IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.06.2011 CORAM THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO and THE HONOURABLE MR. JUSTICE M.VENUGOPAL Civil Miscellaneous Appeal Nos.3993 and 3994 of 2008 and C.M.P.Nos.1 of 2008 and 1 of 2009 Tmt.Bhuvaneswari @ Sharmila ... Appellant in both the appeals vs M.Prabakaran ... Respondent in both the appeals. Prayer:- Civil Miscellaneous Appeals filed under Section 19 of the Family Courts Act against the common order dated 30.09.2008 in F.C.O.P.Nos.1099 of 2005 and 1915 of 2004 passed by the II Additional Principal Judge, (Incharge of I Additional Family Court, Chennai). For Appellant : Mr.K.Sakthivel For Respondent : Mr.S.Ananthanarayanan J U D G M E N T (Judgment of the Court was delivered by M.VENUGOPAL, J.) The Appellant/Wife has preferred the present Civil Miscellaneous Appeal Nos.3993 and 3994 of 2008 as against the Judgment and Decree, dated 30.09.2008, in O.P.Nos.1099 of 2005 and 1915 of 2004 respectively, on the file of the First Additional Family Court, Chennai. 2. The Appellant/Wife is the petitioner in F.C.O.P.No.1915 of 2004 and she has filed the said original petition against the Respondent/Husband praying for the dissolution of marriage on the grounds of Cruelty and Desertion, as per Section 13(1) (i), (1-a) and (1-b) of the Hindu Marriage Act, 1955. 3.The Respondent/Husband has filed F.C.O.P.No.1099 of 2005 under Section 9 of the Hindu Marriage Act, 1955 praying for Restitution of Conjugal Rights. 4.Before the trial Court, both the petitions, viz., F.C.O.P.Nos.1915 of 2004 and 1099 of 2005 were tried together and a https://hcservices.ecourts.gov.in/hcservices/ common order has been passed by the trial Court. The trial Court has resultantly dismissed O.P.No.1915 of 2004 filed by the Appellant/Wife on the ground of cruelty and desertion and permanent alimony. However, she was given the permanent custody of the minor child, Moniessh. 5. In regard to F.C.O.P.No.1099 of 2005 filed by the Respondent/ Husband praying for restitution of conjugal rights as per Section 9 of the Hindu Marriage Act, the trial Court has partly allowed the petition and directed the Appellant/Wife to restore to the Respondent/Husband all the comforts and bliss of married life immediately. As regards the permanent custody of the minor child, it was given to the Appellant/Wife. However, the Respondent/ Husband was granted the visitation rights once in a month on the second Sunday of every month near the Fire Station situated in the High Court Campus and the Appellant/Wife was directed to produce the child at 10.30 a.m. and taken back the child at 4.00 p.m. 6. Being dissatisfied with the dismissal of the O.P.No.1915 of 2004, the Appellant/Wife has filed C.M.A.No.3994 of 2008 and as regards O.P.No.1099 of 2005 filed by the Respondent/Husband, since the trial Court has partly allowed the said original petition, the Appellant/Wife has preferred C.M.A.No.3993 of 2008. 7. The points that arise for determination in C.M.A. No.3994 of 2008 are: "(i) Whether the Appellant/Wife is entitled to claim the relief of Dissolution of Marriage dated 25.05.2001 on the ground of Cruelty and Desertion? (ii) Also whether the Appellant/Wife is entitled to claim the monthly permanent alimony of Rs.10,000/- from the Respondent/Husband? The Point that arises for consideration in C.M.A.No.3993 of 2008 is: "Whether the Respondent/Husband in F.C.O.P.No.1099 of 2005 is entitled to claim the relief of Restitution of Conjugal Rights?” 8. It is the contention of the learned counsel for the Appellant/Wife that the Family Court has treated the character assassination, doubting the fidelity, surveillance in the matrimonial house etc. as normal happenings in a house and has concluded that these are not cruelty by the respondent or his family members. 9. According to the learned counsel for the Appellant/Wife, the trial Court has failed to discuss the evidence of the Appellant/ https://hcservices.ecourts.gov.in/hcservices/ Wife, instead has rejected the same as normal happenings in every house. 10. It is the case of the Appellant/Wife that in spite of numerous endeavours, the Respondent/Husband refused to take back the Appellant/Wife and therefore, it is a clear case of desertion, which has not been taken note of by the trial Court in a proper and real perspective. 