Thursday, July 18, 2013

WIFE REFUSES SEX FIRST NIGHT! fight dowry case follow.husb gets divorce fmly court. 11 YEARS LATR HC SETS ASIDE DIVORCE [wife seeks restitution ] !! and asks the husband and wife to go forth and ...... as the HC feels that the husband's case is not proven well !! how do you expect people who have gone six times to police, many times to family court, many times to HC to patch up and live after 11 years ?? SAD SAD state of matrimony in India !!

WIFE REFUSES SEX FIRST NIGHT! fight dowry case follow.husb gets divorce fmly court. 11 YEARS LATR HC SETS ASIDE DIVORCE [wife seeks restitution ] !! and asks the husband and wife to go forth and ...... as the HC feels that the husband's case is not proven well !! how do you expect people who have gone six times to police, many times to family court, many times to HC to patch up and live after 11 years ?? SAD SAD state of matrimony in India !!

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS DOT NIC DOT IN SITE 

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 27.02.2012

CORAM

The Hon'ble Mr. Justice K.MOHAN RAM
and
The Hon'ble Mr. Justice G.M.AKBAR ALI

C.M.A.Nos.902, 903 and 2407 of 2010
and M.P.No.2 of 2010

J.Anitha.. Appellant in CMA Nos.902 & 903 / 2010
& Respondent in CMA No.2407 of 2010

Vs.

J.Prakash.. Respondent in CMA Nos.902 & 903 / 2010
& Appellant in CMA No.2407 / 2010


PRAYER IN CMA Nos.902 & 903 / 2010 .:Civil Miscellaneous Appeals filed under Section 19 of the Family Courts Act against the order of the learned Principal Judge, Family Court, Chennai, dated 21.12.2009 in O.P.Nos.1985 of 2001, 2268 of 2007. 

PRAYER IN CMA No.2407 / 2010 .:Civil Miscellaneous Appeal filed under Section 19 of the Family Courts Act against the judgment and decree dated 21.12.2009 on the file of the Principal Family Court at Chennai in so far it is against the appellant in not granting the Dissolution of Marriage on the grounds of Nullity and Mental Disorder.

For Appellant in CMA Nos.902 & 903 / 2010 &
For Respondent in CMA No.2407 / 2010:  Mr. V.Rangarajan
For Respondent in CMA No.902 & 903 / 2010 &
For Appellant in CMA No.2407 of 2407 / 2010:  Mr. K.P.Gopalakrishnan
- - -


C O M M O N  J U D G M E N T 

(Judgment of the Court was delivered by K.MOHAN RAM, J.)

CMA Nos.902and 903 of 2010 have been filed by the wife against the judgment and decree passed in O.P.No.1985 of 2002 and O.P.No.2268 of 2007 on the file of the Principal Family Court, Chennai, respectively.  CMA No.2407 of 2010 has been filed by the husband against the judgment and decree passed in O.P.No.1985 of 2002 as far as disallowing of the prayer for divorce on the ground of mental disorder of the wife. 2. In these appeals, for the sake of convenience, the husband is referred to as the appellant and the wife is referred to as the respondent. 

3. The case of the appellant / husband before the Court below is as follows:-

a. The engagement between the appellant and the respondent was held on 02.07.2001.  The appellant was not permitted to interact with the respondent before the marriage and he was not even allowed to visit the respondents house.  The marriage between the appellant and the respondent was solemnized as per Hindu Rites and Customs on 05.09.2001 at Chennai.  During the first night also, there was no change in the attitude of the respondent and she behaved inappropriately without any enthusiasm.  She behaved very strangely and also childishly and did not allow the appellant even to touch her, leave alone entertaining the appellant to have sex and she appeared to be frightened and  agitated.  She was restless and impatient and the marriage was not consummated not only on the first night but also on the subsequent few days till 17.09.2001, when both of them were together.

4. On the very first night of the marriage, the respondent informed the appellant that her marriage was performed against her will and consent and that she was not interested in marrying the appellant.  From 06.09.2001, the respondent was only thinking of going back to her parents house and was consistently mentioning the same to the appellant.  On 07.09.2001, she complained of leg pain and the appellants father took her to Dr.M.Subramaniam, MS., Ortho.,  on 11.09.2001 she complained of eye pain and hence she was taken by the appellant to Dr.Radhika, who after examining her, wanted her to be brought again the next day.  The next day, though she left for the Doctors clinic along with the appellants father, she insisted on going to her parents house, at first, but upon reaching her parents house, she changed her mind and refused to go to the Doctor.  She removed her Thali chain openly and refused to leave her parent's house which action was fully supported by her parents.  On 14.09.2001 the respondent and her parents visited the appellants grand fathers residence and wanted to reconcile the issue.  On 15.09.2001, the respondent was taken to a psychiatrist viz., Dr.Mohanraj by her parents and the appellants grand father was also present at that time.  After examining her, the Doctor felt that she was suffering from severe anxiety and the counseling was fixed for 20.09.2001.  In the afternoon on 17.09.2001, the respondent complained of severe stomach pain, so she was taken to Dr.Radha Madhavan by the appellants mother.  Though after taking medicines she was having some relief, she insisted on going to her parents house and she was found restless.  The appellant felt that the respondents family is overtly possessive about her and hence he allowed the respondent to go to her parent's house on the night of 17.09.2001.  On the same night, i.e., on 17.09.2001, the respondents mother called the appellant and his parents over phone and informed that the respondent was having her periods and hence would return only on 20.09.2001. 

5. It is the further case of the appellant that on 20.09.2001, at around 11.00 am, the respondent, her parents and sister barged into the appellants residence and behaved in a very indecent and inappropriate manner and they shouted at the top of their voice using filthy language, which caused severe embarrassment to the appellants family members as this behaviour was witnessed by their neighbours and passerby.  Threatening the appellant with police action stating that they will file a police complaint alleging cruelty and dowry harassment, after four hours, they all left carrying with them the articles of the respondent like cloths, silver ware, box containing jewels etc., without the knowledge and consent of the appellant and his parents in a stealthy manner.  At that point of time, the respondent removed her Thali twice and shouted that it was not necessary and the respondent had since then not returned.  No dowry was either demanded or obtained.  Subsequently, the respondents parents have been on a defamatory campaign approached all sorts of people with false stories against the appellant and his parents.

6. On 21.11.2001 repeated phone calls were received by the appellant and his parents to the effect that representatives of a women's association and her parents would visit the appellant at 04.00 pm.  Hearing this, the appellants father approached Abiramapuram Police Station at 12.00 noon. However, they  did not come to the appellants residence.

7. On 24.11.2001 the appellants mother lodged a police complaint before All Women Police Station, Adyar, and the same was registered in the Social Service Register bearing No.1169/CSR/W-2/PS 2001.  On 25.11.2001, the parents of the respondent also approached the same police Station and filed a complaint against the appellant and his parents, which was taken on file as CSR No.1172/CSR/W2/PS/2001.  The appellant was under the reasonable apprehension that the complaint contains total falsehood, including allegations of cruelty and dowry harassment.  On 26.11.2001 the respondent sent a letter to the appellant making false allegations as though the mother of the appellant demanded Rs.3 lakhs. The Police Authorities conducted counselling between the two families and around six sittings took place and as there was no positive progress, the appellant has been forced to approach the Family Court.

8. The respondent has been suffering from such mental disorder and to such an extent that the appellant cannot reasonably be expected to live with the respondent and the marriage is liable to be dissolved on the ground of mental disorder.  The act of the respondent removing her Thali on many occasions, the acts, deeds and attitude and false police complaints by the respondent, from the day one of the marriage, has caused great mental strain, agony and cruelty to the appellant.  

9. The respondent was already engaged to one V.Ramachandran and after the parents of the said Ramachandran found out that the respondent was of unusual character and mentally abnormal cancelled the marriage, but this fact was not informed either to the appellant or to his parents.  This is nothing but a fraud played by the respondent and her parents concealing material facts concerning the respondent.  The vessels given by the respondent bear the initials of the said V.Ramachandran.  Had this fact been informed to the appellant before the marriage, the appellant would not have consented for the marriage, therefore, the appellant sought for a decree for dissolution of marriage under Sections 12 (1) (C) or 13 (1) (ia) and 13(1) (iii) of the Hindu Marriages Act, 1955.

10. The respondent / wife contested the petition by filing a detailed counter statement inter-alia contending as follows:-

a. The entire allegations in the petition are denied and the appellant is put to strict proof of the same.  The respondent is a Commerce Graduate from Meenakshi College for Women in Chennai.  She had been an outstanding student in all her college days and she possessed of Proficiency Certificate and Certificate of Merits for Scholastic Excellency.  She joined her M.Com., course in SIET college for Women and she discontinued the same since her parents wanted her to get married.  Pursuant to an advertisement published in the English Daily The Hindu dated 17.06.2001, the respondent's parents visited the appellant's parents at their residence and exchanged the horoscopes.  On the very same day, the respondents parents had informed the appellants parents that the respondent was earlier to be engaged to another Groom and the alliance was stopped as the groom wanted to go to USA and the respondent's parents were not inclined to send the respondent abroad.  The letter of mutual understanding between the respondents family and the earlier groom was shown to the appellant's family.

11. There was no attempt to suppress any fact as alleged by the appellant.  Thereafter, the engagement took place on 02.07.2001 at the residence of the appellant and a pooja was performed and some silver and stainless steel gift items were presented to the appellant by the respondent's family and the respondent was also present in the engagement and she was asked to sing few songs and she sang the same along with her sister.  The marriage was performed on 05.09.2001.  During the period of two months from the date of engagement to the date of marriage, the appellant's family had visited the respondent's family on several occasion and the appellant had occasions to personally meet and talk to the respondent.  Therefore it is not correct to state that the appellant was not allowed to meet the respondent.  When both the families went for purchasing the wedding dresses, the respondent had accompanied them and as such the parents of the appellant had an occasion to assess the respondent attitude and mental status.  The appellant had also come to the respondents house to see the wedding dresses and on such occasion also, the appellant was interacting with the respondent.

