Monday, May 27, 2013

married since'04, seperate '06, hubby gets divorce '11, HC overturns '13, says live togeth,wife RCR alowd maint 25K/month!


Notes
  • Couple from decent families
  • Hubby HAD been working in USA. They are married since 2004,
  • After a kid is born some mutual differences crop up and they are living separately since 2006,
  • Major allegations are made against the wife...she is supposed to have called the hubby the "son of a prostitute" , defaming his elderly mother etc; Wife threatened to commit suicide and leave the blame of hubby and family ; Wife left for her parental home and never returned ; Husband has provided proof of audio files, e mail etc
  • After some struggle hubby gets divorce in 2011,
  • Now the wife moves HC, and the Honble HC overturns the original divorce decree in 2013, showing many technical errors and lacunae ; the HC also considered the hubby's travails as normal wear and tear of life !!
  • Honble HC says wife's RCR petition is alowd
  • An earlier maint order of Rs. 25K/month is also left as is !
  • Ps : don't ask me IF this is the Real fate of law abiding men in India, that a court can overturn the divorce decree of a couple who !





BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 13/03/2013

CORAM
THE HONOURABLE MR.JUSTICE T.RAJA

C.M.A.(MD)No.210 of 2012
&
C.M.A.(MD)No.211 of 2012

Mrs.Saraswathi Palaniappan    ..    Appellant in both C.M.As.

vs

Vinod Kumar Subbiah        ..    Respondent in both C.M.As.

    Memorandum of Grounds of Civil Miscellaneous Appeals under Order XLI of the Civil Procedure Code read with Section 28 of the Hindu Marriage Act, 1955, against the order and decretal order dated 25.08.2011 made in H.M.O.P.Nos.1 & 2 of 2011 on the file of the Hon'ble I Additional District Judge, Madurai.

!For Appellant    ...    Mr.AR.L.Sundaresan
            Senior Counsel for
            Mrs.AL.Ganthimathi
^For Respondent    ...    Mr.Gopalakrishna Lakshmana Raju
            Senior Counsel for
            Mr.R.Venkateswaran

:JUDGMENT

    These two civil miscellaneous appeals have been preferred by the appellant-wife against the judgment and decree of the trial Court granting divorce by dissolving the marriage filed under Section 13(1)(ia) of the Hindu Marriage Act and dismissing her application for restitution of conjugal rights filed under Section 9 of the Hindu Marriage Act.

    2. The brief facts leading to the filing of these two appeals  are given as under:-

    The marriage between the appellant-wife and the respondent-husband took place on 28.6.2004 at Kandaramanickam Village, Sivagangai District as per Hindu rites and customs.  The respondent-husband is employed as software engineer in a company called Epiq Systems in U.S.A., and soon after the marriage, they were living at Chennai. After obtaining Visa for his wife, the respondent-husband had taken the appellant-wife to U.S.A., on 9.7.2004 and they were living together in U.S.A. They made two visits to Chennai, one during the month of October, 2005 and another during the month of June, 2006, when the appellant-wife was three months pregnant.   On 10.6.2006, they picked up quarrel and in the process, it was alleged that the appellant-wife used abusive language against the respondent-husband and left for Madurai to her parents house and since then, she has been living there separately and even after giving birth to a male child on 5.12.2006, she refused to join with the husband.  Even during her stay with the respondent, she used to be lonely and in most of the times she was in melancholic mood and used to quarrel with the husband every now and then without any rhyme or reason.  Sometimes, she used to scold the husband with filthy language using even unparliamentary words such as "son of a prostitute" etc. Moreover, during the office hours, she used to call the husband over phone and put him to mental agony and torture by quarrelling with him on some imaginary grounds.  While doing so, she used to talk very high about her parental home and degrade the family members of the respondent- husband.  These frequent quarrels of using abusive language and degrading the family members of the respondent show that she was not having any affection with the husband and because of her indifferent attitude and behaviour, the husband was put to intolerable mental agony and hardship.  Therefore, the respondent-husband was compelled to file the petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955. It was also further averred in the divorce petition that when the wife was behaving very rudely and violently, most of the time in the family and sometime even indirectly threatening him that she would lodge a police complaint against the respondent and his family members as if they had demanded dowry and all the efforts for bringing back the wife to the marital home since June, 2006 had not materialised and the subsequent mediations that took place in front of the respondent's family members were of no avail, he decided to file the petition for divorce.

