IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.02.2010 CORAM THE HONOURABLE MRS. JUSTICE R.BANUMATHI AND THE HONOURABLE MR. JUSTICE M.M.SUNDRESH C.M.A.NO.3352 OF 2004 S.Valli ..Appellant/Respondent versus N.Rajendran ..Respondent/Petitioner Civil Miscellaneous Appeal filed under Section 19 of Family Courts Act, against the judgment in O.P.No.326 of 2001 dated 23.07.2004 on the file of the I Additional Family Court, Madras and granting divorce on the ground of cruelty under Section 13(1)(ia) of Hindu Marriage Act, 1955 and set aside the judgment. For Appellant : M/s.D.Nagasaila for M/s.S.Tamizharasi For Respondent : M/s.Sheila Jayaprakash J U D G M E N T M.M.SUNDRESH, J This appeal has been filed by the wife challenging the decree granted on the file of I Additional Family Court, for divorce in favour of the husband under Section 13(1) (ia) of the Hindu Marriage Act, 1955. 2.The brief facts of the case in a nutshell are as follows: i.The appellant and the respondent are wife and husband. The marriage was solemnised as per the Hindu Rites and Custom on 29.08.1999 at Ananda Kalyana Mandapam, Chrompet, Chennai. The marriage was an arranged marriage between the parties. Prior to the marriage between the appellant and the respondent, the marriage between the appellant's brother and the respondent's sister was also solemnised on 24.05.1999. After the marriage the appellant became pregnant and went to her parents home. https://hcservices.ecourts.gov.in/hcservices/ ii.Thereafter a male child was born between the parties on 29.08.2000. Alleging that the appellant has left the matrimonial home on her own will and thereafter refused to come back from her parental home, the respondent filed the petition for divorce under Section 13 (1) (ia) of the Hindu Marriages Act, 1955 on the ground of cruelty which was caused by the desertion of the appellant in view of her objections about the presence of her sister-in-law in her matrimonial home. iii.It is the case of the respondent who was the petitioner in O.P.No.326 of 2001 which was filed for divorce on the ground of mental cruelty that the appellant had a disliking for the respondent's sister. It is further stated that the appellant was instrumental for the problems of the petitioner's sister. The appellant used to go to her parents house situated in the same city even without informing the respondent. When the respondent questioned the appellant she used to threaten him stating that she would commit suicide and implicate him and his parents. iv.It is further stated that on 03.01.2000 the respondent's sister came to his house, since she was ill-treated by the brother of the appellant and her family. On 18.01.2000, the appellant picked up a quarrel with the respondent and took her belongings with her. Thereafter she did not visit the matrimonial home and she was eight weeks pregnant at that point of time. A male child was born on 29.08.2000. The respondent visited the appellant at the hospital but he was not treated well. Neither the appellant nor his family members were invited for the ceremonies conducted on the first year of the child. The above said actions of the appellant would amount to mental cruelty and hence he has filed the petition for divorce. v.A counter affidavit and written submissions were filed on behalf of the appellant stating that she never left her matrimonial home on her own but she was brought to her parents house by her father-in-law for delivering the child. It is not true to state that she created trouble for sister-in-law and if that is the case she would not have married the respondent. Therefore there was no misunderstanding between them. The present petition was filed in view of the petition filed by the sister of the respondent in O.P.No.337 of 2001. She never went to her parents home on her own accord and she only went to the said home on 13.09.1999 during Vinayagar Chathurthi, on 25.09.1999 with her father-in-law to see her sister-in-law, on 03.10.1999 with her husband while she was pregnant for taking rest and 06.11.1999 for Deepavali festival. In fact during the absence of the respondent his mother once locked the door and refused to allow her inside. The issue was kept quite at the request of the respondent. The appellant has never quarrelled with the respondent. The respondent has never visited the appellant and the child after child birth. https://hcservices.ecourts.gov.in/hcservices/ vi.It is further stated that only on 19.01.2000 she went to her parents home, since she was suffering from morning sickness to take care of her health. Only on her in-laws she was taken to her parents home by her brother with consent. She never picked up any quarrel on 19.01.2000 and took her belongings. It is nothing but natural for a lady suffering from morning sickness due to the early stage of pregnancy to go to her parents home situated in the same city for taking rest. The appellant was not at all responsible for the problems faced by the respondent's sister and the appellant's brother. She never threatened to commit any suicide as alleged in the petition. vii.In the written arguments it has been stated that the appellant has always been ready and willing to join and live with the respondent. The petition for divorce has been filed in view of the strained relationship between the sister-in-law and the brother of the appellant. It is the respondent who has refused to take the appellant and the appellant has been waiting for the respondent to take her back into the matrimonial home with the male child. It was also prayed that inasmuch as the appellant is always ready and willing suitable orders will be passed directing the respondent to take her back into the matrimonial home. viii.Before the Trial Court the respondent has examined himself as PW-1 and the appellant has examined herself as RW-1. Two documents have been marked in Ex.A-1 to A-2 by the respondent. Ex.A-1 is the Marriage Invitation dated 29.08.1999 and Ex.A-2 is the Joint Account standing in the name of the parties in the Indian Bank Branch. The Court below after the consideration of the materials available on record has granted a decree for divorce by holding that mental cruelty caused by the appellant has been proved as against the respondent. Challenging the said judgment and decree of the Court below, the appellant has filed the present appeal. 