Madras High Court
T.Anderson Subash vs / on 4 June, 2016
2024/MHC/5595
C.M.A.(MD)No.953 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 12.09.2023
PRONOUNCED ON: 22.12.2023
CORAM:
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
AND
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A.(MD)No.953 of 2016
T.Anderson Subash ...Appellant
/Vs./
S.Cynthia Jessie ...Respondent
PRAYER:- Appeal - filed under Section 55 of Divorce Act to call for the
entire records pertaining to the order passed by the Family Court,
Tirunelveli District in IDOP No.86 of 2016 vide his order dated
04.06.2016 and set aside the same and consequently grant the decree of
divorce in his favour by ordering dissolution of marriage which was
taken place between the appellant and the respondent on 03.12.2012.
For Appellant : Mr.R.Anand
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C.M.A.(MD)No.953 of 2016
For Respondent : Mr.P.Samuel Gunasingh
JUDGMENT
(Delivered by DR.ANITA SUMANTH, J.) This appeal has been filed challenging an order passed in IDOP.No.86 of 2016 on 04.06.2016 refusing the prayer for divorce and dissolution of Christian Marriage solemnized between the petitioner and respondent. The parties were married on 03.12.2012 in the CSI Christ Church, Shanthi Nagar, Palayamkotai.
2.The appellant had averred before the Family Court that the respondent is unwilling to cohabit with him and was treating the appellant and his family members inappropriately which amounts to cruelty. He also alleged that she was unwilling to get along with the family members in the joint family.
3.He alleged desertion claiming that the respondent left the marital home within a few months of marriage, going back to her parental home to live there. After efforts of the family members to re- 2/15 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.953 of 2016 unite the couple, she returned, but this sequence of events was repeated time and again. The appellant alleged that the respondent was mentally ill and that he had taken her to a psychiatrist for treatment. He stated that the respondent had threatened suicide which caused great mental agony and apprehension to him.
4. The Appellant submits that there are dangers to living with the respondent as she is mentally unstable and cites incidents, albeit in general terms, when her behaviour was found to be unusual, attracting attention from the neighbours. No specific instances with any details such as dates, places or involving third parties have been given by the Appellant.
5. All averments are in extremely general and vague terms and moreover there are no supporting documents, even medical records produced before the Family Court. The couple has a child, presently aged about 9 years, in the custody of the respondent.
6. In response, the respondent had denied all the allegations made. The respondent is an Engineer, a gold medalist in college. She 3/15 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.953 of 2016 submits that her relations with the appellant were always cordial and in fact, after marriage they had lived in the family home only for a few days, shifting thereafter to Madras where they set up a marital home together. She claims that they were happy together and states, in her deposition, that they had gone for a holiday to Coorg in 2015. As per her version of events, they were together at least till 2016.
7. She does admit to some differences in regard to the faith that they followed, stating that while she had been given to understand that they would attend and be members of one particular Christian Church initially, post marriage, they had attended another Church. This had led to a strained relationship.
8. In her counter and deposition the respondent states that even when she was in Virudunagar, in her maternal home, there was frequent contact between the couple. She states the appellant used to visit her and their daughter and they were together at those time. Admittedly, she has made no attempt to seek restitution of conjugal rights and not issued a legal notice to him at any point in time.
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9. However once he had filed for a divorce, she states that she fully expected that she, with the help of elders in the family, would be able to persuade the appellant that they have a future together. Her categoric stand is that apart from the religious differences between them that she has expressed, she had never wanted to part ways at all. She claims to have been satisfied with their relationship and always ready to live together.
10. She has not at any point in time sought maintenance or other support from the appellant. She had pointed out that she had been making full efforts to integrate with the appellant as well as family and to live happily, despite which the appellant had been non-responsive. She refuted all the allegations levied against her as being totally incorrect.
11. At the time of hearing before the Family Court, Tirunelveli, the appellant had entered the box as PW1 and had marked the Family Card, Marriage Invitation, Marriage photographs and CD of the wedding and Marriage Registration Certificates as Exs.P1 to P4. The respondent was examined as RW1 and did not mark any documents. 5/15 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.953 of 2016
12. The IDOP came to be dismissed, the lower Court not accepting the submissions of the appellant and finding that there was no evidence that had been tendered to substantiate the allegations that the respondent was mentally ill, had threatened suicide or had been disinclined to cohabit in an amicable relationship with her husband. The Family Court also found the allegations very general and bereft of any specific details.
