Tag Archives: divorce denied

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

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

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 15TH DAY OF OCTOBER, 2014

PRESENT

THE HON’BLE MR. JUSTICE K.L.MANJUNATH

AND

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

BETWEEN:

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

AND:

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

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

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

JUDGMENT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ORDER

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

Sd/-

JUDGE Sd/-

JUDGE JT/-

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Married ’94, fight since day1, 498A 406 323 324 34, hubby &parents arrestd, stil NO divorce in 2011. 17yrs of such life & still NO respite

Married in 1994, the couple seem to be fighting since very early days of matrimony. Wife leaves Matri home and also files multiple criminal cacses u/s 498A 406 323 324 34 of IPC. Hubby &parents are arrested and lodged in Tihar. Wife pursues other criminal cases as well. Stil NO divorce in 2011. 17yrs of such life & still NO respite

In this case couple seem to have been fighting since the very start of marriage. The wife had many complaints against the husband and also left him circa 1998. She filed multiple criminal cases as detailed below. the Husband and parents were arrested and lodged in Tihar Jail when wife was activly moving to deny bail and also filed revision when husband go out. She further filed assault etc cases on the husband and continued hounding him. Appreciating all this husband obtained divorce from lower court the Hon. HC sets aside the divorce.

Excerpts from the case :
“…In so far as the complaint made by the appellant under Section 498-A/406 IPC is concerned, the respondent, his parents and his brother were arrested. Counsel also stated that cancellation of bail of the brother of the appellant was sought by the appellant when he was yet to be released from Tihar Jail after the grant of bail to him by the Court vide order dated 18.12.1998. Counsel further submitted that the appellant went to the extent of assailing the dismissal of cancellation order by way of filing a revision petition before the Sessions Court. Counsel also submitted that the appellant has filed a criminal complaint against the respondent invoking the provisions of the Domestic Violence Act, besides filing a civil suit for recovery of the dowry articles. Counsel also submitted that for all these the respondent had proved on record various orders passed by the respective courts ….”

“…Counsel also submitted that the appellant has filed a criminal complaint against the respondent invoking the provisions of the Domestic Violence Act, besides filing a civil suit for recovery of the dowry articles. Counsel also submitted that for all these the respondent had proved on record various orders passed by the respective courts and also all these acts were committed by the appellant after 29.11.1998 from which date the parties have been living separately. Counsel also submitted that by filing a petition under Section 482 Cr.P.C. by the appellant challenging the order passed by the learned trial court on the application of the appellant moved by her under Section 319 Cr.P.C. would further show that the appellant was still chasing the respondent with the sole motive to harass him and to cause mental agony and tension to him. Counsel also submitted that the spate of criminal complaints filed by the appellant would clearly show that the offer made by her before the learned trial court as well as before this Court of joining back the company of the respondent was false and contrary to her conduct….”

The wife also make baseless character assasinations against the husband as follows “23. The learned trial court also returned yet another wrong finding in paragraph-22 of the impugned judgment by taking a view that the allegations leveled by the appellant in the petition filed under Section 18 of the Hindu Adoption and Maintenance Act attributing illicit relationship of the respondent with a concubine named Pinki resulted in causing cruelty to the appellant in the absence of any cogent evidence led by the appellant to prove the same before the Matrimonial Court. ….”

Actually in this case the wife is challenging the divorce because she doesn’t want the husband to give divorce :
“…By this appeal filed under Section 28 of the Hindu Marriage Act, 1955 the appellant (wife) seeks to challenge the judgment and decree dated 02.05.2009 whereby the petition filed by the respondent (husband) for divorce under Sections 13(1) (ia) and (ib) of the Hindu Marriage Act was allowed by the learned trial court in favour of the respondent (husband) ….”

…and In 2011, the hourable court decides that

“…. Thus, taking a panoramic view of the case at hand, this court is of the considered view that the learned trial court failed to appreciate the pleadings of the parties and the evidence adduced by them in support thereof including the applicable law both on the ground of cruelty and desertion in the right perspective. While adjudicating matrimonial cases, the courts have to be cautious and conscious of the fact that the holy bond of matrimony involves delicate human emotions and complex situations and often there gets created a chasm which if fortified by the court can lead to irredeemable destruction.

28. In the light of the aforesaid discussion, the present appeal is allowed and the impugned judgment and decree dated 02.05.2009 passed by the learned trial court is hereby set aside…….”

Meaning NO divorce in 2011 even !!

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 06.01.2011

Judgment delivered on: 08.04.2011

MAT.APP.52/2009

Smt.Kavita ……Appellant Through: Mr.S.K.Bhalla, Adv.
Vs.
Shri Rakesh Raman ……Respondent. Through: Mr.V. K. Khurana, Adv.

CORAM:HON’BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may Yes be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes in the Digest?

KAILASH GAMBHIR, J.

1. By this appeal filed under Section 28 of the Hindu Marriage Act, 1955 the appellant seeks to challenge the judgment and decree dated 02.05.2009 whereby the petition filed by the respondent for divorce under Sections 13(1) (ia) and (ib) of the Hindu Marriage Act was allowed by the learned trial court in favour of the respondent and against the appellant.

2. Brief facts of the case relevant for deciding the present appeal are that the parties got married on 16.4.94 in Delhi according to Hindu rites and ceremonies. It is the case of the respondent husband that the appellant wife started harassing him on one pretext or the other like demand for a separate residence, getting her pregnancy aborted without the consent of the respondent, alleging that her life has been ruined by marrying a simple clerk and other such imputations. It was also the case of the respondent that the appellant used to leave the matrimonial home time and again and hassled by the conduct of the appellant, the respondent filed a petition for divorce on the ground of cruelty and desertion which vide judgment and decree dated 2.5.09 was granted in favour of the respondent. Feeling aggrieved with the same, the appellant has preferred the present appeal.

3. Assailing the finding of the learned trial court in para-15 of the impugned judgment, Mr.Bhalla, learned counsel for the appellant submitted that the civil suit referred to in the said para i.e. Ex.PW-1/A filed by the respondent for mandatory injunction was wrongly taken into consideration by the learned trial court as it was filed by the respondent just to create an evidence in his favour, as in the said suit the appellant was never served with the notice/summon and no evidence was produced by the respondent before the trial court to prove the fact that the appellant was served with the notice or had appeared in the matter. Assailing the finding of the learned trial court in para-16 of the impugned judgment, Mr.Bhalla stated that the order dated 11.06.2003 Ex.PW-1/C passed by the learned Magistrate in the criminal complaint filed by the appellant under Section 323/324/34 IPC is still under challenge before this Court in the petition under Section 482 Cr.P.C. filed by the appellant being challenging the order of the learned trial court dismissing the application moved by the appellant under Section 319 Cr.P.C. to seek re-trial of the respondent. Counsel, however, admitted the fact that the petition under Section 482 Cr.P.C. was filed by the appellant after the passing of the impugned judgment. Counsel also admitted that even the order of the learned Magistrate came to be passed after the passing of the impugned judgment. The contention of counsel for the appellant was that this order dated 11.06.2003 has not attained finality yet.

4. So far the institution of Kalandra Ex.PW-1/D dated 17.06.1999 by the appellant is concerned, as referred to in para-16 of the impugned judgment, counsel submitted that the appellant was well within her right to lodge/institute the Kalandara as the respondent, his father and brother came to the parental house of the appellant and committed the act of breach of peace and created a scene at that place, against which the police had taken action. Counsel thus submitted that the appellant-wife committed no wrong in lodging the said complaint against the respondent and the said accomplices. Counsel also submitted that the said kalandara proceedings were dropped by the Magistrate on 12.7.2000 on the technical ground that the Magistrate had failed to take a decision within the mandatory period of six months from the date of registration of the kalandara and therefore for the said dropping of the kalandara proceedings no fault can be attributed to the appellant. Counsel further submitted that the proceedings against the respondent and his family members are still pending trial under Section 498-A IPC in the court of Smt. Twinkle Wadhwan, M.M. and therefore even if the respondent and his family members were discharged under Section 406 of the IPC on 13.9.2000, the same would not have the effect of absolving them for the acts of cruelty committed by them. Counsel also submitted that simply because of the fact that there was acquittal of the respondent and his family members in a criminal case, that would not lead to the conclusion that an act of cruelty was committed by the appellant in getting the FIR registered against the respondent and his family members as it is the right given to a citizen under the law that whenever any criminal act is committed by the other party, to take recourse to filing of a compliant. Counsel also submitted that the learned trial court failed to appreciate the dictum of law laid down by this Court in Krishan Kumar Vs. Shankari II (2007) DMC 367, on the wrong analogy that filing of more criminal cases by the wife will amount to cruelty unlike in the case of Krishan Kumar (supra) where there was only one criminal case instituted by the wife against her husband.

5. Assailing the finding of the learned trial court in para 18 of the impugned judgment where it has held that the appellant said that her life was ruined by marrying a clerk and it caused cruelty to the respondent, the counsel submitted that the respondent failed to prove that any such utterances were made by the appellant. The contention of the counsel was that no independent witness was produced by the respondent to prove that any such allegation was leveled by the appellant against the respondent. Counsel also submitted that in the written statement, this allegation has been duly refuted by the appellant. Counsel also submitted that the learned trial court wrongly gave weightage to the evidence of the respondent while ignoring the evidence of the appellant. The contention of the counsel was that if there is an evidence of one party against the other party i.e. oath vs. oath then in the absence of any corroboration, the evidence of one party cannot be accepted over the other. Further assailing the correctness of the finding given by the learned trial court in para 19 of the impugned judgment, the counsel submitted that the learned trial court has not given the details of the documentary evidence in the said para based on which the court made the observation that it is not the quantity but the quality of the witnesses which is to be weighed. Counsel further submitted that the documentary evidence which was placed on record by the respondent was manipulated by him and the same was self serving evidence and therefore the learned trial court ought not to have placed any reliance on such manipulative and self serving documentary evidence placed on record by the respondent.

6. Counsel for the appellant further submitted that the respondent admittedly failed to pay the amount of maintenance as granted by the learned trial court despite the grant of decree under Section 18 of the Hindu Adoption and Maintenance Act but this fact was not considered by the learned trial court which fact would clearly prove that the respondent husband was trying to take advantage of his own wrongs and therefore he was not entitled to the grant of decree of divorce in terms of Section 23(1) of the Hindu Marriage Act. Counsel further submitted that the learned trial court in the said case under Section 18 of the Hindu Adoption and Maintenance Act vide judgment dated 31.10.2002 took a view that the appellant in that case was able to show in her evidence that the respondent had illicit relationship with another woman and which fact became a cause of irritation between the parties and due to which the appellant was forced to leave her matrimonial house. The contention of the counsel was that the said finding of the court in the Hindu Adoption & Maintenance Case has a binding effect in terms of Section 11 of CP.C and such an observation in the judgment in a case between the parties is also a relevant fact under Section 6 & 13 of the Indian Evidence Act. Counsel for the appellant in this regard invited attention of this court to paras 22, 33 & 34 of the judgment dated 31.10.2002 and submitted that perusal of the said paras would clearly reveal that the conduct of the respondent is out of bounds of the expected and reasonable conduct and based on the said observations of the court, he was not entitled to the grant of decree of divorce. Counsel further submitted that the appellant had also proved on record before the trial court that the respondent failed to pay the maintenance amount despite repeated applications moved by her before the concerned court in Section 18 proceedings and this deliberate act on the part of the respondent in not paying the maintenance amount even despite directions given by the maintenance court would clearly demonstrate the mala fide conduct of the respondent who wanted to pressurize the appellant to succumb to his dictates and to come under pressure to agree for divorce. Counsel also submitted that the appellant had placed on record the relevant order dated 15.04.2008 of the said court before the trial court by which direction for increase in the maintenance amount to Rs.4,000/- along with direction to clear the arrears of maintenance was given. Counsel also submitted that the judgment of the Apex Court cited by the appellant in the case of Hirachand Srinivas Managaonkar Vs. Sunanda (2001) 4 SCC 125 was ignored by the learned trial court where the Apex Court held that non-payment of maintenance would lead to striking off the defence of the petitioner seeking divorce. Counsel also submitted that a separate application was moved by the appellant before the trial court under Section 24 of the Hindu Marriage Act but no maintenance under the said provision was granted by the court in favour of the appellant on the ground that already an interim maintenance was allowed in her favour by the other court under Section 18 of the Hindu Adoption and Maintenance Act proceedings. Counsel also submitted that the appellant had also moved three applications for dismissal of the divorce petition filed by the respondent on account of persistent defaults committed by him in paying the maintenance amount under Section 18 proceedings. (1st application dated 19.04.07 at page 731, 2nd application dated 13.7.07 at page 739 and the 3rd application dated 7.05.08 at page 759). Counsel also submitted that the conduct of the respondent is apparently offending even before this court as he had not been timely paying the maintenance amount to the appellant.

7. Counsel further submitted that the appellant has always been ready and willing to join back the company of the respondent and this fact can be borne out from the orders dated 05.10.2004, 08.10.2004 and 10.11.2008 passed by the learned trial court. Counsel further submitted that even now also the appellant is prepared to forgive the respondent for his past misconduct and can join the company of the respondent.

