IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25 - 8 - 2011 CORAM THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR. JUSTICE M. VENUGOPAL C.M.A. No. 48 of 2009 and M.P. No. 1 of 2009 Dr. M. Kumaresan .. Appellant / Respondent vs. Mrs. K. Mohanapriya .. Respondent/ Petitioner Appeals filed under Section 19 of the Family Courts Act against the common decretal order dated 28.9.2007 made in F.C.O.P. No. 1611 of 2004 and M. C. No. 153 of 2005 on the file of the II Additional Principal Judge, Family Court, Chennai. For Appellant : Mr. S. Kalyanaraman For Respondent : Mr. Kumar JUDGMENT (Delivered by M. VENUGOPAL, J.) The Appellant / Husband has preferred the present Civil Miscellaneous Appeal as against the order dated 28.9.2007 in F.C.O.P. No. 1611 of 2004 on the file of the Learned II Additional Principal Judge, Family Court, Chennai. 2. The Respondent / Petitioner (Wife) filed H.M.O.P. No. 1611 of 2004 on the file of the II Additional Family Court, Chennai under Section 13(1)(ia) of the Hindu Marriage Act 1955 seeking the relief of dissolution of marriage that took place between her and the Appellant / Husband on 01.9.1996 at Salem. 3. The Appellant / Husband and the Respondent / Wife got married on 01.9.1996 at K M B Kalyana Mandapam, Salem as per the Hindu rites and customs. The Appellant / Husband was working as https://hcservices.ecourts.gov.in/hcservices/ House Surgeon in a Hospital at Salem. The Respondent / Wife, soon after the marriage, came to know that the Appellant / Husband was a drug addict. It is the case of the Respondent / Wife that the Appellant / Husband consumed liquor throughout the day without visiting the hospital regularly. The Respondent / Wife had not informed about the habit of drug addiction of the Appellant / Husband to her parents and when she informed his parents about it, they simply ignored it. The Appellant / Husband was a drug addict and this fact was suppressed at the time of her marriage. 4. The parties lived initially in Chennai for a few years. Subsequently, because of the Appellant / Husband's drug addict habit and use of drug and also the company of his friends, she was forced to move out of Chennai to her parents' house at Salem. 5. Even in Salem, the Appellant / Husband had not mended his habits. He and his family members abused the Respondent / Wife and he assaulted the Respondent / Wife almost daily and used filthy language against her and her parents. 6. The Appellant / Husband worked in SPMM Hospital, Salem. Because of his indecent behaviour and drug addiction, he was removed from service. The Appellant / Husband had not changed his attitude and also his parents were not bothered to look into the matter. Inspite of the same, the Appellant / Husband continued to consume drugs daily. As a result of the wedlock between the parties, two male children were born. According to the Respondent / Wife, at the time of her first pregnancy, she was treated badly by the Appellant / Husband and his parents. While she was asleep, the Appellant / Husband kicked and threw her out of the room without any cause. He also forced the Respondent / Wife to make a phone call to her parents in Chennai. The Respondent / Wife, at this juncture, even went to the extent of thinking to commit suicide. But she had not ventured to do so taking note of the interest of her children. With a view to rehabilitate the Appellant / Husband from the habit of drug addiction, the Respondent / Wife came to Chennai with the help of her parents during August 2001. The Appellant / Husband was brought to Dr.Mu.Va. Hospital in Shenoy Nagar, Chennai for treatment under the guidance of Dr. Bashyam. Earlier, he had not co-operated with the rehabilitation programme but with the assistance of Dr. Bashyam, he recovered from the drug addict habit. 7. According to the Respondent / Wife, she used to accompany the Appellant / Husband to the clinic with her first child daily to keep him away from the drug habit. The Respondent / Wife was pregnant for the second time. Even during her 8 months' pregnancy, she accompanied the Appellant / Husband and monitored his https://hcservices.ecourts.gov.in/hcservices/ activities. 