Madras High Court
Muthuvel vs Vijayarani on 31 October, 2007
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 31/10/2007 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.S.A.(MD) No.12 of 2006 Muthuvel ... Appellant husband Vs Vijayarani ... Respondent wife Prayer Appeal filed under Section 28 of the Hindu Marriage Act read with Section 100 of the Civil Procedure Code, against the order passed in H.M.C.M.A.No.17 of 2005 dated 31.10.2005, by the learned Principal District Judge, Pudukkottai, confirming the order passed in H.M.O.P.No.45 of 2004 dated 30.06.2005, by the Sub Judge, Pudukkottai. !For Appellant ... Mr.P.Senthur Pandian ^For Respondent ... Mr.T.Srinivasa Raghavan :JUDGMENT
This appeal is focussed as against the order passed in H.M.C.M.A.No.17 of 2005 dated 31.10.2005, by the learned Principal District Judge, Pudukkottai, confirming the order passed in H.M.O.P.No.45 of 2004 dated 30.06.2005, by the Sub Judge, Pudukkottai.
2. For convenience sake, the parties are referred to hereunder as husband and wife.
3. A re'sume' of facts absolutely necessary and germane for the disposal of this second appeal as stood exposited from the records would run thus:
(i) The parties to this proceeding got married on 21.06.1991 as per the Hindu Rites and Customs. Consequently, they lived as husband and wife. The husband happened to a police personnel in the security force and both lived in four or five places. During the wedlock, they gave birth to two male children.
While so, rift started creeping in their matrimonial relationship and ultimately, at present, they are living separately from each other.
(ii) The husband would raise his accusative finger as against his wife for such separate living, whereas the wife would deny and refute the allegations of the husband and highlight that because of the husband's conduct, there occurred such cleavage in their matrimonial life.
4. The husband filed H.M.O.P.No.45 of 2004 before the Sub Court, Pudukkottai for divorce on the ground of cruelty. The gist and kernel of the allegations would run thus:
(i) The wife was in the habit of demanding the husband to provide money to meet her extravagant living; she was interested in leading a luxurious life quite disproportionate to the income of the husband. While so, the husband purchased a plot and constructed a house thereon by spending a sum of Rs.56,260/- and the sources of that investment were his salary savings and a sum of Rs.40,000/- which he borrowed from his sister. In recognition of he having borrowed the said amount of Rs.40,000/-, he permitted his sister to stay in a portion of that house. In fact, the husband purchased that plot by availing the loan from his said sister to the tune of Rs.40,000/- and on that plot, he spent the remaining amount to raise the house out of his salary savings. The wife was always discourteous towards the relatives of the husband including the husband's parents and sister. Ultimately, the sister of the husband was forced to vacate the house. The parents of the husband were not treated properly by the wife and she ill-treated, be-littled, and slighted them and she had not even provided them with food whenever they visited the matrimonial house of the couple occasionally. The husband was constrained to take his parents to hotel to provide food for them. She had chosen not even to attend the obsequious ceremony of her father-in-law. She was quarrelsome and has been in the habit of indulging in pin-pricking her husband.
(ii) The wife even went to the extent of holding out threats to the husband that she would kill him and she even threatened him that she would throw away their two children into the well and put the blame on the husband. She also threw away the 'Mangala Sutra' (Thali) thrice on his face. The wife also with the help of her brother and some henchmen, on 30.04.1994 attempted to murder him. Hence having no other go, he along with his elder son left the matrimonial home and started living in the house of his one other sister Poongothai.
(iii) He also filed a complaint before the All Women Police Station, but no action was taken. He, therefore, approached the Deputy Superintendent of Police for taking action in the matter, but the police did not intervene. He has ultimately chosen to apply for divorce on the ground of cruelty.
