Divorce petition dismissed as the husband failed to prove cruelty - ordinary wear and tear does not give cause of action for divorce - dismissed - Restitution of conjugal rights allowed = Mrs.Saraswathi Palaniappan .. Appellant in both C.M.As. vs Vinod Kumar Subbiah .. Respondent in both C.M.As.= reported in http://judis.nic.in/judis_chennai/filename=62508
Divorce petition dismissed as the husband failed to prove cruelty - ordinary wear and tear does not give cause of action for divorce - dismissed - Restitution of conjugal rights allowed =
Even assuming that the wife also
had used sounding words causing embarrassment to the in-laws, such occasional
utterances against the sister in law, brother in law and father in law may not
amount to cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage
Act.
Mere austerity of manners or occasional wordy altercations may not amount
to cruelty.
P.Manimekalai v. R.Kothandaraman, 2010 (6) CTC 80,
wherein it has been held as
follows:-
"25. Both in her chief examination as well as in her cross examination, the
appellant has admitted that
she has told her sister in law that had she not come
back to the house as thohntl;l (estranged + separated from husband), the problem
would not have been arisen.
It is pertinent to note that the appellant has
stated so even in her cross examination. Perhaps, feeling remorse for saying so,
the appellant has admitted calling the sister in law as thohntl;l.
Here, this
again was sought to be misinterpreted by the trial Court by saying that the
appellant was treating the respondent and in-laws cruelly.
Even assuming that
appellant had used such words, such occasional utterance against sister in law
may not amount to cruelty within the meaning of Section 13(1)(ia).
Mere
austerity of manners or occasional wordy altercations may not amount to mental
cruelty.
In marital relationship, parties must be prepared to subject themselves
to the normal wear and tear of such life.
The trial Court has not analysed the
evidence in the light of the well-settled position."
Even in the said Bhagat's case, the Apex
Court has held that merely because there are allegations and counter
allegations, a decree for dissolution cannot follow.
To accept the case of the
husband, there must be really some extraordinary features to warrant grant of
divorce on the basis of pleadings even without a full trial, but no such
extraordinary features are found.
But in the present case, bald, baseless and
containing trivial allegations, which is nothing but a normal wear and tear that
happens in an ordinary family, has been blown out of proportion for granting the
decree for divorce.
Therefore, this Court is of the considered view that it is
not a fit case for dissolution of marriage of the parties.
Accordingly, the
divorce petition filed by the respondent-husband stands dismissed and the
petition filed by the appellant-wife for restitution of conjugal rights stands
allowed.
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13/03/2013
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
C.M.A.(MD)No.210 of 2012
&
C.M.A.(MD)No.211 of 2012
Mrs.Saraswathi Palaniappan .. Appellant in both C.M.As.
vs
Vinod Kumar Subbiah .. Respondent in both C.M.As.
Memorandum of Grounds of Civil Miscellaneous Appeals under Order XLI of
the Civil Procedure Code read with Section 28 of the Hindu Marriage Act, 1955,
against the order and decretal order dated 25.08.2011 made in H.M.O.P.Nos.1 & 2
of 2011 on the file of the Hon'ble I Additional District Judge, Madurai.
!For Appellant ... Mr.AR.L.Sundaresan
Senior Counsel for
Mrs.AL.Ganthimathi
^For Respondent ... Mr.Gopalakrishna Lakshmana Raju
Senior Counsel for
Mr.R.Venkateswaran
:JUDGMENT
These two civil miscellaneous appeals have been preferred by the
appellant-wife against the judgment and decree of the trial Court granting
divorce by dissolving the marriage filed under Section 13(1)(ia) of the Hindu
Marriage Act and dismissing her application for restitution of conjugal rights
filed under Section 9 of the Hindu Marriage Act.
2. The brief facts leading to the filing of these two appeals are given
as under:-
The marriage between the appellant-wife and the respondent-husband took
place on 28.6.2004 at Kandaramanickam Village, Sivagangai District as per Hindu
rites and customs. The respondent-husband is employed as software engineer in a
company called Epiq Systems in U.S.A., and soon after the marriage, they were
living at Chennai. After obtaining Visa for his wife, the respondent-husband had
taken the appellant-wife to U.S.A., on 9.7.2004 and they were living together in
U.S.A. They made two visits to Chennai, one during the month of October, 2005
and another during the month of June, 2006, when the appellant-wife was three
months pregnant. On 10.6.2006, they picked up quarrel and in the process, it
was alleged that the appellant-wife used abusive language against the
respondent-husband and left for Madurai to her parents house and since then, she
has been living there separately and even after giving birth to a male child on
5.12.2006, she refused to join with the husband. Even during her stay with the
respondent, she used to be lonely and in most of the times she was in
melancholic mood and used to quarrel with the husband every now and then without
any rhyme or reason. Sometimes, she used to scold the husband with filthy
language using even unparliamentary words such as "son of a prostitute" etc.
Moreover, during the office hours, she used to call the husband over phone and
put him to mental agony and torture by quarrelling with him on some imaginary
grounds. While doing so, she used to talk very high about her parental home and
degrade the family members of the respondent- husband. These frequent quarrels
of using abusive language and degrading the family members of the respondent
show that she was not having any affection with the husband and because of her
indifferent attitude and behaviour, the husband was put to intolerable mental
agony and hardship. Therefore, the respondent-husband was compelled to file the
petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955.
It was also further averred in the divorce petition that when the wife was
behaving very rudely and violently, most of the time in the family and sometime
even indirectly threatening him that she would lodge a police complaint against
the respondent and his family members as if they had demanded dowry and all the
efforts for bringing back the wife to the marital home since June, 2006 had not
materialised and the subsequent mediations that took place in front of the
respondent's family members were of no avail, he decided to file the petition
for divorce.
3. A detailed counter affidavit was filed by the appellant-wife admitting
the fact that the parents of both the appellant and respondent, after making
proper arrangements for the marriage, solemnized the marriage between them on
28.6.2004 at Kandaramanickam Village and subsequently, she was taken to U.S.A.,
and they were living together happily and out of happy wedlock, a male child by
name Sanjeev was born at Madurai on 5.12.2006. But after the boy was born, in
spite of repeated requests made to see the newly born son, neither the husband
nor any of the in-laws ever attempted to visit the child at Madurai. However,
the wife came to Chennai during March-April, 2007 and thereafter, they lived
together in the house of the in-laws along with the husband during the said
time. While denying the allegation made by the husband that she was not
affectionate as incorrect, she stated that the husband did not have the benefit
of engaging any servants, as the wife had to do all the home works, such as
cleaning, cooking and housekeeping by herself and in spite of the fact that the
wife was taking full care of the entire family by doing all odd jobs like
cooking, cleaning, keeping the house in order in U.S.A., and also in Chennai,
and in spite of the fact that the husband's family is a big family with more
number of persons, there was no reason or rhyme for deserting the wife when she
came for delivery of the child. Further, it was pleaded that when there was no
problem at all between them, it is only due to a misunderstanding between the
family members of the husband, the wife was completely deserted.