8. The Appellant / Husband one day abused the Respondent / Wife when he purchased the drug in her presence. The Respondent / Wife was prevented from talking to her parents over phone. It is the version of the Respondent / Wife that the Appellant / Husband's mother gave a cigarette and wine bottle to her first son and forced him to smoke and consume the same. But such an attempt was thwarted at her intervention. Subsequently, some new individuals came to her house. The Appellant / Husband also admitted that he was not happy with Ganga and started using heroin. The Respondent / Wife was shocked over this kind of attitude of the Appellant / Husband and later, his hands started shivering. Moreover, he could not stand or sit for a few minutes in a particular place. All the efforts taken by the Respondent / Wife to rehabilitate the Appellant / Husband proved futile. She got frustrated over the attitude of the Appellant / Husband. Her two children are living with her. Unable to bear the cruelty meted out by the Appellant / Husband, she was constrained to file the petition to dissolve the marriage as per Section 13-1 (i-a) of the Hindu Marriage Act, 1955. 9. The Respondent / Wife also filed a petition for maintenance in M.C. No. 153 of 2005 and both F.C.O.P. No. 1611 of 2004 and M.C. No. 153 of 2005 were tried jointly on the basis of a Memo being filed therein. A common evidence was recorded and the evidence documents were marked in F.C.O.P. No. 1611 of 2004. 10. On the side of the Respondent / Wife, she examined herself as P.W.1 and Exs. P.1 to P.7 were marked. On the side of the Appellant / Husband, he was examined as R.W.1 and no documents were marked. 11. The trial Court, on an analysis and appreciation of oral and documentary evidence available on record, had come to a resultant conclusion that the Respondent / Wife as petitioner in F.C.O.P. No. 1611 of 2004 had proved the aspect of cruelty meted out by the Appellant / Husband and accordingly, allowed F.C.O.P. No. 1611 of 2004 by dissolving the marriage between the Respondent / Wife and the Appellant / Husband that took place on 01.9.1996 at K.M.B. Kalyana Mandapam, Salem. Further, the trial Court in M.C. No. 153 of 2005, granted a sum of Rs. 3000/- p.m. to the first respondent / petitioner as maintenance and also a further sum of Rs. 1500/- p.m. to each of her two sons as maintenance from the date of petition, i.e., 17.3.2005. 12. The Appellant / Husband had preferred the present Civil Miscellaneous Appeal before this Court only as against the order dated 28.9.2007 passed by the trial Court in F.C.O.P. No. 1611 of https://hcservices.ecourts.gov.in/hcservices/ 2004. 13. The point that arises for determination of this Civil Miscellaneous Appeal is "Whether the Respondent / Petitioner (Wife) is entitled to claim the relief of divorce from Appellant / Respondent (Husband) in F.C.O.P. No. 1611 of 2004 on the file of the II Additional Family Court, Chennai?" 14. The Learned Counsel appearing for the Appellant / Husband urges before this Court that the trial Court failed to comply with the procedure indicated as per Section 9 of the Family Courts Act as well as Section 23 of the Hindu Marriage Act. 15. It is the further contention of the Learned Counsel for the Appellant / Husband that the trial Court, without acceptable evidence regarding the allegations of the Respondent / Wife, had rendered a wrong finding that the Appellant / Husband had committed an action of cruelty on his Wife. 16. According to the Learned Counsel for the Appellant / Husband, no one from SPMM Hospital, Salem, was examined to prove that the Appellant / Husband's services were terminated because of his drug addiction. 17. The Learned Counsel for the Appellant / Husband contends vehemently that Ex.P.4 letter contents would not in any way strengthen the case of the Respondent / Wife in regard to the allegation of cruelty made by her in the Original Petition. 18. In short, it is the submission of the Learned Counsel for the Appellant / Husband that none of the points in which divorce was sought for by the Respondent / Wife was proved or even admitted to be proved during the course of the trial of F.C.O.P. No. 1611 of 2004. 19. Lastly, it is the submission of the Learned Counsel for the Appellant / Husband that the evidence of the Appellant / Husband as R.W.1 clearly points out that he had a genuine desire to live with the Respondent / Wife and lead a peaceful life which aspect of the matter was not appreciated in its proper and real perspective. 