8. Mr.Khurana, learned counsel appearing for the respondent opposing the present appeal submitted that a number of false and vexatious complaints were lodged by the appellant against the respondent and his family members with the sole object to unnecessarily harass them due to which the respondent and his family members had to appear before various authorities. In so far as the complaint made by the appellant under Section 498-A/406 IPC is concerned, the respondent, his parents and his brother were arrested. Counsel also stated that cancellation of bail of the brother of the appellant was sought by the appellant when he was yet to be released from Tihar Jail after the grant of bail to him by the Court vide order dated 18.12.1998. Counsel further submitted that the appellant went to the extent of assailing the dismissal of cancellation order by way of filing a revision petition before the Sessions Court. Counsel also submitted that the appellant has filed a criminal complaint against the respondent invoking the provisions of the Domestic Violence Act, besides filing a civil suit for recovery of the dowry articles. Counsel also submitted that for all these the respondent had proved on record various orders passed by the respective courts and also all these acts were committed by the appellant after 29.11.1998 from which date the parties have been living separately. Counsel also submitted that by filing a petition under Section 482 Cr.P.C. by the appellant challenging the order passed by the learned trial court on the application of the appellant moved by her under Section 319 Cr.P.C. would further show that the appellant was still chasing the respondent with the sole motive to harass him and to cause mental agony and tension to him. Counsel also submitted that the spate of criminal complaints filed by the appellant would clearly show that the offer made by her before the learned trial court as well as before this Court of joining back the company of the respondent was false and contrary to her conduct. Counsel for the respondent also submitted that the complaint lodged by the appellant which led to the registration of a Kalandara under Section 107/150 Cr.P.C. and proved on record as Ex.PW-1/D is based on entirely different facts than what has been represented by the counsel for the appellant before this Court. Counsel also submitted that with the lodging of all these complaints by the appellant the previous acts of cruelty committed by the appellant would also get revived in view of the settled legal position.

9. Counsel for the respondent further submitted that the appellant failed to cross-examine the respondent to refute the statement given by him in his examination-in-chief stating that the appellant used to taunt the respondent by saying that her life was ruined by marrying a clerk. Counsel thus stated that the learned trial court in para-18 of the impugned judgment has correctly observed that such taunts of the appellant caused cruelty to the respondent.

10. Explaining the conduct of the respondent on the aspect of maintenance, counsel submitted that no order under Section 24 of the Hindu Marriage Act was passed by the learned trial court and, therefore, the appellant could not have any grievance so far the non-payment of maintenance amount in the related proceedings filed by the appellant under Section 18 of the Hindu Adoption and Maintenance Act was concerned. Counsel for the respondent also submitted that the learned trial court in the execution proceedings had directed attachment of the salary of the respondent and the maintenance amount from the salary of the respondent has already been deducted. Counsel also submitted that the respondent has also cleared/paid the upto-date amount of maintenance to the appellant and, therefore, no fault can be found by this Court so far the payment of maintenance amount by the respondent is concerned. Counsel also submitted that all the three applications filed by the appellant before the learned trial court seeking dismissal of the case of the petitioner or striking off his defence were dismissed by the court and those orders were not challenged by the appellant and thus attained finality. Counsel thus stated that the respondent cannot be accused of not paying the maintenance amount to the appellant. Counsel also submitted that as per the deposition of RW-2, father of the appellant, he has admitted the fact that the appellant was getting the maintenance amount from the salary of the respondent as per the orders of the court.

11. Counsel for the respondent also submitted that the observation made by the learned trial court in para 22 in Section 18 proceedings judgment dated 31.10.2002 cannot have any binding effect and the said observations cannot be treated as final between the parties. The contention of the counsel for the respondent was that the principle of res judicata will not be attracted because the learned court in the said case was dealing with an entirely different subject matter, being concerned with the limited question of grant of maintenance to the appellant and any observation made by the learned trial court in the said order cannot be treated as res judicata between the parties. Counsel thus stated that in the impugned judgment, the learned trial court has correctly dealt with the issue on this aspect. Counsel also submitted that the appellant failed to prove any kind of illicit relationship of the respondent as alleged with a lady named Pinki in the present proceedings and therefore such serious allegations leveled by the appellant in itself amounts to causing cruelty upon the respondent husband.

12. I have heard learned counsel for the parties at considerable length and taken into consideration the contentions raised by them and have also gone through the records of the case.

13. The respondent-husband had filed a divorce petition on the ground of cruelty and desertion as envisaged under Section 13(1) (ia) and 13(1) (ib) of the Hindu Marriage Act, 1955 and his petition was allowed by the learned trial court on both the grounds vide judgment dated 2.5.2009.

14. So far the decree passed by the learned trial court on the ground of desertion is concerned, learned counsel for the respondent very fairly conceded to the fact that the impugned judgment cannot sustain on account of the fact that the respondent failed to prove on record the ground of desertion by satisfying the necessary ingredients of Section 13 (1) (ib) of the Hindu Marriage Act. It is a settled legal position that to claim a decree on the ground of desertion so far the deserting spouse is concerned, two essential conditions required to be proved are (i) factum of separation and (ii) intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two ingredients are essential so far the deserted spouse is concerned i.e. (i) absence of consent and (ii) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The learned trial court has granted the decree of divorce on the ground of desertion in favour of the respondent only due to the fact that the appellant did not give any cogent ground to desert the respondent and thereafter of not returning back. The learned trial court failed to deliberate on issue No.2 in a proper perspective and has given the said finding in favour of the respondent without appreciating the said essentials required to be proved before granting a decree of divorce on the ground of desertion. It is a settled legal position that the onus is on the petitioner to not merely prove the factum of desertion on the part of the deserting spouse but also to establish the fact that the said desertion on the part of the deserting spouse is with a view to bring co-habitation permanently to an end. Mere fact that the appellant did not allow the respondent to enter in his own house on 29.11.1998 would not prove the fact that she had the intention to bring the cohabitation permanently to an end. Thus, the findings of the learned trial court on issue No.2 are clearly perverse and illegal and, therefore, the decree granted by the learned trial court on the ground of desertion is hereby set aside.

15. The other ground, on which the learned trial court has granted the decree of divorce in favour of the respondent and against the appellant is the ground of cruelty as envisaged under Section 13(1) (ia) of the Hindu Marriage Act. Before I deal with the rival submissions of learned counsel for both the parties, it would be desirable to decipher the foundation on which the learned trial court granted the said decree on the ground of cruelty in favour of the respondent and against the appellant. The learned trial court did not consider the allegations leveled by the respondent in paras 6,7,8,9 and 10 of the petition, as these paragraphs were found to be vague with no date, month and year of the incidents mentioned therein. The learned trial court also came to the conclusion that with the cohabitation of the parties till 29.11.1998 the respondent had condoned the acts of cruelty of the appellant-wife till the said date. The learned trial court then went on to examine the acts of cruelty committed by the appellant on or after 29.11.1998 and also revival of the previous acts of cruelty due to the said subsequent acts of cruelty committed by the appellant after 29.11.1998. The first act of cruelty committed by the appellant as per the finding of the learned trial court is that on 29.11.1998 the respondent was not allowed to enter his own house by the appellant which led to the filing of the civil suit for mandatory injunction on 01.12.1998 and such an act on the part of the appellant not permitting the respondent to enter in his own house has been treated as an act of cruelty on the part of the appellant. Filing of various complaints by the appellant and also her taking other legal remedies were also taken as cruel acts committed by the appellant towards the respondent. Filing of complaint by the appellant under Sections 323/324/34 IPC against the respondent, his parents and his brother on 17.03.1999; registration of a Kalandra under Section 107/150 Cr.P.C. on 17.6.99 at the instance of the appellant against the respondent, his brother and father; registration of an FIR at the instance of the appellant against the respondent and his family members under Sections 498A/406 IPC; filing of an application by the appellant to seek cancellation of bail of the brother of the appellant while he was still in custody and filing of a revision petition against the dismissal of such an application; all these acts of filing of complaints and registration of cases by the appellant were treated by the learned trial court as serious acts of cruelty perpetrated by the appellant. The learned trial court also held that such acts of cruelty committed by the appellant also revived the previous acts of cruelty committed by her. The learned trial court also distinguished the judgment of this Court in Krishan Kumar Vs. Shankri II (2007) DMC 367 Delhi on the analogy that in the said case there was only one criminal proceeding while in the present case there were many such cases filed by the appellant and also the fact that in the former case the revision petition against the order of discharge was allowed by the Sessions Court and in the facts of the present case no such revision was filed by the appellant. The learned trial court also found that the taunt of the appellant that her life was ruined by her family by marrying her with a clerk was an act of cruelty committed by the respondent. The aforesaid findings formed the genesis to grant the decree of divorce by the learned trial court on the ground of cruelty in favour of the respondent and against the appellant.

16. Institution of criminal case/cases by a wife against her husband and other family members of the husband would by itself constitute cruelty or not is a subject matter of discussion in various decisions of this High Court and various other Courts. It is also a matter of discussion whether such criminal proceedings if result into an acquittal, then, whether such acquittal by itself would prove cruelty or not. Criminal proceedings which are usually filed from the side of the wife in matrimonial proceedings are either under the provisions of Sections 498-A/406 of the Indian Penal Code or under the relevant provisions of the Domestic Violence Act. It cannot be denied that it is the legitimate right of the wife or of the husband to resort to various legal remedies as available to them under various statutes to seek rederessal of their grievances and to take necessary action against the culpability of other spouse and/or his/her family members. Mere resort to institution of criminal proceedings by either of the spouse thus cannot be taken to be an act of cruelty on the part of such a spouse. Filing of such criminal proceedings either can result in the discharge/acquittal or in conviction of one or the other members of the family of the spouse or the spouse himself/herself. Then there can be a challenge to such orders/judgments by the aggrieved party. The acquittal in the criminal proceedings can also take place due to several factors as before a criminal court the prosecution has to establish the case beyond reasonable doubt. Most of the criminal cases result into acquittal due to host of factors such as the witnesses turning hostile or due to the non-availability of the eye-witness or due to inefficient handling of the investigation by the Investigating Officer of the case and for various other factors. In matrimonial offences, the acquittal rate is comparatively higher because usually no outsider is a witness to various disputes and in-fighting between the husband and wife and their respective family members generally happens within the four walls of the matrimonial home. In this backdrop it would be difficult to accept the proposition that filing of criminal cases by the wife or even the criminal cases resulting into acquittal by itself would constitute cruelty on the part of such spouse.

17. Undoubtedly, in the facts of the present case, a number of criminal cases were filed by the appellant, but merely because of number of cases filed by the appellant are more therefore, this factor of quantity of more cases should go against the appellant. The pivotal question should be that in what circumstances the appellant had filed such cases and whether the given background afforded any justifiable reason to the appellant to file such cases or not and if it is found that filing of such cases is on absolutely false and baseless grounds tainted with ulterior motives, then certainly it can be held that filing of such criminal cases would constitute cruelty on the part of such spouse.

18. FIR No.379/1998 was registered at the instance of the appellant under Sections 498-A/406 IPC against the respondent and his family members based on the allegations levelled by the appellant that the respondent and his family members refused to return the jewellery and other dowry articles and also she was being subjected to harassment on account of insufficient dowry and also because of the further dowry demands. DD No.57 A was lodged by the appellant as she complained that on 16.02.1998 the respondent along with his parents and his brother Ravinder Singh had assaulted her and in fact inflicted injuries on her. The appellant even got herself medically examined with the help of her sister-in-law (bhabhi) at Anand Parbat Dispensary on 19.02.1998. A complaint case under Sections 323/324/34 IPC was filed by the appellant and the said complaint was based on the reported incident of assault by the respondent and his family members on 16.02.1998 and the incident relating to the alleged attempt of the accused persons named therein to kill the appellant on 29.09.1998. The said complaint filed by the appellant was supported with the MLC prepared by the Doctors of Ram Manohar Lohia Hospital wherein the injury suffered by the appellant was diagnosed as a ‘blunt injury’ upon the abdomen. The learned Metropolitan Magistrate, however, directed framing of charges against the accused persons only under Sections 323/34 IPC after finding that the nature of injury opined by the doctor was simple and the weapon used by the accused persons in the commission of the alleged offence was opined as ‘blunt’. The final order passed by the learned Metropolitan Magistrate vide order dated 11.06.2003 in the matter relating to FIR No.306/2000 directing discharge of accused persons under Sections 323/34 IPC which was challenged by the appellant by moving an application under Section 319 Cr.P.C. which was dismissed and was further challenged by the appellant under Section 482 Cr.P.C. and is pending consideration before this court. The appellant has also given due explanation for the registration of Kalandra against the accused persons vide Ex.PW-1/D as the respondent, his father and brother allegedly came to the parental house of the appellant where they had made an attempt to breach the peace of the appellant and also created an ugly scene warranting action against them.

19. The dictum of law as laid down by this court in the case of Krishan Kumar (supra) and Harish Chander Drall vs. Suresh Wati II (2007) DMC 450 is that the mere fact that the criminal proceedings have been instituted by one spouse against the other the same would not constitute cruelty by itself, even if such criminal proceedings end up in acquittal. It would also be pertinent to refer to the recent judgment of the Madras High Court in the case of Jayakumari vs. Balachander 2010(TLS) 1243604 where it has been held that:

“30. The term ‘cruelty’ consists of unwarranted and unjustifiable conduct on the part of defendant causing other spouse to endure suffering and distress thereby destroying peace of mind and making living with such spouse unbearable, completely destroying real purpose and object of matrimony. It would of course be difficult to define the expression “cruelty’. There cannot be any hard and fast rule in interpreting the same. As pointed out, the word “cruelty” cannot be put in a strait-jacket of judicial definition. It must be judged on the facts of each case having regard to the surrounding circumstances. Whether one spouse is guilty of cruelty is essentially a question of fact and previously decided cases have little, if any, value. The term ‘cruelty’ is not defined in the Act. It is to be judged by taking into consideration the status of life, the standard of living, the family background and the society in which the parties are accustomed to move because particular behaviour may amount to cruelty in one set of circumstances and may not be so in other set of circumstances. Observing that merely because criminal proceedings under Sec.498A IPC initiated by wife against her husband and his parents ended in acquittal and it cannot be treated as an instance which goes infavour of the husband to substantiate the plea of cruelty, in AIR 2006 AP 269 [Chiranjeevi v. Lavanya], the Division Bench of Andhra Pradesh High Court held as follows:-

“22. Much arguments have been advanced by the learned counsel appearing for the appellant-husband and his parents that a criminal case on a full fledged trial is an incident which constitutes cruelty on the part of the respondent-wife who initiated criminal proceedings. We have gone through the judgment, which has been marked as Ex.B-6. The criminal case ended in acquittal on the ground that the prosecution failed to prove the case against the accused beyond all reasonable doubt. The acquittal of the case is not on the ground of no evidence. It is settled law that nature of evidence required in a criminal case is of different standards and the same standards and proof is not required in civil proceedings. Therefore, mere acquittal of the appellant-husband and his parents in criminal case cannot be treated as instance which goes in favour of the appellant-accused to substantiate the plea of cruelty, on which a decree of divorce has been sought for.”

