IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 25.07.2011 Coram The Honourable Mr. Justice ELIPE DHARMA RAO and The Honourable Mr. Justice M. VENUGOPAL C.M.A. Nos.930 & 931 of 2008 and M.P. No.1 of 2008 C. Ravikumar ... Appellant in both appeals/Petitioner & Respondent ..Vs.. S. Narmadha ... Respondent in both appeals/Respondent & Petitioner Civil Miscellaneous Appeals filed under section 19 of Family Courts Act against the order dated 13.12.2005 passed in O.P. Nos.215 of 2002 and 77 of 2003 on the file of the Family Court, Salem. For Appellant : Mr. V. Meenakshisundaram For Respondents : Mr. M. Devaraj COMMON JUDGMENT (Judgment was delivered by M. VENUGOPAL, J.) The Appellant/Petitioner has filed Civil Miscellaneous Appeal No.930 of 2008 as against the order dated 13.12.2005 in F.C.O.P. No.215 of 2002 passed by the learned Family Court Judge, Salem. 2. The Appellant/Respondent (Husband) has filed Civil Miscellaneous Appeal No.931 of 2008 as against the order dated 13.12.2005 in F.C.O.P. No.77 of 2003 passed by the learned Family Court Judge, Salem. https://hcservices.ecourts.gov.in/hcservices/ 3. The Appellant/Husband has filed F.C.O.P. No.215 of 2002 on the file of the learned Family Court Judge, Salem under Section 13(1)(1-a) of Hindu Marriage Act, 1955 to dissolve the marriage that took place between him and the Respondent/Wife praying for the relief of Divorce on the ground of cruelty. 4. Before the trial Court, the Respondent/Wife has filed F.C.O.P. No.77 of 2003 under Section 9 of the Hindu Marriage Act, 1955 praying for the relief of restitution of conjugal rights. 5. The Learned Counsel for the Appellant/Husband submits that the trial Court has ignored an important aspect that the Respondent/Wife caused unbearable cruelty to the Appellant/Husband right from the initial stage. 6. Proceeding further, it is the submission of the Learned Counsel for the Appellant/Husband that the Respondent/Wife has filed F.C.O.P. No.77 of 2003 as a counterblast after the Appellant/Husband filed F.C.O.P. No.215 of 2002 (nearly seven months later) and her aim has been to drag on the proceedings for Divorce. 7. The Learned Counsel for the Appellant/Husband urges before this Court that the Respondent/Wife has not discharged the onus of making out a case for reasonable cause for withdrawal from the matrimonial obligation. 8. The plea of the Appellant/Husband is that the Respondent/Wife caused unbearable cruelty to him by denying the sexual relationship thereby failed to act as a dutiful wife and further, she has left the matrimonial house without his consent and without any reasonable cause. 9. According to the Appellant/Husband, when the Respondent/Wife threatened him by saying that she would lodge a false complaint for such a threat, it is difficult to produce a piece of evidence or document as the case may be. 10. Lastly, it is the contention of the Learned Counsel for the Appellant/Husband that the trial Court has passed a non speaking order in F.C.O.P. No.77 of 2003 dated 13.12.2005 and the same is liable to be set aside. 11. It is the case of the Appellant/Husband that the marriage between him and the Respondent/Wife has taken place on 26.2.2001 as per the Hindu Customs and Rites at Vani Mahal Thirumana Mandapam, Salem. They lived at Ponnammapet, Salem for four months and subsequently shifted to Annamalai Nagar First https://hcservices.ecourts.gov.in/hcservices/ Street, Chinnathirupathi, Salem. Within one or two weeks from the date of marriage, the Respondent/Wife picked up quarrel with the Appellant/Husband and further, she has not attended the household works and has given trouble to him. According to the Appellant/Husband, the Respondent/Wife has not shown any interest in cohabitation. Moreover, out of compulsion, she married the Appellant/Husband, criticized him and also insulted that he studied lesser than that of her qualification. She has also left to her parent's home and refused to return back to the matrimonial home. 12. It is the plea of the Appellant/Husband that he convened a panchayat and brought the Respondent/Wife to the matrimonial home. Also he spent large amount towards medical expenses to create a child. The Respondent/Wife has become pregnant. She has been stubborn that she is not to live with the Appellant/Husband and wanted to live only with her parents. If the Respondent/Wife is compelled, she would do abortion and thereafter, she would prefer a complaint against him and others in the police station or otherwise, she would attempt to commit suicide and lodge a complaint against him in the Dowry Cell. To protect the family dignity, the Appellant/Husband has adjusted with the Respondent/Wife. The Respondent/Wife also threatened her mother-in-law and the mother-in-law has been affected with chest pain. Her mother-in-law has been admitted in Doctor Soodaman's Hospital, Salem on 22.8.2002. The Respondent/Wife warned the Appellant/Husband and his mother and has gone to her parents house. 