IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated :01.07.2008 Coram : THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN and THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA Civil Miscellaneous Appeals Nos.611 and 612 of 2007 Dr.Gopal Ramanathan Appellant / Petitioner in both the appeals vs. Jayashree Respondent / Respondent in both the appeals. Civil Miscellaneous Appeals filed under section 19 of the Family Court Act against the judgment and decree dated 12.07.2006 made in O.Ps. Nos.595 and 995 of 2001 on the file of the II Additional Principal Judge, Family Court, Chennai. For appellant : Mrs.Hema Sampath For respondent : Mr.T.Mohan JUDGMENT K.RAVIRAJA PANDIAN, J. The appellant-husband, who is a doctor filed O.P. No.595 of 2001 against the respondent wife under section 13(1)(ia)(ib) of the Hindu Marriages Act seeking a decree of divorce by dissolving the marriage that took place between the parties on 10.06.1988 at Chennai and the respondent-wife filed O.P. No.995 of 2002 before the same Court for restitution of conjugal rights. Both the cases were disposed of by the II Additional Family Judge, Chennai by a common order dated 12.07.2006 by dismissing the O.P. filed by the appellant-husband and as necessary corollary the O.P. filed by the respondent wife was allowed directing the appellant-husband to restore to the respondent-wife all the comforts and bliss of married life. The correctness of the said order is canvassed in these appeals by the appellant-husband. For the sake of convenience, the husband is referred to as the appellant and wife is referred to as the respondent. https://hcservices.ecourts.gov.in/hcservices/ 2. The material facts of the case proceed as follows : The marriage between the appellant and the respondent took place on 10.06.1988 at Hotel Kanchi, Chennai, as per the Hindu rites and customs. It is the case of the appellant that the respondent had negative attitude and was pessimistic not only with the appellant, but also with the other family members of the appellant. The appellant thought that the respondent would change in due course of time and gave her a long rope. Even after seven years of marriage, the respondent has not changed her attitude. However she was interested to spend more time with her parents. The appellant used to take the respondent out of city for three to four weeks in a year with the fond hope that the respondent's attitude towards the appellant would change and they could lead a normal life. The respondent never took any initiatives to have intercourse with the appellant to develop the family ever after lapse of years of marriage. All the initiation taken by the appellant to make the respondent to lead a normal family life ended in vain. The respondent's parents took no initiatives to rectify the indifferent attitude of the respondent, when it was informed to them. It is the case of the appellant that even though the appellant and the respondent lived under the same roof, for a year or more, they had no conversation among themselves. When the appellant wanted to sort out the problem, the respondent mistook and left the matrimonial home on 07.04.2000 along with her belongings. Both of them had a counselling before the famous Pshychiatrist Dr.Mathrubutham. He expressed that the marriage between the appellant and the respondent would not work out and the marriage has irretrievably broken down and advised them to part with each other. 3. On the above stated facts, the appellant filed a petition for divorce on the ground that the respondent caused mental cruelty by adopting a peculiar way of behaviour which is not expected of a wife; that there was no conversation between the husband and the wife for a year or more though they lived under one roof; that thereafter they lived apart from the year 2000; that the respondent's adamant attitude of not giving the appellant marital pleasures; that the attitude of the respondent reaching the position of not meeting the ends at any point of time, which resulted in the breaking down of the marriage irretrievable. 4. The respondent, the holder of Master degree in pharmacy from the Government college of Pharmacy, working as a tutor in the department of pharmacology at Kilpauk Medical college in Chennai. The respondent has denied the allegations of negative attitude and pessimistic views and also alleged that their sexual life was satisfactory. It is the case of the respondent that the attitude of the appellant towards her changed in and around 1989. The appellant indicated that both of them were incompatible to each other and wanted her to leave her matrimonial home and thus, the respondent left the matrimonial home on 07.04.2000 against her wish. It is true that the parties underwent counselling of a psychiatrist, but because of the mind set up of the appellant, no https://hcservices.ecourts.gov.in/hcservices/ useful fruit came out of counselling. During February 2001, the respondent's colleagues Mrs. Revathy Kalyanakrishnan and Dr.Muthulakshmi Bharathi and the respondent's relatives Mrs. Lalitha Kalyan and K.A. Jayalakshmi attempted to make the appellant to stand to reason for his allegation of cruelty. All the attempts made by the respondent failed. The appellant failed to make out a case of divorce on the ground of cruelty. On that premise the respondent sought to dismiss the petition for divorce and sought for a decree for restitution of conjugal rights. 5. As stated earlier in the preamble portion, the II Additional Principal Judge, Family Court, Chennai dismissed the petition filed by the appellant for divorce and allowed the petition filed by the respondent for restitution of conjugal rights. 6. When the matter was taken up for orders some months back, learned counsel on either side stated that the Bench may directly find out the views of the parties so that the parties would be in a position to have their disputes resolved in an amicable manner. As the matter involves the relationship between the husband and the wife, which is delecate in nature, the Bench also accepted the request of the counsel and asked the parties to be present in Court and express their mind so as to enable this Court to pass a suitable order. Accordingly, the parties were present in the Court and both of them stuck to their respective stand. Counsel on either side expressed their inability to bring the parties to have an amicable settlement and left the dispute to be decided by the Court in accordance with law. Again, more than five times, the case was adjourned so as to enable the respective counsel to counsel their respective parties to reach an amicable settlement. 