G.Pandian vs Nirmala on 11 August, 2022

[Cites 23, Cited by 0]

Madras High Court

G.Pandian vs Nirmala on 11 August, 2022

https://www.mhc.tn.gov.in/judis C.M.A.No.488 of 2018 (Judgment of the Court was delivered by S.SOUNTHAR, J.) This Civil Miscellaneous Appeal is filed against dismissal of divorce petition filed by the appellant/husband against the respondent in O.P.No.2190 of 2013, on the file of Principal Family Court, Chennai. Originally the Original Petition was filed before Subordinate Court, Ranipet, as HMOP.No.27 of 2012 and the same was subsequently transferred to Family Court, Chennai and re-numbered as O.P.No.2190 of 2013.

2. The appellant sought for divorce on the grounds of cruelty and desertion. According to the averments found in the original petition, the marriage between appellant and respondent had taken place on 15.02.1989 at Rajarajeswari Marriage Hall, Arcot. The appellant and respondent have got two male children and they have been living happily till 2002. According to the appellant in the year 2002, the respondent's elder brother viz., Vijayakumar, who is a non-resident Indian, came back and permanently stayed in the house of the appellant and started creating a wedge between the 2/24 https://www.mhc.tn.gov.in/judis C.M.A.No.488 of 2018 appellant and respondent. Thereafter, the behaviour of the respondent got changed and she failed to perform her duties as before. According to appellant, the respondent denied a conjugal bliss to the appellant for more than eight years, resulting in filing of petition. It is further averred that the appellant was necked out of matrimonial home in July 2008 and he was not permitted to enter the home. According to the appellant, he had been staying in his work place by taking a room for rent and taking his food from hotel. It was further averred by appellant that he approached the respondent several times, seeking re-union but he met with a failure. During June 2011, his sister and other relatives tried to effect the compromise and for that purpose, they approached the respondent, but the respondent refused to open the door of the house and insulted them. The relatives of the appellant, after having waited for three hours in the house of neighbour PW.3 viz., Murugan decided to return as they had not received any response from the respondent. It was also averred that a legal notice was issued to the respondent on 22.06.2011, calling upon her to come and live with the appellant. The respondent had not issued any reply for the said legal notice. Therefore, the appellant was constrained to file petition for divorce on the ground of cruelty and desertion. 3/24 https://www.mhc.tn.gov.in/judis C.M.A.No.488 of 2018

3. The respondent filed a counter denying various averments made by the appellant in his original petition. According to her, the appellant sent her to Chennai in the year 2007 for better education of their children. But, however, he started neglecting the respondent and children without any justifiable cause. According to respondent, she and appellant never had any serious problem between them. It was also alleged that the appellant had developed extra marital affair and he neglected to maintain the respondent and her second son, though he helped first son to pursue his higher studies in a Foreign country (U.K). She also denied the averment of the appellant that he was necked out of matrimonial home by respondent in the year 2008. It was also alleged that the appellant made attempts to contract second marriage and on these pleadings, she sought for dismissal of the petition for divorce.

4. Before the Family Court, the appellant was examined as PW.1, his sister Geetha was examined as PW.2. One of his neighbour at Wallajapet was examined as PW.3. The appellant marked Exs.P1 to P9, in support of his claim. The respondent examined herself as RW.1. The second 4/24 https://www.mhc.tn.gov.in/judis C.M.A.No.488 of 2018 son of the appellant and respondent viz., Praveen was examined as RW.2; the cousin brother of respondent was examined as RW.3.

5. The Family Court after consideration of oral and documentary evidence came to the conclusion that appellant failed to prove both the grounds namely desertion and cruelty pleaded by him and consequently, dismissed the divorce petition. Aggrieved by the same, the appellant husband has come up with this Civil Miscellaneous Appeal. Pending this appeal, the appellant has filed a petition to raise additional evidence in CMP.No.888 of 2021 and wanted to mark two documents namely, the proceedings of Director of Agriculture, dated 27.08.2020, which contains the disciplinary enquiry report and depositions of respondent dated 20.11.2020 in departmental enquiry as Exhibits 1 and 2 in this Civil Miscellaneous Appeal. The said application was allowed by this Court by order dated 23.03.2021 and above said documents were marked as Exhibits 1 and 2 in this Civil Miscellaneous Appeal. The order passed by this Court, allowing the petition to raise additional evidence has become final and the same has not been challenged by the respondent.

