective. Appellant herein had placed Exhibits R.1 to R.17 but the Family Court, ignoring the said documentary evidence has wrongly held that no appropriate evidence was placed by the appellant herein to discard the evidence of the respondent. The Family Court has not appreciated the true nature of cruelty and desertion alleged by the respondent to claim the decree of divorce under Section 13(1)(ia) and (ib) of the Act. Though the ground of mental disorder is held to be not proved, granting the decree of divorce to a marriage which subsisted for more than 33 years is totally unjustifiable and contrary to the well established principles of law enunciated by the Apex Court.
  5. It is submitted that the petition filed by the appellant seeking decree of divorce against the respondent in M.C.No.1325/1999, was only with an intention to draw the attention of the respondent towards her, in view of the assurances made by the respondent to take good care of her, the petition was unconditionally withdrawn in the year 2000 and pursuant to which both the parties lived together as husband and wife. The subsequent events which transpired pursuant to withdrawal of the petition MC.No.1325/1999 having been completely overlooked by the Family Court, proceeded to hold that the act of the appellant in filing M.C.No.1325/1999 against the respondent seeking decree of divorce, amounted to cruelty.
  6. It is further submitted that though initially, the company M/s Garments International Pvt. Ltd. was floated by the respondent for the purpose of running a business in exporting garments, the appellant and children were inducted as directors in the company who held their proportionate share in the company. The respondent without any reason borrowed huge amounts from banks, financial institutions and also from private parties which resulted in financial instability affecting the entire family. In order to have a hold in the financial transactions of the company, the appellant along with her children was constrained to interfere with the company’s financial affairs. Such action of the appellants was indeed in the interest of the family and to safeguard and protect the company’s interest which cannot be termed as mental cruelty against the respondent. The trial Court overlooking the rationale behind such acts, wrongly held such acts of the appellant has caused mental agony to the respondent.
  7. It is further submitted that the submission of the respondent that the parties lived separately since November 1999 is totally against the documents placed on record by the appellant. The appellant having led a happy marital life with the respondent for more than 33 years, had no intention to desert the respondent. Exhibits R1 to R17 placed on record proves that the appellant resided with the respondent. The respondent has not taken any interest in the family. The appellant alone out of her savings performed the marriage of their sons and the respondent had no courtesy even to participate in the marriage ceremonial functions. It is in fact, the respondent who has deserted the appellant and the family and not the appellant. The matrimonial house at Koramangala, Bangalore which was owned jointly by the parties was sold in the year 2007 for a consideration of Rs.3,52,00,000/- out of which only a meager sum of Rs.50,00,000/- was paid to the appellant and Rs.11,00,000/- to each of their children. No cogent evidence is placed on record by the respondent to establish the factum of desertion as claimed. The allegations made against the appellant that she is suffering from mental disorder is an act of the respondent to bring the institution of marriage to an end and to ruin the entire life of the appellant. Such a false allegation of mental disorder made by the respondent ipso facto proves the cruelty made by the husband towards the wife. No appeal is filed by the respondent on the dismissal of the petition under this ground. No desertion as required under the Act is proved by the respondent. In such circumstances, the Family Court allowing the petition filed by the respondent and granting a decree of divorce is totally unsustainable and seeks to set- aside the said judgment and decree of the Family Court.
  8. Learned counsel appearing for the appellant/wife has filed an application I.A.I/2015 seeking for maintenance in a sum of Rs.60,000/- per month from January 2007 till date and for future periods during the appellant’s life time or in the alternative to direct the respondent to pay the appellant permanent alimony in a sum of Rs.1.50 crores in the interest of justice. Placing arguments on this application filed under Section 25 of the Act, learned counsel would submit that during 2005 the mother-in-law of the appellant Smt.Leela Mahajan gifted her late husband’s house bearing No,58, Cunningham Road to the respondent. Immediately after receiving the gift the respondent negotiated to sell the said house and sold for about 2.25 crores. Thereafter, respondent had formed a private trust by name Satish Mahajan Family Welfare Trust, purchased an apartment in Prestige St.John’s wood Koramangala. A sum of Rs.60,00,000/- was paid for the purchase of the said apartment from out of the said sale proceeds of Cunningham Cross Road house. The balance of nearly Rs.1.65 crores is unaccounted and untraceable. The respondent though floated Satish Mahajan Family Welfare Trust for the benefit of the sons of the parties, till date no benefit has been extended despite the trust having money and securities in multiple crores, in ING Vysya Bank now known as Kotak Mahendra Bank, Koramangala, Bangalore. The respondent being a prudent businessman hailing from a business family, being in business for nearly 45 years and being a promoter/partner in Mahajan Borewell Company – a renowned borewell drilling Company in Karnataka, cannot now plead that he has married the second wife who is a doctor at St.John’s Hospital at Koramangala and is living on her money. The respondent has failed to discharge the responsibilities of a husband and as a father to his children. He has also not participated in any manner in the marriages of their sons Vaibhav’s in 2007 and Gaurav’s in 2013. The respondent has the benefit of nearly Rs.4.45crores being the balance from the sale of two houses, right form 2005 to 2007, till date. The respondent has earned interest and income from the said money for all these years.
  9. It is further submitted that the appellant is completely dependent on her dividend income accruing from the shares and securities amounting to Rs.12.00 lakhs as evident from the income tax returns and she has no other source of income. It is also submitted that with all the hope of getting re- united with the respondent, no maintenance application was filed during the petition proceedings. It is only after realizing that the respondent has contracted second marriage the application is filed in appeal proceedings. Accordingly, seeks to allow the application and to direct the respondent to make the payment towards the maintenance as claimed.
  10. In support of his contentions, learned counsel has placed reliance on the following Judgments: (1) Naveen Kohli vs. Neelu Kohli ((2006) 4 SCC 558) (2) A.Jayachandra vs Aneel Kaur ((2005) 2 SCC (3) Savitri Pandey vs.Prem Chandra Pandey (AIR 2002 SC 591) (4) Samar Ghosh vs. Jaya Ghosh ((2007) 4 SCC 511)
  11. Learned counsel appearing for the respondent justifies the judgment and decree passed by the Family Court and contends that the appellant filing M.C.No.1325/1999, seeking for divorce against the respondent making false allegations that the respondent had an affair with Smt.Geetha Srinivasan, an employee of M/s Garments International Company, had lowered the status of the respondent in the society besides causing mental trauma and agony. Such wild allegations made against the respondent were baseless.
  12. Further, the appellant interfering with the financial matters of the company, fabricating a resolution and freezing the bank accounts has caused financial instability to the business as well as to the family. The respondent was mainly engaged in the export business, due to the inconvenience caused by the appellant in sabotaging the business, in order to honour the agreements/contracts entered into between the foreign buyers within the time frame, the consignments were air-lifted. Such an action has caused huge loss in his business. The entire family properties came to be sold to make the payment of loan raised towards the business commitments. The indifferent attitude of the appellant, in ruining the respondent mentally and financially amounts to cruelty which has been rightly considered by the Family Court. The appellant has left the matrimonial home in November 1999. She returned back in the year 2000 and stayed with the respondent only for 2-3 days. At that time, she consumed 235 sleeping tablets and attempted to commit suicide in the matrimonial home. Noticing the same, the respondent rushed her to St.John’s Medical Hospital, Bangalore and provided her the medical treatment. Immediately after discharge from the hospital, she left the matrimonial home and started residing at Jalandhar at her parental house. The appellant had obtained a separate phone number 9888854456 at Jalandhar which proves that she had deserted the respondent from November 1999. The desertion is further proved by the action of the appellant purchasing the flat in the year 2002 at Bangalore whereby she had the intention to stay away from the respondent separately. The dividend warrants showing the address of the appellant with the Koramangala address would not establish the factum of residence of the appellant with the respondent. It is known fact that unless the change of address is made with the companies holding the shares, the dividend vouchers would be sent to the address available on the company’s register. In fact, the appellant was collecting the dividend warrants from one of their son’s or through servants. Since November 1999, the respondent and petitioner have not lived together under one roof as husband and wife. It is submitted that after the grant of decree of divorce by the Family Court on 30.6.2011, the respondent contracted the second marriage on 10.11.2011 and that the said marriage is registered on 13.02.2012, he has been living with his wife ever since then. On this ground alone, the judgment and decree of the Family Court is not liable to be disturbed.
  13. The respondent himself being advanced in age, presently aged about 75 years, has no avocation nor any source of income and is fully dependent on his wife who is a qualified medical practitioner, having source of income from her practice. During the subsistence of the marriage between the appellant and the respondent, the site at Koramangala was purchased in the joint name of the appellant and respondent out of his own funds, there being no financial participation by the respondent in the purchase of construction. Due to the action of the appellant of forging and fabricating a board resolution, removing the respondent as Managing Director of the Company and withdrawing all banking powers of the Company, the Company which was financially sound and flourishing in the Garment export trade, suddenly suffered losses as export shipment could not be made within the stipulated time resulting in huge forfeiture for non performance by the export council and loss of credibility in the market with the suppliers, bankers and workers, over all image of the company was totally ruined. In order to set-right the things, the respondent was constrained to move the City Civil Court and succeeded in bringing restraining orders and got the Board resolution stayed and tried to salvage the Company’s business, despite which the Company could not survive. Out of the sale proceeds of the house at Koramangala, Rs.50.00 lakh was paid to the appellant and Rs.11.00 lakh each to the children and from the balance amount, bank liability was cleared, no amount was left in the hands of the respondent. After discharging the liabilities, the respondent was himself reduced to penury with no amount left with him nor having independent source of income. Even regarding the gift made by the respondent’s mother with respect to a house on Cunningham Road, Bangalore, the said property being attached for auction and proclamation notices were issued on various bank loans availed by Mr.Ashok Mahajan with their mother as a co-obligant, in order to prevent the creditors from auctioning the same, the said property was sold to discharge the loans who had funded payment to the debtor banks of Mahajan Borewell Company. From the remaining amount, respondent purchased a Two BHK Flat and is residing there with his mother.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  14. The appellant owns the flat valued about Rs.70.00 lakhs apart from holding shares valued about Rs.1.18 crores and liquid cash in the form of deposits. As such, there is no dearth of money for the appellant and she is living in luxury. No such plea being made by the appellant before the trial Court for maintenance, the application filed in the appeal proceedings is not maintainable. Accordingly, it is contended that the judgment and decree passed by the Family Court is after considering the material evidence available on record. The respondent has proved the ingredients of Section 13(1)(i-a) and 13(1)(i-b) of the Act. Appreciating the same, the Family Court has granted a decree of divorce which does not call for any interference at this stage. Accordingly, respondent seeks to dismiss the appeal and the application filed by the wife for maintenance/permanent alimony filed under Section 25 of the Act.
