IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.07.2011 CORAM THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR. JUSTICE M. VENUGOPAL C.M.A.No.764 of 2009 Nalini Muthu .. Appellant/Respondent vs. Muthu .. Respondent/Petitioner PRAYER: Appeal filed under Section 19 of the Family Courts Act, 1984 praying for the relief stated therein. For appellant : Mr.J.Bijai Sundar For respondent : Mr.Sureshkumar for M/s.Kanna Associates. J U D G M E N T (Judgment of the Court was delivered by M. VENUGOPAL,J.) The Appellant/Respondent [Wife] has filed the present civil miscellaneous appeal as against the order dated 28.1.2009 in O.P.No.1601 of 2004 passed by the I Additional Principal Judge, Family Court, Chennai. 2.The Respondent/Petitioner [Husband] has filed O.P.No.1601 of 2004 before the trial Court under Section 13(1)(ia) and Section 25 of the Hindu Marriage Act, 1955 praying for the dissolution of marriage between him and the Appellant/Wife solemnized on 20.4.1989 at Tirupur. According to the Respondent/Husband, his marriage with the Appellant/Wife took place on 20.4.1989 at Tirupur, according to the Hindu Rites and Customs. Thereafter, they lived as Husband and Wife at New No.84, Old No.87, 5th Street, Padmanabha Nagar, Adyar, Chennai, till April 2003. As a result of the wedlock, two daughters, viz., Mookambika and Sridevi, were born on 25.1.1990 and 4.6.1993 respectively. 3.It is the case of the Respondent/Husband that the Appellant/Wife was behaving very indifferently right from the first day of their marriage and had refused even to attend the daily https://hcservices.ecourts.gov.in/hcservices/ chores, viz., cooking and cleaning the house, etc. 4.It is the plea of the Respondent/Husband that even after the birth of two children, the Appellant/Wife behaved irresponsibly by leaving to her father's house without any information to him and refused to return to the matrimonial home for many months. Also, the Appellant/Wife often demanded money and jewels from the Respondent/Husband and had also compelled him to give exorbitant amounts to her father, without any rhyme or reason. Furthermore, the Respondent/Husband, from the date of their marriage, on many occasions, was forced to take his food outside for months together, since the Appellant/Wife refused to cook for him, which had put the Respondent/Husband to ill-health. 5.The further stand of the Respondent/Husband is that he is the Managing Director of his Company, where both male and female staff are employed. As a Managing Director, he used to interact with his staff, including female staff and the Appellant/Wife started suspecting him imagining that he would have had illicit relationship with his female staff and this attitude of the Appellant/wife in suspecting him started from the first day of the marriage. The Appellant/Wife always called upon his office and enquired with his staff about him. That apart, the Appellant/Wife had gone to the extent of suspecting her own sister, whenever she talked to the Respondent/Husband, which showed the psychic attitude of her. She also engaged detective agents to spy and monitor his day-to-day activities, which caused mental agony and distress to him and his privacy was unnecessarily disturbed due to her cheap attitude which resulted in filing of the H.M.O.P.No.1601 of 2004. 6.Conversely, the Appellant/Wife had denied the allegations made against her by the Respondent/Husband, in her counter. She had specifically stated that soon after their marriage, they shifted to Chennai and their first matrimonial home was a rented premises at Nandanam. While so, she was called for an interview for the selection of posting in S.B.I. and she was very eager to seek some employment to share the burden in view of the the then prevailing family circumstances of the matrimonial home. But the Respondent/Husband thwarted the same by stating that he would not allow his wife to work anywhere. Later, the matrimonial home was shifted to another rented house at Seethammal Colony, Teynampet. During their matrimonial homes at Nandanam and Seethammal Colony, there was a gradual improvement in their economic status by the work of the Respondent/Husband, but coupled with the participation of the Appellant/Wife, by pledging her jewels, etc. 7. Furthermore, the case of the Appellant/Wife is that during 1997, the Respondent/Husband had an extra marital relationship with a girl, who was working in his workplace and he continued the said relationship even after that girl's marriage. The Respondent/Husband https://hcservices.ecourts.gov.in/hcservices/ showed his