12. At the time of marriage, the appellant was presented with gold chain and a costly diamond ring along with the bracelet.  The respondent was actively participating in all the events.  On the very same night of the marriage, the nuptials were arranged at the house of the appellant.  As any other normal girl, the respondent had the initial inhibitions and she was also shy and reluctant to interact with the appellant freely.  The new atmosphere and being brought up in an orthodox family had made the respondent have her inhibitions initially.  However, she had not prevented the appellant even to touching her as alleged. They were freely discussing with each other and tried to understand each other and the marriage was very much consummated.  Both of them went to cinema, temple and beach and their life was perfectly normal, but she was unable to understand the appellants behaviour as he used to get wild if the respondent talked about her parents or wanted to call up them or to talk to them by phone.  The respondent was effectively prevented from interacting with her parents.  It is not correct to state that the marriage was performed against her wishes.  The marriage was performed only with her full consent and willingness.

13. The next day both of them went to the marriage hall and the appellant was happily chatting with all the guests who were yet to go back and had his breakfast and lunch in the marriage hall itself and there was no complaint whatsoever from the appellant.  The respondent was taken to Doctor since she complained of pain on her leg as she was standing in the reception whole of the previous evening.  Since she was not having proper sleep for about two to three days her eyes were watering and a little reddish and she was again taken to the eye specialist.  On 6th and 11th September, the respondents parents invited them to their house as some of their elderly relatives have come there and wanted to see the couple, but the appellant virtually refused to go to the respondent's house.  On 09.09.2001 the respondent's father came to the appellant's house and personally invited the appellant to come along with the respondent and his parents to their house as some of the elders of the family wanted to meet them and have lunch with them.  At that time, the appellant's mother told the respondent's father that coming from a financially sound family he could be generous enough to spare a sum of Rs.3 lakhs in order to enable them to buy a flat which is being used by them as a rented portion.  The said demand came to the respondent's father as a bolt from the blue as the respondent's father did not expect this.  The appellant's mother shouted at the respondents father and told him that her son was not a person who will merely participate in lunch meetings and they also know how to get their demand complied with and thereafter the respondent's father left the place.  The respondent told her mother-in-law that it is not fair on her part to demand Rs.3 lakhs for the purchase of a flat and for that the appellants mother warned her not to argue with her.  

14. On 11.09.2001 the respondent was taken to an eye Doctor.  The respondent requested the appellant to take her to her parent's house at least for about an hour, but the appellant flatly refused, which caused great pain to her.  The next day the respondent expressed her disappointment over the appellant's behaviour to her father-in-law and her father-in-law took her to her parents house, where there was a dialogue between the appellant's father and the respondent's parents and the respondent's parents also expressed their unhappiness over the appellants behaviour in not visiting their house despite being invited by them.  There was only an argument and there was no removal of Thali or any other issues as stated by the appellant in the petition. 

15. On 14.09.2001 the respondent, her parents and her sister went to the house of the  appellants grand father for reconciliation as he happens to be a senior member of the family.  Only in the light of the advise of the grand father of the appellant, the respondent went back to the matrimonial home and was there until 17.09.2001 on which day she was sent along with the maid to her appellant's house.  The respondent never spoke incoherently or behaved abnormally as alleged by the appellant.

16. The appellant and his family members have come out with a new charge that the appellant is mentally ill.  The respondent's father asked them how they can make such an allegation and they wanted her to be taken to a psychiatrist to be checked up and that was the reason why she was taken to a psychiatrist Doctor-Mohanraj.  As the respondent has no previous history of mental illness of any kind and after examination the Doctor informed the appellant that he should take care of the respondent and allow her to settle in the new atmosphere without disturbing her or threatening her in any manner which caused anxiety to her.  Suppressing these facts, the appellant had come out with false allegations.

17. On 17.09.2001, as the respondent suffered severe stomach pain, she was taken to Dr.Radha Madhavan by her mother-in-law.  The respondent suffered with the stomach pain because of her monthly periods and as she was not able to bear the increasing pain, she was taken to her parent's house with the permission of her in-laws.  After reaching home, the respondents mother informed the appellant as well as his mother that the respondent was having  her monthly periods she will be sent back in two days time.

18. The respondent, as promised by her mother, went to the house of the appellant with her younger sister and her parents on 20.09.2001.  When the door was knocked the respondents mother-in-law shouted opened the door with an unpleasant expression.  The respondent's mother-in-law started shouting at the respondent not to go inside and the stay in the hall itself and the appellant's mother abused the respondent's parents and scolded them badly.  She said that they are not happy with the respondent and they wanted to take her to a lady psychiatrist for further checkup.  The respondents parents told her that unless there is reasonable cause, there is no need for consulting a psychiatrist.  The appellants father informed that they are not interested in keeping the respondent with them until she agreed to come for a consultation to a lady psychiatrist, which made the respondent to cry and felt harassed.  The entire discussion ended up in the appellant's parents asking the respondent to take her belongings and go to her parent's house until the issue was reconciled with the intervention of other family  members.  The appellant's mother said that they do not want to keep petty things with them giving up their major demand of Rs 3 lakhs towards purchase of the flat.  She further told that the respondent is free to bring back the materials when her father had made ready the cash of Rs.3 lakhs.  The respondent was thus compelled to take few of the materials and left the place.  The respondent denied the allegation that she removed her thali twice or that she declared that she was not going to stay in the appellant's house.  The efforts taken by the respondent's family towards reconciliation failed and the respondent was sent out of the matrimonial home for the no fault of hers.  It is only the greed of the appellant's parents for money that made them to send her out of the matrimonial home.  The respondent and her parents had contacted the appellant's parents in person on various occasions proposing reconciliation and the appellants grand father was contacted in this regard, but all their efforts ended in vain.

19. The respondent's father approached the appellants parents and his grand-father and some common friends explaining to them the events that took place leading to unnecessary misunderstandings and prayed for reunion, but  this effort has been described as a defamatory campaign.  The respondent requested the appellant to come and take her back to his house, but the appellant did not take her back.  All efforts for reunion taken by the respondent's parents had been misconstrued and misinterpreted by the appellant.  The respondent sent several letters to the appellant but none of the letters were replied.  The respondent also sent prasadam and photos of poojas performed for their welfare.  After waiting for two months the well-wishers of the respondent's family members advised the respondent to approach "The Jana Nayaka Mathar Sangam", which is a social association that help women in distress.  The respondent approached the Sangam and the Sangam contacted the appellant's parents for appointment to solve the dispute, but this has been wrongly interpreted by the appellant in his petition.

20. On 24.01.2001 the appellant's mother lodged a complaint before the All Women Police Station, Adyar, containing false and frivolous allegations.  The respondent and her family were called for an enquiry and during enquiry, they explained the entire facts including their attempt to bring about a compromise by approaching "The Jana Nayaka Mathar Sangam" and the failure of the efforts.  It was informed to the police authorities that the separation had occurred in view of the failure on the part of the respondent's family to comply with the demand of dowry to the tune of Rs.3 lakhs and the cruelty the respondent had suffered at the hands of the appellant's family.  There was six sittings to reconcile, but the same did not yield any fruitful result and hence the appellant and the respondent were advised to seek remedy before the Family Court.  Even in her letter, dated 26.11.2001 written by the respondent to the appellant, she has clearly mentioned about the dowry demand.  The reason for separation was not the mental status of the respondent, but because of the dowry demand made by the appellant's family and the failure to comply with the demand.  The respondent, even as on the date is wearing her Thali and she considered it as a  sacred one and she never removed her Thali as alleged in the petition.  Even though the appellant applied leave for his honeymoon, he spent his entire leave at home without taking the respondent anywhere outside since the demand for dowry was not meted out.  The respondent and her family had not suppressed the fact of the earlier engagement and the stoppage of the marriage.  Some of the vessels presented to the appellant bear the inscription of the name of V.Ramachandran itself which itself shows that the appellant and his family were aware of the earlier engagement and cancellation thereof.  The allegation that the earlier engagement was annulled on account of unusual character and mental abnormality of the respondent is false.

21. The respondent is a graduate, a music lover, has practice in playing violin and she is a polite, humble and soft natured person and she is a timid girl and this has been abused by the appellant and his family members.  The respondent possesses normal mental and physical health.  She is willing and wants to join the appellant and lead a happy matrimonial life with him.  She had not committed any acts of cruelty as alleged in the petition and there is no legal, moral or justifiable reason for the appellant to seek divorce.

22. Pending the petition for divorce the respondent/wife filed O.P.No.2268 of 2007 for Restitution of Conjugal Rights under Section 9 of the Hindu Marriages Act.  In that petition, the averments contained in the counter statement have been repeated.  The petition for restitution was contested by the appellant / husband by filing a counter statement, which virtually contains the averments contained in the divorce petition and therefore the same are not being repeated.

23. Before the Family Court, on the side of the appellant, the appellant was examined as P.W.1, his father was examined as P.W.2 and his grand father was examined as P.W.3 and one family friend was examined as P.W.4 and Exs.P-1 to P-4 were marked.  On the side of the respondent / wife she was examined as R.W.1 and Exs.R-1 to R-9 were marked.  As per the direction of the Family Court, the respondent was examined by Dr.Vijay Nagasamy, Psychiatrist and Relationship Consultant and he was examined as C.W.1 and his report was marked as Ex.C-1.  

24. The Family Court, on a consideration of the evidence adduced before it, granted a decree for divorce on the ground that the marriage had not been consummated and it amounted to causing mental cruelty and the appellant's complaint on false ground of dowry harassment also caused mental cruelty and the respondent had deserted the appellant without any valid reason but held that the alleged mental disorder of the respondent had not been proved and accordingly, rejected the prayer for divorce on that ground and consequently the Family Court rejected the petition filed by the respondent / wife for Restitution of Conjugal Rights.  Being aggrieved by that, the above appeals have been filed as stated supra.