13. In spite of the Appellant/Husband contacting the Respondent/Wife over phone on numerous occasions and requested to come for reunion, she has refused to come to the matrimonial home. This act of the Respondent/Wife has caused mental agony to him. Because of the mental agony, the Appellant/Husband has not been in a position to discharge the official functions. The Respondent/wife deserted the Appellant/Husband on 22.8.2002. Hence, the Appellant/Husband has prayed for the Dissolution of marriage that has taken place between him and the Respondent/Wife on 26.2.2001 on the ground of cruelty and Desertion. 14. According to the Respondent/Wife, the petition in F.C.O.P. No.215 of 2002 is not maintainable and due to the ill advise of the Appellant/Husband's mother, the Appellant/Husband insulted her family and compelled her to undergo abortion. The Respondent/Wife tolerated the misdeeds of the Appellant/Husband and his mother. As per family tradition, the Respondent/Wife has gone to her mother's house for delivery. She never insulted the Appellant/Husband. With bad intention and to spoil her life, due to the ill advise of the mother of the https://hcservices.ecourts.gov.in/hcservices/ Appellant/Husband, the Appellant/Husband has filed the petition for Divorce on imaginary grounds and without any proper reason. At the time of the filing of the Original Petition No.215 of 2002, the Respondent/Wife has been in an advanced stage of pregnancy. The Respondent/Wife has been ready for re-union with her husband (the Appellant) and is willing to live with him at the matrimonial home. 15. The trial Court dealt with F.C.O.P. Nos.215 of 2002 and 77 of 2003 jointly and upon scrutinizing the entire oral and documentary evidence available on record, has come to a resultant conclusion that the Appellant/Husband has not proved that the Respondent/Wife treated him with cruelty . Further, the behaviour of the Respondent/Wife has caused mental agony to him and accordingly, dismissed F.C.O.P. No.215 of 2002 with costs. In view of the fact that the trial Court had dismissed F.C.O.P. No.215 of 2002, consequently, it has allowed F.C.O.P. No.77 of 2003 filed by the Respondent/Wife praying for restitution of conjugal rights. In short, the trial Court had ordered the prayer of conjugal rights as prayed for by the Respondent/Wife. 16. The Learned Counsel appearing for the Appellant/Husband contends that the Trial Court has committed errors in dismissing F.C.O.P. No.215 of 2002 and allowing F.C.O.P. No.77 of 2003, which is filed by the Respondent/Wife praying for the relief of conjugal rights. 17. Advancing the arguments, it is the submission of the learned counsel for the Appellant/Husband that the trial Court has failed to appreciate that the Respondent/Wife caused more cruelty on the Appellant/Husband by way of threatening him that she would commit suicide and leave the matrimonial home without assigning any valid reason and refusing conjugal rights to the Appellant/Husband. 18. The Learned counsel appearing for the Appellant/Husband strenuously argued that when the Respondent/Wife has left the matrimonial home directly from Soodamani Hospital where the Appellant/Husband's mother has been admitted as in-patient, it is absolutely improbable that the Appellant/Husband or his mother compelled the Respondent/Wife to terminate her pregnancy. 19. A plea has been taken on behalf of the Appellant/Husband that the Respondent/Wife, in her evidence, has admitted that her Husband and her mother-in-law has taken her for medical treatment for conceiving a child. When that being the factual position, it is highly improbable that the Appellant/Husband and his mother compelled the Respondent/Wife https://hcservices.ecourts.gov.in/hcservices/ to terminate the pregnancy. 20. The Learned counsel appearing for the Appellant/Husband contends that the trial Court has committed an error in observing that to protect the life of the child in womb, the Respondent/Wife has left for her parent's house. Added further, it is the contention of the Learned counsel for the Appellant/Husband that the Appellant/Husband's mother has been admitted for chest pain on 22.8.2002, because of the threat meted out by the Respondent/Wife. This fact has not been taken note of by the trial Court in a proper and real perspective manner. As a matter of fact, no documentary evidence is expected to be produced, when a frequent threat has been made by the Respondent/Wife that she would lodge a complaint before the police against the Appellant/Husband and his mother. 