5. Per contra, denying and disputing, refuting and challenging all the allegations, the wife filed the counter as under:
(i) The wife lived with him as a dutiful life partner. The said plot referred to by the husband and its adjacent areas originally belonged to her father's family. There was a partition and in that, shares were allotted to the wife, the sister of the wife and also brother of the wife separately. The wife purchased the share of the brother also and annexed it with her share. in the wife's sister's share, there is a tiled house. She would also contend that it was her husband who snatched her Thali and at present, it was with him and it is not she who threw it on the face of the husband.
(ii) Even while the husband was in service, he applied for leave and studied L.L.B., and after becoming an advocate, he resigned his job and not because of the torture meted out to him by his wife, he left the job. She would also state that she attended the obsequious ceremony of her father-in-law. She never shunned the relatives of the husband. The younger child is with her. In fact, the mother and sister of the husband alone, beat her and abused her in vituperative and squirriless language and accordingly, she prayed for the dismissal of the divorce petition.
6. During trial, on the side of the husband, P.W.1 to P.W.3 were examined and Exs.P.1 to P.13 were marked and on the side of the wife, R.W.1 was examined and Exs.R.1 to R.5 were marked.
7. The trial Court ultimately, dismissed the petition for divorce.
8. Being aggrieved by and dissatisfied with, such dismissal of the petition, the husband filed the appeal before the appellate Court which also confirmed the findings of the trial Court. As against which, this second appeal has been focussed reiterating the grounds already set out supra. Over and above that, the husband in the grounds of appeal set out that both the Courts below failed to take into account the evidence which actually demonstrated the cruelty meted out to the husband by the wife.
9. My learned Predecessor while admitting this second appeal, framed the following substantial questions of law:
"1.Whether the first appellate Court is legally right in concluding the territorial jurisdiction for Sub court, Pudukkottai to entertain the petition for divorce without any objection raised by the respondent regarding jurisdiction as mandatorily contemplated under Section 21 of C.P.C and that too at the earliest occasion particularly when it caused no prejudice?
2.Whether the Courts below having not taken into account which they are bound to take as held by the Apex Court in 2005(1) C.T.C. 215 at 749, the social background, status and standing of the parties for deciding the acts complained of whether the constituted cruelty or not namely the fact that the appellant was the only son of his parents, namely non providing of food to her in laws, namely the death of her father in law due to the harassment meted out to his only son, the attitude of the respondent having come with relatives and rowdies and threatened the appellant, namely the act of the respondent in throwing the Holy neck chort thrice on the face, namely the threat wielded by the respondent to throw the holy neck chort into the well twice, namely the threat to detain the appellant namely the act of the respondent is not attending the last rites of her father in law, namely the embarrassment to which this appellant was pushed into a lot of explanation for the absence of the respondent daughter in law during the performance of last rites for her father in law namely the respondent by her harassment having made the appellant to resign his Central Government job, whether the courts below are right in concluding that these acts facts did not constitute acts of cruelty warranting granting of divorce.?"
10. Heard both sides in entirety.
11. The learned Counsel for the husband placing reliance on the following decisions of the Honourable Apex Court, would develop his argument to the effect that the wife's conduct made the husband to feel that it was no more safe to live with his wife and that if he would continue to live, it would jeopardise his life. Drawing the attention of this Court to the depositions of P.W.1, and his relatives P.W.2 and P.W.3, the learned Counsel for the husband would submit that the evidence of those witnesses, unambiguously highlighted that the wife was cruel towards the husband and those witnesses also clearly corroborated his evidence that she never even had chosen to attend the obsequious ceremony of her father-in-law.