20. Conversely, it is the contention of the Learned Counsel for the Respondent / Wife that the trial Court had taken note of the relevant facts and circumstances of the case in a cumulative manner. It had also considered the evidence of P.W. 1, viz., Respondent / https://hcservices.ecourts.gov.in/hcservices/ Wife and had come to the right conclusion that the Appellant / Husband caused cruelty to the Respondent / Wife and the same need not be interfered with by this Court at this distance of time. 21. It is to be noted that after the Marriage Laws (Amendment) Act, 1976, cruelty is a ground for divorce as well as Judicial Separation. Before amendment, it was only a ground for Judicial Separation and not for divorce. 22. The mental cruelty must be of such a kind that the parties cannot live together jointly. 23. In Jem vs. Jem 33 reported in (1937) 34 Haw 312, the Hon'ble Supreme Court of Hawii observed that "Cruel treatment not amounting to physical cruelty is mental cruelty". 24. It is to be borne in mind that numerous acts considered separately in isolation may not be hurtful but small, yet when considered in an overall assessment of the fact situation in a given case, they will come within the ambit of cruelty. Use of repeated rude language, neglect indifferent and petulance of manner might reach a stage that makes the matrimonial life for the opposite spouse completely an intolerable one. A humiliating treatment with an object of torture will make the life of other spouse miserable and pitiable one. 25. We worth recall the decision in Rosenbaum v. Rosenbaum (1976) 38 111 App 3d 1 whereby and whereunder the Appellate Court of Illinois observed thus: "To prove a case entitling a spouse to divorce on the ground of mental cruelty, the evidence must show that the conduct of the offending spouse is unprovoked and constitutes a course of abusive and humiliating treatment that actually affects the physical or mental health of the other spouse, making the life of the complaining spouse miserable or endangering his or her life, person or health". 26. A studied neglect, continuous reprehensible conduct, complete departure of normal conjugal affection and deriving sadistic pleasure would amount to cruelty. 27. The term "accusation" in Oxford English Dictionary means "the act of accusing, or being accused, the charge, or the declaration containing it, and indictment". As per Webster's Encyclopaedic Unabridged Dictionary, the word "accusation" means "a charge of wrong doing, imputation of guilty or blame, the specific https://hcservices.ecourts.gov.in/hcservices/ offence charged; the act of accusing or charging." 28. In Law Dictionary, the term "accusation" has been defined as "a charge against a person or corporation. In its wider sense, it encompasses indictment, presentment, information and any other form in which charge of crime or offence can be made against a person. 29. Levelling disgusting allegations / accusations is a serious assault on character, honour, reputation, status and health of a Wife. 30. In matrimonial relations, each spouse generally is supposed to have tolerance and adjustability. However, a Court, dealing with the petition for divorce, should not be too technical and hyper-sensitive in its approach to the subject matter in issue. 31. A pungent intentional and deliberate statement made by the offending against another spouse could not be brushed aside so lightly. 32. In the instant case on hand, it is quite evident from the Discharge Summary that the Appellant / Husband was admitted in Dr. Mu. Va. Hospital on 02.8.2001. A perusal of the Discharge Summary goes to point out that the Appellant / Husband was admitted for altered behaviour for the past few years, aggressiveness, inability / altered Acusoeium / hallucination / suicidal tendency. The Appellant / Husband, as R.W.1, in his evidence, has deposed that he used to get angriness and depression. He also admitted during the course of his evidence that he wrote Ex. P.4 letter in which he had mentioned that he was not able to control himself and he uttered vulgar words without his knowledge. It is needless for this Court to point out that admission in one's evidence is the best version of evidence and the very fact that the Appellant / Husband was unable to control himself and his uttering of vulgar words prove clearly that he caused mental agony and torture upon the Respondent / Wife and his evidence to that effect ought not to be discarded so lightly. 