25. Heard the learned counsel on either side and perused the materials available on record.

26. Mr.V.Rangarajan, the learned counsel for the respondent/wife made  the following submissions:-

a. The case of  the husband  is  that  he was not  allowed  to interact with his  wife  before the marriage; the wife informed the husband  that  the marriage was performed without her consent; she was having childish behaviour;  the wife was restless and impatient during first night;  the marriage  was not consummated  between 5.9.2001 and 17.9.2011; because of the mental disorder of the wife,  the husband suffered mental cruelty; because of the police complaint lodged  by the wife against the husband  and his parents, they had to obtain anticipatory bail and the false allegations of  demand of dowry had caused mental stress and agony, which  amounts to mental cruelty;  on 20.9.2001 the wife  went  to the house of the husband  with her sister and parents and abused them in a filthy language and the whole ugly  scene was witnessed  by the neighbours  which caused  great  embarrassment   to the husband's family members  and their image and reputation was tarnished   and  at that time   the wife   removed  her 'mangal suthra' which  also caused mental cruelty;  admittedly,  the wife  was earlier  engaged to one Ramachandran   but the marriage was stopped  and this fact  was  suppressed  by the wife and her parents;  the wife  was taking treatment   for her mental disorder  for nearly three years before the marriage and this fact  had been purposefully suppressed  and had  the stoppage of the earlier marriage  and the taking of the treatment  for  mental disorder been brought to the knowledge  of  the husband and his family,  the husband would not have given his consent  for  the  marriage. 

27. The learned counsel submitted that the allegation of mental disorder  has been disbelieved and rejected  by the Family Court, but  divorce had been granted  on the ground of  mental cruelty  mainly believing the incident that took place  on 20.9.2001  and the suppression of real reason for cancellation of the earlier marriage.  The learned counsel  submitted that  the case of the husband   is that  because the wife is suffering from mental disorder,  it would  amount to  causing mental cruelty  to the husband.  The  husband  has not separated the grounds of mental cruelty and mental disorder.  But the Family Court  wrongly separated both the grounds and held that  there is mental  cruelty  and further  held that there is no mental disorder. 

28. The learned counsel submitted that   the engagement took place  on 2.7.2011 and the marriage took place on 5.9.2001.  On 7.9.2001  as the wife   had leg pain due to the fact that  she had to stand for long hours  during marriage reception,  she was sent to Orthopedic Surgeon Dr.Subramanian; on  11.9.2001  since the wife had  some eye problem, she was taken to an Ophthalmologist  and again on 17.9.2001 since she had stomach pain due to menstrual problem, she was taken to Dr.Radha Madhavan  and all the aforesaid  treatments  given  to the wife  are at the instance of the husband's family members   and the same have been admitted  in the pleadings and the evidence  but the Family Court  has observed that  the same have not been proved  by adducing acceptable evidence  by the wife.   

29. The learned counsel submitted  that while  the Family Court   has totally accepted  the case of the husband and without even referring to  the evidence of  P.Ws.1 to 4 has simply observed   that the husband's evidence  has been corroborated  by the evidence of P.Ws.2 to 4 and the Family Court  has totally failed even to refer to the evidence of R.W.1  and the documentary evidence  adduced by her; even the evidence  adduced on the side of the  husband  has not  at  all been discussed; only because of the non consideration of the evidence adduced on the side of the wife  erroneous findings  have been recorded  by the Family Court.  

30. The learned counsel  submitted that though it is the case of the husband  that  the wife  was restless and impatient and speaking incoherently ,  there is  absolutely  no acceptable evidence  on record and  no medical evidence   has been adduced and only the interested witnesses have been examined, namely, his father, grandfather and family friend;  even for the occurrence  said  to have taken place on 20.9.2001, which  was admittedly witnessed by the neighbours, none of the neighbours  have been examined  and no explanation   has been given for their  non  examination.       

31. The learned counsel submitted that   even  in chief examination P.W.1  had stated that because of their tiredness, they went to sleep on the first night but  he has alleged that she  had no inclination for cohabitation, which is contrary to the truth.   

32. The evidence of R.W.1/wife  clearly proves her  educational qualification, extracurricular activities like vocal, instrumental, painting etc., which will prove  that  she is neither immature nor mentally ill. The learned counsel  submitted that   it is the case of the husband  that there was no  proper interaction between him and his wife before marriage.   But in his cross examination, he had admitted that  after the purchase of wedding dresses for the marriage,   he had visited  the wife's place twice and he has also  admitted that after the betrothal, he had visited the wife's place  four or five times, which is contrary to what he has stated  in his petition as well as in his chief examination. 

33. The learned counsel  submitted that    the husband and the wife  lived together hardly for 12 days  and in these twelve days,  the wife suffered leg pain,  eye  ailment and stomach pain,  and in these circumstances,  even if there was no consummation of the marriage,  the same cannot be a ground for granting  divorce.  The wife in  her evidence has stated that she is shy in nature and she is so fond of her parents and when  such a girl goes to the husband's place  after her marriage  it will normally take sometime for her to adapt to   such a new environment  and circumstances.   Had the husband  been affectionate and infused confidence  in her without magnifying the small mistakes, if  any,  on her part,  it would have been possible for them to live together  and consummate the marriage.   R.W.1 in her evidence  has categorically stated that she is very much interested in living with her  husband  and  she had spoken about the steps taken by her parents to reconcile  the differences between  the two families  and the efforts taken to bring about reunion, but overlooking   all these facts, the Family Court has erroneously  observed that  the wife has not taken any steps   for reunion. 

34. It is the case of the husband  that the stoppage of the earlier marriage was suppressed whereas  in his cross examination P.W.1  has admitted that  he knew  about the cancellation of the  earlier marriage  and the earlier marriage  had been stopped  as her family did not like to send her with the bridegroom  to U.S.A.  and that was the reason  for the stoppage of the marriage.  

35. The learned counsel submitted that in Ex.R.3  letter written by the husband   to the wife  he had not mentioned anything about the alleged  suppression of the stoppage of the earlier marriage  and the reason for the same.  The learned counsel  submitted that even in Ex.R3 letter dated 8.10.2001  sent by the husband to the wife, the husband  has not alleged  that the wife is suffering from mental disorder   and therefore, submitted that  the allegation of mental disorder  is a newly invented one  and  stated in the petition for the first time  only to make out a ground for  seeking  divorce.   

36. The learned counsel submitted that   though  a complaint  was lodged against  the parents of the husband, she had not  sought for  any criminal action  being taken against  them  but  only she had sought for  reconciliation and on her complaint, no case was registered  and therefore, it cannot be said that  a false complaint  for dowry demand had been lodged  by the wife. The learned counsel further submitted that  though R.W.1  in her evidence  had deposed about the demand of Rs.3.00 lakhs  made  by  her mother-in-law,  it has not been denied  by putting a suggestion in her cross examination.   The learned counsel  submitted that  the mere filing of the complaint for dowry demand  will not amount  to  causing mental cruelty when such complaint has not been found to be false.  In this case when admittedly,  no criminal case  was registered, the Court below  has committed an error  in holding that  the alleged criminal complaint had caused mental cruelty. 

37. The learned counsel submitted that  the husband  was inside the house when the wife  and her parents went  to the house of the husband and as such he could not have witnessed  the alleged removal of Thali by  his wife. The learned counsel submitted that when the incident is said to have been witnessed  by the neighbours, any one of the neighbours would have been examined  to prove the incident but none of the neighbours  have been examined  and in the absence of corroborative evidence and only on the basis of the evidence of the interested witnesses, namely, P.Ws.1 to 4,  the Court below  has held that the  wife  had removed  her 'Thali' which will amount  to  mental cruelty, which is erroneous. 

38. The learned  counsel submitted that when vessels and other gifts were presented to one Ramachandran  at the time of Betrothal,  the initials of  Ramachandran  were inscribed   in the vessels and as the marriage  was cancelled, the vessels and articles were returned to the wife and the same were presented to  the husband and from that they could have easily  found the initials and they would have asked  the wife's family about the initials of some other person  and therefore,  the allegation that the cancellation of the earlier marriage was suppressed  cannot be accepted.   

39. The learned counsel submitted that  the Family Court   has observed that  the receiving of threatening calls from the respondent and her family members would amount to mental cruelty in the absence of any acceptable  proof.   Had the Family Court considered  the letters  written by the wife,   it could have seen that  the wife has suffered mental  cruelty at the hands  of the husband and  his family members and not the husband  and his family members at the hands of the wife and her family.   The learned counsel submitted that the evidence of C.W.1 Dr. Vijay Nagasamy clearly  proves  that the wife  is not  suffering from any mental disorder or any mental illness.   Therefore, the Court below  is right in rejecting the prayer for divorce on the ground of mental disorder.   The learned counsel submitted  that  the wife  and her family members   came  to the matrimonial home  on 20.9.2001,  but  it was the husband and  his family members who did not allow her to stay  in the matrimonial house  and sent her back by  making a  demand of Rs.3.00 lakhs  for purchasing a flat.   The learned counsel submitted that several attempts made by the wife and her family members  for reconciliation and reunion, have gone in vain because of the adamant attitude of  the husband and his family members and the relevant evidence on this aspect  has not at all been considered  by the Family Court, which has resulted in the recording of a erroneous finding  that  the wife  had not taken any steps for reunion with her husband.   When the wife is not at fault and she  had been sent away from the matrimonial home, she  is entitled to get  a decree for Restitution of Conjugal Rights.   

