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2008 DIGILAW 4773 (MAD)

Kalaivani v. K. U. Rajasekar

2008-12-22

S.RAJESWARAN

body2008
ORDER S. Rajeswaran, J. 1. C.M.S.A. No. 10 of 2007: The Civil Miscellaneous Second Appeal is filed against the judgment dated 26-10-2006 in C.M.A. No. 70 of 2005 on the file of Additional District -and Sessions' Judge, Fast Track Court No. IV, Poonamallee reversing the judgment in H.M.O.P. No. 32 of 2002 or the file of the subordinate Judge, Poonamallee, dated 2-9-2005. Cross Objection No. 48 of 2007: The Cross Objection is filed against the judgment 4ated 26-10-2006 in C.M.A. No. 70 of 2005 on the file of Additional District and Sessions Judge, Fast Track Court No. IV, Poonamallee in so far as directing him to pay a sum of Rs. 5000/- per month to the wife. 2. The respondent/wife in H.M.O.P. No.32 of 20p2ii the appellant before this Court. 3. The respondent here in husband filed H.M.O.P No. 32 of 2002 under Section 13(1)(ia) and (iii) of the Hindu Marriage Act, for dissolving the marriage dated 27-3-1986 solemnised between the appellant/wife and the respondent/husband herein. 4. The case of the. respondent/husband in H.M.O.P. No. 32 of 2002 is that, the marriage-between them was solemnised at Vellore on 27-3-1986 as per,-Hindu rights and customs. Two childern were born to them during the course of the marriage and right from the first day. the appellant/wife used to create and quarreled with the respondent/husband regularly. During the year 1989, the appellant/wife left the matrimonial home with her two years child in the early hours and the respondent/husband immediately rushed to the bus stop and brought them back to their house. The respondent/husband found the appellant/wife abnormal and admitted her in a hospital in Avadi for two days. The Doctors informed him that she is suffering from neuro disorder. Thereafter, they resided together till 1992. Even during this period, the activities of the appellant/wife were not changed. In the month of August, the respondent/husband was posted to Nagpur for a training. When he requested the appellant/wife to stay in his parents house for a month, she refused and she wanted to go to her parents house. She refused and she wanted to go to her parents house. She always threatened him by saying that she would commit suicide by pouring kerosene on her or by taking poison or by hanging herself. After completing the training, the respondent/husband was posted to Medak near Hyderabad. She refused and she wanted to go to her parents house. She always threatened him by saying that she would commit suicide by pouring kerosene on her or by taking poison or by hanging herself. After completing the training, the respondent/husband was posted to Medak near Hyderabad. The respondent/husband took the appellant/wife and their children to Medak and there also, she used to treat the respondent/husband in a cruel manner. In February 1995, she administered poison namely Laxman Rekha Cockroach Poison. Immediately, he took her to the hospital and saved her after treatment. In May 1995, when they were travelling by bus from Hyderabad to Madras, the appellant/wife quarreled with the respondent/husband and she also removed the that and threw it at the face of the respondent/husband. Her behaviour became unbearable in May 1996 and only at that time, the respondent/husband realised that she is not mentally healthy and admitted her in a hospital. The Doctors after examining her diagnoised that she is suffering from mental disorder and she used to be treated by psychiatrists. The respondent/husband took her to Chennai and she was treated by psychiatrist by name Dr. Peter Fernandez at Sri Ramachandra Hospital, Porur. The Doctors diagnoised that she is suffering from psychopathetic disorder like Schizophrenia. The appellant/wife was under treatment till 1999 when he was transferred to Japalpur. The respondent/husband took his two challan to Japalpur and the appellant/wife stayed with her parents at Porur. Again he was transferred to Chennai in the month of November 2001 and the atrocities of the appellant/wife continued and she used to abuse and accuse the respondent/husband and his family members. According to the respondent/husband there is no possibility to cure the appellant/wife and he is not able to put up with the torture. Hence, he filed H.M.O.P. No. 32 of 2002 for the aforesaid relief. 5. H.M.O.P. No. 32 of 2002 was resisted by the appellant herein by filing a counter. According to her, the marriage life sailed smoothly for a few years only. Thereafter, the attitude of her husband changed as he developed all sorts of vices. The respondent/husband lived a lavish life and he did not care for the family she was affected mentally because of whimsical behaviour of the husband only. Further, he deserted her and treated her cruelly. Hence she prayed for the dismissal of the petition. 6. Thereafter, the attitude of her husband changed as he developed all sorts of vices. The respondent/husband lived a lavish life and he did not care for the family she was affected mentally because of whimsical behaviour of the husband only. Further, he deserted her and treated her cruelly. Hence she prayed for the dismissal of the petition. 