wife alleges husband had illicit relations with his OWN MOTHER; hubby gets quick divorce in JUST 10 years + wife gets moolah !
a case where cruelty is well analysed, should be of use to husbands fighting cases on the basis of cruelty by wife.
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* wife insults husband often, seeks separate house, leaves husband hungry and stranded
* wife makes a written complaint with such henious allegations of illicit relationships but tries to turn turtle at HC and deny her own wrongdoing
* wife is cross examined and truth comes out
* divorce granted on the grounds of cruetly
* wife granted permanent alimony on grounds of equity
* "......Taking note of the paramount welfare and interest of the Appellant/Wife and her daughter, their status, keeping in mind the rise in prices of essential commodities, spiralling cost of inflation, this Court, exercising its inherent powers to Award permanent alimony based on Equity, Fair Play and Good Conscience, directs the Respondent/Husband to pay a sum of Rs.750/- each to the Appellant/Wife and her daughter as monthly maintenance and the litigation expenses of Rs.2,000/- as ordered in I.A.No.1621 of 2003 in O.P.No.1835 of 2002 till date and further, he is directed to pay a sum of Rs.1,00,000/- each to the Appellant/Wife and her daughter towards permanent maintenance in full and final settlement, within a period of one month from the date of receipt of a copy of this Judgment. ....
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Madras High Court
P.Nirmala vs K.Muruguselvam on 21 February, 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated:21.02.2012
Coram
THE HONOURABLE Mr. JUSTICE ELIPE DHARMA RAO
AND
THE HONOURABLE Mr. JUSTICE M.VENUGOPAL
C.M.A.No.2148 of 2008 and M.P.No.1 of 2008
P.Nirmala ... Appellant
Vs.
K.Muruguselvam ... Respondent
Prayer: Appeal filed under Section 282 of the Hindu Marriage Act, 1955 r/w. Section 19 of the Family Court Act against the Fair and Decretal Order dated 12.05.2008 made in F.C.O.P.No.1835 of 2002 on the file of the II Additional Family Court, Chennai.
For Appellant : Mrs.K.M.Nalinishree
For Respondent : Mrs.Hema Sampath Senior Counsel For Mr.C.Packiaraj
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/
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JUDGMENT
M.VENUGOPAL,J.
The Appellant/Respondent (Wife) has filed the instant Civil Miscellaneous Appeal as against the order dated 12.05.2008 in F.C.O.P.No.1835 of 2002 passed by the Learned II Additional Family Court Judge, Chennai.
2.Before the Learned II Additional Family Court Judge, Chennai, during the trial of main F.C.O.P.No.1835 of 2002, on behalf of the Respondent/Petitioner (Husband), witnesses P.W.1 and P.W.2 have been examined (though in the list of witnesses in the Order, it is inadvertently mentioned as P.W.1 to P.W.4) and Exs.P.1 and P.2 have been marked. On the side of the Appellant/Respondent (Wife), no witness has been examined for oral evidence, but Ex.R.1 has been marked for documentary evidence.
3.The Learned II Additional Family Court Judge, Chennai, while passing orders in F.C.O.P.No.1835 of 2002 on 12.05.2008, has, inter alia, observed that 'the Respondent has seriously alleged that the Petitioner/Husband having illicit intimacy with his own mother and her father-in-law leading an adulterous life separately without any basis and such an unproved allegation amounts to cruelty to the Petitioner' and resultantly, granted the relief of Divorce on the ground of cruelty, by dissolving the marriage that has taken place between the parties on 01.10.1999 at No.31, S.V. Koil Second Street, Chennai 600 011, in favour of the Respondent/Husband (Petitioner in F.C.O.P.No.1835 of 2002).
4.The Petition Facts:
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(i)The marriage between the Respondent/Petitioner (Husband) and the Appellant/Petitioner (Wife) was solemnised on 01.10.1999 at Shri Bhagyalakshmi Thirumana Arangam, No.407, Poonamallee High Road, Chennai 600 102 as per Hindu rites and customs in the presence of elders and relatives. But the Respondent/Husband and the Appellant/Wife were living together as Husband and Wife at No.31, S.V. Koil Second Street, Chennai 11 and out of the wedlock, a female child was born on 11.10.2000. The child has been Christened name of 'Elaveneil'. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/
(ii)From the date of marriage, the Appellant/Respondent (Wife) developed a hatred towards the Respondent/Petitioner (Husband) and she started to treat him as an inferior to her status and also used to call him as less educated and utter as 'after all a diploma holder'. The Appellant/Wife used to call him in singular and even in the presence of guests and relatives, she used to call him as 'deiy Murugu/Peri' in an indecent manner without any due respect. Also, the Appellant/Wife used to utter that the Respondent/Husband is not possessing any masculine characters. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/
(iii)Moreover, the Appellant/Wife treated the parents of the Respondent/Husband in a shabby manner and she used to abuse his mother and used to utter that he and his mother are having illegal relationship.