    3. A detailed counter affidavit was filed by the appellant-wife admitting the fact that the parents of both the appellant and respondent, after making proper arrangements for the marriage, solemnized the marriage between them on 28.6.2004 at Kandaramanickam Village and subsequently, she was taken to U.S.A., and they were living together happily and out of happy wedlock, a male child by name Sanjeev was born at Madurai on 5.12.2006.  But after the boy was born, in spite of repeated requests made to see the newly born son, neither the husband nor any of the in-laws ever attempted to visit the child at Madurai.  However, the wife came to Chennai during March-April, 2007 and thereafter, they lived together in the house of the in-laws along with the husband during the said time.   While denying the allegation made by the husband that she was not affectionate as incorrect, she stated that the husband did not have the benefit of engaging any servants, as the wife had to do all the home works, such as cleaning, cooking and housekeeping by herself and in spite of the fact that the wife was taking full care of the entire family by doing all odd jobs like cooking, cleaning, keeping the house in order in U.S.A., and also in Chennai, and in spite of the fact that the husband's family is a big family with more number of persons, there was no reason or rhyme for deserting the wife when she came for delivery of the child.  Further, it was pleaded that when there was no problem at all between them, it is only due to a misunderstanding between the family members of the husband, the wife was completely deserted.

    4. During the pendency of the petition for divorce filed by the respondent-husband, the appellant-wife also filed a petition under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights.  A detailed counter affidavit was filed by the respondent-husband denying the averments of Rs.6,00,000/- given as dowry and in addition, Rs.20,00,000/- worth of diamond, silver and gold jewels alleged to have been given to the husband as false to the core. One another aspect to be mentioned is that while the divorce petition filed under Section 13(1)(ia) of the Hindu Marriage Act before the Principal Family Court at Chennai, was posted for first hearing on 4.6.2007 for appearance of the appellant-wife, as she did not appear on that date, the case was adjourned to 9.6.2007 and even on 9.6.2007, when the wife did not appear, an exparte order was passed. Subsequently, a petition to set aside the exparte order was  also allowed on 12.6.2007 and thereafter the petition was posted to 10.8.2007. Once again the record shows that the matter was proceeded ex parte. Again a set aside petition was filed in I.A.No.339 of 2008 on 17.11.2008. The trial Court by restoring the matter back to file, transferred the matter to the file of the Family Court at Madurai based on the order in Tr.C.M.P.No.62 of 2010 filed by the wife.  One another petition in M.C.No.1 of 2011 was also filed by the wife seeking for maintenance. All these matters were clubbed together and finally, the trial Court, after a joint trial, accepting the case of the husband that the wife has committed cruelty, came to the conclusion that the husband was entitled for a decree for dissolution of marriage.  While disposing the maintenance application in M.C.No.1 of 2011, the trial Court also passed an order holding that the wife was entitled for a sum of Rs.25,000/- per month as maintenance from the husband.  The trial Court, however, dismissed the petition for restitution of conjugal rights filed by the wife for the reasons assigned for the grant of a decree for dissolution of marriage.   Hence, these two appeals have been filed by the appellant-wife.