  15. We have carefully considered the rival submissions made by the parties and perused the material on record. The respondent has filed the petition before the Family Court under Section 13(1)(i-a), 13(1)(i-b) and 13(1)(iii) of the Act seeking a decree of divorce, dissolving the marriage solemnized between the parties on 18.01.1974. Family Court though dismissed the petition on the ground of mental disorder i.e., under Section 13(1)(iii) of the Act, allowed the petition under Sections 13(1)(i-a) and 13(1)(i-b) of the Act. The Family Court after considering the pleadings of the parties has framed five issues. The respondent himself was examined as PW1 and marked documents Exs.P.1 to P.8. Appellant is examined as RW1 and marked exhibits R.1 to R.17. The main grounds urged by the respondent to prove the cruelty are: (1) Filing of M.C.No.1331/1999 by the appellant seeking decree of divorce against the respondent and making false allegations against the respondent of having an affair with Smt.Geetha Srinivasan – an employee of the Company. (2) Fabricating the resolution of the Company and freezing the bank accounts by which the respondent was constrained to obtain an interim injunction against the appellant before the city Civil Court which affected the business of the respondent in its entirety, causing financial loss and damage to the reputation of the company as well as to the respondent. In the result, the respondent was finally forced to shut down the business.
  16. We have examined the evidence available on record. It is seen from the records, that on the allegation that the respondent had some relationship with an employee of the Company i.e., Smt. Geetha Srinivasan, M.C. petition was filed by the respondent seeking for decree of divorce. No-doubt the same was withdrawn by the petitioner on 27.03.2000, such an act of the respondent, filing of the petition for divorce indicates the intention of the appellant to dissolve the marriage. Indeed it is contended by the appellant that subsequent to the withdrawal of the petition, both the parties lived together as husband and wife under one roof which is categorically denied by the respondent. Exs.R.1 to R.16 are relating to the year 2000 to 2004. Ex.R.17 is the copy of the sale deed dated 18.01.2007. The address of the parties shown in the said sale deed is 720,2nd “B” Main, 2nd B” Cross, 8th Block, Koramangala, Bangalore. In the cross examination of R.W.1 – the witness has deposed that she does not remember, the number of rooms and floors of the said property and it is admitted that the said house described in Ex.R.17 is the rented house and she does not remember when that house was taken for rent and how many years she stayed with her husband in the said house. The said evidence available on record indicates that the respondent is not having the correct picture of the house in which she claims to have resided with her husband – appellant in the year 2007. It is further deposed by RW.1 that she cannot remember the address given in the passport as well as Driving Licence , whether it relates to the Flat at Kodigehalli. It is also deposed that she does not remember the address shown in the passbook relating to her Account in State Bank of Mysore, Sahakarnagar. Hence, no credence would be given to this document – Ex.R.17 to accept the contention of the respondent that the parties lived together till 2007. As already discussed Exs.R.1 to R.7 are the dividend warrants of different Companies. These documents do not prove that the parties were residing together as husband and wife after November 1999. Hence, desertion of statutory period of 2 years before filing of the petition as contemplated under Section 13(1)(i-b) of the Act is proved by the appellant. It is strongly contended by the learned counsel appearing for the appellant that this material evidence which discloses that the appellant was residing with her husband at the matrimonial house was totally ignored by the Family Court. Generally, dividends are sent to the address of the share holders, as maintained in the Register of the company, unless the change of address is incorporated in the Register. It is the case of the respondent that Exhibits P-4 to 8, unopened covers of dividends remained with him which indicates that the appellant was not residing with him after November 1999. It may be true that after the withdrawal of the M.C. petition filed by the appellant, there was a long gap in filing the petition by the husband alleging cruelty, desertion and mental disorder. However, it cannot be ruled out that the respondent was subjected to cruelty in view of the alleged allegations of having relationship with an employee of the company and the M.C. petition filed on that ground. Interference of the appellant in the financial affairs of the Company by passing a fabricated resolution and freezing the bank accounts may be even to safeguard the interest of the family and the Company as narrated by the appellant but however, the said interference has caused damage to the business and the reputation of the Company resulting in financial loss to the Company and causing mental agony to the respondent which cannot be brushed aside and no cogent evidence is led by the appellant to discard the evidence of the respondent in this regard. The impact of these two incidents are suffice to establish the cruelty.
  17. The submission of the appellant that the husband has not participated even in the marriage functions of their children, in any manner would indicate the grave and serious nature of strained relationship between the appellant and the respondent. This would be indicative of the fact that now the parties have no emotions, sentiments or feelings for each other. This is not an ordinary case of wear and tear of married life but a clear case of irretrievable break down of marriage. The word ‘cruelty’ though not defined under the Act is well interpreted by the Courts from time to time. It is often cautioned by the Apex Court that no Court should even attempt to give a comprehensive definition of ‘mental cruelty’ in which all kinds of cases of ‘mental cruelty’ can be covered.
  18. The Apex Court in the case of Shobha Rani vs. Madhukar Reddi (1988) 1 SCC 105 has held Thus:
    • ” To constitute cruelty, the conduct complained of should be “gave and weighty” so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tear of married life”. Conduct has to be considered in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce.”
  19. The Apex Court in A. Jayachandra (supra) has held thus:
    • “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. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.
    • 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 or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other.
    • 12. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or 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 (See Sobh Rani v. Madhukar Reddi, AIR 1988 SC 121).
    • 13. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse’s conduct have to be borne in mind before disposing of the petition for divorce. However insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.
  20. In the case of Naveen Kohli vs. Neelu Kholi (supra) the Apex Court observed as under: 
    • “74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.
    • 75. 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.  76. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist.
    • 77.   Some     jurists  have     also expressed     their   apprehension     for  introduction of irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems then are sought to be solved.
    • 78. The other majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising  therefrom.
    • 79. When we carefully evaluate the judgment of the High Court and scrutinize its findings in the background of the facts and circumstances of this case, it becomes obvious that the approach adopted by the High Court in deciding this matter is far from satisfactory.”
  21. Applying the principles of law enunciated by the Apex Court as discussed above, we have analyzed the case on hand in the backdrop of the facts of cruelty alleged by the respondent and denied by the appellant. It is well settled that the concept of ‘cruelty’ differs from person to person depending on various factors like geographical and cultural background, education, customs, religion, traditions, values etc.
  22. It is true that ‘cruelty’ said to have been experienced by a person cannot be viewed in the same perspective at all times. It has also come on record that the appellant attempted to commit suicide by consuming 235 sleeping tablets in the matrimonial home in the year 2000 and was provided with medical treatment at St. John’s Hospital, Bengaluru, by the respondent. These are all admitted facts which creates apprehension of leading a cordial martial life together. In our opinion, it is not significant to save the marriage when the relationship between the parties is strained, rupturing matrimonial bond beyond repair as the respondent has contracted second marriage. Even on the ground of desertion, it is well established principle that mere desertion would not be a ground for divorce unless two important ingredients, namely, [a] factum of desertion, [b] animus deserendi – intention to desert the spouse; to bring an end to cohabitation or marital life are proved.
  23. The Apex Court in the case of Savitri Pandey [supra] has held thus:
    • “7A. “Desertion”, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case.”
  24. It is the specific contention of the appellant that till the year 2007, the parties resided together and as such statutory period of desertion is not proved. As discussed earlier, it is not so. Even assuming for a moment, if we accept the arguments of the learned Counsel for the appellant that no desertion is proved, no purpose would be served in keeping this marriage alive which has already become a dead wood, in view of the subsequent development, the respondent having contracted the second marriage on 10.11.2011 and the same being registered on 13.02.2012 before the jurisdictional Sub-Registrar.
  25. As regards the application filed by the appellant seeking maintenance/permanent alimony, both the parties have made allegations and counter allegations against each other. Our best efforts made to see that the matter gets amicably settled between the parties, has not yielded any positive results. Contracting a second marriage, after waiting period, would not absolve the husband from paying the permanent alimony and maintenance to the wife in terms of Section 25 of the Act.
  26. Section 25[1] of the Act contemplates that any court exercising jurisdiction under the Act may at the time of passing of any decree or at any time subsequent to the application made to it for the purpose by either the wife or the husband order for maintenance or support of either of the spouse depending on the income and other property of the applicant and the respondent and other circumstances of the case.
  27. Admittedly, the appellant herein has filed application under Section 25 of the Act in this appeal proceedings before this Court. The appellant is alleging that the respondent has not taken any interest in the family and not discharged his responsibilities as dutiful husband. It is averred that the respondent owns the properties and huge amount of liquid cash besides the fixed deposits in various banks whereas the respondent has filed affidavit denying the same and he contends that he has no source of income and that at this advanced age, he is depending on the income of his second wife. This complex issue of facts requires to be decided on the established evidence, regarding status and income of the parties. In the appeal proceedings, the entitlement and quantum of maintenance cannot be decided unless any cogent evidence is available on record. Hence, we are not inclined to adjudicate on the application IA No.1/2015 filed by the appellant seeking for maintenance/permanent alimony.
  28. For the foregoing reasons, the appeal and IA No.1/2015 stands dismissed. Judgment and decree passed by the Family Court in M.C.No.1933/2008 dated 30.06.2011 is confirmed.
  29. It is made clear that dismissing of this appeal or application for maintenance/permanent alimony shall not come in the way of the appellant to move the appropriate application before the jurisdictional Court, if advised.

