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2022 DIGILAW 940 (MAD)

R. Saravanan v. D. Shanmuga Priya

2022-04-18

K.KALYANASUNDARAM, V.SIVAGNANAM

body2022
JUDGMENT (Common Prayer: Civil Miscellaneous Appeals filed under Section 28 of the Hindu Marriage Act, to set aside the judgment and decree dated 15.11.2021 in O.P.Nos.1566 of 2018 and 1084 of 2019 on the file of the learned VII Additional Principal Judge, Family Court, Chennai.) Common Judgment V. Sivagnanam, J. 1. O.P.No.1566 of 2018 was filed by the respondent before the VII Additional Principal Judge, Family Court, Chennai for dissolution of marriage, whereas the appellant filed O.P.No.1084 of 2019 for restitution of conjugal rights. 2. The marriage between the appellant and the respondent was solemnized on 29.06.2015 at Thirupathy Thirumana Mahal, Aaladi Pillaiyar Koil Street, Kancheepuram, according to Hindu rites and customs is not in dispute. The respondent sought the relief of dissolution of marriage, on the grounds of cruelty and desertion. According to the appellant, his wife left the matrimonial home and deserted him without any valid reason. 3. During the trial, the respondent has examined herself as P.W.1 and marked four documents(Ex.P.1 to Ex.P4) with one C.D (M.O.1). The appellant gave evidence as R.W.1 and marked three documents (Ex.R.1 to Ex.R.3). The Family Court, after considering the evidence produced by the parties, allowed the petition filed by the respondent/wife by granting divorce and dismissed the petition filed by the appellant/husband for restitution conjugal rights. Aggrieved by these orders, the appellant is before this Court. 4. The learned counsel for the appellant, made the following submissions:- The trial Court has not properly considered the evidence adduced by the appellant. The allegation that the marriage was not consummated is false. The respondent/wife is not interested with her husband, it is established through cross examination. The allegation of cruelty towards the appellant has not been proved by the respondent. The appellant has filed restitution of conjugal rights, which reflects his intention to live with his wife. The trial Court erred in dissolving the marriage, on the ground that the marriage has been irretrievably broken down and reiterated other grounds raised in the grounds of appeal and thus pleaded to set aside the order passed by the Family Court. 5. The learned counsel for the respondent/wife urged that the wife sufficiently proved the cruel treatment of the appellant/husband and his family members and the same was elucidated through the evidence of appellant that he has disaffection towards the respondent/wife by frequently saying about her deformity of face and wound her feelings. 5. The learned counsel for the respondent/wife urged that the wife sufficiently proved the cruel treatment of the appellant/husband and his family members and the same was elucidated through the evidence of appellant that he has disaffection towards the respondent/wife by frequently saying about her deformity of face and wound her feelings. The trial Court rightly observed that the parties are living separately without any reason, at the last stage, the respondent/wife filed the divorce petition to save her life. After the divorce granted by the trial Court, she remarried one Paneer Selvam on 13.12.2021 at Thiruporur Murugan Temple. Under these circumstances, there is no possibility for re-union and thus supported the order of the trial Court and prayed to dismiss the appeal. 6. Heard both sides. 7. We have considered the rival submissions made by the learned counsel for the parties and perused the available materials on record. 8. Admittedly, the marriage between the appellant and the respondent was solemnized on 29.06.2015 at Thirupathy Thiruman Mahal, Aaladi Pillaiyar Koil Street, Kancheepuram, as per the Hindu rites and customs. The appellant and respondent were initially resided in the matrimonial home at Kancheepuram for a week. Thereafter, due to Aadi month, the respondent went to her parent's home at Avadi, Chennai. After Aadi month, the appellant brought her back to his home at Pattukottai where he was working. This fact is not disputed. 9. The case of the respondent is that the appellant has not shown any love and affection towards her. When they were living in Pattukottai, the appellant used to call his friends and put the phone in speaker and forced her to hear their speech pertaining to sex, which caused embarrassment to the respondent. After some days, he sent her to Avadi as his mother was not comfortable with the respondent. In the year 2015, during the month of October, she went to the matrimonial home, at that time the appellant and his parents had locked the door and went outside without providing food to the respondent for the full day. Thereafter, they continuously treated the respondent cruelly and the appellant ill-treated her by showing her facial deformity during her childhood. Admittedly, she was born as a cleft palate child, after operation she became normal. With the knowledge of this deformity only, the marriage took place. Thereafter, they continuously treated the respondent cruelly and the appellant ill-treated her by showing her facial deformity during her childhood. Admittedly, she was born as a cleft palate child, after operation she became normal. With the knowledge of this deformity only, the marriage took place. However, by showing this reason, the appellant refused to consummate the marriage, which hurt her feelings. In January, the respondent got job at Vandalur and joined the duty. The appellant had visited her only four to five weeks. In December 2017, the family members advised the appellant to live jointly, but the appellant did not take any steps. For the past two years, the appellant deserted her with no scope of living together, which forced the respondent to file the divorce petition. 10. The appellant resisted the petition and also filed a petition for restitution of conjugal rights denying the allegations made by the respondent. 11. We have gone through the evidence adduced by the parties before the Family Court. The evidence was also extracted in the judgment of the trial Court. The evidence of respondent [P.W.1] runs as follows: 12. The appellant deposed before the Family Court about the deformity of the wife. In his evidence he deposed that The above shows that before marriage itself, the appellant was not interested to marry the respondent. 13. The evidence on record discloses that the appellant did not have cordial relationship with the respondent. According to the respondent, the marriage was not consummated. The appellant showing her facial deformity refused to have physical relationship with her, which amounts to cruelty. There cannot be any straight jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances. In the case on hand, according to the wife, the husband disliked her frequently by showing her cleft palate during her childhood. After the marriage, for short period, they lived together. Thereafter, they are living separately. Mental cruelty is the state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for long time may lead to mental cruelty. 