Madras High Court
K.J.Suriyanarayanan vs Poornima S.Narayanan on 30 June, 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 16.11.2016 Delivered on : 30.11.2016 CORAM THE HONOURABLE MRS. JUSTICE PUSHPA SATHYANARAYANA and THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN CMA No.1377/2007 K.J.Suriyanarayanan .. Petitioner Versus Poornima S.Narayanan .. Respondent Prayer: Appeal filed under section 19 of the Family Courts Act against the Judgment and Decree made in O.P.No.963 of 2003 dated 30.06.2006 on the file of I Additional Family Court, Chennai. For Petitioner : Ms.Geetha Ramaseshan For Respondent : Mr.S.Kalyanaraman JUDGMENT
R.SUBRAMANIAN, J., The husband whose petition in O.P.No.963 of 2003 on the file of the II Additional Principal Family Court, Chennai on the ground of cruelty and unsoundness of mind, was dismissed, is the appellant before us.
2.The case of the petitioner in O.P.No.963 of 2003 is that the marriage took place on 20.11.1994 at Raja Annamalaipuram, Chennai-28. The male child was born out of the said marriage.
3.According to the petitioner, the respondent was irresponsible and arrogant. She refused to do any domestic work and she gets up only at 9.00 a.m. in the morning. The petitioner was thus, forced to have his breakfast in a hotel almost everyday. He would further claim the respondent would unnecessarily insult him and taunt him for no fault of his. It is his further case that the respondent would suddenly disappear from the marital home without informing the petitioner. On one occasion, she called his office from the Railway Station to inform him that she is proceeding to Kumbakonam along with her brother. The petitioner would also claim that she used to stay away for long duration during summer vacation and other holidays without reasonable cause. He would claim that she even beat him up in the Railway Station causing embarrassment to him. According to the petitioner, the respondent with a view to harass the petitioner, indulged in extraordinary expenses and she engaged two servants for a three member family. She was also responsible for hiking up the telephone bill by making unwanted calls. As a consequence of this, the petitioner had suffered loss of face and reputation. It is further stated that the respondent indulged in deliberate acts ; intended to lower the dignity and esteem of the petitioner and she made false complaints to his superiors which had caused him severe mental depression.
4.During September 2000, it is claimed, that the respondent left the matrimonial house and went to Coimbatore for over one month on the pretext of learning yoga. In fact, she had to be practically dragged back to Chennai, because of that she suffered mental setback for more than one year. To sum up, the petitioner had claimed that the respondent had a sadistic nature and by her conduct, she had caused severe mental agony and trauma to the petitioner. Claiming that this abnormal behavior of the respondent caused mental cruelty, the petitioner had sought for divorce.
Though unsoundness of mind was made a ground for divorce Mrs.Geetha Ramaseshan, learned counsel appearing for appellant fairly states that she is not pressing the said ground
5.The respondent/wife resisted the claim for divorce contending that the allegations relating to mental cruelty are false and that it has been raised by the petitioner only with the view to obtain divorce so as to enable him to contract second marriage with another woman. She would also claim that the brothers and sisters of the petitioner ill treated her and forced her to get out of the house. She would claim she is a dutifull wife and that her son Jayasurya knows that she is the key pin and the petitioner's role is zero. She would also state that she used to take tuitions and used to prepare lunch and breakfast at 7 a.m. She would also claim that she was a Mathematics Teacher in Sivaswamy Kalalaya before the child was born and she quit the job after the child birth. She would further claim that she had been taking home tuitions and earned reasonably to run the family, contributing entire income to the family. The only domestic work done by the petitioner was, according to her, to drop the child in the school only in the morning.
6.The respondent would further claim that the petitioner would use all costly perfumes, cosmetics and purchased several dress items for his use. She would claim that the petitioner's earnings was spent for his personal make up only. The respondent would further contend that the petitioner had compelled her to sign in blank papers and sometime later, he forced her to write that she was not interested in married life. She had also stated that she received anonymous calls from well wishers who warned her stating that the petitioner is roaming with another lady which made her upset. She would claim that on so many occasions, the petitioner devised methods to drive her and the child from the matrimonial home but they were saved by the divine power. The respondent would also contend that the petitioner would return home very late, at times, even 2 a.m, or 3 a.m. Once when the respondent and the child were away, the petitioner locked the front door with a different lock and left the house. She and the child could not enter the house. After having waited till 3 a.m, in the morning, she had to request the neighbour to call her brother over phone and they went to her brother's house. The respondent would aver in the counter that there were rumors and gossip that the petitioner is going about in the streets with a lady named 'Kripa'.