(iv)The Appellant/Wife has not even spared the father of the Respondent/Husband and on one occasion, she commented that his father is unfit to the little finger of her mother's feet and worthless person. The Respondent/Husband's family is a middle class family and therefore, the Appellant/Wife has not liked it and also she remarked that they are living in a house fit for pigeon and called it as a pigeon- hole house.
(v)Added further, the Appellant/Husband used to utter that her brother wanted to give her in marriage after paying Rs.10 or 15 lakhs as dowry in a rich family. But, due to some reason or other, she has been forced to marry in low earning family and which is unfit to her status. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/
(vi)Continuing further, the Respondent/Husband has also averred that the Appellant/Wife wanted him to arrange for a car to attend one of her friend's marriage at Tambaram. Since he could not provide the car, the Appellant/Wife tried to kill the child by throwing it in the terrace and after arranging a vehicle, she got satisfied. Further, often she used to demand money from him to send to her friend at her place and when he refused to give the money, she used to threaten that she would commit suicide and to put the blame on the Respondent/Husband, to get himself involved in criminal matters.
(vii)On the advise of his parents, he kept her in a separate residence, hoping that she could rectify and correct herself from the rude and shabby activities, at Raghavachari Road, Chennai. On one occasion, when he returned from the airport duty late, she made him to stand outside the house and she has not opened the door for long hours. Therefore, he has been forced to seek the help of his parents for sleep. She has not allowed the child to be taken to the parent's home and she also wanted not to see the parents. She used to sleep all the day with a view not to sleep night hours and to create problems with him. She also used to criticise him and create problems and also used to threaten if any of her wishes are not satisfied by him. When her cruelty became intolerable, she made him hungry, her brothers and sisters advised the parties to vacate the house to rejoin his parents. His parents also rejoined the family after forgiving the respondent with a hope that she might have reformed herself. After rejoining, she demanded share in the property and created problems with his parents. She caused mental agony and torture, not only to him but also to his parents. Even after rejoining his parental home, she has not allowed the child to go to his parents and when the child wanted to reach them, she used to beat the child mercilessly and create noisy scene. He being a Government servant working in the Ministry of Health and Family Planning and dealing with the medicines, her acts and words have been intolerable and create much disturbance to his mental balance. He has been affected mentally and physically due to the cruelty of her. This may lead to his committing some error in official duties. Hence, he has filed the petition praying for a Decree of dissolving the marriage between him and the Appellant/Wife that has taken place on 01.10.1999 at Chennai. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/
5.The Counter Averments:
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(i)There is no enmity between the Respondent/Husband and herself. The female child aged 2 = years is with her. There is no good grounds for filing the petition. As a dutiful wife, she is ready and willing to live with the Respondent/Husband. The child is also very much interested in seeing her father. The Respondent/Husband should consider the interest of the child.
(ii)In the additional counter, the Appellant/Wife has stated that the name of the child has been selected by her husband and his family members and that the Respondent/Husband showered his most affection towards her and used to give her a lot of gifts on many occasions and that he also used to take her out daily for shopping and various other entertaining venues. He used to address her in a nick name of 'Sona' which he felt that other should not know about this. She never addressed her husband in a singular name and used to call him only as 'Ennanga' with due respect. He was never addressed in an inferior manner and has been taken care off by her in great fashion. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/
(iii)The Appellant/Wife never allowed her mother-in-law to do any household duties and has seen that her old mother-in-law has been at rest. Her husband's parents used to address her that she is an orphan and has no remedy except to touch their feet for her livelihood because they felt that they are the parents of her husband. She has been informed by her husband's parents that her brother cheated them by not paying Rs.20 lakhs as dowry because they belonged to rich family. Her father-in-law, who is a practising Advocate in the High Court of Madras, City Civil Court at Chennai and also assisting her husband, used to abuse her that she is coming from a family which is lower to their status. Her father-in-law used to abuse her in filthiest language like daughter of a prostitute, a witch and lady of low profile, when her husband was not at home and used to act in the presence of him that they cared for her more. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/
(iv)On one occasion, her husband wanted to take her for a marriage, since he is in Madras by engaging a taxi for which, the in-laws vehemently objected to it and threatened that they would throw the female child from the terrace. She was shocked at the actions of their in-laws and convinced her husband that he could go alone to the marriage and she will remain at home along with the child.
(v)The in-laws used to demand money very often when she used to visit her brother at Achirapakkam and she used to satisfy their demands with great difficulty. In spite of the same, her in-laws used to threaten her that she would be forced to commit suicide one day when her husband is away and the blame will be put on her that she is an insane woman. She used to inform various criminal acts of her in-laws to her husband. But he used to tell her that he was fond of her and he used to see that nothing would happen in her matrimonial house.
