Madras High Court
Mrs.R.Mallika vs R.Rajagopal on 25 October, 2007
Author: Chitra Venkataraman
Bench: K.Raviraja Pandian, Chitra Venkataraman
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.10.2007
CORAM:
THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN
and
THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN
C.M.A.(NPD) No.238 of 2004
Mrs.R.Mallika ..Appellant
Versus
R.Rajagopal ..Respondent
PRAYER:
Civil Miscellaneous Appeal filed under Section 1 of
the Family Courts Act against the order dated 29.8.2003 made
in F.C.O.P.No.694 of 1996 on the file of the II Additional
Judge, Family Court, Madras.
For appellant : Mr.K.N.Srinivasan
For respondent : No appearance
JUDGMENT
(Judgment of the Court was delivered by CHITRA VENKATARAMAN,J.) This Civil Miscellaneous Appeal is by the respondent wife against the order of the Second Additional Family Court, granting a decree of divorce to the husband who sought for a decree for divorce under Section 13(1)(ia) and (ib) of Hindu Marriage Act, 1955.
2. The respondent husband filed a petition under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955, seeking dissolution of the marriage on the ground that the wife, the appellant herein, had deserted the respondent and thereby the matrimonial home on 23.6.1994. It is stated that the marriage was solemnised as early as 27.5.1994. The respondent based his prayer for divorce alleging that the appellant threatened and harassed the respondent with the help of the police in the All Women Police Station at Adyar and the Anti Dowry Cell. Thus the respondent husband had suffered cruelty both mentally as well as physically and thus the appellant had indulged in acts of cruelty. It is also stated that the respondent attempted to commit suicide on more than one occasion and that the attempts made to bring about a settlement even after desertion by the appellant herein, to restore matrimonial peace and bring about re-union yielded no fruitful result.
3. In the circumstances, the respondent herein preferred the application before the Family Court. The allegations therein were denied by the appellant herein. She alleged that the respondent physically assaulted her and demanded dowry, which resulted in a complaint before the Anti Dowry Cell. She denied the allegation that she attempted on her life. She admitted in the petition that she left the matrimonial home in 1996 after a brief stay after the delivery of the child. However, it is stated that the allegations as regards cruelty and suicide were baseless and hence, prayed for dismissal of the petition.
4. By order dated 29th August 2003, the Family Court granted the relief to the petitioner husband ordering the dissolution of marriage. Analysing the evidence of the parties herein, the Family Court pointed out that the appellant herein left the matrimonial home as early as 1996. The application for divorce was filed in the year 1996. The evidence of the wife appellant was that she did make a complaint before the Anti Dowry Cell and that for nearly seven years, the couple were living separately and in the course of the proceedings before the Family Court, interim maintenance was also granted. The Family Court pointed out that the appellant herein admitted that she could not point out or substantiate her allegation of cruelty by the husband. The parties were living together for a period of 1_ years only. The respondent also admitted that the respondent did not ask for money to buy a van and that the allegation of dowry harassment itself was false. The Court below held that by such false complaint made before the All Women Police Station alleging dowry harassment, the differences had resulted in separation. It was also noted that considering the long gap of over seven years, there was no possibility of re-uniting the couple; in the circumstances, considering the aforesaid facts and the evidence recorded, the Family Court ultimately granted a decree of divorce to the husband. The Family Court ordered maintenance also to be continued, as had been done during the pendency of the proceedings.
5. Aggrieved of the said order, the wife has come on appeal questioning the correctness of the findings of the Family Court.
6. Learned counsel appearing for the appellant, taking us through the evidence and the documents marked, pointed out that though the appellant left the matrimonial home in 1996, her husband had not taken any step for restitution of conjugal rights to enable her to return back to the matrimonial house along with the child. In the light of the same, the allegation of the respondent not substantiated, learned counsel pleaded for setting aside of the order.
7. A perusal of the evidence of the respondent shows that the appellant never returned back to the matrimonial home eversince June, 1996 after giving complaint before the All Women Police Station. He also pointed out that she had taken away all her belongings then itself. It is stated that the respondent is working as a Constable and that the appellant visited the office of the respondent and brought disgrace to him in his work place.
