Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 4014 (MAD)

R. SELVARAJ v. RAMALAKSHMI @ SHANTHI

2018-10-30

M.V.MURALIDARAN

body2018
JUDGMENT M.V. Muralidaran, J. The brief facts of the case is follows: The appellant is a husband and the respondent is a wife. The marriage between the appellant and the respondent was solemnized on 31.01.1994 at Tuticorin, according to Hindu Customs and Rites in the presence of their elders. After the marriage, the appellant and respondent lived at Korampallam for some time and moved to Coimbatore. Out of the lawful wedlock they got two daughters namely Anjana and Rathna. From the date of marriage there was no smooth relationship between the spouses. The respondent would frequently pickup quarrel with the appellant and purposely raised her voice and go and stand in the road so as to attract the neighbour with a view to humiliate the appellant. Frequently the respondent would go away in a huff to her parents house and remain there for weeks together and she would return only after great persuation and efforts by the appellant. After the birth of Anjana the respondent continued to live with her parents and the same was repeated. The respondent developed undesirable friendship with one Uma Maheswari, whose husband Ramasubramanian was an accountant in the appellants shop. The said Umamaheswari extract money from the respondent. On the said advice of Uma Maheswari the respondent gave 110 sovereigns gold to auto rickshaw man. The respondent has been deceiving the appellant and Others by wearing similar spurious gilt coated jewels. The appellant came out to know of this bizarre incident only on 23.04.2001 through the respondent's father. With great difficulty and mental agony and expenses the appellant was able to retrieve 100 sovereign of jewel through police. All the above incidents and the behavior of the respondent have caused untold mental cruelty to the appellant. From September 2001 the appellant arranged to settle the respondent and the younger daughter Rathna in a rented house in his native place and is meeting all the maintenance expenses of the respondent and the child and hence the appellant has suffered cruelty and for the above mental torture, the appellant issued a notice to the respondent on 22.07.2002 for dissolving the marriage on mutual consent. The respondent sent a reply notice on 29.07.2002. the appellant sent a rejoinder notice on 01.08.2002. Thereafter the appellant has filed H.M.O.P.No.98 of 2002 of divorce under section 9 and 13 of the Hindu Marriage Act. The respondent sent a reply notice on 29.07.2002. the appellant sent a rejoinder notice on 01.08.2002. Thereafter the appellant has filed H.M.O.P.No.98 of 2002 of divorce under section 9 and 13 of the Hindu Marriage Act. The respondent wife filed a counter by denying the said allegations. The respondent herein filed H.M.O.P.No.115 of 2002 seeking for restoration of conjugal rights. The appellant examined himself as P.W.1 and one Iyappan and Vedamani was examined as PW 2 and PW 3 and 9 documents were marked on his side as Exs.P.1 to P.9. The respondent examined herself as R.W.1 and one Muthusamy was examined as R.W.2 and documents were marked on her side. 2. The learned Subordinate Judge, Tuticorin, considering the pleadings put forth on either side, oral and documentary evidence and submissions of the learned counsel for the parties, held that the appellant has not proved the allegation of mental cruelty and dismissed H.M.O.P.No. 98 of 2003 filed by him and allowed H.M.O.P.No.115 of 2002 filed by respondent. Aggrieved against the said judgment and decree the appellant herein filed C.M.A.Nos.46 and 47 of 2003 before the learned Additional District and Sessions Judge / Fast Track Court No II, Tuticorin. The Learned Additional District and Sessions Judge / Fast Track Court No II, Tuticorin by a judgment and decree dated 05.10.2005 in C.M.A.Nos.46 and 47 of 2005 allowed the C.M.A. Aggrieved against the same the respondent herein filed a C.M.S.A.(MD)Nos.21 and 22 of 2005 before this Court. By judgment dated 14.05.2011 this Court C.M.S.A.(MD)Nos.21 and 22 of 2005 remanded to the first appellant Court for fresh disposal after affording due opportunities to both parties. There after the The Learned Additional District and Sessions Judge / Fast Track Court No II, Tuticorin by a judgment and decree dated 12.10.2003 in C.M.A.Nos.46 and 47 of 2005 confirmed the judgment and decree of the Learned Subordinate Judge, Tuticorin. Aggrieved against the same the present Civil Miscellaneous Second Appeal has been filed by the appellant / husband. 3. There after the The Learned Additional District and Sessions Judge / Fast Track Court No II, Tuticorin by a judgment and decree dated 12.10.2003 in C.M.A.Nos.46 and 47 of 2005 confirmed the judgment and decree of the Learned Subordinate Judge, Tuticorin. Aggrieved against the same the present Civil Miscellaneous Second Appeal has been filed by the appellant / husband. 