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2017 DIGILAW 4134 (MAD)

Subha Hariharan v. N. Aswath Ram

2017-12-05

A.SELVAM, P.KALAIYARASAN

body2017
JUDGMENT : P. Kalaiyarasan, J. 1. This Civil Miscellaneous Appeal has been preferred by the wife against the order of dismissal of her petition filed for dissolution of marriage on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act by the III Additional Family Court, Chennai in O.P. No. 4600 of 2010 on 18.04.2016. 2. It is averred in the petition that the marriage between the petitioner and the respondent was solemnised on 27.08.2004 as per Hindu rites and customs and registered on 01.10.2004 at Chennai. After marriage they stayed at the petitioner's house at Chrompet. They had been to Kulumanali on 02.09.2004 for a honey moon and the respondent was not cheerful and was remorse. Both the spouses being Dentists have been running a clinic in Thoraipakkam. The respondent never used to give the petitioner a free hand in the clinic and was in the habit of cribbing and always found fault in her work. The respondent totally neglected her and failed to shower love and affection, thus leaving her in tears. During December 2004, on one occasion when the respondent was having a wordy duel, he got agitated, strangulated the petitioner and pulled her Thaali chain which broke. The respondent used to shout at the petitioner stating that You bitch arsehole bloody fucking bitch. He was in the habit of taunting her for her sister marrying a non-brahmin. The respondent used to have heated argument on her for trivial issues causing bodily injuries many a times. 3. The respondent used to come to the bedroom late in the night while the petitioner is deep asleep and forced her to have physical intimacy. On many occasion when the respondent had asked the petitioner to co-operate in wee-times and upon refusal she was literally kicked out of the bed which caused severe mental trauma. Once the respondent hit her causing edema. During February 2006, the petitioner left her sister's house at Chrompet as he could not tolerate the torture meted out from the respondent. Her sister pacified and sent her home. Her sister's husband informed the respondent's parents to put an end to the ruthless behaviour. He also met the respondent and advised him. The respondent returned home at 10 p.m. and shouted at her. Her sister pacified and sent her home. Her sister's husband informed the respondent's parents to put an end to the ruthless behaviour. He also met the respondent and advised him. The respondent returned home at 10 p.m. and shouted at her. During 2006 she conceived and she was totally confused and did not want to have a child as there was lot of disagreement between her and the respondent. Unmindful of she being pregnant, the respondent in a heated argument poked the petitioner with a sharp object in her left forearm causing bleeding injury. 4. She spent her pregnancy period with her parents. On 20.04.2007 she delivered a girl baby. On 11.05.2007 naming ceremony was performed and the child was named as Visaka. On 30.06.2007 she had been to respondent's house and stayed there for about 4 days and in turn the respondent stayed with her in Thiruvanmiyur while his parents were on a pilgrimage. Her father-in-law fell ill in 2008 and he was diagnosed for cancer and the petitioner stood as a pillar of strength and supported the respondent and took charge of the entire household. When her father-in-law was feeling a bit better, the petitioner and the respondent went to Thailand along with their kid for four days. In April 2000, the respondent's father passed away. During September 2010, the respondent underwent a spine surgery and the petitioner took care of him as a dutiful wife. The child was very close to the petitioner which fact respondent could not digest. He was very envious. 5. On 20.10.2000, the respondent resumed his clinic and the petitioner used to drive him to and fro. On one occasion the respondent fought with her and asked her to get out of the car. Further the respondent started questioning her about the financial aspects and demanded her to tender explanation and give accounts to it. The said act of the respondent wounded the petitioner as the respondent never treated her as a wife. On 26.11.2010, while returning back from the clinic there was fight in the car as to the petitioner taking cash from the clinic for the purpose of cleaning the fish tank in the clinic. He abused her by saying You bitch, you are making wasteful expenditure, fuck off. She decided to take a call as the relationship was going bad to worse. He abused her by saying You bitch, you are making wasteful expenditure, fuck off. She decided to take a call as the relationship was going bad to worse. She left to her house along with her daughter. The respondent's sister and brother-in-law called the respondent's mother to the Alwarpet house and narrated the ordeal suffered by the petitioner. The petitioner had also expressed her decision of separating from the respondent in the respondent's sister's house. On 27.11.2010, the petitioner conveyed her decision to the respondent. On 06.12.2010, the respondent showed up in Thiruvanmiyur house with sleeping pills and threatened to commit suicide in the petitioner's house. Hence, the petitioner is constrained to file this petition. 