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

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

Therefore, as per the settled position of law ,looking into the background of the aforementioned criminal cases filed by the appellant, it is difficult to accept the argument of the counsel for the respondent that the same were filed by the appellant just with a view to harass the respondent and the same were without any basis. This Court, therefore, does not find any merit in the reasoning given by the learned trial court that since there were more criminal cases filed by the appellant, therefore, filing of such criminal cases would constitute cruelty to the respondent.

20. The concept of cruelty is of very wide amplitude and has not been defined in the Act and rightly so as it is not possible to put it down in a strait jacket formula. However, the benchmark evolved through judicial pronouncements is that the conscience of the court should be satisfied that it is not possible for the parties to live together without mental agony and pain anymore. But the conduct complained of should be such that there is a reasonable apprehension in the mind of the complaining party that there is danger to limb or life or mental health in living together. The conduct should be something much more than the ordinary wear and tear of married life and should touch a certain pitch of severity. What may be cruelty in one case may not be cruelty in the other case and each case has to be seen from the prism of its own peculiar fact situation. Here it would be useful to refer to the judgment of the Apex Court in the case of Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 where the Apex Court after analyzing the entire law on the aspect of mental cruelty gave a treatise enlisting non exhaustive situations which can be treated as mental cruelty, out of which the following extract reproduced seems germane in the present context: “On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of ‘mental cruelty’ within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty.

73. Human mind is extremely complex and human behavior is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behavior in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.

74. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behavior which may be relevant in dealing with the cases of ‘mental cruelty’. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

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

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

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

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behavior of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

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

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

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

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

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

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”

Thus while appreciating the law as settled by the Apex court in the above, alongwith a catena of other judgments the present case has to be evaluated. The filing of criminal cases will not amount to mental cruelty as already discussed above, but the other acts alleged to have caused mental cruelty or not have to be analysed.

21. The prime ground which impressed the learned trial court to treat it as an act of cruelty was that the appellant did not allow the respondent to enter his own house on 29.11.1998 when he had returned from his office. This finding was given by the learned trial court primarily by getting influenced from the fact that due to his alleged ouster from his own house on 29.11.1998 the respondent had to file a civil suit for mandatory injunction in which the respondent also made a statement to the effect that he got his belongings back with the help of the police. This finding of the learned trial court is clearly perverse as the learned trial court did not appreciate the fact that the appellant was never served with any notice/summon in the said case and, therefore, the appellant had no opportunity to rebut the averments made by the respondent in the said civil suit. Filing of the civil suit and its withdrawal by the respondent could not have been taken as adverse against the appellant to believe that the respondent was actually ousted by the appellant from the matrimonial house.

22. So far the allegation of the respondent that the appellant used to say that her family had ruined her life by marrying her with a clerk and the same constituted as an act of cruelty, this Court is of the view that such a circumstance by itself cannot be taken as a grave act on the part of the appellant to entitle the respondent to claim a decree of divorce on the alleged assertion of the appellant. Even otherwise, no evidence was led by the respondent to show that in whose presence such an accusation was made by the appellant.

23. The learned trial court also returned yet another wrong finding in paragraph-22 of the impugned judgment by taking a view that the allegations leveled by the appellant in the petition filed under Section 18 of the Hindu Adoption and Maintenance Act attributing illicit relationship of the respondent with a concubine named Pinki resulted in causing cruelty to the appellant in the absence of any cogent evidence led by the appellant to prove the same before the Matrimonial Court. It is no doubt a settled legal position that leveling of false, baseless and defamatory allegations by one spouse against the other regarding illicit relations would constitute an act of cruelty on the part of such spouse but that is not the case here as the respondent neither in his petition nor in his evidence made any such grievance that such allegations leveled by the appellant in Section 18 proceedings caused cruelty to him. The observations made by the Court in the judgment dated 31.11.2002 in Section 18 proceedings observing that the respondent had illicit relationship with another woman, which became a further cause of irritation to the appellant could not be taken adverse against the appellant, if not favourable to her. Although I do not agree with the argument of the counsel for the appellant that the said observation of the Civil Court in the said judgment under Section 18 of the Hindu Adoption and Maintenance Act will operate as res judicata but at the same time the finding of the learned Trial Court to hold such an observation against the appellant is equally unacceptable.

24. Mental cruelty indeed is not as easy to establish as physical cruelty but the impact of the alleged cruel incidents on the mind of the complaining spouse has to be deliberated upon. However an isolated or stray incident, an angry look, a random quarrel, a sugar coated insult or a taunt cannot lead the court to grant a decree of divorce. The question that needs to be addressed is that whether the cruelty alleged is antithetic to love and affection, the two basic pillars of matrimony and whether it has poisoned and polluted the bond of conjugal kindness to such an extent that marriage itself has become a Damocles’ sword for the parties? In the present case, the constant harping of the respondent of the torture and mental agony caused by the institution of criminal proceedings cannot be amplified to strain the matrimonial chord to the extent that it is broken down. The other acts alleged, are the unuttered flutters of married life and hence cannot be given the sanction of cruelty as envisaged under section 13(1) (ia) of the Hindu Marriage Act.

25. Now dealing with the argument of the counsel for the appellant that the respondent was not entitled to the grant of the decree of divorce as by his persistent default in the payment of the interim maintenance the grant of decree in favour of the respondent would be against the principles of law envisaged under Section 23(1) of the Hindu Marriage Act. Counsel for the respondent, on the other hand, contended that no order under Section 24 of the Act was passed by the learned trial court and, therefore, there was no default on his part in the payment of any maintenance amount so far the matrimonial proceedings were concerned. The contention of the counsel for the respondent was that non-payment of any interim maintenance in the related proceedings would not defeat the right of the respondent, if otherwise he had sufficiently proved on record his case, based on which the decree of divorce was sought by the respondent.

26. It is not in dispute between the parties that no order under Section 24 of the Hindu Marriage Act was passed by the learned trial court. It is also not in dispute that the said order was not passed by the learned trial court considering the fact that a similar order for the grant of maintenance was passed by the civil court in a related matter filed by the appellant under Section 18 of the Hindu Maintenance and Adoption Act. It is also not in dispute that the respondent- husband was a persistent defaulter in the payment of the said maintenance amount which led the appellant to move applications before the learned trial court to seek striking off of the defence of the respondent. Although the said applications filed by the appellant were dismissed by the learned trial court taking into account the fact that since no order for maintenance was granted by the matrimonial court under Section 24 therefore, the defence of the respondent could not be struck off. There was no justification on the part of the respondent not to pay the maintenance amount as order under Section 24 of the HMA was not passed by the Maintenance Court only because the Civil Court has passed a similar order in Section 18 proceedings. Grant of interim maintenance during the pendency of the proceedings has been recognized as an indefeasible right of the non-earning spouse and the non-payment of the same by the earning spouse that too for no justifiable reason, should have been viewed seriously by the Trial Court. The appellant had moved an application bearing C.M.No.7697/2009 under Section 24 of the Hindu Marriage Act to seek maintenance amount from the respondent @ Rs.6,000/- per month and this Court vide order dated 29.09.2010 gave direction to the respondent to pay the entire arrears of the maintenance amount at the first instance while revising the earlier maintenance amount from Rs.4,000/- to Rs.6,000/- per month. In compliance with the said directions given by this Court, the respondent had paid an amount of Rs.1,21,000/- to the appellant by way of two demand drafts and then again a sum of Rs.23,350/- by way of a cheque. Taking into account the aforesaid development, this Court is of the view that since the respondent has cleared the entire outstanding dues towards the arrears of the maintenance amount, so the argument of the counsel for the appellant of striking off the defence of the respondent would not be available to the appellant any more. I may also observe here that the appellant had also failed to challenge the orders passed by the learned trial court dismissing her applications seeking striking off of the defence of the respondent due to his failure to pay the maintenance amount and therefore the said plea would not be available to the appellant any more. It also cannot be lost sight of the fact that the appellant took independent remedy by filing an execution petition on account of the failure of the respondent to pay the arrears of the maintenance amount granted in her favour by the civil court in Section 18 proceedings. The Argument of learned counsel for the appellant that the learned Trial Court ought to have strike off the defence of the respondent due to the non- payment of the amount of interim maintenance will thus not sustain in the light of the above discussion.

27. Thus, taking a panoramic view of the case at hand, this court is of the considered view that the learned trial court failed to appreciate the pleadings of the parties and the evidence adduced by them in support thereof including the applicable law both on the ground of cruelty and desertion in the right perspective. While adjudicating matrimonial cases, the courts have to be cautious and conscious of the fact that the holy bond of matrimony involves delicate human emotions and complex situations and often there gets created a chasm which if fortified by the court can lead to irredeemable destruction.

28. In the light of the aforesaid discussion, the present appeal is allowed and the impugned judgment and decree dated 02.05.2009 passed by the learned trial court is hereby set aside.

April 08, 2011

KAILASH GAMBHIR,

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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‘Suicidal tendency NO ground for divorce’ : Mumbai family court !!; The Hon. court noted: “In modern times, th e male-dominated society does not want to change its attitude towards women… from a wife/daughter-in-law, they expect too much. Sometimes, it could go beyond her reasonable capacity and that is when such incidents probably take place.”

‘Suicidal tendency no ground for divorce’

Monday, Aug 12, 2013, 11:45 IST | Place: Mumbai | Agency: DNA

Mustafa Plumber

Court junks man’s plea, saying wife’s bid to end life is not cruelty to him.

A man does not suffer from any kind of cruelty if his wife tries to commit suicide, and it (the woman’s suicide bid) cannot be a ground for the husband to seek divorce from her. This is what the family court noted while rejecting a plea filed by the man who had sought annulment of their marriage.

Rejecting the plea, the court imposed a cost [financial penalty] on the man for filing such a petition. The court noted: “In modern times, the male-dominated society does not want to change its attitude towards women… from a wife/daughter-in-law, they expect too much. Sometimes, it could go beyond her reasonable capacity and that is when such incidents probably take place.”

According to the court petition that was filed, the couple got married in 2004. The couple has a daughter. On April 14, 2006, the woman had not got ready to attend the wedding ceremony of a close relative of the husband. Therefore, the man left without his wife.

Later, the woman tried to commit suicide by consuming poison and was taken to hospital. Subsequently, her brother lodged a complaint against her husband.

The man then filed for divorce in the family court. His contention was that due to his wife’s suicidal tendency, he apprehended great danger in living under the same roof as her. His attempts to get her back to his [husband’s] home had failed. He also contented that the behaviour of his wife was adversely affecting his health and the health of his family members. Due to these reasons, he had sought divorce on grounds of cruelty.

In her reply filed in the family court, the woman refuted the allegations made by her husband. Admitting that she had consumed poison in 2006, she explained that she had done so because her husband had refused to give her some time to fill milk in their child’s feeding bottle and that he had left in a huff to attend the wedding ceremony, leaving the house without her (the wife). She said in her reply that her husband’s behaviour made her feel lonely and insecure.

Appearing for the man, advocate Paresh Desai said that the court had, after going through arguments and replies filed by both parties, noted: “…there was total lack of understanding by the petitioner’s (man’s) family members towards the wife.

She should not be treated like a domestic help, and, in the present case, it appears that no love, affection and compassion or caring has been shown towards the woman due to which she had taken the step of consuming poison.”

Desai said that the man would appeal against the order in the high court.

http://www.dnaindia.com/mumbai/1873321/report-suicidal-tendency-no-ground-for-divorce


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Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

No sex on 1st night, No sex latr, Still husband looses at HC. why it’s key 2 prove wife’s actions!!

WIFE REFUSES SEX FIRST NIGHT! There is NO cohabitation the next 12 days as well

The wife is complaining of leg pain, stomach pain, what not and the wife is taken here there everywhere !!

Wife returns to her parental home very soon and refuses to return

Wife’s side file dowry complaint and so all police etc etc fo

Husband applies for Divorce on grounds of cruelty

Husband gets divorce family court.

11 YEARS LATR HC SETS ASIDE DIVORCE [wife seeks restitution ] !! and asks the husband and wife to go forth and …… as the HC feels that the husband’s case is not proven well !!

How do you expect people who have gone six times to police, many times to family court, many times to HC to patch up and live after 11 years ?? SAD SAD state of matrimony in India !!


IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 27.02.2012

CORAM

The Hon’ble Mr. Justice K.MOHAN RAM
and
The Hon’ble Mr. Justice G.M.AKBAR ALI

C.M.A.Nos.902, 903 and 2407 of 2010
and M.P.No.2 of 2010

J.Anitha.. Appellant in CMA Nos.902 & 903 / 2010
& Respondent in CMA No.2407 of 2010

Vs.

J.Prakash.. Respondent in CMA Nos.902 & 903 / 2010
& Appellant in CMA No.2407 / 2010

PRAYER IN CMA Nos.902 & 903 / 2010 .:Civil Miscellaneous Appeals filed under Section 19 of the Family Courts Act against the order of the learned Principal Judge, Family Court, Chennai, dated 21.12.2009 in O.P.Nos.1985 of 2001, 2268 of 2007.

PRAYER IN CMA No.2407 / 2010 .:Civil Miscellaneous Appeal filed under Section 19 of the Family Courts Act against the judgment and decree dated 21.12.2009 on the file of the Principal Family Court at Chennai in so far it is against the appellant in not granting the Dissolution of Marriage on the grounds of Nullity and Mental Disorder.

For Appellant in CMA Nos.902 & 903 / 2010 &
For Respondent in CMA No.2407 / 2010: Mr. V.Rangarajan
For Respondent in CMA No.902 & 903 / 2010 &
For Appellant in CMA No.2407 of 2407 / 2010: Mr. K.P.Gopalakrishnan


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

(Judgment of the Court was delivered by K.MOHAN RAM, J.)