3.PW-1 who is the respondent herein in his evidence has stated that there has been a problem between his sister and brother- in-law and there is a talk of settlement between the parties. In view of the said dispute his sister came to his house and stayed with him which was objected to by the appellant as a result of the same she went to her parental home on her own and she also made a threat to commit suicide. His sister came to his house on 03.01.2000 and on 18.01.2000 the appellant left the matrimonial home on the ground of health. She was eight weeks pregnant at that point of time and child was born on 29.08.2000 which was not informed. The respondent went to see the child on his own and thereafter he was not allowed to see the child and therefore he did not go to see her. From 18.01.2000 the respondent has not joined the appellant. Since the respondent threatened the appellant by stating that she would commit suicide, refused to see the child and also living separately from 18.01.2000 a decree for divorce is to be granted on the ground of mental cruelty. https://hcservices.ecourts.gov.in/hcservices/ 4.In his cross-examination he has stated that the appellant left on 18.01.2000 after quarrelling with him in view of the presence of his sister. It is further stated that he saw the appellant after the child birth only once and he did not ask the appellant to live with him. When his father and others asked the appellant to live with him but she refused. It was also denied that the petition was filed in view of the fact that his sister and brother-in-law are living separately. 5.RW-1 in her evidence has stated that she has used to go to her parental home along with the respondent. She has further stated that even now she wants to live with the respondent. In her cross-examination she denied that there was any strained relationship between herself and her sister-in-law after the marriage of her brother. 6.It is further stated that the respondent visited the appellant during her pregnancy at her parents home. The birth of the child was informed to the respondent by her father over phone, the appellant used to talk to the respondent very often over phone. There was no celebration of the first birthday of the child, since the parties have been living separately. The respondent has asked the appellant to come to his home. Since the delivery was done by way of a cesarian operation and she was advised by the Doctor to take five months rest and she took rest. Since her father also died she could not join with her husband immediately and when she was about to join she received the notice from the Court. It is further stated that in view of the valaikappu function proposed in the month of June 2000 all her belongings along with the certificates were taken by her brother. However since the respondent has refused to come for the same no function was conducted. The respondent has not seen the child after seeing him at the time of birth. 7.A reading of the petition filed by the respondent would show that the marriage between his sister and brother-in-law took up earlier on 24.05.1999 and thereafter the marriage between the appellant and the respondent took place on 29.08.1999. Therefore it cannot be said that right from the marriage between the appellant's brother and her sister-in-law there was a strained relationship between the appellant and her sister-in-law. If that is the case then the subsequent marriage between the appellant and the respondent would not have happened. 8.It is not the case of the respondent that his marriage was solemnised out of force on the ground that his refusal to marry the appellant would result in strained relationship between his sister and brother-in-law. Therefore the statement made by the respondent that the appellant created trouble to his sister after his sister's marriage cannot be accepted. The further allegation that the appellant picked up the quarrel with him on 18.01.2000 and left the https://hcservices.ecourts.gov.in/hcservices/ matrimonial home on her own has also not been substantiated by the respondent. The appellant has also denied the said fact. The respondent has given further evidence that she used to visit her parents home during festival times. 9.It is further seen from the evidence of PW-1 that the appellant has informed the respondent on 18.01.2000 that she was leaving the matrimonial home due to her health. If it is the specific case of the respondent that the real reason is the objection of the presence of his sister then sufficient evidence should have been let in other than his own evidence particularly in the teeth of the specific denial by the appellant. When the respondent himself states that he was informed by the appellant about the reason for leaving the home on the basis of ill-health, it is a duty cast upon the respondent to substantiate and prove his case that the real reason was something else. 10.The evidence of PW-1 would make it clear that he has not asked the appellant to come and live with him. His further evidence that the appellant has threatened him by stating that she would commit suicide and she prevented him from seeing the child has not been proved with any other corroborating evidence particularly in view of the denial made by the appellant. Further the alleged dispute between PW-1's sister and the appellant has also not been proved. 