IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05-07-2011 CORAM : THE HONOURABLE Mr.JUSTICE K. MOHAN RAM AND THE HON'BLE MR.JUSTICE G.M. AKBAR ALI Civil Miscellaneous Appeal No.3135 OF 2008 Malarvijy .. Appellant/1st Respondent Vs 1.Kanthan .. 1st Respondent/Petitioner 2.The Registrar of Marriage Pondicherry Municipality Pondicherry .. 2nd Respondents/Petitioner/ 2nd Respondent Civil Miscellaneous Appeal filed under section 19 of the Family Courts Act 1984 against the order and the decreetal order dated 12.03.2008 made in M.O.P.No.187/2004 on the file of the Family Court at Pondicherry. For Appellant : Mr.T.P. Manoharan For 1st respondent : Mr.R. Saseetharan JUDGMENT (Judgment of the Court was delivered by K. MOHAN RAM,J.,) The present civil appeal arises out of the order and decreetal order dated 12.03.2008 made in M.O.P.No.187/2004 on the file of the Family Court at Pondicherry. 2. The appellant in this appeal is the wife of the 1st respondent. The 1st respondent filed a petition in M.O.P.No.187 of 2004 before the Family Court, Pondicheery under Section 13(1)(ia) of the Hindu Marriage Act, seeking divorce on the ground of mental cruelty. 3. The case of the 1st respondent is that the marriage between him and the appellant took place on 7.2.2003 as per Hindu rites and customs. The 1st respondent's family is a joint family and from the date of marriage, the appellant had not participated in the household works, and she never respected the elders of the family. She used to abuse the 1st respondent. The appellant was not even interested in cohabitation and she https://hcservices.ecourts.gov.in/hcservices/ never permitted the 1st respondent to have sexual relationship with her. Whenever the 1st respondent attempted to have sexual relationship, she used to threaten him that she would shout. When the 1st respondent questioned the appellant, she used to tell that she never like men and only due to the compulsion of her father, she had agreed for the marriage. Due to the acts of the appellant, the 1st respondent was forced to take liquor, so that he can sleep in the night. 4. It is also the case of 1st respondent that the appellant did not want to live in the joint family and wanted to live separately. On 30.5.2003, the appellant informed the 1st respondent that she is going to stay at her parents' house for some time and while leaving the matrimonial home, took all her jewels and dress materials and did not contact the 1st respondent for ten days. On the eleventh day, the appellant contacted the 1st respondent over phone and asked him to come to her place and threatened that if he did not come, she would lodge police complaint. The efforts taken by the 1st respondent to change the attitude of the appellant failed. 5. The appellant contested the petition inter-alia contending as follows: The alleged act of cruelty has been specifically denied by the appellant. She has stated that she used to perform her duties as expected of a wife towards her husband. It is also stated that the 1st respondent is a chronic drunkard. On the evening of the wedding day, when both of them visited Manakula Vinayagar temple at Pondicherry, she was made to wait outside a wine shop and the 1st respondent, who went inside the shop and returned only after 45 minutes in an inebriated stage. He requested the appellant not to reveal this to any one of the family members. The appellant and the 1st respondent were in her parents' house for three days and even during those days, the 1st respondent was fully drunk and therefore, it was the 1st respondent, who did not fulfil the conjugal rights. 6. In paragraph-8 of the counter, the following allegations have been levelled against the appellant by the 1st respondent. “8. ...... But at the matrimonial home, the petitioner seemed to be interested in the welfare of his young, youthful and widowed sister-in-law and her two children and was addicted to liquor and cigarettes and the worst part was that the petitioner spent all his times with his sister-in-law in her room all alone and never came to the respondent's room which was lying at the rear end of the matrimonial home comprised in an extent of 30 feet into 120 feet. In fact, the respondent did not even have the company of the petitioner on many a night's and if at all he came to her room, he used to https://hcservices.ecourts.gov.in/hcservices/ have carnal intercourse with the respondent only with the help of a contraceptive. The respondent submits that whenever she questioned this unusual behaviour of her husband, she was back fired by stating “ CUf;fhfj; jhd; ehd; cd;id fy;ahzk; gz;zpf;bfhz;nld;/ vdf;F vd; mz;zpiaj;jhd; gpof;Fk;/ The petitioner spent all his time with his sister-in-law and the respondent was forced to do all the household work and even wash the clothes of the petitioner's sister-in- law and her childrenand if she could not work according to the tunes of the petitioner's sister-in-law she was beaten and ill-treated by the petitioners sister-in-law and also by the petitioner at the instigation of his sister-in-law. 7. Even though at the time of marriage, huge money was spent and several articles were presented by her parents, she was harassed to bring more dowry. Whenever the appellant went out, the 1st respondent did not accompany her. The appellant was forced to borrow a sum of Rs.25,000/- from her father for handing over it to the 1st respondent. As the 1st respondent did not feel content with the sum given, the appellant had to part with her 2 gold bangles weighing 4 sovereigns and another pair of gold bangles weighing 3 sovereigns to the 1st respondent and thereafter whenever further demands could not be complied with, she was beaten up and deprived of food. 8. It is further stated that whenever the sister-in-law of the 1st respondent was not in the house, there was no problem between them. On 29.5.2003, the 1st respondent and his sister-in- law had severely beaten the appellant, demanding gold jewels and since she refused to part with the same, she was thrown out of the matrimonial home at around 9.30 p.m on the same day. Now, the 1st respondent is living with his sister-in-law and two children and the appellant is ready and willing to join and live with the 1st respondent. 