Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 3343 (MAD)

N. Senthil Nath v. Karthigai Selvi

2018-09-27

PUSHPA SATHYANARAYANA, T.KRISHNAVALLI

body2018
JUDGMENT T. KRISHNAVALLI, J. 1. This Civil Miscellaneous Appeal is preferred against the judgment and decree passed in HMOP No.470 of 2005, dated 21.04.2015 by the Family Court, Madurai. 2. The case of the appellant/husband is that the marriage between him and the respondent/wife was solemnized on 13.02.2004 at Master Mahal, Madurai. From the date of marriage, he had not been leading a happy life with her. The wife told the appellant/husband that she was not willing to marry him and she was compelled by her parents and she was not interested to lead the life with the husband. Despite his best efforts, the wife has not come forward and did not show any interest in sharing the conjugal life. Subsequently, the respondent/wife and her family members threatened the appellant/husband over phone by using un-parliamentary words and on 13.08.2005, the brother of his wife Muruganantham came with two men to the office of the appellant/husband and threatened him by stating that if he wants divorce, he should pay Rs. 30 Lakhs to the respondent/wife, otherwise he would be killed. When the appellant/husband contacted his Advocate and informed the happenings, his Advocate advised that since the matter is pending before the Court, there was no necessity to give any complaint. It is his further case that the respondent has taken all her jewels and valuable belongings at the time of her leaving from the matrimonial home and the respondent/wife had kept the key of the bureau with herself. Hence, the appellant/husband was constrained to file a petition for divorce. 3. It is the case of the respondent/wife that the parents of the respondent gave one lakh rupees in the presence of Soundarapandian, Chandra, Mohan, Chitra and Sudha, respondent's grandfather Solaiappan and one Rukmani and the appellant/husband parents demanded Rs. 50,000/- as marriage expenses. The appellant/husband and the respondent/wife had gone to Kodaikanal for Honeymoon and they spent their time happily. It is further stated that the appellant parents and his relatives compelled and threatened the respondent/wife for abortion and for that, the respondent and her parents refused to do the same and the appellant/husband parents demanded more dowry by stating that the jewels and other things brought by the respondent/wife were not sufficient and prevented from joining together and thereby caused intolerable sufferings to the respondent/wife. The appellant parents came to the house of the respondent/wife and demanded more dowry and also demanded to transfer the ownership of a house at Virudhunagar to the appellant's name and demanded a Car and they also threatened them that in the event of failure to bring all the above things, the appellant/husband would not live with her and when the respondent/wife immediately conveyed the same to the appellant/husband, he simply endorsed the view expressed by his parents and due to which, the respondent and her parents were under the impression that it would be all right, after the birth of child. Hence, the respondent prayed for the dismissal of the petition. 4. The learned Family Judge, Madurai, after perusing the entire materials available on record, both oral and documentary, has granted decree of divorce in HMOP No.470 of 2005, dated 13.08.2010. Aggrieved over the order, the respondent/wife filed CMA(MD)No.1437 of 2010 before this court which was allowed on 27.01.2014, by remitting the matter to the trial Court for fresh disposal. 5. The trial court, on proper appreciation of evidence, both oral and documentary, had dismissed the petition filed by the husband in HMOP No.470 of 2005, dated 21.04.2015. Challenging the dismissal order of the trial Court, the husband as appellant is before this court. 6. Heard both sides and perused the materials available on record. 7. It is seen from the records, the husband has filed petition for divorce on the ground of cruelty and desertion. The husband was examined as PW1 before the trial Court. PW1 deposed that within three days after the marriage, his wife was not interested to lead a marital life with him and his wife developed hatred feelings towards him and ill-treated him by using disrespectful words against him and his wife only at his compulsion, had cohabitation for 4 or 5 times and she refused to have cohabitation with him happily and her refusal caused mental agony to him and threatened him that if he compels for cohabitation, she would commit suicide and she is not fit for family life and that she left the matrimonial home without sufficient reasons and hence, he filed petition for divorce. 8. The respondent/wife denied all the allegations levelled against her. In this case, it is to be decided as to whether the respondent/wife refused to have cohabitation with her husband or not. 9. 8. The respondent/wife denied all the allegations levelled against her. In this case, it is to be decided as to whether the respondent/wife refused to have cohabitation with her husband or not. 9. It is to be noted here that in this case, both the husband and wife were sent for clinical test and psychological report given by Dr. Rawlin Chinnian was marked as Ex.X1. To prove X1, the author of X1 was summoned. But the Doctor stated that it is not possible for him to come to the Court due to his illness. 