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2012 DIGILAW 774 (MAD)

Sakthivelu @ Ramesh v. Datchayani @ Tamizh

2012-02-14

R.BANUMATHI, S.VIMALA

body2012
Judgment : The lingering question entertained by the husband doubting her fidelity of his wife and wanted divorce on that ground became unsuccessful in the battle against his wife. Asserting that it is the husband, and husband alone, was responsible for the pregnancy, the wife who got herself exposed to DNA test and proved the paternity of the child was successful in getting the order for maintenance and restitution of conjugal rights. 1.1 The unsuccessful husband in both these cases, is the appellant, M.O.P.No.133/2001 has been filed by husband under Section 13(1)(i-a)(i-b) praying for decree of divorce on the ground of cruelty and desertion. This petition has been dismissed with costs of Rs.1,000/-. In the very same case, the wife/respondent has filed a counter claim under Section 9 r/w Section 24 of the Hindu Marriage Act, 1955 seeking for maintenance at the rate of Rs.3,000/-and also restitution of conjugal rights. The trial court has ordered maintenance at Rs.2,000/-for the wife and child till the resumption of conjugal life. Challenging the refusal of the relief of divorce, the husband has filed the Civil Miscellaneous appeal in C.M.A.No.594 of 2007 (M.O.P.No.133 of 2001). 1.2. Aggrieved over the grant of maintenance and relief of restitution of conjugal rights to the wife, the husband has filed the Civil Miscellaneous appeal in C.M.A.No.595 of 2007(M.O.P.No.48/2002)1.3. For convenience the husband is referred to as petitioner and the wife is referred to as respondent as per their array in M.O.P.No.133 of 2001. 2. The brief facts of the case:- 2.1. Case of the petitioner/husband:- The husband filed a petition for divorce under Section 13(1)(i-a)(i-b) of the Hindu Marriage Act, 1955 i.e. on the ground of cruelty and desertion against the respondent wife. The marriage between the petitioner and the respondent took place on 18.05.1997. The wife left the matrimonial home during October 1997. The wife was telling that she was not inclined to marry the petitioner and that only out of compulsion by the parents she married. The wife delivered a child. But, claimed that the child born was not born to the petitioner. Unable to bear the mental agony the petitioner filed M.O.P.No.99 of 1998 seeking the relief of divorce on the ground of adultery. The respondent filed a counter claim. That petition came to be dismissed, when the petitioner offered to live with the respondent, after the DNA test confirmed the parenthood of the petitioner. Unable to bear the mental agony the petitioner filed M.O.P.No.99 of 1998 seeking the relief of divorce on the ground of adultery. The respondent filed a counter claim. That petition came to be dismissed, when the petitioner offered to live with the respondent, after the DNA test confirmed the parenthood of the petitioner. Thereafter, the petitioner tried to live with the respondent, but the respondent did not reciprocate the same. At no point of time, there was any demand for dowry or ill-treatment or cruelty caused to the respondent either by the petitioner or by the family members. Despite, the respondent preferred a police complaint causing mental distress and defamation to the petitioner. This activity amounts to mental cruelty. Thus, the petition for divorce. 2.2. Case of the respondent/wife:- The marriage is admitted. The happy marital life, at least for a few months, resulted in the birth of a male child on 03.07.1998 named Ramprasad. As the respondent was ill-treated and as there was demand for dowry, the respondent had to leave the matrimonial home. Without even prior notice, without any initiative for settlement, the petitioner filed M.O.P.No.99 of 1998, on the ground of adultery, amounting to attack on the legitimacy of the child Ramprasad. The petitioner insisted on a DNA test. The petitioner made an endorsement on 05.09.2010, in the original petition itself that if it is proved through DNA test, that the child was born to him he would take back his wife and child. DNA test result gave a confirmation that the petitioner is the biological father of the child. Therefore, the petition was dismissed as not pressed, based on the endorsement made. 2.3. After the dismissal of the M.O.P.No.99 of 1998, the husband did not evince any interest to take back the respondent and child. The respondent volunteered to enter into the house and the husband did not entertain her. Thereafter, police complaint was preferred during May 2001. The complaint was not enquired into on the ground, that Civil Court has already taken cognizance. Thereafter, the respondent tried to join the petitioner through Panchayatdar. But, the husband turned his deaf face and refused to take her back. The husband caused mental agony to the wife by making the demand for dowry. As the effort to re-join the husband failed, the wife made a claim for maintenance and for restitution of conjugal rights. 3. Thereafter, the respondent tried to join the petitioner through Panchayatdar. But, the husband turned his deaf face and refused to take her back. The husband caused mental agony to the wife by making the demand for dowry. As the effort to re-join the husband failed, the wife made a claim for maintenance and for restitution of conjugal rights. 3. Issues framed by the trial court:- a)Whether the respondent acted in such a manner which amounted to legal cruelty? b)Whether the respondent wilfully deserted the petitioner without any sustainable cause? c)Whether the petitioner is entitled for a decree as prayed for? d)To what relief the petitioner is entitled to? 3.1. The trial court has given a finding it is not the wife, who was guilty of cruelty and desertion and it is the other way round that it is only the husband, who caused cruelty to the wife in doubting her fidelity and also in refusing to live with the wife. Therefore, the prayer for divorce was not granted.4. Counter claim made by the wife In the counter claim filed by the wife, which is taken as M.O.P.No.48 of 2002, the following issues have been framed. a)Whether the wife has wilfully withdrawn from the conjugal society of the husband. b)Whether the respondent is entitled to maintenance at Rs.3,000/- per month? c)Whether the wife is entitled for a decree as prayed for? d)To what relief the petitioner is entitled? 