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2022 DIGILAW 2676 (MAD)

R. Shanthi @ Bhuvaneswari v. A. P. Rakothaman

2022-08-12

S.SOUNTHAR, V.M.VELUMANI

body2022
JUDGMENT (Prayer: This Civil Miscellaneous Appeal is filed under Section 28 of the Hindu Marriage Act 1955, to set aside the decree of divorce dated 29.04.2012 passed by the III Additional Family Court, Chennai in OP.No.749 of 2002.) S. Sounthar, J. 1. The appellant/wife who suffered a decree for divorce on the ground of cruelty has come up with this appeal. 2. According to the respondent/husband, the marriage between appellant and respondent took place on 19.10.1989 at Sri Rangam and through wedlock a male child by name M.R.Shrinivas (P.W.2) was born to them. After marriage, they started living together at Chennai. It was averred by the respondent/husband in his petition that appellant/wife ignored him and the child right from the beginning. It was also averred that his child was suffering from some kind of nervous problem and he used to get affected with “fits” frequently. The respondent/husband claimed that the appellant/wife failed to take care of the child properly and she had gone to the extent of inflicting heat shock on the child. There was also allegation that the appellant tried to commit suicide and threatened the respondent by pouring kerosene on her and tried to set her ablaze on three occasions. The respondent also claimed that the appellant failed to perform her regular duties as a wife and she never had shown any interest in domestic festivals and in attending any family functions. It was also alleged that the appellant deserted the respondent and his son and withdrew from the matrimonial home on her own without any reasonable cause and the respondent had not received any information from the appellant or from her family members regarding her whereabouts. On these pleadings, the respondent sought for dissolution of marriage on the ground of cruelty. 3. The appellant had filed a counter denying various averments found in the petition for divorce filed by the respondent. The appellant in her counter statement denied the allegations of ill-treatment meted out to her son. She also specifically denied the attempts of self-immolation attributed against her in the petition of the respondent. She further averred that due to the illtreatment meted out to her by the respondent, she had gone to the extreme step on one occasion but having her child in mind she desisted from taking extreme step. She also specifically denied the attempts of self-immolation attributed against her in the petition of the respondent. She further averred that due to the illtreatment meted out to her by the respondent, she had gone to the extreme step on one occasion but having her child in mind she desisted from taking extreme step. The appellant claimed that unable to withstand the torture and mental cruelty at the hands of the respondent/husband, she had left the matrimonial home on 28.12.2001. After denying various allegations against her, she expressed her willingness to join the respondent/husband and sought for dismissal of the divorce petition. 4. Before the family Court, the respondent/husband was examined as P.W.1 and son of the parties was examined as P.W.2 and marked Exs.P1 to P16. On behalf of the appellant/wife she was examined as R.W.1 and no document was marked on her side. 5. The Family Court after consideration of oral and documentary evidence came to the conclusion that the respondent/husband entitled to divorce on the ground of cruelty. Aggrieved by the same, the appellant/wife has come up with this appeal. 6. Heard the arguments of the learned counsel for the appellant and the respondent and perused the materials available on record. 7. The learned counsel for the appellant submitted that though allegations of adultery was made against the appellant and divorce was sought for on that ground also, the Family Court had granted divorce only on the ground of cruelty and hence, this appeal is confined to the question of divorce on the ground of cruelty. 8. The learned counsel for the appellant submitted that the conclusion reached by the Family Court that the act of appellant in leaving the matrimonial home without taking into consideration the welfare of the child would cause mental cruelty to the respondent is untenable in law. The learned counsel further submitted that the appellant withdrew from the matrimonial home only because of the ill-treatment by the respondent and hence, the appellant is justified in living separately. The learned counsel further submitted that as far as the allegations of ill-treatment and the refusal of the appellant to perform her duty as a wife etc., there is no acceptable evidence available on record and hence, the respondent is not entitled to divorce on the ground of cruelty. The learned counsel further submitted that as far as the allegations of ill-treatment and the refusal of the appellant to perform her duty as a wife etc., there is no acceptable evidence available on record and hence, the respondent is not entitled to divorce on the ground of cruelty. Though, the learned counsel for the appellant raised grounds in his Memorandum of Appeal with regard to the quantum of permanent alimony fixed by the Family Court, at the time of argument, no argument was advanced with regard to the quantum of permanent alimony fixed. 9. Per Contra, the learned counsel for the respondent submitted that the acts of cruelty pleaded by the respondent was spoken to by him as P.W.1. The evidence of the respondent was corroborated by the evidence of son of the parties namely M.R.Shrinivas-P.W.2. The learned counsel further submitted that the evidence of child of the parties namely M.R.Shrinivas-P.W.2 cannot be brushed aside lightly. The act of appellant in ignoring the respondent and deserting the young child would amount to mental cruelty within the meaning of Section 13 (1) (ia) of Hindu Marriage Act and the Family Court on appreciation of evidence on records rightly came to the conclusion that the act of cruelty pleaded by the respondent were proved and granted divorce. According to the learned counsel, the well considered findings of the Family Court need not be interfered with in this appeal and hence sought for dismissal of this appeal. 10. On consideration of the pleadings and on contentions of the counsel the following point is arising for consideration in this appeal: (i) Whether the respondent is entitled to decree for divorce on the ground of cruelty? 