6. The sub Court, Poonamallee hy order dated 2-9-2005 dismissed the H.M.O.P. No. 32 of 2002 and aggrieved by the same, the respondent/husband filed C.M.S.A. No. 70 of 2005 before the Fast Track Court No. 4, Poonamallee. The lower Appellate Court by order dated, 26-10-2006, allowed the appeal on the ground of mental cruelty while concurring with the trial Court that the respondent/husband has failed to establish a case under Section 13(i)(ia) of the Act. While dissolving the marriage between the parties, the lower Appellate Court directed the respondent/husband to pay a monthly maintenance of Rs. 5000/- to the appellant/wife from the date of the appeal in consideration of her health. Aggrieved by the order of the lower appellate Court, the wife has filed the above Civil Miscellaneous Second Appeal under Section 28 of the Hindu Marriage Act read with Section 100 of C.P.C. The husband has also filed a cross-objection No. 48 of 2007 in so far as directing him to pay a sum of Rs. 5000/- per month to the wife. 7. On 28-6-2007, this Court ordered notice and granted interim stay. 8. Heard the learned Counsel for the appellant/wife and the learned senior counsel for the respondent/husband. I have also perused the documents and judgments filed in support of their submissions. 9. The learned Counsel for the appellant submits that the lower Appellate Court has committed an illegality in granting the divorce on the ground of cruelty when the respondent/husband has failed to prove them form of cruelty with sufficient materials. Therefore, according to him, a substantial question of law arises in this appeal as to whether the lower Appellate Court has not correctly evaluated the evidence to come to the conclusion that the respondent/husband has proved that the appellant/wife has committed the. acts of cruelty as per Section 1 (ia) of the Hindu Marriage Act. In support of his submissions, the learned Counsel for the appellant relies on the following decisions: 1. AIR 1959 Ker 358 Damodaran v. Karimba Plantations. Co. Ltd. and Ors.. 2. acts of cruelty as per Section 1 (ia) of the Hindu Marriage Act. In support of his submissions, the learned Counsel for the appellant relies on the following decisions: 1. AIR 1959 Ker 358 Damodaran v. Karimba Plantations. Co. Ltd. and Ors.. 2. 2004 (1) C.T.C. 26 : AIR 2004 Mad 177 Palanivelu v. Meenakurnari 10. Per contra, the learned Senior Counsel appearing for the respondent/husband submits that there is no question of law much less a substantial question, of law arises for consideration in this appeal and on that ground alone, the appeal is to be dismissed. He further submits that the first appellate Court is the final Court of facts and the Lower Appellate Court has correctly evaluated the evidence and granted divorce on the basis of the evidence adduced before it which cannot be interfered with by this Court. He further adds that even otherwise the marriage between the parties has broken down irretriavably and in such circumstances, the divorce granted by the Lower Appellate Court need not be interfered with by this Court. In support of his submissions, the learned Senior counsel relied on the decisions of the Hon'ble Supreme Court reported in: 1. 2006 (4) SCC 558 : AIR 2006 SC 1675 Naveen Kohil v. Neelu Kohli 2. 2007 (4) SCC 511 Samar Ghosh v. Jaya Ghosh. 11. The learned Senior counsel while arguing the cross objections, submitted that having granted the divorce on the ground of cruelty, it is not open to the First Appellate Court to direct the respondent to pay a sum of Rs. 5000/- per month in the absence of any evidence and also when the appellant/wife herself has not asked for any maintenance. Therefore, according to him that part of the order in C.M.A. No. 70 of 2005 directing the respondent/husband to pay a monthly maintenance of Rs. 5000/- is unsustainable and the same is to be set aside. 12. I have considered the rival submissions carefully with regard to facts and citations. 13. In C.M.S.A. No. 10 of 2007, the following substantial questions of law were raised by the appellant/wife, namely: (A) Whether the First Appellate Court is right in not appreciating the evidence let in by the Appellant? (B) Whether the First Appellate Court is right in grantng a decree of divorce having disbelieved the evidence of the respondent? 13. In C.M.S.A. No. 10 of 2007, the following substantial questions of law were raised by the appellant/wife, namely: (A) Whether the First Appellate Court is right in not appreciating the evidence let in by the Appellant? (B) Whether the First Appellate Court is right in grantng a decree of divorce having disbelieved the evidence of the respondent? (C) Whether the First Appellate Court is correct in reversing the decree granted by the trial Court without appreciating the conduct of the respondent? (D) Whether the First Appellate Court is right in granting any relief under Section 13(1)(1-a) having held that the ingredients of Section 13(1)(iii) have not been satisfied by the respondent? 14. Even though the above said substantial questions of law were raised by the appellant, all the four questions could be converted into a single substantial question of law; namely, whether the First Appellate Court has correctly re-evaluated the evidence to come to the right conclusion that the appellant/wife is guilty of cruelty as per Section 13(1)(ia) of the Hindu Marriage Act. 15. Now, let me proceed to answer the above modified substantial question of law that arises for consideration in this appeal. 