7.According to the respondent, the petitioner and the said Kripa had met in a place called Hindu Social Welfare Centre. She would also claim that the said Kripa is a divorcee. She had in fact alleged that the parents of Kripa were waiting for her to come and discuss the issue with them as they felt ashamed about their daughter's association with the petitioner. She would also claim that the higher authorities in the Hindu were also expecting her complaint and the petitioner was transferred to Trivandrum to prevent any further any mishaps, since it is claimed by the respondent that the lady by name Kripa belongs to the family of the employer of the petitioner. It is also stated in the counter statement that the grand mother of Kripa had cursed the character of the petitioner and the respondent was even informed that the petitioner and the said Kripa were living together in a rented house after sunset. The respondent would also claim that both the petitioner and the respondent attended yoga classes and as disciple of Sri Jaggi Vasudev, she had to go to Coimbatore to learn Yoga. At some point of time, according to the respondent she did not get proper sleep resulting in her being treated by a psychiatrist. She would claim that there was no prolonged treatment and denied the allegations that she is mentally unsound. With a view to drive the respondent out of the house, the petitioner had disconnected the telephone and has stopped paying the rent for the house. On the aforesaid contentions, the respondent sought dismissal of the divorce petition before the Family Court.
8.The petitioner had examined himself as PW-1 and marked as Ex.P-1 to P-10. The respondent had examined herself as RW-1 and had examined four other witnesses. She also filed Ex.R-1 to R-18. On consideration of the oral and documentary evidence, the Learned Family Judge had concluded that the petitioner had not made any of the allegations of cruelty and had dismissed the petition for divorce.
9.The Petitioner had also filed O.P.No.967 of 2003 seeking custody of the child. The same has also been dismissed by a common order. It is now stated that the child attained majority. Therefore, the question of custody does not survive and there is no appeal against the dismissal of the petition for custody in O.P.No.967 of 2003 before us.
10.We heard Ms.Geetha Ramaseshan, learned counsel for the appellant, Mr.S.Kalyanaraman, learned counsel for the respondent. Perused the pleadings and the evidence on record.
The following points emerge for consideration in the appeal.
1)Whether the petitioner has made out the case of cruelty so as to enable him to get a decree of divorce on the ground of mental cruelty.
2)Whether the subsequent events namely, the allegations made in the counter affidavit by the respondent against the petitioner and the oral evidence in the form of RW's 1 to 5 would enable the petitioner to obtain a decree for divorce on the ground of the mental cruelty.
11.Ms.Geetha Ramaseshan, learned counsel for the appellant, would strenuously contend that the statements made in the counter as well as the evidence tendered by RWs 1 to 5 who had, made an unsubstantiated allegations of immorality against the petitioner, claiming that he was in fact living in adultery with one Kripa would by itself amount to mental cruelty. The learned counsel drawing support from the decision of the Hon'ble Supreme Court reported in [2014] 7 SCC 640 [Malathi Ravi,M.D. -vs- B.V.Ravi,M.D], would submit that the allegations in the counter statement which are to the effect that the petitioner was transferred to Trivandrum and was eventually forced to resign from his job because of the complaints made by the respondent and the oral evidence of the respondent herself and the four witnesses examined on her side would by itself constitute enough mental cruelty to enable him to seek divorce.
12.Ms.Geetha Ramaseshan, learned counsel for the appellant would draw our attention to the observations of the Supreme Court made in paragraph 28 of the said judgment, which run as follows:
28. The learned counsel for the appellant has urged with vehemence that when dissolution of marriage was sought on the ground of desertion alone, the issue of mental cruelty can neither be raised nor can be addressed to. Regard being had to the said submission, we are constrained to pose the question whether in a case of the present nature we should require the respondent husband to amend the petition and direct the learned Family Judge to consider the issue of mental cruelty or should we ignore the fetter of technicality and consider the pleadings and evidence brought on record as well as the subsequent facts which are incontrovertible so that the lis is put to rest. In our considered opinion the issue of mental cruelty should be addressed to by this Court for the sake of doing complete justice. We think, it is the bounden duty of this Court to do so and not to leave the parties to fight the battle afresh after expiry of thirteen years of litigation. Dealing with the plea of mental cruelty which is perceptible from the material on record would not affect any substantive right of the appellant. It would be only condoning a minor technical aspect. Administration of justice provokes our judicial conscience that it is a fit case where the plenitude of power conferred on this Court under Article 142 deserves to be invoked, more so, when the ground is statutorily permissible. By such exercise we are certain that it would neither be supplanting the substantive law nor would it be building a structure which does not exist. It would be logical to do so and illogical to refrain from doing so. Observing so, the Hon'ble Supreme Court proceeded to deal with mental cruelty in the said case after referring to Vinita Saxena .v. Pankaj Pandit reported in (2006)3 SCC 778 observed as follows:-