12. At this juncture, the learned Counsel for the respondent/wife would draw the attention of this Court to the judgment of the trial Court at paragraph No.13, which contains a finding that P.W.2 clearly and categorically admitted that the wife attended the obsequious ceremony of her father-in-law. Whereas the learned Counsel for the husband would convincingly argue that such an inference should not be taken and that accidentally, the full-stop crept in during cross-examination, but ultimately after hearing all the suggestions put to P.W.2, he denied it. In view of this controversy, it is just and necessary to extract the relevant portion of the cross-examination of P.W.2 as under:
"vA;fs; ndj;jpy; nwe;j gpwF 30 jpdA;fs; fHpj;J gilapy; BghLtJ tHf;fk;. me;j gilay; rhkpf;F gilj;jJ rPjh nUe;j tPl;oy; jhd;. nwe;j laj;jpYk; ty;iy. mg;g[wk; gilay; BghLk; rkaj;jpy;te;jhh;fsh vd;gJ gw;wp ehd; ghh;f;ftpy;iy. ehd; Bkw;go tpBrrA;fSf;F te;Jtpl;L Bghapl;Bld;. KG euKk; nUe;J fye;J bfhs;stpy;iy. nwe;j Beuj;jpy; vjph;kDjhuh; fye;J bfhz;lhh;. vjph;kDjhuh; xU kWkfs; bra;aBtz;oa flikfis vy;yhk; bra;jhh; vd;Wk; ehd; bgha;ahf rhl;rpak; mspf;fpBwd;
vd;W brhd;dhy; mJ rhpay;y. " (emphasis supplied.)
13. In my considered opinion, that full-stop which intervened after the first portion extracted supra, is nothing but an accidental one and this Court need not give undue importance to it. One should not try to make a mountain out of a mole hill. Ignoring even that portion of the evidence, I could see that there are other probabilities as well as evidence as against the husband but in favour of the wife.
14. The learned Counsel for the respondent/wife would convincingly detail and delineate, express and expatiate, portray and parody the entire gamut of the case by drawing the attention of this Court to the pertinent point that the very immovable property which is the subject matter of the dispute, originally belonged to the father of the wife. He would also raise a pertinent point as to whether the husband would purchase the property of his father-in-law from his brother-in-law by paying hard cash. Indubitably and indisputably, the plot originally belonged to the father of the wife and Ex.P.13, the copy of the partition deed dated 8th June, 1984, would demonstrate that on 11.09.1993, there was an unregistered partition among the wife, her sister and brother and in that, shares were allotted to each one. It so happened that even after such partition, the wife and her sister Mangalam jointly enjoyed their shares and by virtue of the partition deed dated 8th June 1984, the wife and her sister Mangalam partitioned their properties.
15. As such, it is clear that the said plot referred to by the husband who claims to have purchased it from out of his sister's financial assistance in the name of his wife, is the property of the wife which she got it in the partition. In that partition deed, Ex.P.12, the 'A' schedule of the property comprised of tiled house allotted to the share of the Mangalam and the wife took the B scheduled vacant area of the plot. It is the contention of the wife that she purchased the share of her brother Rajendran, from out of the money given to her by her father. However, the contention of the husband is to the effect that in the vacant land, he raised three houses and in one house, he permitted his younger sister to occupy it in recognition of she having helped him to raise the construction.
16. Despite hearing both sides and analysis of the evidence, there is no clarity relating to the alleged construction of three houses by the husband on the plot, but one fact is clear that the documentary evidence coupled with oral evidence of P.W.1 demonstrates that one big area, belonging to the father of the wife, was divided into three shares and in that alone, the petitioner claims to have purchased the plot. Even as per the petitioner's version, there is nothing to show that the entire area which belonged to the wife as well as the wife's brother and sister were purchased by him. The share of the Rajendran, the brother of the wife was purchased by her as per Ex.P.13, the sale deed. In such a case, a fortiori, this Court could hold that the husband was not at all correct in contending that the entire area was purchased by him in the name of his wife. A posteriori what clearly one could understand is that the dispute between the couple erupted because of such a wrong stand taken by the husband and because of he having insisted for selling that property and purchasing some other property elsewhere for their living.