(vi)She used to cook various nice dishes as per demands of the in-laws and her husband. Her husband's relatives who are abroad used to visit her matrimonial home very often and they always praised her conduct in a high esteem. Her sister-in-law, who has come from Singapore, informed her husband's parents that they should be happy that they got a nice daughter-in-law, who was fond of them. Her brother-in-law, who is living in London, also cautioned her husband and parents that they would face the consequences if they continue to act in that manner towards her. She is loved by her brother-in-law and sister-in-law and her husband and only stumbling block is her in-laws. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/
(vii)Her husband, after realising the acts of the in-laws, has decided to take a separate matrimonial home and in-laws compelled her husband to come and stay with them and never allowed to go to his residence and they have seen that she is slept alone along with her two years child. When she questioned her husband about this, he requested her to tolerate for a short span of time and assured that he would see that the in-laws will correct themselves and believing his words, she continued to remain in her house. Whenever her husband not returned home, she used to call her in-laws house over phone and her in-laws used to chide her saying that she will be separated from her husband soon. On one occasion, her in-laws directed her husband to drop her at Maduranthakam for a week and informed her brother over telephone that they are sending her for short holidays to his house and would take her back after a week. She has gone to Achirapakkam, but her husband did not take her back even after a week.
(viii)The Appellant/Wife along with her brother returned to the house of in-laws to see her husband. But her in-laws refused to entertain her into the house. She has been compelled to go to her house viz., to the address mentioned in the petition and she was shocked to see that the house was locked and no one was there. She has gone back to Achirapakkam and made several telephone calls to her husband for which there was no response from him. Her relatives tried to meet her husband at his office to know as to when will he join with her. But, he avoided their visit and told them that he could join her as soon as his parents would agree for it. She is affected mentally, physically due to the cruelty of the in-laws and her husband is still fond of her and used to talk to her whenever he is alone. She knows very well that her husband is willing to resume his conjugal rights and she is willing to discharge her duties as a devoted and dutiful wife.
6.The Point for determination that arises in this Appeal is that:
Whether the Order dated 12.05.2008 in F.C.O.P.No.1835 of 2002 passed by the II Additional Family Court Judge, Chennai, in granting the relief of Divorce in favour of the Respondent/Husband, is sustainable in the eye of law?
The Contentions, Discussions and Findings on Point:
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7.According to the Learned Counsel for the Appellant/Wife, O.P.No.1835 of 2002 filed by the Respondent/Husband is devoid of merits when there is a specific admission that both herself and her husband were living under the same roof when the petition was filed.
8.It is the submission of the Learned Counsel for the Appellant/ Wife that the Learned II Additional Family Court Judge should have seen that after filing the petition, the Respondent/Husband has shifted the matrimonial home though the Appellant/Wife has continued to live in the matrimonial home.
9.The plea of the Appellant/Wife is that the Respondent/Husband has not substantiated his pleadings with sufficient evidence and as such, the allegations of cruelty have not been established by him.
10.The Learned Counsel for the Appellant/Wife urges before this Court that her father-in-law (P.W.2) has not let in sufficient evidence to dislodge the allegation of his adulterous life and therefore, the allegation made in this regard does not amount to cruelty.
11.The Appellant/Wife has taken a ground in the Appeal that her husband has admitted that he has not chosen to file any police complaint and not communicated to his wife's elder family members and therefore, he has not proved the allegation of cruelty inflicted on him.
12.The Learned Counsel for the Appellant/Wife takes a plea that the Learned II Additional Family Court Judge, Chennai has failed to appreciate that her husband has not chosen to examine his mother when serious allegations have been made against her and this proves that he has inflicted cruelty on the Appellant/Wife by making scandalous allegations against her.
13.Lastly, it is the contention of the Learned Counsel for the Appellant/Wife that the Appellant/Wife has denied all the allegations made in the petition and she has also denied the allegation of illicit intimacy with his own mother in her counter and that the Learned II Additional Family Court Judge, Chennai has erroneously held that the Appellant/Wife is admitted the false allegations and committed cruelty towards her husband.
14.The Learned Counsel for the Appellant/Wife contends that the aspect of 'Cruelty' is to be decided based on facts and circumstances of each case by taking note of the attendant surrounding circumstances and to lend support to her contention cites the Division Bench Judgment of this Court in Jayakumari V. Balachander, [2010 (3) CTC 785] (one of us is the party] wherein, in paragraph 30, it is held as follows: "30.The term 'cruelty' consists of unwarranted and unjustifiable conduct on the part of defendant causing other spouse to endure suffering and distress thereby destroying peace of mind and making living with such spouse unbearable, completely destroying real purpose and object of matrimony. It would of course be difficult to define the expression "cruelty'. There cannot be any hard and fast rule in interpreting the same. As pointed out, the word & quot; cruelty & quot; cannot be put in a strait-jacket of judicial definition. It must be judged on the facts of each case having regard to the surrounding circumstances. Whether one spouse is guilty of cruelty is essentially a question of fact and previously decided cases have little, if any, value. The term 'cruelty' is not defined in the Act. It is to be judged by taking into consideration the status of life, the standard of living, the family background and the society in which the parties are accustomed to move because particular behaviour may amount to cruelty in one set of circumstances and may not be so in other set of circumstances."