6. The respondent in his counter denied all the allegations made against him as to cruelty as false. It is false to say that the respondent did not help the petitioner in the clinic. In fact it was the respondent's father who named the dental practice as 'Subhas Clinic', though the parties hereto are equal partners. The respondent never once raised his hands on the petitioner nor he has abused her in unparliamentary language. The allegation that the respondent taunted the petitioner's sister for marrying someone of her choice is outrageous and untrue. He never forced himself on the petitioner against her will. All intimacy shared by them was consensual. 7. The respondent was overjoyed that the petitioner had conceived and did everything in his power to take care of the petitioner. Since the respondent's entire house was in renovation as per the wishes of the petitioner, the petitioner wished to come to her parent's house and she stayed at her parent's house out of her free will, not to escape from the alleged cruelties but to enjoy comfort during construction. When the petitioner was admitted for delivery, it was the respondent who was with the petitioner the whole time. In fact the respondent was with the petitioner throughout the delivery and even helped the gynaecologist to cut the umbilical cord as a very happy father. 8. In fact the respondent helped the petitioner's family on several occasions, even by borrowing money to the tune of Rs.3,00,000/- for the petitioner's sister's wedding. The petitioner did support the respondent during the difficult time in their life when his father was suffering from cancer. The respondent suffers from a chronic back problem having suffered a spine surgery. 8. In fact the respondent helped the petitioner's family on several occasions, even by borrowing money to the tune of Rs.3,00,000/- for the petitioner's sister's wedding. The petitioner did support the respondent during the difficult time in their life when his father was suffering from cancer. The respondent suffers from a chronic back problem having suffered a spine surgery. The petitioner also suffers from a borderline personality disorder and has been suffering from migraine since she was thirteen years of age. The respondent took her to neurologists in order to ascertain and help her cope with the problem. The petitioner is deeply superstitious. The respondent cherishes and loves his daughter. He takes his responsibilities as a father very seriously and is a very affectionate and caring parent. The respondent during September 2010 had an accident which paralised him below his hips. It was because of this reason that the petitioner drove him to and fro from the clinic for some time. The respondent was not allowed to see his daughter and a ruckus was created in the petitioner's house where the respondent was threatened by his brother-in-law. The respondent never acted abusively and has always treated the petitioner, their child and petitioner's family with respect and love. The child is much attached to both the parties and separation or divorce of the appellant will have profound impact on her physical, mental and emotional health. Hence the petition is to be dismissed. 9. The petitioner and the respondent were examined as P.W.1 and R.W.1 respectively. On the side of the petitioner, 7 Exhibits and on the side of the respondent 13 Exhibits were marked. The learned trial Judge after analysing both oral and documentary evidence dismissed the petition. Aggrieved by the order, the petitioner/wife has come forward with this Civil Miscellaneous Appeal. 10. The learned counsel appearing for the appellant/wife argued that the husband from the inception of marriage has been treating the appellant/wife cruelly and many a times he not only abused with filthy words but also assaulted her and they have been living separately from 26.11.2010. Due to cruelty exerted on her, the marriage bond has irretrievably broken and therefore, the order of the trial Court is liable to be set aside. 11. Due to cruelty exerted on her, the marriage bond has irretrievably broken and therefore, the order of the trial Court is liable to be set aside. 