IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 4.08.2010 CORAM: THE HON'BLE MRS.JUSTICE R.BANUMATHI AND THE HON'BLE MR.JUSTICE B.RAJENDRAN C.M.A.NO.2034 of 2004 Mrs.P.Manimekalai .... Appellant / Respondent Vs. R.Kothandaraman .... Respondent/ Petitioner Prayer: Civil Miscellaneous Appeal is filed under Section 19 of Family Courts Act against the Judgment and decree dated 21.4.2004 made in O.P.No.73 of 2004 on the file of I Additional Judge, Family Court, Chennai. For Appellant : Mr.A.Thamizharasan For Respondent : Mr.S.Vijayanand for Mr.A.Muthukumar JUDGMENT R.BANUMATHI,J. This Appeal arises out of the Judgment of the Family Court dated 21.4.2004 made in O.P.No.73 of 2004 on the file of I Additional family Court, Chennai allowing the Petition filed by the Respondent/husband under Sections 13(1-a) and (1-b) of Hindu Marriage Act on the grounds of cruelty and desertion. The unsuccessful wife is the Appellant. 2. The marriage between Appellant and Respondent was solemnised on 12.5.1986 and a daughter was born on 15.4.1989. After the marriage, the spouses were living in Bangalore. The averments in the Petition filed by the Respondent/husband are as under: The Appellant used to pick up quarrel with Respondent's aged mother and sister and the Appellant frequently was threatening that she would file dowry complaint. The Respondent further averred that the Appellant often threatened to commit suicide and thus caused mental agony to the Respondent. Due to differences, the Appellant left the matrimonial house in 1991. The Respondent filed Petition for divorce on the file of Family Court, Bangalore in O.P.No.203 of 1992 under Section 13(1)(1a) of Hindu Marriage Act. Simultaneously the Appellant filed M.C.No.84 of 1992 on the file of Family Court, Chennai claiming maintenance. In the said M.C.No.84 of 1992, an https://hcservices.ecourts.gov.in/hcservices/ order was passed for maintenance of Rs.600/- per month. It was thereafter the Respondent filed a petition for divorce. Thereafter they reconciled and the Respondent/husband has withdrawn the divorce petition. The Appellant is said to have rejoined her husband in May 1994 and lived with him for six months. The Respondent further averred that during those six months, the Appellant has been threatening to commit suicide by pouring kerosine, which caused mental agony to the Respondent. According to the Respondent, the Appellant left the matrimonial house in October 1994 and thereafter she has not rejoined the Respondent. Stating that the conduct of the Appellant has caused mental agony and that she has intentionally deserted the matrimonial house, the Respondent filed the Petition for divorce on the grounds of cruelty and desertion. 3. The Appellant resisted the Petition by filing counter affidavit contending that she was treated very badly by the Respondent and his mother and sister and that she was compelled to leave the matrimonial house as they were about to pour kerosine on her. The Appellant further averred that she was treated cruelly by mother-in-law and sister-in-law. 4. According to the Appellant, she got her maintenance amount enhanced and at that stage the Respondent has filed second divorce petition as a counter blast to the maintenance claim of the Appellant. Denying the averments in the Petition, the Appellant contended that the Respondent and her in-laws have been treating the Appellant cruelly and that she was driven out of the matrimonial house. Stating that the averments in the petition as to cruelty and desertion are vague and full of contradictions, the Appellant prayed for dismissal of the Petition. 5. Before the Family Court, the Respondent examined himself as P.W.1 and Appellant examined herself as R.W.1. Her father – P.M.Palani was examined as R.W.2. The marriage invitation was marked as Ex.P.1. 6. Upon consideration of oral and documentary evidence, the learned judge of Family Court held that the Appellant was unnecessarily picking up quarrel with the Respondent and in-laws and thereby causing agony and cruelty to the Respondent. Referring to certain answers of the Appellant, both in chief examination and cross examination, the Family Court held that the allegations made by the Respondent as to the illicit contacts appears to be probable. The Trial Court faulted the Appellant for not taking steps for restitution of conjugal rights and that she was interested only in filing maintenance case and collecting maintenance from the Respondent. The trial Court observing that the Appellant was not interested in cooking for the family and that she has intentionally deserted the matrimonial house, dissolved the marriage, both on the grounds of cruelty and desertion. https://hcservices.ecourts.gov.in/hcservices/ 7. Learned counsel for the Appellant contended that