15.She also relies on the decision in Naval Kishore Somani V. Poonam Somani [AIR 1999 Andra Pradesh 1], wherein it is observed as follows:
"It is no doubt open for the petitioner husband in a petition for divorce on ground of 'cruelty' to seek a decree of divorce on grounds arising out of charges levelled in the written statement by the respondent wife which amounts to 'cruelty'. However, such a right to claim a decree of divorce does not extend to cases where the respondent has merely failed to prove the charges. It is necessary to prove further that the charges levelled by the respondent apart from being unproved, are false, baseless vexatious and malicious. The proof of falsity of such charges is a sine qua non for claiming a decree on ground of events alleged in the counter. How much proof and from what source, should come for proving falsity is a pure question of fact depending upon case to case. In the instant case it has not been proved that the averments made in the counter by the respondent are false, malicious, baseless or vexatious. Thus the husband would not be entitled to decree of divorce."
16.The Learned Counsel for the Appellant/Wife draws the attention of this Court to the decision of the Hon'ble Supreme Court in V.Bhagat V. Mrs.D.Bhagat [AIR 1994 Supreme Court 710] wherein, in paragraph 17, it is laid down as follows:
"17.Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be Determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made."
17.Per contra, it is the contention of the Learned Senior Counsel for the Respondent/Husband that the Appellant/Wife, in her counter, has not repudiated the allegation of her husband that she abused him with a remark that he and his mother have been in illegal relationship and that her father-in-law who has been examined as P.W.2 has also stated that the Appellant alleged that his son viz., the Respondent/ Husband is having illicit intimacy with his own mother and further that the Appellant/Wife has not cross examined her father-in-law-P.W.2 in regard to the averments made by him in his proof affidavit before the Family Court and also that she has not examined herself as a witness to establish her allegations made against her husband and when the Appellant/Wife has not substantiated her allegations made against the Respondent/Husband, then, her unproved allegations are clear acts of cruelty which perforce the Respondent/Husband to get the relief of Divorce against the Appellant/Wife.
18.The Learned Senior Counsel for the Respondent/Husband cites the decision of the Hon'ble Supreme Court in Vijaykumar Ramchandra Bhate V. Neela Vijaykumar Bhate [(2003) 6 Supreme Court Cases 334 at page 335] wherein it is held as follows:
"Levelling disgusting accusations of unchasity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship constitute grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standardsm would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. Such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law. On going through the relevant portions of such allegations, it is clear that no exception could be taken to the findings recorded by the Family Court as well as the High Court. They are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible."
19.She also relies on the decision in Harendra Nath Burman V. Sm.Suprova Burman and another [AIR 1989 Calcutta 120 (1)] wherein it is held that 'unfounded allegation of adultery by one spouse against other Constitutes mental cruelty of gravest character to warrant divorce.'
20.Also, the Learned Senior Counsel for the Respondent/ Husband cites the Division Bench Judgment of this Court in The Superintending Engineer, Suruliyar Hydro Electric Project, Madurai and others V. The Green Lands New India Construction Company and others [1993 (2) MLJ 228] wherein it is observed that 'the defendants have failed to produce the best evidence before the Court. Hence the Court is entitled to draw an adverse inference against the defendants as regards the disputed facts.'
21.At this stage, it is useful for this Court to make a reference to the evidence of P.W.1 and P.W.2 for better appreciation of the merits of the case.
22.P.W.1 (Respondent/Husband), in his evidence, has deposed that one month after marriage, the Appellant/Wife has started to exhibit her dominance and even for trivial matters, she used to get angry and at that point of time, she has become pregnant and has taken her to the doctor who examined her and the doctor informed that she has fibroid and assigning that reason, she has not done any work in the house and his mother has done all works for her.
23.The evidence of P.W.1 (husband) is also to the effect that the Appellant/Wife assigning reason of ill-health has demanded certain things from him, which he purchased and given her and at that time, he has been blessed with a female child and he has incurred the expenses of Caesarean operation through which the child has born.
24.Added further, it is the evidence of P.W.1 that when the doctor has prescribed a chit to examine the fibroid, the Appellant/Wife immediately harassed him to take scan and in case if he has not taken her for examining the said fibroid, she informed him that she has come as a daughter-in-law of a beggars family. Also, on one occasion, when his father has been proceeding to Singapore, the Appellant/Wife informed him to purchase a costly gift for her friend's brother's marriage and when he refused to buy the same, she threatened that she will commit suicide and on one night, she has taken the child to the terrace and threaten that she will commit suicide and he pacify her and send her in an auto for the said marriage and she returned only at 11.00 p.m. in the night and therefore, he has been affected very much mentally and that he has not been in a position to discharge his daily works.