    5. Mr.AR.L.Sundaresan, learned senior counsel for the appellant-wife submitted that all the disputes allegedly pleaded in the petitions are only due to the family members of the respondent-husband and no dispute has been stated or alleged or proved between the husband and wife.  Hence, the decree for divorce for the disputes within the family members is certainly erroneous, incorrect and therefore he prayed for setting aside the same.  It was also further pleaded that the trial Court, without considering that there has been a normal wear and tear in the affairs of running a family, without there being a proper evidence to show that there has been an injury caused to the marital relationship between the husband and wife, when there is no pleading or specific case of cruelty established by the husband against the wife, the trial Court wrongly held that the wife had cruelly treated the husband.  The trial Court has also failed to apply the legal decision that voicemail and email, which were taken as corroborative evidence, ought not to have been taken on record without there being a proper pleading in the petitions before the trial Court to come to a conclusion that the husband was subjected to cruelty by the wife.  It was also the case of the wife, as pleaded by the learned senior counsel, that when there was a marriage on 28.6.2004, within ten days from the date of marriage, the wife was taken by her husband to U.S.A. After living there happily soon after marriage, they came back to Chennai only in the month of October, 2005 to attend to some family functions.  Once again they went to U.S.A., in November, 2005. It was also an admitted fact that can be seen on record that in June, 2006, the wife became pregnant. As she was three months pregnant, she came back to her parents home at Madurai for delivery. As per the Hindu family customs, in southern India, generally the first delivery takes place in the wife's parental home. In deference to the said custom, when the wife was taken for the first delivery from U.S.A., a boy was also born on 5.12.2006.  One another important fact wrongly overlooked by the trial Court was till the wife came to the parental home for first delivery from U.S.A., on 6.6.2006, it goes without saying that whatever wear and tear took place in the matrimonial home between the husband and wife, all were condoned for the reason that she was taken back to U.S.A., in the month of November, 2005.  Therefore, whatever cause of action alleged to have taken place prior to November, 2005 cannot be made a foundation or basis for claiming the decree of divorce, when all these acts and deeds were condoned by the husband while she was admittedly taken back to U.S.A., in June, 2006.  But the trial Court, by going into the old and unfounded allegation that the wife has committed cruelty against her husband during the year 2005, erroneously allowed the divorce petition filed by the husband by accepting a totally new case that the wife has caused cruelty by abusing the father in law and that the brother in law was also put to a feeling of mental cruelty by the appellant-wife.

    6. Mr.AR.L.Sundaresan, learned senior counsel, assailing the soundness of the impugned judgment and decree passed by the trial Court granting decree of divorce against his client, forcibly pointed before this Court that when there was no ground for cruelty made out by the respondent-husband, the trial Court ironically, entertaining the allegation of trivial nature, dissolved the divinely relationship between the husband and wife, just for a mere asking by the husband. When there were allegations that the father in law, brother in law and sister in law were also part of the subject matter of cruelty caused by the appellant-wife, the trial Court, forgetting for the moment that all these disputes between the husband and wife were only due to the family members of the husband and no dispute has been stated or alleged to be proved between the husband and wife, in all fairness, should have dismissed the divorce petition. But for the sake of satisfying the father in law, brother in law and sister in law of the wife, illegally granted the divorce. Further, when there was an application for restitution of conjugal rights filed by the wife under Section 9 of the Hindu Marriage Act, the learned District Judge ought to have seen that the wife has been ready and willing to live with her husband and therefore the baseless allegation of cruelty said to have been caused against the real members of the husband's family, should have been turned down by allowing the application for restitution of conjugal rights in favour of the wife.  But ironically the trial Court has misdirected itself that a mere dispute among the in-laws family and trivial issues between the husband and wife can be taken as a tall ground for divorce.  If this approach is adopted, no matrimonial family would survive and as a result, it will be very difficult to save and preserve the family institution.  In support of his submissions, he has also relied upon some of the judgments of this Court  as well as the Apex Court to contend that the approach of the trial Court is erroneous and cannot be endorsed with, for the reason that while considering the allegations, either made by the wife or husband, regard must be shown to the context in which they were made. When there cannot be any hard and fast rule in interpreting the term 'cruelty', it is the bounded duty of the trial Court to properly and carefully see that the term 'cruelty' consists of unwarranted and unjustifiable conduct on the part of the opposing spouse to other spouse to endure suffering and distress thereby destroying peace of mind and making living with such spouse unbearable, completely destroying real purpose and object of matrimony.  When it must be judged on the facts of each case having regard to the surrounding circumstances, the trial Court has completely gone wrong in entertaining the totally baseless allegation that the wife was making unwanted allegation against the father in law, brother in law and sister in law when there was no such allegation against the husband.  Therefore, the cruelty as alleged by the husband can never be seen.  But unfortunately, the trial Court, without there being  a situation compelling the husband to file a petition for dissolution of marriage, accepting a small wear and tear that usually takes place in a family, wrongly dissolved the solemnized marriage between the appellant and respondent.