4. During the pendency of the petition for divorce filed by the
respondent-husband, the appellant-wife also filed a petition under Section 9 of
the Hindu Marriage Act seeking restitution of conjugal rights. A detailed
counter affidavit was filed by the respondent-husband denying the averments of
Rs.6,00,000/- given as dowry and in addition, Rs.20,00,000/- worth of diamond,
silver and gold jewels alleged to have been given to the husband as false to the
core. One another aspect to be mentioned is that while the divorce petition
filed under Section 13(1)(ia) of the Hindu Marriage Act before the Principal
Family Court at Chennai, was posted for first hearing on 4.6.2007 for appearance
of the appellant-wife, as she did not appear on that date, the case was
adjourned to 9.6.2007 and even on 9.6.2007, when the wife did not appear, an
exparte order was passed. Subsequently, a petition to set aside the exparte
order was also allowed on 12.6.2007 and thereafter the petition was posted to
10.8.2007. Once again the record shows that the matter was proceeded ex parte.
Again a set aside petition was filed in I.A.No.339 of 2008 on 17.11.2008. The
trial Court by restoring the matter back to file, transferred the matter to the
file of the Family Court at Madurai based on the order in Tr.C.M.P.No.62 of 2010
filed by the wife. One another petition in M.C.No.1 of 2011 was also filed by
the wife seeking for maintenance. All these matters were clubbed together and
finally, the trial Court, after a joint trial, accepting the case of the husband
that the wife has committed cruelty, came to the conclusion that the husband was
entitled for a decree for dissolution of marriage. While disposing the
maintenance application in M.C.No.1 of 2011, the trial Court also passed an
order holding that the wife was entitled for a sum of Rs.25,000/- per month as
maintenance from the husband. The trial Court, however, dismissed the petition
for restitution of conjugal rights filed by the wife for the reasons assigned
for the grant of a decree for dissolution of marriage. Hence, these two
appeals have been filed by the appellant-wife.
5. Mr.AR.L.Sundaresan, learned senior counsel for the appellant-wife
submitted that all the disputes allegedly pleaded in the petitions are only due
to the family members of the respondent-husband and no dispute has been stated
or alleged or proved between the husband and wife. Hence, the decree for
divorce for the disputes within the family members is certainly erroneous,
incorrect and therefore he prayed for setting aside the same. It was also
further pleaded that the trial Court, without considering that there has been a
normal wear and tear in the affairs of running a family, without there being a
proper evidence to show that there has been an injury caused to the marital
relationship between the husband and wife, when there is no pleading or specific
case of cruelty established by the husband against the wife, the trial Court
wrongly held that the wife had cruelly treated the husband. The trial Court has
also failed to apply the legal decision that voicemail and email, which were
taken as corroborative evidence, ought not to have been taken on record without
there being a proper pleading in the petitions before the trial Court to come to
a conclusion that the husband was subjected to cruelty by the wife. It was also
the case of the wife, as pleaded by the learned senior counsel, that when there
was a marriage on 28.6.2004, within ten days from the date of marriage, the wife
was taken by her husband to U.S.A. After living there happily soon after
marriage, they came back to Chennai only in the month of October, 2005 to attend
to some family functions. Once again they went to U.S.A., in November, 2005. It
was also an admitted fact that can be seen on record that in June, 2006, the
wife became pregnant. As she was three months pregnant, she came back to her
parents home at Madurai for delivery. As per the Hindu family customs, in
southern India, generally the first delivery takes place in the wife's parental
home. In deference to the said custom, when the wife was taken for the first
delivery from U.S.A., a boy was also born on 5.12.2006. One another important
fact wrongly overlooked by the trial Court was till the wife came to the
parental home for first delivery from U.S.A., on 6.6.2006, it goes without
saying that whatever wear and tear took place in the matrimonial home between
the husband and wife, all were condoned for the reason that she was taken back
to U.S.A., in the month of November, 2005. Therefore, whatever cause of action
alleged to have taken place prior to November, 2005 cannot be made a foundation
or basis for claiming the decree of divorce, when all these acts and deeds were
condoned by the husband while she was admittedly taken back to U.S.A., in June,
2006. But the trial Court, by going into the old and unfounded allegation that
the wife has committed cruelty against her husband during the year 2005,
erroneously allowed the divorce petition filed by the husband by accepting a
totally new case that the wife has caused cruelty by abusing the father in law
and that the brother in law was also put to a feeling of mental cruelty by the
appellant-wife.
6. Mr.AR.L.Sundaresan, learned senior counsel, assailing the soundness of
the impugned judgment and decree passed by the trial Court granting decree of
divorce against his client, forcibly pointed before this Court that when there
was no ground for cruelty made out by the respondent-husband, the trial Court
ironically, entertaining the allegation of trivial nature, dissolved the
divinely relationship between the husband and wife, just for a mere asking by
the husband. When there were allegations that the father in law, brother in law
and sister in law were also part of the subject matter of cruelty caused by the
appellant-wife, the trial Court, forgetting for the moment that all these
disputes between the husband and wife were only due to the family members of the
husband and no dispute has been stated or alleged to be proved between the
husband and wife, in all fairness, should have dismissed the divorce petition.
But for the sake of satisfying the father in law, brother in law and sister in
law of the wife, illegally granted the divorce. Further, when there was an
application for restitution of conjugal rights filed by the wife under Section 9
of the Hindu Marriage Act, the learned District Judge ought to have seen that
the wife has been ready and willing to live with her husband and therefore the
baseless allegation of cruelty said to have been caused against the real members
of the husband's family, should have been turned down by allowing the
application for restitution of conjugal rights in favour of the wife. But
ironically the trial Court has misdirected itself that a mere dispute among the
in-laws family and trivial issues between the husband and wife can be taken as a
tall ground for divorce. If this approach is adopted, no matrimonial family
would survive and as a result, it will be very difficult to save and preserve
the family institution. In support of his submissions, he has also relied upon
some of the judgments of this Court as well as the Apex Court to contend that
the approach of the trial Court is erroneous and cannot be endorsed with, for
the reason that while considering the allegations, either made by the wife or
husband, regard must be shown to the context in which they were made. When there
cannot be any hard and fast rule in interpreting the term 'cruelty', it is the
bounded duty of the trial Court to properly and carefully see that the term
'cruelty' consists of unwarranted and unjustifiable conduct on the part of the
opposing spouse to 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. When it must be
judged on the facts of each case having regard to the surrounding circumstances,
the trial Court has completely gone wrong in entertaining the totally baseless
allegation that the wife was making unwanted allegation against the father in
law, brother in law and sister in law when there was no such allegation against
the husband. Therefore, the cruelty as alleged by the husband can never be
seen. But unfortunately, the trial Court, without there being a situation
compelling the husband to file a petition for dissolution of marriage, accepting
a small wear and tear that usually takes place in a family, wrongly dissolved
the solemnized marriage between the appellant and respondent.
7. One another Division Bench judgment was also pressed into service by
the learned senior counsel to contend that mere bickerings in marital life
cannot be a ground for cruelty as, in order to make out cruelty, the intensity
and gravity of one's action will have to be seen. Further, a sustained course of
abusive and humiliating treatment rendering the life of spouse may be one of the
factors to decide the mental cruelty. The mere trivial irritations, quarrels,
normal wear and tear of the married life would not amount to mental cruelty.
These aspects have been completely ignored by the trial Court. Now that the
appellant-wife, while living happily with her respondent-husband in U.S.A., has
consummated the marriage, that shows that she was happily living with her
husband, resultantly, a boy was also born on 5.12.2006. Without considering
any of these vital aspects, dismissing the petition filed under Section 9 of the
Hindu Marriage Act for restitution of conjugal rights, the trial Court has
forced upon the wife with the decree of divorce. Therefore, the learned senior
counsel strenuously contended that the approach of the trial Court granting
divorce by giving serious importance to mere trivial irritations and normal wear
and tear of the married life that would not legally be a ground for mental
cruelty, should be forthwith set aside and the petition for restitution of
conjugal rights should be allowed.