9. Before the Family Court, the 1st respondent was examined as P.W.1 and Exs.P.1 and P.2 were marked, while the appellant herein was examined as R.W.1 and Ex.R.1, the petition in MOP No.187 of 2004, was marked. 10. On consideration of the evidence and records, the Family Court allowed the petition and being aggrieved by that, the appellant has filed the present appeal. 11. Mr.T.P. Manoharan, learned counsel for the appellant submitted that even if the allegations contained in the petition filed by the 1st respondent on its face value are accepted as true, https://hcservices.ecourts.gov.in/hcservices/ the same would not amount to cruelty and the allegations have not been proved by acceptable evidence. When the 1st respondent has not established the allegations levelled against the appellant, he is not entitled to get a decree for divorce. According to him, the court below has failed to see that in the counter statement filed by the appellant, she has stated the correct facts and the behaviour of the 1st respondent and the relationship between the 1st respondent and his sister-in-law and she has also stated that the 1st respondent is a drunkard. In her evidence as R.W.1, she has spoken to about the averments made in the counter statement and though serious allegations have been made in the counter statement, the 1st respondent has not chosen to file any reply statement controverting the same. Therefore, the court below is not right in granting the decree for divorce on the basis that unsubstantiated allegations made by the appellant in the counter statement viz., the 1st respondent is having illicit intimacy with his widowed sister-in-law itself, will amount to mental cruelty. 12. The learned counsel for the appellant also submits that the relationship of the 1st respondent with his sister-in-law inside the house can be spoken to only by the appellant, who was living in the house, and it is not reasonable to expect to substantiate them by any corroborative evidence. Therefore, the allegations contained in the counter statement have been made only as a defence to the petition filed by the 1st respondent and as such, the same cannot be a ground to grant decree for divorce. According to the learned counsel, unless and until the 1st respondent substantiates the allegations contained in the petition, he is not entitled to get decree for divorce and therefore, the order of the court below is liable to be interfered with. 13. Countering the above submissions, Mr.R. Saseetharan, the learned counsel for the 1st respondent submits that though the 1st respondent, in his evidence, has spoken to about the averments contained in the petition and though the court below has observed that serious allegations have not been proved, the court below has rightly granted decree for divorce on the ground that serious allegation of illicit intimacy with the sister-in-law has not been established and such serious allegation levelled against the 1st respondent by the appellant would amount to mental cruelty. Even if the allegations contained in the petition are not made out, on the ground of unsubstantiated allegations levelled against the 1st respondent by the appellant, the 1st respondent is entitled for a decree of divorce. 14. We have anxiously considered the rival submissions advanced on either side and perused the materials available on record. 15. At the outset, it has to be pointed out that the allegations that the appellant was not attending house hold works and she was not showing proper respect to the elders itself will not amount to mental cruelty. Though the 1st respondent has alleged in the petition as well as deposed in his evidence that https://hcservices.ecourts.gov.in/hcservices/ whenever he wanted to have sexual relationship with the appellant, she refused, however, the said allegation has been denied both in the counter statement and in her evidence. 16. R.W.1, in her cross examination has spoken elaborately about her sexual relationship with the 1st respondent. On these aspects, we cannot expect any corroborative evidence against the evidence of R.W.1. We cannot come to a definite conclusion that the appellant refused to have sexual relationship with the 1st respondent. 17. In the counter statement, it is alleged by the appellant that the 1st respondent used to have carnal intercourse with the appellant only with the help of contraceptives. But as rightly pointed out by the court below, even during the cross examination of P.W.1, there was not even a suggestion to the fact that the 1st respondent used to have only carnal intercourse. On the other hand, it has been suggested that there was only normal sexual relationship between them using contraceptives and as such, the said allegations stand not proved. 18. As rightly pointed out by the court below, the exact nature of teasing, yet another allegation is not set out in the petition and in the evidence and the other family members not having been examined to corroborate the evidence of the 1st respondent, the allegation that the appellant teased the 1st respondent's family members is not proved. Therefore, the Court below is right in coming to the conclusion that the allegation levelled against the appellant by the 1st respondent regarding the acts of cruelty has not been established. 19. Now the question remains, whether the court below is correct in granting the decree for divorce on the ground that the appellant/wife had made serious allegations against the 1st respondent viz., the 1st respondent is having illicit intimacy with his sister-in-law will amount to cruelty. 20. In paragraph-8 of the counter statement filed by the appellant, she has made very serious allegations against the 1st respondent as if he is having illicit intimacy with his sister-in- law and those allegations have been extracted above. 21. If we consider the above said serious allegations, it would definitely cause mental agony and pain to the 1st respondent. These unsubstantiated allegations made by the appellant against the 1st respondent would definitely amount to mental cruelty. 