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2021 DIGILAW 887 (MAD)

A. Selvaraj v. Catherine Pushpalatha

2021-03-12

PUSHPA SATHYANARAYANA, S.KANNAMMAL

body2021
JUDGMENT : S. Kannammal, J. (Prayer: Civil Miscellaneous Appeal filed under Section 39 of Special Marriage Act, Hindu Marriage Act, to set aside the fair and decreetal order, dated 18.04.2015 made in S.M.O.P.No.194 of 2011 on the file of the Principal District Judge, Kanyakumari at Nagercoil.) 1. This Civil Miscellaneous Appeal is preferred against the judgment and decree passed in S.M.O.P. No.194 of 2011, dated 18.04.2015 by the Principal District Judge, Kanyakumari at Nagercoil. 2. The case of the appellant/husband is that the marriage between him and the respondent/wife was solemnized on 02.01.1991 at Sri Ram Marriage Hall, Thiruvattar and was registered at Thiruvattar Sub Registrar Office. Right after the marriage, they lived at Vettoornimadam, Nagercoil and the marital life has gone smoothly until the respondent failed to conceive and was not able to deliver a child due to her impotency. Despite the appellant taking the respondent to undergo treatments in various hospitals, the impotency of the respondent was not cured. Even though the appellant was cordial towards the respondent, the respondent alleged vague allegation against the appellant and used unparliamentary words against him in the presence of strangers. The respondent went to the extent of threatening to kill the appellant by poisoning his food, if the appellant whispered about the impotency. The cruel acts of the respondent were so horrible to the appellant to run the family life with her. The respondent, also filed frequent police complaints against the appellant amounting to mental cruelty for him. The respondent was appointed as a teacher at Salvation Army High School, Valliyoor, which empowered the respondent to take decisions individually and eventually caused miserable situation in the family life. The appellant was unable to tolerate cruel acts of the respondent furthermore which led to filing of the divorce petition. 3. The respondent/wife denied the allegations and contended that the appellant and the respondent had normal sexual relationship in a very pleased and cordial manner during their twenty years of marriage. The respondent conceived three times, however it was spontaneously aborted due to the weakness of her uterus. On 04.06.2001, the respondent was admitted in Kuzhithurai Government Hospital for two weeks pregnancy treatment but unfortunately that was also spontaneously aborted. The appellant had taken the respondent to various hospitals for treatment and the allegation that the impotency was not cured is utter false. On 04.06.2001, the respondent was admitted in Kuzhithurai Government Hospital for two weeks pregnancy treatment but unfortunately that was also spontaneously aborted. The appellant had taken the respondent to various hospitals for treatment and the allegation that the impotency was not cured is utter false. The respondent also never used unparliamentary and filthy words against the appellant in the presence of strangers and she never threatened to kill the appellant by poisoning his food. The appellant and the respondent are residing in the same house. The appellant had illicit relationship with a lady despite her repeated advise, due to which there is misunderstanding between the appellant and the respondent. There is no cause of action to file the petition. Hence, the respondent prayed for dismissal of the petition. 4. In the trial Court, on the side of the appellant, the appellant was examined as PW1 and one Paulraj was examined as PW2 and the Marriage Invitation, Photo, Copy of suit notice sent by the appellant to the respondent, Acknowledgment Card signed by the respondent, Registered marriage deed entered into between the appellant and respondent, Acceptance receipt for complaint, Compromise deed entered into between the appellant and respondent were marked as Ex.P1 to Ex.P7 respectively. On the side of the respondent, the respondent was examined as RW1 and one Major J.John F.Kennedy was examined as RW2 and the Fitness Certificate issued by the Medical Board to the respondent, Temporary Appointment order and Sunday Class Register for the year 2009 were marked as Ex.R1 to Ex.R3. 5. The learned District Judge, Kanyakumari Division at Nagercoil, after perusing the materials available on record, both oral and documentary, has dismissed the petition by the husband in S.M.O.P.No.194 of 2011, dated 18.04.2015, by holding that there is no convincing evidence to conclude that the respondent was treating the appellant with cruelty which would entitle the appellant for grant of divorce. Aggrieved over the said order, the appellant/husband is before this Court. 6. Heard both sides and perused the materials available on record. 7. It is seen from the records that the appellant/husband has filed a petition for divorce on the ground of cruelty. The points for consideration in this civil miscellaneous appeal are as follows: (i) Whether the respondent has treated the appellant with cruelty and whether the appellant is entitled for divorce? 7. It is seen from the records that the appellant/husband has filed a petition for divorce on the ground of cruelty. The points for consideration in this civil miscellaneous appeal are as follows: (i) Whether the respondent has treated the appellant with cruelty and whether the appellant is entitled for divorce? (ii) Whether the learned Principal District Judge was right in dismissing the petition filed by the husband in S.M.O.P. No. 194 of 2011? 8. It is an admitted fact that the appellant/husband is a Hindu and the respondent is a Christian. Admittedly, the appellant is working as a Operator at All India Radio and the respondent is a Teacher at Salvation Army High School, Valliyoor. The marriage between the appellant and the respondent took place on 02.01.1991 and they were initially residing at Vettoornimadam, Nagercoil. It is also admitted that the beginning of their marital life was smooth until the respondent/wife was found impotent according to the contention of the appellant/husband. It is the case of the appellant that the respondent could not conceive and not able to deliver the child due to her impotency despite of various treatments taken at various hospitals. Further, it is the case of the appellant that though the appellant was cordial towards the respondent, the respondent was using unparliamentary words in the presence of strangers. It is further stated by the appellant that the respondent threatened to kill the appellant by poisoning his food, if the appellant whispered about the