33. The evidence of P.W.1 (Respondent / Wife) before the trial Court was to the effect that the Appellant / Husband's mother gave cigarette and wine to her first son and at her intervention, she prevented the same. However, this part of evidence of the Respondent / Wife was denied by the Appellant / Husband. Even though the Appellant / Husband had denied the factum of the https://hcservices.ecourts.gov.in/hcservices/ incident, he had not chosen to examine his mother to repudiate the same. Inasmuch as the Appellant / Husband's mother was involved in the matter in issue, the non-examination of his mother was, indeed, a fatal one in the considered opinion of this Court. 34. Earlier, the Appellant / Husband was serving in SPMM Hospital as Doctor for seven months. It was mentioned that due to his misbehaviour and drug addiction, he was relieved from the Hospital. Subsequently, he started a separate Hospital to have his own livelihood and to improve his profession and earnings. On the side of the Appellant / Husband, no evidence was let in or adduced to show as to why he left the SPMM Hospital and why he set up a separate Hospital. Inasmuch as the Appellant / Husband had not let in any evidence to establish as to why he had left the earlier SPMM Hospital and since in a civil case like this nature, a preponderance of probability has to be taken note of by this Court, this Court is left with no other option but to accept the version projected by the Respondent / Wife that only because of his abnormal behaviour and due to drug addiction, he was relieved from the SPMM Hospital where he was working earlier. 35. The Respondent / Wife before the trial Court, had come out with a plea that she was beaten by the Appellant / Husband. The Appellant / Husband, as R.W.1, had, in his evidence (in cross- examination), tacitly admitted that he used to get angry and depression. Ex.P.4 letter was written in his own handwriting wherein he made a mention that he used to get irritation and could not control himself. Further, he proceeded to use vulgar words. The contents of Ex.P.4, prima facie, go against the stand taken by the Appellant / Husband. In short, the contents of Ex.P.4 and in view of the admission of the Appellant / Husband as R.W. 1 that he had beaten the Respondent / Wife physically, the evidence of the Respondent / Wife as P.W.1 in this regard are accepted by this Court. No Hindu woman would accept the husband to beat her physically and that too, violently and also to use vulgar words on her. A Husband beating the wife is certainly a Human Rights violation besides attracting the provisions of Domestic Violence Act. Inasmuch the Appellant / Husband had admitted that he used to get irritation and also used vulgar words and because of another fact that Ex.P.4 contents unerringly point out that he had beaten the Respondent / Wife, we come to an inevitable conclusion that the Appellant / Husband had treated the Respondent / Wife cruelly and also committed cruelty upon her. On this score alone, the Respondent / Wife was entitled to claim the relief of divorce as prayed in the F.C.O.P.. Consequently, the Civil Miscellaneous Appeal filed by the Appellant / Husband is devoid of merits. 36. In this connection, we pertinently point out that as https://hcservices.ecourts.gov.in/hcservices/ regards, M.C. No. 153 of 2005, the Appellant / Husband, being a Dental Surgeon, was expected to earn an income of Rs. 25,000/- per month though the Appellant / Husband before the trial Court, in his evidence, had deposed that he had not owned any building in his name in Salem and he was only getting a sum of Rs. 2000/- per month as average income, these aspects were disbelieved by the trial Court. Finally, taking note of the fact that the Appellant / Husband, being a Dental Surgeon, would earn an average income of Rs. 25,000/- per month, it granted a sum of Rs. 3000/- per month to the Respondent / Wife and also granted Rs. 1500/- per month to each of her children being the maintenance amount, which, in our considered opinion, was a reasonable, fair and equitable one. In the result, the Civil Miscellaneous Appeal is dismissed leaving the parties to bear their own costs. The order of the Family Court in F.C.O.P. No. 1611 of 2004 is affirmed by this Court for the reasons assigned in this Appeal. Consequently, the connected Miscellaneous Petition is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. gri To 1. The II Additional Principal Judge, Family Court, High Court Buildings, Chennai 104. 2. The section Officer VR Section, High Court, Madrs 1 cc to M/s. S. Kalyanaraman, Advocate, Sr. 53122 1 cc to Mr. Kumar, Advocate, Sr. 53036 C.M.A. No. 48 of 2009 RK (CO) kk 21/9 https://hcservices.ecourts.gov.in/hcservices/