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2012 DIGILAW 3468 (MAD)

K. Ayyanar v. P. Muniammal

2012-08-03

S.VIMALA

body2012
Judgment :- 1. The couple, related to each other even before the marriage, who ought to have honoured the marriage by celebrating Silver Jubilee, have made the marital life miserable by fighting with each other in the Court for more than a decade. 2. The husband filed a petition for divorce under Sections 13(1) (i-a) and (i-b) of the Hindu Marriage Act, 1955, on the ground of cruelty and desertion before the Additional Subordinate Court, Tenkasi, seeking the relief of divorce. It was dismissed by the Trial Court on 14.06.1999. Aggrieved over the dismissal of the divorce petition, he preferred an appeal in C.M.A.No.75 of 1999 before the Additional District Judge (Fast Track Court No.1), Tirunelveli. Again, it also met with the same fate and it was dismissed on 06.03.2002. As against the concurrent dismissals, the husband has filed C.M.S.A.No.19 of 2002 before this Court. 3. The wife filed a petition in HMOP No.32 of 1997 before the Sankagiri Sub-Court, praying for restitution of conjugal rights. It came to be transferred to the Principal Subordinate Court, Tenkasi and renumbered as HMOP No.22 of 1999. It was dismissed on 17.07.2000 as against which, the wife filed C.M.A. No.13 of 2001 before the Additional District Judge (Fast Track Court No.1), Tirunelveli, where she succeeded. Aggrieved over the order of the Lower Appellate Court directing restitution of conjugal rights, the husband has filed C.M.S.A.No.18 of 2002 before this Court. 4. The appeal was heard on the following substantial questions of law:- "1) Whether the Lower Appellate Court is right in ignoring the categorical finding of the Trial Court with regard to the admission made by the wife regarding the allegations made by her, and allowing the appeal, without considering the relevant documents and evidence? 2) Whether the conduct of the wife in filing false cases against her husband would amount to mental cruelty and whether the finding of the Trial Court overlooking the admission made by the wife is correct? 3) Whether the Lower Appellate Court ought to have considered the ground of breakdown of marriage at least in the context of long separation between the married couple?" 5. The brief facts:- The appellant is the husband and the respondent is the wife. The respondent is his own sister's daughter. The marriage between them took place on 10.06.1984. After the marriage, they lived together for two months. The brief facts:- The appellant is the husband and the respondent is the wife. The respondent is his own sister's daughter. The marriage between them took place on 10.06.1984. After the marriage, they lived together for two months. The problem started within two months of the marriage and the wife was at her parents' house. After four years of the marriage, at the instance of the relatives, both of them lived together for a period of seven months. During that time, the wife got conceived and went to her parents' place during seventh month of her pregnancy. After the birth of the child, by name, Karthiga, on 24.11.1988, she did not return to her marital home. The wife issued a notice to the husband on 15.05.1986. As per the allegations, in the notice the husband was guilty of maintaining illegitimate relationship with one lady and also by making demand for dowry from the wife. The husband issued a notice to the wife calling upon her to give her consent for divorce. The wife gave a reply under Ex.B3 dated 17.03.1997 alleging cruelty on the part of her husband and expressing her longing to live with the husband, provided the safety to her is assured. Incidentally, she has attributed desertion also on the part of the husband. 6. From the facts it is evident that even though the matrimonial life commenced in the year 1984, even after the completion of 28 years, the couple has lived together, totally, not even for one year. The husband alleges cruelty and desertion on the part of the wife and vice versa, the wife also alleges cruelty and desertion on the part of the husband. But, the husband seeks relief of divorce, but the wife seeks relief of restitution of conjugal rights. The Principal Sub-Court, Tenkasi, in O.P.No.22 of 1999, where the wife is the petitioner (seeking relief of restitution of conjugal rights), has given a finding that, (a) the wife did not take any steps for a period of eight years to join her husband; (b) when the wife has alleged cruelty on the part of the husband, alleging demand for dowry and illegitimate relationship, there is no bonafides in the claim of the petitioner seeking restitution of conjugal rights. On these findings, the petition was dismissed. 7. On these findings, the petition was dismissed. 