Sd/-

JUDGE Sd/-

JUDGE Brn, AN/-

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false allegations, assaults, false police complaints, constnt harasemnt cruelty. Dvrc decreed. MadrasHC

A businessman who lived a 30 year happy married life, looses his wife to a heart attack. After his first wife’s death, he goes and marries a two time divorcee woman who turns violent and wallops him and his son (from first marriage) even in the middle of the night !! This new wife goes on to file police complaints and is after all the fixed deposits and assets of the business man !!

Family court refuses this poor chap’s divorce petition while HC appreciates the facts, notices that the woman has been violent even in earlier marriages, appreciates that there is ample evidence of her greed, cruelty, also appreciates that the woman has made baseless character allegations against her husband and grants him divorce !!
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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 20/11/2006

CORAM:

THE HONOURABLE MR. JUSTICE R. BALASUBRAMANIAN
AND
THE HONOURABLE MR. JUSTICE V. DHANAPALAN

C.M.A. (NPD-B) No.1558 of 2000
and
C.M.P. No.21256 of 2004


A. Viswanathan……….Appellant
Versus
G. Lakshmi @ Seetha…….Respondent


Civil Miscellaneous Appeal filed under Family Courts Act, 1984, against the judgment and decree passed in F.C.O.P. No.215 of 1997 by the I Additional Judge, Family Court, Madras on 23.04.1999.

For appellant : Mr. S. Parthasarathy, Senior Counsel for Mr. V. Shankar
For respondent : Mr. S.V. Jayaraman, Senior Counsel for Mr. R. Nandakumar

J U D G M E N T

(Judgment of the Court was delivered by V. DHANAPALAN, J.) This Civil Miscellaneous Appeal is directed against the decree and judgment dated 23.04.1997 passed by the I Additional Principal Judge, Family Court, Madras in FCOP No.215 of 1997.