anger by giving all sorts of mental agony and assaulted the Appellant/Wife. At one point of time, the Respondent/Husband drove away his parents for questioning his attitude. When the same became unbearable, the Appellant/Wife filed a complaint with All Women Police Station, Adyar and the Respondent/Husband was called for an enquiry. Thereafter, the Respondent/Husband turned again a family person by showing all his love and affection, which resulted in withdrawal of the police complaint. Subsequently, the Respondent/Husband helped the Appellant/Wife in starting a Beauty Parlour in the name and style of 'Rapid Beauty Parlour' by investing few thousands of rupees in the first floor of their house. But, at the instance of the Respondent/Husband, the said Parlour was closed after a year. 8. As per version of the Appellant/Wife that except for few months, no Cook was employed since their marriage and it is only she, who was Cooking for all along. The Respondent/Husband was taking his food in the house even few months before filing the petition. But, there was a change in his attitude and he, on his own, was refraining from taking food in the house. 9. The Respondent/Husband was indulging in another extra marital affair since 2003, which fact was known to everybody in his office and same resulted in his change of behaviour and attitude. This was one of the prime reasons for him in refusing to take food in the house. The Respondent/Husband was interacting with his daughters every day without any hindrance from her and therefore, the allegation that she prevented him from meeting the daughters was a false one. 10. The Respondent/Husband was continuing his illicit intimacy with another office staff. As the other Directors of the Company objected strongly and informed the Respondent/Husband that his illicit intimacy would spoil the reputation of the Company, he just created uncongenial atmosphere in the Office during January 2004 and other Directors dismissed the said staff from the job. The Respondent/Husband's father came to know about this affair and he advised his son to sever connection with that woman and he directly informed the girl's parents that the girl should not indulge in such activities. But, the Appellant/Wife, with an intention not to further precipitate the matter, after receipt of her husband's lawyer's notice dated 12.5.2004, sent a letter dated 22.5.2004 to the Respondent/Husband praying to live together at least in the interest and welfare of their daughters. Since there was no reply for the same, she sent a reply dated 16.6.2004 rejecting the demand of mutual divorce. 11. During trial, the Respondent/Husband examined himself as P.W.1, and Ex.P.1 Marriage Invitation was marked on his behalf. On the other hand, the Appellant/Wife examined herself as R.W.1 and https://hcservices.ecourts.gov.in/hcservices/ Ex.R.1 was marked on her side. In M.P.No.3 of 2009 filed in the above Civil Miscellaneous Appeal, this Court, by order dated 11.11.2010, permitted the Appellant/Wife to file additional documents, which are marked as Exs.R.2 and R.3. 12. The trial court, on appreciation of the oral and documentary evidence let in by the parties, and after scrutinising the entire oral and documentary evidence on record, had come to a resultant conclusion that the parties were living separately from the year 2003 and that the Respondent/Husband had stated that he was put to mental cruelty in the hands of the Appellant/Wife and therefore, it was not possible for them to live together and held that the Respondent/Husband had proved that the Appellant/Wife had caused him mental and physical cruelty by her arrogant attitude and also by suspecting him and refused to provide him even food in the house. Also, the trial Court had come to the conclusion that though the parties were living in the same house, the Appellant/Wife refused the Respondent/Husband his conjugal rights and also prevented him from seeing his own daughters and thereby caused him mental cruelty. 13. In short, the trial Court had opined that there was no substantial evidence on the side of the Appellant/Wife to prove the allegations made against the Respondent/Husband and accordingly granted the relief of Decree of Divorce as prayed for by the Respondent/Husband. 14. The learned counsel for the Appellant/Wife urges before this Court that the trial Court had committed an error in shifting the burden of proof on the Appellant/Wife to prove her case. However, it is the submission of the learned counsel for the Appellant/Wife that the person, who wants a relief from a Court of law, had to prove his case to the hilt, but, this was not taken into consideration by the trial Court. 