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2018 DIGILAW 3381 (MAD)

G. Kannan v. Meena @ Sheela

2018-09-28

K.K.SASIDHARAN, R.SUBRAMANIAN

body2018
JUDGMENT 1. The Judgment was delivered by the Honourable Mr. Justice R. Subramanian The husband, whose petition in O.P.No.928 of 2005 seeking divorce on the ground of cruelty and desertion was dismissed by the Family Court is on appeal. 2. The marriage between the parties took place on 13.09.1999 at Salem. After marriage, they started living together as husband and wife at Chennai. According to the husband, the relationship between the spouses was not cordial and the wife did not show any love and affection towards appellant husband. It also claimed that she quarrelled with the appellant for filmsy reasons and used to shout at him in an uncivilized manner. He would term it as unexplained aversion, which made his life miserable. It is also contended that the respondent wife behaved in an arrogant and violent manner even with his mother and sisters. When the behavior was brought to the notice of the respondent's father, instead of advising her to behave properly, he openly supported her and it led to increase in the scale of ill treatment. He would further contend that the respondent was unable to do even routine duties and whenever she was asked to do any work she became nervous and lost her mental balance. Due to the said mental condition, during October 1999 she was admitted in the Maya Nursing Home, Ashok Nagar for observation and her parents were duly informed. Despite, the assurance given by the appellant that he would medically treat her further and take care of her, her parents took away her to Salem without the consent and permission of the husband. 3. On 20.12.1999, the respondent wife was admitted a impatient in the Vijaya Hospita, Chennai for Psychiatric treatment and she got discharged on 24.12.1999 against medical advise. Soon after the discharge, the respondent left for Salem with her parents much against the wishes of the appellant and his parents. Therefore, according to the husband, the wife who had walked out of the matrimonial home on December 1999 never returned back and those warns co-habitation between the spouses for the past 5 years, preceeding the filing of the petition. 4. It is also claimed that sometime after marriage, the respondent wife informed the husband that she was pregnant and she delivered a female child on 06.08.2000. 4. It is also claimed that sometime after marriage, the respondent wife informed the husband that she was pregnant and she delivered a female child on 06.08.2000. On 12.05.2001, the parents of the respondent wife assured that she and the child will be sent to the matrimonial home shortly. A genuine attempt was made by the petitioner and his parents for reunion and it was agreed that on 11.06.2003 the respondent would return to the matrimonial home with the child but she did not turn up. The father of the respondent by letter dated 21.04.2004 sought for return of her belongings left behind by her in the matrimonial home. On the advise of friends and relatives, it is stated that the respondent wife and the child came to the appellant's house on 20.04.2005. However, on 28.04.2005, the respondent went to Salem stating that the child has to write her LKG examination and assured him that she will be back in Chennai on 14.03.2005 at about 02:30PM. It is claimed that she left for Salem and arrived at 14.03.2005 at about 02:30P.M. 5. On 07.04.2005, she returned to Chennai and sought for admission of the child in a school in Chennai. But, unfortunately, on 08.04.2005, the respondent suddenly shouted in the presence of the everybody in the house that she will be going to Salem and did not want to live in Chennai. Terming the above actions of the wife as cruelty and desertion, the appellant husband sought for divorce. 6. The respondent wife resisted the petition denying all the allegations and contended that it is the husband who behaved in a very rude manner. She also claimed that she had no aversion towards husband, it is claimed that she treated him in lots of care, respect and love. Similarly, the parents of the husband were also treated with proper hospitality and respect whenever they visited the house. She would deny the allegations that she behaved in an arrogant manner. She would claim that she was attending to the individual needs of all the joint family members and she was almost treated as a servant by the others in the family. She would also blame the appellant husband for turning a blind eye to her complaint that she was ill treated by the other members of the family. She would claim that she was attending to the individual needs of all the joint family members and she was almost treated as a servant by the others in the family. She would also blame the appellant husband for turning a blind eye to her complaint that she was ill treated by the other members of the family. She would contend that admission to Maya Nursing Home in the middle of October 1999 was only due to exhaustion suffered by over work and she would claim that the Doctor who examined the respondent shouted at the husband and his people and advised complete rest. It was only due to said medical advice the respondent wife went to Salem and there was no other reason for going to Salem during October 1999. She stated that she only stayed for a week with her parents and came to the marital home for Deepavali. Her parents complied with all the demands made for the said festival. While, admitting the