IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.06.2011 CORAM The Honourable Mr. Justice ELIPE DHARMA RAO and The Honourable Mr. Justice M. VENUGOPAL C.M.A.Nos.1742 and 1743 of 2010 T.S.Malathi .. Appellant in both CMAs/ Petitioner in O.P.No.2162/07 and Respondent in O.P.No.185/08. vs. B.Arulmurugan .. Respondent in both CMAs/ Respondent in O.P.No.,2162/07 and Petitioner in O.P.No.185/08. PRAYER: Appeals filed under Section 19 of the Family Courts Act, 1984 praying for the relief stated therein. CMA.1742/2010:- & 1743/2010:- against the Judgment and Decree dated 16.6.2009 passed in O.P.No.2162/07 & O.P.No.185/08 by the II Additional Family Court, Chennai. For appellant : Mr.J.Sudhakaran For respondent : No appearance. J U D G M E N T (Judgment of the Court was delivered by M. VENUGOPAL,J.) Both the civil miscellaneous appeals are preferred against the common order passed in O.P.No.2162 of 2007 and O.P.No.185 of 2008 dated 16.6.2009 on the file of the II Additional Principal Judge, Family Court, Chennai. 2. O.P.No.2162 of 2007 was filed by the Appellant/Wife seeking dissolution of marriage on the ground of cruelty as per Section 13[1] [ia] of The Hindu Marriage Act, 1955 and O.P.No.185 of 2008 was filed by the Respondent/Husband for restitution of conjugal rights under Section 9 of The Hindu Marriage Act, 1955. https://hcservices.ecourts.gov.in/hcservices/ 3. The appellant and respondent herein are respectively the wife and husband. The marriage between the parties took place on 12.7.2006 at SPS Thirumanamandapam, Saidapet, Chennai. It was an arranged marriage. After marriage, the Appellant/Wife and the Respondent/Husband lived together at Villivakkam in Chennai in a private rented house on paying a monthly rent of Rs.5,000/-. The Appellant/Wife is a M.Com., Post Graduate and the Respondent/Husband is a Civil Engineer. The appellant's parents gave 50 sovereigns of jewels, besides payment of Rs.10,000/= for dress at the time of marriage and also gave all household articles. From the very beginning of the marriage, the Respondent/Husband was behaving indifferently and that his attitude towards the appellant was very cruel. The Respondent/Husband was not in a position to cohabitate with the Appellant/Wife. Therefore, the Respondent/Husband had gone to the extent of harassing his wife, viz., the appellant. The Respondent/Husband has been behaving like a Hysteria patient. Every night, the Respondent/Husband used to beat the Appellant/Wife and would not allow her to sleep peacefully. However, in order to maintain a harmony in the family, the Appellant/Wife adjusting all the respondent's ill-treatments under the fond hope that he would change his attitude. When the appellant reported about the ill- treatment meted out to her and also his behaviour towards her, to the respondent's father, grandmother, brother and sister, they all kept silent. On 10.3.2007, the Respondent/Husband had driven the Appellant/Wife out of the matrimonial home stating that he did not want to live with her. Thereafter, the appellant informed her parents about the cruel behaviour and the physical torture given to her. On 21.4.2007, when the Appellant/Wife and her parents went to the respondent's place at Cheyyar, in a Panchayat held by the respondent's relatives, especially one Babu, the Chairman of the Panchayat Board, the Respondent/Husband told that he would give consent divorce so that she can live peacefully. Though the household articles given by the appellant's parents were returned to them, the Maruti Car along with RC book standing in her name was not returned to her. Subsequently, the wife filed O.P.No.2162 of 2007 for dissolution of marriage on the ground of cruelty. As a counter litigation, on the other hand, the Respondent/Husband filed O.P.No.185 of 2008 for restitution of conjugal rights under Section 9 of the Hindu Marriage Act. 4. During joint trial, the Appellant/Wife examined herself as P.W.1, and Exs.P.1 to P.4 were marked on her behalf. On the other hand, the Respondent/Husband examined himself as R.W.1, and Exs.R.1 and R.2 were marked on his side. 5. The trial court, on appreciation of the oral and documentary evidence let in by the parties, dismissed the Original Petition No.2162 of 2007 filed by the Appellant/Wife seeking divorce and allowed the Original Petition No.185 of 2008 filed by the https://hcservices.ecourts.gov.in/hcservices/ Respondent/Husband seeking restitution of conjugal rights, thereby directing the Appellant/Wife to restore the husband all the comforts and bliss of married life immediately. Feeling aggrieved, the wife has preferred the above appeals. 6. Heard the learned counsel for the Appellant/Wife. Though notice was served on the respondent as early as on 23.10.2010, he has not chosen to either engage a counsel on his behalf or appeared in person to contest the matter. Therefore, we are left with no option but to pass the following order on merits of the matter. 7. P.W.1/wife [the appellant in both the appeals], in her evidence, has stated that from the very beginning, the Respondent/Husband was behaving indifferently and his attitude towards her was very cruel. It is also her evidence that the husband used to lock the house from outside by keeping her inside the house and further the husband was not in a position to cohabitate with her. According to the Appellant, this defect on the part of the Respondent/Husband had made him to go to the extent of harassing her and behaving like a Hysteria patient. 