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2009 DIGILAW 4366 (MAD)

N. Shankar v. S. Saraswathi

2009-10-21

K.RAVIRAJA PANDIAN, T.RAJA

body2009
Judgment :- 1. The unsuccessful plaintiff / appellant husband herein Mr. N.Shankar having lost his case before the trial court for decree of divorce has filed the present Civil Miscellaneous Appeal. 2. The Plaintiff / Appellant is an engineer by profession married the respondent, an educated lady in accordance with Hindu Rites and ceremonies. After the marriage they were having happy married life. Since the appellant husband was suffered many mental cruelties at the hands of his own wife, the respondent herein, though the appellant had adjusted on many occasions with the respondent to avoid any friction with a fond hope that she would cope up with him in future to lead an amicable, peaceful and happy life and the appellant finally having miserably disappointed, was constrained to file the petition for divorce under section 13(a) of the Hindu Marriage Act, interalia among other grounds that the respondent started ill treating the petitioner/appellant very often. To mention some instances, the respondent used to force the petitioner/appellant herein to have sexual intercourse even when the petitioner/appellant was not keeping good health and in the event of the appellant refusing to go with the respondent, the respondent used to abuse the appellant and some times even used violence against him, by using her nails and sometimes the respondent would go hysterical and flare up against the appellant and on some other occasions she used to resort, violence against the appellant by nails. On many occasions, the respondent wife used ‘to belittle the petitioner, that too, in the presence of his friends and used abusive languages against the appellant. 3. In the beginning of 1993 the respondent wife used to force the appellant to have sex even when the appellant was not well, having wheezing problems. Whenever the appellant refused to accept the respondent’s demand she used to hurt the appellant by using her nails, even over trivial issues she used to find fault with the appellant and it would end up with quarrel. Even on some occasions, the respondent used to threaten and torture the appellant saying that she would commit suicide. All these peculiar behaviour of the respondent could amount to mental and legal cruelty and on this ground, “the appellant asked for, decree of divorce from the respondent by filing the petition under section 13(a) of the Hindu Marriage Act. 4. Even on some occasions, the respondent used to threaten and torture the appellant saying that she would commit suicide. All these peculiar behaviour of the respondent could amount to mental and legal cruelty and on this ground, “the appellant asked for, decree of divorce from the respondent by filing the petition under section 13(a) of the Hindu Marriage Act. 4. At the time when the divorce petition was filed, the appellant and the respondent were living separately for about one and half years, since the life of the appellant has become miserable due to her conduct and behaviour of the respondent, the appellant could not live in peace and this affected the appellant’s personal life and physical life very much, in view ‘of miserable and intolerable behaviour of the appellant’s wife, the appellant was put to lot of inconvenience and hard ship. In view of this matter, the petitioner/appellant prayed for grant of divorce on the ground of mental cruelty. 5. The petition so filed was defended by the respondent by contending that the disappointment of the appellant if any, might have arisen out of extra- material matters of the appellant which have no relation to the good conduct of the respondent wife who fitted herself in the family of the appellant in the satisfaction of the parents in law. It is further contended that the allegations leveled by the appellant that the wife started ill-treating the appellant by forcing with the sexual inter-course even when the appellant was not in good health and abused him and also used violence by using nails is false and incorrect. The respondent further denied the allegations that here behaviour never caused any mental cruelty or legal cruelty, either to appellant or to his family members. In fact, on several occasions the appellant forced the respondent and is also beaten her as she would not accede to have mutual divorce, which the petitioner wanted due to the extra marital affairs with, one lady by name Indhumathi Varadarajan who is living in the same street opposite to the appellant house. Since the respondent has come to know of this hard fact by way of reading several love letters, the appellant became “upset and started ill-treating the respondent until, he got assurance from her that she would not reveal the said facts to the family members. Since the respondent has come to know of this hard fact by way of reading several love letters, the appellant became “upset and started ill-treating the respondent until, he got assurance from her that she would not reveal the said facts to the family members. From that time onwards, the appellant began to show hatred towards the respondent and refused to visit the respondent’s mother’s house and relative’s house on several important occasions. In February 1995 when the respondent’s only brother died at a very young age of 27 years, the appellant refused to come to convey his condolence to the bereaved family. This was also tolerated by the respondent only to save the Matrimonial harmony from getting affected. 6. Even in April 1995, due to some misunderstanding which occurred between the appellant and the Indumathi Varadarajan, the appellant started yet another extra marital affair with the next door neighbour girl though the said girl was an unmarried one and both the appellant as well as that girl used to go external outings like cinema, beach, and also to other public places and also used to attend music performance without caring to take the respondent with them. In spite of all these, the respondent used to bear even this indignity silently and patiently on a fond hope that the appellant would revert to her by passage of time. 7. Further the respondent is an advocate and was practicing in Chennai Court. But at the instance of the appellant and for the sake of the family life, peace and harmony, she discontinued her practice. With these averments the respondent denied all the averments and objected for the prayer for grant of divorce. 