11. Advancing his arguments, the learned counsel for the Appellant/Wife submitted that when there has been no evidence as regards the payment and maintenance by the Respondent/Husband, the trial Court has erroneously assumed as if the Respondent/ Husband has been paying maintenance and concluded that the Respondent/Husband has not deserted the Appellant/Wife and their son. 12. Expatiating the submission, it is the contention of the learned counsel for the Appellant/Wife that the trial Court has failed to take into account that the fact of cruelty of the Respondent/Husband in the family as far as torturing his wife by indulging in her character assassination has been proved beyond doubt. 13. The learned counsel for the Appellant/Wife invites the attention of this Court as far as the desertion of the Appellant/Wife is concerned, the marriage between the parties took place on 25.05.2001 and that the Respondent/Husband took the Appellant/ Wife to her parents house on 10.11.2001 under the guise of 'Thalai Deepavali' and thereafter, the Respondent/Husband had not cared even to speak to the Appellant/Wife, leave alone visiting her till the filing of the petition on 20.08.2004. Also when the Appellant/ Wife was pregnant, she was thrown out of her matrimonial home and delivered the child on 17.06.2002. Notwithstanding the fact, the Respondent/Husband was informed of the delivery of the child, he neglected to maintain the Appellant/Wife and also the child. These facts were not repudiated or contradicted by the Respondent/Husband, according to the learned counsel for the Appellant/Wife. Therefore, it is a clear case of desertion. However, these aspects of the matter have not been adverted to by the trial Court. 14. The learned counsel for the Appellant/Wife submits that the Appellant/Wife was asked to do all the household chores without the assistance of any other family members and servant maids and in fact, there were two servant maids before the marriage that took place between the parties, but as soon as the Appellant/Wife entered the matrimonial home, the servant maids were stopped from service and the Appellant/Wife was asked to do all the household chores and at times, even odd jobs like lifting the filled gas cylinder. 15. The learned counsel for the Appellant/Wife contends that when the Appellant/Wife was three months pregnant, the Respondent/Husband deserted her and he had not taken any care or https://hcservices.ecourts.gov.in/hcservices/ shown interest on the child till the child was 4 ½ years old. Only after the Appellant/Wife filing O.P.No.1915 of 2004, seeking the relief of divorce and child custody, the Respondent/Husband showed interest on the child. Another important fact that the trial Court had ignored to take into consideration is the fact that the Respondent/Husband had filed a petition in F.C.O.P.No.1099 of 2005 for restitution of conjugal rights only to thwart the Appellant/ Wife obtaining an order of divorce. 16. Before the trial Court, on the side of the Appellant/Wife, witnesses, P.Ws.1 and 2 were examined and Exs.P-1 to P-8 were marked. On the side of the Respondent/Husband, witnesses, R.Ws.1 to 3 were examined and Exs.R-1 to R-36 were marked. 17. It is not in dispute that the marriage between the parties took place on 25.05.2001. It is the case of the Appellant/Wife that whenever she went to the temple, she was followed by her mother-in- law and suddenly she was kept under surveillance by the Respondent/Husband's side and it amounted to cruelty. Also the Respondent/Husband, in his evidence, had clearly admitted that he had obtained the salary certificate of the Appellant/Wife through a Detective Agency and this also would go to show that the Appellant/Wife was given the treatment of cruelty by the Respondent/Husband. 18. At this juncture, the learned counsel for the Appellant/ Wife cites the decision of the Hon'ble Supreme Court reported in Samar Ghosh -vs- Jaya Ghosh [(2007) 4 Supreme Court Cases 511], wherein it has been observed at Page Nos.511 and 512 that “there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair.” Further it is also observed that “by refusing to sever the marriage tie, the law inn 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 etc. and the irresistible conclusion would be that the matrimonial bond had been ruptured beyond repair because of the mental cruelty caused by the respondent and this was a clear case of irretrievable breakdown of marriage.” Moreover, the Hon'ble Supreme Court opined that “they can never be any straightjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. 