  1. The appellant and the respondent are husband and wife respectively. The appellant had filed a petition for dissolution of marriage between them by a decree of divorce on the ground of cruelty under Section 13(1) (i-a) of the Hindu Marriage Act, 1955. The Family Court, after comprehensively dealing with the matter, dismissed the petition holding that the respondent has not treated the petitioner with cruelty and rejected the appellant’s prayer to dissolve the marriage which took place on 23.08.1992. The appellant, aggrieved by the judgment of the Family Court, has preferred the present appeal on various grounds.
  2. The appellant’s case in brief is as under:

  • The appellant married the first respondent on 23.08.1992 according to Hindu rites and customs. Subsequently, the marriage was registered at Adyar Registrar’s Office on 25.01.1993. Prior to this marriage, the appellant married one Shantha in the year 1961 and lived with her for 30 years. There was no issue out of the appellant’s first wedlock and hence, the appellant and his first wife a three month old boy Sivakumar, by following due legal procedure of adoption on 02.11.1978. The said Shantha died in the year 1991. At the time of filing the petition, the adopted son was studying B.Com. The appellant’s mother was also residing with them. After the death of his first wife, the present married the respondent herein.
  • The second marriage life of the appellant was smooth till 1994 and thereafter, since early 1995, the respondent’s attitude towards the appellant, his mother and son changed. In course of time, the respondent started beating the appellant and his son with whatever item she could lay her hands upon. She, at times, bit the appellant, spit on the face of the appellant, his mother and son. All of a sudden, during nights, she became hysterical, woke up the appellant and his son Sivakumar and without any reason wallop them. She also asked the appellant to get rid of his son Sivakumar and demanded him to transfer all his belongings in her name but the appellant did not heed to her request explaining that as long as he is alive, he would hold the properties and the question of inheriting the property could be discussed later. Provoked by this, she abused the appellant in public places like temples and relatives’ and friends’ houses. Many close friends like Kalyani Easwaran and P.N. Kumar would bear testimony to the inhumane and intolerable behaviour of the respondent towards the appellant, his aged mother and his son.
  • The appellant is the Managing Director of Reliance Foods Pvt. Limited carrying on business in sports goods and equipments and there were three persons working under him in the showroom. In addition to this, the appellant is also running a consumer products distributing agency in the name of Reliance Agencies in which also, three persons were employed.
  • While so, the respondent started a new practice of coming to the business spot and unnecessarily picking up quarrel with the appellant in front of the staff and customers and cause embarrassment to him. She interfered with the working of the staff using foul language against them and also threatened to send them out of employment. The staff members appealed for better behaviour of the respondent but in vain. The appellant tolerated all the humiliations for a period of two years and a stage came for the appellant that it would not be possible for him any more to live with the respondent. The appellant with the knowledge that the respondent was a twice divorced woman, married her with the hope that during his advancing years, she would be a source of comfort and relief to him. To his misery, his life became miserable and he lost his peace and happiness completely. He had developed a feeling of insecurity for him, his mother and his son and he was left with no other alternative except to leave the respondent and accordingly, left the matrimonial home. Unable to bear the cruelty inflicted by the respondent on the appellant, his mother and son too left the matrimonial home and started living separately and therefore, the appellant filed a petition seeking a decree of divorce on the ground of cruelty.
  1. In response, the respondent filed her counter and her case, in nutshell, is as follows:
  • After the appellant’s marriage with the respondent, one lady by name Vasantha, employed under the appellant, used to come frequently to their house when the respondent was away at her office. The appellant and Vasantha used to move intimately. When the respondent came back from her office early, the appellant and the said Vasantha used to ignore the respondent and happily take their food and go away in the car. When questioned, she was beaten up by the appellant. The appellant used to indulge in teasing the respondent always and he used to compare her with their dog. At the early stages, the respondent used to keep quiet. But, eventually, when the visits of Vasantha started to boss over the respondent, she started revolting as a result of which frequent quarrels arose between the appellant and the respondent.
  • The appellant always used to find fault with the action of the respondent without any reason. It is only the appellant and his son who would beat her. She is neither hysterical nor would beat and spit on the faces of the appellant, his mother and son. Although the appellant’s son is aged 15 to 16 years, he would sleep with the appellant and the respondent and misbehaved with the respondent. Her efforts to correct him failed and the appellant instead of reprimanding his son, would turn to the other side of the bed. The respondent had also informed this to her mother-in-law but she did not believe this. The respondent had no intention of chasing away the appellant’s son as falsely alleged and on the other hand, she used to treat him as her own son and advised him properly and tried to change him.
  • She was a State Government employee at the time of marriage with the appellant and was earning Rs.4,000/- per month. She used to give her entire salary to the appellant and at the instance of the appellant, she took voluntary retirement from service during February 1995 and she had received the retirement amount of Rs.1,30,000/- which was also given to him. The Provident Fund loan for Rs.20,000/- and Sriram chit amount of Rs.10,000/- were also handed over to the appellant. She was never interested in money or property and all that she needed was a happy married life and therefore, there is no question of the respondent asking the appellant to transfer all his belongings in her name. She never insulted the appellant in public places and it was only the appellant who used to tease the respondent and harass her in places and in the presence of office staff of the respondent and also used to beat her. Due to the appellant’s intolerable behaviour, her ears and eyes were damaged and she became alright after medical aid. Whenever the respondent called the appellant over phone, Vasantha used to answer the call and tell her that the appellant had gone out and upon insistence, she would give the line to the appellant. On the allegation that she visited the appellant’s shop, it is the respondent’s reply that she had to been to the appellant’s shop only once on her way back to home and that only at the request of the appellant to check up certain matters in the office.
  • Further, one Lakshmi, sister of Vasantha was working in that shop and the respondent had approached Lakshmi and requested her to appraise her of the mode of accounting so that she could also attend to accounts work at times. Initially, she had obliged but later on, she had refused stating that it was not her concern. The respondent was taken back on this issue but the appellant kept quiet. She had also requested the said Lakshmi to behave with respect but unfortunately, Lakshmi refused to accede to the request and instead, she tried to assault the respondent. A big scene was created and the appellant just kept quiet as a mute spectator witnessing the scene. The respondent tolerated all the humiliations she has been subjected to and it was not the appellant who was put to any humiliation and she never acted violently with the appellant. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  • On 01.02.1997, the appellant left for his office shop along with his son, in the afternoon of the same day, when the respondent was waiting for the appellant’s arrival, she was shocked to receive a letter from the appellant stating that he, his son and his mother were subject to physical and psychological harassment and cruelty by the respondent and therefore, they were unable to withstand her hostile attitude towards them any more and they were compelled to move out of the house. He has also informed that he has removed from the house, a part of the gold jewellery, yet, the respondent is still willing to live with the appellant and she is willing to even condone the acts of cruelty and mental harassment meted out to her.
  • She had tried her level best to bring harmony in their life. But, unfortunately, the appellant did not respondent to the same. Even after the above petition was filed, she had tried her maximum for re-union with a fond hope that she could still happily live with the appellant. As soon as the case was adjourned, the appellant refused to contact the respondent and all her attempts to bring re-union failed in spite of her best efforts and therefore, she filed her counter statement.
  • When Vasantha resigned, the appellant insisted the respondent to resign her job and asked her to be his partner. But, subsequently, he had taken away all her Share Certificates and other documents and valuables without her knowledge with mala fide intention and absolutely, no grounds were made out for divorce and hence, the FCOP had to be dismissed.
  1. The appellant filed a reply to the counter statement of the respondent in and by which, he denied the allegations about the illicit relationship with Vasantha and according to him, Vasantha had resigned way back in 1995 and therefore, the respondent’s allegations about Vasantha are false. As for the respondent’s allegations about his son, it was the case of the appellant that it was his son who had tolerated the insult and the sort of allegations contained in the counter statement which embittered the relationship of the respondent and his son. On the financial aspect, it was the contention of the appellant that the respondent had fraudulently withdrawn cash to the tune of Rs.33,000/- from his account on two occasions namely on 11.02.1997 and 14.02.1997. It was also the appellant’s contention that the respondent was a divorcee twice and both the marriages did not last longer. Further, the appellant has filed a rejoinder in which he had stated that monies of the respondent had been duly invested and he was even willing to produce records for the same.

