Madras High Court
M.Illakkiya vs S.Dhanasekaran on 18 August, 2022
Author: V.M.Velumani
Bench: V.M.Velumani
C.M.A.Nos.1086 and 1087 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 14.07.2022
PRONOUNCED ON : 18.08.2022
CORAM :
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
AND
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.Nos.1086 and 1087 of 2015
and
M.P.No.1 of 2015
M.Illakkiya ... Appellant (in both CMAs)
vs
S.Dhanasekaran ... Respondent (in both CMAs)
Common Prayers: Civil Miscellaneous Appeals are filed under Section 19
of the Family Courts Act, to set aside the fair and final orders passed in
H.M.O.P.No.3479 of 2009 and H.M.O.P.No.1525 of 2012, dated 08.04.2015
on the file of the III Additional Family Court at Chennai.
For Appellant : Mr.R.Jayaprakash
(in both CMAs)
For Respondent : Ms.R.S.Akila
for Ms.Sudha Ramalingam
1/20
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1086 and 1087 of 2015
COMMON JUDGMENT
S.SOUNTHAR.J., The appellant/wife, who suffered a decree of divorce has filed C.M.A.No.1086 of 2015 challenging the decree for divorce granted in H.M.O.P.No.3479 of 2009 on the file of the III Additional Family Court at Chennai. She also filed a connected appeal in C.M.A.No.1087 of 2015 challenging the order dismissing her petition for restitution of conjugal rights made in H.M.O.P.No.1525 of 2012 on the file of the III Additional Family Court at Chennai.
2. The respondent/husband filed H.M.O.P.No.3479 of 2009 seeking divorce on the ground of cruelty. According to him, the marriage with appellant had taken place on 24.03.2008 at R.A.B. Thirumana Mandapam, Avalurpet, Chenji Taluk, Villupuram District and they lived together only for a few months. According to him, right from the date of marriage, the appellant irritated him and abused him with filthy language. He mainly pleaded that right from the date of marriage, the appellant failed to co-operate with him for leading normal matrimonial life and threatened him with threat 2/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1086 and 1087 of 2015 of suicide. In fine, he pleaded non-consummation of marriage. According to the respondent, the appellant left the matrimonial home during June, 2009. He further pleaded that all his attempts met with a failure and finally, he issued legal notice on 01.09.2009 narrating the above facts and calling the appellant to come and join with matrimonial home. The appellant sent a reply alleging that the torture and dowry demand and finally, he was constrained to file the above petition for divorce.
3. The appellant filed a counter denying various allegations found in the petition for divorce filed by the respondent. The allegation of the respondent that the appellant never co-operated with him for leading the matrimonial life was specifically denied by her. It is further averred in the counter that the respondent had come up with this petition for divorce only to escape from the dowry complaint given by the appellant. She also pleaded that she was subjected to severe mental torture and physical torture in the matrimonial life by her in-laws. It was pleaded by the appellant that the averments in the respondent's petition, as if, he tried for re-union was not correct. On these pleadings, the appellant sought for dismissal of the divorce 3/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1086 and 1087 of 2015 petition filed by the respondent.
4. On the part of the appellant, she filed a petition for restitution of conjugal rights in H.M.O.P.No.1525 of 2012 reiterating her averments found in the counter to the divorce application. The respondent filed a counter in the petition for restitution of conjugal rights, wherein he reiterated his averments found in his divorce petition.
5. Based on the joint request made by both parties, both the petitions for divorce and for restitution of conjugal rights were taken up for joint trial and evidence was recorded in divorce petition namely H.M.O.P.No.3479 of 2009. On behalf of the respondent/husband, he was examined as PW.1 and one of the common relative was examined as PW.2. On behalf of the appellant no witness was examined. Though in the annexure to the common order dated 08.04.2015 passed in H.M.O.P.Nos.3479 of 2009 and 1525 of 2012, it was mentioned as if the appellant was examined as RW.1. In the body of the order, the learned III Additional Family Judge, Chennai, specifically recorded that no witness was examined on her behalf. On consideration of the 4/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1086 and 1087 of 2015 oral and documentary evidence available on record, the learned III Additional Family Court, Chennai, came to the conclusion that the respondent proved his plea of cruelty and granted decree for divorce. The petition for restitution of conjugal rights filed by the appellant was dismissed. Aggrieved by the said common order passed by the III Additional Family Court, Chennai the appellant/wife has come up with the above appeals.