8. The sum and substance of the evidence of P.W.1 is that she had lost mental peace since she had to live in turmoil and because of her husband's incapacity to cohabitate with her, he used to hit his head on the walls and also create terror. This evidence adduced on behalf of the Appellant/wife has not been specifically denied by the Respondent/Husband in his evidence as R.W.1. However, he has generally denied the allegations made by the Appellant/Wife. 9. The evidence of R.W.1 [Respondent/Husband] is to the effect that the Appellant/Wife filed a petition for divorce with false allegations and cooked up stories and that the wife has failed to prove the case of allegation of cruelty. In fact, R.W.1, in his evidence, has denied the allegation that he has locked her inside and, according to him, even if he has locked, it shows his possessiveness, care and affection and responsibility. Further more, the wife is having another house key and she used to lock and go whenever she has any outside work. He has also denied that allegation that he made an attempt to strangulate her. 10. The very fact that the husband, in his evidence, has gone to the extent of mentioning that he has locked his wife inside because of his possessiveness, care, affection and responsibility, would clearly indicate that he has not given the wife the enough freedom to live in a free, cool and calm atmosphere. However, the trial court, on wrong appreciation of the oral and documentary evidence, has rejected the petition filed by the Appellant/Wife seeking divorce and directed the Appellant/Wife to restore conjugal bliss to the husband and resultantly allowing Section 9 petition for Restitution of Conjugal Rights. https://hcservices.ecourts.gov.in/hcservices/ 11. The fact that the Respondent/Husband, in his evidence, has candidly admitted that he has locked the house keeping his wife inside the house and that would only show his possessiveness, care and affection and responsibility are all factors which would unequivocally and unerringly point out that the husband is at the wrong end and his inhuman act would amount to cruelty. Further, the fact remains that the Respondent/Husband has not specifically denied about the allegation of the Appellant/Wife about his incapacity for cohabitation with her. Though abundant evidence was available on record to show there was cruelty of wife at the hands of the husband, the conclusion arrived at by the trial court that the wife has failed to prove the cruelty and the said acts of the Respondent/Husband are normal wear and tear of the married life, cannot be accepted by this Court. Hence, the said conclusion arrived at by the trial court will not stand a moment's scrutiny in the eye of law and therefore, we set aside the said observation of the trial court in this regard. 12. Even a single instance of cruelty is sufficient to enable the wife to obtain the relief of Divorce. The husband has not denied the allegation made by the wife that he has not been in a position to cohabitate with her. When a serious allegation of this nature has been made against the Respondent/Husband, he has not denied the same in his evidence. Conversely, the fact that he has admitted in his evidence that he has locked her inside and even if he has done so, it is only on account of his possessiveness, care and affection and responsibility, is clearly an adverse circumstance, which goes against the case of the Respondent/Husband. 13. It is to be borne in mind that in the absence of a positive act of cruelty, a party is not entitled to obtain a decree for Divorce as per the decision reported in 97 CWN 747 [Sankar Prasad Pal vs. Sabitta Pal]. 14. As far as the present case is concerned, we are of the considered view that the Appellant/Wife has proved cruelty against the Respondent/Husband. The evidence of the Respondent/Husband as R.W.1 in the present case clearly goes to show that he is the wrong doer and he has committed the act of cruelty to the wife by locking her inside the house, etc. and, on that basis, we have no hesitation to hold that the Appellant/Wife is entitled to the relief of Divorce as prayed for by her in O.P.No.2162 of 2007. Consequently, since the Respondent/Husband has committed the act of cruelty on the wife, there is no possibility for the wife to live with the husband. In the present case, the situation is that the wronged party cannot reasonably be required to put up with the other party. Added further, the husband has also not been in a position to give matrimonial bliss by means of cohabitation with the Appellant/Wife. On that count also, there are laches on the side of the husband and therefore, we https://hcservices.ecourts.gov.in/hcservices/ are of the considered view that the petition filed by the Respondent/Husband for restitution of conjugal rights is liable to be dismissed and it is accordingly dismissed. Therefore, as already held by this Court, the Appellant/Wife is entitled to a decree of Divorce. The common order passed by the trial court in O.P.No.2162 of 2007 and O.P.No.185 of 2008 is set aside. The divorce, as prayed for by the Appellant/Wife in O.P.No.2162 of 2007, is granted. Consequently, the Original Petition No.185 of 2008 filed by the Respondent/Husband, seeking Restitution of Conjugal Rights, is dismissed. Accordingly, both the civil miscellaneous appeals are allowed. There would be no order to costs. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar gs. [ To The II Additional Principal Judge, Family Court, Chennai. 2 cc to Mr. J.Sudhakaran, Advocate, Sr.No.34801, 34802 C.M.A.Nos.1742 and 1743 of 2010 pkb(co) pmk.23.6.2011 https://hcservices.ecourts.gov.in/hcservices/