8. The trial court having seen that the respondent wife is a sincere, honest and pious minded girl and she has always been good and very devoted towards her husband and further she has got very high regards for her husband, inasmuch as the respondent wife always been proud of the appellant achievements and personal life and has been singing his praises and about his talents, dismissed the petition filed by-‘the Appellant under section 13(i) of the Hindu Marriage Act. Aggrieved by the trial court Judgment and decree refusing to grant divorce, the present Civil Miscellaneous Appeal has been filed. 9. Aggrieved by the trial court Judgment and decree refusing to grant divorce, the present Civil Miscellaneous Appeal has been filed. 9. This court also keeping in mind the welfare of the parties and their family harmony gave them a chance to settle the matter. But, when the matter was taken up after sometimes, the appellant husband declined to go with the respondent and the learned counsel for the Respondent wife also informed us that only in the later days she would like to go with her husband but not now. Therefore, this court also took up this matter to consider- whether the appellant husband has really suffered any mental cruelty on the behaviour and conduct of the respondent wife. 10. In the present case both parties have made allegations and counter allegations and such allegations made by the wife is as follows: “In or about that time accidentally she came across a few letters of the petitioner which indicated his extra-martial affairs, with a married lady by name Indhumadhi Varadarajan, living in the street opposite to the petitioner’s house. In or about April 1993, some misunderstanding arose between the petitioner and the said Indumadhi Varadarajan and the said relationship with Indumadhi Varadarajan got strained and the petitioner started yet another extra-martial affair with the next door neighbour girl. Though the said girl is an unmarried one she took a fancy to the petitioner and both of them had a lot of external outings like cinema, beach and other public places. Both the said petitioner and girl were interested in music and both of them attended music performance without caring to take the Respondent with them. The Respondent bore even this indignity silently and patiently, in the fond hope that the petitioner would revert to her by passage of time. 11. On the other hand the husband has made equally a reckless allegation against his wife as follows: “The respondent used to force the petitioner’ to have sexual intercourse even when the petitioner was not keeping good health and in the event of the petitioner declining the respondent used to abuse him and even use violence against him by using her nails. At time, the respondent would go hysterical and flare up against the petitioner and at times use violence against the petitioner by nails. At time, the respondent would go hysterical and flare up against the petitioner and at times use violence against the petitioner by nails. On certain occasions the respondent belittle the petitioner in the presence of his friends and used abusive languages against the petitioner. By virtue of her conduct and behaviour the respondent has made the life of the petitioner unbearable and the petitioner could not live in peace. This has affected the petitioner very much and the petitioner’s ailing aged parents are also put to lot of inconvenience and hardship because of the miserable and intolerable behaviour of the respondent. By her such behaviour the respondent has exhibited her temperamental incompatability by her indecent and unseeming behaviour by her conduct the respondent has not only be using physical cruelty but also has been causing legal cruelty to the petitioner. 12. The trial court failed to take into consideration the wild and reckless allegations made against each other by both husband and wife. Further, though the marriage between the appellant and respondent took place on 25.01.1993 and lived for only four years, from the date of filing of the divorce petition on September 1997 till now, for about twelve years they are living separately. Even in February 1995 when the wife’s only brother died at very young age of 27 years, appellant refused to visit his bereaved family to convey his condolence. This instance is not only indicating the fact that they are angry with enemical feeling with each other, but also indicates another vital aspect that the normal human emotions and feelings had been lost between them and further it shows that the parties have no respect to the marital bond and miserably failed to discharge the obligations of marital life. 13. In this context a judgment of the Apex Court Reported in Suman Kapur Vs. Sudhir Kapur reported in 2009 (1) SCC 422 needs to be kept in mind. 28. Section 13 of the Hindu Marriage Act provides for grant of divorce in certain cases. In enacts that any marriage soleminised whether before or after the commencement of the Act may be dissolved on a petition presented either by the husband or by the wife on any of the grounds specified therein. 28. Section 13 of the Hindu Marriage Act provides for grant of divorce in certain cases. In enacts that any marriage soleminised whether before or after the commencement of the Act may be dissolved on a petition presented either by the husband or by the wife on any of the grounds specified therein. Clause (i-a) of sub-section 13 declares that a decree of divorce may be passed by a Court on the ground that after the solemnization of marriage, the opposite party has treated the petitioner with cruelty. 29. Now, it is well settled that the expression “Cruelty” includes both (i) physical cruelty and (ii) mental Cruelty. 14. In a similar occasion while dealing with the mental cruelty the apex court in V.Bhagat Vs. Mrs.D.Bhagat’s case reported in 1994 (1) SCC 337 has held that even reckless allegations made by wife against her husband would amount to mental cruelty within the meaning of-the said sub clause 18. In Chanderkala Trivedi v. Dr.S.P.Trivedi the husband sued fox divorce on the ground of cruelty by wife. The wife filed a written statement wherein she attributed adultery to the husband. In reply thereto the husband put forward another allegation against the wife that she was having undesirable association with young boys. Considering the mutual allegations, R.M.Sahai, J, speaking for Division Bench, observed: (SCCp.233, Para 2) “Whether the allegation of the husband that she was in the habit of associating with young boys and the findings recorded by the three courts are correct or not but what is certain is that once such allegations are made by the husband and wife as have been made in this case then it is obvious that the marriage of the two cannot in any circumstances be continued any further. The marriage appears to be practically dead as from cruelty alleged by, the husband it has turned out to be at least intimacy of the husband with a lady doctor and unbecoming conduct of a Hindu wife.” 15. In yet another similar situation, the Apex court in a judgment reported in 2007 (4) SCC 511 Samar Ghosh v. Jaya Ghosh has held as follows: 95. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that, the breakdown is irreparable, the divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties. 97. This court in Naveen Kohli v. Neelu Kohli dealt with the similar issues in detail. Those observations incorporated in SCC paras 74 to 79 are reiterated in the succeeding paragraphs; (SCC pp.579-580) “’74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be unrealistic to society and Injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. 16. A Division Bench of this High Court, while dealing with mental cruelty in a judgement reported in 2008 (3) LW 864 has held as follows: “8. The parties are highly educated and hail from affluent and respected family. But they miserably failed, rather refused to understand the basic and fundamental requirements of leading a family life with minor adjustments with each other. They virtually spent 20 years of youthful life in isolation by living apart. Even during the shortest period they lived under one roof, silence was the only language of conversation between them. Even sporting a smile to each other was unknown and unheard of and virtually they have led a robotic life for no tangible reason. Of course, it is often said, passage of time would heal the wound in the mind of the people, but in the case of the parties here, the adage worked otherwise about. Even sporting a smile to each other was unknown and unheard of and virtually they have led a robotic life for no tangible reason. Of course, it is often said, passage of time would heal the wound in the mind of the people, but in the case of the parties here, the adage worked otherwise about. - the gap in the marital life has widened a huge as the years rolled on. The wife is also highly educated and she, after spending more than two decades of youthful life by living in isolation from her husband however expressed that she is willing to live with the appellant, who is hating her and made by stay away from him for such a longer number of years. When the court suggested the appellant to start a new life with the respondent, As she is willing, he expressed his difficulty with emotion to the effect that it is highly impossible for him even to think of in. 9. Onthe above stated factual situation, the one and the only conclusion that could be arrived at is there had been a long period of continuous separation, the marriage bond has broken beyond any possible repair. The marriage became a fiction though supported by a legal tie. The denial of marital comforts to each other for long period of years led to mental cruelty.” 17. In the case on the hand also the appellant husband making all unimaginable allegations against his wife and in turn the respondent wife has also alleged extramarital affairs by the appellant husband with Indumathi Varadarajan and another girl also. This is how both the husband and wife started waging reckless wild allegations against each other as bitter enemies in their life and thereby cause huge loss of gap in their union. A feeling of anguish, disappointment and frustration in one spouse has been caused to the other and the same can be appreciated on assessing the attending facts and circumstances, in which the two partners of matrimonial life have been living. In this view of this matter, the mental cruelty caused by the respondent can cause more serious injury than the physical harm created in the mind of the appellant. 18. Marriage is a social institution and is the first step towards the formation of a family. In this view of this matter, the mental cruelty caused by the respondent can cause more serious injury than the physical harm created in the mind of the appellant. 18. Marriage is a social institution and is the first step towards the formation of a family. It gives the people, the much needed support to face the adversaries of life and is a source of happiness for any individual. However when there is a clash of expectations between individuals and hidden agenda are involved or the mutual trust between partners, is broken, the marriage ceases to exist in spirit and remains only on papers. A relationship is meant to give support to an individual in a social context and not to form a burden and all relationship quintessentially based on trust, if the trust dies, so dies the relation. Maintaining it on papers is another fallacy like the relationship itself. A true and mature relationship is one where even if there is a tiff between the partners, the same can be resolved by making one phone call, no matter who makes the call. If any relationship fails this test it is better called off and that too in a manner which ensures happiness and mental peace for both the partners. 19. Further the parties are highly educated and nailed from respected family background. But the miserably failed to understand the – basic and fundamental requirements of leading an ideal family life with trivial minor frictions usually might occur between a husband and wife – in their routine life. If any one of the spouse failed to adjust with this usual wear and tear in a family, the marriage Life will become a fiction though supported by a legal tie. The denial of marital comforts to each other for a long period of life undoubtedly will lead to mental cruelty. We make it clear, that our opinion is not rested upon irretrievable breaking down of marriage, but based on section 13(1) of the act. 20. Therefore, in our considered view it is impossible to preserve or save the marriage and further any effort to keep it alive would prove to be totally counter productive. Hence, this court is of the considered view that this is the case where the party could not live together as admittedly the petitioner / appellant has been put to mental cruelty by her wife. Hence, this court is of the considered view that this is the case where the party could not live together as admittedly the petitioner / appellant has been put to mental cruelty by her wife. Therefore on this bases, we are of the view that the grant of divorce being the best solution and inevitable by taking into account the peculiar feature of this case, the marriage between the parties should be dissolved under Section 13 (1) of the Hindu Marriage Act and accordingly we hold the marriage is dissolved and the Civil Miscellaneous Appeal is allowed by setting aside the order of the I Additional Family Court., Chennai. Consequently, connected miscellaneous petition is also closed. No costs.