Madras High Court
C.Anantha Jeyakumar vs C.Murugapriya on 17 September, 2008
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 17/09/2008 CORAM THE HONOURABLE Mr.JUSTICE A.SELVAM Civil Miscellaneous Second Appeal No.12 of 2008 C.Anantha Jeyakumar ...Appellant/Petitioner Vs C.Murugapriya ...Respondent/Respondent Civil Miscellaneous Second Appeal has been filed under Section 100 of the Civil Procedure Code r/w Section 28 of Hindu Marriage Act, 1955 against the judgment and decree dated 22.10.2007 made in H.M.C.M.A.No.53 of 2006 on the file of the I Additional District Court, Tirunelveli as reversing the judgment and decree dated 28.04.2006 passed in H.M.O.P.NO.178 of 2003 on the file of I Additional Subordinate Court, Tirunelveli. !For appellant ... Mr.R.Subramanian ^For Respondent... No appearance - - - - - - - :JUDGMENT
The judgment dated 22.10.2007 passed in H.M.C.M.A.No.53 of 2006 by the I Additional District Court, Tirunelveli is now under challenge.
2.The appellant herein as petitioner has filed HMOP.No.178 of 2003 on the file of the I Additional Sub-Court, Tirunelveli praying to dissolve the marriage held between the petitioner and respondent.
3.It is averred in the petition that the marriage between the petitioner and respondent has been performed on 07.04.2003 at PPL Marriage Hall, Palayamkottai. The petitioner is an Engineer and he is having independent business at Mumbai. From the date of marriage, the respondent has refused to have sexual intercourse with the petitioner. The petitioner has come to know that the respondent does not like him. Since the respondent has refused to have sexual intercourse with the petitioner, the respondent has caused mental cruelty to him. The respondent has been taken to various places such as Goa, Kanyakumari etc., wherein, also the respondent has expressed her unwillingness to have coition with the petitioner. Further the respondent has abruptly left the marital abode from 12.09.2003 along with her belongings. Under the said circumstances, the present petition has been filed under Section 13(1)(ia) and (ib) of Hindu Marriage Act, 1955 praying to annul the marriage performed between the petitioner and respondent.
4.In the counter filed on the side of the respondent, it is stated that the respondent is a new entrant to matrimonial life. She is having some menstrual problem. So that she is not able to co-operate with the petitioner for having sexual intercourse. Since the respondent has not been able to co- operate with the petitioner for having sexual intercourse, problem has arisen between the petitioner and respondent. At the request made by the respondent, she has been brought to Tirunelveli. It is false to contend that the respondent has not attained puberty. The respondent is always normal except her menstrual problem. There is no merit in the petition and the same deserves dismissal.
5.The trial Court, after considering the divergent evidence available on record has allowed the petition and thereby dissolved the marriage held between the petitioner and respondent on 07.04.2003. Aggrieved by the order passed by the I Additional Sub-Court, Tirunelveli, the respondent as appellant has preferred H.M.C.M.A.No.53 of 2006 on the file of the first appellate Court. The first appellate Court, after hearing both sides and upon perusing the relevant records, has allowed H.M.C.M.A.No.53 of 2006 and thereby set aside the order passed in HMOP.No.178 of 2003 and consequently dismissed the same. Against the judgment passed by the first appellate Court, the present civil miscellaneous second appeal NO.12 of 2008 has been filed.
6.On the side of the appellant/petitioner, the only substantial question of law raised is as to "Whether in law has not the Lower Appellate Court failed to see that mental cruelty in the state of mind and feeling, and wife's non-cooperation, and leaving matrimonial house without reasonable cause thereby depriving husband of normal co-habitation amounts to mental cruelty, vide AIR 2002 Supreme Court Page 2582?"
7.Even though the respondent has been served with notice, she failed to make her appearance either herself or through any counsel. Under the said circumstances, the present civil miscellaneous second appeal No.12 of 2008 is disposed of on merits on the basis of the argument advanced by the learned counsel appearing for the appellant/petitioner.
8.The learned counsel appearing for the appellant/petitioner has contended with great vehemence that the present petition has been filed under Section 13(1)(ia) and (ib) of Hindu Marriage Act, 1955, wherein, it has been specifically stated that the marriage between the petitioner and respondent has been performed on 07.04.2003 and from the date of marriage, the respondent has refused to have carnal copulation with the petitioner despite of best efforts made by him and the respondent herself has clearly admitted that she is not in a position to co-operate with the petitioner for having sexual intercourse due to menstrual problem and the trial Court, after considering the available evidence on record, has rightly dissolved the marriage held between the petitioner and respondent on 07.04.2003. But the first appellate Court, without considering the admissions made on the side of the respondent and also without considering that the attitude of the respondent would come clearly within the definition of 'Mental cruelty', has erroneously set aside the order passed by the trial Court in HMOP.No.178 of 2003 and therefore the judgment passed by the first appellate Court is liable to be set aside and the order passed in HMOP.No.178 of 2003 is liable to be restored.