6. The learned counsel for the appellant/wife submitted that the findings of the Court below that the allegation of the non-cooperation by the appellant and non-consummation of marriage are proved, is liable to be interfered with by this Court in the absence of any independent witness on the side of the respondent/husband. He elaborated the same by submitting that one common relative was examined on behalf of the respondent as PW.2, but the Family Court itself rejected his evidence by stating that he had no personal knowledge about the relationship between the appellant and the respondent. Therefore, in the absence of any independent witness to corroborate the evidence of the respondent/husband, the Court below ought not to have believed the plea of mental cruelty and non-consummation of 5/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1086 and 1087 of 2015 marriage. She further submitted that merely because the parties are living separately due to minor misunderstanding and normal wear and tear of marital life, it cannot be presumed that the marital tie is beyond repair and one of the party to the marriage caused mental cruelty to the other party.
7. The learned counsel for the appellant vehemently contended that if the respondent/husband is very particular about his plea of non- consummation, he ought to have taken steps to subject the appellant/wife for medical examination. His failure to file any petition for subjecting the appellant/wife for medical inspection should be put against the respondent/husband and he relied upon the decision of this Court in D.Rajendran vs. R.Dhanalaxmi reported in 2009-2-L.W.571, in support of his above arguments.
8. The learned counsel also submitted that merely because the parties are living apart for quite some time, the respondent/husband is not entitled to seek a divorce and in support of his arguments, he relied on the decision of the Hon'ble Apex Court in Mangayakarasi vs. M.Yuvaraj reported in (2020) 6/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1086 and 1087 of 2015 3 SCC 786.
9. Per contra, the learned counsel for the respondent submitted that the respondent/husband proved his plea of mental cruelty and non-consummation of marriage by his own evidence, he also with-stood the cross-examination. The evidence of husband as PW.1 was corroborated by a common relative PW.2. On the other hand, the evidence of the husband on oath was not at all controverted by the appellant/wife, as she failed to enter the witness box and depose in favour of her contentions in counter. Therefore, the Family Court rightly had drawn adverse interference against wife and accepted the evidence of husband. She further submitted that though the appellant has not made any plea regarding alleged illegal relationship of respondent/husband in her pleadings a suggestion was put to PW.1 as if the respondent/husband had illegal relationship. The appellant/wife is not entitled to lead any evidence without basis of plea. She further submitted that this kind of suggestion to PW.1/husband as if he had extra marital relationship itself would amount to mental cruelty. She further submitted that the petition for restitution of conjugal rights filed by the appellant/wife is only a counter blast litigation for 7/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1086 and 1087 of 2015 divorce petition filed by the respondent/husband. The petition for restitution of conjugal rights was filed by the appellant/wife only after a period of three years from the date of presentation of divorce petition by the husband and that itself is sufficient to gather the intention of the appellant/wife that she is not very much interested in joining with the husband.
10. In support of her arguments, the learned counsel for the respondent relied on the following decisions of the Hon'ble Apex Court:-
(i) 2005 (2) SCC 22 in A.Jayachandra vs. Aneel Kaur
(ii) 2007 (4) SCC 511 in Samar Ghosh vs. Jaya Ghosh
(iii) 2014 (15) SCC 21 in Vidhya Viswanathan vs. Kartik Balakrishnan
(iv) 2006 (3) SCC 778 in Vinita Saxena vs. Pankaj Pandit
(v) 2002 (5) SCC 706 in Parveen Mehta vs. Inderjit Mehta
11. Heard the learned counsel for the appellant and the learned counsel for the respondent and perused the materials available on record.