19. The Hon'ble Supreme Court in the aforesaid decision at page Nos.529 to 536 has observed as follows:- "39. The Shorter Oxford Dictionary defines 'cruelty' as 'the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another's pain; mercilessness; hard-heartedness'. https://hcservices.ecourts.gov.in/hcservices/ 40.The term "mental cruelty" has been defined in the Black's Law Dictionary [8th Edition, 2004] as under: "Mental Cruelty - As a ground for divorce, one spouse's course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse." 41. The concept of cruelty has been summarized 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 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 exits." 42. In 24 American Jurisprudence 2d, the term "mental cruelty" has been defined as under: "Mental Cruelty as a course of unprovoked conduct toward one's spouse which causes embarrassment, humiliation, and anguish so as to https://hcservices.ecourts.gov.in/hcservices/ 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." 43. In the instant case, our main endeavour would be to define broad parameters of the concept of 'mental cruelty'. Thereafter, we would strive to determine whether the instances of mental cruelty enumerated in this case by the appellant would cumulatively be adequate to grant a decree of divorce on the ground of mental cruelty according to the settled legal position as crystallized by a number of cases of this Court and other Courts. 44. This Court has had an occasion to examine in detail the position of mental cruelty in N.G. Dastane v. S. Dastane reported in (1975) 2 SCC 326 at page 337, para 30 observed as under :- "The enquiry therefore has to be whether the conduct charges as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent." 45. In the case of Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr. reported in (1981) 4 SCC 250:1981 SCC (Cri) 829, this Court stated that 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. 46. In the case of Shobha Rani v. Madhukar Reddi reported in (1988) 1 SCC 105: 1988 SCC (Cri) 60, this Court had an occasion to examine the concept of cruelty. 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 47.In Rajani v. Subramonian AIR 1990 Ker. 1, the Court aptly observed that the concept of cruelty depends upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance, judged by standard of modern civilization in the background of the cultural heritage and traditions of our society. 48. Again, this Court had an occasion to examine in great detail the concept of mental cruelty. In the case of V. Bhagat v. D. Bhagat (Mrs.) reported in (1994) 1 SCC 337, the Court observed, in para 16 at page 347, as under: "16. Mental cruelty in Section 13(1) (i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While https://hcservices.ecourts.gov.in/hcservices/ arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made." 49. This Court aptly observed in Chetan Dass v. Kamla Devi reported in (2001) 4 SCC 250, para 14 at pp.258-259, as under: "Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of "irretrievably broken marriage" as a straitjacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case." 50. In Savitri Pandey v. Prem Chandra Pandey reported in (2002) 2 SCC 73, the Court stated as under: "Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that https://hcservices.ecourts.gov.in/hcservices/ it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other." 51.This Court in the case of Gananath Pattnaik v. State of Orissa reported in (2002) 2 SCC 619: 2002 SCC (Cri) 461, observed as under: "The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. "Cruelty" for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case." 52. The mental cruelty has also been examined by this Court in Parveen Mehta v. Inderjit Mehta reported in (2002) 5 SCC 706 at pp.716-17 [para 21] which reads as under: "21. Cruelty for the purpose of Section 13 (1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by https://hcservices.ecourts.gov.in/hcservices/ itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other." 53. In this case the Court also stated that so many years have elapsed since the spouses parted company. In these circumstances it can be reasonably inferred that the marriage between the parties has broken down irretrievably. 54. In A. Jayachandra v. Aneel Kaur reported in (2005) 2 SCC 22, the Court observed as under:(Paras.10, 12 & 13) "10.The expression "cruelty" has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse, same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of https://hcservices.ecourts.gov.in/hcservices/ mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes. 12.To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of