    7. One another Division Bench judgment was also pressed into service  by the learned senior counsel to contend that mere bickerings in marital life cannot be a ground for cruelty as, in order to make out cruelty, the intensity and gravity of one's action will have to be seen. Further, a sustained course of abusive and humiliating treatment rendering the life of spouse may be one of the factors to decide the mental cruelty.  The mere trivial irritations, quarrels, normal wear and tear of the married life would not amount to mental cruelty. These aspects have been completely ignored by the trial Court.  Now that the appellant-wife, while living happily with her respondent-husband in U.S.A., has consummated the marriage, that shows that she was happily living with her husband, resultantly, a boy was also born on 5.12.2006.   Without considering any of these vital aspects, dismissing the petition filed under Section 9 of the Hindu Marriage Act for restitution of conjugal rights, the trial Court has forced upon the wife with the decree of divorce. Therefore, the learned senior counsel strenuously contended that the approach of the trial Court granting divorce by giving serious importance to mere trivial irritations and normal wear and tear of the married life that would not legally be a ground for mental cruelty, should be forthwith set aside and the petition for restitution of conjugal rights should be allowed.

    8. Per contra, Mr.Gopalakrishna Lakshmana Raju, learned senior counsel for the respondent-husband heavily supported the reasons assigned by the trial Court for the grant of decree for dissolution of marriage, for the reason that when the dissolution of marriage was sought by the respondent-husband on the allegation that the appellant-wife all the time was causing mental cruelty not only to the husband, but also damaging the reputation, peaceful mind of the father in law, mother in law, sister in law and even brother in law, i.e. almost all the family members of the husband, the trial Court, by going into the minute details that were produced before the trial Court, found that the wife was a real culprit for having damaged the matrimonial relationship, particularly by using unparliamentary language against her own father in law abusing him as son of a prostitute. The trial Court, in order to find out the truth of this allegation, went into the other material evidence as to the notice issued by the U.S. Department to the respondent-husband stating that the wife has made a complaint against him and in view of the complaint, when the police department in U.S.A., has severely warned the husband of the appellant that he would not be allowed to continue his business in diamond and other voicemail and email sent by the wife to her husband as corroborative evidence, rightly came to the conclusion that it is a fit case for grant of decree of dissolution of marriage. Further,  the trial Court, after considering the entire evidence oral and documentary produced by both sides that there was no chance of their coming together again, finally reached a conclusion that when the wife was in the witness box before the trial Court, she has made an allegation against her own father in law that her father in law attempted to catch her hands and thereby made direct assault on her modesty, and after considering that allegation to be baseless, rightly treated the wife as a party who caused unbearable cruelty as defined under Section 13(1)(ia) of the Hindu Marriage Act.  In view of that, when the decree for dissolution of marriage was passed by also granting a sum of Rs.25,000/- per month as maintenance to the wife, there can never be an argument by the wife alleging unreasonable standard adopted by the trial Court in granting the decree for dissolution of marriage.  Further, when the trial Court on the cumulative effect of evidence brought on record was fully satisfied with the case of the husband who filed a petition for divorce that he has established a sustained course of abusive and humiliating treatment and calculated torture on the part of the wife to make the husband miserable and in fact when the husband, while living with the appellant in U.S.A., felt humiliated both in private and public life, it is extremely difficult to tell the husband to resume the matrimonial life that was not in existence for about six long years. Therefore, the decree for dissolution of marriage granted by the trial Court is to be affirmed by this Court by dismissing the appeals filed by the wife, as there has been no merit in the appeals nor any error or infirmity in the impugned judgment passed by the trial Court.  In support of his submissions, the learned senior counsel also relied upon various judgments of different High Courts and Supreme Court as well to support his case that it is the duty of wife to live with her husband without causing cruelty to any member of the family. Relying upon the Division Bench judgment of Allahabad High Court in Vimala Devi v. Ram Babu, II (2004) DMC 639 (DB), he contended that it is  the cumulative effect of all the acts and conduct which has to be taken into consideration for finding out whether the behaviour of the erring spouse falls within the ambit of cruelty as defined under Section 13(1)(ia) of the Hindu Marriage Act.  He further pleaded that what may amount to cruelty in one case may not amount to cruelty in another case and therefore it is the duty of the Court to consider the social status, the environment, the education, the mental and physical conditions and the susceptibilities of the innocent spouse as also the custom and the manners of the parties.  When cruelty may consist of a single act or conduct of the respondent, the Court has to apply in each and every case a different yardstick. Finally he argued that it is the duty of the wife to live with her husband, because unless the husband and wife live together, there is really no marriage.  But in the present case, he pleaded, when she came for first delivery of her son, she did not think of going back.  Therefore, when the wife has miserably deserted the matrimonial home,  she cannot ask for restitution of conjugal rights that too after a long gap of seven years in addition to having passed cruelty that has been found in favour of the husband.