22. In the decision reported in AIR 2005 BOMBAY 180 (Manisha Sandeep Gade v. Sandeep Vinayak Gade) a Division Bench of the Bombay High Court, while considering the question as to whether the unsubstantiated and unproved allegation of adultery levelled against the husband by the wife would amount to mental cruelty, has held that it will amount to mental cruelty. It was a case where the husband has sought for divorce on the ground of cruelty and while defending the petition, the wife in her written statement, apart from defending her and refuting the allegations https://hcservices.ecourts.gov.in/hcservices/ made against her, had made several allegations against her husband and one such allegation was that he had illicit relationship with one Leena, wife of Vivek and in fact he wanted to marry her. While considering the legal effect of such an allegation, the Division Bench has held as follows:- "30. What we have to note is that when one party to the petition has sought divorce on some ground and the respondent to that petition does not merely defend it to get it defeated, but makes further serious allegations against the petitioner, it becomes a clear step towards the dissolution of the marriage. In the present matter, the petitioner has approached the Court seeking dissolution of his marriage. It is his case that there is a failure of the marriage and he seeks to point it out by invoking a ground available under the law. At that point of time, if the respondent makes a counter allegation in the written statement, that by itself shows a prima facie failure of the marriage. .... 31. .... In a matrimonial matter, one cannot apply the standard of stricter evidence. Nothing prevented her from establishing her allegations. The respondent could not have established the negative by leading any further evidence that the allegations made by the wife were false. The appellant had made the allegations. The burden was on her. She had failed to prove those allegations. Once she fails to prove those allegations and if those allegations are not in consonance with matrimonial relationship, and the husband complains that they have caused him agony, the inference that they constitute cruelty has to follow. 32. In the circumstances we are satisfied that the learned Judge was right in coming to the conclusion that the allegations made by the appellant wife were baseless and false and constituted a cruelty. He was, therefore, right in granting the decree of divorce on that ground. ..." 23. In AIR 1989 PUNJAB AND HARYANA 310 (Kiran Mandal v. Mohini Mandal) a Division Bench of that Court, has held as follows:- "14. ... She made false allegations against her husband that he had illicit relations with his brother's wife. These false allegations did have an injurious effect on the husband. 15. Cruelty within the meaning of S. 13 of the Hindu Marriage Act is not confined to physical violence but includes mental torture caused by one spouse to the other. The wife had made it insufferable for the husband to live with her. Any man with reasonable self respect and power of endurance will find it difficult to live with a taunting wife, when such taunts are in fact insult https://hcservices.ecourts.gov.in/hcservices/ and indignities. Human nature being what it is, a reasonable man's reaction to the conduct of the offending spouse is the test and unending accusations and imputations can cause more pain and misery than physical beating. ...." 24. In Smt. Chanderkala Trivedi v. Dr. S.P.Trivedi, 1993 (3) Scale 541, the husband sued for divorce on the ground of cruelty by wife. The wife filed a written statement wherein she attributed adultery to the husband. In reply thereto the husband put forward another allegation against the wife that she was having undesirable association with young boys. Considering the mutual allegations, His Lordship, R.M.Sahai, J., speaking for Division Bench, observed: "Whether the allegation of the husband that she was in the habit of associating with young boys and the findings recorded by the three Courts are correct or not but what is certain is that once such allegations are made by the husband and wife as have been made in this case then it is obvious that the marriage of the two cannot in any circumstance be continued any further. The marriage appears to be practically dead as from cruelty alleged by the husband it has turned out to be at least intimacy of the husband with a lady doctor and unbecoming conduct of a Hindu wife." 25. In the light of the law laid down in the aforesaid decisions, if the facts of the present case are considered, it could be seen that when serious allegations of adultery is made by the wife against the husband and the same stands unsubstantiated that will definitely amount to mental cruelty as far as the husband is concerned. The unfounded allegations made by the wife against her husband by itself shows the prima facie failure of the marriage. 26. As far as the contentions of the learned counsel for the appellant that unless and until the 1st respondent substantiates his allegations contained in the petition, he is not entitled for decree for divorce and merely on the ground that when the wife has made serious allegations, he is not entitled to get decree is concerned, it has to be pointed out that making unsubstantiated allegations about the character of the husband and accusing him of illicit intimacy would itself amount to mental cruelty. Therefore, the said contention of the learned counsel for the appellant cannot be countenanced when the very allegations made against the 1st respondent will amount to mental cruelty. 27. Under the above circumstances, it is immaterial that the 1st respondent should establish the allegations of cruelty pleaded in the petition. Therefore, the said contention of the learned counsel is rejected. https://hcservices.ecourts.gov.in/hcservices/ 28. We do not find any other valid reason to interfere with the reasonings of the Court below. Hence the appeal fails and the same is dismissed. No order as to costs. sr Sd/- Deputy Registrar //True Copy// Sub Asst. Registrar To The Judge, Family Court, Pondicheery + 1 cc to Mr. T. P. Manoharan, Advocate SR No.39583 SV(CO) SR/6.9.2011 C.M.A.No.3135 of 2008 https://hcservices.ecourts.gov.in/hcservices/