40. The learned counsel  in support of his submissions relied on the following decisions:-

a. AIR 1982 Calcutta 138 b. (1988) 4 SCC 247 c.  2003 (2) CTC 760 d.  AIR 1988 SC 121 e.  AIR 1982 Delhi  240 f.   AIR  2003  Karnataka 357 g.  AIR 1968 Punjab & Haryana 489 h.  AIR 1999 Himachal Pradesh 17 i.  AIR 2007  SC 1426 j. (2005) 2 SCC 22 k. AIR 2006 SC 1675

41. Countering the said submissions, Mr.K.P.Gopalakrishnan, the learned counsel for the appellant/husband  made  the following submissions:-

a. People get married  for begetting  a child  and  to have marital pleasure  in the matrimonial life.   But in this case,  after the marriage the wife   stayed with her husband  only for 12 days  and during that period,  there was no conjugal relationship.   Even  during these 12 days,  the wife went to her parents house several times. On 17.9.2001 the wife left the matrimonial house with no idea of return;  on 20.9.2001  she returned to her matrimonial  home with an idea  to pick up a quarrel  and after four hours of quarrel using foul words by  the wife and her parents and threw away her 'Thali' and took all her articles  and left the matrimonial home for ever; later,  the wife filed a false police complaint  against the husband and his parents  as if they demanded dowry, which  necessitated the filing of a petition for anticipatory bail; there was several  threatening telephone calls to harass them;  the wife made false allegations in her letters and in her counter and in her restitution petition before the Family Court, which points out the complete break down  of matrimonial life with no chances of living together and no useful purpose will be served in continuing the matrimonial tie.  

42. The learned counsel  submitted that  it is  a fit case where the marriage should be dissolved as the marriage  has irretrievably broken down  as per the  decisions of the Apex Court. The learned counsel submitted that on the side of the appellant,  the husband was examined as P.W.1  and  he gave cogent evidence which was not demolished  by the respondent/wife.   During his chief  examination,  P.W.1 has spoken about the mental condition of his wife;  non consummation of marriage; the incident that  took place on 20.9.2001 and the  removing of Thali by the wife; withholding the facts with regard to the mental condition of the wife; withholding of the reasons for the cancellation of  the earlier marriage after betrothal and the evidence of P.W.1  has been corroborated by the evidence of his father P.W.2, his grandfather P.W.3 and his family friend P.W.4., but their evidence  have  not been demolished in the cross examination.   Their evidence  have been properly considered  by the Family Court and only after the consideration of their evidence  the Family Court  has rightly granted  the the decree for dissolution of marriage  on the ground of mental cruelty and therefore,  there is no reason whatsoever to interfere with the well considered judgment of the Family Court.   

43. The learned counsel submitted that   at the instance of the husband,  the wife was examined  by  Psychiatrist Dr.Vijay Nagasami and he has submitted a report Ex.C1, wherein he has stated as follows:-

"She  appears to have been over-protected by both parents and led an extremely sheltered life  with limited social exposure."

"Her intellectual functioning  appeared to be  border line on clinical examinations although  no gross mental  sub-normality   could be detected."

"It is difficult  for such  a person  to lead  a normal married life.  They will require more  training  to lead normal married life."

"By giving proper training  it may be possible  for her to work on the relationship."

"She  is perfectly  rational but  less aware  as to how to conduct  herself  in married life."

"Under socialised person can lead  a normal life  if they are given proper training."

"Anitha did not  tell me that prior  to the marriage  she had consulted  psychiatrist  and that she has taken  medicine.  Anitha did not  tell me  that she had  consulted  Psychologist and she was taking  mediation for her psychological problems."

"According  to my report  Anitha  is suffering  from low self esteem, over protection  by her  parents, extremely  limited  interaction with  opposite gender,  delayed  response  to questions  put to her, undersocialised  behaviour problem, frontal lobe  deficits  and border line IQ."

44. The learned counsel  submitted that  R.W.1 (wife)  had admitted in her evidence  that  she has the mind of a child; she is under treatment for three years  with Dr.Nambi Rajan; she does not know the names or dosage particulars of the tablets  prescribed by Dr.Nambi Rajan; she is not interested to have sex and she is not interested in matrimonial life.  According to the learned counsel,  all the aforesaid submissions  point out to a mental disorder of such a kind and extent  that the appellant/husband  cannot  be reasonably expected to live with the respondent/wife.  The report of the doctor C.W.1  also  shows that  the wife  has incomplete development of mind  as contemplated in the Act. 

45. The learned counsel submits that her mental condition  was not intimated   to the husband  and his family members.  Similarly, the reasons for  cancellation of the earlier marriage  was also not intimated to the husband and his family members, which amounts to withholding  of vital information concerning the wife this would entitle the husband to seek a decree for divorce on the ground of nullity  under Section 12(1)(C) of the Hindu Marriage Act. 

46. The learned counsel submitted that  the Family Court  having concluded that there was  material misrepresentation failed to pass a decree of nullity  under Section 12(1)(c) of  the Hindu Marriage Act. The learned counsel submitted that  the petition for  restitution of conjugal rights has to be decided separately on merits.  In this case, the husband  had not  withdrawn from the company of his wife, whereas  the wife  has withdrawn voluntarily from the company of the husband without any reasonable cause and therefore,  she is not entitled for restitution of conjugal rights. 

47. In support of the aforesaid submissions, the learned counsel  relied on the following decisions:-
a. 2010  1   MLJ   889
b. 2009  5  LW   781
c. 2009  3   LW  708
d. 2009  2  LW   192
e. 2009  2  LW   43
f. 2009   1  LW   332
g. 2008   4  MLJ  1172
h. 2008  3  LW  864
i.  2007   5  MLJ  1397
j. 2007   4  LW  249
k. 2007  2  LW  902
l.  2006   2  LW 606 
m. 2006  2   LW 419
n. 2005  4  CTC  287 
o.  2005  2  SCC 22
p.  2003  4  LW  609
q. 2002  2  LW 250 

48. We have considered the aforesaid submissions and perused the materials available on record. 

49. At the outset we would like to  point out  that  a perusal of the judgment  of the Court below  shows that  the Family Court  has not at all referred to and discussed  the evidence of  R.W.1  and the documentary evidence adduced   on her side.  Similarly,  the Family Court after referring to the case of the husband  has referred to a part of P.W.1's evidence  and has not at all referred to and discussed  the evidence of P.Ws.2 to 4 and simply has stated that the allegations  have also been substantiated  by  P.Ws.2 to 4. Similarly,  as regards  the incident  that took place   on 20.9.2001 after referring to P.W.1's  evidence  the Family Court has  observed that the same has been proved. The evidence of P.Ws.2 to 4 is neither referred to nor discussed.   

50. As far  as  the alleged  telephone calls said to have been received  by the husband's family,  the Family Court  has based reliance  on  the complaint of the husband's mother with the All Womens Police Station, Adayar.  The Family Court  has not at all referred to the allegations contained in the complaint lodged  by the wife and in fact the complaint was not marked separately. The Family Court has observed that the contention of the wife  that due to the physical ailment of thigh pain, eye pain and stomach pain she was not able to cohabit with the appellant for  the said twelve days is not acceptable  because there is no supporting medical proof   for the same  to the effect  that during the said period due to the said ailment  she is not in a position  to have cohabitation   as she was medically prevented for the same. The said observation is totally perverse as the husband himself  in his petition as well as  in his evidence  admitted  that she was treated for the said  ailments.  The admitted fact need not be  proved by the wife. Therefore, it is clear that the Family Court   has not at all  applied its judicial mind   to the evidence available on record.   Similarly, we would like to point out that some of the submissions made by Mr. K.P.Gopalakrishnan, learned counsel for the appellant/husband  are not based on any evidence. 

51. The following are the admitted and undisputed facts:-

a. The betrothal   between  the appellant and the respondent  took place on 12.7.2001. The marriage  was solemnised  on 5.9.2001. The respondent wife complained of leg pain and she was taken to Orthopedic doctor and was treated and she was advised to  come bak  again for a test.  On 15.9.2001 at the instance  of  appellant's parents, the respondent was taken to Psychiatrist Dr.Mohan Raj; on 17.9.2001 she had to leave the matrimonial home because of stomach pain  due to menstural problems;  on 20.9.2001 the respondent/wife with her family members went to the matrimonial home;  on 24.11.2001  the mother of the appellant/husband  filed a false complaint  against the respondent/wife and her parents;  on 25.11.2001  the respondent/wife  gave a complaint at All Womens Police Station, Adayar; but no case was registered; on the basis of the both the complaints only counselling was conducted and in these circumstances,  a petition  for  dissolution of marriage was filed  by the appellant/husband on 25.2.2002. 

52. The following alleged acts and omissions  on the part of the wife are relied upon by the appellant/husband   to contend that  the same caused  mental cruelty to him:-

a. On the first night, the respondent/wife  behaved inappropirately  without  any enthusiasm; she was restless and impatient; she behaved  strangely and childishly  and did not allow  the appellant/husband  even to touch her and the marriage  was not consummated;  the respondent/wife  even  on the very first night  informed the appellant that the marriage was performed  against her consent and will and she was not interested in marrying the appellant; on 12.9.2001 the respondent/wife, who  was accompanied by  the  appellant's father, left the house  to go to Opthal clinic, but on the way  she insisted to go to  her parents house  and on reaching her parents house she changed her mind  and refused to go to the clinic  and she removed her Thali and refused to leave her parents house; on 14.9.2001 the respondent and her parents visited the appellants grandfather's residence and wanted to reconcile  the issue  and at that time,  she spoke incoherently  and seemed very restless and impatient;  on  20.9.2001 the respondent/wife  and her family members  came to the appellant's house  and they behaved in a very indecent manner;  they abused the appellant and his family members by using filthy words which caused  severe embarrassment to the appellant and his family members as the incident was  witnessed  by their neighbours and passers by; only after four hours they left with the articles of the respondent  without the knowledge of the appellant  and at that time the respondent/wife  removed her Thali twice saying that it was not necessary; on 21.11.2001 repeated phone calls were received by the appellant  and his parents  to the effect that the representatives of women's  association would visit the appellant's house and apprehending some trouble, the appellant's father gave a complaint  with the Abiramapuram Police Station, but  none turned out; on 25.11.2001 the parents of the respondent   lodged a complaint  against the appellant  and  his  parents  which necessitated the appellant for seeking anticipatory bail for him and his family members; in the complaint false allegations of dowry demand have been made, which caused great mental cruelty.