8. A reading of the evidence of the appellant shows that she also admitted that in respect of the demand of dowry, she took proceedings before the Anti Dowry Cell and her husband was detained therein. She also admitted that talks for amicable settlement did not result in re-union and that she did not take steps to return back to the matrimonial home. Considering the conduct of the parties herein and the long gap of nearly seven years, and that even during the pendency of the proceedings before the Family Court, there being no steps taken to return back to the matrimonial home, the Family Court came to the conclusion that the marriage is irretrievably broken. Thus the order for divorce was granted.
9. We do not find any ground to upset the order of the Family Court for more than one reason. It is admitted by the appellant that eversince 1996, the parties had made no attempt to re-unite and were living separately. The respondent alleged that he suffered mental and physical cruelty and was under detention on the appellant complaining before the Anti Dowry Cell. These facts are not denied by the appellant. It is not denied by the appellant that she has been receiving interim maintenance. However, she made no attempt to return back to her matrimonial home even during the proceedings before the Family Court. Considering the fact of long separation and the persistent differences between the parties, the Court below rightly granted the relief to the respondent, that, at this stage, it is difficult to accept the plea of the appellant for restoration of the matrimonial relationship and to reverse the order of the Family Court.
10. It may be noted that during the pendency of the proceedings before this Court, the appellant expressed her desire to re-unite with her husband, the respondent. Hence, the matter was referred to the Tamil Nadu Mediation and Conciliation Centre to attempt on an amicable settlement between the parties to restore the confidence and the matrimonial ties between the parties. However, the respondent did not participate in the mediation proceedings. Hence, the matter was returned back to the Court for disposal on merits. Even today, none represented the respondent nor the respondent appeared in person to defend himself. Taking note of this conduct and attitude, we do not find any useful purpose would be served to prolong this matter. Even otherwise, we do not find any ground or justification to disturb the order of the Family Court.
11. In this connection, in matters relating to matrimonial disharmony leading to filing of divorce petition, the decision of the Supreme Court reported in (2006) 4 SCC 558 (NAVEEN KOHLI Vs. NEELU KOHLI) and (2007) 4 SCC 511 (SAMAR GHOSH Vs. JAYA GHOSH) need to be noted.
12. In the decision reported in (2006) 4 SCC 558 (NAVEEN KOHLI Vs. NEELU KOHLI), where both the spouses had been living separately for a fairly long number of years and could not reconcile themselves to live together forgetting their past, the Apex Court confirmed the order of the Family Court to grant the decree of divorce. Though irretrievable marriage is not a ground for dissolution of marriage under the Hindu Marriage Act, 1955, the Apex Court held that if after an endeavour to reconcile the parties, the breakdown is irreparable, then divorce should not be withheld. It further held that "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 being a long period of continuous separation, it may fairly be surmised that the irretrievable 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 parties." Taking note of the fact that the parties had been living separately for more than ten years and the number of proceedings initiated by one party against the other, the Apex Court found that the marriage between the parties was only in name. "The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond. "
13. The Apex Court once again, in the decision reported in (2007) 4 SCC 511 (SAMAR GHOSH Vs. JAYA GHOSH), had an occasion to consider a similar situation. Referring to various case law on the subject including (2006) 4 SCC 558 (NAVEEN KOHLI Vs. NEELU KOHLI) the Supreme Court held that "under the breakdown theory, divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances." On the question of cruelty, the Apex Court further observed that there can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. Yet, the Apex Court, by way of illustration, listed out the instances of mental cruelty 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 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 jealousy, 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 sterilisation 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 child 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. "
14. Taking note of all these circumstances and the fact that the parties were admittedly living separately for more than 16+ years, the Apex Court felt that the irresistible conclusion would be that the matrimonial tie had been ruptured beyond repair and hence, confirmed the order of the Family Court and granted divorce. Applying the said decision to the facts of the case herein on the admitted fact that the parties have been living separate eversince 1996 and attempts made by the Court had further failed, we do agree with the view of the Family Court that the marriage had irretrievably broken beyond repair and that there is no possibility of bringing the couple together. In these circumstances, we dismiss the appeal, thereby confirm the order of the Family Court passing a decree of divorce and dissolution of the marriage held on 27.5.1994. As regards the maintenance, the order passed by the Family Court shall continue. It is open to the respondent to seek modification as and when required.
The appeal stands dismissed. No costs. Connected C.M.P.No.2622 of 2004 is also dismissed.
ksv To:
The II Additional Judge Family Court Madras.