    9. One another judgment was also relied upon in the case of Rajan Vasant Revankar v. Mrs.Shobha Rajan Revankar, AIR 1995 Bombay 246 to support his case that wild, reckless and scandalous allegation by wife against the husband's mother, his two married sisters and brother in laws would amount to cruelty. Further it was argued that even the letters written by the wife subsequent to the filing of petition reiterating the wild and baseless allegations made by her also would support the case of the husband.  Yet another decision of the Andhra Pradesh High Court in Jayakrishna Panigrahi v. Smt.Surekha Panigrahi, AIR 1996 A.P. 19 was relied upon to impress upon the Court that it would be a fit case to dissolve the marriage based on the conduct of wife subsequent to the filing of petition causing mental cruelty to the husband, if the trial Court finally agreed with the case of the husband that the wife has really caused mental cruelty to the husband during the pendency of the case.

    10. Finally, the judgment of the Apex Court in V.Bhagat v. D.Bhagat (Mrs.), (1994) 1 SCC 337 was also pressed into service once again to impress upon the Court, whether the divorce can be granted merely on the basis of pleadings and other admitted materials without a full trial. In the said case, he pleaded that when the Supreme Court allowed the marriage to be dissolved on the ground of mental cruelty by accepting the irretrievable break down of marriage and when the same facts and circumstances are involved and duly considered by the trial Court, particularly going into the specific allegation made by the husband with supportive documents that a wife making wild and baseless allegation against her father in law that he had attempted to outrage her modesty was found to be a mental cruelty, as contemplated under Section 13(1)(ia) of the Hindu Marriage Act, the same regard shown by the trial Court for accepting the case of the husband, may also be had by this Court while considering the correctness of the judgment passed by the trial Court.  In view of the above arguments, he prayed for no interference with the judgment and decree of the trial Court.