17. The trial Court also correctly commented upon the falsehood of the husband's case as under:
"28) k.rh.1 bjhlh;e;J FWf;F tprhuizapy; gfh;e;Js;s rhl;fpaj;jpy;
vjph;kDjhuhpd; bgahpy; nUe;j vy;.I.rp. ghyprpf;Fhpa gzj;ij jd; bgahpy; vGjp;f;bfhLf;FkhW jhd; Bfl;ftpy;iy vd;W Twpt;pl;L, vjph;kDjhuh; bgahpy; nUe;J vy;.I.rp ghyprpia ruz;lh; bra;J gzj;ij jhd; bgw;Wf;bfhz;ljhf xg;g[f;bfhz;Ls;shh;. 2.11.04 md;W 3 tPLfspy; xd;wpy; FoapUf;Fk; tre;jp vd;gthplk;, thlifj; bjhifiaj; jd; kidtpaplk; bfhLf;ff;TlhJ vd;Wk;, 7 khj thlif ghf;fpiaj; jd;dplk; bfhLf;f Btz;Lk; vd;Wk; fojk; vGjpajhft[k;, mjw;F tre;jp vd;gth;, vjph;kDjhuhpd; bgahpy; tPL nUg;gjhy;, jhd; mthplk; jhd; thlifiaf; bfhLg;Bgd; vd;W jdf;F gjpy; fojk; vGjpajhft[k; xg;g[f;bfhz;Ls;shh;."
18. Even though the husband alleged that it was the wife who actually threw away the Thali and not that he snatched away the same, absolutely there is no evidence to fortify or buttress his stand. There is also nothing to prove that the wife along with her brother and henchmen attempted to murder him. The allegation that every now and then, she intimidated the husband by stating that she would throw away the children into the well and she would also jump into it, remains only the ipsi dixit of the husband. In matrimonial matters, no doubt, the Court cannot expect independent witnesses to speak about the details as to what transpired between the husband and the wife. It is a trite proposition of law that the preponderance of probabilities would govern the adjudication in civil cases. In this case, P.W.2 and P.W.3 even though happened to be the relatives, they could speak only generally about the relationship between the husband and wife. Taking into consideration the evidence available, I am of the considered opinion that in the light of the various decisions cited of the Honourable Apex Court, it cannot be held that the wife gave mental torture to the husband attracting the granting of relief of divorce.
19. I would like to refer to the following decisions:
(i) Savitri Pandey v. Prem Chandra Pandey reported in (2002) 2 Supreme Court Cases 73. An excerpt from it, would run thus:
"6. Treating the petitioner with cruelty is a ground for divorce under Section 13(1)( i-a ) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, pos tulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case both the trial court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent. Concurrent findings of fact arrived at by the courts cannot be disturbed by this Court in exercise of powers under Article 136 of the Constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly show that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life."
(ii) Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate reported in (2003) 6 Supeme Court Cases 334. An excerpt from it, would run thus:
"6. In V. Bhagat v. D. Bhagat 2 it was observed that 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 and the parties cannot reasonably also be expected to live together or that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It was also considered to be not necessary to prove that the mental cruelty is such as to cause injury to the health of the wronged party. That was a case wherein the husband filed a petition against the wife for divorce on the ground of adultery. In the written statement filed by the wife in the said proceedings, she alleged that the husband was "suffering from mental hallucination", that his was a "morbid mind ... for which he needs expert psychiatric treatment", and that he was "suffering from paranoid disorder" etc. and that during cross-examination several questions were put to him suggesting that the petitioner and several members of his family including his grandfather were lunatics and that the streak of insanity was running in the entire family. It is in the said context this Court though he ld the allegations levelled against the wife were not proved, the counter-allegations made by the wife against the husband certainly constituted mental cruelty of such a nature that the husband cannot reasonably be asked to live with the wife thereafter. The husband, it was also held, would be justified to say that it is not possible for him to live with the wife. In rejecting the stand of the wife that she wants to live with her husband, this Court observed that she was deliberately feigning a posture, wholly unnatural and beyond comprehension of a reasonable person and held that in such circumstances the obvious conclusion has to be that she has resolved to live in agony only to make life a miserable hell for the husband, as well. ...