7. The Lower Appellate Court has given a finding that the petition for restitution of conjugal rights was not a counter-blast to the petition filed for divorce by the husband. The Court has also given an observation that the wife developed inclination to live with her husband when the child aged about 5 years, and as the evidence was natural and acceptable, the petition for restitution of conjugal rights ought to have been allowed by the Trial Court. 8. The wife has given evidence to the effect that, in her opinion, the husband was a worst personality and it is extremely difficult to live with a person who always suspects the character. Pointing out this admission, it had been argued that there is no bonafide in the contention of the wife that the wife is willing to live with her husband. This argument was not accepted by the Lower Appellate Court. 9. Insofar as the relief of divorce is concerned, the Trial Court in HMOP No.28 of 1997, refused to accept the contention that the wife wanted to abandon the company of the husband, and on this finding the relief for divorce was refused by the Trial Court. The Lower Appellate Court has observed that the wife ought to have been unwilling to live with the husband at the initial stage and there had been a change of mind after giving birth to the baby and that considering the interest of the female child aged about 13, the marriage could not be allowed to be broken. 9.1. There was a further finding that the husband failed to prove that the wife deserted the husband with an intention of completely and totally discarding the matrimonial relationship. On this finding, the appeal has been dismissed. 10. The contention of the learned counsel for the appellant is that the Lower Appellate Court did not consider the allegation of cruelty levelled by the husband on proper factual matrix and legal perspective. The main contention is that the conduct of the wife in foisting cases against the husband definitely amounts to mental cruelty. In view of the contention raised, it is necessary to look into what is mental cruelty and whether the conduct of the wife would amount to mental cruelty. 11. The main contention is that the conduct of the wife in foisting cases against the husband definitely amounts to mental cruelty. In view of the contention raised, it is necessary to look into what is mental cruelty and whether the conduct of the wife would amount to mental cruelty. 11. The Hon'ble Supreme Court, in the case of SamarGhosh v. Jaya Ghosh, reported in (2007) 4 SCC 511 , has spelt out some of the instances which could be considered as mental cruelty. It is specifically mentioned in the judgment itself that the law is not exhaustive of, what is mental cruelty and what is not mental cruelty, which is 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 behaviour 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. (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 behaviour 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." 12. Learned counsel for the appellant relied upon the following decisions in order to support the contention that the husband is entitled to a decree for divorce:- (1) (2008) 4 MLJ 1172 (R.Anand vs. P.Indu). (2) 2008 (4) CTC 285 (Satish Sitole vs. Ganga). (3) 2009-5-L.W.728 (T.Narayanaswamy vs. N.Kaleeswari). (4) 2008-3-L.W.864 (Dr.Gopal Ramanathan vs. Jayashree). (5) (2010) 5 MLJ 650 (M.Padma vs. V.Veeramani). 13. (2) 2008 (4) CTC 285 (Satish Sitole vs. Ganga). (3) 2009-5-L.W.728 (T.Narayanaswamy vs. N.Kaleeswari). (4) 2008-3-L.W.864 (Dr.Gopal Ramanathan vs. Jayashree). (5) (2010) 5 MLJ 650 (M.Padma vs. V.Veeramani). 13. This Court, in the case of R.Anandvs. P.Indu (cited supra), referred the judgment of the Hon'ble Supreme Court, reported in 2005-2-L.W.149 (A.Jayachandra v. Aneel Kaur) and extracted certain portion of that judgment, which reads as under:- “.... In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other.” 14. The facts of Satish Sitole's case (cited supra), is that the wife left matrimonial home two years after the marriage and had been living separately ever since then; wife preferred complaint for dowry harassment; husband filed petition seeking divorce for dissolution of marriage on the ground of cruelty and desertion; the Trial Court granted only judicial separation and Appeal and Cross-Appeals were filed; the High Court dismissed the Appeal filed by the husband and held that there was no cruelty and dismissed the decree for judicial separation too. The Hon'ble Supreme Court, having dispassionately considered the materials placed before it, and taking into consideration the fact that out of 16 years of marriage, the appellant and the respondent therein had been living separately for 14 years, was convinced that any further attempt at reconciliation will be futile and it would be in the interest of both the parties to sever the matrimonial ties, since the marriage has broken down irretrievably. 