15. According to the learned counsel for the Appellant/Wife, the trial Court relied upon the evidence of the Respondent/Husband as P.W.1 and except the ipsi dixit of evidence, there was no other evidence to corroborate his version of the case. 16. It is the case of the Appellant/Wife that there was no misunderstanding between them, but the learned Judge held that there was misunderstanding from the very date of marriage, which is not correct on the basis of available materials on record. 17. The Learned counsel for the Appellant/Wife by pointing out to the effect that the Respondent/Husband had sworn to the effect that his monthly income is only Rs.2,500/- and in evidence, he had admitted before the trial Court that even before his marriage, his income was Rs.2,500/- and later on also his income exceeded more than Rs.2,500/- per month and in view of the evidence tendered by the https://hcservices.ecourts.gov.in/hcservices/ Respondent/Husband, he had committed perjury of Court, and therefore, his evidence could not be relied upon by this Court. 18. The Learned counsel for the Appellant/Wife brings to the notice of this Court that Ex.R.2 reply issued by her to the legal notice issued by the Respondent/Husband shows that the wife was interested only to live with her Husband and in the said reply, she had only prayed for the past acts to be condoned in the interest of the children's welfare. The Learned counsel for the Appellant/Wife placed reliance on a decision of the Supreme Court in Dr.N.G.Dastane vs. Mrs.S.Dastane reported in AIR 1975 SC 1534 wherein it is held as follows:- "Doubtless, the burden must lie on the petitioner to establish his or her case for, ordinarily, the burden lies on the party which affirms a fact, not on the party which denies it. This principle accords with commonsense as it is so much easier to prove a positive than a negative. The petitioner must therefore prove that the respondent has treated him with cruelty within the meaning of Section 10 (1) (b) of the Act." 19. The next decision relied upon by the learned Counsel is one in 95 CWN 806 [Annapurna Ganguly v. Dipak Kumar Ganguly], wherein in paragraph No.7, among other things, it is inter alia observed as under:- "... It is her evidence that "I also saw that after coming from office petitioner would go to Mandira with packets of sweets and stay there up to 2 night." Annapurna suspected that Mandira's husband Hemanta would allow Dipak to stay in his room because they could avail the railway passes obtained by Dipak. This suspicion by the wife about the character of the husband would undoubtedly amount to cruelty provided it is shown that the said conduct is likely to harm or injure the health, reputation, working career or the like of the other spouse. The threat by the wife to her husband that she will put an end to her own life or that she will set the house on fire, the threat that she will make him lose his job and have the matter published in newspapers and the persistent abuses and insults hurled at the husband and his parents are all of so grave an order as to imperil the husband's sense of personal safety, mental happiness, job satisfaction and reputation are important considerations in determining whether the conduct of the respondent amounts to cruelty {see Dastane v. Dastane (supra)] In Krishna Sarbadhikari's case (supra) similar observations were made by Their Lordships. We have so far discussed the circumstances which amount to "cruelty' and those which do not and now we proceed to scrutinise the evidence adduced by the parties at the trial and to see how far and to what extent the petitioner Dipak, on whom lies the burden of https://hcservices.ecourts.gov.in/hcservices/ proof, has been successful in making out the case of cruelty as one of the grounds justifying the decree of divorce." Further, in paragraph 10 of the said judgment, it is held as under:- "...In the present case taking an overall picture of the conduct of the appellant wife and in the absence of any evidence that the suspicious conduct of the wife was such as to cause extreme mental distress to the husband or it was so grave an order as to imperial the husband's sense of personal safety, mental happiness, job satisfaction and reputation", we hold that the said conduct of the respondent did not amount to legal cruelty so as to justify a decree of divorce." In paragraph 14 of the said judgment, it is laid down as follows:- "14.Divorce is not accure for the matrimonial unhappiness and may result in loneliness, despair and hardship more to the child who is 14 years of age. Dipak's parents are dead. His two other brothers have already been married. Mandira, who incurred the displeasure of the wife, has shifted to her newly-built house. The size of the joint family has thus been reduced considerably. Dipak is 54 and Annapurna 52. It is not possible for them to start a new life at this age. Is the reconciliation still an impossibility? The marriage does not deserve dissolution and the petition of divorce is liable to be dismissed." 