3. At the time of admission of the second appeal the following substantial questions of law had been elicited by the counsel appearing for the appellant and substantial question of law was framed by this Court at the time of admission.:- (1) Whether the courts below are correct in law in dismissing the petition filed by the appellant for divorce on the grounds of cruelty and desertion, when the pleadings and evidence both oral and documentary has satisfied the ingredients of the provisions under section 13(1) (a) of the Hindu Marriage Act 1955? (2) Whether the courts below are correct in law in holding that the appellant has failed to prove cruelty, especially when the facts per se would prove that the respondent's behaviour had caused mental and physical cruelty on the part of the appellant? (3) Whether the courts below are correct in law in holding that behaviors of the respondent giving 110 sovereign of jewels to the Auto Rikshaw driver, wore a gild coat jewels in the marriage functions, the act of the respondent obtained a loan from the stranger by executing the bond and the act of the respondent leveled the allegation of illicit intimacy with his close relatives would amount to cruelty? (4) Whether the courts below are correct in law in not considering the fact that the dispute between the parties and their relationship has been irretrievably broken down and there was no possibility of reunion and hence the courts below ought to have granted a decree for diverse as per the decision of the Hon'ble Apex court and this Hon'ble Court? (5) Whether the courts below are correct in dismissing the petition for divorce without giving any finding with regard to the grounds of cruelty and desertion? 4. The learned counsel for the appellant referred various averments in the petition, counter statement filed by the appellant and the grounds of appeal. 5. (5) Whether the courts below are correct in dismissing the petition for divorce without giving any finding with regard to the grounds of cruelty and desertion? 4. The learned counsel for the appellant referred various averments in the petition, counter statement filed by the appellant and the grounds of appeal. 5. The learned counsel for the appellant submitted that mental cruelty is not defined under the Act and there is no strait-jacket definition for the same. The Hon'ble Apex court as well as this court in catena of judgments have held that each case must be considered and decided based on its own facts and circumstances of the case to conclude whether the incidents alleged by the party amounts to mental cruelty or not. In the present case, the appellant has averred various incidents, by which, the respondent has repeatedly caused mental agony and cruelty to the appellant. One of the main allegation is that the respondent developed undesirable friendship with one Uma Maheswari, and the said Umamaheswari extracted money from the respondent. On the said advice of Uma Maheswari the respondent gave 110 sovereigns gold to an auto rickshaw man. The respondent has been deceiving the appellant and Others by wearing similar spurious gilt coated jewels. The appellant came out to know of this bizarre incident only on 23.04.2001 through the respondent's father. The same was admitted by the respondent in the cross examination. Certainly the above said incidents and the behavior of the respondent have caused untold mental cruelty to the appellant. Hence I am of a view that the appellant has proved the act of cruelty. 6. The learned counsel for the appellant further stated that the marriage was solemnized on 31.01.1994 and from September 2001 onwards the appellant and the respondent are living separately for more than 17 years and the marriage has broken irretrievably. The Hon'ble Apex Court and this Court in a number of judgments has chosen to grant divorce on the ground that the parties have been living separately for years together and there is no chance for reunion. This case is similar to the cases dealt by the Hon'ble Apex Court and this court and therefore, the marriage can be dissolved on this ground also. 7. In support of his submissions, the learned counsel for the appellant relied on the following judgments: 2006 (4) SCC 558 , Naveen Kohli Vs. This case is similar to the cases dealt by the Hon'ble Apex Court and this court and therefore, the marriage can be dissolved on this ground also. 7. In support of his submissions, the learned counsel for the appellant relied on the following judgments: 2006 (4) SCC 558 , Naveen Kohli Vs. Neelu Kohli, wherein in paragraph 83, it has been held as follows: 83. Even at this stage, the respondent does not want divorce by mutual consent. From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt in our minds that the respondent is bent upon treating the appellant with mental cruelty. It is abundantly clear that the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again. AIR 2005 3297 -Durga Prasanna Tripathy -Vs- Arundhati Tripathy, wherein in paragraphs 29 and 30, it has been held as follows: 29. The facts and circumstances in the above three cases disclose that reunion is impossible. Our case on hand is one such. It is not in dispute that the appellant and the respondent are living away for the last 14 years. It is also true that a good part of the lives of both the parties has been consumed in this litigation. As observed by this Court, the end is not in sight. The assertion of the wife through her learned counsel at the time of hearing appears to be impractical. It is also a matter of