31. It is settled by a catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case.
In Samar Ghosh -vs- Jaya Ghosh, reported in (2007) 4 SCC 511, the Hon'ble Supreme Court had given certain illustrations from which an interference of mental cruelty could be drawn. The said examples are as follows:
(i)On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii)On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iv)Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(vii)Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(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 behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xiv)Where there has been a long period of continuous separation, it may fairly be concluded 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. In such like situations, it may lead to mental cruelty. Again in para 99 and 100 of the said judgments, the Supreme Court has observed as follows:
99.The human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.
100.Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances....
13. From the above decisions of the Hon'ble Supreme Court, the following principles could be deduced. The expression cruelty has a inseparable nexus with the human conduct or human behaviour. The decree of conduct which may amount to cruelty will vary according to the social strata or the milieu to which the parties belong. At times their ways of life, relationships temperaments and emotions that have been conditioned by their social status also play a very important role.
14. Keeping the above guiding factors in mind, let us now analyze the case on hand. The averments in the counter already extracted would show that the respondent/wife had made very serious allegations of adultery against the petitioner. Though she would claim in her evidence that she came to know of it from various sources including the employer of the petitioner, the fact that she had made those allegations and has also supported the same in her evidence as RW-1. She would claim that the petitioner would dress extravagantly and use perfumes. That domestic electronic items like Fridge, Television were purchased by her. She would depose that she received anonymous calls stating that the petitioner has got illicit intimacy with another women. She would further claim that several other people on their own, came and told her that the petitioner has got illicit relationship with one Kripa. The following are the extracts of the evidence relating to the said allegations:-
RW1-wife of the petitioner :-
1) mtuJ eltof;iffis ehd; tprhhpj;j nghJ gyh; jhkhf te;J fpUgh vd;w bgz;nzhL cd; fztUf;F bjhlh;g[ ,Uf;fpwJ vd;W nghd; K:yKk; me;j bra;jpia brhd;dhh;fs;/
2) vd; rnfhjhp bfshp. ,d;bdhU rnfhjhp fhkhl;rp. Vd; mz;zd; mde;jehuhazd; ,th;fs; brd;W fpUgh tPl;oy; brd;W vd; fztiu gw;wp ngrpdhh;fs;/
3) fpUghtpd; ghl;o fpUgh bra;jJ rhpapy;iy vd;W brhd;dhh;fs; gzj;jph;fhf Mirgl;L bra;fpwhh; vd;W vd;dplnk brhd;dhh;fs;/ nkYk; me;j ghl;o vd; fztUk; fpUght[k; ,ut[ neu;jpjpy; jdpahf ntW xU tPL ghh;j;J ,Ug;gjhft[k; mjpy; j';fp ,Ug;gjhft[k; brhd;dhh;fs;/ RW-2 Kamatchi, sister of the respondent had deposed as follows:
1) vd; jk;gpapd; kidtp Rjh ntiy bra;a[k; mYtyfj;jpy; xU bgz; yhtd;ah vd;gth; ntiy bra;jhh;/ mtUf;F kDjhuh; mrp';fkhd thh;j;ijfshy; xU ,bkapy; mDg;gp cs;shh;/ me;j yhtz;ah me;j jftiy bfhz;L te;J vd; jk;gp kidtpaplk; fhz;gpj;jhh;/
2) ,e;J gj;jphpf;ifapy; ntiy bra;a[k; fpUgh vd;w bgz;Dld; kDjhuUf;F bjhlh;g[ ,Ug;gjhf nfs;tpgl;nlhk;/ fpUgh ,e;J btygh; brz;lhpy; ntiy bra;jhh;/ RW-3, who claims to be the father-in-law of the elder sister of the respondent, had deposed as follows:
1) 2002?Mk; Mz;od; ,Wjpapy; xUehs; ehd; mth;fs; tPl;Lf;F brd;wnghJ Nhpaehuhazd; g{h;zpkhit xU btw;Wjhspy; ifbaGj;J nghLk;go nfl;lhh;/ mth; ntW xU bgz;nzhL bjhlh;g[ ,Ug;gjhft[k; mjdhy; ehk; RK:fkhf tpyfp bfhs;tjw;fhf ifbaGj;J nfl;lhh;/
2) vd; tPl;ow;F gf;fj;jpy; trpf;Fk; fpUgh vd;w bgz; ,e;J gj;jphpf;ifapy; ntiy bra;gth; NhpaehuhazDf;F bjhlh;g[ ,Ue;jJ/ mij ehd; ghh;j;J ,Uf;fpnwd;/ ,uz;L ngUk; xd;whf nrh;e;J ngrpf; bfhz;L brd;wij ehd; ghh;j;J cs;nsd;/ NhpaehuhazDk; rK:fnrit bra;thh;/ vdJ kUkfs; Nhpaehuhazdpd; eltof;if rhpapy;iy vd;W brhy;yp cs;shh;/ Rw-4, who is the cousin of the respondent had deposed as follows:
1/ kDjhuh; xU bgd;nzhL fpl;ljl;l jpdKk; fhiy 7/45?8 kzp mstpy; gf;fj;jpy; cs;s M[";rneah; nfhtpYf;F ,UtUlk; nrh;e;J te;jij ehd; gyKiw ghh;j;J cs;nsd;/ ehd; jpdKk; rhkp Fk;gpl bry;Yk; nghJ ehd; ghh;j;J cs;nsd;/ 2000 Mz;oy; jhd; mth;fs; ,UtUk; nfht[pYf;F nrh;e;J te;jij ehd; ghh;j;njd;/ 2/ ek;gh;; 6. njtehjd; bjUtpy; cs;s xU tPl;ow;F 2001 thf;fpy; kDjhuh; gyKiw me;j tPl;Lf;Fs; brd;wija[k; kWgoa[k; te;jija[k; fpUgh vd;w bgz;nzhL nrh;e;J jhd; mth; te;jija[k; ehd; ghh;j;njd;/ ehd; g{h;zpkht[f;F bjhiyngrp K:yk; ngr Kaw;rpj;jnghJ bjhiyngrp mt[l;Mg; Mh;luhf ,Ue;jJ/ 3/ xU ehs; ehd; njtehjd; bjUtpy; cs;s kUj;Jthplk; rpfpr;irf;F brd;wnghJ me;j 6?tJ ek;gh; tPl;oy; brd;W. ehd; ,';F g{h;zpkh. Nhpaehuhazd; vd;gth;fs; ,';F ,Uf;fpwhh;fsh vd;W ehd; tprhhpj;njd;/ mjw;F mth; Nhpaehuhazd; vd;gth; xUth; nfhak;g[j;J}hpypUe;J te;J j';fp ,Uf;fpwhh; vd;Wk;. fWg;g[ epwkhf Fs;skhf cs;s xU bgz; mtnuhL ,Ug;gjhf brhd;dhh;fs;/ ehd; brhd;dgo Mz; FHe;ijnahL caukhd bgz; Nhpaehuhazd; vd;gtnuhL ,y;iy vd;Wk; brhd;dhh;fs;/ 4/ kPz;Lk; xUehs; mnj 6?Mk; ek;gh; tPl;Lf;F xU bgl;il nkhl;lhh; irf;fpspy; itj;J fl;o vLj;Jbfhz;L me;j tPl;Lf;Fs; Nhpaehuhazd; brd;wij ehd; ghh;j;njd;
5/ ehd; fpUgh vd;w bgz;iz nehp;y brd;W nfl;lnghJ mts; vdf;F NhpaehuhazndhL v';F bjhlh;g[ ,Uf;fpwJ vd;W brhd;dhh;/ me;j tptuj;ij ehd; g{h;zpkhtplk; brhd;ndd;/ In cross examination, the said witness has deposed as follows:-
6/ vd; tPl;ow;ypUe;J M[";rneah; nfhtpy; Rkhh; 1/1-2 fp/kP/ J}uk; ,Uf;Fk;/ vGk;g[ Kwp[t[ Vw;gl;lnghJ milahwpy; cs;s vk;/ghh;j;jrhujp vd;gthplk; rpfpr;ir bgw;nwd;/ vd; tPl;ow;F te;jbghGJ njtehjd; bjUtp;y cs;s kUj;Jthplk; bjhlh;e;J rpfpr;irf;F bry;ntd;/ mth; ,y;yhjnghJ vd; khkpahnuhL Ml;nlhtpy; bry;ntd;/ RW-5, one Rangasamy, who claims to be a family friend of the petitioner has deposed as follows:-
1/ Nhpaehuhazd; ,e;J gj;jphpf;ifapy; vd; K:yk; nrh;f;f rg; vol;lh; uhkr;re;jpud; vd;dplk; Nhpaehuhazd; xU bgz;nzhL bjhlh;g[ bfhz;L mtnshL Rw;wp tUtjhf brhd;dhh;/ mJgw;wp ehd; g{h;zpkhtplk; tprhhpj;j nghJ mg;go xd;Wk; ,y;iy vd;whh;/ ehDk; Nhpaehuhazdid me;j bgz;iza[k; ghh;j;J ,Uf;fpnwd;/ Nhpaehuhazdplk; me;j bgz;nzhL Vd; Rw;Wfpwhh; vd;W ehd; nfl;ftpy;iy/ mjw;F vdf;F tha;g;g[ fpilf;ftpy;iy/ 2/ g{h;zpkh ,e;J mYtyfk; brd;W Nhpaehuhazid gw;wp g[fhh; brhy;yp cjtp bra;a brhd;dhh; mjd; gpwF mtiu jpUtde;jg[uk; khw;wptpl;lhh;fs;/ ,e;J mYtyfj;jpypUe;J g{h;zpkh tPl;Lf;F brd;W epytuk; ghh;j;J tu brhd;dhh;fs;/ g{h;zpkh ,e;J mYtyfj;jpw;F brd;w cld; Nhpaehuhazid khw;wp tpl;lhh;fs;/ mf;fhlhkpapy; cs;s kw;Wk; gyh; Nhpaehuhazid gw;wp vd;dplk; brhd;dhh;fs;/ Nhpaehuhazd; cld; Rw;wpa bgz; tPl;Lf;F brd;W mth; bgw;nwhh;fsplk; nfl;nld;/ mth;fs; me;j bgz; gpothjf;fhhp. tpthfuj;J Mdth; eh';fs; xd;Wk; brhy;y KoahJ vd;Wk; brhd;dhh;fs;/
