IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:11.10.2011 CORAM THE HON'BLE MRS. JUSTICE R.BANUMATHI and THE HON'BLE MR. JUSTICE B.RAJENDRAN O.S.A.No.355 of 2006 and M.P.No.1 of 2006 David Christopher ... Appellant/Respondent Vs. Dr.Jayanthi ... Respondent/Petitioner Original Side Appeal is filed under Order XXXVI Rule 1 of the Original Side Rules read with Clause 15 of the Letters Patent against the order dated 13.04.2006 made in O.M.S.No.15 of 2001 on the file of this Court. For Appellant : Mr.A.R.Nixon For Respondent : Ms.Chitra Sampath JUDGMENT R.BANUMATHI,J This appeal is preferred against the order dated 13.04.2006 made in O.M.S.No.15 of 2001 allowing the Petition filed by Respondent- wife and dissolving the marriage between the Appellant and the Respondent which was solemnised on 11.12.1984. 2. Briefly stated case of Respondent-wife is that Appellant and his family migrated from Sri Lanka to India and Appellant joined in Madras Medical College and Respondent was also a student in the same college. Both of them loved each other. Respondent was a Hindu and Appellant was a Christian. Respondent got converted to Christianity and the name of the Respondent has been changed to "Mary Jayanthi" and the marriage was solemnised at Velankanni Church, Besant Nagar, Chennai. After getting over the initial difficulties of love marriage, both Appellant and the Respondent set up a matrimonial house and Respondent started her practice as Doctor in 1986. Out of the wedlock, first daughter Krithi was born on 29.09.1987 and second daughter Shruthi was born on 14.01.1994. In 1993, Appellant began an export business and in the course of his export business, Appellant https://hcservices.ecourts.gov.in/hcservices/ was detained at Trivandrum for a period of 14 months for allegedly smuggling gold. Appellant agreed to mend his ways and Respondent and her mother took all possible steps to take him out on bail. On 21.04.1996, bail was granted and Appellant returned to Madras. 3. Appellant is alleged to have developed friendship with another detenu who had been released earlier than the Appellant. But the Appellant was suspicious about the conduct of the Respondent-wife that she had developed relationship with the said Padmakumar and ill- treating her on that suspicion. On 26.05.1996, Appellant attempted to strangulate the Respondent. Fearing for her life and safety of the children, Respondent left the house to live with her parents. Appellant again agreed to change his ways and that on 05.06.1996, an agreement was entered into between the parties and Respondent returned to the matrimonial house. After a few months, Appellant again physically and verbally abused the Respondent and on 28.01.1997, Respondent returned to her parents house. Appellant forcibly entered into the Respondent's parents house and took away the children and put them in a Boarding School in Ooty, even though the younger child was only 3 years old. Only on the orders of the Court dated 16.06.1997, Respondent was able to get back the custody of the children. In the said order, Appellant was permitted to visit the children once in a week in the Respondent's house. 4. The above arrangement continued till February 2000, when the younger daughter fell ill and needed to have her tonsils surgically removed. Appellant began visiting the children more often and began interacting with the Respondent and Appellant requested the Respondent to give him one more chance to mend his ways. Keeping in mind the future of the children, Respondent rejoined the Appellant and they moved into No.54, First Main Road, Indira Nagar, Chennai-20 in October 2000. After a short while, Appellant reverted to his old ways and began accusing the Respondent having affairs and Appellant physically abused the Respondent. In November 2000, again problem arose and Respondent returned to her parental house on 03.12.2000. On 09.12.2000, Appellant alleged to have broken into the Respondent mother's Flat M-48-B, L.B.Road, Adyar, Chennai and re-occupied the same for which a police complaint was also lodged. According to Respondent, inspite of all chances given to the Appellant, he continued to abuse the Respondent and manhandled her and therefore, Respondent was forced to leave the matrimonial house on 03.12.2000. In February 2001, Respondent filed O.P.No.15 of 2001 under Section 10 of Indian Divorce Act seeking for dissolution of the marriage solemnised between her and the Appellant on 11.12.1984. 5. Admitting the marriage and resisting all other allegations in the Petition, Appellant filed counter-statement contending that Respondent was insisting to join her father's MARC II Clinic and Appellant was not permitting the Respondent to join MARC II Clinic https://hcservices.ecourts.gov.in/hcservices/ and therefore, Respondent was always quarrelling with the Appellant. It is alleged that in anxiety to go and join in MARC II Clinic, the Respondent voluntarily left the matrimonial home on 26.05.1996. Appellant has alleged that again Respondent voluntarily left for her parents house in January 1997 leaving the children with the Appellant and Appellant took care of the children and admitted them in a Boarding School at Ooty. It is alleged that Appellant visited the children several times whereas the Respondent never visited Ooty to see the children. 