8. Per contra, Mr.Gopalakrishna Lakshmana Raju, learned senior counsel for
the respondent-husband heavily supported the reasons assigned by the trial Court
for the grant of decree for dissolution of marriage, for the reason that when
the dissolution of marriage was sought by the respondent-husband on the
allegation that the appellant-wife all the time was causing mental cruelty not
only to the husband, but also damaging the reputation, peaceful mind of the
father in law, mother in law, sister in law and even brother in law, i.e. almost
all the family members of the husband, the trial Court, by going into the minute
details that were produced before the trial Court, found that the wife was a
real culprit for having damaged the matrimonial relationship, particularly by
using unparliamentary language against her own father in law abusing him as son
of a prostitute. The trial Court, in order to find out the truth of this
allegation, went into the other material evidence as to the notice issued by the
U.S. Department to the respondent-husband stating that the wife has made a
complaint against him and in view of the complaint, when the police department
in U.S.A., has severely warned the husband of the appellant that he would not be
allowed to continue his business in diamond and other voicemail and email sent
by the wife to her husband as corroborative evidence, rightly came to the
conclusion that it is a fit case for grant of decree of dissolution of marriage.
Further, the trial Court, after considering the entire evidence oral and
documentary produced by both sides that there was no chance of their coming
together again, finally reached a conclusion that when the wife was in the
witness box before the trial Court, she has made an allegation against her own
father in law that her father in law attempted to catch her hands and thereby
made direct assault on her modesty, and after considering that allegation to be
baseless, rightly treated the wife as a party who caused unbearable cruelty as
defined under Section 13(1)(ia) of the Hindu Marriage Act. In view of that,
when the decree for dissolution of marriage was passed by also granting a sum of
Rs.25,000/- per month as maintenance to the wife, there can never be an argument
by the wife alleging unreasonable standard adopted by the trial Court in
granting the decree for dissolution of marriage. Further, when the trial Court
on the cumulative effect of evidence brought on record was fully satisfied with
the case of the husband who filed a petition for divorce that he has established
a sustained course of abusive and humiliating treatment and calculated torture
on the part of the wife to make the husband miserable and in fact when the
husband, while living with the appellant in U.S.A., felt humiliated both in
private and public life, it is extremely difficult to tell the husband to resume
the matrimonial life that was not in existence for about six long years.
Therefore, the decree for dissolution of marriage granted by the trial Court is
to be affirmed by this Court by dismissing the appeals filed by the wife, as
there has been no merit in the appeals nor any error or infirmity in the
impugned judgment passed by the trial Court. In support of his submissions, the
learned senior counsel also relied upon various judgments of different High
Courts and Supreme Court as well to support his case that it is the duty of wife
to live with her husband without causing cruelty to any member of the family.
Relying upon the Division Bench judgment of Allahabad High Court in Vimala Devi
v. Ram Babu, II (2004) DMC 639 (DB), he contended that it is the cumulative
effect of all the acts and conduct which has to be taken into consideration for
finding out whether the behaviour of the erring spouse falls within the ambit of
cruelty as defined under Section 13(1)(ia) of the Hindu Marriage Act. He
further pleaded that what may amount to cruelty in one case may not amount to
cruelty in another case and therefore it is the duty of the Court to consider
the social status, the environment, the education, the mental and physical
conditions and the susceptibilities of the innocent spouse as also the custom
and the manners of the parties. When cruelty may consist of a single act or
conduct of the respondent, the Court has to apply in each and every case a
different yardstick. Finally he argued that it is the duty of the wife to live
with her husband, because unless the husband and wife live together, there is
really no marriage. But in the present case, he pleaded, when she came for
first delivery of her son, she did not think of going back. Therefore, when the
wife has miserably deserted the matrimonial home, she cannot ask for
restitution of conjugal rights that too after a long gap of seven years in
addition to having passed cruelty that has been found in favour of the husband.
9. One another judgment was also relied upon in the case of Rajan Vasant
Revankar v. Mrs.Shobha Rajan Revankar, AIR 1995 Bombay 246 to support his case
that wild, reckless and scandalous allegation by wife against the husband's
mother, his two married sisters and brother in laws would amount to cruelty.
Further it was argued that even the letters written by the wife subsequent to
the filing of petition reiterating the wild and baseless allegations made by her
also would support the case of the husband. Yet another decision of the Andhra
Pradesh High Court in Jayakrishna Panigrahi v. Smt.Surekha Panigrahi, AIR 1996
A.P. 19 was relied upon to impress upon the Court that it would be a fit case to
dissolve the marriage based on the conduct of wife subsequent to the filing of
petition causing mental cruelty to the husband, if the trial Court finally
agreed with the case of the husband that the wife has really caused mental
cruelty to the husband during the pendency of the case.
10. Finally, the judgment of the Apex Court in V.Bhagat v. D.Bhagat
(Mrs.), (1994) 1 SCC 337 was also pressed into service once again to impress
upon the Court, whether the divorce can be granted merely on the basis of
pleadings and other admitted materials without a full trial. In the said case,
he pleaded that when the Supreme Court allowed the marriage to be dissolved on
the ground of mental cruelty by accepting the irretrievable break down of
marriage and when the same facts and circumstances are involved and duly
considered by the trial Court, particularly going into the specific allegation
made by the husband with supportive documents that a wife making wild and
baseless allegation against her father in law that he had attempted to outrage
her modesty was found to be a mental cruelty, as contemplated under Section
13(1)(ia) of the Hindu Marriage Act, the same regard shown by the trial Court
for accepting the case of the husband, may also be had by this Court while
considering the correctness of the judgment passed by the trial Court. In view
of the above arguments, he prayed for no interference with the judgment and
decree of the trial Court.
11. Heard the learned counsel for the parties. The marriage between the
husband and wife in this case took place on 28.6.2004 at Kandaramanickam village
in Sivaganga District as per the Hindu rites and customs. The respondent-husband
was employed as software engineer in a company called Epiq Systems in U.S.A. The
appellant-wife also, as could be seen from the records, is coming from a
respectable family. After the marriage was solemnized between them, the wife was
taken to Chennai and after obtaining Visa, she was taken to U.S.A., on 9.7.2004.
Since then they had been living together in U.S.A. Even though the couple
visited Chennai during October, 2005 and June, 2006, as she was three months
pregnant, it was averred in the petition for divorce filed under Section
13(1)(ia) of the Hindu Marriage Act, that on 10.6.2006, the appellant was said
to have picked up a quarrel with her husband by using abusive language and as a
result, she left for Madurai to her parental home and thereafter she did not
visit. On 5.12.2006 she had given birth to a male child by name Sanjeev. A
careful reading of the petition would show that the foundation for the husband
to approach the trial Court for divorce was that the appellant used to scold her
husband with filthy language and using unparliamentary words such as son of a
prostitute etc., and during his office hours, she used to call him over phone
and put him to mental agony and torture on some imaginary ground or the other.