25.P.W.1, in his evidence, proceeds to state that his parents have returned from Singapore after a week and they informed the person who arranged his marriage to advise the Appellant/Wife and at that time, the Appellant/Wife informed that his mother has spoken ill of her conduct and asked his father over the phone as to whether he is equal to her father and based on mediation of Rajanga Nadar, he has permitted the Appellant/Wife to be in his house and further, she spoke in singular term in front of his parents like 'thlh nghlh' and later in their house separate food has been prepared and one day when he has taken his mother's food preparation, the Appellant/Wife has thrown the child from the cot and picked up a quarrel and when he act any contrary to wish of his wife, then, she used to show the same on the child and because of these her continued acts, his parents have kept him in a separate residence and the Appellant/Wife desired to see house in Anna Nagar side and he has seen a house near his house at Perambur and she used to quarrel daily with him since she has not liked the same. Further, the Appellant/Wife asked him to see a different house and when he has not agreed for the same, she started scolding him and his parents in vulgar manner and one day when he has been proceeding to his office, she asked him to see a different house and when he refused and when he returned from the house at 11.00 p.m. in the night, he knocked the door of the house for half an hour and still she has not opened the same and therefore, he has gone to his parents house and slept there and when he returned to his house on next day, again the Appellant/Wife has not behaved with him properly and since he is holding an important post in the office, because of the Appellant/Wife's activity, he is not able to concentrate of his work.
26.Continuing further, P.W.1 has also stated, in his evidence, that he filed a petition seeking the relief of judicial separation and because of his brother's efforts, he has been affected mentally on different counts because of the action of the Appellant/Wife he has filed the petition for divorce.
27.P.W.2 (father-in-law of the Appellant/Wife), in his evidence, has stated that his son's marriage (Respondent/Husband) has been arranged his relative N.Rajanga Nadar and his son viz., P.W.1 has been reluctant for this proposal as the age between him and the Appellant/Wife has not been matched and he compelled his son (P.W.1) to agree for the marriage based on the assurance given by his relative Rajanga Nadar that the Appellant/Wife is suitable for the family and that he never demanded money and also her brothers never promised to pay a sum of Rs.20 lakhs as dowry.
28.P.W.2, also goes on to add, in his evidence, that the Appellant/Wife wanted to take a dominant role in the family and outside that they should be under her control and when this has not been possible, she started finding fault with them and also created scene on many occasions and she used to abuse him as an 'immoral and bastard' and further, she caused lot of irritation on many occasions and inspite of it he tolerated and set up a separate family for his son. Furthermore, it is his evidence that the Appellant/Wife (his daughter-in-law) used to abuse him as worthless and unfit to run the family and also she abused him that he is in illicit intimacy with his wife and all these are derogatory and provocative words and she used to treat his wife as slave and openly used to tell that she is running an immoral family. Moreover, she has stated in the additional counter that he is running an adulterous life with another woman when his first wife is living and it is derogatory.
29.This Court aptly points out the decision in J.Shyamala V. P.Sundar Kumar [1990 (2) MLJ 198] wherein it is held that 'if the husband wants to have divorce on the ground of cruelty by the wife, he must specifically and clearly state in what way the wife treated him with cruelty'.
30.This Court worth recall the decision in Neena Malhotra V. Ashok Malhotra [2007 (1) Hindu Law Reporter 327] at page 331 & 332 in paragraph 17, it is held as follows:
"In the present case also, it was submitted by the learned Counsel for the appellant that she has only quoted what the respondent was telling her that he had given Mangal Suttar to his mother. Similarly, she was quoting her mother in law that the respondent was the husband of his mother. Actually, by quoting the respondent and his mother, she was making direct allegations against the respondent and his mother of having illicit relations particularly when she has levelled the allegations that her husband used to leave her bed room at night time and used to come back at about 5 or 6 AM. She further stated that whenever she got up at mid night, she noticed her husband to be in the bed room of her mother in law and the door of the room of her mother in law was bolted from inside. These allegations are totally suggestive of the fact that the respondent was having illicit relations with his mother. Therefore, the principle of law laid down by the Hon'ble Supreme Court in A. Jayachandra is clearly applicable to this case. The appellant appears to be a woman who has no control over her tongue. Therefore, it is clearly proved that she has caused acute mental agony to the respondent by making false, unfounded and immoral allegations against the respondent which amounts to cruelty of highest degree."
31.In V.Bhagat V. D.Bhagat [AIR 1994 SC 710], it is observed that 'irretrievably broken marriage is not a ground by itself but it can be borne in mind from the evidence on record on being properly scrutinized, to see whether the ground(s) as alleged are made out.'