impotency. It is also stated by the appellant that the respondent preferred frequent police complaints against the appellant which caused mental cruelty to him. 9. Per contra, it is the case of the respondent that the appellant and the respondent were having normal sexual relationship and was conceived three times but unfortunately she had abortions due to the weakness of her uterus. The respondent had denied her usage of unparliamentary filthy words against the appellant in the presence of strangers and her intimidation against the appellant by poisoning his food. It is the case of the respondent that the appellant was always found in the Company of a lady lived in the opposite house and the respondent had repeatedly suggested to allow the Company of the lady. It is the case of the respondent that the appellant was always found in the Company of a lady lived in the opposite house and the respondent had repeatedly suggested to allow the Company of the lady. This led misunderstanding between the appellant and the respondent and there is no cause of action to allow the divorce petition and sought for dismissal of the divorce petition. This Court has carefully considered and observed the submissions made by either sides and perused the documents available on record with utmost care. 10. The allegations made on the respondent by the appellant to attract the provisions for cruelty are as follows: (i) Failure to conceive a child (ii) Usage of unparliamentary filthy words in the presence of strangers (iii) Threatening to kill the appellant (iv) Making police complaints (v) Indulging in the act of adultery 11. The allegation of the appellant that the respondent could not conceive cannot be a reason for seeking divorce, however it is also proved that as per Ex.R1 and Ex.R2, the respondent got conceived and underwent an abortion. The clear evidence of PW1 in his cross examination would prove the case of the appellant that she got conceived but was aborted. It is also prudent to note that failure to conceive a child does not amount to mental cruelty. Hence, it is evident that allegations made by the appellant is not true and it is reiterated that failure to conceive an inability to bear the child will not amount to cruelty. 12. PW1 during his cross examination stated as follows:- “TAMIL” Though the appellant in his evidence stated that the reason stated in the Medical Certificate is not correct, the appellant can not depose against the documentary evidence. 13. Further, it is the case of the appellant that the respondent used unparliamentary words in the presence of strangers and threatened to kill the appellant by poisoning his food although no specific allegation over usage of the unparliamentary words was made by the appellant. The appellant neither provided the details regarding the specific names of the strangers nor the specific date of occurrence for both the events. 14. Although it is alleged by the appellant that the respondent had given frequent police complaints against the appellant, the appellant has not mentioned the specific date and specific incidents which really caused mental cruelty to the appellant. 14. Although it is alleged by the appellant that the respondent had given frequent police complaints against the appellant, the appellant has not mentioned the specific date and specific incidents which really caused mental cruelty to the appellant. The appellant also failed to submit enough documentary evidence for the complaints registered by the respondent. 15. Further, as rightly pointed by the Family Court Judge, there was no pleadings with regard to the adulterous life of the respondent with one Karunakaran in the petition and the appellant has also not filed a petition seeking divorce on the ground of adultery. Ex.P7 is the compromise deed entered into the appellant and the respondent and the recital in the said deed would categorically go to prove that the appellant had condoned the act of the respondent and decided to live together happily. Of course, Ex.P7 could not have been a created document for the purpose of this case as alleged by the respondent. The respondent, being a Teacher, could not have been forced to put a signature and no lady will sign in such documents if the contentions of the documents are false. Moreover, when the appellant has condoned all the acts of the respondent by way of Ex.P7, he is not entitled to file a petition for divorce based on the same allegation. 16. The Apex Court has dealt with Section 23(1) (b) relating to condoning the act of cruelty in the case of Dr.N.G.Dastane Vs. Mrs.S.Dastane reported in (1975) 2 SCC 326 . The relevant paragraph Nos. 52 and 56 of the said judgment reads as under: ''52. The conduct of the respondent clearly amounts to cruelty within the meaning of Section 10(1)(b) of the Act. Under that provision, the relevant consideration is to see whether the conduct is such as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for him to live with the respondent. The threat that she will put an end of her own life or that she will set the house on fire, the threat that she will make him lose his job and have the matter published in newspapers and the persistent abuses and insults hurled at the appellant and his parents are all of so grave an order as to imperil the appellant's sense of personal safety, mental happiness, job satisfaction and reputation. Her once-too-frequent apologies do not reflect genuine contrition but were merely impromptu device to tide over a crisis temporarily. 56. Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things : forgiveness and restoration.........''. 17. Condonation under Section 23(1)(b) therefore means conditional forgiveness, the implied condition that no further matrimonial offence shall be committed. It is not the case of the appellant that even after condoning the act of the respondent in view of Ex.P7, the respondent continued the same attitude which resulted in filing this petition for divorce. 18. All the contentions made by the appellant are mere allegations with neither adequate evidence nor details regarding the events. The appellant failed to prove the existence of his ground for this divorce petition. 19. Keeping in view of the above decisions and also considering the facts and circumstances of this case, we are of the considered view that the Principal District Judge, Kanyakumari at Nagercoil, has rightly dismissed the petition, which needs no interference. 20. In the result, the Civil Miscellaneous Appeal is dismissed and the order and decree passed by the Principal District Judge, Kanyakumari at Nagercoil, in S.M.O.P. No.194 of 2011, dated 18.04.2015 is confirmed. No costs.