the trial Court totally misconstrued the evidence and the trial Court erred in faulting the Appellant for not taking steps for restitution of conjugal rights. It was further submitted that the trial Court grossly erred in taking a prejudicial view against the Appellant on assumption and presumption without any basis for proof of adulterous life of the Appellant with her brother-in-law. It was further contended that the trial Court did not properly appreciate the evidence that the Respondent has taken an indifferent stand to the cruelty meted out to the Appellant by his sister and mother-in-law. 8. Reiterating the findings of trial Court, learned counsel for the Respondent submitted that if really the Appellant was interested in re-joining her husband, she ought to have filed Petition for restitution of conjugal rights, but she has filed petition only for maintenance. It was further submitted that no complaint was made by the wife to the police as to the alleged ill-treatment and absolutely there were no justifiable grounds for leaving the matrimonial house and the trial Court rightly granted divorce on the grounds of cruelty and desertion. 9. Upon consideration of the submissions, judgment of trial Court and material on record, the following points arise for consideration in this Appeal. "1. Whether the findings of the trial Court that the conduct of the Appellant amounted to mental cruelty to the Respondent is based upon evidence and whether those findings are sustainable? 2. Whether the ingredients of 13(1) (1b) of Hindu Marriage Act are proved by the Respondent and whether the trial Court was right in granting divorce on the ground of desertion?" 10. Point Nos.1 and 2:- The marriage between the Appellant and the Respondent was solemnised on 12.5.1986 and spouses were living in Bangalore and a female child was born out of their lawful wedlock on 15.4.1989 are not in dispute. In the matrimonial house at Bangalore, along with Respondent and Appellant, mother of Respondent was living with them. That apart, sister of Respondent, who was estranged from her husband and also the brother-in-law of Appellant, who got divorce from his wife, were also living with them. Due to differences, earlier in 1991, the Appellant left the matrimonial house and she filed M.C.No.84 of 1992 for maintenance. The Family Court, Chennai ordered maintenance of Rs.600/- per month. The Respondent filed O.P.No.203 of 1992 seeking for dissolution of marriage. The parties have reconciled and the Respondent had withdrawn the divorce petition – O.P.No.203 of 1992. The Appellant re-joined her husband in May 1994. After six months, she left the matrimonial house. The Respondent filed O.P.No.852 of 1994 before the Family Court, Bangalore for divorce and on the orders of the Supreme Court, O.P.No.852 of 1994 was transferred to Family Court, https://hcservices.ecourts.gov.in/hcservices/ Chennai and the same was dismissed. The Appellant filed M.C.No.1034 of 1994 for recovery of arrears of maintenance. 11. The grievance of Respondent is that while the Appellant was living in the matrimonial house, she was abusing the mother-in-law and sister-in-law and frequently threatening to file complaint before the police for dowry harassment. The Respondent has further averred that the Appellant was threatening to commit suicide and thereby causing mental agony to the Respondent. The evidence of the Respondent reads as under: "me;j tPl;oy; thH;e;jnghJk; vjph;kDjhuh; kz;bzz;bza; Cw;wp jw;bfhiy bra;J bfhs;ntd;. ehd; brhy;tij nfl;ftpy;iy vd;why; vd;W brhy;yp vd;id kpul;o te;jhh;/////////// vd;Dld; rz;il nghl;Lf;bfhz;L vjph;kDjhuh; mtuJ jhahh; tPl;Lf;F brd;W tpLthh;/////////////// 6 khj fhyk; vd;Dld; nrh;e;J thH;e;j nghJ vjph;kDjhuh; kz;bzz;bza; Cw;wp jw;bfhiy br;a;J bfhs;sg;nghtjhf kpul;o te;jhh;/ " 12. The expression ‘cruelty’ has not been defined in the Act. Cruelty can be physical or mental. Cruelty, which is a ground for dissolution of marriage, is defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger that it will be difficult to live with the other spouse. The question of mental cruelty has to be considered in the light of the background, status, education and other environment of the spouses. 13. The expression ‘cruelty’ has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. (See Shobha Rani v. Madhukar Reddi, 1988 (1) SCC 105) 14. Holding that to constitute cruelty, the conduct complained of should be "grave and weighty" and it must be something more serious than "ordinary wear and tear of married life", in https://hcservices.ecourts.gov.in/hcservices/ JAYACHANDRA VS. ANNEL KAUR ((2005) 2 SCC 22), the Supreme Court has held as under: "13. The court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse’s conduct have to be borne in mind before disposing of the petition for divorce. However insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non- violent. 14. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counterproductive to the institution of marriage. The courts do not have to deal with ideal husbands and ideal wives. It has to deal with a particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court. [See N.G. Dastane (Dr.) v. S. Dastane6.] ((1975) 2 SCC 326 : AIR 1975 SC 1534" 15. Elaborately considering the conduct of parties in matrimonial matters and that the conduct complained of should be grave and weighty, in NAVEEN KOHLI VS. NEELU KOHLI ((2006) 4 SCC 558 = 2006(2) Supreme 627), the Supreme Court has observed as under: "36. The Court had an occasion to examine the pre-1976 Amendment position in N.G. Dastane v. S. Dastane ((1975) 2 SCC 326: AIR 1975 SC 1534). The Court noted that “The enquiry has to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the Respondent”. .... https://hcservices.ecourts.gov.in/hcservices/ 47. In the case of Sobha Rani vs. Madhukar Reddi reported in (1988) 1 SCC 105, this Court had an occasion to examine the concept of cruelty. The word 'cruelty" has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i)(a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill- treatment. 50. In V. Bhagat v. D. Bhagat, 1994(1) SCC 337, this Court had occasion to examine the concept of “mental cruelty”. This Court observed as under: “16. Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is https://hcservices.ecourts.gov.in/hcservices/ a case of accusations and allegations, regard must also be had to the context in which they were made.” ....... 54. This Court in Gananath Pattnaik v. State of Orissa, 2002 (2) SCC 619 observed as under: “7. The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. ‘Cruelty’ for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case.” 55. This Court in Parveen Mehta v. Inderjit Mehta, 2002 (5) SCC 706, defined cruelty as under: “21. Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other...” 16. Again, in Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511, the Supreme Court elaborately considered the 'cruelty' and summarised the principles as under: “101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of ‘mental cruelty’. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive: https://hcservices.ecourts.gov.in/hcservices/ (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. https://hcservices.ecourts.gov.in/hcservices/ (xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” 17. In the light of the above well settled position, it is to be determined whether the Respondent has proved the cruelty giving rise to reasonable apprehension in his mind that it would be dangerous for him to live with the Appellant. Even at the outset, we are constrained to point out the perverse approach adopted by the trial Court in the appreciation of evidence. The trial Court virtually accepted the evidence of P.W.1. The trial Court has not proceeded to analyse the evidence of P.W.1 in the light of conduct of the parties and weighing the preponderance of probabilities. The trial Court ignored the well settled position that normally the burden lies upon the Petitioner to establish his or her plea that the other spouse has meted cruelty to the Petitioner and that the evidence has to be analysed by weighing the various probabilities in the light of the conduct of the parties. 18. The trial Court adopted an erroneous approach by picking out answers from the evidence of Appellant/R.W.1 and thereby drawing inference in favour of the Respondent. We may briefly refer to the evidence of Appellant/R.W.1. In her evidence, R.W.1 has clearly stated that whenever the Respondent used to go out, she has been staying with her mother-in-law and sister-in-law and both of them have been treating her cruelly. R.W.1 has further stated that whenever the Respondent was not there in the house, she was not given food and she was not treated properly. The relevant portion of the evidence of Appellant/R.W.1 reads as under: "kDjhuh; 6 khjfhyk; ntiy tpc&akhf btsp Ch;fSf;Fr brd;wpUe;jnghJ vdf;F rhg;ghL kDjhuhpd; jhahh; bfhLf;fkhl;lhh;/////" 19. R.W.1 has further stated that when her mother-in-law scolded and ill-treated her and whenever her brother-in-law had https://hcservices.ecourts.gov.in/hcservices/ spoken in support of her, the mother-in-law used to tease the Appellant by passing insinuation that she ought to have been born as "Panchali (married woman having contacts with brothers of the husband). The relevant portion in the evidence of Appellant (R.W.1) reads as under: "vd;id mof;Fk;nghJ kDjhuhpd; jk;gp Vd; ,e;jg;bgz;iz bfhLikg;gL;jJfpwPh;fs; vd;W nfl;ghh........ vdf;F vd; fzthpd; jk;gp kw;Wk; rpyh; vdf;F Mjuthf ngrpajhy; kDjhuhpd; jhahh;