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2022 DIGILAW 3921 (MAD)

P. Senthil v. K. Karthikayini

2022-12-15

G.JAYACHANDRAN, SUNDER MOHAN

body2022
JUDGMENT : (G. Jayachandran, Sunder Mohan, JJ.) (Common Prayer: Civil Miscellaneous Appeal filed under Section 19 of the Family Court Act, against the common Judgment made in H.M.O.P.Nos.62/2008 and 170/2008, dated 22.10.2013, on the file of the Judge, Family Court, Madurai.) 1. Both the appeals have been filed by the husband challenging the common judgment passed in H.M.O.P.Nos.62/2008 and 170/2008 dated 22.10.2013 by the Family Court, Madurai. H.M.O.P.No.62/2008 was filed by the appellant/husband praying for a decree of divorce and the same was dismissed. H.M.O.P.No.170/2008 was filed by the respondent/wife for restitution of conjugal rights and the said petition was allowed. Aggrieved, the husband is before us. 2. The appellant filed a petition for divorce on the ground that his wife suffered from a psychopathic disorder. He had alleged that he married the respondent on 28.06.2006 at Madurai. On the very first night, the respondent behaved abnormally. She attempted to strangulate herself after removing her dress. The relatives of the respondent consoled the appellant that she suffered from fits and she would recover soon. The marriage was not consummated and later the appellant came to know that the respondent suffered from genetic disorder and her sister and grandmother have also suffered similar disorder. On 24.01.2007, the appellant came to Madurai to treat the respondent, but she refused to cooperate for the treatment. The respondent and her parents never bothered to contact the appellant. The respondent is suffering from illness which has been suppressed from the appellant. Hence, he filed a divorce petition. 3. The respondent herein filed counter denying all the averments made in the petition and stated that even 70 sovereigns of gold and gift articles worth about 3,00,000/- were given at the time of marriage. Both of them enjoyed a good conjugal life and the averments that she never consented to conjugal relationship is false. The appellant was working as a lawyer in Coimbatore and used to come during weekends to Madurai, where the respondent was staying. They had a good relationship. The problem arose after the appellant's younger brother's wife became pregnant. The respondent was asked to take treatment and the doctor, who treated her found her medically fit for giving birth to a child. When the respondent insisted that the appellant to undergo a medical check up, the appellant got upset and left for Coimbatore. Thereafter, the appellant refused to talk or meet the respondent. The respondent was asked to take treatment and the doctor, who treated her found her medically fit for giving birth to a child. When the respondent insisted that the appellant to undergo a medical check up, the appellant got upset and left for Coimbatore. Thereafter, the appellant refused to talk or meet the respondent. All efforts made by elders for reunion of the couple ended in vain. She submitted that she was willing for resuming the marriage and she had also filed H.M.O.P.No.170/2018 for restitution of conjugal rights. 4. The appellant filed a reply statement that the respondent never gave 70 sovereigns and gold and gifts as stated in the counter. The respondent had a split personality and she herself stated that she was possessing of a spirit and did not allow the appellant to consummate the marriage at the first night. 5. Before the Family Court, the appellant examined two witnesses and marked Ex.A1 to Ex.A3. The respondent examined herself as R.W-1. One Mr.C.Ramasubramanian is examined as Court witness. 6. The Family Court found that the appellant had not established that the respondent had suffered from any unsound of mind or disorder and hence dismissed the divorce petition. The Family Court also allowed the petition filed by the respondent for restitution of conjugal rights. 7. The learned counsel for the appellant would submit that the appellant and the respondent are living separately since 2007. The parties have not consummated in the marriage since the respondent suffered from a psychopathic disorder. After marriage, on the first night, the respondent did not cooperate for consummating the marriage and he complained to her parents. The parents of the respondent stated that she was suffering from fits and that she would recover soon. The learned counsel further submitted that in any event, the matrimonial bond is beyond repair. There is absolutely no chance of reunion. The parties are living in continuous separation since 2007. 8. The learned counsel for the respondent submitted that the allegations of psychopathic disorder have not been established. However, he would fairly concede that the marriage has broken down and there is absolutely no possibility of reunion. 9. Heard Mr.R.L.Dilipan Pandian for Mr.B.Nambi Selvan, learned counsel for the appellant/husband and Mr.M.Karunanithi, learned counsel for the respondent/wife and perused the materials placed before this Court. 10. However, he would fairly concede that the marriage has broken down and there is absolutely no possibility of reunion. 9. Heard Mr.R.L.Dilipan Pandian for Mr.B.Nambi Selvan, learned counsel for the appellant/husband and Mr.M.Karunanithi, learned counsel for the respondent/wife and perused the materials placed before this Court. 10. We find that the marriage between the parties did not take off eversince the marriage between them. The issue involved is whether the appellant has made out a ground under Section 13(1) (iii) of the Hindu Marriage Act, which reads as follows: “13. Divorce. (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- (iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.” Though the doctor has issued a certificate that the respondent did not suffer from any psychopathic disorder, the question is whether the appellant has established that the mental disorder is of such a kind and to such an extent that he cannot reasonably be expected to live with the respondent. Ex.C2 contains report of another doctor, which was marked through C.W-1. In the said report, the doctor had stated that the profile of the respondent points to an immature, depending, inadequate personality pattern with a reactive depression. The doctor would further state that these were not indicators of any mood disorders. The respondent needed separate psychotherapy to enable her to become more mature in handling her relationship, particularly, marital relationship. The question therefore is whether the respondent's actions made it impossible for the appellant to live with her. The specific allegation of the appellant is that on the very first night, the respondent behaved unusually. The appellant had stated in the reply to the restitution of conjugal rights petition that the respondent had stated as follows: 11. Considering the fact that the appellant and the respondent are living separately for nearly 15 years and the submission of the learned counsel for the respondent that there is no possibility of reunion, we are inclined to dissolve the marriage and we do not wish to relegate the parties to continue another round of litigation. Considering the fact that the appellant and the respondent are living separately for nearly 15 years and the submission of the learned counsel for the respondent that there is no possibility of reunion, we are inclined to dissolve the marriage and we do not wish to relegate the parties to continue another round of litigation. The Hon'ble Apex Court in the case of Naveen Kohli Vs. Neelu Kohli reported in (2006) 4 SCC 558 has held as follows: “74. … once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised 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. ........... 85. Undoubtedly, it is the obligation of the court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. … 86. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto.” 12. The Hon'ble Supreme Court in the case of Samar Ghosh Vs. Jaya Ghosh reported in (2007) 4 SCC 511 had observed as follows: “(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The Hon'ble Supreme Court in the case of Samar Ghosh Vs. Jaya Ghosh reported in (2007) 4 SCC 511 had observed as follows: “(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.” 13. By applying the principle laid down in the above decisions of the Hon'ble Supreme Court, we find that the marriage has to be dissolved and accordingly, the marriage is dissolved. Inspite of the order passed by the Family Court allowing the petition for restitution of conjugal rights, the parties are still living separately. Therefore, we find that the order of the Family Court directing restitution of conjugal rights could not be enforced. The marital tie is only on paper. If the marriage is not dissolved legally, the parties would be put to further suffering making the future of their relationship uncertain. 14. In the result, (i) Both the Civil Miscellaneous Appeals are allowed. (a) H.M.O.P.No.62/2008 on the file of the Family Court, Madurai is allowed and (b) H.M.O.P.No.170/2008 on the file of the Family Court, Madurai is dismissed. No Costs. Consequently, connected miscellaneous petition is closed.