11.A perusal of the evidence of RW-1 read with the counter affidavit would show that she has always been ready and willing to live with the respondent. The respondent has not issued any notice seeking the restitution of conjugal rights and no other evidence in the form of the letters or mediation made by the third parties was available in support of his case. No attempt was made to see the child and seek custody. The appellant has clearly stated that the valaikappu function was not conducted and the first birthday was also not conducted by her family. 12.The above said facts would show the strained relationship between the families. Therefore the onus is heavily on the respondent being the petitioner before the Court below seeking divorce to prove the allegations made in the petition filed by him. Except the evidence of the respondent and the appellant no other evidence either oral or documentary is available on record. If the respondent was prevented from seeing the child after the child birth and the appellant had refused to come and join him then proper steps should have been taken by the respondent in that regard. Even the evidence of the respondent would show that he has not taken any sufficient steps. He has also stated that he had not asked the appellant to come and live with him. Even though he has stated that others made attempts to bring the appellant back the said statement was not supported by the evidence of any third party and no particulars have been given. https://hcservices.ecourts.gov.in/hcservices/ 13.It is also seen that the respondent's sister also filed a petition in O.P.No.337 of 2001 before the very same Court seeking divorce against her husband on the ground of mental cruelty. A reading of the petition filed in O.P.No.337 of 2001 would also show that the petitioner therein had requested her husband to take a separate house for their leaving out his other family members. The said fact would clearly show that the appellant's sister-in-law wanted to live separately with her husband. Hence in view of the above said pleadings, the appellant cannot be found fault for the misunderstanding between her brother and sister-in-law particularly in the absence of any evidence other than PW-1 to prove the same. The above facts also prove that the respondent was not ready and willing to take the appellant back. 14.Mrs.S.Nagasailu, learned counsel appearing for the appellant submitted that the Court below has committed an error in granting a decree for divorce on the ground of cruelty by holding that the appellant had left on her own to her parental home and has refused to come back after three months after delivery when the respondent requested her to come back. The learned counsel further submitted that it is nothing but natural for a lady to go to her parental home during delivery and she could not come back after delivery in view of the death of her father. Even prior to that her father was terminally ill and that is the reason the appellant could not come back. The learned counsel submitted that the above said actions would not constitute mental cruelty. 15.The learned counsel for the appellant submitted that the child was born on 29.08.2000 and the appellant's father died on 03.02.2001. The divorce petition was filed on 05.03.2001. On the very same day another divorce petition was filed by the respondent's sister. The learned counsel further submitted that the respondent was said to have been remarried on 31.10.2004 after obtaining a decree for divorce on 23.07.2004 whereas the second wife Mrs.R.Kalaimani delivered a male child at Smith Hospital, Peelamedu, Coimbatore on 25.02.2004 itself. According to the learned counsel, the appeal was filed on 01.11.2004 and therefore the respondent ought to have remarried much prior to 31.10.2004. Hence the learned counsel strenuously contended that the alleged second marriage of the respondent would amount to abuse of the process of law and in view of the conduct of the respondent in remarrying within the period of limitation suitable orders will have to be passed against the respondent. 16.The learned counsel for the appellant further submitted that a suit was filed on 06.12.2004 by the respondent in O.S.No.4322 of 2004 on the file of District Munsif Court, Coimbatore for permanent injunction restraining appellant and her brother from disturbing his peaceful possession and enjoyment of the suit property stating that the appellant and her brother are pressurizing the https://hcservices.ecourts.gov.in/hcservices/ brother to get herself remarried to the respondent and there was no mention about the remarriage. 17.The learned counsel relied upon Section 15 and 23 of the Hindu Marriage Act, 1955 and submitted that the second marriage is totally illegal and the same cannot be a fait accompli to hold that the divorce granted is in order. In support of her contention the learned counsel has relied upon the judgments reported in 1995 SUPP (4) SCC 642 [PRAKASH CHAND SHARMA v. VIMLESH], (1997) 11 SCC 159 [YALLAWWA v. SHANTAVVA]; (2001) 4 SCC 250 [CHETAN DASS v. KAMLA DEVI]; (2002) 2 SCC 73 [SAVITRI PANDEY v. PREM CHANDRA PANDEY] and submitted that the appeal filed by the appellant will have to be allowed both on merits and also taking into consideration of the conduct of the respondent. 18.Per contra, M/s.Sheila Jayaprakash, learned counsel for the respondent submitted that the petition for divorce was filed as per the Family Courts Act, 1984. Section 19 of the said Act, gives 30 days time to file an appeal. The respondent has remarried after the expiry of the said time and between the Section 28 of the Hindu Marriage Act which provides for an appeal allowing a period of 90 days and Section 19 of the Family Courts Act providing a period of 30 days for filing the appeal the later would prevail in view of the non-obstante clause contained therein. 