21. It is the submission of the Learned counsel for the Appellant/Husbnd that without any iota of evidence, the trial Court has come to a wrong conclusion that the Respondent/Wife has left the matrimonial home on 22.8.2002 to her parent's house for delivery. 22. It is to be remembered that 'mental cruelty' ought to be of such a kind that the parties cannot be expected to live jointly. The term 'mental cruelty' is the act/conduct which inflicts upon the other side. Such mental pain and suffering as it would make it not possible for that party to live with the other. Added further, in the absence of a positive act of cruelty, a party is not entitled to obtain a decree of Divorce, in the considered opinion of this Court. 23. Because of the explanation to Section 9 of the Hindu Marriage Act, 1955, the early burden is on the petitioner to prove the pleading in a petition under Section 9 of the Act. 24. In a petition for Restitution of Conjugal Rights, the petitioner must show his/her sincerety and as a bona fide desire to resume the matrimonial cohabitation and to render the rights and duties of such cohabitation as per decision B.R. SAYAL (CAPTION) v. SMT. RAM SAYAL (A.I.R. 1968 P & H 489). 25. In a petition under Section 9 of the Hindu Marriage Act, 1955, the petitioner has to succeed on the strength of his/her own case. It is the discretion of a Court of law to pass an order/Decree for Restitution of Conjugal Rights based on the facts and circumstances of each case. However, the said discretion is to be exercise with circumspection and of course, after due discussions and deliberations. https://hcservices.ecourts.gov.in/hcservices/ 26. A Court of law has to decide in case of a dispute whether the relationship of husband and wife exists between the parties and then to proceed to find out if the case is fit for granting a Decree for Restitution of Conjugal Rights as per decision GURDIAL KUAR v. MUKUND SINGH (A.I.R. 1967 PUNJAB 235) 27. The petitioner in a petition under Section 9 of the Hindu Marriage Act has to establish (i) that the Respondent has withdrawn from the company of the Petitioner; (ii) that such withdrawal has been without a reasonable cause. 28. It is not in dispute that the marriage between the parties has taken place on 26.2.2001 in Salem as per the Hindu customs and rites. The wedding invitation has been marked as Ex.P1. Earlier, the parties lived together for a period of four months at Ponnammapet, Salem. Later, they shifted to Chinnathirupathi, Salem. According to the Appellant/Husband, the Respondent/Wife is not having any involvement and interest in co-habitation. Hence, a problem has arisen between the parties in their family life. In a month, the Respondent/Wife has left to her mother's house and stayed there for twenty days. When the Appellant/Husband has gone to the father-in-law's house and called his wife, the Respondent/Wife has stated that she would be there for further two days. Even if the Respondent/Wife returned within two days, again within two days, her father used to come and take her back. The Respondent/Wife has not attended any household work at the matrimonial home. The household work has only been attended by her mother-in-law. Further, it is the case of the Appellant/Husband that the Respondent/Wife has not shown any interest in cohabitation resulting in the Appellant/Husband taking the Respondent/Wife to a Doctor. The Doctor appropriately advised the Respondent/Wife. Even then, the Appellant/Husband has been unable to have any intercourse with the Respondent/wife freely. The Respondent/Wife's health has not co-operated in this regard. Therefore, she has not conceived. The Appellant/Husband has taken the Respondent/Wife to Dr. Soodamani Hospital where she has been treated and the Appellant/Husband used a jel for intercourse and finally she conceived. She has left to her mother's place for medical check-up. The Appellant/Husband used to visit the father-in-law's house and brought the Respondent/Wife to the Doctor Soodamani Hospital. Only to avoid sexual intercourse with the Appellant/Husband, the Respondent/Wife has often left to her mother's place. The Respondent/Wife has refused to live with the Appellant/Husband. 