It was also pleaded that whenever there was a quarrel, the wife used to threaten
the husband that she would commit suicide and throw the blame on him and on the
family members of the husband. In view of these reasons, when there was a
mediation before the common family elder, even that mediation could not
materialise, as a result, the petition claims that the husband has filed the
petition for divorce. Even the counter affidavit filed by the husband to the
petition seeking for restitution of conjugal rights filed under Section 9 of the
Hindu Marriage Act is also bereft of any substance warranting grant of decree
for dissolution of marriage. All the allegations pleaded by the learned senior
counsel for the respondent-husband throws more light for this Court to see that
only after filing the petition, the respondent-husband was able to produce some
copy of voicemail and email as corroborative evidence to come to the conclusion
that the husband was treated cruelly. No doubt in matrimonial matters seeking
for grant of divorce on the ground of cruelty allegedly made by one's spouse
against another, the Family Court need not strictly adhere to the hard and fast
rule in entertaining evidence oral or documentary or in respect of examining the
parties. For, the primary motto of the Court is to go slow while considering the
petition for dissolution of solemnized marriage that is always considered that
all marriages are made in heaven. Therefore the matrimonial matters are matters
of delicate, human and mental relationship. It always demands mutual respect,
mutual trust, regard, respect, love and affection. But when the husband rushed
before the trial Court by filing a petition for divorce raising allegations that
his wife has abused him by using unparliamentary words and made unbearable
allegations against his father, no such allegations or averments can be seen in
the pleadings filed before trial court except a usual wear and tear that
ordinarily takes place at home. Further, when the appellant-wife, during the
pendency of divorce petition, filed a petition for restitution of conjugal
rights under Section 9 of the Hindu Marriage Act, opposing the said prayer, the
husband could have in fact brought forth new facts like what was mentioned about
his father that the wife had abused not only him, but also his father, mother,
sister and brother, but no such allegation whatsoever as argued before me by the
learned senior counsel for the respondent-husband was ever made at least in one
line somewhere in the counter filed to the application filed under Section 9 of
the Act for restitution. To say the least, no allegation was made either in the
main petition or in the subsequent counter affidavit filed by the husband to say
that the appellant-wife had abused her father in law on the particular date or
month or place. Merely relying upon the copies of voicemail and email said to
have been sent by the wife, a case was sought to be made before the trial Court
that even during the pendency of the divorce petition, the wife continuously
went to harass and give physical and mental cruelty to all the family members of
the respondent-husband. Even though these were perused by the trial Court as
corroborative evidence, in my considered view, the trial Court has gone in haste
and hurriedly accepting these allegations, erroneously granted the decree for
dissolution of marriage in favour of the respondent-husband. Therefore, it must
be mentioned that in the cross examination, the wife was properly questioned by
the husband's counsel before the trial Court. While denying the suggestions to
all the questions, it was deposed that she never uttered any such
unparliamentary words against her father in law or other family members. When
this being the case of both parties, I fail to understand why in such background
the trial Court has not considered that important circumstance, particularly
when the husband, while filing the petition under Section 13(1)(ia) of the Hindu
Marriage Act, has completely forgotten to mention all these wild, reckless and
baseless allegations that the wife had assaulted the husband and his father, an
old and respectable person in the family. Again this Court fail to see why these
averments have been completely forgotten to be made as part of the pleadings not
only in the petition but also in the counter affidavit subsequently filed to the
petition for restitution of conjugal rights by the wife. Therefore, it is not
open to the learned senior counsel for the respondent to argue the general
principles of law that in all matrimonial matters, the trial Court need not look
into the pleadings, but take a look into the subsequent circumstances which has
really warranted a situation for granting the decree for dissolution of
marriage. Indeed, even if that argument is accepted, still it goes against the
case of the husband. The reason being that the divorce petition was filed way
back in the year 2007 alleging that the wife had caused all the mental and
physical cruelty to the husband and his father and mother, when she was staying
in U.S.A., during the year 2005. Even if it is presumed that the husband has
failed to mention all the truthful incidents that took place in U.S.A., it is
not known why he has again committed the very same serious mistake in not
pleading in his averments while filing the counter affidavit to the petition for
restitution of conjugal rights that was filed in the year 2008. Therefore, the
accusations and character assassinations in his counter statement filed
subsequently to the petition for restitution of conjugal rights filed by the
wife were not made to bring home his case that the wife had constituted mental
cruelty. By a catena of decisions, it is well settled law that the mental
cruelty under Section 13(1)(ia) should show that what made it not possible for
the party to live with the other. In other words, mental cruelty must be of such
nature that the parties cannot reasonably be expected to live together. The
situation must be such that the wrong party cannot reasonably be asked to put
up that conduct and continue to live with the other party. It is a matter to be
determined in each case having regard to the facts and circumstances of the
case.
12. In the light of the settled legal position, the question now requires
to be considered is as to
whether the accusations alleged in the petition by the
husband would construe mental cruelty for sustaining the petition under Section
13(1)(ia) of the Hindu Marriage Act for divorce?
As highlighted earlier, it is
absolutely for the husband to substantiate the petition averments to prove the
alleged cruelty. The trial Court, instead of considering whether the husband
has established the cruelty by adducing evidence, proceeded to put up certain
answers elicited from her both in the chief examination and as well as cross
examination and only from such answers, without even having any strong pleading,
the trial Court has wrongly mis-appreciated the case of cruelty. It must be
mentioned that the cruelty cannot be sought to be substantiated by picking up
answers in the cross examination and isolating them, because the answers
elicited in the cross examination has to be read as a whole along with the chief
examination. The same cannot be read in isolation when there is nothing on
record before the trial Court in the petition.
Even assuming that the wife also
had used sounding words causing embarrassment to the in-laws, such occasional
utterances against the sister in law, brother in law and father in law may not
amount to cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage
Act.
Mere austerity of manners or occasional wordy altercations may not amount
to cruelty.
It is pertinent to refer to the judgment of our Division Bench in
P.Manimekalai v. R.Kothandaraman, 2010 (6) CTC 80,
wherein it has been held as
follows:-
"25. Both in her chief examination as well as in her cross examination, the
appellant has admitted that
she has told her sister in law that had she not come
back to the house as thohntl;l (estranged + separated from husband), the problem
would not have been arisen.
It is pertinent to note that the appellant has
stated so even in her cross examination. Perhaps, feeling remorse for saying so,
the appellant has admitted calling the sister in law as thohntl;l.
Here, this
again was sought to be misinterpreted by the trial Court by saying that the
appellant was treating the respondent and in-laws cruelly.
Even assuming that
appellant had used such words, such occasional utterance against sister in law
may not amount to cruelty within the meaning of Section 13(1)(ia).
Mere
austerity of manners or occasional wordy altercations may not amount to mental
cruelty.
In marital relationship, parties must be prepared to subject themselves
to the normal wear and tear of such life.
The trial Court has not analysed the
evidence in the light of the well-settled position."
13. The above observation of the Division Bench that in matrimonial
relationship, the parties must be prepared to subject themselves to the normal
wear and tear of such life and the trial Court has not analysed the evidence in
the light of the well-settled legal position, squarely covers the case of the
appellant herein also.
The learned senior counsel for the respondent-husband
though placed on record various decisions to impress upon the Court that the
decree for divorce can be granted by looking into the conduct of the wife
causing mental cruelty, he has referred to the decision of the Apex Court in
V.Bhagat's case, (1994) 1 SCC 337.
In the said case, the divorce petition was
filed by the husband, an Advocate, on the ground that cruelty and adultery.
The
wife made an averment in the defence that the husband and family members are
lunatics and suffer from mental imbalance.
Under this background, when the
husband was subjected to cross examination on this aspect, the husband amending
the petition sought for divorce on the ground of cruelty.
The Apex Court by
taking note of the allegations made in the pleadings and the questions put in
the cross examination held that they constitute mental cruelty on the husband.
But in the present case, there was no such amendment made by the husband nor
made use of his chance during the long prendency of the matter before the trial
Court to make out his case at least in the counter statement filed in the
subsequent petition filed by the wife for restitution of conjugal rights under
Section 9 of the Hindu Marriage Act.
Even in the said Bhagat's case, the Apex
Court has held that merely because there are allegations and counter
allegations, a decree for dissolution cannot follow.
To accept the case of the
husband, there must be really some extraordinary features to warrant grant of
divorce on the basis of pleadings even without a full trial, but no such
extraordinary features are found.
But in the present case, bald, baseless and
containing trivial allegations, which is nothing but a normal wear and tear that
happens in an ordinary family, has been blown out of proportion for granting the
decree for divorce.
Therefore, this Court is of the considered view that it is
not a fit case for dissolution of marriage of the parties.
Accordingly, the
divorce petition filed by the respondent-husband stands dismissed and the
petition filed by the appellant-wife for restitution of conjugal rights stands
allowed.
For the reasons mentioned above, both the civil miscellaneous appeals
are allowed.