32.In Naveen Kohli V. Neelu Kohli [AIR 2006 Supreme Court 1675] at page 1676, the Hon'ble Supreme Court has stated thus:
"A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are presented concrete instances of human behaviour as bring the institution of marriage into disrepute. Once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interest of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie, by refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wreckede beyond the hope of salvage, public interest lies in the recognition of that fact. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist. Human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising therefrom." Also, in paragraph 96 of the Judgment, it is observed that 'Court recommended to Union of India to seriously consider bringing an amendment in H.M. Act to incorporate irretrievable break down of marriage as a ground for grant of divorce.'
33.In Sujata Uday Patil V. Uday Madhukar Patil [(2007) 8 MLJ 797 (SC)], the Hon'ble Supreme Court, in para 7 and 8, has observed as follows:
"7. The word "cruelty" and the kind or degree of "cruelty" necessary which may amount to a matrimonial offence has not been defined in the Act. What is cruel treatment is to a large extent a question of fact or a mixed question of law and fact and no dogmatic answer can be given to the variety of problems that arise before the court in these kind of cases. The law has no standard by which to measure the nature and degree of cruel treatment that may satisfy the test. It may consist of a display of temperament, emotion or pervasion whereby one gives vent to his or her feelings, without intending to injure the other. It need not consist of direct action against the other but may be misconduct indirectly affecting the other spouse even though it is not aimed at that spouse. It is necessary to weigh all the incidents and quarrels between the parties keeping in view the impact of the personality and conduct of one spouse upon the mind of the other. Cruelty may be inferred from the facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence and inference on the said point can only be drawn after all the facts have been taken into consideration. Where there is proof of a deliberate course of conduct on the part of one, intended to hurt and humiliate the other spouse, and such a conduct is persisted, cruelty can easily be inferred. Neither actual nor presumed intention to hurt the other spouse is a necessary element in cruelty. On a careful consideration of the findings recorded by the learned District Judge and also by the High Court and in our opinion they are fully borne out from the material on record and cannot be faulted with on any ground. Therefore, the decree for divorce has to be maintained."
34.In Amaravathy V. R.A.Pakkirinathan [1998 (3) MLJ 377 at page 378] wherein it is held as follows:
"The substance is that the husband is unable to cope with the conduct of the wife. So no useful purpose will be served in keeping the matrimonial tie. For almost a decade they have been fighting. Even the good offices of the counsels were of no avail. In the circumstances, no useful purpose will be served in allowing to continue the relationship as husband and wife in name."
35.Admittedly, the term 'Cruelty' is a mixed question of law and fact. The Hindu Marriage Act has been enacted based on social, economic and political changes in India. Of course, the initiation of marriage takes a pivotal place and has a key role to play in the society and cruelty may be of different crimes like, physical or mental, intentional or unintentional changes from time to time, place to place and person to person based on status, human, cultural values, educational standards and finally on social economic conditions.
36.The term 'Cruelty' should be of a such a nature that the parties cannot reasonably be expected to live together and situation must be such the wrong person cannot reasonably be required to put up with the other party. Moreover, intention to hurt another is not an essential element. In the absence of possible act of cruelty, a party is not entitled to obtain a decree for divorce as per decision in Sankara Prasad Pal V. Sabita Pal [1997 CWN 747].
37.In Neha Khuller V. Rakesh Khuller [I 2004 DMC 719 (MP)], it is observed and held that 'in view of the statement of the appellant Neha Khullar (N.A.W.1) on oath that she does not want to live with her husband and he is not fit for her and that he is less educated and lame. I have no hesitation in believing the statement of the respondent /husband on oath that his wife tortures him by speaking insulting words that he is lame and that she has deserted him for more than 4 years.'
38.If bitter waters are flowing, it is not necessary to enquire from which source they spring. It is necessary for the Petitioner in a matrimonial proceedings to make out a specific case that the conduct of the other person alleged, indeed amounts to cruelty.
39.In an American case, in Jem V. Jem 33 reported in [1937] 34 Haw 312, the Hon'ble Supreme Court of Hawii has observed that 'cruel treatment not amounting to physical cruelty is mental cruelty.'
40.In Halsbury's Laws of England [Vol.13, 4th Edition, para 1269], it is observed as follows:
"The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exists.
41.It cannot be gainsaid that a mere evidence/admission for enduring cruelty cannot be reckoned as condonation under Section 23 of the Hindu Marriage Act.