CMA Nos.902and 903 of 2010 have been filed by the wife against the judgment and decree passed in O.P.No.1985 of 2002 and O.P.No.2268 of 2007 on the file of the Principal Family Court, Chennai, respectively. CMA No.2407 of 2010 has been filed by the husband against the judgment and decree passed in O.P.No.1985 of 2002 as far as disallowing of the prayer for divorce on the ground of mental disorder of the wife. 2. In these appeals, for the sake of convenience, the husband is referred to as the appellant and the wife is referred to as the respondent.

  1. The case of the appellant / husband before the Court below is as follows:-

a. The engagement between the appellant and the respondent was held on 02.07.2001. The appellant was not permitted to interact with the respondent before the marriage and he was not even allowed to visit the respondents house. The marriage between the appellant and the respondent was solemnized as per Hindu Rites and Customs on 05.09.2001 at Chennai. During the first night also, there was no change in the attitude of the respondent and she behaved inappropriately without any enthusiasm. She behaved very strangely and also childishly and did not allow the appellant even to touch her, leave alone entertaining the appellant to have sex and she appeared to be frightened and agitated. She was restless and impatient and the marriage was not consummated not only on the first night but also on the subsequent few days till 17.09.2001, when both of them were together.

  1. On the very first night of the marriage, the respondent informed the appellant that her marriage was performed against her will and consent and that she was not interested in marrying the appellant. From 06.09.2001, the respondent was only thinking of going back to her parents house and was consistently mentioning the same to the appellant. On 07.09.2001, she complained of leg pain and the appellants father took her to Dr.M.Subramaniam, MS., Ortho., on 11.09.2001 she complained of eye pain and hence she was taken by the appellant to Dr.Radhika, who after examining her, wanted her to be brought again the next day. The next day, though she left for the Doctors clinic along with the appellants father, she insisted on going to her parents house, at first, but upon reaching her parents house, she changed her mind and refused to go to the Doctor. She removed her Thali chain openly and refused to leave her parent’s house which action was fully supported by her parents. On 14.09.2001 the respondent and her parents visited the appellants grand fathers residence and wanted to reconcile the issue. On 15.09.2001, the respondent was taken to a psychiatrist viz., Dr.Mohanraj by her parents and the appellants grand father was also present at that time. After examining her, the Doctor felt that she was suffering from severe anxiety and the counseling was fixed for 20.09.2001. In the afternoon on 17.09.2001, the respondent complained of severe stomach pain, so she was taken to Dr.Radha Madhavan by the appellants mother. Though after taking medicines she was having some relief, she insisted on going to her parents house and she was found restless. The appellant felt that the respondents family is overtly possessive about her and hence he allowed the respondent to go to her parent’s house on the night of 17.09.2001. On the same night, i.e., on 17.09.2001, the respondents mother called the appellant and his parents over phone and informed that the respondent was having her periods and hence would return only on 20.09.2001.
  2. It is the further case of the appellant that on 20.09.2001, at around 11.00 am, the respondent, her parents and sister barged into the appellants residence and behaved in a very indecent and inappropriate manner and they shouted at the top of their voice using filthy language, which caused severe embarrassment to the appellants family members as this behaviour was witnessed by their neighbours and passerby. Threatening the appellant with police action stating that they will file a police complaint alleging cruelty and dowry harassment, after four hours, they all left carrying with them the articles of the respondent like cloths, silver ware, box containing jewels etc., without the knowledge and consent of the appellant and his parents in a stealthy manner. At that point of time, the respondent removed her Thali twice and shouted that it was not necessary and the respondent had since then not returned. No dowry was either demanded or obtained. Subsequently, the respondents parents have been on a defamatory campaign approached all sorts of people with false stories against the appellant and his parents.

  3. On 21.11.2001 repeated phone calls were received by the appellant and his parents to the effect that representatives of a women’s association and her parents would visit the appellant at 04.00 pm. Hearing this, the appellants father approached Abiramapuram Police Station at 12.00 noon. However, they did not come to the appellants residence.

  4. On 24.11.2001 the appellants mother lodged a police complaint before All Women Police Station, Adyar, and the same was registered in the Social Service Register bearing No.1169/CSR/W-2/PS 2001. On 25.11.2001, the parents of the respondent also approached the same police Station and filed a complaint against the appellant and his parents, which was taken on file as CSR No.1172/CSR/W2/PS/2001. The appellant was under the reasonable apprehension that the complaint contains total falsehood, including allegations of cruelty and dowry harassment. On 26.11.2001 the respondent sent a letter to the appellant making false allegations as though the mother of the appellant demanded Rs.3 lakhs. The Police Authorities conducted counselling between the two families and around six sittings took place and as there was no positive progress, the appellant has been forced to approach the Family Court.

  5. The respondent has been suffering from such mental disorder and to such an extent that the appellant cannot reasonably be expected to live with the respondent and the marriage is liable to be dissolved on the ground of mental disorder. The act of the respondent removing her Thali on many occasions, the acts, deeds and attitude and false police complaints by the respondent, from the day one of the marriage, has caused great mental strain, agony and cruelty to the appellant.

  6. The respondent was already engaged to one V.Ramachandran and after the parents of the said Ramachandran found out that the respondent was of unusual character and mentally abnormal cancelled the marriage, but this fact was not informed either to the appellant or to his parents. This is nothing but a fraud played by the respondent and her parents concealing material facts concerning the respondent. The vessels given by the respondent bear the initials of the said V.Ramachandran. Had this fact been informed to the appellant before the marriage, the appellant would not have consented for the marriage, therefore, the appellant sought for a decree for dissolution of marriage under Sections 12 (1) (C) or 13 (1) (ia) and 13(1) (iii) of the Hindu Marriages Act, 1955.

  7. The respondent / wife contested the petition by filing a detailed counter statement inter-alia contending as follows:-

a. The entire allegations in the petition are denied and the appellant is put to strict proof of the same. The respondent is a Commerce Graduate from Meenakshi College for Women in Chennai. She had been an outstanding student in all her college days and she possessed of Proficiency Certificate and Certificate of Merits for Scholastic Excellency. She joined her M.Com., course in SIET college for Women and she discontinued the same since her parents wanted her to get married. Pursuant to an advertisement published in the English Daily The Hindu dated 17.06.2001, the respondent’s parents visited the appellant’s parents at their residence and exchanged the horoscopes. On the very same day, the respondents parents had informed the appellants parents that the respondent was earlier to be engaged to another Groom and the alliance was stopped as the groom wanted to go to USA and the respondent’s parents were not inclined to send the respondent abroad. The letter of mutual understanding between the respondents family and the earlier groom was shown to the appellant’s family.

  1. There was no attempt to suppress any fact as alleged by the appellant. Thereafter, the engagement took place on 02.07.2001 at the residence of the appellant and a pooja was performed and some silver and stainless steel gift items were presented to the appellant by the respondent’s family and the respondent was also present in the engagement and she was asked to sing few songs and she sang the same along with her sister. The marriage was performed on 05.09.2001. During the period of two months from the date of engagement to the date of marriage, the appellant’s family had visited the respondent’s family on several occasion and the appellant had occasions to personally meet and talk to the respondent. Therefore it is not correct to state that the appellant was not allowed to meet the respondent. When both the families went for purchasing the wedding dresses, the respondent had accompanied them and as such the parents of the appellant had an occasion to assess the respondent attitude and mental status. The appellant had also come to the respondents house to see the wedding dresses and on such occasion also, the appellant was interacting with the respondent.
  • At the time of marriage, the appellant was presented with gold chain and a costly diamond ring along with the bracelet. The respondent was actively participating in all the events. On the very same night of the marriage, the nuptials were arranged at the house of the appellant. As any other normal girl, the respondent had the initial inhibitions and she was also shy and reluctant to interact with the appellant freely. The new atmosphere and being brought up in an orthodox family had made the respondent have her inhibitions initially. However, she had not prevented the appellant even to touching her as alleged. They were freely discussing with each other and tried to understand each other and the marriage was very much consummated. Both of them went to cinema, temple and beach and their life was perfectly normal, but she was unable to understand the appellants behaviour as he used to get wild if the respondent talked about her parents or wanted to call up them or to talk to them by phone. The respondent was effectively prevented from interacting with her parents. It is not correct to state that the marriage was performed against her wishes. The marriage was performed only with her full consent and willingness.

  • The next day both of them went to the marriage hall and the appellant was happily chatting with all the guests who were yet to go back and had his breakfast and lunch in the marriage hall itself and there was no complaint whatsoever from the appellant. The respondent was taken to Doctor since she complained of pain on her leg as she was standing in the reception whole of the previous evening. Since she was not having proper sleep for about two to three days her eyes were watering and a little reddish and she was again taken to the eye specialist. On 6th and 11th September, the respondents parents invited them to their house as some of their elderly relatives have come there and wanted to see the couple, but the appellant virtually refused to go to the respondent’s house. On 09.09.2001 the respondent’s father came to the appellant’s house and personally invited the appellant to come along with the respondent and his parents to their house as some of the elders of the family wanted to meet them and have lunch with them. At that time, the appellant’s mother told the respondent’s father that coming from a financially sound family he could be generous enough to spare a sum of Rs.3 lakhs in order to enable them to buy a flat which is being used by them as a rented portion. The said demand came to the respondent’s father as a bolt from the blue as the respondent’s father did not expect this. The appellant’s mother shouted at the respondents father and told him that her son was not a person who will merely participate in lunch meetings and they also know how to get their demand complied with and thereafter the respondent’s father left the place. The respondent told her mother-in-law that it is not fair on her part to demand Rs.3 lakhs for the purchase of a flat and for that the appellants mother warned her not to argue with her.

  • On 11.09.2001 the respondent was taken to an eye Doctor. The respondent requested the appellant to take her to her parent’s house at least for about an hour, but the appellant flatly refused, which caused great pain to her. The next day the respondent expressed her disappointment over the appellant’s behaviour to her father-in-law and her father-in-law took her to her parents house, where there was a dialogue between the appellant’s father and the respondent’s parents and the respondent’s parents also expressed their unhappiness over the appellants behaviour in not visiting their house despite being invited by them. There was only an argument and there was no removal of Thali or any other issues as stated by the appellant in the petition.

  • On 14.09.2001 the respondent, her parents and her sister went to the house of the appellants grand father for reconciliation as he happens to be a senior member of the family. Only in the light of the advise of the grand father of the appellant, the respondent went back to the matrimonial home and was there until 17.09.2001 on which day she was sent along with the maid to her appellant’s house. The respondent never spoke incoherently or behaved abnormally as alleged by the appellant.

  • The appellant and his family members have come out with a new charge that the appellant is mentally ill. The respondent’s father asked them how they can make such an allegation and they wanted her to be taken to a psychiatrist to be checked up and that was the reason why she was taken to a psychiatrist Doctor-Mohanraj. As the respondent has no previous history of mental illness of any kind and after examination the Doctor informed the appellant that he should take care of the respondent and allow her to settle in the new atmosphere without disturbing her or threatening her in any manner which caused anxiety to her. Suppressing these facts, the appellant had come out with false allegations.

  • On 17.09.2001, as the respondent suffered severe stomach pain, she was taken to Dr.Radha Madhavan by her mother-in-law. The respondent suffered with the stomach pain because of her monthly periods and as she was not able to bear the increasing pain, she was taken to her parent’s house with the permission of her in-laws. After reaching home, the respondents mother informed the appellant as well as his mother that the respondent was having her monthly periods she will be sent back in two days time.

  • The respondent, as promised by her mother, went to the house of the appellant with her younger sister and her parents on 20.09.2001. When the door was knocked the respondents mother-in-law shouted opened the door with an unpleasant expression. The respondent’s mother-in-law started shouting at the respondent not to go inside and the stay in the hall itself and the appellant’s mother abused the respondent’s parents and scolded them badly. She said that they are not happy with the respondent and they wanted to take her to a lady psychiatrist for further checkup. The respondents parents told her that unless there is reasonable cause, there is no need for consulting a psychiatrist. The appellants father informed that they are not interested in keeping the respondent with them until she agreed to come for a consultation to a lady psychiatrist, which made the respondent to cry and felt harassed. The entire discussion ended up in the appellant’s parents asking the respondent to take her belongings and go to her parent’s house until the issue was reconciled with the intervention of other family members. The appellant’s mother said that they do not want to keep petty things with them giving up their major demand of Rs 3 lakhs towards purchase of the flat. She further told that the respondent is free to bring back the materials when her father had made ready the cash of Rs.3 lakhs. The respondent was thus compelled to take few of the materials and left the place. The respondent denied the allegation that she removed her thali twice or that she declared that she was not going to stay in the appellant’s house. The efforts taken by the respondent’s family towards reconciliation failed and the respondent was sent out of the matrimonial home for the no fault of hers. It is only the greed of the appellant’s parents for money that made them to send her out of the matrimonial home. The respondent and her parents had contacted the appellant’s parents in person on various occasions proposing reconciliation and the appellants grand father was contacted in this regard, but all their efforts ended in vain.

  • The respondent’s father approached the appellants parents and his grand-father and some common friends explaining to them the events that took place leading to unnecessary misunderstandings and prayed for reunion, but this effort has been described as a defamatory campaign. The respondent requested the appellant to come and take her back to his house, but the appellant did not take her back. All efforts for reunion taken by the respondent’s parents had been misconstrued and misinterpreted by the appellant. The respondent sent several letters to the appellant but none of the letters were replied. The respondent also sent prasadam and photos of poojas performed for their welfare. After waiting for two months the well-wishers of the respondent’s family members advised the respondent to approach "The Jana Nayaka Mathar Sangam", which is a social association that help women in distress. The respondent approached the Sangam and the Sangam contacted the appellant’s parents for appointment to solve the dispute, but this has been wrongly interpreted by the appellant in his petition.

