Madras High Court
T.Abbas vs M.Ayesha on 12 February, 2020
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
A.S.No.228 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12-02-2020
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
A.S.No.228 of 2019
T.Abbas .. Appellant/Plaintiff
vs.
M.Ayesha .. Respondent/Defendant
Appeal Suit is preferred under Section 96 of the Code of Civil
Procedure, against the judgment and decree dated 08.10.2018 passed
in O.S.No.24 of 2015 on the file of the learned Principal Judge, Family
Court, Coimbatore.
For Appellant : Mr.R.Kannan
For Respondent : Ms.A.S.Shanawaaz Banu
JUDGMENT
The appeal suit on hand is directed against the judgment and decree dated 08.10.2018 passed by the learned Principal Judge, 1/28 http://www.judis.nic.in A.S.No.228 of 2019 Family Court, Coimbatore in O.S.No.24 of 2015.
2. The appellant in the appeal suit is the plaintiff in the suit and the respondent in the appeal suit is the defendant in the suit.
3. The plaintiff is the appellant, who instituted the suit for a declaration that the Triple Talak (Muthalak) pronounced by the plaintiff/husband on 27.04.2015 is valid and binding on the defendant/ wife.
4. For the sake of convenience, the parties are referred hereunder according to their marital status, 'the husband' and 'the wife', unless the context otherwise requires.
5. The facts in nutshell, as narrated in the plaint, by the plaintiff/husband in the suit, are that the marriage between the husband and the wife is an arranged marriage and solemnised on 01.05.2014 at Aysha Mahal, Kuniamuthur, Coimbatore, in accordance with the Muslim Rites and other related Ceremonies.
6. The complaint set out by the plaintiff/husband is that 2/28 http://www.judis.nic.in A.S.No.228 of 2019 the defendant/wife has openly declared that she is not interested in her marital life with the plaintiff/husband and she behaved in an arrogant and offensive manner and ill treated the husband and his family members. The parents of the wife, on the invitation of the husband, took the wife to her parental home, where on, Mohamed Koya, the grandfather of the wife, made a compromise and advised the wife and her parents.
7. Even after return to her matrimonial home, on the advise of her grandfather, the wife did not choose to amend her arrogant behaviour and indifferent attitude. The wife openly declared that she is not interested in sexual life and her marriage with the husband is against her desire. The wife was not happy even with the separate/independent abode in Chennai and during such stay in Chennai, she often threatened her husband in such a way that she would commit suicide.
8. The marriage of the spouses has not been consummated on account of refusal and non-cooperation on the part of the wife. The marriage of the husband has not been consummated owing to the impotence of the wife. The wife and her parents have 3/28 http://www.judis.nic.in A.S.No.228 of 2019 suppressed a major surgery in the right breast of the wife and also her ailment of Asthma. The wife has never been a dutiful wife in terms of household duties and of marital duties. The parents of the wife have also suppressed the mental illness of the wife and thereby induced the husband to marry her. The wife, on account of her mental illness, has become unfit for sexual life. On 21.08.2014, the wife has left her matrimonial home on her own volition.
9. All the efforts taken by the husband and other well wishers of the spouses to make the spouses reunited have also ended in vain. Therefore, on 27.04.2015, the husband sent a letter to the wife, pronouncing Triple Talak (Muthalak) and thereby dissolving his marriage with the wife. The aforesaid letter of the husband was also sent to the respective Jamath of the parties. The wife, having received the aforesaid letter of the husband on 29.04.2015, has been silent and therefore, the husband instituted the suit for a declaration that the Triple Talak (Muthalak) pronounced by him is valid and binding on the wife.
10. The defendant/wife disputed the contentions of the plaintiff/husband and contended that all such allegations are false and 4/28 http://www.judis.nic.in A.S.No.228 of 2019 frivolous and filed written statement, setting out her defense as follows:-
The case of the wife is that the marriage between the spouses is admitted. Even on the next day of marriage, the husband and his parents demanded a sum of Rs.2,00,000/- as dowry. The husband and his family members are ambitious in getting dowry from the wife and they are arrogant and offensive, ill-treating the wife both physically and mentally. The husband has been a puppet at the hands of his family members. The family members of the husband, particularly, his mother, have been very much particular in taking the privacy of the spouses away. The husband has gone to the extent of asking the wife to return the marriage mahar. The husband, regardless of the time and place, has gone to the extent of beating the wife. The parents of the wife, on account of such tortures by the husband, was constrained to take her back. All the mediations and conciliations effected by the elders were ended in vain. All the efforts taken by the respective Jamaths were also ended in vain. The letter of the husband pronouncing Triple Talak is not a valid one, as it is against the Canons of Islamic Law. The suit instituted by the husband is nothing but an attempt to get rid of the penal action initiated against him on a police complaint given by the wife and the same is not maintainable and to 5/28 http://www.judis.nic.in A.S.No.228 of 2019 be dismissed as devoid of merits.