15.Relying upon the above evidence tendered by the witnesses examined by the respondent, Ms.Geetha Ramaseshan, learned counsel for the appellant would contend that if not for anything else, the petitioner would be entitled for a decree for devorce on the ground of mental cruelty just only on the statements made by her in the counter affidavit and the evidence of her witnesses extracted above. A reading of the entire evidence of the witnesses examined on the side of the respondent would definitely show that they were examined only to damage the character of the petitioner/husband before the Court. The respondent would claim that she did not give any complaint to the employers of the petitioner. It is clear from the evidence of RW-5, namely Rangasami, that he had helped the respondent to lodge a complaint against her husband with his employers and on the basis of the said complaint, the petitioner was transferred to Trivandrum. The said witness goes on to state that many people had told him about the conduct of the petitioner and he himself had gone to the house of the said Kripa and spoken to her parents. A cumulative effect of all these allegations leads us to believe that the priority of the respondent was to some how damage the character of the petitioner. The petitioner deposed that he was made to quit his job forcibly, on the basis of the complaint made by the respondent connecting him with one Kripa. The witnesses examined on the side of the respondent are those who are more loyal to the respondent and all of them are either related very closely or known to the respondent.
16.Therefore, we are of the considered opinion that the allegations in the counter statement as well as the evidence tendered would undoubtedly amount to mental cruelty and the petitioner has been put to severe mental agony which would undoubtedly amount to mental cruelty on the part of the respondent.
17.The learned Family Judge had not take a note of the subsequent events and the allegations. He has confined himself to the allegations in the petition and had come to the conclusion that the case of cruelty has not been made out. We are unable to subscribe to the findings of the learned Family Judge. As already stated the question of mental cruelty is a matter of substantive satisfaction and the degree would vary from case to case depending upon the social and economic status of the parties. Mr.S.Kalyanaraman learned counsel appearing for the respondent would strenuously contend that the deposition of the witnesses extracted above, would not amount, to cruelty and they have only spoken the truth.
We are unable to agree with him. A Combined reading of the depositions of RW's 1 to 5 as well as the cross examination of the petitioner would undoubtedly lead to the conclusion that the object of the respondent was not only to defend claim for divorce, but also to malign the petitioner to the maximum possible extent. This according to us would certainly amount to mental cruelty entitling the petitioner to a decree for divorce dissolving the marriage between the petitioner and the respondent on the said ground.
18.In view of the above discussion we are constrained to set aside the judgment and decree of the Trial Court, viz., learned II Additional Judge, Family Court, Chennai, dated 30.06.2006 made in O.P.No.963 of 2003.
19.Accordingly, the Civil Miscellaneous Appeal is allowed and the order passed by the Court below, in OP.No.963/2003 dated 30.06.2006, is hereby set aside. No costs.
[P.S.N., J.] [R.S.M., J.]
30.11.2016
KP
To
The I Additional Family Court,
Chennai. `
PUSHPASATHYANARAYANA, J.,
and
R.SUBRAMANIAN, J.,
KP
CMA No.1377/2007
30.11.2016
http://www.judis.nic.in