IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:29.08.2011 Coram THE HONOURABLE Mr. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE Mr. JUSTICE M.VENUGOPAL C.M.A.Nos.3769 and 1775 of 2010 and M.P.Nos.1 and 2 of 2011 in C.M.A.No.1775 of 2010 R.Natarajan ... Appellant in both CMAs Vs. Sujatha Vasudevan ... Respondent in both CMAs Prayer: Appeals filed against the Common Order dated 07.07.2009 made in O.P.No.519 of 2008 and O.P.No.993 of 2007 on the file of the II Additional Family Court, Chennai. For Appellant : Mrs.K.Bhavatharani For Respondent : Mr.V.Jayachandran COMMON JUDGMENT M.VENUGOPAL,J. The Appellant/Respondent (Husband) has preferred these instant two Civil Miscellaneous Appeals as against the Common Order dated 07.07.2009 in O.P.No.519 of 2008 and O.P.No.993 of 2007 on the file of the II Additional Family Court, Chennai. 2.The trial Court, on appreciation of the oral and documentary evidence available on record, while passing the Common Order in O.P.Nos.993/2007 and 519/2008 on 07.07.2009, has, among other things, observed that '... In this case on hand, both the parties are throwing the allegations against each other and both of them did not adduce any documentary evidence to prove their allegations. Further in this case, the allegations made by the Petitioner would be in the nature of normal wear and tear between the parties, that will not amount to cruelty. Hence, considering the age of the parties and the future welfare of the child, since the respondent/wife is willing to live with the petitioner/husband and filed the Restitution of Conjugal Rights Petition before this Court, this Court finds that the petitioner is not entitled for divorce on the ground of cruelty etc.' and resultantly, dismissed the O.P.No.993 of 2007 filed by the Appellant/Husband and allowed the O.P.No.519 of 2008 filed by the Respondent/Wife by ordering the restitution of conjugal rights. 3.Being dissatisfied with the Common Order passed by the II Additional Family Court, Chennai dated 07.07.2009 in O.P.Nos.993 of 2007 and 519 of 2008, the Appellant/Husband preferred these Civil Miscellaneous Appeals. 4.The Point that arises for consideration in C.M.A.No.3769 of 2010 is: Whether the Respondent/Wife is entitled to seek the relief of Restitution of Conjugal Rights as per Section 9 of the Hindu Marriage Act, 1955? The Point that arises for consideration in C.M.A.No.1775 of 2010 is: Whether the Appellant/Husband is entitled to claim the relief of Divorce against the Respondent/Wife? The Contentions, Discussions and Findings on Points in both CMAs: 5.The Learned Counsel for the Appellant/Husband contends that the Common Order of the trial Court passed in O.P.Nos.993 of 2007 and 519 of 2008 are contrary to law, weight of evidence and probabilities of the case. 6.It is the contention of the Learned Counsel for the Appellant/ Husband that both the parties never had any understanding right from the first day of the marriage, which was not taken into account by the trial Court. 7.According to the Learned Counsel for the Appellant/Husband, the trial Court should have considered that the Respondent/Wife made frequent calls to the Police Department, when they resided together in United States of America and further, she had not discharged her duties as a daughter-in-law. 8.Lastly, it is the submission of the Learned Counsel for the Appellant/Husband that the trial Court ought to have considered the evidence of R.W.1 (Wife) that she had not lived with the Appellant/ Husband under the same roof continuously for more than a month. 9.Per contra, it is the contention of the Learned Counsel for the Respondent/Wife that the trial Court had taken note of the material facts and circumstances of the case and after appreciating the oral and documentary evidence on record, had come to a clear conclusion that the Appellant/Husband was not entitled to claim the relief of dissolution of marriage in O.P.No.993 of 2007 and also that quite rightly the trial Court granted the relief of restitution of conjugal rights to the Respondent/Wife in O.P.No.519 of 2008, which need not be interfered with by this Court. 10.At this stage, it is not out of place for this Court to refer to the averments made by the Appellant/Husband in O.P.No.993 of 2007 on the file of the II Additional Family Court, Chennai. 