6. Appellant has further alleged that on 29.09.2000, he received an information from his mother-in-law about the admission of the Respondent in Chennai Kaliappa Hospital and he came to know that the diagnosis was "incomplete abortion". Appellant is alleged that he did not have any sexual connection with the Respondent and that the conceivement is not due to him. However, the Appellant as true Catholic pardoned the Respondent and was prepared to take her home in the interest of the minor children and he did not want the name of the Respondent to be spoiled. Thereafter, at the instance of the Respondent, they took house for rent at No.54, First Main Road, Indira Nagar, Chennai-20. Respondent wanted to attend a conference to be held on 01.12.2000 at Vellore along with her father and because of her physical condition, Appellant insisted that Respondent should not go to Vellore to attend the conference. Thereafter, Respondent wanted to attend another conference on 03.12.2000 at GRT Hotel, Chennai and thereafter, inspite of insistence, Respondent did not return home. According to Appellant, in 2003 even during the pendency of O.P., both Appellant and the Respondent went together for a marriage and stayed in a hotel at Bangalore. Appellant has denied causing any mental cruelty to the Respondent and alleged that Respondent left the matrimonial house voluntarily on 03.12.2000 and therefore, the Petition is not maintainable. 7. On the above pleadings, two issues were framed. Respondent examined herself as PW1 and her mother-Thillainayagi Rajsekaran was examined as PW2. On the side of Respondent, Exs.P1 to P10 were marked. Appellant examined himself as RW1 and Exs.R1 to R6 were marked. 8. Upon consideration of oral and documentary evidence, learned single Judge held that the allegations expressing doubts about fidelity and chastity of the wife would amount to mental cruelty. Placing reliance upon 2003-4-LW 609 (Vijayakumar Rachandra Bhate v. Neela Vijaykumar Bhate), the learned single Judge held that levelling accusations of unchastity and indecent familiarity with a person outside wedlock is a grave assault on the character of the wife and the allegations are per se cruel in nature. Pointing out that from October 2000 both the Appellant and Respondent were living together and that Appellant must be the cause for conceivement, the learned https://hcservices.ecourts.gov.in/hcservices/ single Judge held that "to allege that Appellant is not the cause for conceivement" would amount to mental cruelty. Accepting the evidence of PW1 that she was subjected to physical cruelty, learned Judge held that because of ill-treatment and unbearable torture given by the Appellant, Respondent was compelled even to go to the Police Station seeking protection. Learned single Judge held that " .... assuming that the physical cruelty is not made out, there is no reason to negative the claim of the Respondent regarding the "mental cruelty" which is proved by attending circumstances and that the marriage life has irretrievably broken down ....". On those findings, the learned Judge allowed the Petition dissolving the marriage between the Appellant and the Respondent. 9. Challenging the impugned order of the learned single Judge, Mr.A.R.Nixon, learned counsel for Appellant has contended that learned Judge has failed to note that from the date of marriage Appellant has sacrificed his life for the sake of Respondent and that the learned Judge did not keep in view that the parents of the Respondent were responsible for the differences between the spouse and the learned Judge has arrived at a wrong conclusion that Appellant has caused mental cruelty to the Respondent. It was further submitted that no convincing proof was produced to establish that Appellant inflicted cruelty to cause reasonable apprehension in the mind of the Respondent. On the other hand, the conduct of the Respondent would clearly show that even after filing of the Petition, the spouses were in good terms and together going to Bangalore to attend a marriage. It was further submitted that the learned Judge erred in relying upon the interested testimony of PW2-mother of the Respondent. It was further argued that even though the learned Judge has come to the conclusion that there was no physical cruelty, erred in granting divorce on the ground of mental cruelty. 