42.The disgusting acquisition made by the Appellant/Wife that the Respondent/Husband is having illicit relationship with his mother and further, accusing her father-in-law viz., P.W.2 that he is leading an adulterous life, are nothing but a serious assault on character, honour, reputation and status of not only the Respondent/Husband but also on P.W.2, in the considered opinion of this Court. The Appellant/Wife after making allegations against the Respondent/Husband and her father-in-law P.W.2 and not proving such allegations against them, but yet resisting the divorce proceedings in F.C.O.P.No.1835 of 2002 would mean a resolve to live in mental turmoil only to make the life miserable to both parties. Further, the term 'Cruelty' cannot be decided on the sensitivity of Homo Sapiens. It has to be adjudged based on the course of conduct of a particular party.
43.We deem it appropriate to cite the decision of the Hon'ble Supreme Court in Vijayakumar Ramchandra Bhate V. Neela Vijaykumar Bhate [AIR 2003 Supreme Court 2462 at page 2463] wherein the Hon'ble Supreme Court has laid down as follows:
"To satisfy the requirement of Clause (i-a) of Sub-section (1) of Section 13 of the Act, it is not as though the cruel treatment for any particular duration or period has been statutorily stipulated to be necessary. As to what constitute the required mental cruelty for purposes of the said provision, in our view, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct, but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the Courts perhaps need consider the further question as to whether their continuance or persistence over a period time render, what normally would, otherwise, not be a so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonable conclude that the maintenance of matrimonial home is not possible any longer. A conscious and deliberate statement leveled with pungency and that to placed on record, through the written statement, cannot so lightly be ignored or brushed aside, to be of no consequence merely because it came to be removed from the record only. The allegations leveled and the incidents enumerated in the case on hand, apart from they being per se cruel in nature, on their own also constitute an admission of the fact that for quite some time past the husband had been persistently indulging in them, unrelated and unmindful of its impact. That the husband in this case has treated the wife with intense cruelty is a fact, which became a fait accompli the day they were made in the written statement. The continued on record at any rate till 5.10.1988 and the indelible impact and scar it initially should have created, cannot be said to have got ipso facto dissolved, with the amendments ordered."
44.Also, we pertinently point out the decision in Smt.Rajna Choudhary V. Sh.Raghubir Singh [AIR 2011 Himachal Pradesh 27 at page 28] wherein, in paragraph 7, it is held as follows:
"7.Appellant while in the witness box admitted that she had lodged complaint Ext.PA with the Deputy Commissioner and forwarded copies thereof to various other authorities, but denied that in the said complaint she had levelled the allegation that respondent was having illicit relations with his brother's wife. Complaint, which she lodged with the Deputy Commissioner, is Ext.PA. She was shown this complaint. She admitted as Respondent/Wife-1 that she had lodged this complaint and it bore her signature. In the complaint there is a specific allegation that the respondent had been having illicit relations with his deceased brother Om Prakash's wife Kanta and had been squandering all his earnings to keep her happy. Thus her plea that she did not make the allegation that the respondent was having illicit relations with his brother's wife is proved to be false, by the complaint Ext.PA, which she made to the Deputy Commissioner. This allegation definitely amounts to mental cruelty."
45.In the present case on hand, when the Respondent/Husband in his F.C.O.P.No.1835 of 2002 on the file of II Additional Family Court, Chennai has come out with a specific plea that the Appellant/Wife used to ill treat him with ugly, foul language without any respect in front of third persons and further, when the Appellant/Wife has been accused by the Respondent/Husband that she used to abuse his mother and remarked that her husband and his mother having illegal relationship, which has not been denied by her either in the counter of F.C.O.P.No.1835 of 2002 filed by the Respondent/Husband or in additional counter and all the more, when she has not been examined as a witness on her side to rebut or repudiated the serious allegations levelled against her by the Respondent/Husband, then, the evidence adduced by the Respondent/Husband as P.W.1 and her father-in-law P.W.2 clearly prove that the Appellant/Wife has committed an act of cruelty on the Respondent/Husband and any amount of heeling touch or heeling words projected on the side of Appellant/Wife that she has not treated the Respondent/Husband in a cruel manner will not wipe out the scar and viewed in that perspective, this Court comes to an irresistible conclusion that the abnormal act of the Appellant/Wife is a clear case of mental cruelty which is more painful than physical cruelty, in the considered opinion of this Court.
46.That apart, the father-in-law of the Appellant/Wife has also deposed before the Family Court that Appellant/Wife has abused him as immoral and employed vulgar words on numerous occasions, she has caused irritation and also that in the counter affidavit, the Appellant/Wife (his daughter-in-law) has alleged that he is leading an adulterous life with another woman when his first wife is living, which is derogatory in character. Admittedly, the Appellant/Wife has not been examined as a witness in the proceedings in F.C.O.P.No.1835 of 2002 on the file of the Family Court, Chennai. The non-examination of the Appellant/Wife as a witness to rebut the averments or allegations made against her by the Respondent/Husband in his F.C.O.P.No.1835 of 2002 and also in his evidence not controverting the evidence of P.W.2 that the Appellant/Wife viz., his daughter-in-law has called him as immoral etc. and further, making allegation against him that he is leading an adulterous life with another woman when his first wife is living etc., are all clear adverse circumstances which go against the Appellant/Wife.