19.The learned counsel further submitted that the factum of birth of the child born to the respondent and his second wife on 25.02.2004 for the marriage conducted on 31.10.2004 cannot be gone into since the birth certificate of the child has not been marked. The learned counsel also submitted that the evidence of PW-1 and RW-1 would show that the appellant has not joined the respondent for a long time and therefore the said decision has caused mental cruelty on the respondent. The learned counsel further submitted that the appellant has not taken any steps to live with the respondent and the appellant has also filed subsequent proceedings for restitution of conjugal rights which has also pending. Therefore the learned counsel prayed for the dismissal of the appeal. 20.In this connection it is useful to refer the judgment of the Apex Court reported in (2002) 2 SCC 73 [SAVITRI PANDEY v. PREM CHANDRA PANDEY], wherein the Hon'ble Supreme Court was pleased to hold that a decree for divorce cannot be granted on the ground of desertion in the absence of pleadings and proof. The Trial Court has committed a grave error in shifting the entire responsibility and burden on the appellant to prove the case of the respondent. The respondent being the petitioner seeking divorce on the ground of cruelty is duty bound to substantiate the allegations and averments made in the petition filed for divorce. The Trial Court has granted a decree for divorce on the ground that there was strained relationship between the parties in view of the presence of the respondent's https://hcservices.ecourts.gov.in/hcservices/ sister in their matrimonial home which was occasioned due to the strained relationship between her and her husband. Even if the same is true the appellant cannot made solely responsible for that. 21.The Trial Court has failed to consider the evidence of PW-1 who himself has stated in the chief examination that the appellant has left the matrimonial home by stating that she was sick due to her pregnancy. The Trial Court has merely accepted the case of the respondent and granted a decree for divorce. The Trial Court has not considered the fact that the appellant has deposed that no valaikappu was conducted and no function was also conducted after the birth of the child in view of the refusal of the respondent to attend the said functions. 22.Another important factor to be noted is that on 05.03.2001 itself both the respondent and his sister filed petitions before the same Court seeking divorce on the ground of cruelty. It is further to be noted that the Trial Court has presumed certain things by accepting the case of the respondent without any evidence whatsoever. In the present case on hand both the parties have let in evidence in support of their case. A decree for divorce cannot be granted for the mere asking. The Court below has to give a clear finding that mental cruelty has been made out by the continued conduct of the party as against the other. The evidence of RW-1 is to the effect that she left the matrimonial home due to ill-health and the delay in joining was due to the ill-health and the consequential death of her father. The said evidence ought to have seen in the proper perspective by the Trial Court especially considering the desire of the appellant to rejoin. The respondent has not made any attempt to see his child after seeing in the hospital at the time of delivery. It is the evidence of the appellant that the respondent was talking to her over phone. 23.The Trial Court has committed a further error in stating that the appellant has not made any attempt to rejoin the respondent. There is also no evidence to show that after the birth of the child the appellant has caused any mental agony to the respondent by criticizing her sister-in-law and also made any continuous threat of committing suicide. An incident once happened long time back even assuming as true cannot be a determining factor for seeking divorce. Quarrels are common in any relationship more so in a relationship between husband and wife. Therefore the Trial Court has committed an error in taking into consideration of the incidents alleged to have happened by merely accepting the case of the respondent. It is also to be seen that the appellant's brother has not filed any application for divorce but the same was filed only by the respondent's sister and she has stated in the said petition that she wanted to live separately with her husband. When such is the case of the respondent's sister herself in her petition for divorce then the https://hcservices.ecourts.gov.in/hcservices/ Court below was not right in stating that it is the appellant who has refused to come and join the respondent. 24.The reasons assigned by the Court below in holding that the appellant conduct in taking the jewels and the certificates would show that she was not interested in joining the respondent also cannot accepted. It is the specific case of the appellant that along with the dress and jewels the entire materials were taken by her brother. Since admittedly she was staying in her parental home during her pregnancy period she would have thought fit to take those materials with her. From the said evidence it cannot be said that the appellant did not want to live with the respondent. 25.The word cruelty has not been defined and the Hindu Marriage Act,1955. In order to define cruelty, the conduct of a party should be so dangerous, so that a spouse is unable to live with the other. It is not the isolatory incident which is relevant but the whole matrimonial life that will have to be seen. A marriage is a meeting and union of two minds. There will always be difference between two persons who come from different background having different behaviors, thoughts, attitude, conduct and values. The above said factors are determined by the environment in which a person is brought up. Therefore, mere bickerings in a marital life cannot be a ground for cruelty. In order to make out cruelty, the intensity and gravity of one's action will have