9.It is an admitted fact that the marriage between the petitioner and respondent has been performed on 07.04.2003 as per Hindu Rites and Caste Custom. The main allegation made on the side of the petitioner against the respondent is that from the inception of marriage, the respondent has not co- operated with the petitioner for having sexual intercourse. In fact, this Court has closely perused the entire counter filed on the side of the respondent, wherein, it has been clinchingly admitted that due to menstrual problem, the respondent is not able to co-operate with the petitioner for having sexual intercourse. At this juncture, it would be apropos to look into paragraph No.7 of the order passed by the trial Court.
10.The trial Court, after analysing the medical report of the respondent has come to the conclusion that the hymen of the respondent remains intact. The respondent has been examined in the year 2006 and the marriage between the petitioner and respondent has taken place on 07.04.2003. Therefore it goes without saying that after marriage, no sexual relationship has taken place between the petitioner and respondent and that itself has caused mental cruelty to the petitioner.
11.In order to buttress the argument advanced by the learned counsel appearing for the appellant/petitioner, he has meticulously drawn the attention of the Court to the following decisions;
i)The first and foremost decision is reported in AIR 2002 Supreme Court 2582 (Praveen Mehta vs Inderjit Mehta), wherein at paragraph No.21, the Honourable Apex Court has held as follows:
"Cruelty for the purpose of S.13(1)(ia) 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 behavioral pattern by the other. Un- like the case of physical cruelty the 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."
In paragraph No.22, the Honourable Apex Court has held that Judged in the light of the principles discussed above what we find is that right from the beginning the matrimonial relationship between the parties was not normal; the spouses stayed together at the matrimonial home for a short period of about six months; the respondent had been trying to persuade the appellant and her parents to agree to go for proper medical treatment to improve her health so that the parties may lead a normal sexual life; all such attempts proved futile. The appellant even refused to subject herself to medical test as advised by the doctor. After 21st June, 1987 she stayed away from the matrimonial home and the respondent was deprived of her company. In such circumstances, the respondent who was enjoying normal health was likely to feel a sense of anguish and frustration in being deprived of normal cohabitation that every married person expects to enjoy and also social embarrassment due to the behaviour of the appellant. Further, the conduct of the appellant in approaching the police complaining against her husband and his parents and in not accepting the advice of the superior judicial officer Mr.S.K.Jain and taking a false plea in the case that she had conceived but unfortunately there was miscarriage are bound to cause a sense of mental depression in the respondent. The cumulative effect of all these on the mind of the respondent, in our considered view, amounts to mental cruelty caused due to the stubborn attitude and inexplicably unreasonable conduct of the appellant.
ii)The second decision is reported in 2007 (3) CTC 464 (Samar Ghosh vs Jaya Ghosh), wherein the Apex Court has culled out the illustration of 'Mental Cruelty' in paragraph No.102 and the same reads 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.
iii)Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(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.
(v)A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi)Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(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.
(viii)The conduct must be much more than jealously, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix)Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of 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.
(xi)If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii)Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii)Unilateral decision of either husband or wife after marriage not to have from the marriage may amount to 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."
12.From the conjoint reading of the decisions referred to supra, the Court can easily discern that if there is wilful denial for having sexual intercourse on the part of any of the spouse, the same would clearly come within the contour of 'Mental Cruelty' as per Section 13(1)(ia) of Hindu Marriage Act, 1955.
13.In the instant case, as expounded earlier, the marriage between the petitioner and respondent has been performed on 07.04.2003. The respondent has been subjected to medical examination in the year 2006 and her medical report clearly reveals that her hymen is intact and therefore it goes without saying that from the date of marriage, despite of various efforts made by the petitioner, the respondent has wilfully failed to perform her marital obligations by way of refusing to co-operate with the petitioner. Therefore the contact of the respondent would clearly attract Section 13(1)(ia) of the Hindu Marriage Act, 1955 and the Court can unflinchingly come to a conclusion that the respondent has caused persistent mental cruelty to the petitioner by way of refusing to have coition with him.
14.The trial Court, after having thorough discussion has clearly come to the conclusion that the petitioner is entitled to get divorce on the ground of mental cruelty. But the first appellate Court, for the reasons best known to it, without considering the available circumstances and also without considering the fact that from the date of marriage, the respondent has refused to have carnal copulation with the petitioner has erroneously dismissed the petition. In view of the foregoing enunciation of both the factual and legal aspects, this Court has found valid and subsisting force in the argument advanced by the learned counsel appearing for the appellant/petitioner and consequently the judgment passed in H.M.C.M.A.No.53 of 2006 by the first appellate Court is liable to be set aside.
15.In fine, this civil miscellaneous second appeal No.12 of 2008 is allowed without costs. The judgment passed in H.M.C.M.A.No.53 of 2006 by the first appellate Court is set aside and the order passed in HMOP.NO.178 of 2003 by the trial Court (First Additional Sub-Court, Tirunelveli) is restored.
vs To
1.The First Additional Sub-Court, Tirunelveli.
2.The First Additional District Court, Tirunelveli.