14. The Hon'ble Apex Court in K.Srinivas Rao vs. D.A.Deepa reported in 2013 5 SCC 226 has observed as follows: ''We are also satisfied that this marriage has irretrievably broken down. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for long time may lead to mental cruelty. 14. The Hon'ble Apex Court in K.Srinivas Rao vs. D.A.Deepa reported in 2013 5 SCC 226 has observed as follows: ''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.'' 15. The Hon'ble Supreme Court in the case of Naveen Kohli Vs. Neelu Kolhi [ (2006) 4 SCC 558 ], has 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. 84. The High Court ought to have appreciated that there is no acceptable way in which the parties can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist. 85. 84. The High Court ought to have appreciated that there is no acceptable way in which the parties can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist. 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. In the instant case, there has been total disappearance of emotional substratum in the marriage. The course which has been adopted by the High Court would encourage continuous bickering, perpetual bitterness and may lead to immorality. 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. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond. 87. The High Court ought to have visualised that preservation of such a marriage is totally unworkable which has ceased to be effective and would be greater source of misery for the parties. 88. The High Court ought to have considered that a human problem can be properly resolved by adopting a human approach. In the instant case, not to grant a decree of divorce would be disastrous for the parties. Otherwise, there may be a ray of hope for the parties that after a passage of time (after obtaining a decree of divorce) the parties may psychologically and emotionally settle down and start a new chapter in life. " 16. The Division Bench of Kerala High Court in the case of Beena Vs. Otherwise, there may be a ray of hope for the parties that after a passage of time (after obtaining a decree of divorce) the parties may psychologically and emotionally settle down and start a new chapter in life. " 16. The Division Bench of Kerala High Court in the case of Beena Vs. Shino G.Babu [2022 SCC online Ker 778], following the decisions of the Hon'ble Apex Court in the case of Naveen Kohli Vs. Neelu Kolhi (supra) and in the case of Samar Ghosh Vs. Jaya Ghosh [ (2007) 4 SCC 511 ], has held as follows:- 5. ........ The Apex Court in Naveen Kohli v. Neelu Kohli [ (2006) 4 SCC 558 ], opined that if the parties cannot live together on account of obvious differences, one of the parties is adamant and callous in attitude for having divorce on mutual consent, such attitude can be treated as the cause of mental cruelty to other spouses. The Apex Court in Samar Ghosh v. Jaya Ghosh [ (2007) 4 SCC 511 ] also considered such act as cruelty in the following words: “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.” 6. The law on divorce recognises both fault and consent as a cause for separation. When both the parties are unable to lead a meaningful matrimonial life due to inherent differences of opinion and one party is willing for separation and the other party is withholding consent for mutual separation, that itself would cause mental agony and cruelty to the spouse who demands separation. The purpose of marriage is to hold matrimonial ties lifelong, respecting mutual obligations and rights. The companionship of spouses creates oneness of the mind to walk together. It is through mutual respect and courtship, the companionship is built and fortified. The modern jurisprudence of irretrievable break down to allow divorce is premised on the fact that the spouses can never remain together on account of their differences. The companionship of spouses creates oneness of the mind to walk together. It is through mutual respect and courtship, the companionship is built and fortified. The modern jurisprudence of irretrievable break down to allow divorce is premised on the fact that the spouses can never remain together on account of their differences. If the court is able to form an opinion that due to incompatibility, the marriage failed and one of the spouses was withholding consent for mutual separation, the court can very well treat that conduct itself as cruelty. If one of the spouses is refusing to accord divorce on mutual consent after having convinced of the fact that the marriage failed, it is nothing but cruelty to spite the other spouse. No one can force another to continue in a legal tie and relationship if the relationship deteriorated beyond repair. The portrayal of such conduct through manifest behaviour of the spouse in a manner understood by a prudent as 'cruelty' is the language of the lawyer for a cause before the court. This case is also not different. The behavioural disorder pointed out against the appellant in the petition for divorce was essentially reflection of incompatibility that existed between the parties. The husband wants to get out of the struggled relationship, on the projected cause of cruelty with reference to the incidents of misbehaviour. Incompatibility is a factor that can be reckoned while considering the ground for cruelty, if one of the spouses withholds the consent of mutual separation, though incompatibility is not recognised as ground for divorce. 7. The parties are young. They are living separately since 2017. We, in such circumstances, are of the view that for the reasons stated above, the order of the Family Court granting divorce has to be sustained." 17. A perusal of evidence available on record establishes the fact that the appellant treated the wife with cruelly by not having consummated the marriage for no valid reason. We have no manner of doubt that this conduct has caused mental cruelty to the respondent. That apart, admittedly, they were living separately, since 2017 and the learned counsel for the respondent in the course of argument has filed her affidavit to inform the trial Court that after the dissolution of the marriage she remarried one Paneer Selvam on 13.12.2021 at Thiruporur Murugan Temple. 18. That apart, admittedly, they were living separately, since 2017 and the learned counsel for the respondent in the course of argument has filed her affidavit to inform the trial Court that after the dissolution of the marriage she remarried one Paneer Selvam on 13.12.2021 at Thiruporur Murugan Temple. 18. Keeping in view the dictum laid down in the decisions afore referred, we are satisfied that this marriage has irretrievably broken down and there is absolutely no possibility of reunion. In such circumstances, we find no reason to interfere with the order of the Family Court. 19. In the result, both the Civil Miscellaneous Appeals stand dismissed, as devoid of any merit. No Costs.