11. The Trial Court framed the following issues for consideration:-
“(1) Whether the plaintiff is entitled to the relief prayed for ?
(2) To what other relief the plaintiff is entitled ?”
12. On the side of the plaintiff/husband, he has examined himself as PW-1 and marked his Marriage Invitation as Ex.A-1, his Marriage Reception Invitation as Ex.A-2, the photograph of the spouses as Ex.A-3, the copy of his Ration Card as Ex.A-4, the copy of his Voter Identity Card as Ex.A-5, the copy of his Talak letter as Ex.A- 6, the copy of AD Card of the defendant/wife as Ex.A-7, the copy of AD Card of Tajul Islaam Sunnath Jamath as Ex.A-8, the copy of AD Card of Marappettai Sunnath Jamath Pallivasan as Ex.A-9, the AD Card of the defendant/wife as Ex.A-10, the AD Card of Tajul Islaam Sunnath Jamath as Ex.A-11, the AD Card of Marappettai Sunnath Jamath Pallivasal as Ex.A-12 and the copy of his Marriage Certificate as Ex.A- 13. 6/28 http://www.judis.nic.in A.S.No.228 of 2019
13. On the side of the defendant/wife, she has examined herself as DW-1 and marked the copy of the complaint given by her to the Inspector of Police, All Women Police Station, Coimbatore as Ex.B- 1, DW-2 is the Secretary of Tajul Islaam Sunnath Jamath, Kuniamuthur, Coimbatore, who has marked the letter authorising to give evidence as Ex.X-1.
14. The Trial Court recorded the submissions on the side of the plaintiff/husband which reads as under:-
“Putting forth his submissions eloquently and expatiating the claim of the husband, the learned counsel for the husband has submitted that the verdict dated 22.08.2017 in Shayara Bano and Others vs. Union of India and Others [CDJ 2017 SC 975) has no application in this case where the Triple Talak has been pronounced on 27.04.2015 for the reason that the verdict has no retrospective effect. He has further submitted that the husband has not abruptly issued to the wife a letter pronouncing Triple Talak, but he has issued such a letter only after all the efforts for reconciliation ended in failure. He has also 7/28 http://www.judis.nic.in A.S.No.228 of 2019 pointed out that the wife as DW-1 has admitted such efforts for reconciliation and their failures. He has added that when the marriage has not been consummated owing to the refusal and non-cooperation of the wife, the husband has no other option except to get his marriage with the wife dissolved. He has further added that the husband has not pronounced Triple Talak immediately after the marriage, but he has, with the fond hope for reunion, been patiently waiting for one year. He has also added that the wife and her family members have deliberately suppressed the ailment of the wife, Asthma, and her surgery affecting her breast. He has contended that since Muslim marriage is a contract, any such suppression and/or such non-consummation of marriage would render the marriage voidable at the instance of the husband, the affected party and therefore, there is nothing wrong in pronouncing Triple Talak. He has finally submitted that the case is supposed to be decided in accordance with law as existed then when it was filed, but not in accordance with law subsequently amended or developed, unless retrospective effect is specifically given. Hence the husband prayed for the grant of decree as claimed and has also 8/28 http://www.judis.nic.in A.S.No.228 of 2019 filed a memorandum of argument.”
15. So also the Trial Court recorded the submissions on the side of the defendant/wife, which reads as under:-
“Fiercely opposing the arguments placed on the side of the husband, the learned counsel for the wife has submitted that Islamic Law does not grant a Muslim husband an unfettered liberty to revoke his marriage on his own whims and fancies. He has further submitted, it is trite, that Talak must be for reasonable cause and that it must be preceded by an attempt for reconciliation by two Arbiters, one nominated by husband's family and the other nominated by wife's family. He has also submitted that the husband herein has not shown any such reasonable cause of whatsoever and any such reconciliation by two Arbiters. He has added that the husband, who has made several allegations against the wife, has not chosen to lead any other evidence supporting his case and that his case cannot be evaluated by his interested testimony. He has further added that the husband, who has come forward with a specific case that his marriage has not been consummated, has admitted in his Talak letter 9/28 http://www.judis.nic.in A.S.No.228 of 2019 itself that his marriage has not been consummated. He has also added that when the family members of the wife have admittedly taken much effort to get the spouses reunited, what else is required to prove the intention of the wife to resume her marital life with the husband. He has finally submitted that the case of the wife does not solely rest on the recent verdict on Triple Talak but the wife intends to point out the principles enunciated therein. Hence, she has prayed for the dismissal of the suit and has also filed a memorandum of argument.”