11. The learned counsel appearing for the respondent has argued that divorce cannot be granted on the ground of cruelty for trivial reasons; that the spouses had been living peacefully and the appellant/wife also looked after the family during the difficult period of the family when her father-in-law suffered with cancer and her husband underwent a spine surgery. He further argued that the allegations of cruelty of the earlier periods are to be taken as condoned under Section 23 of the Hindu Marriage Act, 1955, in view of the birth of the child and the peaceful living in the subsequent period. The trial Court after carefully analysing the evidence, dismissed the petition and the same does not require any interference. 12. There is no dispute that marriage was solemnised between the appellant and the respondent on 27.08.2004 and the petitioner left the matrimonial home on 26.11.2010. The petitioner for divorce was filed by the wife on 27.11.2010. 13. As per Section 23 of the Hindu Marriage Act, 1955, if the Court is satisfied that the party has condoned the act of cruelty, the decree of divorce need not be granted. 14. It is not in dispute that on 20.04.2007, they gave birth to a child. Even as per the appellant/wife, in 2008, her father-in-law was suffering from cancer and she took charge of the entire house hold. When her father-in-law was feeling a bit better, the appellant and the respondent went to Thailand along with their kid for four days. In 2010, when her husband was suffering from back pain and underwent spine surgery, she took care of him as a dutiful wife. Therefore the problem started only in September 2010, i.e., after the surgery of the respondent. Whatever allegations the wife has made prior to the above period, it is to be construed that the appellant condoned the acts of cruelty. The allegations made by the appellant/wife is that when she was taking her husband to and fro to the clinic, after he resumed the work he questioned the financial aspects and he abused her on another occasion on 26.11.2010, which is also as to the trivial financial issues about spending Rs.1500/- to clean the fish tank. The allegations made by the appellant/wife is that when she was taking her husband to and fro to the clinic, after he resumed the work he questioned the financial aspects and he abused her on another occasion on 26.11.2010, which is also as to the trivial financial issues about spending Rs.1500/- to clean the fish tank. Because of these two incidents, which occur on day to day life and trivial in nature cannot be construed as the act of cruelty. Though the appellant/petitioner alleges that the respondent threatened to commit suicide by showing the sleeping pills in her house after she expressed her decision for separation is also not probable and acceptable because she left the matrimonial home and in a family meeting arranged by her brother-in-law, she expressed her decision to get separated. Only after that meeting the above incident is alleged to have taken place that too in her parental home. Prior to the above incidents, even according to the appellant/wife she gave birth to a child and the respondent had been with her at the time of delivery. Subsequently they lived happily and went to Thailand with their kid. 15. Even prior to September 2010, the allegations as to cruelty are that the respondent strangulated the petitioner and pulled her Thaali chain which broke. That in another incident he poked the petitioner with a sharp object in her left forearm, which caused bleeding injury and that he used to taunt the petitioner for her sister marrying a non-Brahmin. In a marital life, corroborative evidence cannot be expected as the same occur inside the house. But as far as first two incidents, it is alleged that Thaali chain got broken and the petitioner sustained bleeding injury. Therefore with respect to these, there should be some corroborative evidence and the same is lacking. With respect to taunting the petitioner for her sister marrying a non-Brahnim is also not acceptable, in the light of the evidence of the petitioner during cross-examination that the respondent's sister also married a person of other religion. Therefore viewing from any angle, the cruelty alleged by the appellant/petitioner has not been established. 16. The trial Court has rightly dismissed the petition, after carefully analysing the evidence of both sides. Therefore viewing from any angle, the cruelty alleged by the appellant/petitioner has not been established. 16. The trial Court has rightly dismissed the petition, after carefully analysing the evidence of both sides. This Court does not see any reason to interfere with the findings of the trial Court and accordingly, the Civil Miscellaneous Appeal is liable to be dismissed. 17. In the result, the Civil Miscellaneous Appeal is dismissed, confirming the Order, dated 18.04.2016 passed in O.P.No.4600 of 2010 on the file of the III Additional Family Court, Chennai. No costs.