    11. Heard the learned counsel for the parties.  The marriage between the husband and wife in this case took place on 28.6.2004 at Kandaramanickam village in Sivaganga District as per the Hindu rites and customs. The respondent-husband was employed as software engineer in a company called Epiq Systems in U.S.A. The appellant-wife also, as could be seen from the records, is coming from a respectable family. After the marriage was solemnized between them, the wife was taken to Chennai and after obtaining Visa, she was taken to U.S.A., on 9.7.2004. Since then they had been living together in U.S.A. Even though the couple visited Chennai during October, 2005 and June, 2006, as she was three months pregnant, it was averred in the petition for divorce filed under Section 13(1)(ia) of the Hindu Marriage Act, that on 10.6.2006, the appellant was said to have picked up a quarrel with her husband by using abusive language and as a result, she left for Madurai to her parental home and thereafter she did not visit. On 5.12.2006 she had given birth to a male child by name Sanjeev. A careful reading of the petition would show that the foundation for the husband to approach the trial Court for divorce was that the appellant used to scold her husband with filthy language and using unparliamentary words such as son of a prostitute etc., and during his office hours, she used to call him over phone and put him to mental agony and torture on some imaginary ground or the other. It was also pleaded that whenever there was a quarrel, the wife used to threaten the husband that she would commit suicide and throw the blame on him and on the family members of the husband. In view of these reasons, when there was a mediation before the common family elder, even that mediation could not materialise, as a result, the petition claims that the husband has filed the petition for divorce.  Even the counter affidavit filed by the husband to the petition seeking for restitution of conjugal rights filed under Section 9 of the Hindu Marriage Act is also bereft of any substance warranting grant of decree for dissolution of marriage. All the allegations pleaded by the learned senior counsel for the respondent-husband throws more light for this Court to see that only after filing the petition, the respondent-husband was able to produce some copy of voicemail and email as corroborative evidence to come to the conclusion that the husband was treated cruelly.  No doubt in matrimonial matters seeking for grant of divorce on the ground of cruelty allegedly made by one's spouse against another, the Family Court need not strictly adhere to the hard and fast rule in entertaining evidence oral or documentary or in respect of examining the parties. For, the primary motto of the Court is to go slow while considering the petition for dissolution of solemnized marriage that is always considered that all marriages are made in heaven. Therefore  the matrimonial matters are matters of delicate, human and mental relationship. It always demands mutual respect, mutual trust, regard, respect, love and affection.  But when the husband rushed before the trial Court by filing a petition for divorce raising allegations that his wife has abused him by using unparliamentary words and made unbearable allegations against his father, no such allegations or averments can be seen in the pleadings filed before trial court except a usual wear and tear that ordinarily takes place at home.  Further, when the appellant-wife, during the pendency of divorce petition, filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, opposing the said prayer, the husband could have in fact brought forth new facts like what was mentioned about his father that the wife had abused not only him, but also his father, mother, sister and brother, but no such allegation whatsoever as argued before me by the learned senior counsel for the respondent-husband was ever made at least in one line somewhere in the counter filed to the application filed under Section 9 of the Act for restitution.  To say the least, no allegation was made either in the main petition or in the subsequent counter affidavit filed by the husband to say that the appellant-wife had abused her father in law on the particular date or month or place.  Merely relying upon the copies of voicemail and email said to have been sent by the wife, a case was sought to be made before the trial Court that even during the pendency of the divorce petition, the wife continuously went to harass and give physical and mental cruelty to all the family members of the respondent-husband. Even though these were perused by the trial Court as corroborative evidence, in my considered view, the trial Court has gone in haste and hurriedly accepting these allegations, erroneously granted the decree for dissolution of marriage in favour of the respondent-husband. Therefore, it must be mentioned that in the cross examination, the wife was properly questioned by the husband's counsel before the trial Court. While denying the suggestions to all the questions, it was deposed that she never uttered any such unparliamentary words against her father in law or other family members.  When this being the case of both parties, I fail to understand why in such background the trial Court has not considered that important circumstance, particularly when the husband, while filing the petition under Section 13(1)(ia) of the Hindu Marriage Act, has completely forgotten to mention all these wild, reckless and baseless allegations that the wife had assaulted the husband and his father, an old and respectable person in the family. Again this Court fail to see why these averments have been completely forgotten to be made as part of the pleadings not only in the petition but also in the counter affidavit subsequently filed to the petition for restitution of conjugal rights by the wife.  Therefore, it is not open to the learned senior counsel for the respondent to argue the general principles of law that in all matrimonial matters, the trial Court need not look into the pleadings, but take a look into the subsequent circumstances which has really warranted a situation for granting the decree for dissolution of marriage. Indeed, even if that argument is accepted, still it goes against the case of the husband. The reason being that the divorce petition was filed way back in the year 2007 alleging that the wife had caused all the mental and physical cruelty to the husband and his father and mother, when she was staying in U.S.A., during the year 2005.  Even if it is presumed that the husband has failed to mention all the truthful incidents that took place in U.S.A., it is not known why he has again committed the very same serious mistake in not pleading in his averments while filing the counter affidavit to the petition for restitution of conjugal rights that was filed in the year 2008.  Therefore, the accusations and character assassinations in his counter statement filed subsequently to the petition for restitution of conjugal rights filed by the wife were not made to bring home his case that the wife  had constituted mental cruelty. By a catena of decisions, it is well settled law that the mental cruelty under Section 13(1)(ia) should show that what made it not possible for the party to live with the other. In other words, mental cruelty must be of such nature that the parties cannot reasonably be expected to live together.  The situation must be such that the wrong party cannot reasonably  be asked to put up that conduct and continue to live with the other party. It is a matter to be determined in each case having regard to the facts and circumstances of the case.