11. ... 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 constitutes 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 of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer. ..."
(iii) Parveen Mehta v. Inderjit Mehta reported in (2002) 5 Supreme Court Cases 706. An excerpt from it, would run thus:
"17. This Court, construing the question of mental cruelty under Section 13(1)( i-a ) of the Act, in the case of G.V.N. Kameswara Rao v. G. Jabilli [(2002) 2 SCC 296] observed: (SCC pp. 303-04, para 12) "12. The court has to come to a conclusion whether the acts committed by the counter-petitioner amount to cruelty, and it is to be assessed having regard to the status of the parties in social life, their customs, traditions and other similar circumstances. Having regard to the sanctity and importance of marriages in a community life, the court should consider whether the conduct of the counter-petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live together is i mpossible, and then only the court can find that there is cruelty on the part of the counter-petitioner. This is to be judged not from a solitary incident, but on an overall consideration of all relevant circumstances."
21. Cruelty for the purpose of Section 13(1)( i-a ) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other."
20. The perusal of the aforesaid decisions would clearly show that simply because there are certain matrimonial disputes between the husband and wife and they are living separately, divorce cannot be granted. It is pertinent to note that the wife at no point of time, lodged any complaint with the police as against the husband. It was the husband who had chosen to give complaint to the police and that too, as highlighted and spotlighted supra, such a complaint emerged because of the husband's unjustifiable property dispute raised by him.
21. The learned Counsel for the wife would convincingly submit that for ten long years, the husband and wife lived together and during the wedlock, they gave birth to two children also, in such a case, it cannot be inferred that the wife went to the extent of threatening the husband with death or attempted to murder him.
22. A close scrutiny of the evidence would show that absolutely there was no valid reasons for the wife to resort to the alleged extreme step of murdering the husband. The question arises as to why the wife should go to be extent of killing her husband. The allegations in the petition are to the effect that the wife wanted to lead a luxurious life and that because her demands were not met by the husband, she started pinpricking her husband. No one having head over shoulder would be able to digest the theory as put forth by the husband.
23. No doubt, even assuming that the wife wanted certain luxurious items to be purchased for her and that the husband could not meet it, I am of the considered opinion taking into account the preponderance of probabilities, that the wife would not have gone to the extent of deserting the husband and indulging in cruelty as against him and that too, after ten years of joint living and having given birth to two male children.
24. It is also pertinent to note that there is nothing on record to show that the wife at any point of time complained as against her husband to his higher officials so as to put him in trouble as it could be commonly seen in some other cases when matrimonial dispute erupts. To the risk of repetition without being tautologous, I would highlight that she also never complained to the police also. However, she filed M.C proceedings claiming maintaining from her husband. The trial Court is the competent Court which had the opportunity of analysing the evidence of witnesses and also its reliability and the first appellate Court is the last court of facts. The High Court, is not a court of facts in this matter and there are concurrent findings given by both the Courts below that the wife was not cruel towards her husband and in such a case, it would not be proper on the part of the High Court to once again evaluate the evidence in a way different from one done by both the Courts below.
25. The learned Counsel for the husband would submit that even assuming the facts as such, if the law is applied, it would attract the relief of divorce. I am of the considered opinion that once, this Court is satisfied that the entire gamut and scope of the apple of discard is centred on the property dispute and the wife had not contributed in that regard, merely on the allegations made by the husband and that too in the dubious manner as one set out supra, I am of the considered opinion that the divorce is not the appropriate remedy in this case.
26. Accordingly, while dismissing this second appeal without costs, I would express my view that the nature of the dispute between them, is not so serious or irreconcilable and irremediable. Consequently, I would advise them both to excogitate over their past happy life and thereupon, bury the hatchet, sinking their differences and resume cohabitation in the near future in the utmost and best interest of their two children whose welfare should be of paramount importance in their minds.
rsb To
1.The Principal District Judge, Pudukkottai.
2.The Sub Judge, Pudukkottai.