Before parting with the case, it must be mentioned that when this
Court asked the parties
whether the wife is paid with any maintenance, it was
fairly admitted by the learned senior counsel for the respondent-husband that no
maintenance is being paid to the appellant-wife. Therefore, no further finding
is required thereon. No costs.
ss
To
1. The I Additional District Judge
Madurai
Even assuming that the wife also
had used sounding words causing embarrassment to the in-laws, such occasional
utterances against the sister in law, brother in law and father in law may not
amount to cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage
Act.
Mere austerity of manners or occasional wordy altercations may not amount
to cruelty.
P.Manimekalai v. R.Kothandaraman, 2010 (6) CTC 80,
wherein it has been held as
follows:-
"25. Both in her chief examination as well as in her cross examination, the
appellant has admitted that
she has told her sister in law that had she not come
back to the house as thohntl;l (estranged + separated from husband), the problem
would not have been arisen.
It is pertinent to note that the appellant has
stated so even in her cross examination. Perhaps, feeling remorse for saying so,
the appellant has admitted calling the sister in law as thohntl;l.
Here, this
again was sought to be misinterpreted by the trial Court by saying that the
appellant was treating the respondent and in-laws cruelly.
Even assuming that
appellant had used such words, such occasional utterance against sister in law
may not amount to cruelty within the meaning of Section 13(1)(ia).
Mere
austerity of manners or occasional wordy altercations may not amount to mental
cruelty.
In marital relationship, parties must be prepared to subject themselves
to the normal wear and tear of such life.
The trial Court has not analysed the
evidence in the light of the well-settled position."
Even in the said Bhagat's case, the Apex
Court has held that merely because there are allegations and counter
allegations, a decree for dissolution cannot follow.
To accept the case of the
husband, there must be really some extraordinary features to warrant grant of
divorce on the basis of pleadings even without a full trial, but no such
extraordinary features are found.
But in the present case, bald, baseless and
containing trivial allegations, which is nothing but a normal wear and tear that
happens in an ordinary family, has been blown out of proportion for granting the
decree for divorce.
Therefore, this Court is of the considered view that it is
not a fit case for dissolution of marriage of the parties.
Accordingly, the
divorce petition filed by the respondent-husband stands dismissed and the
petition filed by the appellant-wife for restitution of conjugal rights stands
allowed.
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13/03/2013
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
C.M.A.(MD)No.210 of 2012
&
C.M.A.(MD)No.211 of 2012
Mrs.Saraswathi Palaniappan .. Appellant in both C.M.As.
vs
Vinod Kumar Subbiah .. Respondent in both C.M.As.
Memorandum of Grounds of Civil Miscellaneous Appeals under Order XLI of
the Civil Procedure Code read with Section 28 of the Hindu Marriage Act, 1955,
against the order and decretal order dated 25.08.2011 made in H.M.O.P.Nos.1 & 2
of 2011 on the file of the Hon'ble I Additional District Judge, Madurai.
!For Appellant ... Mr.AR.L.Sundaresan
Senior Counsel for
Mrs.AL.Ganthimathi
^For Respondent ... Mr.Gopalakrishna Lakshmana Raju
Senior Counsel for
Mr.R.Venkateswaran
:JUDGMENT
These two civil miscellaneous appeals have been preferred by the
appellant-wife against the judgment and decree of the trial Court granting
divorce by dissolving the marriage filed under Section 13(1)(ia) of the Hindu
Marriage Act and dismissing her application for restitution of conjugal rights
filed under Section 9 of the Hindu Marriage Act.
2. The brief facts leading to the filing of these two appeals are given
as under:-
The marriage between the appellant-wife and the respondent-husband took
place on 28.6.2004 at Kandaramanickam Village, Sivagangai District as per Hindu
rites and customs. The respondent-husband is employed as software engineer in a
company called Epiq Systems in U.S.A., and soon after the marriage, they were
living at Chennai. After obtaining Visa for his wife, the respondent-husband had
taken the appellant-wife to U.S.A., on 9.7.2004 and they were living together in
U.S.A. They made two visits to Chennai, one during the month of October, 2005
and another during the month of June, 2006, when the appellant-wife was three
months pregnant. On 10.6.2006, they picked up quarrel and in the process, it
was alleged that the appellant-wife used abusive language against the
respondent-husband and left for Madurai to her parents house and since then, she
has been living there separately and even after giving birth to a male child on
5.12.2006, she refused to join with the husband. Even during her stay with the
respondent, she used to be lonely and in most of the times she was in
melancholic mood and used to quarrel with the husband every now and then without
any rhyme or reason. Sometimes, she used to scold the husband with filthy
language using even unparliamentary words such as "son of a prostitute" etc.
Moreover, during the office hours, she used to call the husband over phone and
put him to mental agony and torture by quarrelling with him on some imaginary
grounds. While doing so, she used to talk very high about her parental home and
degrade the family members of the respondent- husband. These frequent quarrels
of using abusive language and degrading the family members of the respondent
show that she was not having any affection with the husband and because of her
indifferent attitude and behaviour, the husband was put to intolerable mental
agony and hardship. Therefore, the respondent-husband was compelled to file the
petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955.
It was also further averred in the divorce petition that when the wife was
behaving very rudely and violently, most of the time in the family and sometime
even indirectly threatening him that she would lodge a police complaint against
the respondent and his family members as if they had demanded dowry and all the
efforts for bringing back the wife to the marital home since June, 2006 had not
materialised and the subsequent mediations that took place in front of the
respondent's family members were of no avail, he decided to file the petition
for divorce.
3. A detailed counter affidavit was filed by the appellant-wife admitting
the fact that the parents of both the appellant and respondent, after making
proper arrangements for the marriage, solemnized the marriage between them on
28.6.2004 at Kandaramanickam Village and subsequently, she was taken to U.S.A.,
and they were living together happily and out of happy wedlock, a male child by
name Sanjeev was born at Madurai on 5.12.2006. But after the boy was born, in
spite of repeated requests made to see the newly born son, neither the husband
nor any of the in-laws ever attempted to visit the child at Madurai. However,
the wife came to Chennai during March-April, 2007 and thereafter, they lived
together in the house of the in-laws along with the husband during the said
time. While denying the allegation made by the husband that she was not
affectionate as incorrect, she stated that the husband did not have the benefit
of engaging any servants, as the wife had to do all the home works, such as
cleaning, cooking and housekeeping by herself and in spite of the fact that the
wife was taking full care of the entire family by doing all odd jobs like
cooking, cleaning, keeping the house in order in U.S.A., and also in Chennai,
and in spite of the fact that the husband's family is a big family with more
number of persons, there was no reason or rhyme for deserting the wife when she
came for delivery of the child. Further, it was pleaded that when there was no
problem at all between them, it is only due to a misunderstanding between the
family members of the husband, the wife was completely deserted.
4. During the pendency of the petition for divorce filed by the
respondent-husband, the appellant-wife also filed a petition under Section 9 of
the Hindu Marriage Act seeking restitution of conjugal rights. A detailed
counter affidavit was filed by the respondent-husband denying the averments of
Rs.6,00,000/- given as dowry and in addition, Rs.20,00,000/- worth of diamond,
silver and gold jewels alleged to have been given to the husband as false to the
core. One another aspect to be mentioned is that while the divorce petition
filed under Section 13(1)(ia) of the Hindu Marriage Act before the Principal
Family Court at Chennai, was posted for first hearing on 4.6.2007 for appearance
of the appellant-wife, as she did not appear on that date, the case was
adjourned to 9.6.2007 and even on 9.6.2007, when the wife did not appear, an
exparte order was passed. Subsequently, a petition to set aside the exparte
order was also allowed on 12.6.2007 and thereafter the petition was posted to
10.8.2007. Once again the record shows that the matter was proceeded ex parte.
Again a set aside petition was filed in I.A.No.339 of 2008 on 17.11.2008. The
trial Court by restoring the matter back to file, transferred the matter to the
file of the Family Court at Madurai based on the order in Tr.C.M.P.No.62 of 2010
filed by the wife. One another petition in M.C.No.1 of 2011 was also filed by
the wife seeking for maintenance. All these matters were clubbed together and
finally, the trial Court, after a joint trial, accepting the case of the husband
that the wife has committed cruelty, came to the conclusion that the husband was
entitled for a decree for dissolution of marriage. While disposing the
maintenance application in M.C.No.1 of 2011, the trial Court also passed an
order holding that the wife was entitled for a sum of Rs.25,000/- per month as
maintenance from the husband. The trial Court, however, dismissed the petition
for restitution of conjugal rights filed by the wife for the reasons assigned
for the grant of a decree for dissolution of marriage. Hence, these two
appeals have been filed by the appellant-wife.