5/24 https://www.mhc.tn.gov.in/judis C.M.A.No.488 of 2018

6. Mr.V.Raghavachari, learned counsel for the appellant submitted that the respondent caused serious mental cruelty to the appellant by denying matrimonial company to the appellant without any reasonable cause. Even though, the appellant made attempts for re-union by sending his sister and other relatives, the respondent not even extended the courtesy of opening the door and receiving them. He took us to the admissions of the respondent in this regard and submitted that by her act of ignoring the bonafide attempts of mediation by the appellant, the respondent not only closed the door for his relatives, who wanted to mediate but also closed the door for continuation of marital life. He further submitted that when a legal notice was issued to respondent under Ex.P1, calling upon her to come and join the appellant, she not even cared to send a reply. The un-ambiguous intention of the respondent to ignore the appellant can be gathered from her failure to send a reply to the legal notice issued by the appellant.

7. The learned counsel for the appellant vehemently contended that the additional evidence produced by him clearly establish that the 6/24 https://www.mhc.tn.gov.in/judis C.M.A.No.488 of 2018 respondent instigated her son (RW.2) to prefer a complaint against the appellant, his own father as if, he amassed wealth disproportionate to his known sources of income. According to the learned counsel, this act of respondent instigating son against father is a serious act of cruelty and hence argued for allowing of the appeal. He also relied on the following judgments, in support of his arguments:

                        S.                                    CITATIONS
                        NO

1. (2022) SCC Online MAD 431 – K.Latika Vs. P.R.Ganesh

2. (2021) SCC Online SC 702 – SIVASANKARAN vs. Santhimeenal

3. (2020) SCC Online MAD 17054 – V.Saritha Kumari Vs. S.Anbarasi

4. (2017) 14 SCC 194 – Ravi Talraja Vs. Kavita Talreja

5. (2016) 9 SCC 455 – Narendra Vs. K.Meena

6. (2012) 7 SCC 288 - Vishwanth Agarwal Vs. Srla Vishwanth Agarwal

7. (2005) 2 SCC 22 – A.Jayachandra Vs. Aneel Kaur

8. (2022) 5 SCC 459 – Debananda Tamuli Vs. Kakumoni Kataky

9. Civil Appeal.No.9545 of 2020 on the file of Hon'ble Supreme Court of India – Poonam Vs. Surender Kumar

10. (2007) 4 SCC 522 – Samar Ghosh Vs.Jaya Ghosh

11. MFA.No.4314/2012 on the file of Hon'ble High Court of Karnataka – Mallikarjuna Vs. H.A.Sudha Mallikarjuna

12. FAO-M-118-M of 2004 on the file of High Court of Punjab and Haryana at Chandigarh – Som Dutt Vs. Babita Rani

8. Per contra Mr.J.Saravanavel, learned counsel for the respondent submitted that the denial of conjugal bliss by the respondent for 7/24 https://www.mhc.tn.gov.in/judis C.M.A.No.488 of 2018 eight years, immediately, preceding the presentation of the petition was not established by any evidence. But, on the contrary, it was the appellant who deliberately avoided the respondent. Having avoided the respondent voluntarily, the appellant cannot take advantage of his own wrong and seek divorce. He further submitted that the pleadings of the appellant supporting his prayer for divorce on the ground of cruelty is not sufficient and contended that no decree for divorce would be granted unless the appellant is able to prove on the basis of his pleadings and evidence that case is covered under Section 13 (I) (ia) and (ib) of Hindu Marriage Act. He also relied on the following judgments, in support of his arguments:

S.NO CITATIONS

1. 2010 (13) SCC 298 Neelam Kumar Vs.Dayarani

2. 2010(14) SCC 301 Gurbux Singh Vs. Harminder Kaur

3. 2010 (4) SCC 476 Ravi Kmar Vs. Julmidevi

4. 2013(9) SCC 1 Darshan Gupta Vs. Radhika Gupta

5. 2013 (14) SCC 123 Ashok Kumar Jain Vs. Sumathi Jain

6. 2017 (4) SCC 85 Suman Singh Vs. Sanjay Singh

7. 2020(3) SCC 786 Mangayarkarasi Vs. M.Yuvaraj

8. 2014 SCC Online P&H 25147 Mohinder Verma Vs. Sapna

9. ILR (2006) I Delhi 830 Santhosh Sehgal Vs. Murari Lal Sehgal

10. Criminal Appeal Nos.1129-1130 of 2019 dated 24.07.2019 by Hon'ble Supreme Court of India Kaushalya Vs. Mukesh Jain

11. 2020 SCC online 903 Rajnesh Vs. Neha and another 8/24 https://www.mhc.tn.gov.in/judis C.M.A.No.488 of 2018

9. The learned counsel for the respondent contended that though the appellant stated in his pleadings that his relatives tried to mediate in June 2011, during his cross examination, he has stated that relatives tried to effect mediation in the year 2010. He further submitted that though the appellant pleaded that he was necked out in the year 2008, the alleged attempt for re-union took place only in the year 2011, well after three years. No prudent man could wait for three years for making attempts for re-union. He further submitted that misunderstanding between the appellant and respondent are trivial in nature which surfaced due to the normal wear and tear of matrimonial life and the same is not grave and weight enough to dissolve the marriage by decree of divorce. As far as the contention of the learned counsel for the appellant regarding the alleged cruelty committed by the respondent by instigating her son against his father, the learned counsel for the respondent submitted that the appellant financially supported his first son alone and ignored the respondent and his second son. Therefore, the second son developed some aversion towards his father and preferred 9/24 https://www.mhc.tn.gov.in/judis C.M.A.No.488 of 2018 complaint against his father and the respondent has nothing to do with the said complaints. The learned counsel also has taken us to the findings of the Family Court and prayed for dismissal of the appeal.

10. On these pleadings of the parties and the contentions of the learned counsel, the following points are arising for consideration in this appeal:

(a) Whether the appellant/husband proved his plea of cruelty alleged against the respondent?;

(b) Whether the appellant is entitled to divorce on the ground of desertion?

11. It is the specific plea of the appellant that the respondent necked out him during July 2008 from matrimonial home without any rhyme or reason and all his attempts for re-union ended in a failure. It was also contended by the appellant that the respondent joining hands with her brother stopped performing her duties as wife even in the year 2002. It was also specifically pleaded that the respondent denied conjugal bliss to the appellant 10/24 https://www.mhc.tn.gov.in/judis C.M.A.No.488 of 2018 for nearly eight years immediately preceding the presentation of the petition. These are all pleas made by the appellant in support of his prayer for divorce on the ground of cruelty. There is no doubt, denial of matrimonial company without any reasonable cause by one of the party to the marriage would certainly result in mental cruelty to the other party. Before we discuss this issue which is based on the pleadings of the appellant, we would like to deal with the arguments made by the learned counsel for the appellant with regard to the subsequent events, which according to the learned counsel for the appellant would result in a serious mental cruelty.

12. The learned counsel for the appellant very seriously contended that subsequent to the filing of petition for divorce, the respondent instigated her second son to give a complaint against his own father under Prevention of Corruption Act, as if he amassed wealth disproportionate to known sources of income and based on the said complaint by second son, the disciplinary proceeding was initiated against the appellant and he was suspended from service pending enquiry. It was also submitted that subsequently, he was allowed to retire pending disciplinary proceedings. The 11/24 https://www.mhc.tn.gov.in/judis C.M.A.No.488 of 2018 learned counsel for the appellant submitted that this act of respondent/wife in instigating son against his own father would amount to serious mental cruelty, which would damage the marital tie beyond any repair.

13. The learned counsel for the appellant submitted that filing of complaints by levelling unsubstantial allegations, so as to jeopardise the job of the appellant would amount to mental cruelty and relied on the decisions reported in 2021 SCC online SC 702 in SIVASANKARAN vs. Santhimeenal and 2020 SCC online MAD 17054 in V.Saritha Kumari Vs. S.Anbarasu in this regard. Admittedly, on the basis of the complaint preferred by his son, a disciplinary enquiry was already ordered against the appellant as per Ex.1 (Additional evidence produced in appeal). At the time of arguments, we were informed that the appellant was allowed to retire subject to disciplinary proceedings.