29. The further stand of the Appellant/Husband is that the Respondent/Wife also informed the Appellant/Husband that she would commit suicide and write a suicide note against the https://hcservices.ecourts.gov.in/hcservices/ Appellant/Husband and would prefer a complaint before the police as if the Appellant/Husband has demanded dowry often. The Respondent/Wife threatened the Appellant/Husband and his mother. On hearing the threat, the Appellant/Husband's mother developed chest pain. Therefore, she has been forced to get herself admitted in the Hospital on 22.8.2002. The Respondent/Wife brought ten members from her native place and left to her mother's house and refused to return back to the matrimonial home. The Appellant/Husband's mother was inpatient at Doctor Soodamani Hospital for five days during which period the Appellant/Husband took care of his mother. The Respondent/Wife threatened the Appellant/Husband and his mother not to visit her mother's place. She also threatened to lodge a complaint before the police that the Appellant/Husband and his mother attempted to abort the child. 30. The Appellant/Husband projects a version that due to the attitude of the Respondent/Wife, the Appellant/Husband has lost his interest in life. On several occasions, over the phone, the Appellant/Husband requested the Respondent/Wife for re-union, but she refused to heed to his request. Therefore, he has filed a petition for Divorce. Only after the third day of the birth of the child, the father-in-law of the Appellant/Husband informed him about the birth of the child. 31. The Appellant/Husband's mother, in her evidence, has supported the case of the Appellant/Husband. P.W.3, in his evidence, had deposed that he has taken initiative for conciliation between the parties, but the Respondent/Wife refused to join with the Appellant/Husband. 32. The Respondent/Wife, in her chief examination (through proof affidavit) has deposed that her parents have given 40 sovereigns of gold ornaments and Rs.60,000/- each and other Sridhana Seervarisai to the Appellant/Husband. They lived happily for few months. During this period, she quite often fell sick and has taken treatment. She also attended the household work after marriage. It is the case of the Respondent/wife that from the inception of the marriage, the Appellant/Husband scolded the Respondent/Wife and her mother-in- law also scolded her and both of them have treated her with cruelty. The Respondent/Wife had tolerated the misdeeds of the Appellant/Husband and waited patiently. The Respondent/Wife has not come to her mother's house alone. Only during festival season, the Appellant/Husband would bring the Respondent/Wife to her mother's place and both of them used to return together. 33. During fourth and fifth months of pregnancy, the Respondent/Wife developed the feeling of vomiting and has become very weak. The Appellant/Husband and his mother have been https://hcservices.ecourts.gov.in/hcservices/ afraid that the Respondent/Wife would give birth to a physically challenged baby and compelled her for abortion, to which course of action, she has not accepted. Because of this, hatred that has developed between the Respondent/Wife and her mother-in-law. Her parents have not been permitted to visit the matrimonial home. Her parents used to send rice, dhal and milk through workers to the matrimonial home every week. Even then, the Respondent/Wife has been very weak and has been in worst condition. She has not been permitted to go to her mother's place. When the Respondent/Wife's mother-in-law has fallen sick on 22.8.2002, it is only the Respondent/Wife has taken her mother-in-law to the Doctor Soodamani Hospital and admitted her in the Hospital and passed the message to her husband. 34. The trial Court has rendered a clear finding that in the hospital, the Respondent/Wife's mother-in-law and the Appellant/Husband compelled her for miscarriage. Further, it has opined that the Respondent/Wife with a fear in mind, has left to her native place with her uncle. Moreover, according to the trial Court, the Respondent/Wife never threatened the Appellant/Husband and her mother-in-law and she has not committed any mistake. Also the petition for Divorce has been projected by the Appellant/Husband only on flimsy and imaginary grounds. 35. Besides the above, the trial Court, on examination of evidence of the witnesses projected on the side of the Appellant/Husband and on the side of the Respondent/Wife, has come to a clear finding that the Appellant/Husband and his mother admitted that they never took any steps for reunion. But in the chief examination, the Appellant/Husband stated that he has taken many attempts for reunion and reconciliation and called upon the Respondent/Wife to come and live with him. The statement made by the Appellant/Husband in the petition and in the chief examination have been falsified in the cross- examination of P.Ws.1 and 2. 