hospitalization in Vijaya Hospital during December 1999, the wife would claim that it was not due to any Psychiatric problem but it was again due to exhaustion and over work. The Doctor who examined her wondered as why she was admitted in the Psychiatric Department. It was again on medical advice that she left to Salem in December 1999. She would further state that she did not walk out of the marital home in December 1999 as alleged by the appellant husband. Once, the pregnancy was confirmed, the appellant husband was informed and Valaikappu function was also held on 07.05.2000 which was attended by the husband and his parents. On 06.08.2000, she gave birth to a female child. However, neither the husband nor his parents visited the child. It was with the object of the reunion with the appellant that she came to Madras. The parents of the husband prevented her reunion with the husband. According to her, there were several correspondences between the spouses as well as the in-laws. With regard to the reunion, she would claim that the appellant husband was not sincere in taking her back. It is also claimed that during her stay in Chennai, there was happy reunion between the spouses. It was with the permission of the appellant that the respondent want back to Salem on 07.04.2005. With regard to the reunion, she would claim that the appellant husband was not sincere in taking her back. It is also claimed that during her stay in Chennai, there was happy reunion between the spouses. It was with the permission of the appellant that the respondent want back to Salem on 07.04.2005. On 08.04.2005, she returned, according to her the appellant as well as his parents demanded a letter of apology from her. Since, she refused to apologise they admitted her in the Psychiatric department in Vijaya Hospital, Chennai. She was asked to leave the matrimonial home. Thus, the respondent wife would contend that she was forced to leave the matrimonial home and there was no voluntary desertion on her part. 7. The Family Court which heard the petition framed the following issues: 1. Whether, the petitioner is entitled to seek divorce on the ground of cruelty? (ii) Whether, the petitioner is entitled for divorce on the ground of desertion? (iii) Whether, the petition is to be allowed? 8. Before the Family Court, the husband examined himself as PW1 and respondent was examined as RW1, Ex's: P1 to P7 were marked on the side of the petitioner. The learned Principal Judge, Family Court on analysis of the evidence concluded that the husband has not made out a case for grant of divorce on the ground of cruelty or desertion. So far as the question of desertion was concerned, the learned Family Judge held that inasmuch as it is admitted that the spouses lived together during February 2005 and March 2005. The period for filing a petition to the ground of desertion, namely, 2 years has not been completed and therefore the question of grant of divorce on the ground of desertion does not arise. The learned Family Judge relied upon the evidence of the husband which reads as follows: xxx xxx xxx 9. In view of the aforesaid evidence, the learned Family Judge concluded that the mandatory requirements of desertion has not been made out. On the said conclusion, the Family Judge held that the husband appellant is not entitled to divorce on the ground of desertion. 10. Regarding the other ground of divorce, namely, cruelty, the Family Judge held that the petitioner has not made out a case for grant of divorce on the ground of cruelty. Here again, the Family Judge, relied upon the evidence of husband. 10. Regarding the other ground of divorce, namely, cruelty, the Family Judge held that the petitioner has not made out a case for grant of divorce on the ground of cruelty. Here again, the Family Judge, relied upon the evidence of husband. As far as the treatments that were undergone by the wife at Maya Nursing Home, Ashok Nagar, Chennai as well as Vijaya Hospital, Chennai. The Family Judge found that those admissions as inpatient alone cannot lead to on inference that the respondent wife suffered from mental illness and she treated by the members of the family with cruelty. The Appellant husband was also faulted for non examination of any of the family members to prove the said contention. From medical records produced the learned Family Judge found that the admission to Vijaya Hospital was only for exhaustion. Though the doctor who issued the certificate was shown to be the Head of the Department of the Psychiatry, there was nothing in the certificate about any psychiatric treatment. On the above conclusion, the Family Judge dismissed the petition holding that the husband has not made out a case for divorce on the ground of cruelty. Aggrieved, the appellant husband is before us by way of this appeal. 