16. With reference to issue No.1, the Trial Court relied on Shayara Bano and Others vs. Union of India and Others [(CDJ) 2017 SC 975], is a recent case where the practice of Triple Talak (Talak-e-Biddat) by a majority of 3:2, has been declared as arbitrary and unconstitutional. The Trial Court with reference to the abovesaid judgment of the Constitution Bench of the Hon'ble Supreme Court of India, held that the said judgment has no retrospective effect binding on all the pending cases. Instead, an injunction till the emerge of new legislation in this regard has been granted restraining all Muslim husbands from pronouncing such Triple Talak (Talak-e-Biddat). Thus, 10/28 http://www.judis.nic.in A.S.No.228 of 2019 having regard to the grant of such an injunction restraining the future practice of Triple Talak (Talak-e-Biddat), the Trial Court held that the aforesaid recent verdict dated 22.08.2017, declaring and striking down the practice of Triple Talak (Talak-e-Biddat) as arbitrary and unconstitutional, has no application in respect of the case on hand. More specifically, when the Triple Talak (Talak-e-Biddat) in the present case said to have been pronounced on 27.04.2015. Under those circumstances, the Trial Court decided the merits of the case based on the documents and the evidences produced by the respective parties.
17. The Trial Court considered the judgment of Shamim Ara vs. State of UP and Another [(2002) 7 SCC 518] and in A.Yousuf Rawther vs. Sowramma [AIR 1971 Ker 261], held that what is held to be bad in Holy Quaran cannot be good in Shariat and, in that sense, what is bad in Theology is bad in law as well, that it s a popular fallacy a Muslim male, under the Quaranic Law, enjoys unbridled authority to liquidate the marriage, but the Holy Quaran expressly forbids a man to seek pretexts for divorcing his wife so long as she remains faithful and obedient to him and that Talak must be for reasonable cause and it must be preceded by an attempt for reconciliation by two arbiters, one nominated by husband's family and 11/28 http://www.judis.nic.in A.S.No.228 of 2019 the other nominated by wife's family. Therefore, the parameters that render a Talak valid and lawful are that the Talak must be for reasonable cause and that it must be preceded by an attempt for reconciliation by two arbiters, one nominated by husband's family and the other nominated by wife's family.
18. When the Trial Court rightly considered the abovesaid judgments for the purpose of appreciating the documents and the evidences produced by the parties to the lis on hand, the Trial Court, keeping in mind, the observations made in the relevant documents, which all are marked by the parties. The Talak letter Ex.A-6 dated 27.04.2015 issued to the wife by the husband and the said letter would read as under:-
“m!;!yhK miyf;Fk;. vk;/Mapc&h f-
bg/,/Kcwk;kJ uf;gp Mfpa cdf;Fk; cdJ
FLk;gj;jhu;f;Fk; ,jd; K:yk; bjuptpg;gJ
vd;dbtd;why;. cd;Dld; thHe;j kzthHf;if
vdf;F eufkhfp tpl;ljhYk;. kzthHf;ifia
cd;Dld; bjhlu rhj;jpak; ,y;yhj fhuzj;jhYk;
cd;id kdg; g{u;tkhf jyhf; bra;fpnwd;
vd;gij bjuptpj;J bfhs;fpnwd;/ jyhf; jyhf;
jyhf; jyhf;/
kzKwptpw;fhd Kf;fpa fhuzk;
cdf;F ,y;yw-jhk;gj;a thHf;ifapy;
12/28
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tpUg;gk; ,y;yhik. jhk;gj;a thH;fi
; f ele;j
ehl;fs; 4/ mij g[wf;fzpf;fnt vdf;F fLk;
kd cisr;riyf; bfhLj;jha;/ ehd; fztd;
vd;w Kiwapy; cdf;F bra;a ntz;oa flikfs;
ruptu bra;J cs;nsd;/ Mdhy; eP kidtp vd;w Kiwapy; vdf;F ve;j mog;gil flikfisa[k;
epiwntw;wtpy;iy khwhf vdf;F fLk; kd
cisr;riyf; bfhLj;jha;/ jpUkz thH;fi
; fapy;
ruhrup Mz; kfDf;F fpilf;f ntz;oa ve;j
xU epk;kjpa[k;. re;njhrKk; vdf;F
fpilf;ftpy;iy/ khwhf vd;Dila epk;kjpa[k;.