47.In the instant case on hand, the parties have separated themselves on 06.03.2002 and they are leading a separate family life of their own accord to their own choice. There is also no possibility for them to live in unison. The marriage has broken down between the parties beyond repair, as opined by this Court. Further, the marriage between the parties cannot be safe and kept intact because of the fact that their appears to be a love lost between the parties. Therefore, a Court of Law has to take a purposeful, meaningful and pragmatic approach in dealing with the matrimonial disputes based on factual ground scenario prevailing in a given case which float on the surface.
48.To put it succinctly, the Appellant/Wife has not substantiated her allegations made against the Respondent/Husband and also against her father-in-law viz., P.W.2., the Family Court has rightly weighed and assessed the oral and documentary evidence available on record in a proper manner and has come to the right conclusion that the Appellant/Wife has committed an act of cruelty and accordingly, granted the relief of Divorce in favour of the Respondent/Husband, by dissolving the marriage that has taken place between the parties on 01.10.1999, which warrants no interference in the hands of this Court. Consequently, the Civil Miscellaneous Appeal fails.
49.Dealing with the plea of the Learned Counsel for the Appellant/Wife that the Appellant/Wife has filed M.C.No.329 of 2008 on the file of II Additional Family Court, Chennai and later transferred to III Additional Family Court, Chennai praying for maintenance amount of Rs.5,000/- per month for the Appellant/Wife and Rs.7,000/- for the minor daughter and that the said matter is to have been listed before the Learned II Additional Family Court though an order has been obtained by the Respondent/Husband in his favour for transfer of the case to III Additional Family Court Judge, Chennai and further, the matter is set at the stage of cross examination of P.W.1.
50.Further, it transpires that in I.A.No.1621 of 2003 in O.P.No.1835 of 2002 though the Appellant/Wife has claimed a sum of Rs.5,000/- towards litigation expenses and an interim maintenance amount of Rs.1,500/- per month for herself and Rs.1,000/- per month for her daughter aggregating in all, a sum of Rs.2,500/-, the Learned Principal Family Court Judge, Chennai on 28.04.2004 has granted a sum of Rs.750/- per month each to the Appellant/Wife and her daughter as interim maintenance from the date of petition till the disposal of O.P. and also awarded a sum of Rs.2,000/- as litigation expenses. As against the said order in I.A.No.1621 of 2003 in O.P.No.1835 of 2002 on the file of Learned Principal Family Court Judge, Chennai, Civil Revision Petition has been filed by the Appellant/ Wife praying for enhancement of maintenance amount awarded to her and her daughter. The said Civil Revision Petition is said to be pending on the file of this Court.
51.It is to be pointed out that the Hon'ble Supreme Court in the decision Satish Sitole V. Ganga (Smt) [(2008) 7 SCC 734] following the precedent in Romesh Chander V. Savitri [(1995) 2 SCC at page 7)], while invoking Article 142 of the Constitution of India, dissolved the marriage subject to the husband paying permanent alimony of Rs.Two Lakhs and cost of the Appeal assessed at Rs.25,000/-. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/
52.Admittedly, in I.A.No.1621 of 2003 in O.P.No.1835 of 2002 on the file of Learned Principal Family Court Judge, Chennai, a sum of Rs.750/- each as interim maintenance has been ordered to the Appellant/Wife and her daughter and further a sum of Rs.2,000/- has also been granted as litigation expenses, to be paid by the Respondent/Husband. Taking note of the paramount welfare and interest of the Appellant/Wife and her daughter, their status, keeping in mind the rise in prices of essential commodities, spiralling cost of inflation, this Court, exercising its inherent powers to Award permanent alimony based on Equity, Fair Play and Good Conscience, directs the Respondent/Husband to pay a sum of Rs.750/- each to the Appellant/Wife and her daughter as monthly maintenance and the litigation expenses of Rs.2,000/- as ordered in I.A.No.1621 of 2003 in O.P.No.1835 of 2002 till date and further, he is directed to pay a sum of Rs.1,00,000/- each to the Appellant/Wife and her daughter towards permanent maintenance in full and final settlement, within a period of one month from the date of receipt of a copy of this Judgment. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/
53.In the result, the Civil Miscellaneous Appeal is dismissed, leaving the parties to bear their own costs. Consequently, M.P.No.1 of 2008 is closed.
(E.D.R.J.) (M.V.J.)
21.02.2012
(2/2)
Index :Yes
Internet :Yes
Sgl
To
The II Additional Family Court Judge,
Chennai.
ELIPE DHARMA RAO,J.
AND
M.VENUGOPAL,J.
Sgl
JUDGMENT IN
C.M.A.No.2148 of 2008
(2/2)
21.02.2012
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/
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