11.The Appellant/Husband, in O.P.No.993 of 2007 filed under Section 13(1)(i)(ia)(ib) of the Hindu Marriage Act, 1955, had averred that the marriage between him and the Respondent/Wife took place on 25.02.2002 at Chennai according to Hindu Rites and Customs and from the very beginning of the marriage, the Respondent/Wife was so arrogant, indifferent and used to abuse him in filthy and ugly language and he had tolerated all the cruelty and cruel treatment meted out to him. Further, he hoped that the Respondent/Wife would be alright and would mend her ways in the near future. But, the same ended in vain. Also, he averred that the Respondent/Wife deserted him on 24.04.2005 without just or sufficient cause and ran away from the matrimonial home and therefore, he was forced to be alone from 24.04.2005 till date. As such, he was entitled to divorce the Respondent/Wife based on the reason of cruelty and wilful desertion for more than one year. 12.As a result of the wedlock, a female child was born on 08.02.2003 viz., Varshinee at the Respondent/Wife's parents house. Further, the Respondent/Wife failed and neglected to discharge her parental duty as a mother and he was even prevented from seeing his child by the Respondent/Wife and her father. Furthermore, all sorts of pin pricks had been caused by the Respondent/Wife on the motivation of her father. 13.Earlier, the Appellant/Husband filed a Petition for restitution of conjugal rights in O.P.No.605 of 2006 on the file of the II Additional Family Court, Chennai with a fond hope that the Respondent/Wife would be tamed on the belief that he being a pious Hindu and things would be alright in due course, which ended in vain. The Respondent/Wife was not prepared to reunite and therefore, he was forced to file a Petition for divorce on the ground of cruelty and desertion and there was no possibility of reunion with the Respondent due to her incorrigible attitude. 14.In the counter filed by the Respondent/Wife, it is, inter alia, mentioned that she went to United States of America with the Appellant/Petitioner (Husband) and when she conceived, the Appellant had not acted properly and therefore, she went to San Francisco and stayed at her cousin's house and the matter reached the ears of her parents and at the instance of relatives of both parties, a talk was held wherein the Appellant/Husband assured to behave properly. She gave birth to a female child Varshinee on 08.02.2003. 15.Since the Appellant/Husband's project at United States of America was over, they returned back to India. Prior to that, both parties discussed about the stay in Chennai on return from America. When she suggested to stay away from the parents of the Appellant/ Husband, he suggested on return from USA itself that she should stay at her parents house to avoid any unpleasantness at the hands of his mother, promising that he would later come and take her back. But, the Appellant/Defendant did not turnup. 16.The Appellant/Husband had a duty to lead a happy matrimonial life with her. But, for reasons best known to him, he avoided her and because of the attitude of the Appellant/Husband, her female baby had suffered and now she grew up and the absence of father was placing her in great sorrow. 17.The Appellant/Husband filed O.P.No.605 of 2006 seeking the relief of Restitution of Conjugal Rights as if she deserted him. The Respondent/Wife, in the counter, had narrated the sufferings faced by her at the hands of the Appellant/Husband in detail. She was willing to join, if the Appellant/Husband was ready to have a separate family. The reason for a separate family was because of her mother-in-law not liking her. 18.The Appellant/Husband filed the present Original Petition seeking divorce with the main aim of remarrying with heavy dowry. There was no change of circumstance in filing the present petition for divorce after filing the petition for restitution of conjugal rights. She was in the mercy of the Appellant/Husband and his mother. It was the Appellant/Husband's mother, who was instigating him to ill-treat her further. There was no desertion on her part and it was the Appellant/Defendant, who left her at her parents' home without taking her back to her matrimonial house. Any mother would intend that a father should visit the child. What she needs was that the Appellant/Husband should assure to provide happiness. This would be possible only, if the Court was pleased to direct the Appellant/Husband to take her back and lead a matrimonial life. 19.The Respondent/Wife, in O.P.No.519 of 2008 filed under Section 9 of the Hindu Marriage Act praying for Restitution of Conjugal Rights, had, among other things, stated that her marriage with the Appellant/Husband took place on 25.05.2002 at Chennai as per Hindu Rites and Customs and in April 2002, she went to USA with the Appellant/Husband, that she conceived etc. 20.During April 2005, both the