Madras High Court
Latha Maheswari vs Palaniswamy on 16 December, 1993
Equivalent citations: (1994)1MLJ507
ORDER K.M. Natarajan, J.
1. C.M.S.A. Nos. 60 and 61 of 1983 arise out of the order passed in C.M.A. Nos. 241 and 242 of 1982 respectively, which in turn arose out of the order passed in O.P. Nos. 119 of 1978 and 56 of 1981 respectively. The brief facts which are necessary for the disposal of these appeals can be stated as follows:
2. The appellant herein is the wife, while the respondent is her husband. The husband filed O.P. No. 119 of 1978 for divorce on the ground of mental cruelty and desertion. The appellant wife filed O.P. No. 56 of 1981 for restitution of conjugal rights. According to the respondent he married the appellant on 22.8.1976 and the said marriage took place without the consent of the appellant herein and only after the marriage the respondent came to know that the appellant did not like the marriage with the respondent, but she had love with one Balan. The appellant has not allowed the respondent to consummate the marriage. The respondent informed about this to the parents of the appellant. They pacified him and asked him to wait for some lime. Subsequently when the, respondent informed the parents of the appellant that the appellant was not permitting him to consummate the marriage, the appellant and her parents insulted the respondent and scolded him that he was impotent. The appellant removed the Tali and threw it away and the parents of the appellant beat the respondent by hands and chappel and drove him out of the house. The respondent is not willing to be the husband of the appellant as the appellant is not permitting him to consummate the marriage. The respondent issued a notice to the appellant. In the reply to the said notice, the appellant has stated that the respondent is impotent and she may not have any objection for divorce. Hence, the respondent filed a petition for divorce.
3. The appellant/wife filed a counter denying the allegations made by the respondent/husband. On the pleadings, the trial court raised two points, viz., (i) whether the appellant/wife caused mental and physical cruelly to the respondent/husband and (ii) whether the respondent/husband is entitled to a decree of divorce.
4. The case of the appellant/wife in her petition viz. O.P. No. 56of 1981, which was filed for restitution of conjugal rights, is the same as what has been pleaded by her in the counter filed in O.P. No. ll9olT97S.Inaddition,shehassiatcdshe is willing to live with the respondent and it is only the respondent who has neglected to maintain her during the enquiry in O.P. No. 119 of 1978. The respondent underwent medical test and now it is seen that he is medically fit to lead a marital life and therefore she prayed for a decree of restitution of conjugal rights. In the counter filed by the husband in O.P. No. 56 of 1981, he has reiterated the allegations raised by him in O.P. No. 119 of 1978. The respondent/husband stated that the appellant/wife did not allow him to have sexual intercourse and had subjected him to mental and physical cruelty. Both the petitions, viz. O.P. Nos. 119 of 1978 and O.P. No. 56 of 1981 were tried together. The respondent/husband marked Ex. A-1 and Ex. A-2 and the appellant/wife did not file any document. The appellant/wife and respondent/husband were examined themselves as P.W. 1 and R.W. 1 respectively. The learned trial Judge, after taking into consideration the oral and documentary evidence, came to the conclusion that on point No. l in O.P. No. 56 of 1981 that the appellant/wife has not caused mental and physical cruelty to the respondent/husband and on point No. 2 that the appellant/wife is entitled for a decree for restitution of conjugal rights. On point No. 1 in O.P. No. 119 of 1978 the trial Judge came to the conclusion that the appellant/wife has not caused mental or physical cruelly to the respondent/husband and in view of the finding on point No. 1, the trial Judge held point No. 2 against the respondent/husband that he is not entitled to a decree for divorce. Aggrieved by the order of the trial Judge, the respondent/husband filed two appeals viz., C.M.A. Nos. 241 and 242 of 1982. The learned Judge, after considering the oral and documentary evidence/and after hearing both parties, allowed the appeals with costs and reversed the judgment and decree of the trial court passed in O.P. Nos. 119 of 1978 and 56 of 1981. It is against those judgments, the wife has preferred the present appeals.
5. The only substantial question of law that arises for consideration in these is whether the appeal from the decision of the court specified as "District Court" by the State Government by notification in the Gazette under Section 3(1) of the Act lies only to the High Court and the appeal to the District Court from the said decision is not maintainable and whether the District Court has no jurisdiction to entertain the appeal. At the outset, learned Counsel for the appellant has fairly conceded that the said substantial question has to be answered against the appellant in view of the provisions of Section 28 of the Act that District Court alone has got jurisdiction and as such he is not pressing the said contention and it is answered against the appellant. Learned Counsel, however, wants to argue the case on merits and he would submit that the finding rendered by the appellate court with regard to the menial and physical cruelty and desertion is not supported by any acceptable evidence and on that ground interference is called for. In this connection, he drew the attention of this Court to the judgment of the trial court wherein the trial court has observed that according to P.W. 1 the said Balan had married the respondent's maternal aunt's daughter. His further evidence indicates that though his wife loved Balan he wanted to live with her. In the cross-examination of P.W. 1 it was suggested that the pensioner was educated by the parents of the respondent and a job was also secured by them to the i: spondent. R.W. 1 has answered the said suggestion in affirmative that it was her parents who educated the petitioner and secured job for him. 1 fence, it can be inferred that the petitioner was aware of all the details about the family of the respondent before his marriage with her. If really the respondent was loving one Balan, the petitioner would have informed the same to the parenets of the respondent at the time of the marriage negolations. There is absolutely nothing to show that the petitioner had informed the parents of the respondents about the relationship that existed between Balan and the respondent. P.W. 1 in his cross-examination has slated that Balan had married the niece of the respondent and that Balan's wife was aged about 19 years. When such is the case the allegations made by the petitioner that the respondent had refused to allow him to have intercourse and informed that if anybody could have sexual intercourse with her it could be only Balan cannot be true. As per the evidence of P.W. 1 Balan was a married man. He had the niece of the respondent. Hence the allegation that the respondent was refusing the petitioner to have sexual intercourse with him on the ground that she is meant only for Balan has absolutely no basis.