  2. Before the Family Court, four witnesses were examined on behalf of the appellant and in addition, six documents were marked as documentary evidence. On the side of the respondent, four witnesses were examined and as many as fifty documents were marked.

  3. The Family Court, after analysing the oral and documentary evidence and after framing certain points for consideration, observed that the onus was on the appellant to prove his case and also held that the acts of cruelty must be specifically pleaded and specific instances of the conduct must be described. It further observed that the earlier divorces of the respondent were justified and dismissed the original petition filed by the appellant based on the above grounds.

  4. Heard Mr. S. Parthasarathy, learned Senior Counsel for Mr. V. Shankar, counsel for the appellant and Mr. S.V. Jayaraman, learned Senior Counsel for Mr. R. Nandakumar, learned counsel for the respondent.

  5. Mr. S. Parthasarathy, learned Senior Counsel has contended that (i) instances of physical cruelty were set out in the petition and corroborated by evidence of independent witnesses and neighbours, (ii) P.W.2 had explained the specific instances of physical cruelty and P.W.3, who is a customer in the appellant’s shop had categorically narrated the instances how the appellant was abused in the presence of other customers and this had been corroborated by the respondent in her examination wherein she had deposed that the scuffle took place in the business premises and P.W.4 who is a family friend of appellant had narrated specific instances of physical cruelty which he had witnessed and the same was properly pleaded and proved by evidence;

  6. Secondly, the learned Senior Counsel has contended that allegation of infidelity of appellant and alleged misbehaviour of Sivakumar constitute the cause of mental cruelty. In support of his arguments, he has pointed out the respondent suspected the relationship between the appellant (now aged about 72 years) and his employee Vasantha and that the friction in their matrimonial life was mainly on account of this but it has not been established by way of any cogent evidence and there is no proof for the same as the said Vasantha had resigned her job way back in 1995 when the trouble started developing between the appellant and the respondent.

  7. Thirdly, it is his contention that the Family Court has failed to see the past conduct as can be culled out from the documents filed and relied by the respondent and for this, the Senior Counsel has submitted that the instances that the respondent had two failed marriages ending in divorce themselves would act as ample proof to show that the respondent was a troublesome character.

  8. The fourth contention of the learned Senior Counsel is that the respondent has been contradictory averments both in her counter affidavit and also in her deposition. To substantiate his argument, he has pointed out the various proceedings initiated by her and her contradictory statements with regard to the same which would only go to prove that she had given both mental and physical torture to the appellant.

  9. Mr. Parthasarathy’s final contention is that the relationship between the appellant and the respondent has been damaged beyond redemption and the marriage is irretrievably broken. He has pointed out that numerous suits and police complaints have been lodged by her. The appellant had at one instance given police complaint on 30.01.1997 informing them about the harassment suffered by him and his immediate family member at the hands of the respondent. Also, the respondent has given a police complaint wherein his son was summoned for enquiry on numerous occasions. There was even a threat of arrest during those enquiries. The appellant, his son and the mother were put to constant harassment on account of the police complaint. The respondent too had filed a suit in the City Civil Court for permanent injunction in respect of the suit schedule property which admittedly belonged to the appellant’s son.

  10. In support of his arguments, the learned Senior Counsel has relied on some of the decisions of the Supreme Court and various High Courts as well and they are as under:

a. The decision of the Supreme Court reported in (1975) 2 SCC 326 in the case of Dr. N.G. Dastane vs. Mrs. S. Dastane: (Paras 54,55 and 56) “Before us, the question of condonation was argued by both the sides. It is urged on behalf of the appellant that there is no evidence of condonation while the argument of the respondent is that condonation is implicit in the act of cohabitation and is proved by the fact that on February 27, 1961, when the spouses parted, the respondent was about 3 months pregnant. Even though condonation was not pleaded as a defence by the respondent, it is our duty, in view of the provisions of Section 23(1)(b), to find whether the cruelty was condoned by the appellant. That section casts an obligation on the court to consider the question of condonation, an obligation which has to be discharged even in undefended cases. The relief prayed for can be decreed only if we are satisfied “but not otherwise”, that the petitioner has not in any manner condoned the cruelty. It is, of course, necessary that there should be evidence on the record of the case to show that the appellant had condoned the cruelty.

Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation, there must be, therefore, two things:forgiveness and restoration. The evidence of condonation in this case is, in our opinion, as strong and satisfactory as the evidence of cruelty. But that evidence does not consist in the mere fact that the spouses continued to share a common home during or for some time after the spell of cruelty. Cruelty, generally, does not consist of a single, isolated act but consists in most cases of a series of acts spread over a period of time. Law does not require that at the first appearance of a cruel act, the other spouse must leave the matrimonial home lest the continued cohabitation be construed as condonation. Such a construction will hinder reconciliation and thereby frustrate the benign purpose of marriage laws.

The evidence of condonation consists here in the fact that the spouses led a normal sexual life despite the respondent’s act of cruelty. This is not a case where the spouses, after separation, indulged in a stray act of sexual intercourse, in which case the necessary intent to forgive and restore may be said to be lacking. Such stray acts may bear more than one explanation. But if during cohabitation the spouses, uninfluenced by the conduct of the offending spouse, lead a life of intimacy which characterises normal matrimonial relationship, the intent to forgive and restore the offending spouse to the original status may reasonably be inferred. There is then no scope for imagining that the conception of the child could be the result of a single act of sexual intercourse and that such an act could be a stark animal act unaccompanied by the nobler graces of marital life. One might then as well imagine that the sexual act was undertaken just in order to kill boredom or even in a spirit of revenge. Such speculation is impermissible. Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfillment. Therefore, evidence showing that the spouses led a normal sexual life even after a series of acts of cruelty by one spouse is proof that the other spouse condoned that cruelty. Intercourse, of course, is not a necessary ingredient of condonation because there may be evidence otherwise to show that the offending spouse has been forgiven and has been received back into the position previously occupied in the home. But, in circumstances, as obtain here, would raise a strong inference of condonation with its dual requirement, forgiveness and restoration. That inference stands uncontradicted, the appellant not having explained the circumstances in which he came to lead and live a normal sexual life with the respondent, even after a series of acts of cruelty on her part.

b. The Supreme Court, in its judgment reported in (1994) 1 SCC 337 in the case of V. Bhagat v. D. Bhagat (Mrs.) has held as under: (Paras 16 & 17) “Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”

At this stage, we may refer to a few decisions of this Court rendered under Section 13(1)(ia). In Shobha Rani v. Madhukar Reddi, Justice K. Jagannatha Shetty, speaking for the Division Bench, held: (SCC pp:108-09, paras 4 & 5) “Section 13(1)(ia) uses the words ‘treated the petitioner with cruelty’. The word ‘cruelty has not been defined. Indeed, it could not have been defined. It 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. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the court will have no problem to determine it. It is a question of fact and degree. If it is mental, the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.