  • On 24.01.2001 the appellant’s mother lodged a complaint before the All Women Police Station, Adyar, containing false and frivolous allegations. The respondent and her family were called for an enquiry and during enquiry, they explained the entire facts including their attempt to bring about a compromise by approaching "The Jana Nayaka Mathar Sangam" and the failure of the efforts. It was informed to the police authorities that the separation had occurred in view of the failure on the part of the respondent’s family to comply with the demand of dowry to the tune of Rs.3 lakhs and the cruelty the respondent had suffered at the hands of the appellant’s family. There was six sittings to reconcile, but the same did not yield any fruitful result and hence the appellant and the respondent were advised to seek remedy before the Family Court. Even in her letter, dated 26.11.2001 written by the respondent to the appellant, she has clearly mentioned about the dowry demand. The reason for separation was not the mental status of the respondent, but because of the dowry demand made by the appellant’s family and the failure to comply with the demand. The respondent, even as on the date is wearing her Thali and she considered it as a sacred one and she never removed her Thali as alleged in the petition. Even though the appellant applied leave for his honeymoon, he spent his entire leave at home without taking the respondent anywhere outside since the demand for dowry was not meted out. The respondent and her family had not suppressed the fact of the earlier engagement and the stoppage of the marriage. Some of the vessels presented to the appellant bear the inscription of the name of V.Ramachandran itself which itself shows that the appellant and his family were aware of the earlier engagement and cancellation thereof. The allegation that the earlier engagement was annulled on account of unusual character and mental abnormality of the respondent is false.

  • The respondent is a graduate, a music lover, has practice in playing violin and she is a polite, humble and soft natured person and she is a timid girl and this has been abused by the appellant and his family members. The respondent possesses normal mental and physical health. She is willing and wants to join the appellant and lead a happy matrimonial life with him. She had not committed any acts of cruelty as alleged in the petition and there is no legal, moral or justifiable reason for the appellant to seek divorce.

  • Pending the petition for divorce the respondent/wife filed O.P.No.2268 of 2007 for Restitution of Conjugal Rights under Section 9 of the Hindu Marriages Act. In that petition, the averments contained in the counter statement have been repeated. The petition for restitution was contested by the appellant / husband by filing a counter statement, which virtually contains the averments contained in the divorce petition and therefore the same are not being repeated.

  • Before the Family Court, on the side of the appellant, the appellant was examined as P.W.1, his father was examined as P.W.2 and his grand father was examined as P.W.3 and one family friend was examined as P.W.4 and Exs.P-1 to P-4 were marked. On the side of the respondent / wife she was examined as R.W.1 and Exs.R-1 to R-9 were marked. As per the direction of the Family Court, the respondent was examined by Dr.Vijay Nagasamy, Psychiatrist and Relationship Consultant and he was examined as C.W.1 and his report was marked as Ex.C-1.

  • The Family Court, on a consideration of the evidence adduced before it, granted a decree for divorce on the ground that the marriage had not been consummated and it amounted to causing mental cruelty and the appellant’s complaint on false ground of dowry harassment also caused mental cruelty and the respondent had deserted the appellant without any valid reason but held that the alleged mental disorder of the respondent had not been proved and accordingly, rejected the prayer for divorce on that ground and consequently the Family Court rejected the petition filed by the respondent / wife for Restitution of Conjugal Rights. Being aggrieved by that, the above appeals have been filed as stated supra.

  • Heard the learned counsel on either side and perused the materials available on record.

  • Mr.V.Rangarajan, the learned counsel for the respondent/wife made the following submissions:-

  • a. The case of the husband is that he was not allowed to interact with his wife before the marriage; the wife informed the husband that the marriage was performed without her consent; she was having childish behaviour; the wife was restless and impatient during first night; the marriage was not consummated between 5.9.2001 and 17.9.2011; because of the mental disorder of the wife, the husband suffered mental cruelty; because of the police complaint lodged by the wife against the husband and his parents, they had to obtain anticipatory bail and the false allegations of demand of dowry had caused mental stress and agony, which amounts to mental cruelty; on 20.9.2001 the wife went to the house of the husband with her sister and parents and abused them in a filthy language and the whole ugly scene was witnessed by the neighbours which caused great embarrassment to the husband’s family members and their image and reputation was tarnished and at that time the wife removed her ‘mangal suthra’ which also caused mental cruelty; admittedly, the wife was earlier engaged to one Ramachandran but the marriage was stopped and this fact was suppressed by the wife and her parents; the wife was taking treatment for her mental disorder for nearly three years before the marriage and this fact had been purposefully suppressed and had the stoppage of the earlier marriage and the taking of the treatment for mental disorder been brought to the knowledge of the husband and his family, the husband would not have given his consent for the marriage.

    1. The learned counsel submitted that the allegation of mental disorder has been disbelieved and rejected by the Family Court, but divorce had been granted on the ground of mental cruelty mainly believing the incident that took place on 20.9.2001 and the suppression of real reason for cancellation of the earlier marriage. The learned counsel submitted that the case of the husband is that because the wife is suffering from mental disorder, it would amount to causing mental cruelty to the husband. The husband has not separated the grounds of mental cruelty and mental disorder. But the Family Court wrongly separated both the grounds and held that there is mental cruelty and further held that there is no mental disorder.
  • The learned counsel submitted that the engagement took place on 2.7.2011 and the marriage took place on 5.9.2001. On 7.9.2001 as the wife had leg pain due to the fact that she had to stand for long hours during marriage reception, she was sent to Orthopedic Surgeon Dr.Subramanian; on 11.9.2001 since the wife had some eye problem, she was taken to an Ophthalmologist and again on 17.9.2001 since she had stomach pain due to menstrual problem, she was taken to Dr.Radha Madhavan and all the aforesaid treatments given to the wife are at the instance of the husband’s family members and the same have been admitted in the pleadings and the evidence but the Family Court has observed that the same have not been proved by adducing acceptable evidence by the wife.

  • The learned counsel submitted that while the Family Court has totally accepted the case of the husband and without even referring to the evidence of P.Ws.1 to 4 has simply observed that the husband’s evidence has been corroborated by the evidence of P.Ws.2 to 4 and the Family Court has totally failed even to refer to the evidence of R.W.1 and the documentary evidence adduced by her; even the evidence adduced on the side of the husband has not at all been discussed; only because of the non consideration of the evidence adduced on the side of the wife erroneous findings have been recorded by the Family Court.

  • The learned counsel submitted that though it is the case of the husband that the wife was restless and impatient and speaking incoherently , there is absolutely no acceptable evidence on record and no medical evidence has been adduced and only the interested witnesses have been examined, namely, his father, grandfather and family friend; even for the occurrence said to have taken place on 20.9.2001, which was admittedly witnessed by the neighbours, none of the neighbours have been examined and no explanation has been given for their non examination.

  • The learned counsel submitted that even in chief examination P.W.1 had stated that because of their tiredness, they went to sleep on the first night but he has alleged that she had no inclination for cohabitation, which is contrary to the truth.

  • The evidence of R.W.1/wife clearly proves her educational qualification, extracurricular activities like vocal, instrumental, painting etc., which will prove that she is neither immature nor mentally ill. The learned counsel submitted that it is the case of the husband that there was no proper interaction between him and his wife before marriage. But in his cross examination, he had admitted that after the purchase of wedding dresses for the marriage, he had visited the wife’s place twice and he has also admitted that after the betrothal, he had visited the wife’s place four or five times, which is contrary to what he has stated in his petition as well as in his chief examination.

  • The learned counsel submitted that the husband and the wife lived together hardly for 12 days and in these twelve days, the wife suffered leg pain, eye ailment and stomach pain, and in these circumstances, even if there was no consummation of the marriage, the same cannot be a ground for granting divorce. The wife in her evidence has stated that she is shy in nature and she is so fond of her parents and when such a girl goes to the husband’s place after her marriage it will normally take sometime for her to adapt to such a new environment and circumstances. Had the husband been affectionate and infused confidence in her without magnifying the small mistakes, if any, on her part, it would have been possible for them to live together and consummate the marriage. R.W.1 in her evidence has categorically stated that she is very much interested in living with her husband and she had spoken about the steps taken by her parents to reconcile the differences between the two families and the efforts taken to bring about reunion, but overlooking all these facts, the Family Court has erroneously observed that the wife has not taken any steps for reunion.

  • It is the case of the husband that the stoppage of the earlier marriage was suppressed whereas in his cross examination P.W.1 has admitted that he knew about the cancellation of the earlier marriage and the earlier marriage had been stopped as her family did not like to send her with the bridegroom to U.S.A. and that was the reason for the stoppage of the marriage.

  • The learned counsel submitted that in Ex.R.3 letter written by the husband to the wife he had not mentioned anything about the alleged suppression of the stoppage of the earlier marriage and the reason for the same. The learned counsel submitted that even in Ex.R3 letter dated 8.10.2001 sent by the husband to the wife, the husband has not alleged that the wife is suffering from mental disorder and therefore, submitted that the allegation of mental disorder is a newly invented one and stated in the petition for the first time only to make out a ground for seeking divorce.

  • The learned counsel submitted that though a complaint was lodged against the parents of the husband, she had not sought for any criminal action being taken against them but only she had sought for reconciliation and on her complaint, no case was registered and therefore, it cannot be said that a false complaint for dowry demand had been lodged by the wife. The learned counsel further submitted that though R.W.1 in her evidence had deposed about the demand of Rs.3.00 lakhs made by her mother-in-law, it has not been denied by putting a suggestion in her cross examination. The learned counsel submitted that the mere filing of the complaint for dowry demand will not amount to causing mental cruelty when such complaint has not been found to be false. In this case when admittedly, no criminal case was registered, the Court below has committed an error in holding that the alleged criminal complaint had caused mental cruelty.

  • The learned counsel submitted that the husband was inside the house when the wife and her parents went to the house of the husband and as such he could not have witnessed the alleged removal of Thali by his wife. The learned counsel submitted that when the incident is said to have been witnessed by the neighbours, any one of the neighbours would have been examined to prove the incident but none of the neighbours have been examined and in the absence of corroborative evidence and only on the basis of the evidence of the interested witnesses, namely, P.Ws.1 to 4, the Court below has held that the wife had removed her ‘Thali’ which will amount to mental cruelty, which is erroneous.

  • The learned counsel submitted that when vessels and other gifts were presented to one Ramachandran at the time of Betrothal, the initials of Ramachandran were inscribed in the vessels and as the marriage was cancelled, the vessels and articles were returned to the wife and the same were presented to the husband and from that they could have easily found the initials and they would have asked the wife’s family about the initials of some other person and therefore, the allegation that the cancellation of the earlier marriage was suppressed cannot be accepted.

  • The learned counsel submitted that the Family Court has observed that the receiving of threatening calls from the respondent and her family members would amount to mental cruelty in the absence of any acceptable proof. Had the Family Court considered the letters written by the wife, it could have seen that the wife has suffered mental cruelty at the hands of the husband and his family members and not the husband and his family members at the hands of the wife and her family. The learned counsel submitted that the evidence of C.W.1 Dr. Vijay Nagasamy clearly proves that the wife is not suffering from any mental disorder or any mental illness. Therefore, the Court below is right in rejecting the prayer for divorce on the ground of mental disorder. The learned counsel submitted that the wife and her family members came to the matrimonial home on 20.9.2001, but it was the husband and his family members who did not allow her to stay in the matrimonial house and sent her back by making a demand of Rs.3.00 lakhs for purchasing a flat. The learned counsel submitted that several attempts made by the wife and her family members for reconciliation and reunion, have gone in vain because of the adamant attitude of the husband and his family members and the relevant evidence on this aspect has not at all been considered by the Family Court, which has resulted in the recording of a erroneous finding that the wife had not taken any steps for reunion with her husband. When the wife is not at fault and she had been sent away from the matrimonial home, she is entitled to get a decree for Restitution of Conjugal Rights.

  • The learned counsel in support of his submissions relied on the following decisions:-

  • a. AIR 1982 Calcutta 138 b. (1988) 4 SCC 247 c. 2003 (2) CTC 760 d. AIR 1988 SC 121 e. AIR 1982 Delhi 240 f. AIR 2003 Karnataka 357 g. AIR 1968 Punjab & Haryana 489 h. AIR 1999 Himachal Pradesh 17 i. AIR 2007 SC 1426 j. (2005) 2 SCC 22 k. AIR 2006 SC 1675

    1. Countering the said submissions, Mr.K.P.Gopalakrishnan, the learned counsel for the appellant/husband made the following submissions:-

    a. People get married for begetting a child and to have marital pleasure in the matrimonial life. But in this case, after the marriage the wife stayed with her husband only for 12 days and during that period, there was no conjugal relationship. Even during these 12 days, the wife went to her parents house several times. On 17.9.2001 the wife left the matrimonial house with no idea of return; on 20.9.2001 she returned to her matrimonial home with an idea to pick up a quarrel and after four hours of quarrel using foul words by the wife and her parents and threw away her ‘Thali’ and took all her articles and left the matrimonial home for ever; later, the wife filed a false police complaint against the husband and his parents as if they demanded dowry, which necessitated the filing of a petition for anticipatory bail; there was several threatening telephone calls to harass them; the wife made false allegations in her letters and in her counter and in her restitution petition before the Family Court, which points out the complete break down of matrimonial life with no chances of living together and no useful purpose will be served in continuing the matrimonial tie.

    1. The learned counsel submitted that it is a fit case where the marriage should be dissolved as the marriage has irretrievably broken down as per the decisions of the Apex Court. The learned counsel submitted that on the side of the appellant, the husband was examined as P.W.1 and he gave cogent evidence which was not demolished by the respondent/wife. During his chief examination, P.W.1 has spoken about the mental condition of his wife; non consummation of marriage; the incident that took place on 20.9.2001 and the removing of Thali by the wife; withholding the facts with regard to the mental condition of the wife; withholding of the reasons for the cancellation of the earlier marriage after betrothal and the evidence of P.W.1 has been corroborated by the evidence of his father P.W.2, his grandfather P.W.3 and his family friend P.W.4., but their evidence have not been demolished in the cross examination. Their evidence have been properly considered by the Family Court and only after the consideration of their evidence the Family Court has rightly granted the the decree for dissolution of marriage on the ground of mental cruelty and therefore, there is no reason whatsoever to interfere with the well considered judgment of the Family Court.
  • The learned counsel submitted that at the instance of the husband, the wife was examined by Psychiatrist Dr.Vijay Nagasami and he has submitted a report Ex.C1, wherein he has stated as follows:-

  • "She appears to have been over-protected by both parents and led an extremely sheltered life with limited social exposure."