4.1. In the counter claim, the Tribunal has given a finding that the husband has wilfully withdrawn himself from the conjugal society of the wife and that the husband should pay monthly maintenance of Rs.2,000/- per month.5. Challenging the judgment and decree passed in the above two cases, present appeals have been filed by the appellant/husband contending that the respondent/wife deserted the appellant without any reasonable cause for more than two years and that the trial court is wrong in ordering maintenance as well as restitution of conjugal rights. 6. Plea for divorce on the ground of irretrievable break-down of marriage The learned counsel for the appellant contended that the appellant/husband and respondent/wife are living separately for more than 15 years and as there is irretrievable breakdown of marriage, there is no useful purpose in confirming the decree for restitution of conjugal rights and the appropriate remedy will be to grant a decree for divorce. Opposing the contention, the learned counsel for the respondent submitted that irretrievable breakdown of marriage, is not one of the ground provided by the legislature and therefore, the Court cannot add new grounds and grant a decree for divorce. In support of the contention, the decision reported in Vishnu Dutt Sharma Vs. Manju Sharma (2009 (3) CTC 288) is relied upon: “5. On a bare reading of Section 13of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13of the Act as that would be amending the Act, which is a function of the legislature” 6.1. In Anil Kumar Jain Vs. Maya Jain ((2009) 8 MLJ 405 (SC)), it has been held that this power to pass a decree on the ground of irretrievable breakdown of marriage is not available to the High Courts. “17. ………… The first proposition is that although irretrievable break-down of marriage is not one of the grounds indicated whether under Sections 13or 13Bof the Hindu Marriage Act, 1955, for grant of divorce, the said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court. In exercise of its extraordinary powers under Article 142of the Constitution the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in Section 13Bof the aforesaid Act. This doctrine of irretrievable break-down of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142of the Constitution. Neither the Civil Courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on grounds not provided for in Section 13and 13Bof the Hindu Marriage Act, 1955…” In this decision, it has been made clear, that power to pass a decree on the ground of irretrievable breakdown of marriage is not available even to the High Courts which do not have powers similar to those exercised by Supreme Court under Article 142 of the Constitution and therefore, decree for divorce cannot be granted on the ground of irretrievable breakdown of marriage. 7. 7. Plea for divorce on the ground of cruelty and desertion:- The next contention of the learned counsel for the appellant is that, the decree for divorce must be granted on the ground of cruelty and desertion. 8. The learned counsel for respondent insisted that the decree for restitution of conjugal rights has to be affirmed, contending that, the husband who has chosen to desert his wife for more than 15 years cannot take advantage of his own wrong and seek for divorce basing his own fault as the basis. The claim for confirmation decree for divorce on the ground of desertion and cruelty on one hand and restitution on the other hand has to be considered together as justifiability or otherwise of desertion would have a bearing to the decision on restitution in one way or other. 9. It is settled law that the abandonment or desertion does not denote a mere separate living but, it involves a determination to live separately with an intention to put an end to marital relation. Therefore, the desertion must be a. Wilful and deliberate b. Without consent express or implied of the deserted party. c. Against the wish of the party deserted. d. Without reasonable cause. In other words, with regard to desertion two conditions has to be satisfied viz., (a) factum of separation and (b) animus deserendi. Therefore, it is for the husband to prove that the wife deserted him without any reasonable cause. The burden is equally upon the husband to prove that the wife is guilty of desertion. 10. Insofar as cruelty, cruelty is not defined under any statute of Indian Legislature relating to Marriage and Divorce. The Hon’ble Supreme Court in the case of Shobha Rani Vs. Madhukar Reddy, AIR 1998 SC 121, explained the word ‘cruelty’ “Sec.13(1)(ia) uses the words ‘treated the petitioner with cruelty’. The word ‘cruelty’ has not been defined. Indeed it could not have been defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations, it is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical the court will have no problem to determine it. It is the conduct in relation to or in respect of matrimonial duties and obligations, it is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical the court will have no problem to determine it. It is a question of fact and degree of it is mental the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment: Secondly the impact of such treatment in the mind of the spouse.” As per the ratio laid down by the Hon’ble Supreme Court, Court has to begin the enquiry with reference to the nature of cruel treatment alleged and the impact of such treatment in the mind of the affected spouse.11. Admittedly, in this case, the cruelty alleged is mental cruelty and the husband has alleged that he was treated with cruelty, under the following circumstances:- a. When the wife told him that the marriage itself was performed against her wish and that she did not like him; b. The wife told him that he is not the biological father of the child born to her. It is for the Court to consider whether the trial court has considered the grounds alleged by the husband