10. Ms.Chitra Sampath, learned counsel appearing for Respondent has submitted that inspite of many opportunities given to the Appellant to mend his ways, Appellant has not mended himself and that he continuously inflicted mental cruelty upon the Respondent. Reiterating the findings, learned counsel would further submit that upon analysis of the evidence and materials, learned Judge rightly held that the allegations levelled against the Respondent would certainly amount to mental cruelty and that the marriage life has gone to the extent of "no point of return", granted decree of divorce and the impugned order cannot be interfered with. 11. The facts are not in dispute. Love marriage between the Appellant and the Respondent was solemnised on 11.12.1984. For the purpose of marriage, Respondent got converted to Christianity. After getting over the initial obstacles of love marriage, the spouses lived happily till 1994. In 1995, Appellant was detained under COFEPOSA for allegedly smuggling gold from Singapore. He was https://hcservices.ecourts.gov.in/hcservices/ released on bail on 21.04.1996. Respondent alleges that Appellant had developed friendship with another co-detenu Padmakumar who was released earlier than the Appellant. Per contra, Appellant alleges that Respondent became very close to the said Padmakumar and that she had developed acquaintance with the said Padmakumar. 12. In Paragraph (14) of his counter Appellant has alleged that ".... Respondent developed illegal connection with the said Padmakumar". In Paragraph (4) of the counter-affidavit filed by the Appellant in O.P.No.382 of 1997, the Appellant has also reiterated the same. In Paragraph (23) of the order, the learned Judge inextenso extracted Paragraph (14) of the counter-affidavit wherein the Appellant has levelled accusations against the Respondent. 13. Elaborating upon the alleged friendship between the Respondent and Padmakumar in Paragraph (14), Appellant has alleged that ".... he will submit more details and particulars regarding the relationship of the Respondent along with the said Padmakumar; but he does not want to divulge all the matters now taking into consideration of the future of the children". Asserting that Respondent is living in adultery, the Appellant has alleged that ".... if necessity arises for the Appellant to file a Petition for divorce, he will give more particulars". In Paragraph (15) of the counter-affidavit, Appellant has alleged that "... it is clear that Petitioner/Respondent had been having illegal connection with the Padmakumar". In Paragraph (16) of the counter, the Appellant has alleged that ".... even now the Petitioner/Respondent is having close contact with Padmakumar by correspondence over phone calls". 14. When the Appellant/RW1-David Christopher was in the witness box, he had disowned the above allegations made in the counter filed by him. In his evidence, RW1 has denied having made any allegations that the Respondent was having any illicit relationship with anybody. Denying the suggestion that he doubted the integrity of the Respondent, in his evidence, Appellant-RW1 has stated as under:- " .... I never suspected that the petitioner had any relation with the said Padma Kumar. It is not correct to state that after I came out on bail, I doubted the integrity of the petitioner and suspected that she had relation with the said Padma Kumar." When he was confronted with the allegations made in Paragraph Nos. (14) and (15), Appellant has stated that "those averments made in Paragraph Nos. (14) and (15) are not correct". Per contra, in her evidence, Respondent-PW1 has categorically stated that "Appellant was always suspected about her". In her evidence, Respondent had also deposed that "..... Appellant suspected that the Respondent had developed relationship with co-detenu and on 25.6.1996, Appellant picked up a quarrel with her and tried to strangulate her". In her evidence, Respondent has reiterated that ".... Appellant has been https://hcservices.ecourts.gov.in/hcservices/ abusing her physically and verbally and that she could not tolerate the physical abuse". PW2-mother of the Respondent had also reiterated that Appellant had abused the Respondent. 15. From the evidence of Pws.1 and 2, the Respondent has proved that Appellant had sustained the conduct of making false accusations. In his cross-examination, Appellant sought to disown the allegations. His persistent conduct in making such accusations would certainly amount to mental cruelty affecting the physical and mental health of the spouse. 16. Appellant and Respondent rejoined in August 2000 and after residing in PW2's flat for a while, they moved to a separate flat in Indira Nagar, Chennai-20. On 28.09.2000, Respondent was admitted in Chennai Kaliappa Hospital with complaints of bleeding PV since 1½ months and discharged on 29.09.2000. In her evidence, PW1 has stated that she had gynaecological problem and had to undergo treatment. To show that she had gynaecological problem, Respondent had produced Ex.P6-scan report in which it is stated that Uterus bulky and that hypoechoic lesion in the cervix – Nabothian cyst and normal appearance of ovaries. Though the Respondent has denied having had any incomplete abortion, from Ex.P7-Discharge summary it is seen that Respondent was diagnosed "incomplete abortion". 