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 complaint 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 said in Sheldon v. Sheldon, ‘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”

c. Yet another decision of the Supreme Court reported in (2002) 2 SCC 296 in the case of G.V.N. Kameswara Rao v. G. Jabilli, it was held as follows: (Para 18) “We do not think that this is a case, where the appellant could be denied relief by invoking Section 23(1)(a) of the Hindu Marriage Act. On the other hand, various incidents brought out in the evidence would show that the relationship between the parties was irretrievably broken, and because of the non-cooperation and the hostile attitude of the respondent, the appellant was subjected to serious traumatic experience which can safely be termed as “cruelty” coming within the purview of Section 13(1)(i-a) of the Hindu Marriage Act. Therefore, we hold that the appellant is entitled to the decree for dissolution of marriage under Section 13(1)(i-a) of the Hindu Marriage Act. However, we make it clear that any order of maintenance passed in favour of the respondent will stand unaffected by this decree for dissolution of the marriage. We also make it clear that if any rights have been accrued to the respondent in the joint assets of both, she would be at liberty to take appropriate action to enforce such rights. The appeal is allowed….”

d. In its judgment in the case of Parveen Mehta vs. Inderjit Mehta reported in (2002) 5 SCC 706, the Supreme Court has held as below: (Para 21) “Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty, it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.”

e. In the case of Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate reported in (2003) 6 SCC 334, it was held by the Supreme Court as below: (Para 7) “The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portion is of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

f. The ruling of the Supreme Court reported in (2005) 2 SCC 22 in the case of A. Jayachandra vs. Aneel Kaur (Paras 15, 16 & 17) “. . .Though the respondent tried to show that they were simple and harmless advice, yet on a bare reading thereof, it is clear that there were clear manifestations of her suspecting the husband’s fidelity, character and reputation. By way of illustration, it may be indicated that the first so-called advice was not to ask certain female staff members to come and work on off-duty hours when nobody else was available in the hospital. Second was not to work behind closed doors with certain members of the staff. Contrary to what she had stated about having full faith in her husband, the so-called advices were nothing but casting doubt on the reputation, character and fidelity of her husband. Constant nagging on those aspects, certainly amounted to causing indelible mental agony and amounts to cruelty. The respondent was not an ordinary woman. She was a doctor in the hospital and knew the importance of the nature of duty and the necessity of members of the staff working even during off-hours and the working conditions. There was another instance which was specifically dealt with by the trial court. Same related to the alleged extra-marital relationship of the appellant, with another married lady who was the wife of his friend. Though the respondent tried to explain that she was not responsible for making any such aspersions, the inevitable conclusion is to the contrary.

The matter can be looked at from another angle. If acts subsequent to the filing of the divorce petition can be looked into to infer condonation of the aberrations, acts subsequent to the filing of the petition can be taken note of to show a pattern in the behaviour and conduct. In the instant case, after filing of the divorce petition, a suit for injunction was filed, and the respondent went to the extent of seeking detention of the appellant. She filed a petition for maintenance which was also dismissed. Several caveat petitions were lodged and as noted above, with wrong address. The respondent in her evidence clearly accepted that she intended to proceed with the execution proceedings, and prayer for arrest till the divorce case was finalised. When the respondent gives priority to her profession over her husband’s freedom, it points unerringly at disharmony, diffusion and disintegration of marital unity, from which the Court can deduce about irretrievable breaking of marriage.

Several decisions, as noted above, were cited by learned counsel for the respondent to contend that even if marriage has broken down irretrievably decree of divorce cannot be passed. In all these cases, it has been categorically held that in extreme cases, the court can direct dissolution of marriage on the ground that the marriage had broken down irretrievably as is clear from para 9 of Shyam Sunder case. The factual position in each of the other cases is also distinguishable It was held that long absence of physical company cannot be a ground for divorce if the same was on account of the husband’s conduct. In Shyam Sunder case, it was noted that the husband was leading adulterous life and he cannot take advantage of his wife shunning his company.”

g. In its decision reported in (2005) 7 SCC 353 in the case of Durga Prasanna Tripathy v. Arundhati Tripathy, the Supreme Court held as under: (Paras 21,27 & 28) “In our view, that 14 years have elapsed since the appellant and the respondent have been separated and there is no possibility of the appellant and the respondent resuming the normal marital life even though the respondent is willing to join her husband. There has been an irretrievable breakdown of marriage between the appellant and the respondent. The respondent has also preferred to keep silent about her absence during the death of her father-in-law and during the marriage ceremony of her brother-in-law. The complaint before the Mahila Commission does not implicate the appellant for dowry harassment though the respondent in her evidence before the Family Court has alleged dowry harassment by the appellant. It is pertinent to mention here that a complaint before the Mahila Commission was lodged after 7 years of the marriage alleging torture for dowry by the mother-in-law and brother-in-law during the initial years of marriage. The said complaint was filed in 1998 that is only after notice was issued by the Family Court on 27.03.1997 on the application filed by the appellant under Section 13 of the Hindu Marriage Act. The Family Court, on examination of the evidence on record, and having observed the demeanour of the witnesses concluded that the appellant had proved that the respondent is not only cruel but also deserted him for more than 7 years. The desertion as on date is more than 14 years and, therefore, in our view, there has been an irretrievable breakdown of marriage between the appellant and the respondent. Even the Conciliation Officer before the Family Court gave its report that the respondent was willing to live with the appellant on the condition that they lived separately from his family. The respondent in her evidence had not disputed the fact that attempts have been made by the appellant and his family to bring her back to the matrimonial home for leading a conjugal life with the applicant. Apart from that, relationship between the appellant and the respondent have become strained over years due to the desertion of the appellant by the respondent for several years. Under the circumstances, the appellant had proved before the Family Court both the factum of separation as well as animus deserendi which are the essential elements of desertion. The evidence adduced by the respondent before the Family Court belies her stand taken by her before the Family Court. Enough instances of cruelty meted out by the respondent to the appellant were cited before the Family Court and the Family Court being convinced granted the decree of divorce. The harassment by the in-laws of the respondent was an afterthought since the same was alleged after a gap of 7 years of marriage and desertion by the respondent. The appellant having failed in his efforts to get back the respondent to her matrimonial home and having faced the trauma of performing the last rites of his deceased father without the respondent and having faced the ill-treatment meted out by the respondent to him and his family had, in our opinion, no other efficacious remedy but to approach the Family Court for decree of divorce.

The decision reported in Romesh Chander v. Savitri is yet another case where this Court in its powers under Article 142 of the Constitution directed the dissolution of the marriage subject to the transfer of the house of the husband in the name of the wife. In that case, the parties had not enjoyed the company of each other as husband wife for 25 years, this is the second round of litigation which routing through the trial court and the High Court has reached the Supreme Court. The appeal was based on cruelty. Both the courts below have found that the allegation was not proved and consequently, it could not be made the basis for claiming divorce. However, this Court after following the earlier decisions and in exercise of its power under Article 142 of the Constitution directed the marriage between the appellant and the respondent shall stand dissolved subject to the appellant transferring the house in the name of his wife within four months from the date of the order and the dissolution shall come into effect when the house is transferred and possession is handed over to the wife.