12. On considering the pleadings of the parties and the contentions of 8/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1086 and 1087 of 2015 the learned counsel, the following points are arising for consideration in this appeal:-
(i) Whether the respondent proved cruelty meted out by appellant as alleged in H.M.O.P.No.3479 of 2009 filed by him?
(ii) Whether appellant is entitled to relief of Restitution of Conjugal Rights as claimed by her in H.M.O.P.No.1525 of 2009?
13. The respondent/husband in his pleading specifically contended that from the inception, the appellant did not co-operate for leading a matrimonial life, apart from the other pleadings of ill-treatment, use of filthy language and threat to commit suicide etc. In support of plea, respondent/husband entered the witness box and deposed as PW.1 and he also with-stood the cross- examination. Though appellant/wife filed a counter denying the averments of the husband, she had not chosen to enter the witness box and lead contra evidence. In the absence of any contra evidence on oath by the appellant/wife especially in a case where there is allegation of ill-treatment, non-cooperation and non-consummation of marriage, the Family Court is justified in drawing 9/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1086 and 1087 of 2015 adverse interference against the appellant/wife. The observations of the Hon'ble Apex Court in Vinita Saxena vs. Pankaj Pandit reported in (2006) 3 SCC 778 cited by the learned counsel for the respondent is squarely applicable to the facts of present case. The observations of the Hon'ble Apex Court in this regard are as follows:-
“30. Learned single Judge of the High Court failed to appreciate that in the absence of any evidence led by the respondent, the appellant's evidence had to be relied upon and on the basis of the evidence, the decree for divorce was bound to be granted in favour of the appellant. The appellant had also given specific instances of cruelty which clearly establish that she had a reasonable apprehension that it will be harmful or injurious for her to live with the respondent.”
14. The appellant/wife, who has chosen to file a petition for restitution of conjugal rights as a counter blast to the petition for divorce after three years from the date of institution of divorce application, should have atleast entered the box as a witness to show her sincerity in joining husband. Her failure to enter the box creates doubt about intention to join with her husband. 10/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1086 and 1087 of 2015
15. The Family Court on going through the evidence of PW.2, an independent witness common to both the parties, rejected his evidence on the ground that he had no personal knowledge about the relationship between the appellant and the respondent. In the matters of mental cruelty, it is very difficult to lead a direct evidence. The elements of mental cruelty has to be inferred based on the facts and circumstances of each case. In the case on hand, the marriage took place on 24.03.2008 and both the parties lived together only for a few months. There is no evidence available on record to show that the parties ever re-joined after June, 2009. Therefore, they have been living separately for the past 13 years. While considering a similar case in Parveen Metha vs. Inderjit Mehta reported in 2002(5) SCC 706, the Hon'ble Apex Court had observed as follows:-
“20. In the case in hand the foundation of the case of “cruelty” as a matrimonial offence is based on the allegations made by the husband that right from the day one after marriage the wife was not prepared to cooperate with him in having sexual intercourse on account of which the marriage could not be consummated. When the husband offered to have the wife treated medically she refused. As the condition of her health deteriorated she became irritating and unreasonable in her 11/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1086 and 1087 of 2015 behaviour towards the husband. She misbehaved with his friends and relations. She even abused him, scolded him and caught hold of his shirt collar in presence of elderly persons like Shri S.K.Jain. This Court in the case of Dr.N.G.Dastane Vs. Mrs.S.Dastane.
21. ... 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. ...”
16. The dictum laid down by the Hon'ble Apex Court in the above case law, squarely applies to the present case and there will be no difficulty in coming to the conclusion that the respondent/husband suffered mental cruelty and hence, he is entitled to decree for divorce.
17. The learned counsel for the appellant by relying on a decision of this Court in D.Rajendran vs. R.Dhanalaxmi reported in 2009-2-L.W.571 12/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1086 and 1087 of 2015 submitted that the failure of the respondent/husband in seeking medical examination of wife is vital to the case of non-consummation of the marriage.