20. The Learned counsel for the Appellant/Wife seeks in aid of the decision of the Hon'ble Supreme Court in S.Hanumantha Rao v. S.Ramani reported in [1999] 3 SCC 620, wherein it is held that hypersensitivity and panic reaction of complainant-spouse cannot be used to cast blame and make out a case of mental cruelty and further that wife's parents seeking help of Women's Protection Cell in bringing about reconciliation between estranged spouses and when there is no evidence of harassment by the Cell, the representation made by the wife's parents to Women's Protection Cell did not amount to mental cruelty. 21. The Learned counsel for the Appellant/Wife invites the attention of this Court to the decision in Shyam Lata vs. Suresh Kumar reported in AIR 1986 Punjab and Haryana 383, wherein it is held that on wife's complaint, proceedings under Sections 107 and 151 initiated against the husband and his relatives and the proceedings dropped subsequently for want of prosecution, the institution of the said proceedings does not amount to cruelty justifying grant of divorce. 22. The learned counsel for the Appellant/Wife relies on the https://hcservices.ecourts.gov.in/hcservices/ decision in Smt.Archana Mahajan vs. Vinod Mahajan reported in AIR 1998 Madhya Pradesh 220, wherein in paragraph No.21, 31, 32, 34 and 35, it is observed as follows:- "21.In his evidence, he stated that once on account of the complaint made by Archana, he was transferred thrice in a year. He also stated that Archana had made allegations against him in Exs.P.4 and P.5 that he had illicit relations with Kirti Saxena, and had alleged that he wanted to marry that Kirti Saxena. 31."Jealousy thy name is woman". It may be a normal phenomenon in the married life of any persons. Does it amount to making the allegations against the husband charging him of unchastity? Does it amount to making the allegation against him of unchastity? No, unless it is baseless, malignant and disgusting. While assessing the evidence in respect of such averments, the Court has to be cautions about it because by such allegations and loose statements, some other person is likely to be maligned so far as his or her character is concerned. In the present case much has been said about Kirti Saxena without giving her opportunity of putting her say. Such allegations would be damaging her in her character, reputation and mind also. It was totally improper for the learned Judge to grant divorce in favour of respondent Vinod Mahajan and against the appellant on such documents Ex.P.4 and P.5 without making Kirti Saxena a party to proceedings. That may amount to a stigma to said Kirti Saxena who had no opportunity of defending herself from such allegations. When such allegations are made in the matrimonial petition such person must be impleaded as party and has to be awarded opportunity of putting his or her case. Reckless statements made against such person without impleading him or her in the matrimonial petition cannot be said to be proper and legal. 32. "Cruelty" is a relative tem. It varies from person to person, and case to case. The allegations and conduct does not amount to cruelty in every case. It depends on the status of spouses, atmosphere in which they live. That has to be understood by seeing neatly the back ground behind it and effect which is likely to be caused by such allegations and conduct. 34.The appellant and respondent are having two children – a daughter and a son. Learned trial Judge should have also considered that. On such flimsy ground a decree of divorce cannot be granted putting future of such children to jeopardy. By such decree of divorce their https://hcservices.ecourts.gov.in/hcservices/ future would be maligned and that would also be a stigma in their entire future life. That would shatter their minds also. 35.Thus, I have no hesitation in coming to the conclusion that decree of divorce dissolving marriage between the appellant and respondent is not correct, proper and legal; that has to be set aside." 