    "Her intellectual functioning appeared to be border line on clinical examinations although no gross mental sub-normality could be detected."

    "It is difficult for such a person to lead a normal married life. They will require more training to lead normal married life."

    "By giving proper training it may be possible for her to work on the relationship."

    "She is perfectly rational but less aware as to how to conduct herself in married life."

    "Under socialised person can lead a normal life if they are given proper training."

    "Anitha did not tell me that prior to the marriage she had consulted psychiatrist and that she has taken medicine. Anitha did not tell me that she had consulted Psychologist and she was taking mediation for her psychological problems."

    "According to my report Anitha is suffering from low self esteem, over protection by her parents, extremely limited interaction with opposite gender, delayed response to questions put to her, undersocialised behaviour problem, frontal lobe deficits and border line IQ."

    1. The learned counsel submitted that R.W.1 (wife) had admitted in her evidence that she has the mind of a child; she is under treatment for three years with Dr.Nambi Rajan; she does not know the names or dosage particulars of the tablets prescribed by Dr.Nambi Rajan; she is not interested to have sex and she is not interested in matrimonial life. According to the learned counsel, all the aforesaid submissions point out to a mental disorder of such a kind and extent that the appellant/husband cannot be reasonably expected to live with the respondent/wife. The report of the doctor C.W.1 also shows that the wife has incomplete development of mind as contemplated in the Act.
  • The learned counsel submits that her mental condition was not intimated to the husband and his family members. Similarly, the reasons for cancellation of the earlier marriage was also not intimated to the husband and his family members, which amounts to withholding of vital information concerning the wife this would entitle the husband to seek a decree for divorce on the ground of nullity under Section 12(1)(C) of the Hindu Marriage Act.

  • The learned counsel submitted that the Family Court having concluded that there was material misrepresentation failed to pass a decree of nullity under Section 12(1)(c) of the Hindu Marriage Act. The learned counsel submitted that the petition for restitution of conjugal rights has to be decided separately on merits. In this case, the husband had not withdrawn from the company of his wife, whereas the wife has withdrawn voluntarily from the company of the husband without any reasonable cause and therefore, she is not entitled for restitution of conjugal rights.

  • In support of the aforesaid submissions, the learned counsel relied on the following decisions:-
    a. 2010 1 MLJ 889
    b. 2009 5 LW 781
    c. 2009 3 LW 708
    d. 2009 2 LW 192
    e. 2009 2 LW 43
    f. 2009 1 LW 332
    g. 2008 4 MLJ 1172
    h. 2008 3 LW 864
    i. 2007 5 MLJ 1397
    j. 2007 4 LW 249
    k. 2007 2 LW 902
    l. 2006 2 LW 606
    m. 2006 2 LW 419
    n. 2005 4 CTC 287
    o. 2005 2 SCC 22
    p. 2003 4 LW 609
    q. 2002 2 LW 250

  • We have considered the aforesaid submissions and perused the materials available on record.

  • At the outset we would like to point out that a perusal of the judgment of the Court below shows that the Family Court has not at all referred to and discussed the evidence of R.W.1 and the documentary evidence adduced on her side. Similarly, the Family Court after referring to the case of the husband has referred to a part of P.W.1’s evidence and has not at all referred to and discussed the evidence of P.Ws.2 to 4 and simply has stated that the allegations have also been substantiated by P.Ws.2 to 4. Similarly, as regards the incident that took place on 20.9.2001 after referring to P.W.1’s evidence the Family Court has observed that the same has been proved. The evidence of P.Ws.2 to 4 is neither referred to nor discussed.

  • As far as the alleged telephone calls said to have been received by the husband’s family, the Family Court has based reliance on the complaint of the husband’s mother with the All Womens Police Station, Adayar. The Family Court has not at all referred to the allegations contained in the complaint lodged by the wife and in fact the complaint was not marked separately. The Family Court has observed that the contention of the wife that due to the physical ailment of thigh pain, eye pain and stomach pain she was not able to cohabit with the appellant for the said twelve days is not acceptable because there is no supporting medical proof for the same to the effect that during the said period due to the said ailment she is not in a position to have cohabitation as she was medically prevented for the same. The said observation is totally perverse as the husband himself in his petition as well as in his evidence admitted that she was treated for the said ailments. The admitted fact need not be proved by the wife. Therefore, it is clear that the Family Court has not at all applied its judicial mind to the evidence available on record. Similarly, we would like to point out that some of the submissions made by Mr. K.P.Gopalakrishnan, learned counsel for the appellant/husband are not based on any evidence.

  • The following are the admitted and undisputed facts:-

  • a. The betrothal between the appellant and the respondent took place on 12.7.2001. The marriage was solemnised on 5.9.2001. The respondent wife complained of leg pain and she was taken to Orthopedic doctor and was treated and she was advised to come bak again for a test. On 15.9.2001 at the instance of appellant’s parents, the respondent was taken to Psychiatrist Dr.Mohan Raj; on 17.9.2001 she had to leave the matrimonial home because of stomach pain due to menstural problems; on 20.9.2001 the respondent/wife with her family members went to the matrimonial home; on 24.11.2001 the mother of the appellant/husband filed a false complaint against the respondent/wife and her parents; on 25.11.2001 the respondent/wife gave a complaint at All Womens Police Station, Adayar; but no case was registered; on the basis of the both the complaints only counselling was conducted and in these circumstances, a petition for dissolution of marriage was filed by the appellant/husband on 25.2.2002.

    1. The following alleged acts and omissions on the part of the wife are relied upon by the appellant/husband to contend that the same caused mental cruelty to him:-

    a. On the first night, the respondent/wife behaved inappropirately without any enthusiasm; she was restless and impatient; she behaved strangely and childishly and did not allow the appellant/husband even to touch her and the marriage was not consummated; the respondent/wife even on the very first night informed the appellant that the marriage was performed against her consent and will and she was not interested in marrying the appellant; on 12.9.2001 the respondent/wife, who was accompanied by the appellant’s father, left the house to go to Opthal clinic, but on the way she insisted to go to her parents house and on reaching her parents house she changed her mind and refused to go to the clinic and she removed her Thali and refused to leave her parents house; on 14.9.2001 the respondent and her parents visited the appellants grandfather’s residence and wanted to reconcile the issue and at that time, she spoke incoherently and seemed very restless and impatient; on 20.9.2001 the respondent/wife and her family members came to the appellant’s house and they behaved in a very indecent manner; they abused the appellant and his family members by using filthy words which caused severe embarrassment to the appellant and his family members as the incident was witnessed by their neighbours and passers by; only after four hours they left with the articles of the respondent without the knowledge of the appellant and at that time the respondent/wife removed her Thali twice saying that it was not necessary; on 21.11.2001 repeated phone calls were received by the appellant and his parents to the effect that the representatives of women’s association would visit the appellant’s house and apprehending some trouble, the appellant’s father gave a complaint with the Abiramapuram Police Station, but none turned out; on 25.11.2001 the parents of the respondent lodged a complaint against the appellant and his parents which necessitated the appellant for seeking anticipatory bail for him and his family members; in the complaint false allegations of dowry demand have been made, which caused great mental cruelty.

    1. Ex.R.3 is the letter dated 8.10.2001 written by the appellant/husband to the respondent/wife. In Ex.R3 except the following, nothing has been stated about what happened in the first night:-

    "It is painful to say that the marriage was wrecked on the wedding night itself. The marriage was not consummated."

    1. Though in Ex.R.3, the appellant has narrated everything in minute details, he has not stated that the respondent behaved inappropriately without any enthusiasm; she behaved very strangely and childishly and did not allow the appellant even to touch her; she appeared to be frightened and agitated; she was restless and impatient; she never allowed the appellant to touch her; on the first night, she informed him that her marriage was against her will and consent and she was not interested in marrying the appellant and therefore, we are of the considered view that the aforesaid allegations made in the petition for divorce do not find place in Ex.R3 but are only invented for the purpose of this case. When all the other events have been mentioned with minute details, if really, the respondent/wife had behaved as alleged by the husband, he would have mentioned the same in Ex.R.3. Except the non consummation of the marriage, none of the allegations have been mentioned in Ex.R3. Therefore, the said allegations appear to be invented only for the purpose of this case. In fact, P.W.1 in his chief examination has stated as follows:-"உடல் சோர்வாகயிருக்கிறது என்று அவர் சொல்லவே நான் அவரை தாம்பத்திய உறவிற்கு வற்புறுத்தவில்லை

    55/ Though P.W.1 has stated in his chief examination that the respondent/wife told that she is not interested in sexual intercourse, there is no such pleading in the petition. Any amount of oral evidence without pleading cannot be looked into. Similarly, in his chief examination, P.W.1 has stated that before the doctor the respondent/wife has stated that she is not interested to have a child. But there is no such pleading in the petition.

    1. It is an admitted fact that on 7.9.2001 the respondent/wife complained of leg pain and the appellant’s father took her to Dr.M.Subramaniam M.S. (Ortho); on 11.9.2001 she complained of eye pain and she was taken by the appellant to Dr.Radhika, Ophthalmologist; on 17.9.2001 she complained of severe stomach pain and she was taken to Dr.Radha Madhavan by the appellant’s mother. The aforesaid facts have been stated in the petition and have been admitted by P.W.1 in his evidence. But the Family Court has observed that the said allegations have not been proved by the respondent/wife by adducing medical evidence. Admitted facts need not be proved. This simple proposition of law that has not been kept in mind by the Family Court.
  • It is relevant to point out that even in Ex.P.3 dated 26.11.2001 the letter written by the respondent/wife to her husband before the filing of the divorce petition, she has stated as follows:-

  • "Regarding our Wedding night (nuptial) you have to understand that I had entered a new atmosphere of your house and the only other members present in the house were your mother and sister. How can a just married girl be without shyness, fear and anxiety on her first night. In spite of that, I cooperated fully with you on the wedding night and all the subsequent nights I stayed with you."

    "I have lived with my parents and only sister for more than 20 years in a very homely atmosphere. About my timid nature and shy behaviour my parents have spoken to you and your parents you admired my softness and discipline. Your father praised me whenever occasion permitted and I thank him for that."

    "I was a darling of my house. It takes some time for me or my parents to adjust to each one’s absence."

    "Our relations and friends say that newly married couple go for honeymoon for developing their better understanding of each other. Till today we never went anywhere you had decided to stay at home the whole of your 20 days of leave (granted by your office). the local Valluvar Kottam, beach, and a Cinema were only outings I had with you and where we could hardly understand each other."

    "During the course of conversation your mother spoke badly at which my father raised a logic point that, while your mother has been so fond of her father who visits your house almost every day. Why you restrict us even talking over phone ? I also feel the same."

    "Did you not repeatedly utter the word "divorce" in the Cinema Theatre even during the show was running? A wedded wife is not a use and throw property . Do you want to justify all your actions of your family members including you and blame my parents for the simple reason of questioning you all, out of sudden disappointment on your indifferent attitude?

    "Apart from this my parents were shocked when your parents wanted and demanded 3 Lakhs (Rupees Three Lakhs Only) as they have a plan to buy your adjacent flat in which your are living for rent."

    " Your mother insisted to pay atleast 2 Lakhs within a month and the balance after some time. She also made an indirect threat the happiness of their daughter (myself) depends on the response to their demand. Now I understand that the threat of divorce has come directly from you on the inducement of your parents."

    1. But the aforesaid averments in the letter dated 26.11.2001 have neither been referred to nor denied in the petition or in the evidence of P.W.1. The respondent in her cross examination has stated as follows:-ehd; rhJthd bgz;/ kpft[k; mikjpahd bgz;/ bgw;nwhh;fis rhh;e;J ,Ug;ngd;/ vdf;F FHe;ij kdJ/59/ In her chief examination also she has stated that with full mind and heart consented to the marriage and there was no question of the marriage being performed against her will. She has deposed in her chief examination that at the time of engagement she was asked to sing songs and she sang some songs. She has also deposed that the appellant had come to her house to see the wedding dresses and on that occasion, the appellant interacted with her, but the same had not been rebutted in the cross examination. In her cross examination, she has deposed as follows:-

    "எங்களுக்குள் தாம்பத்திய உறவு நடக்கவில்லைஃ நான் தான் முதலிரவு வேண்டாம் என்று சொல்லிவிட்டேன். இதற்கு எனக்கு கூச்ச சுபாவம் இருக்கிறது

    60/ A perusal of the cross examination of R.W.1 shows that none of the allegations made by P.W.1 in the petition as well in his evidence as to what had happened during the first night have been suggested to R.W.1. It has not even been suggested to R.W.1 that the appellant’s mother did not demand Rs.3.00 lakhs as dowry for purchasing a flat. It has also not been suggested to R.W.1 that she is suffering from such mental disorder and to such an extent that the appellant cannot reasonably be expected to live with the respondent. It has not been suggested to her that she told the appellant that she was not willing for the marriage with the appellant and she did not like the appellant etc.