5. Mr.AR.L.Sundaresan, learned senior counsel for the appellant-wife
submitted that all the disputes allegedly pleaded in the petitions are only due
to the family members of the respondent-husband and no dispute has been stated
or alleged or proved between the husband and wife. Hence, the decree for
divorce for the disputes within the family members is certainly erroneous,
incorrect and therefore he prayed for setting aside the same. It was also
further pleaded that the trial Court, without considering that there has been a
normal wear and tear in the affairs of running a family, without there being a
proper evidence to show that there has been an injury caused to the marital
relationship between the husband and wife, when there is no pleading or specific
case of cruelty established by the husband against the wife, the trial Court
wrongly held that the wife had cruelly treated the husband. The trial Court has
also failed to apply the legal decision that voicemail and email, which were
taken as corroborative evidence, ought not to have been taken on record without
there being a proper pleading in the petitions before the trial Court to come to
a conclusion that the husband was subjected to cruelty by the wife. It was also
the case of the wife, as pleaded by the learned senior counsel, that when there
was a marriage on 28.6.2004, within ten days from the date of marriage, the wife
was taken by her husband to U.S.A. After living there happily soon after
marriage, they came back to Chennai only in the month of October, 2005 to attend
to some family functions. Once again they went to U.S.A., in November, 2005. It
was also an admitted fact that can be seen on record that in June, 2006, the
wife became pregnant. As she was three months pregnant, she came back to her
parents home at Madurai for delivery. As per the Hindu family customs, in
southern India, generally the first delivery takes place in the wife's parental
home. In deference to the said custom, when the wife was taken for the first
delivery from U.S.A., a boy was also born on 5.12.2006. One another important
fact wrongly overlooked by the trial Court was till the wife came to the
parental home for first delivery from U.S.A., on 6.6.2006, it goes without
saying that whatever wear and tear took place in the matrimonial home between
the husband and wife, all were condoned for the reason that she was taken back
to U.S.A., in the month of November, 2005. Therefore, whatever cause of action
alleged to have taken place prior to November, 2005 cannot be made a foundation
or basis for claiming the decree of divorce, when all these acts and deeds were
condoned by the husband while she was admittedly taken back to U.S.A., in June,
2006. But the trial Court, by going into the old and unfounded allegation that
the wife has committed cruelty against her husband during the year 2005,
erroneously allowed the divorce petition filed by the husband by accepting a
totally new case that the wife has caused cruelty by abusing the father in law
and that the brother in law was also put to a feeling of mental cruelty by the
appellant-wife.
6. Mr.AR.L.Sundaresan, learned senior counsel, assailing the soundness of
the impugned judgment and decree passed by the trial Court granting decree of
divorce against his client, forcibly pointed before this Court that when there
was no ground for cruelty made out by the respondent-husband, the trial Court
ironically, entertaining the allegation of trivial nature, dissolved the
divinely relationship between the husband and wife, just for a mere asking by
the husband. When there were allegations that the father in law, brother in law
and sister in law were also part of the subject matter of cruelty caused by the
appellant-wife, the trial Court, forgetting for the moment that all these
disputes between the husband and wife were only due to the family members of the
husband and no dispute has been stated or alleged to be proved between the
husband and wife, in all fairness, should have dismissed the divorce petition.
But for the sake of satisfying the father in law, brother in law and sister in
law of the wife, illegally granted the divorce. Further, when there was an
application for restitution of conjugal rights filed by the wife under Section 9
of the Hindu Marriage Act, the learned District Judge ought to have seen that
the wife has been ready and willing to live with her husband and therefore the
baseless allegation of cruelty said to have been caused against the real members
of the husband's family, should have been turned down by allowing the
application for restitution of conjugal rights in favour of the wife. But
ironically the trial Court has misdirected itself that a mere dispute among the
in-laws family and trivial issues between the husband and wife can be taken as a
tall ground for divorce. If this approach is adopted, no matrimonial family
would survive and as a result, it will be very difficult to save and preserve
the family institution. In support of his submissions, he has also relied upon
some of the judgments of this Court as well as the Apex Court to contend that
the approach of the trial Court is erroneous and cannot be endorsed with, for
the reason that while considering the allegations, either made by the wife or
husband, regard must be shown to the context in which they were made. When there
cannot be any hard and fast rule in interpreting the term 'cruelty', it is the
bounded duty of the trial Court to properly and carefully see that the term
'cruelty' consists of unwarranted and unjustifiable conduct on the part of the
opposing spouse to 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. When it must be
judged on the facts of each case having regard to the surrounding circumstances,
the trial Court has completely gone wrong in entertaining the totally baseless
allegation that the wife was making unwanted allegation against the father in
law, brother in law and sister in law when there was no such allegation against
the husband. Therefore, the cruelty as alleged by the husband can never be
seen. But unfortunately, the trial Court, without there being a situation
compelling the husband to file a petition for dissolution of marriage, accepting
a small wear and tear that usually takes place in a family, wrongly dissolved
the solemnized marriage between the appellant and respondent.
7. One another Division Bench judgment was also pressed into service by
the learned senior counsel to contend that mere bickerings in marital life
cannot be a ground for cruelty as, in order to make out cruelty, the intensity
and gravity of one's action will have to be seen. Further, a sustained course of
abusive and humiliating treatment rendering the life of spouse may be one of the
factors to decide the mental cruelty. The mere trivial irritations, quarrels,
normal wear and tear of the married life would not amount to mental cruelty.
These aspects have been completely ignored by the trial Court. Now that the
appellant-wife, while living happily with her respondent-husband in U.S.A., has
consummated the marriage, that shows that she was happily living with her
husband, resultantly, a boy was also born on 5.12.2006. Without considering
any of these vital aspects, dismissing the petition filed under Section 9 of the
Hindu Marriage Act for restitution of conjugal rights, the trial Court has
forced upon the wife with the decree of divorce. Therefore, the learned senior
counsel strenuously contended that the approach of the trial Court granting
divorce by giving serious importance to mere trivial irritations and normal wear
and tear of the married life that would not legally be a ground for mental
cruelty, should be forthwith set aside and the petition for restitution of
conjugal rights should be allowed.
8. Per contra, Mr.Gopalakrishna Lakshmana Raju, learned senior counsel for
the respondent-husband heavily supported the reasons assigned by the trial Court
for the grant of decree for dissolution of marriage, for the reason that when
the dissolution of marriage was sought by the respondent-husband on the
allegation that the appellant-wife all the time was causing mental cruelty not
only to the husband, but also damaging the reputation, peaceful mind of the
father in law, mother in law, sister in law and even brother in law, i.e. almost
all the family members of the husband, the trial Court, by going into the minute
details that were produced before the trial Court, found that the wife was a
real culprit for having damaged the matrimonial relationship, particularly by
using unparliamentary language against her own father in law abusing him as son
of a prostitute. The trial Court, in order to find out the truth of this
allegation, went into the other material evidence as to the notice issued by the
U.S. Department to the respondent-husband stating that the wife has made a
complaint against him and in view of the complaint, when the police department
in U.S.A., has severely warned the husband of the appellant that he would not be
allowed to continue his business in diamond and other voicemail and email sent
by the wife to her husband as corroborative evidence, rightly came to the
conclusion that it is a fit case for grant of decree of dissolution of marriage.