53. Ex.R.3  is the letter  dated 8.10.2001 written  by the appellant/husband  to the respondent/wife.   In Ex.R3 except the following, nothing has been stated about what  happened in the first night:-

"It is painful  to say that the marriage was wrecked on the wedding night itself.  The marriage was not consummated."

54. Though in Ex.R.3, the appellant has narrated everything  in minute details, he has not stated   that  the respondent behaved inappropriately without any enthusiasm;  she behaved  very strangely and childishly  and did not allow the appellant  even to touch her; she appeared to be  frightened  and agitated; she was restless and impatient;  she never allowed  the appellant  to touch her; on the first night, she informed  him that her  marriage was against  her will and consent  and she was not  interested  in marrying the appellant and therefore, we are of the considered view that  the aforesaid allegations made in the petition  for divorce   do not find place  in  Ex.R3  but are only invented for the purpose  of  this case. When  all the other  events have been mentioned    with minute details, if  really, the respondent/wife  had behaved as alleged by the husband,  he would have mentioned the same in Ex.R.3.  Except the non consummation of the marriage, none of the allegations have been mentioned  in Ex.R3. Therefore, the said allegations appear to be invented only for the purpose  of  this case.   In fact,  P.W.1 in his chief  examination has stated   as follows:-"cly; nrhh;thfapUf;fpwJ vd;W mth; brhy;ynt ehd; mtiu jhk;gj;;jpa cwtpw;F tw;g[Wj;jtpy;iy

55/ Though  P.W.1  has stated in his chief examination that the  respondent/wife   told that  she  is not interested  in sexual intercourse, there is no such pleading in the petition.  Any amount of  oral evidence without pleading cannot be looked into.  Similarly,  in his chief examination, P.W.1  has stated that  before the doctor  the respondent/wife has stated that  she is not interested to have a child.  But  there is no such pleading in the petition. 

56. It is an admitted fact  that  on 7.9.2001 the respondent/wife complained of leg pain and  the appellant's father  took her to Dr.M.Subramaniam M.S. (Ortho);  on 11.9.2001 she complained of eye pain and she was taken by the appellant  to  Dr.Radhika, Ophthalmologist; on 17.9.2001 she complained of severe  stomach pain and she was taken to Dr.Radha  Madhavan by the appellant's mother.   The aforesaid facts have been stated in the petition and have been admitted  by P.W.1  in his evidence. But the Family Court   has observed that  the said allegations have not been proved by the respondent/wife  by adducing medical evidence.    Admitted facts need not be proved.   This simple proposition of law that has not been kept in mind  by the Family Court.     

57. It is relevant to point out that   even in Ex.P.3 dated 26.11.2001  the letter written  by the respondent/wife to her husband  before the filing of the divorce petition, she has stated as follows:-

"Regarding  our Wedding  night (nuptial)  you have to understand that  I had entered a new atmosphere of your house and the only other members  present  in the house were your mother and sister. How can a just married girl  be without  shyness,  fear and anxiety on her first night.  In spite of that, I cooperated fully with  you   on the wedding night and all the subsequent nights I stayed  with you."

"I have lived  with  my  parents and only sister  for more than 20 years  in a very homely  atmosphere.   About  my timid  nature  and shy behaviour  my parents  have  spoken  to you and your  parents  you  admired  my softness and  discipline.   Your  father praised  me  whenever  occasion permitted   and I thank him for that."

"I was a darling of my house.  It takes some time for me or my parents  to adjust  to each one's  absence."

"Our relations   and friends  say that  newly married couple  go for honeymoon  for developing their  better understanding of  each other.  Till today  we never went anywhere you had  decided to stay at home the whole of your 20 days of leave (granted by your office). the local Valluvar Kottam, beach, and a Cinema were only outings I had with you  and  where  we could hardly  understand  each other."

"During  the course of  conversation  your mother  spoke badly  at which my father raised  a logic point that, while  your  mother  has been so fond  of  her father  who visits  your house  almost every day.  Why  you restrict  us even talking  over phone ?  I also  feel the same."

"Did you  not repeatedly  utter the word "divorce"  in the Cinema  Theatre  even  during the show  was running?  A wedded wife is not  a use and throw property .     Do  you want  to justify  all your  actions of  your family members  including  you and blame my parents  for the simple reason of  questioning  you all, out of sudden  disappointment  on your  indifferent  attitude?

"Apart from this my parents  were shocked when your  parents  wanted   and demanded  3 Lakhs  (Rupees  Three Lakhs  Only)  as they have  a plan to buy your adjacent  flat  in which your are  living for rent."

" Your  mother  insisted  to pay atleast  2 Lakhs  within a month and  the balance after some time.  She also made an indirect  threat   the happiness   of their  daughter  (myself)  depends on the response   to their demand.   Now  I understand  that  the threat  of divorce has come directly  from you  on the inducement  of your  parents."


58. But the aforesaid  averments in the letter dated 26.11.2001  have neither been referred to nor denied  in the petition  or in the evidence of P.W.1.   The respondent  in her cross examination  has stated as follows:-ehd;  rhJthd bgz;/  kpft[k; mikjpahd bgz;/ bgw;nwhh;fis rhh;e;J ,Ug;ngd;/ vdf;F FHe;ij kdJ/59/ In her chief examination  also she has stated that with full mind and heart  consented  to the marriage and there was no question of  the marriage being performed  against her will.  She  has deposed in her chief examination that  at the time of  engagement  she  was asked to sing songs  and she sang some songs.   She has also deposed that   the appellant had come to her house to see the wedding dresses and on that occasion, the appellant interacted with her, but the same had not  been rebutted in the cross examination.   In her cross examination,  she has deposed as follows:-

"v';fSf;Fs;  jhk;gj;jpa cwt[ elf;ftpy;iy/  ehd; jhd; Kjyput[  ntz;lhk; vd;W brhy;yptpl;nld;/ ,jw;F vdf;F Tr;r Rghtk; ,Uf;fpwJ/

60/ A perusal of  the cross examination  of R.W.1  shows that  none of the allegations made by P.W.1  in the petition  as well in his evidence  as to what had happened during the first night have been suggested to R.W.1. It has not even been suggested to  R.W.1 that  the appellant's mother  did not demand Rs.3.00 lakhs  as dowry for purchasing a flat.   It has also not been suggested to  R.W.1  that  she is suffering from such mental disorder and to such an extent   that the  appellant  cannot  reasonably  be expected  to live with the respondent.  It has not been suggested to  her that she told the appellant that she was not  willing for the marriage with the appellant and she did not like the appellant etc. 

61. It is also pertinent to  point out that  in his chief examination itself, the appellant/husband has stated as follows:-

vd;id  gythwhf  Jd;g[Wj;jpajhYk; vjph;kDjhuh; fy;ahzj;jpw;F  Vw;wth; myy vd;gjhYk;.  giHa  epr;rajhk;gyk; ele;jij  brhy;yhjjhYk; mtiug;gw;wp  tptu';fs;  kiwj;Jtpl;ljhYk; bfhLikgLj;jpajhYk;  ehd; tpthfuj;J nfl;L  kD jhf;fy; bra;Js;nsd;/

    62. But   he has not stated  that  because of the  alleged mental disorder,  the respondent wife  behaved with  him  or his family members   in an aggressive manner   or  indulging in any violent act.  He has also not even deposed or suggested to R.W.1  that  because of  the mental disorder  or mental illness  of the respondent/wife it will not be possible for him to live with the respondent/wife any longer.   P.W.2  also  in his chief examination  has not mentioned   about any abnormal  behaviour  of the respondent/wife.   He has not deposed about the mental status of the respondent/wife  and has not stated that at any point of time  she behaved  violently  and  it  would not  be possible for  his son  to live with the respondent because of  her mental condition.   P.W.3   has also not  stated  in his evidence  about the mental condition  of the respondent/wife.   Though P.Ws.1 to 4  have stated  that  on 20.9.2001, the respondent/wife  removed her Thali  and thrown on the floor, the same has not been mentioned in Ex.R.3 letter written  by the appellant   to the respondent.  In Ex.R3  what  he has  stated  is  as follows:-

"Just before leaving,  you attempted  to remove your thali twice"

but  there  is absolutely no mention about the removal  of  Thali  as spoken by  P.Ws.1 to 4  and as stated in the petition.  If really, the respondent  had removed   her Thali twice  as alleged  by the appellant   and the witnesses, the same would have been definitely mentioned  in Ex.R3. Even in the complaint, dated 24.11.2001 lodged by the mother of the appellant, which forms part of Ex.P.4,  the alleged removal of  Thali  by  the respondent/wife  has not been referred to.  For Ex.R.3 letter written by the appellant, the respondent/wife  sent a detailed reply Ex.P.4, for that no reply has been received.  It has also not been referred to in the petition.  Thus the whole story regarding removal of Thali  by the respondent   appears to be  only  an invented  reason   to make out a case for obtaining  a decree  for divorce.   

63. So,  we are of the considered view that  if,  as alleged  by the  appellant  and other witnesses   examined   on his side,  the respondent  and her family members  had indulged  in an unruly  behavior  as alleged  and the same had been witnessed by the neighbours  at least  anyone of the neighbours  could have been examined, but none have been examined and therefore,  in the absence of  any corroboration by any independent witness, we are unable to   believe the evidence of  P.Ws.1 to 4  regarding the alleged incident  that took place   on 20.9.2001. Therefore, the said alleged incident has not been proved by adducing acceptable evidence. For the aforesaid reasons, we are unable to accept  the evidence of P.Ws.1 to 4. 