13. As against the same, the unsuccessful appellant is on an appeal and reiterates through Mr.R.Anand, learned counsel appearing on his behalf, the submissions made before the Family Court. He has also made an attempt to place on record medical documents at this stage. We will advert to the same presently.
14. Yet another allegation made by the appellant at the stage of appeal is that the respondent’s mother was employed at the relevant point in time as a Deputy Superintendent of Police whereas the appellant’s father was holding the post of a Sub-Inspector of Police. According to him, the respondent used to take perverse pleasure in belittling the lower 6/15 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.953 of 2016 position held by his father, repeatedly emphasising her mother’s position in the Department.
15. The appellant would urge that the marriage must be dissolved and the order of the lower court set aside relying upon a recent judgment of the Apex Court in Roopa Soni V. Kamalnarayan Soni1. In that judgement, the Bench considered the scope of cruelty under Section 13(ia) of the Act, holding ultimately that wide discretion enured to the Court to interpret and apply the term liberally as well as contextually.
16. Bearing in mind the range of human emotions and responses possible in a human relationship, the word ‘cruelty’ assumes many shapes and forms depending upon the persona involved as well as the attendant circumstances. The Bench points out that the decision to categorize an act as cruelty contains, by its very nature, an element of subjectivity and such a decision has to take note of social context in social justice adjudication.
17. While the burden of proof in a petition seeking divorce 1 2023 SCC Online SC 1127 7/15 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.953 of 2016 would lie upon the petitioner/person seeking such relief, the degree of probability to be considered is not one beyond a reasonable doubt but rather, one of preponderance whether the bar is lower than the former. The parties in that case had been living separately for a decade and a half. In the case of Roopa Soni (as recorded by the Bench at paragraph
17) neither the marriage nor the relationship survived and all that was required was a formal decree of divorce.
18. In Shilpa Sailesh V. Varun Sreenivasan1 at paragraph 33, the Bench cautions that the grant of divorce on the ground of irretrievable breakdown of marriage cannot be sought as a matter of right, but is, rather a discretion of the Court, to be exercised with great care and caution, keeping in mind several factors to ensure that complete justice is done to both parties. Paragraph 33 reads as follows:
‘33. Having said so, we wish to clearly state that grant of divorce on the ground of irretrievable breakdown of mar- riage by this Court is not a matter of right, but a discretion which is to be exercised with great care and caution, keep- ing in mind several factors ensuring that ‘complete justice’ is done to both parties. It is obvious that this Court should 1 (2023) 6 Scale 402 8/15 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.953 of 2016 be fully convinced and satisfied that the marriage is totally unworkable, emotionally dead and beyond salvation and, therefore, dissolution of marriage is the right solution and the only way forward. That the marriage has irretrievably broken down is to be factually determined and firmly es-
tablished. For this, several factors are to be considered such as the period of time the parties had cohabited after marriage; when the parties had last cohabited; the nature of allegations made by the parties against each other and their family members; the orders passed in the legal pro- ceedings from time to time, cumulative impact on the per- sonal relationship; whether, and how many attempts were made to settle the disputes by intervention of the court or through mediation, and when the last attempt was made, etc. The period of separation should be sufficiently long, and anything above six years or more will be a relevant factor. But these facts have to be evaluated keeping in view the economic and social status of the parties, including their educational qualifications, whether the parties have any children, their age, educational qualification, and whether the other spouse and children are dependent, in which event how and in what manner the party seeking di- vorce intends to take care and provide for the spouse or the children. Question of custody and welfare of minor children, provision for fair and adequate alimony for the wife, and economic rights of the children and other pend- ing matters, if any, are relevant considerations. We would not like to codify the factors so as to curtail exercise of ju- risdiction under Article 142(1) of the Constitution of In- dia, which is situation specific. Some of the factors men- tioned can be taken as illustrative, and worthy of consider- ation.’ 9/15 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.953 of 2016
19. There is a finding of fact recorded at paragraph 19 of the judgment in Roopa Soni (supra) that the allegations and counter allegations made had been established by both sides, the parties had moved away from each other and were settled in their respective lives and there is no need to continue the agony of a mere status without them living together. It is based on this position that the ultimate decision came to be taken by the Court in favour of a divorce.