16. Admittedly, the H.M.O.P. No. 32 of 2002 has been filed by the respondent/husband under Section 13(1)(ia) and (iii) of the Hindu Marriage Act, seeking for the relief of dissolution of the marriage dated 27-3-1986 solemnised between them. It is on record that the trial Court dismissed the petition on both the grounds and the Lower Appellate Court allowed the appeal and granted divorce on the ground of cruelty as per Section 13(1)(ia) of the Hindu Marriage Act. The Lower Appellate Court has also found that the respondent/husband has failed to prove his case under Section 13(1)(iii) of the Hindu Marriage Act. Therefore, in so far as the ground of insanity is concerned, the same was rejected by both the Courts below and there is no challenge to this by the respondent/hushand before this Court. In fact, in the cross objection No. 48 of 2007 filed by the respondent/husband, he was only questioning that portion of the order of the Lower Appellate Court, directing him to pay a sum of Rs. 5,000/- per month as maintenance to the appellant/wife. Therefore this Court would not be going into the question of insanity of the appellant/wife as pleaded by the respondent/husband in H.M.O.P. No. 32 of 2002. 5,000/- per month as maintenance to the appellant/wife. Therefore this Court would not be going into the question of insanity of the appellant/wife as pleaded by the respondent/husband in H.M.O.P. No. 32 of 2002. 17. Now coming to the question of cruelty, what was pleaded in the petition by the respondent/husband is that, the appellant/wife used to create problem and quarrelled with him regularly, she started to create scenes at public, she left the matrimonial home with her two years old child in the early hours in 1989, she refused to stay with the respondent's parents, she threatened to commit suicide, she removed the that and threw it at him and she used to abuse and accuse the husband and his family members. Even according to the respondent/husband, the appellant/wife took treatment in the hospital for some nervous problem and therefore, some of her behaviour and activities were due to these nervous problems. 18. As per Section 13(1)(iii) of the Hindu Marriage Act, 1955, a marriage may be dissolved by a decree of divorce on the ground that the other party has been incurably of unsound mind or has been suffering continuously or intermitahtly from mental disorder of such kind and to such an extent the petitioner cannot reasonably be expected to live with the respondent. According to Section 13(1)(iii) of Hindu Marriage Act, what is to be established is, an incurable unsoundness of mind or a mental disorder of such kind and to such an extent that nobody can be expected to live with a person of such an unsoundness of mind, which is incurable or such a mental disorder which could not be coped with. As seen already, the respondent/husband has failed to prove a case under Section 13(1)(iii) of Hindu Marriage Act, even though the wife has been admitted in hospital for some nervous problems. In such circumstances, the activities and behaviour of the appellant/wife which were sought to be projected as acts of cruelty by the respondent/husband, could be due to the nervous problem suffered by the wife which is not proved as incurable by the respondent/husband. This aspect has not at all been adverted to by the Lower Appellate Court. 19. In such circumstances, the activities and behaviour of the appellant/wife which were sought to be projected as acts of cruelty by the respondent/husband, could be due to the nervous problem suffered by the wife which is not proved as incurable by the respondent/husband. This aspect has not at all been adverted to by the Lower Appellate Court. 19. The trial Court after finding that no case has been made out under Section 13(1)(iii) of the Hindu Marriage Act, found that the respondent/husband is also resbonsible for the mental agony of the appellant/wife and, therefore, the respondent/husband has not proved cruelty as contemplated under Section 13(1)(ia) of the Hindu Marriage Act. 20. The Lower Appellate Court while concurring with the trial Court that the respondent/husband has not made out a case under Section 13(1)(iii) of the Hindu Marriage Act, found that the act of cruelty on the part of the appellant/wife has been proved by the respondent/husband and granted the decree of divorce on that score, to come to the conclusion that the wife is guilty of cruelty, the lower Appellate Court took the following incidents namely: 1) In 1989, the appellant/wife took her two years old child and left the house with and any information; 2) the threatenings of the appellant/wife to commit suicide by pouring kersone; 3) the consumption of Laxman Rekha by the appellant/wife in the year 1995; and 4) the evidence of the P.W. 2 who is the first son of the appellant/wife who deposed that there will be a fight between his parents far simple reasons, which caused mental stress and he would have done well in the exams had these fights been avoided. 