record that dislike for each other was burning hot. 30. Before parting with this case, we think it necessary to say the following: Marriages are made in heaven. Both parties have crossed the point of no return. A workable solution is certainly not possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. We, therefore, have no other option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce. The Family Court has directed the appellant to pay a sum of Rs. We, therefore, have no other option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce. The Family Court has directed the appellant to pay a sum of Rs. 50,000/- towards permanent alimony to the respondent and pursuant to such direction the appellant had deposited the amount by way of bank draft. Considering the status of parties and the economic condition of the appellant who is facing criminal prosecution and out of job and also considering the status of the wife who is employed, we feel that a further sum of Rs. 1 lakh by way of permanent alimony would meet the ends of justice. This shall be paid by the appellant within 3 months from today by an account payee demand draft drawn in favour of the respondent- Arundhati Tripathy and the dissolution shall come into effect when the demand draft is drawn and furnished to the respondent. 2012 (2) MLJ 833 U.Sree -Vs- U.Srinivas, wherein in paragraph 88, it has been held as follows: 88. In short, it would be difficult for the parties to bury the past and to begin a new relationship of Husband and Wife. For the past 15 years both parties have remained separately. During these years, they developed their own life style, remained in isolation and grown in their own thoughts. Marriage tie between the parties has become emotionally dead and the same is beyond repair because of the emotionally dead relationship which is a positive act of oppressive mental cruelty, in our considered opinion. There is no chance for both parties to live together in future. In such a context, the decree of Divorce is the only remedy to be passed, so that the parties may choose their life of their own way, when there has been no scope for their reunion. 2010 (3) CTC 785 Jayakumari Vs. Balachander, wherein in paragraph 30, it has been held as follows: 30. The term 'cruelty' consists of unwarranted and unjustifiable conduct on the part of defendant causing other spouse to endure suffering and distress thereby destroying peace of mind and making living with such spouse unbearable, completely destroying real purpose and object of matrimony. It would of course be difficult to define the expression 'cruelty'. There cannot be any hard and fast rule in interpreting the same. It would of course be difficult to define the expression 'cruelty'. There cannot be any hard and fast rule in interpreting the same. As pointed out, the word 'cruelty' cannot be put in a strait-jacket of judicial definition. It must be judged on the facts of each case having regard to the surrounding circumstances. Whether one spouse is guilty of cruelty is essentially a question of fact and previously decided cases have little, if any, value. The term 'cruelty' is not defined in the Act. It is to be judged by taking into consideration the status of life, the standard of living, the family background and the society in which the parties are accustomed to move because particular behavior may amount to cruelty in one set of circumstances and may not be so in other set of circumstances. 21. Lastly, it urged by learned counsel for the appellant that the parties have been living separately for the last 17 years and the marriage has virtually lost its meaning for them as they have reached a point of no return. She avers that there is no life in the marriage bond and that it should be dissolved for this reason. She has relied on para 26 of the Judgment in K.Srinivas Rao vs. D.A. Deepa, 2013 (2) SCALE 735 , reproduced as under:- We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the Court's verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the court's decree. 25. This Court thus lacks jurisdiction to dissolve a marriage on the doctrine of 'irretrievable breakdown'. (vv) CDJ 2016 DHC 1073 -Sandhya Kumari & another Vs. Manish Kumar, wherein at paragraph 21, it has been held as follows: 21. 25. This Court thus lacks jurisdiction to dissolve a marriage on the doctrine of 'irretrievable breakdown'. (vv) CDJ 2016 DHC 1073 -Sandhya Kumari & another Vs. Manish Kumar, wherein at paragraph 21, it has been held as follows: 21. Though irretrievable breakdown of marriage is not a ground for divorce but in the judgments reported as Madhvi Ramesh Dudani Vs. Ramesh K.Dudani, (2006) 2 MhLJ 307 , Shrikumar V.Unnithan vs. Manju K.Nair, 2007 4 KHC 807 V.Bhagat vs. D. Bhagat, (1994) 1 SCC 337 and Navin Kohli vs. Neelu Kohli, (2006) 4 SCC 558 the concept of cruelty has been blended y the Courts with irretrievable breakdown of marriage. The ratio of law which emerged from said decisions is that where there is evidence that the husband and wife indulged in mutual bickering leading to remonstration and there from to the stage where they target each other mentally, insistence by one to retain the matrimonial bond would be a relevant factor to decide on the issue of cruelty, for the reason the obvious intention of said spouse would be to continue with the marriage not to enjoy the bliss thereof but to torment and traumatized each other." 