64. In her complaint, dated  25.11.2001 before the Sub Inspector of Police, Magalir Kaval Nilayam, Adayar, she has mentioned about the demand made by her  mother-in-law  for Rs.3.00 lakhs and about  her  inability to pay the said amount.  She  had referred to the efforts  taken for reconciliation  and the refusal to take her back to the matrimonial home.  She has also referred  to the phone calls  made by her  to the appellant.  She has also referred  to the invitation extended  to the appellant and his family members by the parents of the respondent  for Deepavali.  She has  also mentioned  that she had not  done anything  or  spoken  any words  to wound their feelings  and her parents have gone out of their way  to satisfy their un-satiable demand.   She   has finally only requested  for the intervention of the Sub Inspector of Police  and speak to her in-laws   so that  rapprochement  could  be effected and nowhere she had sought for  any criminal  action to be taken  against her  husband  or her in-laws.    In fact,  as rightly contended  by the learned counsel for the respondent that no case was registered  against  the appellant  and his parents  and only counseling  was conducted  and as the counseling failed both the parties were advised to seek  appropriate remedy before the civil court.   When the respondent  wife  had ventilated  her grievances   in her complaint   to the police for which she is legally entitled to, it cannot be said that   the same will amount  to causing  mental cruelty   to the appellant.  Therefore, the finding of the  Family Court    that the  lodging of  false  complaint   as if the appellant and his family members   had  demanded Rs.3.00 lakhs  as dowry  has caused  mental cruelty   to the appellant  is erroneous.  In fact,  as discussed above,   in the course of cross examination  of R.W.1, it has not even been suggested    to her  that  no demand for Rs.3.00 lakhs  as dowry had been  made by appellant's mother as spoken to by her  in her chief examination.   Thus, the said  allegation  of  demand for dowry   goes un-rebutted.  Therefore,  it cannot be said that the false allegations  have been made by the respondent/wife regarding demand for dowry.  Therefore,  in our considered view the alleged  acts of  cruelty  against the appellant  have not been proved and therefore,  the Family Court   is not  right in granting  a decree for  divorce  on the ground of mental cruelty. 

65. As far  as  the allegation regarding  non consummation of marriage  is concerned, we are of the considered  view that   the Court below   has not considered the said issue in the proper perspective  and  has not properly considered the evidence of  R.W.1  and the facts and circumstances of the case. As pointed out above, R.W.1   in her evidence  has stated  that she is innocent, peace loving  girl,  solely  depending  on her parents  and her  mind  is that of a child  (FHe;ij kdJ).    She has also stated  in her Ex.P.3 letter  that  the appellant  had  to understand   that  she  entered  a new atmosphere  of his house  and how can a just married girl be  without shyness, fear and anxiety  on her first night.  She  was  the darling  of  her house and it takes  sometime  either for her  or her parents to adjust  to each one's absence.  

66. She has also  pointed out that   the appellant  availed  20 days leave at the time of marriage but he had not taken her for honeymoon  as planned. Even when they went for a movie, in the cinema  theater  he had repeatedly  uttered the word divorce.  Even in a short period of 12 days, the appellant had threatened   to divorce the respondent and as such, the same would have caused  great  mental stress  and agony  to the respondent. Even during  the 12 days  period  as admitted by the appellant   they have lived together  only for  6 or 8 days .  Had the appellant   and  his family members treated  the respondent  with love and affection  without  making  any demand for further dowry  and  without insisting   her parents to take  her to a psychiatrist  alleging that  she is having mental illness and given  an  opportunity for  her  to settle down in the new environment  of the matrimonial home, she would  have  adapted to the new environment  and the marriage itself  would have been consummated.  Even assuming that   the marriage had not been consummated, considering the fact that  both of them have lived together only  for 6 or 8 days, the said period cannot be considered to be a long period   for holding that the marriage  had not been consummated  and therefore,   it has caused  mental cruelty  to the appellant  as claimed  by him.    

67. In the decision reported   in  2007 (3) CTC  464 (Samar Ghosh vs. Jaya Ghosh),  the Apex Court culled out  illustrations  of 'Mental Cruelty' in paragraph 102, and laid down as follows:-

"(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 behavior of  a spouse, the wronged party  finds it difficult   to live with the  other party any longer,  may amount 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."

68. The facts and circumstances  of this case  and the evidence available on record  has to be considered  in the light of the legal principles  laid down  by the   Apex Court.   As per the above legal principles, the married life should  be reviewed  as a whole  and a few isolated  instances  over a period of years   will not amount  to "mental cruelty".   The ill conduct  must be persistent for a lengthy period.   

69. In this case,  admittedly, both of them  have lived together  only for a period of 12 days and even during this short period,  no act or omission  on the part of the respondent which has caused  mental cruelty  to the appellant has been established.   It is too short a period  to consider that  any act  on the part of the respondent  had caused  mental cruelty  to the appellant.   Similarly,  unilateral decision of refusal to have intercourse   for considerable period without  there being  any physical incapacity  or valid reason  may amount  to mental cruelty.  Therefore, the refusal to have intercourse should be for a  considerable period   and  then only   it will  amount  to  mental cruelty.   As stated above,  within 12 days,  both of them lived together  only  for  6 or 8 days    and  during that  time  even if there was  no sexual  relationship between  them and therefore, the 12 days period  cannot be considered to be  a long period and   the non consummation  of  the marriage between the appellant and the respondent   during this short period  will not  amount  to mental cruelty as contended  by the  learned counsel  for the appellant/husband. Therefore, we  are unable to  sustain the finding  of the Family Court   on this  aspect and hence, the same is set aside.   

70. The  respondent being   a newly married girl  and having been  sent to the matrimonial home  from her parental house, she has been totally uprooted  from her parents house. She would be  in the position  of a sapling which has been plucked  from the  nursery and  transplanted  in some other place.  Unless  the newly transplanted  sapling is  watered  and  taken proper care  of by the gardener or care taker, the newly transplanted sapling  will not  grow but it will wither away. Like that  a newly married young girl in  her  matrimonial home  will  find  it difficult  to adapt to the new environment, atmosphere  and circumstances and  it will take some time for  her  to get adapted to the same and for that the love and affection  of the members  of the matrimonial home is a must.  But from the evidence adduced in this case, it could be seen that  neither the appellant  nor   his family members  have treated the respondent with love and affection  but have started finding fault  with her and  have gone to the extent of saying  that   she is mentally ill and have started   demanding dowry   from her parents and insisted  her to take treatment   for  mental disorder   with a psychiatrist.   The appellant had threatened   to divorce  her  within 12 days and he had not taken  her for honeymoon  though he had availed  20 days  leave. Thus it is clear  that she  had not  been treated  with love and affection  and as admitted by her she is a timid girl and as such it would  not be possible for her   to  adapt  to the new  atmosphere   and environment in the absence of love and affection from her husband and in-laws and unless  she adapts  to the new environment and  atmosphere  it would not be possible for her to have sexual intercourse  with the appellant.   Therefore, the non consummation of the marriage   during the short period  of  12 days,   cannot be a ground  for  holding that   it will amount  to causing  mental cruelty to the appellant. 

71. As has been laid down by a Full Bench of the Apex Court in the decision reported in AIR 2006 SUPREME COURT 1675 (Naveen Kohli v. Neelu Kohli), to constitute cruelty, the conduct complained of should be 'grave and weighty' so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse.  It must be something more serious than 'ordinary wear and tear of married life'.  The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law.  Conduct has to be considered, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions.  It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce.  The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce.  However, insignificant or trifling, such conduct may cause pain in the mind of another.  But before the conduct can be called cruelty, it must touch a certain pitch of severity.  It is for the Court to weigh the gravity.  It has to be seen whether the conduct was such that no reasonable person would tolerate it.  It has to be considered whether the complainant should be called upon to endure as a part of normal human life.  Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty.  The foundation of a sound marriage is tolerance, adjustment and respecting one another.  Tolerance to each other's fault to a certain bearable extent has to be inherent in every marriage.  Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven.  All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status.  A too technical and hypersensitive approach would be counter productive to the institution of marriage.  The Courts do not have to deal with ideal husbands and ideal wives.  It has to be deal with particular man and woman before it.

72. But unfortunately the Court below has not applied the aforesaid legal principles to the facts of this case while considering the allegation of mental cruelty.  We are of the considered view that the Family Court has taken a too technical and hypersensitive approach without realising that it would be counter productive to the institution of marriage.  The acts alleged against the respondent cannot be said to be such that no reasonable person would tolerate it.  Therefore, we are of the considered view that the Court below is not right in granting a decree of divorce on the ground of mental cruelty.

73. As far as the  alleged suppression of the real reason for  the cancellation of the earlier  marriage after the  engagement  of the respondent   with one  Ramachandran  is concerned,  it has to be pointed out that  in his cross examination,  P.W.1  has stated   as follows:-

"vdJ  jpUkzj;jpw;F Kd;g[ vjph;kDjhuUf;F  ntW egUld; epr;rak;  Md tptuk;.  mjhtJ me;j khg;gps;is mbkhpf;fh bry;ytpUe;jjhy; vjph;kDjhuh; mbkhpf;fht[f;F bry;y tpUg;gk; ,y;yhjjhy;  me;j jpUkzk;  epd;Wtpl;l tptuj;ij  v';fs; tPl;lhhplk; vjph;kDjhuh;  jug;gpy; TwpaJ vdf;Fj; bjhpa[k;/

74/ Thus   it is seen that the reason for  cancellation of the marriage of the respondent  earlier fixed with  one Ramachandran is that  the said Ramachandran  after engagement  got a job   in U.S.A., but the respondent   did not  like to go to America and the same had been informed  to the parents of the appellant  and  it was also  known to P.W.1.  Thus, the very allegation  in the petition  and  in the evidence of  P.Ws.1 to 3  on this aspect  is totally false. Therefore, there  is absolutely no suppression  of any material fact  attracting  Section  12(1)(c) of the Hindu Marriage Act for annulling the marriage  between the appellant  and the respondent.   

75. As far  as the allegations that the respondent  is   suffering from mental disorder   is concerned,  we are of the considered view that the said allegation   has not  been proved  and made out.  In this aspect,  the submission made by Mr.K.P. Gopalakrishnan, learned counsel for the appellant/husband  basing reliance  on the report  Ex.C1  of C.W.1  cannot be countenanced. 