Further, the trial Court, after considering the entire evidence oral and
documentary produced by both sides that there was no chance of their coming
together again, finally reached a conclusion that when the wife was in the
witness box before the trial Court, she has made an allegation against her own
father in law that her father in law attempted to catch her hands and thereby
made direct assault on her modesty, and after considering that allegation to be
baseless, rightly treated the wife as a party who caused unbearable cruelty as
defined under Section 13(1)(ia) of the Hindu Marriage Act. In view of that,
when the decree for dissolution of marriage was passed by also granting a sum of
Rs.25,000/- per month as maintenance to the wife, there can never be an argument
by the wife alleging unreasonable standard adopted by the trial Court in
granting the decree for dissolution of marriage. Further, when the trial Court
on the cumulative effect of evidence brought on record was fully satisfied with
the case of the husband who filed a petition for divorce that he has established
a sustained course of abusive and humiliating treatment and calculated torture
on the part of the wife to make the husband miserable and in fact when the
husband, while living with the appellant in U.S.A., felt humiliated both in
private and public life, it is extremely difficult to tell the husband to resume
the matrimonial life that was not in existence for about six long years.
Therefore, the decree for dissolution of marriage granted by the trial Court is
to be affirmed by this Court by dismissing the appeals filed by the wife, as
there has been no merit in the appeals nor any error or infirmity in the
impugned judgment passed by the trial Court. In support of his submissions, the
learned senior counsel also relied upon various judgments of different High
Courts and Supreme Court as well to support his case that it is the duty of wife
to live with her husband without causing cruelty to any member of the family.
Relying upon the Division Bench judgment of Allahabad High Court in Vimala Devi
v. Ram Babu, II (2004) DMC 639 (DB), he contended that it is the cumulative
effect of all the acts and conduct which has to be taken into consideration for
finding out whether the behaviour of the erring spouse falls within the ambit of
cruelty as defined under Section 13(1)(ia) of the Hindu Marriage Act. He
further pleaded that what may amount to cruelty in one case may not amount to
cruelty in another case and therefore it is the duty of the Court to consider
the social status, the environment, the education, the mental and physical
conditions and the susceptibilities of the innocent spouse as also the custom
and the manners of the parties. When cruelty may consist of a single act or
conduct of the respondent, the Court has to apply in each and every case a
different yardstick. Finally he argued that it is the duty of the wife to live
with her husband, because unless the husband and wife live together, there is
really no marriage. But in the present case, he pleaded, when she came for
first delivery of her son, she did not think of going back. Therefore, when the
wife has miserably deserted the matrimonial home, she cannot ask for
restitution of conjugal rights that too after a long gap of seven years in
addition to having passed cruelty that has been found in favour of the husband.
9. One another judgment was also relied upon in the case of Rajan Vasant
Revankar v. Mrs.Shobha Rajan Revankar, AIR 1995 Bombay 246 to support his case
that wild, reckless and scandalous allegation by wife against the husband's
mother, his two married sisters and brother in laws would amount to cruelty.
Further it was argued that even the letters written by the wife subsequent to
the filing of petition reiterating the wild and baseless allegations made by her
also would support the case of the husband. Yet another decision of the Andhra
Pradesh High Court in Jayakrishna Panigrahi v. Smt.Surekha Panigrahi, AIR 1996
A.P. 19 was relied upon to impress upon the Court that it would be a fit case to
dissolve the marriage based on the conduct of wife subsequent to the filing of
petition causing mental cruelty to the husband, if the trial Court finally
agreed with the case of the husband that the wife has really caused mental
cruelty to the husband during the pendency of the case.
10. Finally, the judgment of the Apex Court in V.Bhagat v. D.Bhagat
(Mrs.), (1994) 1 SCC 337 was also pressed into service once again to impress
upon the Court, whether the divorce can be granted merely on the basis of
pleadings and other admitted materials without a full trial. In the said case,
he pleaded that when the Supreme Court allowed the marriage to be dissolved on
the ground of mental cruelty by accepting the irretrievable break down of
marriage and when the same facts and circumstances are involved and duly
considered by the trial Court, particularly going into the specific allegation
made by the husband with supportive documents that a wife making wild and
baseless allegation against her father in law that he had attempted to outrage
her modesty was found to be a mental cruelty, as contemplated under Section
13(1)(ia) of the Hindu Marriage Act, the same regard shown by the trial Court
for accepting the case of the husband, may also be had by this Court while
considering the correctness of the judgment passed by the trial Court. In view
of the above arguments, he prayed for no interference with the judgment and
decree of the trial Court.
11. Heard the learned counsel for the parties. The marriage between the
husband and wife in this case took place on 28.6.2004 at Kandaramanickam village
in Sivaganga District as per the Hindu rites and customs. The respondent-husband
was employed as software engineer in a company called Epiq Systems in U.S.A. The
appellant-wife also, as could be seen from the records, is coming from a
respectable family. After the marriage was solemnized between them, the wife was
taken to Chennai and after obtaining Visa, she was taken to U.S.A., on 9.7.2004.
Since then they had been living together in U.S.A. Even though the couple
visited Chennai during October, 2005 and June, 2006, as she was three months
pregnant, it was averred in the petition for divorce filed under Section
13(1)(ia) of the Hindu Marriage Act, that on 10.6.2006, the appellant was said
to have picked up a quarrel with her husband by using abusive language and as a
result, she left for Madurai to her parental home and thereafter she did not
visit. On 5.12.2006 she had given birth to a male child by name Sanjeev. A
careful reading of the petition would show that the foundation for the husband
to approach the trial Court for divorce was that the appellant used to scold her
husband with filthy language and using unparliamentary words such as son of a
prostitute etc., and during his office hours, she used to call him over phone
and put him to mental agony and torture on some imaginary ground or the other.