15. The facts of Narayanaswamy's case (cited supra) is that the parties have been continuously living separately without sincere attempt or any intention to have reunion between them and hence 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. 16. 16. In Dr.Gopal Ramanathan's case (cited supra), it was held by this Court that 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 and that, they virtually spent 20 years of youthful life in isolation by living apart. 17. In M.Padma's case (cited supra), this Court held that the grounds of cruelty and desertion have been established by the respondent which would entitle him to get the decree for divorce. .... .... that the power of granting divorce under the ground of irretrievable breakdown of marriage is available to the Supreme Court alone under Article 142 of the Constitution of India (1950) and that, neither the civil Courts nor the High Courts have a similar power of granting divorce on such ground. 18. The first contention of the learned counsel for the respondent / wife is that the wife was ever willing to lead a life with the husband and the reasons for avoidable disconnection has been properly appreciated by the lower Court and that the wife never had the intention of permanently deserting the company of the husband. The Trial Court should have considered the grant of relief of restitution of conjugal rights, when the petition for divorce was dismissed. 18.1. The option exercised by the wife to live with her husband is really expressive of her heart and mind to live with her husband or it is a defence contemplated when the husband seeks for divorce, is the issue to be considered. 19. The fact remains that both the appellant and respondent were relatives even prior to the marriage. The habits, attitude and approach of the appellant and the respondent would have been known to the respective parties even prior to the marriage. It is the case of the wife also that the husband had the affinity prior to the marriage as she happened to be his sister's daughter. 19.1. But the case of the wife, is diametrically opposite, i.e., one set of facts alleged in the petition and the other set of facts averred in the evidence. The wife has been examined in the year 1999. The dispute has started in the year 1988. Subsequently, there had been efforts to cement the relationship between the parties, however, unsuccessfully. 19.1. But the case of the wife, is diametrically opposite, i.e., one set of facts alleged in the petition and the other set of facts averred in the evidence. The wife has been examined in the year 1999. The dispute has started in the year 1988. Subsequently, there had been efforts to cement the relationship between the parties, however, unsuccessfully. During 1987, the husband has issued notice calling upon the wife to give consent for divorce. Till she was cross-examined, her case was that she was ill-treated and deserted by her husband for no fault of her. Complaining that she was treated cruelly on account of demand for dowry, there had been a complaint to the police also by the wife. There are unexpected admissions by the wife during cross-examination. During cross-examination, the wife has stated that the husband suspected her conduct, as she had been found speaking with one Manoharan who is the friend of her father. It is alleged that when the said Manoharan invited the couple to his home for feast, the husband raised a counter question as to why Manoharan should invite the couple for feast. Continuing, the wife has further alleged that the husband was in the habit of suspecting the character of his wife and he did not tolerate the wife speaking with anybody else. If this is the foundational fact for the dispute between the parties, this should have been stated in the petition filed by the wife, but it is not stated so. Thus the wife has proved that the averments made in the petition does not reflect the true state of affairs. 20. The admissions made by the wife during cross-examination are strange and shocking. There is clear-cut admission that the husband did not demand dowry and there was no cruelty on account of that. The further admission is that the notice issued contending that the husband drove away the wife demanding Rs.25,000/- is false. The allegation regarding illegitimate intimacy of the husband with other woman are also admitted to be false. 21. The relationship between the husband and wife is always very deep but delicate. Trust is the hallmark of maintaining relationship between husband and wife. Because of the deep intimacy, one partner making false allegation enters deep into the heart and causes irredeemable damage. 