    1. It is also pertinent to point out that in his chief examination itself, the appellant/husband has stated as follows:-

    என்னை பலவாறாக துன்புறுத்தியதாலும் எதிர்மனுதாரர் கல்யாணத்திற்கு ஏற்றவர் அலல என்பதாலும். பார்ய நிச்சயதாம்பலம் நடந்ததை சொல்லாததாலும் அவரைப்பற்றி விவரங்கள் மறைத்துவிட்டதாலும் கொடுமைபடுத்தியதாலும் நான் விவாகரத்து கெட்டு மனு தாக்கல் செய்துள்ளேன்

    1. But he has not stated that because of the alleged mental disorder, the respondent wife behaved with him or his family members in an aggressive manner or indulging in any violent act. He has also not even deposed or suggested to R.W.1 that because of the mental disorder or mental illness of the respondent/wife it will not be possible for him to live with the respondent/wife any longer. P.W.2 also in his chief examination has not mentioned about any abnormal behaviour of the respondent/wife. He has not deposed about the mental status of the respondent/wife and has not stated that at any point of time she behaved violently and it would not be possible for his son to live with the respondent because of her mental condition. P.W.3 has also not stated in his evidence about the mental condition of the respondent/wife. Though P.Ws.1 to 4 have stated that on 20.9.2001, the respondent/wife removed her Thali and thrown on the floor, the same has not been mentioned in Ex.R.3 letter written by the appellant to the respondent. In Ex.R3 what he has stated is as follows:-

    "Just before leaving, you attempted to remove your thali twice"

    but there is absolutely no mention about the removal of Thali as spoken by P.Ws.1 to 4 and as stated in the petition. If really, the respondent had removed her Thali twice as alleged by the appellant and the witnesses, the same would have been definitely mentioned in Ex.R3. Even in the complaint, dated 24.11.2001 lodged by the mother of the appellant, which forms part of Ex.P.4, the alleged removal of Thali by the respondent/wife has not been referred to. For Ex.R.3 letter written by the appellant, the respondent/wife sent a detailed reply Ex.P.4, for that no reply has been received. It has also not been referred to in the petition. Thus the whole story regarding removal of Thali by the respondent appears to be only an invented reason to make out a case for obtaining a decree for divorce.

    1. So, we are of the considered view that if, as alleged by the appellant and other witnesses examined on his side, the respondent and her family members had indulged in an unruly behavior as alleged and the same had been witnessed by the neighbours at least anyone of the neighbours could have been examined, but none have been examined and therefore, in the absence of any corroboration by any independent witness, we are unable to believe the evidence of P.Ws.1 to 4 regarding the alleged incident that took place on 20.9.2001. Therefore, the said alleged incident has not been proved by adducing acceptable evidence. For the aforesaid reasons, we are unable to accept the evidence of P.Ws.1 to 4.
  • In her complaint, dated 25.11.2001 before the Sub Inspector of Police, Magalir Kaval Nilayam, Adayar, she has mentioned about the demand made by her mother-in-law for Rs.3.00 lakhs and about her inability to pay the said amount. She had referred to the efforts taken for reconciliation and the refusal to take her back to the matrimonial home. She has also referred to the phone calls made by her to the appellant. She has also referred to the invitation extended to the appellant and his family members by the parents of the respondent for Deepavali. She has also mentioned that she had not done anything or spoken any words to wound their feelings and her parents have gone out of their way to satisfy their un-satiable demand. She has finally only requested for the intervention of the Sub Inspector of Police and speak to her in-laws so that rapprochement could be effected and nowhere she had sought for any criminal action to be taken against her husband or her in-laws. In fact, as rightly contended by the learned counsel for the respondent that no case was registered against the appellant and his parents and only counseling was conducted and as the counseling failed both the parties were advised to seek appropriate remedy before the civil court. When the respondent wife had ventilated her grievances in her complaint to the police for which she is legally entitled to, it cannot be said that the same will amount to causing mental cruelty to the appellant. Therefore, the finding of the Family Court that the lodging of false complaint as if the appellant and his family members had demanded Rs.3.00 lakhs as dowry has caused mental cruelty to the appellant is erroneous. In fact, as discussed above, in the course of cross examination of R.W.1, it has not even been suggested to her that no demand for Rs.3.00 lakhs as dowry had been made by appellant’s mother as spoken to by her in her chief examination. Thus, the said allegation of demand for dowry goes un-rebutted. Therefore, it cannot be said that the false allegations have been made by the respondent/wife regarding demand for dowry. Therefore, in our considered view the alleged acts of cruelty against the appellant have not been proved and therefore, the Family Court is not right in granting a decree for divorce on the ground of mental cruelty.

  • As far as the allegation regarding non consummation of marriage is concerned, we are of the considered view that the Court below has not considered the said issue in the proper perspective and has not properly considered the evidence of R.W.1 and the facts and circumstances of the case. As pointed out above, R.W.1 in her evidence has stated that she is innocent, peace loving girl, solely depending on her parents and her mind is that of a child (FHe;ij kdJ). She has also stated in her Ex.P.3 letter that the appellant had to understand that she entered a new atmosphere of his house and how can a just married girl be without shyness, fear and anxiety on her first night. She was the darling of her house and it takes sometime either for her or her parents to adjust to each one’s absence.

  • She has also pointed out that the appellant availed 20 days leave at the time of marriage but he had not taken her for honeymoon as planned. Even when they went for a movie, in the cinema theater he had repeatedly uttered the word divorce. Even in a short period of 12 days, the appellant had threatened to divorce the respondent and as such, the same would have caused great mental stress and agony to the respondent. Even during the 12 days period as admitted by the appellant they have lived together only for 6 or 8 days . Had the appellant and his family members treated the respondent with love and affection without making any demand for further dowry and without insisting her parents to take her to a psychiatrist alleging that she is having mental illness and given an opportunity for her to settle down in the new environment of the matrimonial home, she would have adapted to the new environment and the marriage itself would have been consummated. Even assuming that the marriage had not been consummated, considering the fact that both of them have lived together only for 6 or 8 days, the said period cannot be considered to be a long period for holding that the marriage had not been consummated and therefore, it has caused mental cruelty to the appellant as claimed by him.

  • In the decision reported in 2007 (3) CTC 464 (Samar Ghosh vs. Jaya Ghosh), the Apex Court culled out illustrations of ‘Mental Cruelty’ in paragraph 102, and laid down as follows:-

  • "(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behavior of a spouse, the wronged party finds it difficult to live with the other party any longer, may amount to mental cruelty. "(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty."

    1. The facts and circumstances of this case and the evidence available on record has to be considered in the light of the legal principles laid down by the Apex Court. As per the above legal principles, the married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to "mental cruelty". The ill conduct must be persistent for a lengthy period.
  • In this case, admittedly, both of them have lived together only for a period of 12 days and even during this short period, no act or omission on the part of the respondent which has caused mental cruelty to the appellant has been established. It is too short a period to consider that any act on the part of the respondent had caused mental cruelty to the appellant. Similarly, unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. Therefore, the refusal to have intercourse should be for a considerable period and then only it will amount to mental cruelty. As stated above, within 12 days, both of them lived together only for 6 or 8 days and during that time even if there was no sexual relationship between them and therefore, the 12 days period cannot be considered to be a long period and the non consummation of the marriage between the appellant and the respondent during this short period will not amount to mental cruelty as contended by the learned counsel for the appellant/husband. Therefore, we are unable to sustain the finding of the Family Court on this aspect and hence, the same is set aside.

  • The respondent being a newly married girl and having been sent to the matrimonial home from her parental house, she has been totally uprooted from her parents house. She would be in the position of a sapling which has been plucked from the nursery and transplanted in some other place. Unless the newly transplanted sapling is watered and taken proper care of by the gardener or care taker, the newly transplanted sapling will not grow but it will wither away. Like that a newly married young girl in her matrimonial home will find it difficult to adapt to the new environment, atmosphere and circumstances and it will take some time for her to get adapted to the same and for that the love and affection of the members of the matrimonial home is a must. But from the evidence adduced in this case, it could be seen that neither the appellant nor his family members have treated the respondent with love and affection but have started finding fault with her and have gone to the extent of saying that she is mentally ill and have started demanding dowry from her parents and insisted her to take treatment for mental disorder with a psychiatrist. The appellant had threatened to divorce her within 12 days and he had not taken her for honeymoon though he had availed 20 days leave. Thus it is clear that she had not been treated with love and affection and as admitted by her she is a timid girl and as such it would not be possible for her to adapt to the new atmosphere and environment in the absence of love and affection from her husband and in-laws and unless she adapts to the new environment and atmosphere it would not be possible for her to have sexual intercourse with the appellant. Therefore, the non consummation of the marriage during the short period of 12 days, cannot be a ground for holding that it will amount to causing mental cruelty to the appellant.

  • As has been laid down by a Full Bench of the Apex Court in the decision reported in AIR 2006 SUPREME COURT 1675 (Naveen Kohli v. Neelu Kohli), 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, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. 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. 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. 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 hypersensitive 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 be deal with particular man and woman before it.

  • But unfortunately the Court below has not applied the aforesaid legal principles to the facts of this case while considering the allegation of mental cruelty. We are of the considered view that the Family Court has taken a too technical and hypersensitive approach without realising that it would be counter productive to the institution of marriage. The acts alleged against the respondent cannot be said to be such that no reasonable person would tolerate it. Therefore, we are of the considered view that the Court below is not right in granting a decree of divorce on the ground of mental cruelty.

  • As far as the alleged suppression of the real reason for the cancellation of the earlier marriage after the engagement of the respondent with one Ramachandran is concerned, it has to be pointed out that in his cross examination, P.W.1 has stated as follows:-

  • "vdJ jpUkzj;jpw;F Kd;g[ vjph;kDjhuUf;F ntW egUld; epr;rak; Md tptuk;. mjhtJ me;j khg;gps;is mbkhpf;fh bry;ytpUe;jjhy; vjph;kDjhuh; mbkhpf;fht[f;F bry;y tpUg;gk; ,y;yhjjhy; me;j jpUkzk; epd;Wtpl;l tptuj;ij v’;fs; tPl;lhhplk; vjph;kDjhuh; jug;gpy; TwpaJ vdf;Fj; bjhpa[k;/

    74/ Thus it is seen that the reason for cancellation of the marriage of the respondent earlier fixed with one Ramachandran is that the said Ramachandran after engagement got a job in U.S.A., but the respondent did not like to go to America and the same had been informed to the parents of the appellant and it was also known to P.W.1. Thus, the very allegation in the petition and in the evidence of P.Ws.1 to 3 on this aspect is totally false. Therefore, there is absolutely no suppression of any material fact attracting Section 12(1)(c) of the Hindu Marriage Act for annulling the marriage between the appellant and the respondent.

    1. As far as the allegations that the respondent is suffering from mental disorder is concerned, we are of the considered view that the said allegation has not been proved and made out. In this aspect, the submission made by Mr.K.P. Gopalakrishnan, learned counsel for the appellant/husband basing reliance on the report Ex.C1 of C.W.1 cannot be countenanced.
  • What C.W.1 has stated is that it is difficult for such a person to lead a normal married life and they will require more training to lead normal married life; by giving proper training it may be possible for her to work on the relationship; undersocialised persons can lead a normal life if they are given proper training. In Ex.C1 report, C.W.1 Doctor has given his final impression as follows:-

  • a. Tmt. J. Anitha does not suffer from any mental disorder as listed in Chapter V of the World Health Organisation’s International Classification of Diseases (10th edition 2007 version) or the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (DSM IV -TR).

    1. Tmt. J. Anitha manifests Borderline Intellectual Functioning not amounting to Mental Regradation or Mental Subnormality.
  • Tmt. J. Anitha has deficts in social skills and abstract thinking that themselves not clinically significant.

  • There is no prima facie evidence that Ms. J. Anitha cannot settle down to satisfactory married life if she is provided a conducive environment to do so.

  • Less than two weeks of married life cannot form basis for a long term decision of an individual’s marriage ability or marital capacity."

  • The aforesaid report shows that the respondent is not suffering from any mental disorder.

  • In this context, it will be useful to refer to Section 13(1)(iii) of the Hindu Marriage Act, which reads as follows:-

  • "13. Divorce (1) xxxxxxxxx

    (iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

    Explanation : – In this Clause –

    (a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

    (b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or"

    1. The learned counsel for the appellant relied upon the explanation to Section 13(1)(iii) of the Act, which says that the expression "mental disorder" includes incomplete development of mind and psychopathic disorder. According to the learned counsel as the medical evidence shows that there is Border Line Intellectual Functioning IQ 85 which will amount to sub-normality of intelligence, which would also include ‘disability of mind", the Court below is not right in holding that the respondent is not suffering from any mental disorder, but the said contention cannot be countenanced for the reason that Explanation ‘b’ to Section 13(1)(iii) of the Act cannot be read in isolation as sought to be done by the learned counsel for the appellant but it has to be read as a whole. The expression "psychopathic order" means a persistent disorder or disability of mind which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment.
  • It has to be pointed out that in Ex.R-3-letter written by the appellant to the respondent it has not been alleged that the respondent / wife is suffering from mental disorder. In Ex.R-3-letter the appellant has stated that noting her behaviour on 12.09.2001 they thought it will be prudent if a psychiatrist is consulted; on 15.09.2001 she was taken to Dr.Mohan Raj, M.D., Psychiatrist, at Vantage Plaza, L.B.Road, Adyar, Chennai, by her father; the Doctor desired to see her with the appellant again in the same evening; after counseling on the 15th evening at 07.30 pm, the Doctor informed the appellant that she was suffering from over anxiety; he advised the respondent to settle in a new house and slowly gain confidence, but it is not stated that the Doctor had stated that she is suffering from any mental disorder. If really the respondent / wife was suffering from mental disorder and when admittedly she had been taken to Dr.Mohan Raj, Psychiatrist, the appellant would have certainly mentioned about the same in Ex.R-3-letter and thus, the non-mentioning of the same shows that the allegation of mental disorder in the petition is only an after thought and has been invented only as a reason for obtaining dissolution of marriage. 81. In this case we have already pointed out that there is absolutely no evidence on the side of the appellant that the respondent at any point of time acted in an abnormally aggressive or seriously irresponsible manner Therefore, the explanation "b" to Section 13(1)(iii) of the Act is not attracted. Further, it has to be pointed out that admittedly, the respondent is a first class B.Com., Graduate and in fact she got admission to M.Com., in Stella Mary’s College and she had to discontinue her post graduation course as her parents wanted to give her in marriage. She has also deposed that she is good at vocal and instrumental music. Further, it has to be pointed out that if she lacks mental development or her intelligence is sub-normal or very low, she could not have withstood the aggressive cross examination made by the appellant’s counsel. A reading of her cross examination shows that she had understood all the questions put to her and answered them in a normal way. Therefore, we do not find any abnormality in her answers. R.W.1’s evidence shows that she had taken treatment for over anxiety with Dr. Nambi Rajan prior to her marriage and she has also mentioned about the name of the tablet and strength of the medicine. Therefore, the contention of Mr.K.P.Gopalakrishnan, learned counsel for the appellant that the respondent does not even know the medicines taken by her is not correct. There is no evidence to show that the respondent was treated for mental disorder prior to her marriage and therefore, there is no suppression of any material fact concerning the respondent/wife as alleged. Therefore, we are of the considered view that there is absolutely no evidence to hold that the respondent/wife is suffering from mental disorder. It is pertinent to point out that what is required to be proved for the purpose of Section 13 (1) (iii) of the Hindu Marriage Act, 1955, is that the respondent / wife is not only suffering from mental disorder, but also of such a degree and extent that the appellant / husband cannot reasonably be expected to live with her as her spouse. We are of the considered view that this has not been made home at all from the evidence on record. Therefore, the Court below is right in holding that the alleged mental disorder of the respondent/wife has not been proved and has rightly rejected the petition for divorce on the ground of mental disorder.