18. We have gone through the facts of the case, cited by the learned counsel for the appellant. In that case, wife entered witness box and clearly deposed that they lived together as husband and wife and there was a conjugal relationship between them. The learned Single Judge of this Court specifically observed that the wife is the competent person to speak about the sexual relationship between her husband and herself. In the light of the statement made by the wife on oath, it was incumbent on husband to seek medical examination to prove his plea of non-consummation. The said case law cannot be applied to the facts of the present case, because in the case on hand, though the respondent/husband entered the box and deposed about the non-consummation and non-cooperative attitude of the wife, the appellant/wife failed to enter the witness box and lead any contra evidence. Therefore, the contention of the learned counsel for the appellant in this regard is rejected.
19. The other citation relied on by the learned counsel for the appellant 13/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1086 and 1087 of 2015 in Mangayakarasi vs. M.Yuvaraj reported in (2020) 3 SCC 786 is also not applicable to the present case, because in that case, the Hon'ble Apex Court observed that merely because, the parties are living separately due to normal wear and tear of the marital life, the decree for divorce need not be granted especially when the petition for restitution of conjugal rights was also considered simultaneously. But in the present case, we cannot say that the parties are separated because of the normal wear and tear of the matrimonial life. They lived together only for a short period, there is an allegation of non- cooperative attitude and non-consummation of marriage. Therefore, the argument of the learned counsel for the appellant based on the above case law is also rejected.
20. The learned counsel for the respondent relied on the decisions of the Hon'ble Supreme Court in Samar Ghosh vs. Jaya Ghosh reported in (2007) 4 SCC 511 to explain the scope of expression 'Mental Cruelty'. The observation of the Hon'ble Apex Court in Samar Ghosh vs. Jaya Ghosh reported in (2007) 4 SCC Cases 511, at Paragraph No.101, explained various illustrations of mental cruelty. The extract of the same is as follows:- 14/20
https://www.mhc.tn.gov.in/judis C.M.A.Nos.1086 and 1087 of 2015 “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.
(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.15/20
https://www.mhc.tn.gov.in/judis C.M.A.Nos.1086 and 1087 of 2015
(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 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 16/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1086 and 1087 of 2015 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 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.”
21. The Illustration No.xiv mentioned above is squarely applicable to 17/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1086 and 1087 of 2015 the cases on hand. Here the parties have been living separately for more than 13 years, there is allegations of non-cooperative attitude by wife from the inception and the attempts made by husband for re-union was also met with a failure and hence, we find no reason to disturb the finding of the Family Court that the respondent/husband suffered mental cruelty and hence, he is entitled to get decree for divorce.
22. Accordingly, the fair and final order passed by the III Additional Family Court at Chennai in H.M.O.P.No.3479 of 2009 dated 08.04.2015 granting decree of divorce on the ground of mental cruelty is confirmed. As a necessary corollary, the fair and final order passed in H.M.O.P.No.1525 of 2012 dismissing the appellant's petition for restitution of conjugal rights is also confirmed.
23. In nutshell,
(i) Both the Civil Miscellaneous Appeals are dismissed confirming the fair and final orders dated 08.04.2015 passed in H.M.O.P.No.3479 of 2009 and H.M.O.P.No.1525 of 2012 on the file of the III Additional Family Court 18/20 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1086 and 1087 of 2015 at Chennai.
(ii) In the facts and circumstances of these cases, there is no order as to costs.
(iii) The connected miscellaneous petition is closed.
(V.M.V.J) (S.S.J)
18.08.2022
Index : Yes / No
Speaking Order : Yes / No
dm
To
The III Additional Family Court,
Chennai.
19/20
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1086 and 1087 of 2015
V.M.VELUMANI , J.
and
S.SOUNTHAR , J.
dm
Pre-delivery order made in
C.M.A.Nos.1086 and 1087 of 2015
18.08.2022
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https://www.mhc.tn.gov.in/judis