11. We have heard Mr. Ashokkumar learned counsel for the appellant and Mrs. J. Sundarakanchani learned counsel appearing for the respondent. Mr. Ashokkumar learned counsel appearing for appellant would vehemently contend that the Family Judge was not right in dismissing the original petition. He would contend that once desertion is proved the factum of living together for a few days would not have the effect of nullifying the same. He would take a new plea and claim that he is not the father of the child. Regarding the paternity, the appellant would rely upon the evidence in cross examination of respondent wife wherein she had stated that she was 9 months pregnant on 10.01.2000. Therefore, according to him, the respondent wife was pregnant even on the date of marriage that is 13.09.1999. This statement in our considered opinion is obviously false. Apparently, the husband is trying to take advantage of a typographical error. The husband had not chosen to deny the paternity of the child when he filed the divorce petition in 2005. Therefore, according to him, the respondent wife was pregnant even on the date of marriage that is 13.09.1999. This statement in our considered opinion is obviously false. Apparently, the husband is trying to take advantage of a typographical error. The husband had not chosen to deny the paternity of the child when he filed the divorce petition in 2005. Even in his evidence before the Family Court, the husband had stated as follows: xxx xxxxx xxx From the above evidence of husband, it is clear that the claim now made regarding the paternity of the child, is a false claim introduced in the appeal so as to some how relive himself of the marriage. 12. Based on the arguments of the counsel for the parties, the following issues arise for determination in this appeal. (i) Whether, the husband appellant has made on a case for divorce on the ground of desertion? (ii) Whether, the wife had treated the appellant husband with said cruelty as would enable him got the decree for divorce under section 13 (1) A of the Hindu Marriage Act. (i) So far as the question of desertion is concerned, the section 13(1) (i-b) of the Hindu Marriage Act requires that the spouses should have lived apart for more than 2 years before the date of presentation of the petition. Even though a casual visit may not affect the continuity of desertion but at the same time a concisious reunion with a view to revive the matrimony would definitely have the effect of terminating desertion. In the case on hand we have the evidence of the husband which very clearly indicates that the spouses lived as husband and wife between 20.02.2005 and 28.02.2005. and thereafter, in March 2005 she again visited the husband house to celebrate certain festival. In fact the husband has deposed that they lived happily between 20.02.2005 and 28.02.2005. The evidence of the husband would show that there was a definite interruption in desertion at least for 8 days during February 2005. We therefore find that the Family Court has rightly rejected the claim of the husband that the wife has deserted not him for more than 2 years so as to enable him to seek divorce. Hence we see no reason to interfere in the conclusion of the Family Court on the ground of desertion. 13. We therefore find that the Family Court has rightly rejected the claim of the husband that the wife has deserted not him for more than 2 years so as to enable him to seek divorce. Hence we see no reason to interfere in the conclusion of the Family Court on the ground of desertion. 13. So far as the question of cruelty is concerned, the Family Court has concluded that the husband has not established cruelty. Mr. Ashokkumar would invitee our attention for the judgment of the Hon'ble Supreme Court in Srimathi Mayadevi Vs. Jagadish Prasad, (2007) AIR SC 1426 wherein the Supreme Court had held as follows: To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonable expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. 14. The Hon'ble Supreme Court had further observed: "It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. If we examine the case on hand on the standards laid down, we are afraid that we will have to conclude that the appellant husband has not made out a case for grant of divorce on the ground of cruelty. All that is averred is that the respondent wife behaved in extraordinary manner and left for her parents house at the drop of a hat. Though it is claimed by the husband that the respondent wife was hospitalised for certain psychiatric problem no material is placed to prove so that she had suffered any psychiatric illness. In fact, the medical records, as rightly pointed out by the Family Court do not support the case of the husband. Though Ex.P4 is issued by the consultant psychiatrist there is nothing regarding any psychiatric illness in the said certificate. In fact, the medical records, as rightly pointed out by the Family Court do not support the case of the husband. Though Ex.P4 is issued by the consultant psychiatrist there is nothing regarding any psychiatric illness in the said certificate. Therefore, we are unable to conclude that the wife had treated the husband with a certain amount of cruelty that would entail him to a decree for divorce under Section 13 (1) (ia) of the Hindu Marriage Act. While the husband had specifically alleged that the respondent has treated his family members with disrespect, he has not chosen to examine any one of them as witnesses on his side. As rightly pointed out such lack of evidence would demonstrate that the case pleaded by the husband is not true. To top it all, the husband had come forward with the new plea denying the paternity of the child. As we have already pointed out the said plea is false to the knowledge of the husband. He attempts to take advantage of the typographical error in the evidence which demonstrates very trivial mental status. We are therefore of the considered opinion that the order of the Family Court dismissing the OP does not call for inference at our hands. The appeal fails and it is dismissed with costs which we quantify Rs. 25,000/- payable by the husband. We impose costs because of the fact that the appellant husband had chosen to deny paternity by utilising a typographical mistake in the evidence.