  • Now let us consider the decisions relied upon by the appellant’s counsel:-

  • a. In the decision reported in (2010) 1 MLJ 889 (T. Narayanasamy vs. N. Kaleeswari), the learned Single Judge of this Court has come to the conclusion that the parties have been continuously living separately without sincere attempt or any intention to have reunion between them and therefore, the continuance or allowing the existence of marriage between them will not serve any purpose and hence, their marital relationship has to be put to an end by dissolving their marriage and has also come to the further conclusion that the marriage has broken down irretrievably and on that ground a decree for divorce has been granted. But in this case, the respondent/wife had taken serious efforts as could be seen from her letters to her husband and in-laws and her evidence. Moreover, irretrievable break down of marriage being not a ground enumerated under section 13 of the Act, a decree for divorce cannot be granted on that ground.

    b. In N. Shankar vs. S.Saraswathi (2009-5-L.W-781), the Division Bench of this Court has held that the denial of marital comforts to each other for a long period of life undoubtedly will lead to mental cruelty. Further, the Division Bench has held that reckless and serious allegations regarding extra marital affairs will amount to mental cruelty. Therefore, the facts of that case are totally different from the facts of the case on hand and hence, the said decision is not applicable to the case on hand.

    c. In D. Nagappan vs. T. Virgin Rani (2009-3-L.W.708), the Division Bench has held that a false allegation of illicit intimacy against the husband will amount to mental cruelty. But in the case on hand such allegations have not been made by either of them. Therefore, the said decision is not applicable to the case on hand. In the very same decision, it has been further held that the Family Court should independently examine the facts in each case before granting the prayer for divorce as well as the restitution of conjugal rights. The said principle will be considered at the time of considering the appeal filed by the respondent/wife against the dismissal of her petition for the restitution of conjugal rights.

    d. In the decision reported in 2009-2-L.W.192 (Satish Sitole vs. Smt.Ganga) by invoking its power under Article 142 of the Constitution of India, the Apex Court dissolved the marriage on the ground that the marriage has irretrievably broken down. Therefore, the said decision is not applicable to the facts of the case on hand.

    e. Since the facts of the case in the decision reported in 2009-2-L.W.43 (C. Anantha Jeyakumar vs. C. Murugapriya) are totally different from the facts of the case on hand, the said decision is not applicable to the case on hand.

    f. Since in the decision reported in (2008) 4 MLJ 1172 (R. Anand vs. P.Indu), the allegations about the dowry harassment were found to be false, the learned Single Judge has held that it will amount to mental cruelty. But in the case on hand, the allegations about the dowry demand have not been found to be false and in fact, the same has been substantiated and therefore, the said decision is not applicable to the case on hand.

    g. On the basis of the facts, the Division Bench of this Court in the decision reported in 2008-3-L.W.864 (Dr.Gopal Ramanathan vs. Jayashree) has come to the conclusion that the marriage has broken down irretrievably and the husband and wife were living separately for 20 years and on that ground the marriage was dissolved. The facts of that case are totally different from the facts of the case on hand and therefore, the same is not applicable.

    h. Similarly, in the decision reported in (2007) 5 MLJ 1397 (N.Subramani vs. T.Shanta), the decree for dissolution was granted on the ground that the marriage has irretrievably broken down and therefore, the said decision is not applicable to the case on hand.

    i. In Smt. Mayadevi vs. Jagdish Prasad (2007-4-L.W.-249), the Apex Court on the facts of that case came to the conclusion that the husband was subjected to physical and mental cruelty by the wife and on that ground the decree for divorce was granted. But in this case, we have already discussed and pointed out that the alleged acts of mental cruelty have not been established and therefore, the said decision is not applicable to the facts of the case on hand.

    j. The decision in A. Viswanathan vs. G. Lakshmi @ Seetha (2007-2-L.W.902) is not applicable to the facts of the case on hand.

    k. In the decision reported in 2006-2-L.W.606 (Naveen Kohli vs. Neelu Kohli), the Full Bench of the Apex Court on a consideration of the facts and evidence of that case came to the conclusion that the mental cruelty as alleged by the husband had been established and further held that the marriage was totally dead and taking into consideration of the extraordinary facts and circumstances of that case dissolved the marriage between the parties by directing the appellant to pay Rs.25,00,000/- to the respondent towards maintenance. In that decision, the Apex Court had recommended to the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce. But the Hon’ble Apex Court has not granted decree of divorce on the ground of irretrievable breakdown of marriage and therefore, the said decision is not applicable.

    l. In the decision reported in 2006-2-L.W.419 (Vinita Saxena vs. Pankaj Pandit), the Apex Court has considered what is mental disorder and when it will amount to cruelty. In that case, the Apex Court has come to the conclusion that the medical evidence has proved the mental disorder of the respondent beyond doubt. The Apex Court has pointed out that Schizophrenia is one of the most dangerous/damaging form of mental disorder and on that ground the decree for divorce was granted and therefore, the facts of that case are totally different from the facts of the case on hand and therefore, the said decision is not applicable to this case.

    m. In Durga Prasanna Tripathy vs Arundhati Tripathy (2005(4) CTC 287), on the ground of irretrievable break down of marriage, the decree for divorce by exercising the powers under Article 142 of the Constitution of India was granted by the Apex Court and therefore, the said decision is not applicable to the case on hand.

    n. In A. Jayachandra vs. Aneel Kaur ((2005) 2 SCC 22), the Apex Court has laid down that what will constitute mental cruelty. In that case, the wife used abusive language and made allegations of adultery against the husband and the Apex Court has held that it will amount to causing mental cruelty. Therefore, the said decision is not applicable to the facts of this case as the facts of that case are totally different. o. In the decision reported in 2003-4-L.W.-609 (Vijayakumar Ramachandra Bhate vs. Neela Vijaykumar Bhate), the Apex Court has held that the averments, accusations and character assassination of wife made by the appellant/husband in the written statement will amount to mental cruelty for sustaining her claim for divorce under Section 13(1)(i-a) of the Act. In this case, no such ground is available and therefore, the said decision is not applicable to the facts of this case.

    p. The facts of the case in P. Natarajan vs. Thamizmani (2002-2-L.W.250) and the facts of this case are totally different and therefore, the said decision is not applicable to the case on hand.

    1. The issue that remains to be considered is as to whether the Family Court is right in dismissing O.P.No.2268 of 2007 filed by the respondent / wife under Section 9 of the Hindu Marriage Act seeking Restitution of Conjugal Rights.
  • The Court below, in its judgment, has observed that the respondent for the past eight years had deserted the appellant without any valid reasons and there is no chance for reunion between the appellant and the respondent considering the facts and circumstances of the case. It has further observed that the respondent / wife has not taken any steps for reunion and therefore she is not entitled for the relief of Restitution of Conjugal Rights.

  • The aforesaid observation have been made by the Court below without even discussing the oral evidence of R.W.1 and the documentary evidence adduced by her. Ex.P-3 is the letter, dated 26.11.2001 written by the respondent / wife to her husband / appellant, as a reply to Ex.R-3-letter written by her husband on 08.10.2011, wherein, she has point-by-point replied her husband’s allegations and she has mentioned that her parents’ visited the bank and met an official there to initiate efforts for reunion between the families and not to spoil the image of the appellant and she has also mentioned that her parents have been making all efforts to settle the matter amicably. She has expressed her hope that the appellant will take her into his hold as she has clearly explained to him all the points he had raised. Ex.R-7 is a letter, dated 06.10.2001 written by the respondent to her in-laws wherein she has mentioned that she had been waiting for them to come as they had told of their arrival to take her back. Ex.R-8 is another letter written by the respondent / wife to her husband / the appellant herein on 08.02.2002. It has been written in a friendly manner enquiring about his official visit to Madurai and informing him about the Homam and Abishegam performed in various temples and she has enclosed the prasadam to him and in the concluding portion of the letter, she has written as follows:-

  • I pray Almighty to restore happiness in our life. My respects to father, mother and grandfather.

    Ex.R-9 is another letter, dated 26.02.2002 written by the respondent / wife to her husband / appellant herein wherein she has mentioned that he had not replied to her earlier letters. She has requested the appellant to come to her house to take her with him. She has further stated as follows:-

    I still pray for a fine understanding of our families and enable us to live in harmony and peace.

    1. As rightly submitted by Mr.Rangarajan, learned counsel for the respondent, that R.W.1 in her evidence has categorically stated that she is very much interested in living with her husband and has spoken to about the steps taken by her parents to reconcile the differences between the two families and the efforts taken to bring about reunion. But unfortunately the Court below has totally overlooked all these facts and has not cared even to look at the evidence of R.W.1 and letters written by her to her husband much less to discuss the same.
  • The aforesaid letters written by the respondent / wife to her husband / appellant and her in-laws make it abundantly clear that she was always wanting and willing to go back to the matrimonial home, but there was no response from the appellant’s side. Whereas there is no evidence on the side of the appellant / husband to show that the appellant took any efforts to take her back to the matrimonial home. The evidence on record clearly shows that even during the twelve days both of them lived together the appellant had threatened the respondent that he will divorce her. The demand for dowry of Rs.3 lakhs by the mother of the appellant seems to be the main reason for the separation, but in spite of this, the respondent wants to live with the appellant. But overlooking all these facts and evidence, the Court below has erroneously come to the conclusion that the respondent had not taken any steps for reunion. The said finding of the Court below and the finding that the respondent had deserted the appellant without any cause is perverse and not based on any evidence and accordingly the said findings are set-aside.

  • We are constrained to observe that only because of the perverse and unsustainable order passed by the Court below, the life of two youngsters have been ruined for the past nine years. Had the Family Court considered the entire evidence, in the light of the well settled legal principles as stated above, the Court below would not have dissolved the marriage between the appellant and the respondent and in that event, there would have been a possibility for their reunion. But even now, it is not too late for the appellant and the respondent to calmly think about it, reunite and lead a peaceful life since there are no irreconcilable differences between the appellant and the respondent. Therefore, we hope and believe that the appellant and the respondent and more particularly the parents of the appellant will take sincere steps for their reunion.

  • The respondent / wife had not deserted the appellant / husband as observed by the Court below. Therefore, the respondent / wife is entitled for the relief of Restitution of Conjugal Rights and accordingly, the order and decretal order of the Family Court, dismissing O.P.No.2268 of 2007, is set-aside.

  • For the aforesaid reasons, CMA Nos.902 and 903 of 2010 filed by the respondent / wife stand allowed and CMA No.2407 of 2010 filed by the appellant / husband stands dismissed. However, there will be no order as to costs. Connected M.P. is closed.

    (K.M.J.,) (G.M.A.J.,)

    27.02.2012

    Index : Yes / No

    Internet : Yes / No

    srk

    Office to note.: Issue order copy on or before 05.03.2012

    K.MOHAN RAM J.,
    and G.M.AKBAR ALI, J.,

    srk/rnb

    To
    1. Principal Family Court, Chennai,

    Pre-Delivery Judgment in
    C.M.A.Nos.902, 903 and 2407 of 2010
    and M.P.No.2 of 2010

    Date : 27.02.2012

    M.P.No.2 of 2010 in CMA No.903 of 2010

    K.MOHAN RAM, J.,
    AND
    G.M.AKBAR ALI, J.,

    Order of the Court was made by K.Mohan Ram, J.,

    After judgment in the appeals was delivered, Mr.Rangarajan, learned counsel for the appellant in C.M.A.No.903 of 2010 submitted that the above petition has been filed for the following reliefs:-
    "….to direct the respondent to pay an amount of Rs.1,00,000/- towards the value of the furniture mentioned in item II and also Rs.10,000/- which was paid by the petitioner’s father at the time of betrothal for dresses and also return of other articles mentioned in item I to the petitioner and to pass such further or other orders as this Hon ‘ble Court may deem fit.

    Schedule of properties

    I item :
    1.Gold chain
    2.Gold bracelet
    3.Diamond ring
    4.Panchapatram Utthranayiam
    5.Cash worth Rs.10,000/- for dresses

    II item :

    1.Wooden diwan cot.
    2.Godrej bero
    3.Dressing table and stool
    4.Two wooden palagai with silver khumi in the corner
    5.one double size duroflex cushion mattress
    6.Four cushion pillows big size"
    and it has to be disposed of.

    1. It has to be pointed out that while arguing the appeals, no submission was made in respect of this petition. Even otherwise, this petition has been filed pending the above appeal and no such relief was sought for before the Family Court in the original petition. Therefore, we are of the considered view that this petition cannot be entertained by this Court at this stage. However, the petitioner is at liberty to seek an appropriate remedy before the appropriate forum by filing an appropriate application.
  • With the above observation, the above petition is dismissed.

  • (K.M.J.,) (G.M.A.J.,)
    27.2.2012
    RS

    M.P.No.2 of 2010 in
    CMA No.903 of 2010

    Pre-Delivery Judgment in
    C.M.A.Nos.902, 903 and 2407 of 2010
    and M.P.No.2 of 2010

    To
    The Hon’ble Mr. Justice K.MOHAN RAM
    and
    The Hon’ble Mr. Justice G.M.AKBAR ALI

    Most Respectfully submitted:

    S.Ramkumar
    /srk

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    CASE FROM JUDIS DOT NIC DOT IN SITE

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