and has given a acceptable finding. The earlier legal proceedings initiated by the husband and the conduct of the husband during the proceedings are material factors to be considered. It is the consistent allegation of the husband that the wife refused conjugal relationship to him.12. In the proceedings in M.O.P.No.99 of 1998, filed by the husband against his wife praying for decree of divorce on the ground of adultery, the husband has stated that right from the day of shanti mukurtham, the wife was not willing to consummate the marriage and she told him that if she is compelled to cohabit she would commit suicide. Anticipating behavioural change, the husband waited for some time losing the sexual pleasure, but the wife voluntarily left the matrimonial home. If really, the wife had the intention abandoning him and if really the wife had told him that the child was not born to him, what would be her conduct? She would have simply remained ex-parte or if she wanted a prestige fight she could have simply filed a statement denying the allegations and kept quite. If really, the wife had the intention abandoning him and if really the wife had told him that the child was not born to him, what would be her conduct? She would have simply remained ex-parte or if she wanted a prestige fight she could have simply filed a statement denying the allegations and kept quite. But, the wife has made a challenge that she would prove the paternity by subjecting herself to DNA test. It is a strange case where the husband makes an endorsement that if it is proved through DNA test that the child is born to him he would take back the wife and child. Though, it appears to be dramatic, yet it had happened. The wife had subjected herself to DNA test and test results have saved the face of the child. The proceedings in M.O.P.No.99 of 1998 came to an end by virtue of positive DNA test results. But, future litigation did not come to an end.13. The conduct of the husband has to be analysed from this back-ground.1.It is his first case that there was no sexual relationship between himself and the wife. 2. If that is so, what made him to make an endorsement that if it is proved that the child is born to him, he would take back the wife and the child, inter alia raising the question ‘Who is responsible for the pregnancy?’ 3. If really the husband was sure that he did not have any sexual relationship with the wife he would not have accepted the DNA test even if volunteered by the wife. If really, the wife had made a statement that the child is not born to him she would not have accepted to subject herself to DNA test. Any child during the continuance of the valid marriage is presumed to be a legitimate child. In that case why should there be voluntariness on the part of the wife to offer herself for the DNA test. This kind of reckless allegation would go to show that the husband wanted to get rid of the wife somehow or other. If really, the husband was honest in his contention, that the wife is guilty of adultery then he would not have offered to take back his wife.4. This kind of reckless allegation would go to show that the husband wanted to get rid of the wife somehow or other. If really, the husband was honest in his contention, that the wife is guilty of adultery then he would not have offered to take back his wife.4. The the next issue to be considered is that the impact of this kind of behaviour of the husband upon the mind of the wife? Total refusal to live with her, again acceptance to live with her stipulating conditions and even after the acceptance of the conditions by the wife, again the refusal to live with wife would go to show that he has treated his wife as a commodity and not as a human being with mind and heart. 14. This conduct of the husband has been widely discussed in paragraph 10 of the judgment of the trial court. The trial court has considered the efforts taken by the wife to join his husband, despite, his husband expecting her to prove her fidelity and that too, through scientific technology. It is pertinent to point out that the strategy of “war-front shooting” will not work out in a matrimonial relationship. Because of that attitude of the husband, the wife has to live a “fire-fighting” life. The husband has not understood the warp and weft of a fantastic understanding and a fair and flexible approach are what makes a delicate fabric of a domestic relationship enduring and successful. The husband having not understood has become unsuccessful. 15. The husband has not even chosen to issue a pre-suit notice, calling upon the wife to come live with him. He is very categorical in saying that even if the wife wants to live with him he is not ready to take her back as per the admission made by him in the cross-examination. He is consistent in telling before the Police that he is not inclined to take her back as she is having illicit intimacy with her uncle. The trial court has considered this statement and has given a finding that the desertion itself, by the husband amounts to cruelty. He is consistent in telling before the Police that he is not inclined to take her back as she is having illicit intimacy with her uncle. The trial court has considered this statement and has given a finding that the desertion itself, by the husband amounts to cruelty. The desertion on the part of the husband without any reasonable cause and causing cruelty to the wife by always showing accusing finger against her, go to show that, it is the husband who is guilty of desertion and cruelty.Instead of the husband proving cruelty and desertion, the wife has proved cruelty and desertion. Therefore, the trial court has rightly dismissed the petition filed by the husband for divorce. The trial court has appreciated the evidence properly and analysed the conduct accurately and has rightly dismissed the petition. Therefore, there is no scope for interference in the findings arrived at by the trial court. Therefore, both the appeals are liable to be dismissed and dismissed accordingly. 16. In the result, C.M.A.Nos.594 & 595 of 2007, are dismissed with costs. Consequently, connected Miscellaneous Petition stands closed.