14. From the contention of the learned counsel appearing for the appellant and materials on record, it is seen that disciplinary proceedings initiated against the appellant, based on the complaint given by his second 12/24 https://www.mhc.tn.gov.in/judis C.M.A.No.488 of 2018 son, is pending and no final order has been passed. Any opinion expressed by us in respect of complaint given by the second son of the appellant would have a bearing on the outcome of the disciplinary proceedings now pending against the appellant in the Department. Without considering the contention of the learned counsel appearing for the appellant about the complaint given by the appellant's second son on merits, we are rejecting the same as pre-matured at this stage.

15. As far as the contention of the appellant, regarding denial of matrimonial bliss without any justification, the appellant examined himself as PW.1 and his evidence was corroborated by PWs.2 and 3. Further, the attempt made by appellant for re-union was also proved by evidence of PW.2 and PW.3. In this regard, it is appropriate to rely on the admissions of respondent herself as RW.1. When respondent/RW.1 was cross examined, with regard to attempts of the appellant for re-union, she deposed that she had been living separately from June 2009 and she had not taken any attempt to find out the place of residence of appellant or made any attempt for mediation for re-union. She also specifically admitted when sister of appellant came to 13/24 https://www.mhc.tn.gov.in/judis C.M.A.No.488 of 2018 matrimonial home at Wallajapet in June 2011, she closed the door and peeped at her through window. She further deposed that she did not verify whether they went back or not. The vernacular portion of the same is extracted below.

$%d; 2009 y; ehd; vd;Dila kfd;fSld; thyh$h te;j gpwF ehd; vd; fztUld; nrh;e;J thH;e;;njdh vd;why; ,y;iy/ ehd; $%d; 2009ypUe;J vd; fztu; ve;j Kftupapy; trpf;fpwhh; vd;W njo fz;Lgpoj;J mtUld; ngrp rkhjhdk; bra;J nru;e;J thH ahh; \:yKk; Kaw;rp bra;atpy;iy vd;why; rupjhd; mtu; jpUk;gp te;J tpLthu; vd;w ek;gpf;ifapy; ehd; Kaw;rp vJt[k; vLf;ftpy;iy/ vd; fztUila j';if kw;Wk; mtUila fztu; vd;Dld; ngr;Rthu;j;ij elj;j $%d; 2011y; thyh$hngl;il tPl;ow;F te;jhu;fs;/ ehd; fjit \o itj;jpUe;njd;/ ehd; fjit jpwf;ftpy;iy mtu;fis $d;dy; tHpahf ghh;j;J ngrhky; tpl;L tpl;nld;/ mjw;Fg;gpwF mtu;fs; brd;W tpl;lhu;fsh vd;W ehd; ghh;f;ftpy;iy/

16. It is settled law admission is the best evidence. The extracted portion of respondent's evidence clearly proves separation from June 2009 and attempts of appellant for re-union. It also proves that when sister of appellant tried to mediate, respondent thwarted the same by refusing to open the door and have a word with her. When sister and sister's husband of the 14/24 https://www.mhc.tn.gov.in/judis C.M.A.No.488 of 2018 appellant tried to approach the respondent, in order to mediate and facilitate re-union, the respondent closed the door and refused to talk with them. Further before filing this petition for divorce, appellant sent a legal notice to the respondent, which was marked as Ex.P1. Though admittedly, the respondent received the legal notice, she has not chosen to send any reply either by expressing her willingness for re-union or by giving an explanation for her refusal to re-union. These acts of respondent, namely her refusal to receive mediation by relatives and her failure to send any reply to the legal notice of the appellant seeking re-union clearly establish that the respondent denied matrimonial company and conjugal bliss to the appellant without any justifiable or reasonable cause. It is established from the evidence available on record that the parties have been living separately at least from June 2009. There is a continuous separation for sufficiently long period. There are evidence on record to show the attempt for re-union by one of the party and refusal for re-union by other party, namely the respondent. We cannot say the act of respondent in refusing to take to the mediation is a single act of immature behaviour, because subsequently, legal notice was issued, there is no response from respondent even for legal notice. Further, there is no 15/24 https://www.mhc.tn.gov.in/judis C.M.A.No.488 of 2018 material available on record, even thereafter, nearly for eight years till the disposal of the original petition in December 2017, that there was any meaningful attempt by respondent for re-union. Therefore, we have no hesitation in holding that the marital life is practically dead and it has become a fiction supported by a legal tie. It would be appropriate to extract the various illustration of mental cruelty explained by the Hon'ble Apex Court reported in (2007 ) 4 SCC page 511 in Samar Ghosh Vs. Jaya Ghosh, which reads as follows.