21. The relationship between the husband and wife is always very deep but delicate. Trust is the hallmark of maintaining relationship between husband and wife. Because of the deep intimacy, one partner making false allegation enters deep into the heart and causes irredeemable damage. The wife has chosen to castigate the character of the husband by alleging that the husband is guilty of misconduct, by maintaining illegitimate relationship with another woman. She ought to have realised the implications of making such such character assassination without any truth in it. The wife has not understood the basic and fundamental requirement of leading a happy married life and the false allegations made by her, whether voluntarily or involuntarily had sounded death knell for her marital life. Certainly the allegations regarding dowry and illegitimate intimacy (which are admitted to have been falsely made) would amount to mental cruelty. Once the baseless and false allegations are made, that torment the feeling of love and affection between the couple, which make the bonding impossible. Time and again, the Hon'ble Supreme Court has held that filing of cases with false allegations against the husband itself would amount to mental cruelty. Therefore, it is clear that the wife is guilty of cruelty. 22. It is contended by the learned counsel representing the wife that the wife having a female child would not have been inclined to leave the company of her husband and to live separately and therefore divorce should not be granted. It is probable that the wife would not have been intended to live separately but she has digged her own pit by making false allegations. A perusal of the evidence of the wife reveals that the admissions referred above, made by her were voluntary and it does not appear to be an extracted admissions in the cross-examination. Probably, the ambiance in the court and the confidence reposed in the judicial system would have provided an opportunity to her to make disclosure of certain events. There are circumstances indicative that, her earlier conduct could have been under compulsion also. Probably, the ambiance in the court and the confidence reposed in the judicial system would have provided an opportunity to her to make disclosure of certain events. There are circumstances indicative that, her earlier conduct could have been under compulsion also. When it is stated that she was taken from the family of her husband on the day of sreemantham function, before her husband returned from the school, and also that before her husband came to see the child the name of the child had been registered in the birth certificate, would probablise the inference that she ought to have been under a compulsion to dance to the tunes of the surroundings. The evidence reveals that the wife had been under the protective cover of the parents throughout, with no financial independence. Therefore, the wife, boxed in from all sides, without any obvious escape or relief from the situation, would have felt the helplessness in acting according to the dictation of family members. In such helpless situations, when neither running away nor fighting is possible, the wife would have been driven to file false cases. But when decades have passed and the indelible scar has been left in the mind of the husband, redemption / re-bonding is impossible at this stage. Therefore, the wife has to reap the product of the mistakes emanating and this mistakes can be an eye-opener only to others from committing such sort of mistakes. 23. No doubt, for long number of years, the marriage had been placed under suspended animation. When long back the wife has expressed before the police officials that she did not want to live with her husband. But she has supplemented the contention by saying that the husband suspected her character and therefore it is impossible to live with the husband. But this allegation lacks proof as it is not made at the earliest point of time. In such circumstances, the claim for restitution of conjugal rights cannot be allowed. 24. In the result, C.M.S.A.No.19 of 2002 is allowed. The judgment and decree passed in CMA No.75 of 1999 dated 06.03.2002, confirming the dismissal of the petition in HMOP No.28 of 1997 is set aside. The judgment and decree passed in HMOP No.28 of 1997 dismissing the petition for divorce is set-aside and the petition stands allowed. 25. Likewise, C.M.S.A. No.18 of 2002 is allowed. The judgment and decree passed in CMA No.75 of 1999 dated 06.03.2002, confirming the dismissal of the petition in HMOP No.28 of 1997 is set aside. The judgment and decree passed in HMOP No.28 of 1997 dismissing the petition for divorce is set-aside and the petition stands allowed. 25. Likewise, C.M.S.A. No.18 of 2002 is allowed. The judgment and decree passed in HMOP No.22 of 1999 dismissing the petition for restitution of conjugal rights is confirmed. The judgment and decree passed in CMA No.13 of 2001 reversing the judgment in HMOP No.22 of 1999 is set-aside. No costs.