21. After going through the order of the Lower Appellate Court, I am of the considered view that the Lower Appellate Court has come to the wrong conclusion on the basis of the evidence adduced by the parties by holding that the mental stress has been proved by the respondent/husband to get an order of divorce on the ground of cruelty. First of all, the First Appellate Court has failed to advert to the fact that some of the activities and behaviours of the appellant/wife could be due to the illness she suffered, for which, she took treatment. First of all, the First Appellate Court has failed to advert to the fact that some of the activities and behaviours of the appellant/wife could be due to the illness she suffered, for which, she took treatment. It has been concurently held by both the Courts below, the respondent/husband has miserably failed to prove a case under Section 13(1)(iii) of the Act. If that being so, the ordinary frictions and fights between the husband and wife could not be categorised as acts of cruelty as contemplated under Section 13(1)(ia) of the Act. In every marriage life between the husband and wife, there are always bickerings and quarrels due to ordinary wear and tear of the routine marriage life. If these ordinary wear and tear of the marriage life could be considered as act of cruelty, the same could be proved by all the parties who are coming to the Courts. But, that is not the intention of the legislature in introducing Section 13(1)(ia) of the Hindu Marriage Act, according to which, the cruelty contemplated thereon, should be of such magnitude and severity^ which is net ordinary bickerings and differences of opinion between the husband and wife. If, in this context, the evidence adduced before the trial Court is evaluated, I am of the considered view that the respondent/husband has hardly made out a case for divorce under Section 13(1)(ia) of the Act. 22. In AIR 1959 Ker 358 (cited supra), a Division Bench of the Kerala High Court while dealing with Section 83 and 60 of the Evidence Act, found that the trustworthiness and accuracy of the evidence must be proved or otherwise requirement of Section 83 are not satisfied. 23. In 2004 (1) CTC 26 : AIR 2004 Mad 177 Palanivelu v. Meenakumari, this Court held that mental cruelty is difficult to be established by direct evidence which is state of mind. The courts should take the cumulative evidence of facts and circumstances emerging from evidence on record and then draw the fair inference whether the petitioner in divorce petition has been subjected to mental cruelty due to the conduct of the other. The relevant portion of the order reads as under: 9. The courts should take the cumulative evidence of facts and circumstances emerging from evidence on record and then draw the fair inference whether the petitioner in divorce petition has been subjected to mental cruelty due to the conduct of the other. The relevant portion of the order reads as under: 9. With regard to the allegation of mental cruelty, the appellant/husband had been subjected to by the respondent/wife, mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other, vide Praveen Mehta v. Inderjit Mehta 2002 (5) SCC 796. But, In the instant case, the appellant/husband failed to prove the allegations of mental cruelty by the respondent/wife with any evidence. 24. In (2006) 4 SCC 558 : AIR 2006 SC 1675 (cited supra), the Hon'ble Supreme Court held that cruelty may be physical or mental and each case has to be decided on its merits. The Hon'ble Supreme Court further held that when the parties are living separately for a sufficient length of time and one of them presents a petition for divorce decree, it can be presumed that the marriage has been broken down irretrievably and irretrievably broken down marriage is a ground for divorce. 25. In (2007) 4 SCC 511 (cited supra), the Hon'ble Supreme Court held that there cannot be any comprehensive definition of mental cruelty, out of which, all kinds of mental cruelty can be covered. 25. In (2007) 4 SCC 511 (cited supra), the Hon'ble Supreme Court held that there cannot be any comprehensive definition of mental cruelty, out of which, all kinds of mental cruelty can be covered. There can never be any straight 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 the various factors into consideration. In the very same decision, the Hon'ble Supreme Court held that irretrievably breakdown of the marriage is also a ground for divorce. 26. In the light of the above decisions also, I am to hold that the respondent/husband has not made out a case for divorce on the ground of mental cruelty on the peculiar facts and circumstances of the present case. The first appellate Court has not properly re-evaluated the evidence to come to the conclusion that the respondent/husband has proved cruelty on the part of the appellant/wife as per Section 13(1)(ia) of the Act. As the Court below has failed to come to the correct conclusion on the basis of the evidence adduced before it, it is certainly a substantial question of law and in this case, I am answering the substantial question of law in favour of the appellant/wife and against the respondent/husband. 27. In the result, the Civil Miscellaneous Second Appeal is allowed. No cost. Connected miscellaneous petition is also closed. 28. As I have set aside the order of the First Appellate Court in its entirety, I am also allowing the Cross Objection filed by the respondent/husband. Consequently, Cross Objection No. 48 of 2007 is also allowed.