8. The learned counsel for the appellant submitted that the appellant and the respondent were living together as husband and wife only for 7 years and there is no possibility for them to live as husband and wife and all the efforts taken by the elders of both sides have ended in vain due to the aforesaid facts of the case. The long separation also coupled with the attitude of respondent would amount to mental cruelty caused to the appellant. In order to support his arguments the learned counsel for the appellant relied on judgment of this Court reported in CDJ 2017 MHC 2905 and placed much reliance on para Nos.15, 18, 19 and 20 as follows: 15. The learned counsel for the appellant by reply submitted that the appellant and the respondent were living together as husband and wife only for 5 months and there is no possibility for them to live as husband and wife, in view of the facts and circumstances of the case. The long separation coupled with the attitude of respondent would amount to mental cruelty caused to the appellant. 18. The long separation coupled with the attitude of respondent would amount to mental cruelty caused to the appellant. 18. Per contra, the respondent has marked 137 documents to substantiate his case that he never caused mental cruelty. The learned Principal District Judge, considering each and every allegation made by the appellant, rejected the same holding that the appellant failed to prove the same. The learned Principal District Judge failed to consider the fact that the father of the appellant gave a complaint against the respondent and the respondent made allegations against the father of the appellant that only because of instigation of father of the appellant, the appellant had filed the petition for divorce and the father of the appellant gave a false complaint against the respondent. These allegations coupled with various averments made by the appellant would definitely amount to mental cruelty caused by the respondent. 19. The learned counsel for the appellant contended that divorce can be granted on the ground of irretrievable break down of marriage as per judgments of the Hon'ble Apex Court. This contention is untenable. The Hon'ble Apex Court has granted divorce on that ground exercising its extraordinary power under Article 142 of the Constitution of India. The said power is not available to this Court or to the Trial Court. In the subsequent judgments, the Hon'ble Apex Court held that the earlier judgment, granting divorce on the ground of irretrievable broken down cannot be taken as precedent. It is pertinent to note that the respondent obtained a decree of restitution of conjugal rights. There is nothing on record to show that after obtaining decree, he took steps to make the appellant to live with him as his wife. He has not filed any E.P. as per Order 21 Rule 32 Civil Procedure Code. Where a person, who suffered a decree of restitution of conjugal rights has willfully failed to obey the decree, the person, who obtained decree can enforce the same y attachment of his or her property. In the circumstances, the fact that the appellant and the respondent are living separately for more than 10 years and the attitude of the respondent even after obtaining a decree of restitution of conjugal rights has not taken steps to enforce the same, but insisting on retaining matrimonial bond would amount to causing mental cruelty and the torment and traumatized the appellant. This has been held so by the Delhi High Court in the judgment reported in 2016 (O) Supreme (Del.) 3869 and the Hon'ble Apex Court in the judgment reported in 2006 (4) SCC 558 (cited supra). 20. The ratio laid down in the said judgments are squarely applicable to the facts of the present case. The insistence of the respondent to continue the matrimonial tie even though he is fully aware that there is no possibility of re-union and living together as husband and wife, amounts to causing mental cruelty to the appellant. 9. Further the Learned counsel for the appellant relied upon the judgment of Hon'ble Division Bench of this court reported in CDJ 2017 MHC 6040 wherein in para Nos.15 and 16 it held as follows: 15. Further it is to be seen that the parties have been living separately for more than 10 years. On a perusal of the records and deposition of the appellant as well as the respondent coupled with the fact that the marriage between the appellant and the respondent took place on 03/04/2007 dispute arose between them within three months of marriage, M.C.no.58 /2009 was filed on the file of the Judicial Magistrate, Erode on 8. 