    12. In the light of the settled legal position, the question now requires to be considered is as to whether the accusations alleged in the petition by the husband would construe mental cruelty for sustaining the petition under Section 13(1)(ia) of the Hindu Marriage Act for divorce? As highlighted earlier, it is absolutely for the husband to substantiate the petition averments to prove the alleged cruelty.  The trial Court, instead of considering whether the husband has established the cruelty by adducing evidence, proceeded to put up certain answers elicited from her both in the chief examination and as well as cross examination and only from such answers, without even having any strong pleading, the trial Court has wrongly mis-appreciated the case of cruelty.  It must be mentioned that the cruelty  cannot be sought to be substantiated by picking up answers in the cross examination and isolating them, because the answers elicited in the cross examination has to be read as a whole along with the chief examination. The same cannot be read in isolation when there is nothing on record before the trial Court in the petition. Even assuming that the wife also had used sounding words causing embarrassment to the in-laws, such occasional utterances against the sister in law, brother in law and father in law may not amount to cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act.  Mere austerity of manners or occasional wordy altercations may not amount to cruelty.  It is pertinent to refer to the judgment of our Division Bench in P.Manimekalai v. R.Kothandaraman, 2010 (6) CTC 80, wherein it has been held as follows:-

| "25. Both in her chief examination as well as in her
| cross examination, the appellant has admitted that she
| has told her sister in law that had she not come back
| to the house as thohntl;l (estranged + separated from
| husband), the problem would not have been arisen. It
| is pertinent to note that the appellant has stated so
| even in her cross examination. Perhaps, feeling
| remorse for saying so, the appellant has admitted
| calling the sister in law as  thohntl;l.  Here, this
| again was sought to be misinterpreted by the trial
| Court by saying that the appellant was treating the
| respondent and in-laws cruelly. Even assuming that
| appellant had used such words, such occasional
| utterance against sister in law may not amount to
| cruelty within the meaning of Section 13(1)(ia). Mere
| austerity of manners or occasional wordy altercations
| may not amount to mental cruelty. In marital
| relationship, parties must be prepared to subject
| themselves to the normal wear and tear of such life.
| The trial Court has not analysed the evidence in the
| light of the well-settled position."


    13. The above observation of the Division Bench that in matrimonial relationship, the parties must be prepared to subject themselves to the normal wear and tear of such life and the trial Court has not analysed the evidence in the light of the well-settled legal position, squarely covers the case of the appellant herein also.  The learned senior counsel for the respondent-husband though placed on record various decisions to impress upon the Court that the decree for divorce can be granted by looking into the conduct of the wife causing mental cruelty, he has referred to the decision of the Apex Court in V.Bhagat's case, (1994) 1 SCC 337.  In the said case, the divorce petition was filed by the husband, an Advocate, on the ground that cruelty and adultery. The wife made an averment in the defence that the husband and family members are lunatics and suffer from mental imbalance.  Under this background, when the husband was subjected to cross examination on this aspect, the husband amending the petition sought for divorce on the ground of cruelty. The Apex Court by taking note of the allegations made in the pleadings and the questions put in the cross examination held that they constitute mental cruelty on the husband. But in the present case, there was no such amendment made by the husband nor made use of his chance during the long prendency of the matter before the trial Court to make out his case at least in the counter statement filed in the subsequent petition filed by the wife for restitution of conjugal rights under Section 9 of the Hindu Marriage Act. Even in the said Bhagat's case, the Apex Court has held that merely because there are allegations and counter allegations, a decree for dissolution cannot follow.  To accept the case of the husband, there must be really some extraordinary features to warrant grant of divorce on the basis of pleadings even without a full trial, but no such extraordinary features are found.  But in the present case,  bald, baseless and containing trivial allegations, which is nothing but a normal wear and tear that happens in an ordinary family, has been blown out of proportion for granting the decree for divorce. Therefore, this Court is of the considered view that it is not a fit case for dissolution of marriage of the parties.  Accordingly, the divorce petition filed by the respondent-husband stands dismissed and the petition filed by the appellant-wife for restitution of conjugal rights stands allowed.  For the reasons mentioned above, both the civil miscellaneous appeals are allowed.  Before parting with the case, it must be mentioned that when this Court asked the parties whether the wife is paid with any maintenance, it was fairly admitted by the learned senior counsel for the respondent-husband that no maintenance is being paid to the appellant-wife. Therefore, no further finding is required thereon. No costs.

ss

To

1. The I Additional District Judge
    Madurai