It was also pleaded that whenever there was a quarrel, the wife used to threaten
the husband that she would commit suicide and throw the blame on him and on the
family members of the husband. In view of these reasons, when there was a
mediation before the common family elder, even that mediation could not
materialise, as a result, the petition claims that the husband has filed the
petition for divorce. Even the counter affidavit filed by the husband to the
petition seeking for restitution of conjugal rights filed under Section 9 of the
Hindu Marriage Act is also bereft of any substance warranting grant of decree
for dissolution of marriage. All the allegations pleaded by the learned senior
counsel for the respondent-husband throws more light for this Court to see that
only after filing the petition, the respondent-husband was able to produce some
copy of voicemail and email as corroborative evidence to come to the conclusion
that the husband was treated cruelly. No doubt in matrimonial matters seeking
for grant of divorce on the ground of cruelty allegedly made by one's spouse
against another, the Family Court need not strictly adhere to the hard and fast
rule in entertaining evidence oral or documentary or in respect of examining the
parties. For, the primary motto of the Court is to go slow while considering the
petition for dissolution of solemnized marriage that is always considered that
all marriages are made in heaven. Therefore the matrimonial matters are matters
of delicate, human and mental relationship. It always demands mutual respect,
mutual trust, regard, respect, love and affection. But when the husband rushed
before the trial Court by filing a petition for divorce raising allegations that
his wife has abused him by using unparliamentary words and made unbearable
allegations against his father, no such allegations or averments can be seen in
the pleadings filed before trial court except a usual wear and tear that
ordinarily takes place at home. Further, when the appellant-wife, during the
pendency of divorce petition, filed a petition for restitution of conjugal
rights under Section 9 of the Hindu Marriage Act, opposing the said prayer, the
husband could have in fact brought forth new facts like what was mentioned about
his father that the wife had abused not only him, but also his father, mother,
sister and brother, but no such allegation whatsoever as argued before me by the
learned senior counsel for the respondent-husband was ever made at least in one
line somewhere in the counter filed to the application filed under Section 9 of
the Act for restitution. To say the least, no allegation was made either in the
main petition or in the subsequent counter affidavit filed by the husband to say
that the appellant-wife had abused her father in law on the particular date or
month or place. Merely relying upon the copies of voicemail and email said to
have been sent by the wife, a case was sought to be made before the trial Court
that even during the pendency of the divorce petition, the wife continuously
went to harass and give physical and mental cruelty to all the family members of
the respondent-husband. Even though these were perused by the trial Court as
corroborative evidence, in my considered view, the trial Court has gone in haste
and hurriedly accepting these allegations, erroneously granted the decree for
dissolution of marriage in favour of the respondent-husband. Therefore, it must
be mentioned that in the cross examination, the wife was properly questioned by
the husband's counsel before the trial Court. While denying the suggestions to
all the questions, it was deposed that she never uttered any such
unparliamentary words against her father in law or other family members. When
this being the case of both parties, I fail to understand why in such background
the trial Court has not considered that important circumstance, particularly
when the husband, while filing the petition under Section 13(1)(ia) of the Hindu
Marriage Act, has completely forgotten to mention all these wild, reckless and
baseless allegations that the wife had assaulted the husband and his father, an
old and respectable person in the family. Again this Court fail to see why these
averments have been completely forgotten to be made as part of the pleadings not
only in the petition but also in the counter affidavit subsequently filed to the
petition for restitution of conjugal rights by the wife. Therefore, it is not
open to the learned senior counsel for the respondent to argue the general
principles of law that in all matrimonial matters, the trial Court need not look
into the pleadings, but take a look into the subsequent circumstances which has
really warranted a situation for granting the decree for dissolution of
marriage. Indeed, even if that argument is accepted, still it goes against the
case of the husband. The reason being that the divorce petition was filed way
back in the year 2007 alleging that the wife had caused all the mental and
physical cruelty to the husband and his father and mother, when she was staying
in U.S.A., during the year 2005. Even if it is presumed that the husband has
failed to mention all the truthful incidents that took place in U.S.A., it is
not known why he has again committed the very same serious mistake in not
pleading in his averments while filing the counter affidavit to the petition for
restitution of conjugal rights that was filed in the year 2008. Therefore, the
accusations and character assassinations in his counter statement filed
subsequently to the petition for restitution of conjugal rights filed by the
wife were not made to bring home his case that the wife had constituted mental
cruelty. By a catena of decisions, it is well settled law that the mental
cruelty under Section 13(1)(ia) should show that what made it not possible for
the party to live with the other. In other words, mental cruelty must be of such
nature that the parties cannot reasonably be expected to live together. The
situation must be such that the wrong party cannot reasonably be asked to put
up that conduct and continue to live with the other party. It is a matter to be
determined in each case having regard to the facts and circumstances of the
case.
12. In the light of the settled legal position, the question now requires
to be considered is as to
whether the accusations alleged in the petition by the
husband would construe mental cruelty for sustaining the petition under Section
13(1)(ia) of the Hindu Marriage Act for divorce?
As highlighted earlier, it is
absolutely for the husband to substantiate the petition averments to prove the
alleged cruelty. The trial Court, instead of considering whether the husband
has established the cruelty by adducing evidence, proceeded to put up certain
answers elicited from her both in the chief examination and as well as cross
examination and only from such answers, without even having any strong pleading,
the trial Court has wrongly mis-appreciated the case of cruelty. It must be
mentioned that the cruelty cannot be sought to be substantiated by picking up
answers in the cross examination and isolating them, because the answers
elicited in the cross examination has to be read as a whole along with the chief
examination. The same cannot be read in isolation when there is nothing on
record before the trial Court in the petition.
Even assuming that the wife also
had used sounding words causing embarrassment to the in-laws, such occasional
utterances against the sister in law, brother in law and father in law may not
amount to cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage
Act.
Mere austerity of manners or occasional wordy altercations may not amount
to cruelty.
It is pertinent to refer to the judgment of our Division Bench in
P.Manimekalai v. R.Kothandaraman, 2010 (6) CTC 80,
wherein it has been held as
follows:-
"25. Both in her chief examination as well as in her cross examination, the
appellant has admitted that
she has told her sister in law that had she not come
back to the house as thohntl;l (estranged + separated from husband), the problem
would not have been arisen.
It is pertinent to note that the appellant has
stated so even in her cross examination. Perhaps, feeling remorse for saying so,
the appellant has admitted calling the sister in law as thohntl;l.
Here, this
again was sought to be misinterpreted by the trial Court by saying that the
appellant was treating the respondent and in-laws cruelly.
Even assuming that
appellant had used such words, such occasional utterance against sister in law
may not amount to cruelty within the meaning of Section 13(1)(ia).
Mere
austerity of manners or occasional wordy altercations may not amount to mental
cruelty.
In marital relationship, parties must be prepared to subject themselves
to the normal wear and tear of such life.
The trial Court has not analysed the
evidence in the light of the well-settled position."
13. The above observation of the Division Bench that in matrimonial
relationship, the parties must be prepared to subject themselves to the normal
wear and tear of such life and the trial Court has not analysed the evidence in
the light of the well-settled legal position, squarely covers the case of the
appellant herein also.
The learned senior counsel for the respondent-husband
though placed on record various decisions to impress upon the Court that the
decree for divorce can be granted by looking into the conduct of the wife
causing mental cruelty, he has referred to the decision of the Apex Court in
V.Bhagat's case, (1994) 1 SCC 337.
In the said case, the divorce petition was
filed by the husband, an Advocate, on the ground that cruelty and adultery.
The
wife made an averment in the defence that the husband and family members are
lunatics and suffer from mental imbalance.
Under this background, when the
husband was subjected to cross examination on this aspect, the husband amending
the petition sought for divorce on the ground of cruelty.
The Apex Court by
taking note of the allegations made in the pleadings and the questions put in
the cross examination held that they constitute mental cruelty on the husband.
But in the present case, there was no such amendment made by the husband nor
made use of his chance during the long prendency of the matter before the trial
Court to make out his case at least in the counter statement filed in the
subsequent petition filed by the wife for restitution of conjugal rights under
Section 9 of the Hindu Marriage Act.
Even in the said Bhagat's case, the Apex
Court has held that merely because there are allegations and counter
allegations, a decree for dissolution cannot follow.
To accept the case of the
husband, there must be really some extraordinary features to warrant grant of
divorce on the basis of pleadings even without a full trial, but no such
extraordinary features are found.
But in the present case, bald, baseless and
containing trivial allegations, which is nothing but a normal wear and tear that
happens in an ordinary family, has been blown out of proportion for granting the
decree for divorce.
Therefore, this Court is of the considered view that it is
not a fit case for dissolution of marriage of the parties.
Accordingly, the
divorce petition filed by the respondent-husband stands dismissed and the
petition filed by the appellant-wife for restitution of conjugal rights stands
allowed.
For the reasons mentioned above, both the civil miscellaneous appeals
are allowed.
Before parting with the case, it must be mentioned that when this
Court asked the parties
whether the wife is paid with any maintenance, it was
fairly admitted by the learned senior counsel for the respondent-husband that no
maintenance is being paid to the appellant-wife. Therefore, no further finding
is required thereon. No costs.
ss
To
1. The I Additional District Judge
Madurai
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