Appellant/Husband and Respondent/Wife returned to India after the project of her husband at USA was over and even before coming to India, the parties discussed regarding the stay in Chennai on return from America and when she suggested to stay away from Appellant/Husband's parents on account of her mother-in-law not liking her from the beginning, a big quarrel arose etc. 21.The Respondent's female child studying in L.K.G. in Chinmaya Vidayalaya, Chetpet, requires the care and affection of the Appellant/ Husband as Father. The Appellant/Husband had a duty to lead a happy married life with her and the child. The Appellant/Husband taking advantage of dismissal of O.P.No.605 of 2006 and to avoid her filed O.P.No.993 of 2007 seeking divorce with the sole object of remarrying, to get dowry. 22.The Appellant/Husband left her at her parents house assuring to take back soon. But not took her back. Therefore, she had prayed for the relief of Restitution of Conjugal Rights. 23.The Appellant/Husband, in the counter, had stated that the Respondent/Wife was so arrogant and treated him with cruelty and started to abuse him in vulgar language and started to humiliate within a week. Only with great pressure, he was able to bring the Respondent/Wife back from her cousin's house to the matrimonial home. Thereafter, only at the pressure of the wife, he came to India by force on accepting the illegal demand of the Respondent/Wife to come over to India from United States of America. 24.According to the Appellant/Husband, the Respondent/Wife ran away from the Airport to her parent's house as pre-planned by them and thereafter she had never turned up to the matrimonial home and despite the repeated mediations and counselling and the advices of the elders, she was so adamant and refused to come back to the matrimonial home and finally, he felt there was no purpose in pursuing the said petition for conjugal rights. He filed a divorce petition on the ground of desertion and cruelty against her. Also, he was not informed about the birth of the child and he was not allowed to see the child at her parents house where she was living on her own accord. 25.Whenever he attempted to make a visit to see the child, the Respondent/Wife, his father-in-law and mother-in-law not allowed him to see the child and threatened him that if he made any attempt to see the child, he would be put to task. The Restitution of Conjugal Rights filed by the Respondent/Wife was only a counter-blast to the Divorce Petition filed by the Appellant/Defendant. 26.The term 'cruelty' is a state of mind and feeling with one of the parties due to the behavioural attitude of the other. In fact, "cruelty" as per Section 13(1)(ia) is to be construed as a behaviour by one party towards the other, which cause a genuine and reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the wedlock relationship with the other. Like physical cruelty, mental cruelty is difficult to be proved by a direct evidence, as per the Division Bench decision in Victor Sebastain V. Thorulatha, [2006(4) R.C.R. (Civ.) 577 at p. 579 (Knt.). 27.Where there is a proof of wanton course of conduct on the part of a person, intended to hurt and humiliate other spouse, and such a conduct is persisted, cruelty can be inferred easily. In the decision of the Hon'ble Supreme Court in Sujata Uday Patil V. Uday Madhukar Patil, [2007 (3) S.C.J. 458 at p. 459], it is held that 'Neither actual nor presumed intention to hurt the other spouse is a necessary element in cruelty.' 28.For passing a Decree of divorce on the ground of cruelty, the acts complained of ought to be so grave and weighty so as to arrive at the conclusion that the husband cannot reasonably be expected to live with the wife. In a petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955, the Petitioner has to prove that after the solemnisation of marriage the Respondent treated him with cruelty as per the decision in Sukharam Yadav V. Nirupama Yadav, [2007 (3) M.P.L.J. 396 at p. 398 (M.P.)]. The dissolution of marriage is the last and the last option a Court of Law must exercise in a given situation. 29.The term 'Cruelty' mentioned in Clause (i-a) denotes and includes both physical and mental cruelty. It is be noted that a Hindu Marriage Act, 1955 is silent as regards the nature or degree of cruelty which needs to be established any matrimonial case as per the decision Poonam Mehta alias Poonam Prasad V. Naresh Prasad, [AIR 2009 (N.O.C.) 505 (Orissa)]. If the cruelty is physical, it is an aspect of degree which is essential. However, if it is mental, an 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 other party whether it caused reasonable apprehension that it would be injurious or harmful to live with the other party. Finally, it is matter of inference to be deduced by taking into account the nature of the conduct and its effect on the complaining spouse. 