10.2009 and during the pendency of the M.C.No. 58 /2009 and thereafter, steps had been taken by the respondent/husband to join to her in matrimonial home filed and that the appellant had filed H.M.O.P.No. 72 of 2010 on the file of the ii additional Sub -Judge, erode under section 9 of the Hindu Marriage Act, for restitution of conjugal rights on 09/03/2010 and the same was ordered on 13/12/2010 and H.M.O.P.No. 224 of 2014 for diverse was filed on 25/07/2013, after six-years of marriage and after completion of trial of the Family Court has granted diverse on 14/11/2016 and the appeal has been filed on 02/01/2017 and till today the parties are living separately. The parties have been litigating for more than 10 years. In respect of cruelty that husband had let in evidence that he was elected in treated and the is also admitted case of the wife that there was dispute between them within three months from the date of my marriage. The parties have been litigating for more than 10 years. In respect of cruelty that husband had let in evidence that he was elected in treated and the is also admitted case of the wife that there was dispute between them within three months from the date of my marriage. Hence we find that there is no possibility for reunion between the appellant and the respondent due to the long period of separation and the matrimonial bond has broken beyond repair as evidenced and thus killing upon the judgment of Samar Ghosh, the family court had held that the husband had made out a case for divorce and had allowed the petition granting divorce dissolving the marriage between the appellant and the respondent dated 30/04/2007. 16. Further the family court has also held that in spite of several efforts taken by the respondent/respondent for reunion and orders being passed by the family court allowing the petition for restitution of conjugal rights, the appellant/wife had refused to join with him. The respondents last husband had also approached the police by giving a petition to the police to give effect of the said order wherein the police had advised the appellant/wife to join the respondents last husband and even then appellant/wife had not joined the respondents last husband and thereby allowed the petition on the ground of desertion too. 10. I have heard Mr.T.Pon Ramkumar, learned counsel for the appellant in both the Civil Miscellaneous Second Appeals and there was no representation for the respondent and on perusal of the records and the present state of mind of the parties as the dispute involved is between the parties to the marriage, this Court is inclined to allow this appeal for the following reasons:- a. As rightly pointed out by the counsel for the appellant the term 'Mental Cruelty' does not have a proper shape and it differs from case to case and the same has to be put on consideration individually. Further the contact of the respondent also taken in to account. The respondent has given 110 sovereigns gold to an auto rickshaw man. The respondent has been deceiving the appellant and Others by wearing similar spurious gilt coated jewels. The same was admitted by the respondent in the cross examination. Certainly the above said incidents and the behavior of the respondent have caused untold mental cruelty to the appellant. The respondent has given 110 sovereigns gold to an auto rickshaw man. The respondent has been deceiving the appellant and Others by wearing similar spurious gilt coated jewels. The same was admitted by the respondent in the cross examination. Certainly the above said incidents and the behavior of the respondent have caused untold mental cruelty to the appellant. Hence I am of a view that the appellant has proved the act of cruelty. Hence when the same is being done and taken for consideration in the present case, the respondent and the appellant are living separately for the past 17 years. Moreover if the respondent had been willing to live with the appellant as submitted by her, she would have taken strenuous efforts for reunion instead of litigating before the court for long years. This factual aspects are supported by the judgments relied on by the counsel appearing for the appellant and the dictums laid down have considerable force for allowing this appeal. b. Like wise the appellant and the respondent are living separately for the past 17 years. Hence it can easily arrived and concluded that they are not ready and willing to bury their past and live happily as husband and wife. For the said reason this court feels that the marriage between the appellant and the respondent has irretrievably broken and there is no chance of reunion between the parties. c. During the course of arguments, the learned counsel for the respondent submitted that from 2001 onwards he is meeting out all the expenses to the respondent and his 2nd daughter. Further he gave an undertaking before this Court to give a sum of Rs. 20,000/- p.m. to respondent and his 2nd daughter and the same is also recorded by this Court. 11. In the result: (a) both the Civil Miscellaneous Second Appeals are allowed. The judgment and decree dated 02.01.2012 in C.M.A.Nos. 46 and 47 of 2003 on the file of the learned Additional District Judge, (Fast Track Court No II) Tuticorin and the judgment and decree made in H.M.O.P.Nos.98 and 115 of 2002 dated 12.08.2003 on the file of the learned Sub Court, Virudhunagar, are set aside and H.M.O.P.Nos.98 of 2002 filled by the appellant for divorce, is allowed and H.M.O.P.No.115 of 2002 filed by the respondent for restitution of conjugal rights is dismissed; (b) the appellant shall continue to pay a sum of Rs. 20,000/- p.m. towards the maintenance to the respondent on or before 10th day of every calendar month. (c) there shall be no order as to costs .