36. The trial Court has clearly opined that the Respondent/Wife never deserted the Appellant/Husband. She has` gone to her parent's house on 22.8.2002 for delivery. Within ten days therefrom, the Appellant/Husband has projected the petition in F.C.O.P. No.215 of 2002 seeking Divorce, which showed his malafide intention to secure an order of Divorce against the Respondent/Wife. The very fact that the Appellant/Husband viz. P.W.1 and P.W.2 the mother of the Appellant/Husband have not shown any interest to see the child, which caused only mental cruelty to the Respondent/wife. It will also reflect the mental frame of mind of the Appellant/Husband and his mother. https://hcservices.ecourts.gov.in/hcservices/ 37. In the instant case, before the trial Court, the Appellant/Husband has not produced any weight of evidence to prove that the Respondent/Wife made an endeavour to lodge a complaint before the police against the Appellant/Husband and his mother under the Dowry Prohibition Act or any other Act. Therefore, it is quite evident that the Appellant/Husband has found out certain imaginary ground against the Respondent/Wife with a view to get rid of her from matrimonial home coupled with malafide intention to see that some how the Respondent/Wife got separated from him. Therefore, we come to an inexcusable conclusion that the Appellant/Husband has not proved the factum of cruelty alleged by him in his petition to the satisfaction of this court. 38. When an allegation of cruelty is projected by one spouse against another, as per the Indian Evidence Act, the burden only lies on the parties to assert the same. Of course, the said assertion is rebuttable in law. Cruelty may be due to incompatibility, accusation, taunts or due to any false complaints. There must be a situation between the parties that there should be no meeting point to resolve the indifference and since there has been no meeting point between them, the marriage tie between the Appellant/Husband and Respondent/Wife has irretrievably broken down, beyond repair. 39. In the instant case on hand, the marriage between the parties has taken place on 26.2.2001. They lived together for nearly 1 1/2 years. From 22.8.2002, they are living apart. It is only the Respondent/Wife who has taken her mother- in-law to the hospital when she suffered the chest pain. Therefore, it cannot be said that the Respondent/Wife has remained in a indifferent fashion. 40. There is nothing wrong in the act of the Respondent/Wife living to her parent's house when she has been compelled by the Appellant/Husband and his mother to terminate her pregnancy. The Respondent/Wife has given birth to a male child on 31.12.2002. 41. One cannot loose sight of an important fact that the Respondent/Wife for delivery has gone to her parent's house on 22.8.2002 and within ten days from 22.8.2002, the Appellant/Husband has filed a petition for Divorce. 42. Indeed, the evidence of P.W.2 clearly points out that she has not taken any interest to find out as to whether her daughter-in-law had gone to her mother's place safely. After admitting her mother-in-law in the Hospital, the Respondent/Wife, as a pregnant lady, has gone to her mother's house. No endeavour is made by the Appellant/Husband or his https://hcservices.ecourts.gov.in/hcservices/ mother for reunion or even to see the birth of the child. In view of the contradictions in the evidence of the Appellant/Husband as P.W.1 and the very fact that the evidence of P.W.1 in cross-examination has been falsified by his chief examination and also that of P.W.2 and taking note of the overall assessment of the facts and circumstances of the case in an integral fashion and considering the fact that the trial Court has discussed about the conduct of P.W.1 and P.W.2 in the course of its judgment in F.C.O.P. Nos.215 of 2002 and 77 of 2003, we hold that the trial Court has rightly dismissed the petition in F.C.O.P. No.215 of 2002 and granted the relief of restitution of conjugal rights in F.C.O.P. No.77 of 2003, which, in our opinion, do not require any interference. Looking at any angle, Civil Miscellaneous Appeals filed by the Appellant/Husband san merits. Consequently, they fail. 43. In the result, Civil Miscellaneous Appeals are dismissed and the order dated 13.12.2005 passed in F.C.O.P. Nos.215 of 2002 and 77 of 2003 passed by the learned Family Court Judge, Salem are hereby confirmed for the reasons assigned in this Civil Miscellaneous Appeals. Consequently, the connected M.P. is also dismissed. However, there shall be no order as to costs. ssa. Sd/- Deputy Registrar //True Copy// Sub Asst. Registrar To The Judge, Family Court, Salem. + 1 cc to Mr. M. Devaraj, Advocate SR No.44963 BKY(CO) SR/22.8.2011 C.M.A. Nos.930 and 931 of 2008 and connected M.P. https://hcservices.ecourts.gov.in/hcservices/