23. Yet another decision relied on by the learned counsel for the Appellant/Wife is in Devram Bilve vs. Indumati reported in [2000] 10 SCC 540, wherein the Hon'ble Supreme Court has held as follows:- "The letters on the basis of which cruelty was sought to be established have not even been referred to by the Division Bench nor do they seem to have been analysed by the Single Judge. Both the courts did not appear to have gone into this aspect in great detail because they decided the appeal in favour of the respondent on the ground that the parties had lived together at Sagar Hotel at Indore and that amounted to an act of condonation. We have some doubt, on the basis of the evidence on record or the lack of it, whether this conclusion is correct and, therefore, it was important for the Single Judge as well as the Division Bench to have examined the evidence on record in order to determine whether the appellant herein had been able to prove that the respondent had committed such acts of cruelty which would entitle the appellant to get a decree of divorce. 24. The other decision relied on the by the learned Counsel is Premendra Gupta vs. Sunita Gupta reported in {2001} 2 MLJ 397, wherein it is observed as follows:- A perusal of the evidence establishing that the conduct of the respondent never inflicted upon the appellant any such mental pain and suffering as would make it not possible for the appellant to live with the respondent. The respondent appears to have never uttered any such words so as to injure the feelings of the appellant and the activities of the respondent were also not of such nature that the appellant cannot reasonably be expected to live with the respondent." 25. Apart from the above, it is the contention of the learned counsel for the Appellant/Wife that the Respondent/Husband even after getting the Decree of Divorce from the trial Court, had shown the name of his wife in the Medical Claim Policy taken by him and this shows that the Respondent/Husband is only interested in her and not seeking the relief of divorce. https://hcservices.ecourts.gov.in/hcservices/ 26. Repelling the submission of the learned counsel for the Appellant/Wife, the learned counsel for the Respondent/Husband submits that from the year 1999, the Appellant/Wife and the Respondent/Husband were separated and they are living apart and the policy taken in the name of the Appellant/Wife is renewed periodically and it is only a continuing policy and therefore, the mere mention of the name of the Appellant/wife in the Medical Claim Policy taken by the Respondent/Husband will not in any way improve the case of the Appellant/Wife, when he had levelled the allegation of cruelty by the Appellant/Wife that he was having extra marital affair with a lady in his office, etc. 27. The Learned counsel for the Respondent/Husband contends that the Respondent/Husband is the Managing Director of a Company wherein 300 persons are employed and even when the Respondent/Husband had interacted with his staff muchless female staff, the Appellant/Wife used to suspect the Respondent/Husband and also enquired about him by giving phone call to the Office and also keeping him under surveillance. These acts unerringly point out that they come within the ambit and purview of the term 'cruelty' and because of the false allegations made against the Respondent/Husband by the Appellant/Wife, the Respondent/Husband was perforced to spend many sleepless nights and days. 28. It is to be noted that the concept of cruelty has been described in Halsbury's Laws of England {Vol. 13, 4th Edition, para 1269} as under:- “The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's https://hcservices.ecourts.gov.in/hcservices/ capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exists.” 29. We deem it appropriate to recall the term "mental cruelty" from 24 American Jurisprudence 2d, wherein it is mentioned as below:- “Mental cruelty as a course of unprovoked conduct toward one's spouse which causes embarrassment, humiliation, and anguish so as to render the spouse's life miserable and unendurable. The plaintiff must show a course of conduct on the part of the defendant which so endangers the physical or mental health of the plaintiff as to render continued cohabitation unsafe or improper, although the plaintiff need not establish actual instances of physical abuse.” 30. We aptly point out the Supreme Court decision in Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan reported in {1981} 4 SCC 250 wherein it is held as under:- "... 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