The facts and circumstances in the above three cases disclose that reunion is impossible. The case on hand is one such. It is not in dispute that the appellant and the respondent are living away for the last 14 years. It is also true that a good part of the lives of both the parties has been consumed in this litigation. As observed by this Court, the end is not in sight. The assertion of the wife through her learned counsel at the time of hearing appears to be impractical. It is also a matter of record that dislike for each other was burning hot.”

h. The decision of the Supreme Court reported in (2006) 4 SCC 558 in the case of Naveen Kohli v. Neelu Kohli wherein the Supreme Court held as under: (Paras 48 and 64) “The 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. Each case has to be decided on its own merits.

In Durga Prasanna Tripathy v. Arundhati Tripathy, this Court further observed that marriages are made in heaven. Both parties have crossed the point of no return. A workable solution is certainly not possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. We, therefore, have no other option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce.”

i. Also in the judgment reported in AIR 1989 Cal 120 in the case of Harendra Nath Burman vs. Smt. Suprova Burman & another, the High Court of Calcutta held as follows: (Para 18) “As we cannot but note, scurrilous, vituperative and scandalous allegations have been freely made by both the spouses against each other and since we found them to have been made by the parties without any justifiable foundation, we would have no hesitation in coming to the conclusion that the marriage has broken down irretrievably and irreparably beyond all prospects of resuscitation or restoration. But as pointed out hereinbefore, however desirable it may be, irretrievable breakdown, by itself and without more, has not, as yet been made a ground of divorce and the Court must find out one or more of the grounds as specified in S.27 of the Special Marriage Act, unless the parties choose to proceed for divorce by mutual consent under S.28 of the Act. Since we have found out such a ground namely, cruelty by the wife-respondent, we would decree divorce and (borrowing front the the Supreme Court decision in Saroj Rani (AIR 1984 SC 1562) (supra), we would say that we do so without any “mental compunction”, as we have also found the marriage to have been wrecked beyond repair.

j. Further, the High Court of Calcutta, in its judgment reported in AIR 1986 Calcutta 150 in the case of Nemai kumar Ghosh v. Mita Ghosh, has observed as follows: (Paras 7 & 8) “It is pertinent to refer in this connection to the provisions of S.13(ia) of the Hindu Marriage Act. The word ‘cruelty has not been defined in the Act but it has been well settled by several decisions of this Hon’ble Court as well as by the Supreme Court that this cruelty refers not only to physical cruelty, but also to mental cruelty. It is also very relevant to refer to S.23 of the said Act. Satisfaction as used in S.23 is not that satisfaction as required in a criminal proceeding, but it refers to the proving of the case by evidence adduced and also by the surrounding circumstances as appear from the case itself. . . .

On a conspectus of all these decisions cited hereinbefore, it is now well settled that if any imputations against the character of any spouse is alleged either by the wife or by the husband without any foundation and the same is based on mere suspicion, even in such cases, such baseless allegations of illicit relationship amount to mental cruelty and it will be a valid ground for passing a decree of divorce under the provisions of Section 13(ia) of the Hindu Marriage Act. We have already held hereinbefore on a consideration of the evidence on record that the respondent wife, since after her marriage with the appellant, became suspicious about his character and used to doubt that the appellant was in illicit connection with his own sister-in-law (elder brother’s wife). This has caused serious mental pain and agony to the appellant inasmuch as it has been stated by the appellant and also pleaded in his petition that he held his sister-in-law in high esteem like his mother and it was under her care and affection that he was brought up and it was she and his elder brother who arranged his marriage with the respondent. In such circumstances, we are constrained to hold, considering the social status of the appellant who is now working as an officer, i.e. Branch Manager of the United Commercial bank, that this behaviour on the part of the respondent amounted to mental cruelty and it gives sufficient reasons for the appellant to think that it would not be safe for him to live with the respondent….”

  1. Per contra, Mr. S.V. Jayaraman, learned Senior Counsel for the respondent has submitted that the Family Court has given cogent and convincing findings observing that the acts of cruelty have not been specifically pleaded and no specific instance has been described and the appellant has not given any specific instance of the respondent’s conduct in detail in the petition. It is his further contention that the Family Court has rightly observed that from previous divorces, the respondent had not claimed any money and therefore, she is not after money and the earlier divorce of the respondent is justified.
  • Mr. Jayaraman has assailed the depositions of P.W.2 and P.W.4 as the assault with cricket was not pleaded in the petition and also P.W.2’s contention as she could not remember the date of the accident and the deposition of P.W.3 as well who is a customer on the ground that he has not produced any purchase bill to prove that he is a customer. According to him, P.W.4 is only an interested witness and the same has to be rejected and there is no cogency in the evidence of these witnesses.

  • The learned Senior Counsel has strenuously contended that R.W.4’s deposition in respect of Vasantha with whom the appellant has allegedly had illicit relationship is accepted by the Family Court as also the allegation of the respondent in respect of appellant’s son Sivakumar. Even after filing the petition, the efforts for re-union by the respondent had not materialised because of the appellant’s attitude. The Family Court has observed that the conciliation efforts failed as the appellant was not prepared to live together though the respondent had expressed her willingness and therefore, the conclusion of the Family Court and the contention of the respondent are properly taken into consideration and the petition has been rightly dismissed. According to the learned Senior Counsel, there is no material irregularity or perversity in the orders of the Family Court and therefore, in the absence of any grounds for dissolution of the marriage and to grant divorce, the petition filed by the appellant has been rightly dismissed by the Family Court.

  • For his part, Mr. Jayaraman has relied on the following judgments in support of his contentions:

  • a. The judgment of the Punjab & Haryana High Court reported in II (1983) D.M.C. 348 in the case of Vijay Kumar vs. Rita Kumari (Para 3) “After hearing the learned counsel for the parties, I am of the view that this appeal deserves to be dismissed. There is no proof on the record about the mis-behaviour of the wife with the husband, his parents or friends etc. and general allegations have been made and evidence also of general type has been produced. No definite instances were either pleaded or proved. Father of the husband appeared as a witness. Even he could not state as to how the wife use to mis-behave or maltreat. Even the husband, in his statement, could not specify or highlight the real facts. No other relation, friend or neighbour has been produced in support of the husband. Accordingly, I am in agreement with the Court below that the husband has miserably failed to prove if any justifiable ground of mental cruelty on account of mis-behaviour of the wife was made out. Mr. D.N. Awasthy, appearing for the husband had to concede frankly that in fact, there is no reliable evidence available on the record in support of the pleas raised by the husband.”

    b. The Delhi High Court, in its decision reported in I (1984) DMC 229 in the case of P.D. Sharma vs. Savinder Sharma has ruled as follows: (Paras 30, 31 & 32) “… In the present case, I have come to a definite conclusion that the respondent was fully justified in making accusations regarding the illicit intimacy of the appellant with Surrender Kaur Ahuja and as such, this act of the respondent can neither be held to be a cruelty nor can be held to be a valid excuse for the appellant to leave the matrimonial home and desert the respondent. In act, it is the appellant who is guilty of deserting the respondent and the cause of action, if any accrues to the respondent.

    It is true that the parties have not lived together since 1969 and the marriage itself has gone to rocks and there is absolutely no hope of its revival. In spite of efforts having been made by the learned Trial Judge as also be me, the respondent-wife was not willing to be called a divorcee and her plea was that she does not want her children to be without a father. In my opinion, she was fully justified in taking such a stand and the appellant cannot be allowed to take advantage of his own wrongs.