76. What C.W.1  has stated is that  it is difficult  for  such a person  to lead  a normal married life and they will require  more training  to lead normal married life; by giving proper training  it may be possible  for her to work on the relationship; undersocialised  persons can lead  a normal life if they are  given  proper training.   In Ex.C1  report, C.W.1 Doctor   has given his final impression as follows:- 

a. Tmt. J. Anitha  does not suffer from  any mental disorder   as listed  in Chapter V of the World  Health  Organisation's  International Classification of Diseases (10th  edition 2007 version)  or the American  Psychiatric  Association  Diagnostic and Statistical  Manual of Mental Disorders (DSM IV -TR).   

2. Tmt.  J. Anitha manifests Borderline  Intellectual Functioning  not amounting  to Mental Regradation or Mental Subnormality. 

3. Tmt.  J.  Anitha   has deficts  in social   skills and abstract thinking  that themselves  not clinically significant.  

4. There is no prima facie  evidence  that  Ms. J. Anitha  cannot  settle down to satisfactory  married life   if she is provided  a conducive  environment  to do so. 

5. Less than  two weeks of married life  cannot  form basis for a long term decision of an individual's marriage ability or marital capacity."

77. The aforesaid report  shows that  the respondent  is not  suffering from  any mental disorder.   

78. In this context,  it  will be useful to refer  to Section 13(1)(iii) of the Hindu Marriage Act, which reads as follows:-

"13. Divorce (1)   xxxxxxxxx

(iii)  has been incurably   of unsound mind, or has been suffering continuously  or intermittently  from  mental disorder  of such a kind  and to such  an extent   that the petitioner  cannot reasonably  be expected   to live with the respondent. 

Explanation : - In this Clause - 

(a)  the expression "mental disorder"  means  mental illness, arrested  or incomplete  development of mind, psychopathic disorder or any other disorder  or disability  of mind and includes  schizophrenia; 

(b)  the expression "psychopathic disorder"  means  a persistent  disorder  or disability  of mind   (whether  or not including   sub-normality  of intelligence)  which results   in abnormally aggressive  or seriously  irresponsible  conduct   on the part of the  other party,  and whether  or not it requires   or is susceptible  to medical treatment; or"

79. The learned  counsel for the appellant   relied upon the explanation  to Section 13(1)(iii) of the Act, which says that the expression "mental disorder" includes  incomplete development of mind and psychopathic disorder. According to the learned counsel  as the medical evidence  shows that  there is Border Line Intellectual Functioning  IQ 85 which will amount to  sub-normality of  intelligence, which would also include 'disability of mind",   the Court below  is not right  in holding that  the respondent is not suffering  from any mental disorder, but the said contention cannot be countenanced for the reason that  Explanation 'b' to Section 13(1)(iii) of the Act  cannot be read in isolation as  sought to be done  by the learned counsel for the appellant but it has to be read as a whole.   The expression "psychopathic order"  means  a persistent  disorder  or disability  of mind which results  in abnormally  aggressive  or seriously  irresponsible  conduct   on the part of the other party, and whether or not it requires or is susceptible  to medical  treatment. 

80. It has to be pointed out that in Ex.R-3-letter written by the appellant to the respondent it has not been alleged that the respondent / wife is suffering from mental disorder.  In Ex.R-3-letter the appellant has stated that noting her behaviour on 12.09.2001 they thought it will be prudent if a psychiatrist is consulted; on 15.09.2001 she was taken to Dr.Mohan Raj, M.D., Psychiatrist, at Vantage Plaza, L.B.Road, Adyar, Chennai, by her father;  the Doctor desired to see her with the appellant again in the same evening;  after counseling on the 15th evening at 07.30 pm, the Doctor informed the appellant that she was suffering from over anxiety;  he advised the respondent to settle in a new house and slowly gain confidence, but it is not stated that the Doctor had stated that she is suffering from any mental disorder.  If really the respondent / wife was suffering from mental disorder and when admittedly she had been taken to Dr.Mohan Raj, Psychiatrist, the appellant would have certainly mentioned about the same in Ex.R-3-letter and thus, the non-mentioning of the same shows that the allegation of mental disorder in the petition is only an after thought and has been invented only as a reason for obtaining dissolution of marriage. 81. In this case   we have already pointed out that  there is absolutely   no evidence  on the side of the appellant  that the respondent  at any point of time  acted  in an abnormally aggressive  or seriously irresponsible manner   Therefore,  the explanation "b"  to Section 13(1)(iii) of the Act   is not  attracted.    Further,  it has to be pointed out that admittedly,  the respondent is  a first class B.Com.,  Graduate  and in fact  she got admission to M.Com., in Stella Mary's College  and she had to  discontinue  her post graduation course   as her parents wanted to give her  in marriage. She has also deposed that  she is good at vocal and instrumental music.   Further, it has to be pointed out that  if she lacks  mental development or her intelligence is sub-normal or very low, she could  not have withstood  the aggressive cross examination  made by the appellant's counsel.  A reading of her cross examination shows that she had understood  all the questions  put  to her and answered   them  in a normal way.  Therefore, we do not find   any  abnormality in her answers.  R.W.1's evidence shows that  she had taken treatment for  over anxiety with Dr. Nambi Rajan prior to her marriage and she has also mentioned about the name of the tablet and strength of the medicine. Therefore, the contention of Mr.K.P.Gopalakrishnan, learned counsel  for the appellant that the respondent does not even know the medicines taken by her is not correct.  There is no evidence to  show that the respondent  was treated for mental disorder prior to her marriage and therefore, there is no suppression of any material fact concerning the respondent/wife as alleged.  Therefore, we are of the considered view that  there is absolutely   no evidence to  hold that   the respondent/wife   is suffering  from  mental disorder.   It is pertinent to point out that what is required to be proved for the purpose of Section 13 (1) (iii) of the Hindu Marriage Act, 1955, is that the respondent / wife is not only suffering from mental disorder, but also of such a degree and extent that the appellant / husband cannot reasonably be expected to live with her as her spouse.  We are of the considered view that this has not been made home at all from the evidence on record. Therefore, the Court below  is right  in holding that  the alleged mental disorder of the respondent/wife  has not been proved  and  has rightly rejected the petition  for divorce on the ground of mental disorder.  

82. Now let us consider  the decisions relied upon by the appellant's counsel:- 

a. In the decision reported in (2010) 1 MLJ 889 (T. Narayanasamy  vs. N. Kaleeswari),  the learned Single Judge of this Court   has  come to the  conclusion that the  parties have been continuously  living separately without  sincere  attempt or any intention to have reunion between  them and therefore, the continuance   or allowing  the existence  of  marriage  between them will not serve any purpose and hence,  their marital relationship  has to be put  to an end  by dissolving  their marriage and has also come to the further conclusion that the marriage has broken down irretrievably and on that ground a decree for divorce  has been granted. But in this case,  the respondent/wife  had taken serious efforts   as could be seen from her letters  to her  husband and in-laws   and her evidence.   Moreover, irretrievable break down of marriage  being not a ground enumerated under section 13 of the Act,  a decree for divorce  cannot be granted on that ground.  

b. In  N. Shankar  vs. S.Saraswathi  (2009-5-L.W-781),  the Division Bench of this Court  has  held that the denial  of marital comforts  to each other  for a long period of life  undoubtedly  will lead to  mental cruelty. Further,   the Division Bench has held that reckless and serious allegations regarding extra marital affairs  will amount to mental cruelty. Therefore, the facts of that case  are totally different from the facts of the case on hand  and hence, the said decision  is not applicable to the case on hand. 

c. In  D. Nagappan  vs. T. Virgin Rani (2009-3-L.W.708),  the Division Bench has held that a false allegation of  illicit intimacy against the  husband will amount  to mental cruelty.  But in the case on hand such allegations have not been made by either of them.   Therefore, the said decision is not applicable to the case  on hand.    In the very same decision,   it has been further held that  the Family Court   should independently examine   the facts in each case  before granting  the prayer for divorce  as well as the restitution of conjugal rights.   The said principle  will be considered  at the time of  considering the appeal filed by the respondent/wife  against the dismissal of her petition for the restitution of conjugal rights. 

d. In the decision reported in 2009-2-L.W.192 (Satish Sitole vs. Smt.Ganga)  by invoking its power under Article 142 of the Constitution of India, the Apex Court  dissolved the marriage on the ground that  the marriage has irretrievably broken down.  Therefore, the said decision is  not applicable to the facts of the case on hand. 

e. Since the facts of the case in the decision reported in 2009-2-L.W.43 (C. Anantha Jeyakumar vs. C. Murugapriya) are totally different from the facts of the case on hand,  the said decision is not applicable to the case on hand. 

f. Since in the decision reported in (2008) 4 MLJ 1172 (R. Anand vs. P.Indu),  the allegations about the dowry harassment  were found to be false, the learned Single Judge has held that  it will amount to  mental cruelty.  But  in the case  on hand, the allegations about the dowry demand have not been found to be false  and in fact,  the same has been substantiated and therefore,  the said decision is not  applicable  to the case on hand. 

g. On  the basis of the facts, the Division Bench of this Court in the decision reported in 2008-3-L.W.864 (Dr.Gopal Ramanathan  vs. Jayashree) has come to the conclusion that  the marriage  has broken down irretrievably  and the husband and wife  were living separately for 20 years and on that ground the marriage was dissolved.   The facts of  that case are totally different from the facts of the case on hand and therefore, the same is not applicable. 

h. Similarly, in the decision reported  in (2007) 5 MLJ 1397 (N.Subramani  vs. T.Shanta), the decree for dissolution was granted  on the ground that the marriage has irretrievably broken  down and therefore, the said decision is not applicable to the case on hand. 

i. In   Smt. Mayadevi  vs.  Jagdish Prasad (2007-4-L.W.-249),   the Apex Court  on the facts of that case   came to the conclusion that  the husband was subjected to  physical and mental cruelty  by the wife and on that ground  the decree for divorce   was granted.  But in this case, we have already discussed and pointed out that  the alleged acts of mental cruelty  have not been established and therefore, the said decision is not applicable  to the facts of the case on hand. 