7. We heard the learned counsel on either side and perused the materials available on record. 8. The parties are highly educated and hail from affluent and respected family. But they miserably failed, rather refused to understand the basic and fundamental requirements of leading a family life with minor adjustments with each other. They virtually spent 20 years of youthful life in isolation by living apart. Even during the shortest period they lived under one roof, silence was the only language of conversation between them. Even sporting a smile to each other was unknown and unheard of and virtually they have led a robotic life for no tangible reason. Of-course, it is often said, passage of time would heal the wound in the mind of the people, but in the case of the parties here, the adage worked otherwise about – the gap in the marital life has widened as huge as the years rolled on. The wife is also highly educated and she, after spending more than two decades of youthful life by living in isolation from her husband, however, expressed that she is willing to live with the appellant, who is hating her and made her stay away from him for such a long number of years. When the Court suggested the appellant to start a new life with the respondent, as she is willing, he expressed his difficulty with emotion to the https://hcservices.ecourts.gov.in/hcservices/ effect that it is highly impossible for him even to think of it. 9. On the above stated factual situation, the one and the only conclusion that could be arrived at is there had been a long period of continuous separation, the marriage bond has broken beyond any possible repair. The marriage became a fiction though supported by a legal tie. The denial of marital comforts to each other for long period of years led to mental cruelty. 10. In matters relating to matrimonial disharmony leading to filing of the divorce petition, the decision of the Supreme Court in the case of Naveen Kohli v. Neelu Kohli, AIR 2006 SC 1675, needs to be noted. In the said decision, where both the spouses had been living separately for a fairly long number of years and could not reconcile themselves to live together, forgetting their past, the apex Court granted the decree of divorce. It has been the view of the apex Court in a line of decisions that though irretrievable marriage is not a ground for dissolution of marriage under the Hindu Marriage Act, 1955, and irretrievable marriage cannot be used as a formula to gain relief of divorce automatically (Chetan Dass v. Kamala Devi, (2001) 4 SCC 250), that the words 'conduct of cruelty of the spouses cannot be decided on the basis of the sanctity of the marriage between the parties, if after endeavour to reconcile the parties, the breakdown is irreparable, then divorce should not be withheld. (Naveen Kohli's case cited supra). The apex Court in the case of Naveen Kohli further held that it would be unrealistic for the law not to take notice of that fact and it would be harmful to society and injurious to the interest of the parties. Where there being a long period of continuous separation, it may fairly be surmised that the irretrievable 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 parties. Taking note of the fact that the parties in that case had been living separately for more than ten years and the number of proceedings initiated by one party against the other, the apex Court found that the marriage between the parties was only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentiality more prejudicial to the public interest than a dissolution of the marriage bond. 11. The apex Court once again in the case of Samar Ghosh v. Jaya Ghose, (2007) 2 MLJ 1185 had an occasion to consider a similar situation. Referring to various case laws on the subject including Naveen Kohli, the Supreme Court held that, "under the breakdown theory, divorce should be seen as a solution and an escape route out of a difficult situation. Such a divorce unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may https://hcservices.ecourts.gov.in/hcservices/ regulate their relationship in the changed circumstances". On the question of cruelty, the apex Court further observed that there can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. Yet, the apex Court, by way of illustration, listed out the instances of mental cruelty, as follows : "(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 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 https://hcservices.ecourts.gov.in/hcservices/ 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. " 10. Taking note of enunciation of law in the above referred to cases and also taking into consideration of the fact that the appellant and the respondent in this case have been living https://hcservices.ecourts.gov.in/hcservices/ separately since the year of marriage, i.e., for two decades, we are of the view that it is impossible and impracticable to preserve the marriage and any further effort to keep the marriage alive, would prove to be totally counter-productive and in order to do complete justice and to shorten the agony of the parties engaged in a long-drawn legal battle, we are of the view that the order of the Family Court ordering restitution of conjugal rights has to be set aside and it is accordingly set aside. There shall be a decree of dissolution of marriage between the appellant and the respondent which took place on 10.06.1988. The appeals are allowed. But, in the circumstances of the case, there shall be no order as to costs. Sd/- Deputy Registrar. /true copy/ Sub Asst. Registrar. mf To 1. THE II ADDITIONAL PRINCIPAL JUDGE FAMILY COURT, CHENNAI 2. THE SECTION OFFICER V.R.SECTION, HIGH COURT,MADRAS + 2 CCs To Mr.K.Bhawatharani, Advocate SR NO.33512 CMAs. Nos.611 & 612/2007 GV(CO) SRA(25/07/2008) https://hcservices.ecourts.gov.in/hcservices/