6. Per contra, learned Counsel for the respondent/husband would submit that the learned trial Judge has given cogent and convincing reasons for granting a decree for divorce and reversing the judgment of the trial court by the appellate court is not justified. In this connection, he drew the attention of this Court to the judgment of the trial court, wherein the trial Judge has observed that it is the admitted fact that the appellant/wife was not living with her husband and she was living with her parents. It is in evidence that the appellant and her parents scolded and abused the respondent that he is not impotent. It is only the respondent/husband who had filed the petition at the first instance. In his petition he has alleged that the appellant/wife has abused him as an impotent person and she did not permit him to have sexual intercourse with her. Further, it is alleged by him that his wife was having illicit intimacy with one Balan. In the counter filed by the appellant/wife in O.P. No. 119 of 1978 she has stated that her husband is an impotent person and that he refused to undergo medical test. On a petition, respondent/husband was examined by a Medical Board and submitted a report. It is stated in the report that the respondent/husband is capable of. normal sexual intercourse and he has no physical or mental disorder which would prevent him from normal sexual intercourse, neither he has any congenital defect and nor there is any evidence to show that he was at any time sexually impotent. Further even after filing of the petition there is nothing on record to show that there is any bona fide attempt on the part of the appellant to show that she was willing to have sexual intercourse with the petitioner. The appellant/wife has filed O.P. No. 56 of 1981 on 22.2.1981 and in the said petition she has stated that since the Medical Report states that the respondent/husband is a fit person to lead a married life, she is willing to live with the respondent/husband. It is clear from this that the appellant/wife has abused the respondent/husband as impotent person and caused mental and physical cruelly to him. In this connection, learned Counsel for the respondent/husband drew the attention of this Court to a decision of the Delhi High Court in the case of Anil Bhardwaj v. Smt. Nirmlesh Bhardwaj A.I.R. 1987 Del. 111, wherein the said court has held as follows:
...refusal to have sexual intercourse amounts to cruelly on the other party. This was so in Rita Nijhawan's case A.I.R. 1973 Del. 200. In para. 21 at page 209 this is what the court had said:
21.Thus the law is well settled that if either of the parties to a marriage being in a healthy physical capacity refused to have sexual intercourse the same would amount to cruelly entitling the other party to a decree. In our opinion, it would not make any difference in law whether denial of sexual intercourse is due to weakness of the respondent disabling him from having a sexual union with the appellant, or it is because of any wilful refusal by the respondent; this is because in cither case the result is the same namely frustration and misery to the appellant due to denial of normal sexual life and hence cruelly. Prior to Gollin's case 1963 All. E.R. 966, in 1963 the Courts in England had been taking the view that unless cruelty was aimed at by either of the parties he same could not amount to cruelty. But that is no longer a correct view and therefore subsequently the courts have proceeded on the basis that it is not necessary to prove the culpability of the respondent in order to hold him guilty of cruelty. What has to be found in each case is whether the act is such which the complaining partner should not be asked to endure. The Court of Appeal in Sheldon v. Sheldon (1966) 2 All. E.R. 257, granted a decree to the wife on the finding that the husband's persistent refusal of sexual intercourse over a long period without excuse caused a grave injury to the wife's health and amounted to cruelty on his part. Lord Denning observing that:
the categories of cruelty are not closed. The persistent refusal of sexual intercourse is not excluded.
Later on this Court reiterated what has been said in Rita Nijhawan's case A.I.R. 1973 Del. 200. In Atma Parkash Arora v. Neelam (1981) 2 D.M.C. 43, a decree was refused only because the husband had failed to prove that there was denial of sexual intercourse. In Shakuntala Kumari v. Om Prakash A.I.R. 1981 Del. 53 : 1981 Rajadhani L.R. 121. Justice Leila Seth held that if the wife is not willing for normal sexual relations, it is cruelty op the husband. Para. 25 of that judgment reads as under:
A normal and healthy sexual relationship is one of the basic ingredients of a happy and harmonious marriage. If this is not possible due to ill health on the part of one of the spouses, it may or may not amount to cruelty depending on the circumstances of the case. But wilful denial of sexual relationship by a spouse when the other spouse is anxious for it, would amount to mental cruelty, especially when the parties are young and newly married.
Applying the ratio of the said decision to the facts of the present case, it cannot be said that the order passed by the court below granting divorce is either illegal or improper or the same requires any interference by this Court. Thus on a careful consideration, this Court is of the view that both the appeals filed by the appellant/wife are devoid of any merits in substance. Consequently, the appeals are dismissed. However, the parties are directed to bear their respective costs.