j. The decision in  A. Viswanathan vs.  G. Lakshmi @ Seetha (2007-2-L.W.902)  is not applicable to the facts of the case on hand.  

k. In the decision reported in 2006-2-L.W.606 (Naveen Kohli  vs. Neelu Kohli), the Full Bench of the Apex Court   on a consideration of the facts and evidence  of that  case came to the conclusion that  the mental cruelty as alleged  by the husband  had been established and further held that  the marriage was totally dead and taking into consideration  of the extraordinary facts and circumstances of that case dissolved the marriage between the parties by directing  the appellant to pay  Rs.25,00,000/- to the respondent towards  maintenance.   In that decision, the Apex Court   had recommended  to the Union of India to seriously consider bringing an amendment  in the Hindu Marriage Act, 1955 to incorporate  irretrievable breakdown of marriage  as a ground  for  the grant of divorce.  But the Hon'ble Apex Court   has not granted decree of  divorce  on the ground of irretrievable breakdown of marriage  and therefore, the said decision  is not applicable.  

l. In the decision reported in  2006-2-L.W.419 (Vinita  Saxena vs. Pankaj Pandit),  the Apex Court  has considered what is mental disorder and when it will amount  to cruelty.  In that case,  the Apex Court  has come to the conclusion that the medical evidence has proved the mental disorder of the respondent   beyond doubt.   The Apex Court has pointed out that Schizophrenia  is one of the most dangerous/damaging form of  mental disorder and on that ground  the decree for divorce  was granted and therefore,  the facts of that case  are totally different  from the facts of the case on hand and therefore,  the said decision  is not applicable to this case. 

m. In Durga Prasanna Tripathy  vs  Arundhati Tripathy (2005(4) CTC 287),  on the ground of irretrievable break down of marriage,  the decree for divorce by exercising the powers under Article 142 of the Constitution of India was granted by the Apex Court and therefore, the said decision is not applicable   to the case on hand. 

 n. In A. Jayachandra  vs. Aneel Kaur  ((2005) 2 SCC 22),   the Apex Court  has laid down that what will constitute  mental cruelty.  In that case,  the wife used abusive language and made allegations of adultery  against the husband  and the Apex Court has held that  it will amount  to causing mental cruelty. Therefore, the said decision  is not applicable  to the facts of this case as the facts of that case are totally different. o. In the decision reported in 2003-4-L.W.-609 (Vijayakumar  Ramachandra Bhate  vs.  Neela Vijaykumar Bhate),  the Apex  Court has held that  the averments, accusations and character assassination of wife made  by the appellant/husband in the written statement will amount to mental cruelty  for sustaining  her claim for divorce  under Section 13(1)(i-a) of the Act.  In this case,  no  such ground  is available  and therefore, the said decision is not applicable  to the facts of this case. 

p. The facts of the  case in P. Natarajan  vs. Thamizmani (2002-2-L.W.250) and the facts of this case are totally different  and therefore, the said decision  is not applicable to the case on hand.   

 83. The issue that remains to be considered is as to whether the Family Court is right in dismissing O.P.No.2268 of 2007 filed by the respondent / wife under Section 9 of the Hindu Marriage Act seeking Restitution of Conjugal Rights.  

84. The Court below, in its judgment, has observed that the respondent for the past eight years had deserted the appellant without any valid reasons and there is no chance for reunion between the appellant and the respondent considering the facts and circumstances of the case.  It has further observed that the respondent / wife has not taken any steps for reunion and therefore she is not entitled for the relief of Restitution of Conjugal Rights.

85. The aforesaid observation have been made by the Court below without even discussing the oral evidence of R.W.1 and the documentary evidence adduced by her.  Ex.P-3 is the letter, dated 26.11.2001 written by the respondent / wife to her husband / appellant, as a reply to Ex.R-3-letter written by her husband on 08.10.2011, wherein, she has point-by-point replied her husband's allegations and she has mentioned that her parents' visited the bank and met an official there to initiate efforts for reunion between the families and not to spoil the image of the appellant and she has also mentioned that her parents have been making all efforts to settle the matter amicably.  She has expressed her hope that the appellant will take her into his hold as she has clearly explained to him all the points he had raised.  Ex.R-7 is a letter, dated 06.10.2001 written by the respondent to her in-laws wherein she has mentioned that she had been waiting for them to come as they had told of their arrival to take her back.  Ex.R-8 is another letter written by the respondent / wife to her husband / the appellant herein on 08.02.2002.  It has been written in a friendly manner enquiring about his official visit to Madurai and informing him about the Homam and Abishegam performed in various temples and she has enclosed the prasadam to him and in the concluding portion of the letter, she has written as follows:-

I pray Almighty to restore happiness in our life.  My respects to father, mother and grandfather. 

Ex.R-9 is another letter, dated 26.02.2002 written by the respondent / wife to her husband / appellant herein wherein she has mentioned that he had not replied to her earlier letters.  She has requested the appellant to come to her house to take her with him.  She has further stated as follows:-

I still pray for a fine understanding of our families and enable us to live in harmony and peace.

86. As rightly submitted by Mr.Rangarajan, learned counsel for the respondent, that R.W.1 in her evidence has categorically stated that she is very much interested in living with her husband and has spoken to about the steps taken by her parents to reconcile the differences between the two families and the efforts taken to bring about reunion.  But unfortunately the Court below has totally overlooked all these facts and has not cared even to look at the evidence of R.W.1 and letters written by her to her husband much less to discuss the same.

87. The aforesaid letters written by the respondent / wife to her husband / appellant and her in-laws make it abundantly clear that she was always wanting and willing to go back to the matrimonial home, but there was no response from the appellant's side.  Whereas there is no evidence on the side of the appellant / husband to show that the appellant took any efforts to take her back to the matrimonial home.  The evidence on record clearly shows that even during the twelve days both of them lived together the appellant had threatened the respondent that he will divorce her.  The demand for dowry of Rs.3 lakhs by the mother of the appellant seems to be the main reason for the separation, but in spite of this, the respondent wants to live with the appellant.  But overlooking all these facts and evidence, the Court below has erroneously come to the conclusion that the respondent had not taken any steps for reunion.  The said finding of the Court below and the finding that the respondent had deserted the appellant without any cause is perverse and not based on any evidence and accordingly the said findings are set-aside.

88. We are constrained to observe that only because of the perverse and unsustainable order passed by the Court below, the life of two youngsters have been ruined for the past nine years.  Had the Family Court considered the entire evidence, in the light of the well settled legal principles as stated above, the Court below would not have dissolved the marriage between the appellant and the respondent and in that event, there would have been a possibility for their reunion.  But even now, it is not too late for the appellant and the respondent to calmly think about it, reunite and lead a peaceful life since there are no irreconcilable differences between the appellant and the respondent.  Therefore, we hope and believe that the appellant and the respondent and more particularly the parents of the appellant will take sincere steps for their reunion.

89. The respondent / wife had not deserted the appellant / husband as observed by the Court below.  Therefore, the respondent / wife is entitled for the relief of Restitution of Conjugal Rights and accordingly, the order and decretal order of the Family Court, dismissing O.P.No.2268 of 2007, is set-aside.  

For the aforesaid reasons, CMA Nos.902 and 903 of 2010 filed by the respondent / wife stand allowed and CMA No.2407 of 2010 filed by the appellant / husband stands dismissed.  However, there will be no order as to costs. Connected M.P. is closed.   

  (K.M.J.,)         (G.M.A.J.,)

               27.02.2012          

Index    : Yes / No

Internet : Yes / No

srk

Office to note.:  Issue order copy on or before 05.03.2012



K.MOHAN RAM J., 
                and G.M.AKBAR ALI, J.,

srk/rnb



     


To
1. Principal Family Court, Chennai,





Pre-Delivery Judgment in
C.M.A.Nos.902, 903 and 2407 of 2010
and M.P.No.2 of 2010







Date :   27.02.2012









M.P.No.2 of 2010 in CMA No.903 of 2010

K.MOHAN RAM, J.,
AND
G.M.AKBAR ALI, J.,


Order of the Court was made by K.Mohan Ram, J.,


After judgment in the appeals was delivered, Mr.Rangarajan, learned counsel for the appellant in C.M.A.No.903 of 2010 submitted that the above petition has been filed for the following reliefs:-
"....to direct the respondent to pay an amount of Rs.1,00,000/- towards the value of the furniture mentioned in item II and also Rs.10,000/- which was paid by the petitioner's father at the time of betrothal for dresses and also return of other articles mentioned in item I to the petitioner and to pass such further or other orders as this Hon 'ble Court may deem fit.

Schedule of properties

I  item :
1.Gold chain
2.Gold bracelet
3.Diamond ring
4.Panchapatram Utthranayiam
5.Cash worth Rs.10,000/- for dresses

II  item :

1.Wooden diwan cot.
2.Godrej bero
3.Dressing table and stool
4.Two wooden palagai with silver khumi in the corner
5.one double size duroflex cushion mattress
6.Four cushion pillows big size"
and it has to be disposed of.

2. It has to be pointed out that while arguing the appeals, no submission was made in respect of this petition.  Even otherwise, this petition has been filed pending the above appeal and no such relief was sought for before the Family Court in the original petition.  Therefore, we are of the considered view that this petition cannot be entertained by this Court at this stage.  However, the petitioner is at liberty to seek an appropriate remedy before the appropriate forum by filing an appropriate application.

3. With the above observation, the above petition is dismissed.

  (K.M.J.,)         (G.M.A.J.,)
               27.2.2012           
RS





M.P.No.2 of 2010 in
CMA No.903 of 2010

Pre-Delivery Judgment in
C.M.A.Nos.902, 903 and 2407 of 2010
and M.P.No.2 of 2010

To
The Hon'ble Mr. Justice K.MOHAN RAM
and
The Hon'ble Mr. Justice G.M.AKBAR ALI

Most Respectfully submitted:


S.Ramkumar
/srk