17. While referring to the admission of the Respondent in Chennai Kaliappa Hospital, in Paragraph (21) of the counter-affidavit, the Appellant alleged that " the Respondent last resided together on 27.01.1997 and thereafter, the Appellant did not have any sexual connection with the Respondent". In Paragraph (22), Appellant further alleged that ".... Respondent (Appellant) as a true Catholic pardoned the Petitioner (Respondent) and was prepared to take her home in the interest of minor children". In Paragraph (24) of the counter-affidavit, Appellant asserted that ".... Appellant pardoned the Respondent and never spoke anything about abortion". By saying that Appellant and Respondent last resided together on 27.01.1997 and thereafter, Appellant did not have any sexual connection with the Respondent, the Appellant thereby indirectly alleges that if the Respondent had conceived, he is not responsible for the same and that it must be due to adulterous conduct of the Respondent. 18. As pointed out earlier, Appellant and Respondent were living together in Respondent's mother's house from August 2000 and in the month of October 2000, they moved to a separate flat along with the children and the same is not seriously challenged. As rightly pointed out by the learned Judge, the averment in the counter- affidavit that there was no connection between the Appellant and the Respondent from 27.01.1997 to 04.10.2000 is false. In fact, in his evidence, RW1 has stated that ".... in October 2000, he has resumed cohabitation with the Respondent at 54, First Main Road, Indira https://hcservices.ecourts.gov.in/hcservices/ Nagar". Therefore, as rightly held by the learned Judge assuming that there was "incomplete abortion", Appellant must be the cause for conceivement. 19. During his cross-examination, Appellant has sought to disown the averments in Paragraph Nos. (21) and (22) of the counter saying that Appellant has denied having doubts about the fidelity of the Respondent. In his evidence, Appellant has stated that ".... If there had been a pregnancy, obviously it would have been cause by me ....". Such volte-face during cross-examination would not in any way dilute the gravity of the allegations levelled in the counter. Even though, the allegations are sought to be denied, the accusations doubting the chastity is very much on record. 20. It is settled by a catena of decisions that "mental cruelty" can cause very serious injury than the physical harm and create apprehension in the mind of the spouse so as to render continued living together of spouses harmful or injurious. The word "cruelty" has not been defined and it has to be examined in the facts and circumstances of each case. The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the parties. In this connection, the culture, status in life, background of parties and many other things have to be considered. 21. Observing that if by the continued ill conduct of a spouse the relationship deteriorates then such an action alone would amount to "mental cruelty'. In (2007) 4 SCC 511 [Samar Ghosh v. Jaya Ghosh], the Supreme Court held as under:- "99.Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in our definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. 100. Apart from this, the concept of mental cruelty cannot remain static. It is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and https://hcservices.ecourts.gov.in/hcservices/ appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration. 101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instance of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive. (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 lock 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 very grave, sustained and weighty. (vii) Sustained reprehensible conduct, studied neglect in difference 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. https://hcservices.ecourts.gov.in/hcservices/ (viii) The conduct must be much more than 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 sterilization without medical reasons and without the consent of knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent of 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. The above judgment was followed by a subsequent judgment reported in (2009) 1 SCC 422 [Suman Kapur v. Sudhir Kapur]. 22. Considering the scope of mental cruelty under Section 13(1) (i-a) of Hindu Marriage Act in (2009) 1 SCC 422 [Suman Kapur v. Sudhir Kapur], the Supreme Court held as under:- "39.Mental cruelty has also been examined by this Court https://hcservices.ecourts.gov.in/hcservices/ in Parveen Mehta v. Inderjit Mehta thus: (2002) 5 SCC 706: (2002) 3 MLJ 82, thus at p.89 of MLJ: "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 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." 23. Applying the ratio of the above decisions, the cruel act alleged has to be determined from the facts of the case and evidence. While so, the mental cruelty, matrimonial relationship, status of parties, their educational and family background must be considered. Respondent being the Doctor by profession converted herself to Christianity and