11. It is the specific case of the respondent/husband that the appellant/wife ignored the respondent/husband and child right from the beginning and she failed to perform her day-to-day duties as a wife. It was also averred that the appellant withdrew from the matrimonial society without any reasonable cause and thereby caused mental agony to the respondent. In order to prove the act of cruelty pleaded by the respondent/husband, he was examined as R.W.1. He deposed in support of his averments found in the petition for divorce. On behalf of the respondent, the son of the parties namely M.R.Shrinivas, studying 9th standard, was examined as P.W.2. In order to prove the act of cruelty pleaded by the respondent/husband, he was examined as R.W.1. He deposed in support of his averments found in the petition for divorce. On behalf of the respondent, the son of the parties namely M.R.Shrinivas, studying 9th standard, was examined as P.W.2. The perusal of his evidence make it clear that he is capable of understanding the questions and competent enough to depose before the Court. The evidence of son of parties, who is of tender age is significant in this case. P.W.2 in his evidence categorically deposed that right from the beginning his mother ignored him and he was deprived of motherly love and he clearly deposed that his father had been taking care of his day-to-day needs. He also deposed about the heat shocks inflected to him by the appellant/wife. During cross examination of P.W.2, he deposed that he was studying 9th standard and he was staying along with his father. The respondent who appeared before the Court was his mother. When he deposed that the respondent failed to perform her duties as a good mother, he was questioned about the duties of mother towards her child. He proceeded to explain the various duties expected of a mother. He also went on to add that he was locked up for eight hours by his mother. He also deposed that his mother attempted self-immolation and it was thwarted by his father. If the evidence of P.W.2 is taken as a whole, he appeared to be competent enough to depose before the Court and capable of understanding the questions and giving correct answers. He withstood the cross-examination and therefore, we come to a conclusion that the evidence of P.W.2 appear to be natural one. There is nothing in the evidence of P.W.2 to ignore it as that of tutored evidence of a child coming from the custody of his father. The evidence of P.W.2 clearly established the act of cruelties pleaded by the respondent. From the admission of appellant in her pleadings, it is clear that the parties have been living apart from December 2001. Now nearly 11 years have gone. Though, the appellant in her pleadings expressed her willingness to join respondent, absolutely, there is no evidence available on record to show her bonafide attempts for mediation or steps for joining with the respondent. Now nearly 11 years have gone. Though, the appellant in her pleadings expressed her willingness to join respondent, absolutely, there is no evidence available on record to show her bonafide attempts for mediation or steps for joining with the respondent. On her own admission from the pleadings, she admitted that she withdrew from the matrimonial society on her own, though, she pleaded that she was forced to withdraw from the matrimonial society due to the illtreatment of respondent/husband, there is no independent evidence available on record to support the said plea except her own interested testimony. 12. It is settled the law when one of the party to marriage withdraw from the matrimonial society without reasonable cause and wants to continue the marital tie for the name sake without any meaningful attempts for reunion that act itself would amount to mental cruelty. It would be appropriate to refer to the observations of the Hon'ble Apex Court reported in (2007) 4 SCC 511 , Samar Ghosh Versus Jaya Ghosh, which is as follows: "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 parities. In such like situations, it may lead to mental cruelty" 13. In view of the above discussions, we find no illegality or perversity in the findings by the Family Court that the appellant/wife had committed the act of mental cruelty. Consequently, the Civil Miscellaneous Appeal is Dismissed by confirming the fair and final order passed by the III Additional Family Court granting divorce on the ground of cruelty. In the facts and circumstances of the case there is no orders as to costs. 14. In view of dismissal of both the appeals, C.M.P.Nos.5209 of 5210 of 2018 is dismissed. It is open to the appellant to take appropriate proceedings before the concerned Court. 15. In the facts and circumstances of the case there is no orders as to costs. 14. In view of dismissal of both the appeals, C.M.P.Nos.5209 of 5210 of 2018 is dismissed. It is open to the appellant to take appropriate proceedings before the concerned Court. 15. The learned Counsel Appearing for the appellant filed a memo stating that as per the order of this Court dated 01.11.2012 directing the respondent to pay a sum of Rs.3,500/- per month towards interim maintenance, a sum of Rs.56,000/- is due and payable by the respondent up to December, 2021 and he also submitted that for subsequent period January 2022 to till date also no amount was paid and therefore Rs.86,500/- remains unpaid till today. 16. The learned counsel appearing for the respondent submitted that he will pay the said amount within a period of four weeks from today. 17. The respondent is directed to pay a sum of Rs.80,500/-[as per memo amount due till December 2021, Rs.56,000 + Amount due from January 2022 to July 2022 (Rs.3,500 X 7) 24,500 = Rs.80,500/-] towards arrears of interim maintenance to the appellant within a period of four weeks from today. The learned counsel appearing for the appellant is directed to give the details of Bank account of the appellant to the counsel for the respondent. 18. In nutshell, (i) The Civil Miscellaneous Appeal is dismissed by confirming the fair and final order dated 29.04.2012 made in O.P.No.749 of 2002, on the file of III Additional Family Court, Chennai. (ii) Consequently, connected Civil Miscellaneous Petition No.5209 of 2010 is dismissed. (iii) The respondent is directed to pay a sum of Rs.80,500/- towards arrears of maintenance to appellant within 4 weeks. (iv) There shall be no order as to costs.