101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:

(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.

16/24

https://www.mhc.tn.gov.in/judis C.M.A.No.488 of 2018

(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.

17/24 https://www.mhc.tn.gov.in/judis C.M.A.No.488 of 2018

(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.

18/24 https://www.mhc.tn.gov.in/judis C.M.A.No.488 of 2018

(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 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.

19/24 https://www.mhc.tn.gov.in/judis C.M.A.No.488 of 2018

17. The illustration xiv mentioned by the Hon'ble Apex Court in the above case law is applicable to the facts of the present case. As per the law laid down by the Hon'ble Apex Court in the above case reported in (2007 ) 4 SCC page 511 in [Samar Ghosh Vs. Jaya Ghosh], if we refuse to sever the marital tie, it will perpetuate the mental cruelty suffered by the parties due to long separation. On the basis of above discussion, we come to the conclusion that the respondent has committed mental cruelty to the appellant and hence the appellant is entitled to get decree for divorce, on the ground of cruelty.

18. As far as the ground of desertion is concerned under Section 13(1) (1b) of Hindu Marriage Act, it is incumbent on the person who seeks divorce on the ground of desertion to prove that the other party to the marriage deserted him for a continuous period of not less than two years immediately preceding the presentation of the petition. As per the case of the appellant, he was necked out from the matrimonial home by the respondent during July 2008. In support of his plea, he himself deposed as PW.1 and sister has deposed as PW.2; the evidence of PWs.1 and 2 were corroborated 20/24 https://www.mhc.tn.gov.in/judis C.M.A.No.488 of 2018 by PW.3 neighbour. From the evidence available on record mainly on the basis of admissions of RW.1, it is definitely clear that the parties have been living apart from 2009. As discussed earlier, the respondent herself admitted as RW1, that she refused to open the door of matrimonial home, when sister and other relatives of husband tried to approach her for mediation. Hence animus on the part of respondent to withdraw from matrimonial company permanently is established. Therefore, we feel the appellant has proved wilful desertion by the respondent within a meaning of Section 13(I) (Ib) of Hindu Marriage Act, so as to entitle him to claim divorce on the ground of desertion. Therefore, we hold that the appellant proved his plea of desertion and he is entitled to get divorce on the ground of desertion also.

19. In nutshell,

(a) The Civil Miscellaneous Appeal is allowed by setting aside the fair and decreetal order dated 22.12.2017 made in O.P.No.2190 of 2013, on the file of Principal Family Court, Chennai;

21/24 https://www.mhc.tn.gov.in/judis C.M.A.No.488 of 2018

(b) The O.P.No.2190 of 2013, on the file of Principal Family Court, Chennai, stands allowed.

(c) In these facts and circumstance of the case, there is no order as to cost. Consequently connected Miscellaneous Petition is closed.

                                                                    (V.M.V., J)          (S.S., J)

                                                                                  11.08.2022

                  Exhibits marked in Appellant side:

Exhibit 1 : The proceedings of the Director of Agriculture dated 27.08.2020;

Exhibit 2 : Depositions made by Mrs.Nirmala in Departmental enquiry on 20.11.2020.

Internet : Yes / No Index : Yes / No ub 22/24 https://www.mhc.tn.gov.in/judis C.M.A.No.488 of 2018 To

1.The Principal Family Court, Chennai.

2.The Section Officer VR Section High Court Madras.

23/24 https://www.mhc.tn.gov.in/judis C.M.A.No.488 of 2018 V.M.VELUMANI,J.

and S.SOUNTHAR,J.

ub C.M.A.No.488 of 2018 11.08.202 24/24 https://www.mhc.tn.gov.in/judis

Unlock Advanced Research with PRISMAI

Madras High Court