10. At this juncture, it is necessary to refer Section 32 of the Indian Evidence Act, 1872, which reads as follows:- "32.Cases in which statement of relevant fact by person who is dead or cannot be found, etc is relevant-Statements, written or verbal, or relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense." 11. On a perusal of Section 32 of the Indian Evidence Act, 1872, when the Doctor, who gave medical report is unable to come to the court to depose about the medical report given by him, the certificate granted by the Doctor can be relied upon. The summary and recommendation of the Doctor reads as follows:- "1.Senthilnathan has no major psychiatric illness except mild depression which can be managed by counselling; and 2. Karthigai Selvi has a psychotic illness-schizophrenia type needing anti-psychotic and anxiolytic pharmacotheraphy from a senior consultant psychiatrist. She is full of fantasies with loss of reality testing." 12. At this juncture, it is necessary to refer the cross examination of RW1. RW1 deposed in her evidence as follows:- xxx xxx xxx 13. As per Section 14 of the Indian Evidence Act, 1872, the Family Court can receive any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act,1872. 14. On a careful perusal of Ex.P1, the wife had psychotic illness-Schizophenia type needing anti-psychotic and anxiolytic pharmacotherapy from a senior consultant psychiatrist. She is full of fantasies with loss of reality testing. 15. 14. On a careful perusal of Ex.P1, the wife had psychotic illness-Schizophenia type needing anti-psychotic and anxiolytic pharmacotherapy from a senior consultant psychiatrist. She is full of fantasies with loss of reality testing. 15. The learned counsel for the appellant/husband submitted that when a wife has not consented for sex and refused for medical treatment and abused and misbehaved with husband and the family members and depriving husband of normal cohabitation, it amounts to mental cruelty. It is his submission that mental cruelty is a state of mind and 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 and a sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of spouse and unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. For the above proposition, the learned counsel for the appellant/husband relied on a decision of the Hon'ble Apex Court (Samar Ghosh Vs. Jaya Ghoush, (2007) 4 SCC 511 ). In that case, it is held in para 101 as follows:- "101.No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are 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. (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. (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. (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." 16. Further, the learned counsel for the appellant/husband submitted that his wife had mental illness and mental disorder is of such a kind and degree that wife cannot reasonably be expected to live with the husband where parties are young and mental disorder is of such a type that sexual act and procreation of children is not possible it may furnish as good ground for nullifying marriage because to beget children from a Hindu wedlock is one of the principal aim of Hindu marriage where sanskar of marriage is advised for progeny and offspring spouses owe rights and duties to each other and in their relationship, they must act reasonably in every case where cruelty exists, it is possible to say that the spouse at fault has been breach of the duty to act reasonably, whether in omission or commission causing injury to health human aspect the Court should consider marriage lasted hardly for five months not consummated husband attempted to commit suicide suffering from paranoid schizophrenia living separately. 17. The learned counsel for the appellant/husband submitted that the respondent/wife was suffering from paranoid schizophrenia and separated from 2005 and hence, the appellant/husband is entitled to divorce. 18. Pw1 during his evidence stated that his wife deserted from 2005 and she did not take any steps for reunion. At this juncture, it is necessary to refer the cross examination of RW1. She has deposed in her evidence that:- xxx xxx xxx 19. Hence, from the cross examination of RW1, it reveals that she has not taken any steps for reunion with her husband and further Ex.X1 reveals that due to her mental illness, she is not able to cohabit with her husband and it caused mental cruelty to the husband. 20. She has deposed in her evidence that:- xxx xxx xxx 19. Hence, from the cross examination of RW1, it reveals that she has not taken any steps for reunion with her husband and further Ex.X1 reveals that due to her mental illness, she is not able to cohabit with her husband and it caused mental cruelty to the husband. 20. For the reasons stated above, this Court is of the considered view that the appellant/husband is entitled for decree of divorce. Therefore, the impugned order of the trial Court is liable to be set aside. 21. In the result, the Civil Miscellaneous Appeal is allowed setting aside the judgment and decree of the Family Court, Madurai in HMOP No.470 of 2005, dated 21.04.2015. Consequently, decree of divorce is granted to the appellant on the ground of cruelty and the marriage solemnized between the appellant/husband and respondent/wife on 13.12.2004 is hereby dissolved. No costs.