    For the reasons recorded above, I do not find any merit in this appeal, which is dismissed with costs….”

    c. In its decision reported in II (1987) DMC 364 in the case of Kanai Lal Majumdar vs. Smt. Rama Majumdar, the High Court of Calcutta, has held as under: (para 13) “…Even assuming that actually there was no such unbecoming affair between the petitioner and the girl, that somehow or other, he was in touch with that girl seems to be evident. If merely upon that basis, the respondent made some accusations, that would not be considered as acts of cruelty. This taking a most liberal view of the evidence adduced by the petitioner, we find that there is some ground for the allegations as to the affairs with some lady. In such circumstances, even if the respondent became ill-tempered on occasions, that would not be considered as cruelty on her part. Neither such occasional frenzies, if any, on her part, should compel the petitioner to leave the matrimonial home. There was, therefore, no question of constructive desertion by the wife. The grounds of cruelty and desertion are not established.”

    19. Now, let us proceed to examine the facts of the case in the light of the settled proposition of law which has been crystallised by a series of judgments relied on the by both sides as referred to above.

    1. It is seen that the petition for divorce was filed primarily on the ground of cruelty. It is worthwhile to note that prior to 1976 Amendment in the Hindu Marriage Act, 1955, cruelty was not a ground for divorce under the Hindu Marriage Act. In 1976 Amendment Act, cruelty was made a ground for divorce. Hence, 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. The 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.
  • We have given careful consideration to the rival submissions made by the learned Senior Counsel on either side and have also scrutinised the oral and documentary evidence in support of their contentions. From an analysis of the same, it is seen that divorce was sought by the appellant on the ground of physical and mental cruelty. P.W.2, a neighbour of the appellant has deposed some specific instances which are pleaded about physical cruelty. Similarly, P.W. 3 who is a customer to the appellant’s shop has narrated the scuffle which took place in the business premises. He has specifically deposed and the same has been pleaded by the appellant. P.W.4, a family friend of the appellant has narrated some of the specific instances of physical cruelty which he had witnessed and it has also been pleaded. Further, it is admitted by the respondent that the relationship between the appellant and his employee Vasantha which had been suspected by the respondent, created friction in their matrimonial life and this suspicion by the respondent has not been properly substantiated by her with any clinching evidence. Unfounded and baseless allegations made by the respondent, time and again, do constitute an act of mental cruelty. R.W.4, Arjunan has deposed on the respondent’s allegation about the relationship of the appellant with Vasantha. But, in his cross examination, he has stated that he had seen the appellant roaming with Vasantha but later on, he has stated that he came to know only from Vasantha’s husband about certain disputes in Vasantha’s family because of her intimacy with the appellant and he has no direct knowledge of the same. In his deposition, he has certified that the appellant is a gentleman and not a womanizer. But, he contradicts himself by stating that he knew about the divorce proceedings while later he states that he is not aware of the divorce proceedings. Therefore, his contradictory evidence which has been accepted by the Family Court cannot merit acceptance.

  • 22. Next, the alleged misbehaviour of the adopted son of the appellant has no basis and hence, this baseless allegation constitutes an act of mental cruelty as the only complaint is that the appellant’s adopted son put his legs on the respondent while sleeping between the appellant and the respondent. This is an unfounded complaint which shows the audacity of the respondent in making baseless allegations. This is because it is quite natural for a person to put his leg or hand on the person sleeping nearby and this relfex action cannot be construed in a negative spirit as done by the respondent in view of the fact that the respondent herself has stated that she treats the appellant’s son as her own son.

    23. Yet another instance of respondent’s allegation was that the appellant was responsible for the death of his first wife. But, it is seen from the evidence that they had lived happily for 30 years and she had died only due to cardiac arrest and this specific allegation by the respondent also does constitute an act of mental cruelty. The various baseless allegations made in the written statement filed in matrimonial proceedings would certainly constitute acts of mental cruelty as seen from the number of decisions of the Supreme Court and High Courts supra.

    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.
  • On the aspect of past conduct of the respondent, admittedly, she had two failed marriages ending in divorce. Both the marriages did not last for any considerable period of time. The documents in Ex.R.3 is the legal notice dated 15.04.1987 issued on behalf of the second husband of the respondent wherein it narrates the violent and cruel manner in which the respondent behaved with her second husband and as to how she assaulted everybody. This aspect of the respondent’s conduct has been lost sight of by the Family Court. In the counter affidavit and in her deposition, it is the case of the respondent that she was never interested in the properties owned and inherited by the appellant. But a perusal of Ex.P.5, P.10 to P.17, P.20, 32, 33, 36, 37 and 43 would reveal that she was more concerned about the Fixed Deposits made by the appellant in various institutions in which she was a nominee. She had written to all these institutions to stop payment to the appellant on maturity of those deposits and to stop change of the joint deposits and she had also denied rights to the adopted son Sivakumar.

  • The respondent filed a suit for permanent injunction in respect of property in O.S. No.5746 of 1999 whose decree is under challenge in S.A. No.2218 of 2004 considered along with this appeal. She further filed a suit for declaration to declare the adoption of Sivakumar as null and void. At the stage of final arguments of the said suit, an application to amend the plaint was made to include an additional relief to set aside the settlement deed executed in favour of the appellant’s son as null and void. But this interim application was rightly dismissed and it was upheld by this Court and the Supreme Court as well. In all the stages, the petitions filed by the respondents were dismissed. These facts would make it clear that the respondent’s greed over the property in the name of Sivakumar was the cause for the respondent to resort to acts of mental and physical torture.

  • 27. Finally, we have to consider whether there is any possibility for redemption of the matrimonial life of the parties, when admittedly the parties have been living separately for more than a decade, i.e. right from the date of petition for divorce. The appellant’s contention that the respondent’s two earlier marriages ended in failure has been spoken of by the latter in her oral evidence. Numerous suits and police complaint have been lodged by the respondent whereby it is not possible to reconcile and compromise. The police complaint dated 30.01.1997 has been marked in respect of harassment of the respondent on the appellant. Similarly, the respondent has given police complaint against the appellant and his son has been summoned for enquiry on numerous occasions. Therefore, there has been a constant harassment on account of these complaints.

    1. All the above instances do really substantiate the acts of mental cruelty and lay a firm foundation for grant of divorce. Hence, in our considered view, it is established from the instances pleaded and proved by evidence, both oral and documentary, in support of the appellant that the Family Court, has not looked into these evidence based on the legal propositions and the established rule of law. That apart, the decisions relied on by the counsel for the respondent are those of the High Courts whereas the counsel for the appellant has relied on some important decisions of the Supreme Court more particularly in the decision reported in (1975) 2 SCC 326 in the case of Dr. N.G. Dastane vs. Mrs. S. Dastane (supra) and High Courts as well and since we are bound to abide by the rulings of the Supreme Court which are more relevant to the facts of the case of hand, we are of the opinion that the appellant should have been granted divorce by the Family Court.
  • In view of what has been stated above, we hold that the decision of the Family Court is not correct and the judgment of the Family Court which is under challenge is liable to quashed and is accordingly quashed and the FCOP filed for divorce under Section 13(1) (i-a) of the Hindu Marriage Act, 1955 is allowed thereby granting divorce by dissolving the marriage held on 23.08.1992 between the appellant and respondent and in the result, the appeal is allowed. No costs. Consequently, the connected C.M.P. is closed.

  • cad To

    1. The I Additional Judge Family Court Madras
  • The Record Keeper V.R. Section High Court of Madras [PRV/8756]

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