20. In the present case, the fact are different. While the appellant would aver desertion from the inception, the respondent states that they have been together though intermittently, till at least 2016. The parties have been living apart thereafter approximately for seven years. The assertions of the respondent to the effect that the appellant used to visit her and their daughter in a congenial manner, even when she was in her maternal home would indicate to us that this is not a case of desertion against the will of the appellant but perhaps an arrangement that suited both the individuals.
21. This is all the more for the reason that the allegations of the 10/15 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.953 of 2016 appellant are sweeping and in extremely general terms, sans any details or specifications. The appellant has not brought on record any material to substantiate his submission that the respondent had deserted him. There is also nothing to indicate that the respondent had shied away from an intimate relationship or was disinclined in that regard.
22. There is no correspondence, legal notice or police complaint filed to urge her return if at all she had deserted the matrimonial home. Thus the allegation against the respondent that she had not taken any interest to seek legal intervention for resumption of conjugal relations does not impress us. In any event the deposition of the respondent and her counter set out specific instances when the couple had been together till 2016.
23. That apart, the very fact that the respondent was defending the IDOP and now, this appeal would indicate her continuing interest in the marital relationship. In our view, it is not necessary for a party to resort to legal proceedings for restitution of conjugal rights to establish his/her interest and willingness to continue in the relationship. 11/15 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.953 of 2016
24. We now avert to the additional evidence produced before us. We have noted in the paragraphs supra that the appellant had made allegations before the Family Court that the respondent was mentally ill and unstable. No evidence had been produced before the Court and the learned judge has rejected the argument as unsubstantiated and baseless, and rightly so.
25. Before us, the appellant produces the following documents
(i) discharge summary dated 08.02.2013 issued by Psymed Hospital diagnosing the respondent as suffering from Paranoid Schizophrenia (ii) prescription for medication and (iii) cash bill for her treatment and medication.
26. We are not inclined to entertain admission of the documents at this stage particularly as no reason has been adduced as to why they have not been produced at the first instance. There is no justification for these document not having been produced before the Family Court and to a pointed query as to why it is being produced only now, the appellant has no answer.
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27. The documents do not inspire any confidence in us, as, if they are genuine, they would have been available with the appellant even at the time when the IDOP had been filed in 2016. No reasons have been adduced as to why they could not be produced and marked even earlier. Thus, we are inclined to conclude that the documents are unreliable, sans any credibility whatsoever and liable to be rejected, and we do so. In light of the discussion above, we confirm the order passed on 04.06.2016 in IDOP.No.8616 of 2016 by the Family Court, Tirunelveli and dismiss this appeal. No costs.
28. At the closure of this hearing, it is brought to our attention that the appellant is married to another lady (name withheld in the interests of privacy) and they have a son. Learned counsel for the respondent circulates screenshots of the Facebook page of that individual where her name figures with the surname ‘Anderson’, the name of the appellant herein. There is a photograph of the lady with the appellant (so identified by the appellant’s Counsel) and a child. The appellant was specifically asked to obtain instructions from his client in this 13/15 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.953 of 2016 connection, but is unable to throw any light on the matter.
29. We think it fit to record the above position, reiterating the legal position that the marriage of the appellant and respondent continues seamlessly in view of the dismissal of both the IDOP as well as this appeal.
[A.S.M.J.,] & [R.V.J.,]
22.12.2023
Index :Yes/No
Speaking order/Non-speaking order
Neutral Citation :Yes/No
vs
TO
1.The Family Court,
Tirunelveli.
2.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A.(MD)No.953 of 2016
DR.ANITA SUMANTH, J.
AND
R.VIJAYAKUMAR, J.
vs
Pre-delivery Judgment delivered in
C.M.A.(MD)No.953 of 2016
Dated: 22.12.2023
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