30.In Suman Kapur V. Sudhir Kapur, [A.I.R. 2009 S.C. 589], it is observed that 'there may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal.' In Black's Law Dictionary (8th Edition, at page 2004) the term 'Mental Cruelty' is defined as follows: "As a ground for divorce, one spouse's course of conduct (not involving actual violence) that creates such anguish that it endangers the lie, physical health, or mental health of the other spouse. [vide Surender Pal V. Kanwaljit Kaur, II (2008) D.M.C. 183 at p. 187 (Delhi)] Furthermore, it is not necessary to establish that the mental cruelty is such as to cause injury to the health of the Petitioner as per the decision Vimla Mehra V. K.S.Mehra [158 (2009) D.L.T. 136 at p. 150 (Delhi)]. 31.In regard to the expression 'Cruelty' as seen under Section 13(1)((i-a) of the Hindu Marriage Act, a Court of Law should be satisfied that such differences surfacing from the conduct of either party to the marriage makes it impossible for the other spouse to continue to live with him/her. Intention to be cruel is not a requisite element of 'cruelty' as contemplated as per Section 13(1-A) of the Hindu Marriage Act, 1955. It is needless for this Court to state that if bitter waters are flowing it is not necessary to enquire from which source they spring. The motive behind the cruelty has paled into insignificance in the present day changing society. To put it shortly, in matrimonial matters, the feelings and attitudes of minds are material as per the decision Neelu Kohli V. Naveen Kohli, [A.I.R. 2004 All. 1 at p. 12]. 32.As far as the mental cruelty is concerned, it must be of such a kind that the parties cannot reasonably be expected to live jointly. A wronged party cannot be required to put up with the other. We worth recall the decision of the Hon'ble Supreme Court in Sirajmohmedkhan Janmohamadkhan V. Hafizunnisa Yasinkhan, [(1981) 4 SCC 250] wherein it is held thus: "... The concept of legal cruelty changes according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions, this feature has obtained legislative recognition, that a second marriage is a sufficient ground for separate residence and maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which lead to mental or legal cruelty." 33.The concept of cruelty is to be something more serious than that of an ordinary wear and tear of marital life. The mental cruelty may consider all verbal abuses and insults by using filthy and abusive language in leading to persistent disturbance of mental peace of the other individual. No wonder, metal cruelty is a matter relating to human behaviour. 34.In the decision of the Hon'ble Supreme Court in Samar Ghosh v. Jaya Ghosh, [(2007) 4 SCC 511], at paragraph No.101, some instances of human behaviour, which may be relevant in dealing with the case of mental cruelty have been enumerated and the relevant paragraph runs as follows: "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: (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. (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." 35.In the decision of the Hon'ble Supreme Court in Shobha Rani v. Madhukar Reddi, [I (1988) DMC 12 (SC) = (1988) 1 SCC 105], the concept of cruelty has been stated hereunder: "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. 36.The term 'desertion' is not the withdrawal from a place but from the state of things. Therefore, it means withdrawing from the matrimonial obligations i.e. in not permitting or facilitating cohabitation between the parties. It is a continuous course of conduct to be decided based on the facts and circumstances of each case. The concept of desertion is a completed repudiation of the obligations of the marriage. The two elements which are crucial insofar as the deserted spouse is concerned viz., (i)absence of consent; (ii)absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention as mentioned supra. If the parties are living separately and the wife has no intention to resume matrimonial relationship. The Animus Deserendi on the part of the wife is established and in these circumstances, it is held that it is better to close the chapter when the parties cannot live together as per the decision in Shrawan Kumar Giri V. Rita Devi [2002 (3) Jhr, L.J.R. 88 at p. 90 (Jhr)]. 37.In the decision of the Hon'ble Supreme Court in Savitri Pandey