re;njhrKk; gwpnghdJ/ cd;Dila mst[fF
;
mjpfkhd nfhgk; kdij jpUg;jpahf itj;Jf;
bfhs;shky; vg;bghGJk; Fiw Twpf; bfhz;L
,Ug;gJ/ thH gpof;ftpy;iy vdf;Twp mGtJ
nkYk; ehd; ,wf;f tpUk;g[fpnwd; vd my;yhtplk;
gpuhu;j;jid bra;tJ (Mjhuk; cs;sJ)/ nkny
Twpa fhuz';fshy; eP vd;id bra;j kd
cisr;ry; fhuzkhf vd;dhy; cd;Dld; kz
thH;fi
; fia bjhlu KoahJ/ ekf;F fy;ahzk;
ele;j ehs; (01/05/2014) Kjy; cd;Dila kd
cisr;ry; fhuzkhf ehd; kd epk;kjp ,He;J
jtpj;J tUfpnwd;/ nkYk; eP bra;af;Toa
gpur;ridfs; midj;ija[k; cdJ mk;khtplk;
brhy;yp rupbra;a typa[Wj;jp cs;nsd;/ cd;dhy;
vd; kdij ghjpj;j tpra';fSf;F cdJ
mk;khtplk; brhy;yp jPui
; t vjpu;ghu;j;njd;/ Mdhy;
cd;Dila mk;kh jPu;t[ vija[k; brhy;yhky;
gpur;ridfis mjpfkhf;fpdhu;/
ehd; cd;Dld; thHe;j thH;f;ifapy;
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cd;idg;gw;wp mwpe;j tpra';fs;
kz thHf;ifapy; tpUg;gk; ,y;yhik
(fy;ahzj;jpw;F Kd;g[ lhf;luplk; Mnyhrid
bra;J cd;id jpUkzk; Koj;J itj;J
tpl;ldu;)/ cdJ mjpfkhd nfhgj;ij
irf;fho!;olk; brd;W Mnyhrid bra;J
cs;sdu;/ clk;g[ uPjpahd gpur;ridfSila gpd;
tpist[fs; midj;ija[k; vd;dplKk; vd;
FLk;gj;jhuplKk; kiwj;J cdf;F jpUkzk;
bra;J itj;Js;sdu;/ Mf!;l; khjk; 21k; njjp
(21/08/2014) ele;j ekJ rz;ilf;F gpwF
jpU/Kfk;kJ bfhah (rpj;jg;gh). brd;id jhj;jh ,UtUk; fpl;lj;jl;l 10 Kiw vd;ida[k;.
vd;Dila FLk;gj;jhiua[k; re;jpj;J ngr;R thu;jij elj;jpdu;/ ePa[k; vdJ FLk;gKk; epiwa jpUe;jptpl;ljhf khwp tpl;ljhf cWjp mspj;jdu;/ Mdhy; ePak [ ; cdJ Flk;gj;jhUk; xU rjtPjk;
Tl jpUe;jtpy;iy vd;gjw;F cd;Dila mk;kh brd;idapy; ele;j Kiw kpfr; rpwe;j cjhuzk;/ nkYk; FdpaKj;J}u; gs;sp brayhsu;
jpU/cw^ird; mtu;fs; tPl;oy; eP itj;j
Fw;wr;rhl;Lk; kw;Wk; jdp miwapy; vd;dplk;
ngrpa thu;ji
; jfSk; kpfr; rpwe;j cjhuzk;/
cd;Dld; thH;e;j 3 khj fhyj;jpy; ehd; gl;l
ntjida[k;. kd cisr;rYk; brhy;yp khshJ/
nkYk; cd; mz;zDk;. mk;kht[k; vd;id bra;j lhu;r;ru; my;yhtpw;nf bghWf;fhJ/ ,e;j euf thH;fi ; ff;F Kw;Wg;g[s;sp itf;fnt vdJ ,e;j Kot[ jyhf; jyhf; jyhf;/@ 14/28 http://www.judis.nic.in A.S.No.228 of 2019
19. The abovesaid Talak letter reveals that the husband said through the abovesaid Talak letter that the spouses had lived together only for three months; that the spouses had conjugal relationship (coitus) only for 4 days; that the wife had no interest in conjugal relationship; that the wife had never been a dutiful wife; that the wife had been arrogant and offensive, ill treating him, that the wife had been intending to die; that the brother and mother of the wife had also harassed him; that the ailments of the wife had been suppressed; that the talks held by the family members had ended in vain; that the indifferent attitude and arrogant behaviour of the wife have driven him to revoke his marriage with the wife; and that therefore, he pronounces Triple Talak. With the above reasons, the suit was instituted for declaration that the Triple Talak (Muthalak) pronounced by the husband/plaintiff on 27.04.2015 is valid and binding on the wife/defendant.
20. The Trial Court considered whether the husband is able to prove and satisfy the conditions and the parameters of a valid and lawful Talak. The second condition rendering a Talak valid and lawful is the attempt for reconciliation by two arbiters, one nominated by 15/28 http://www.judis.nic.in A.S.No.228 of 2019 husband's family and the other, nominated by wife's family. Even the wife, as DW-1, would admit such attempts for reconciliation, as under:
“DW-1 – Cross Examination:
vd;Dila bgw;nwhu; kw;Wk; cwtpdu;fs;
v';fis nru;j;J itf;f Kaw;rp vLj;jjhf
bka;a[iu gj;jp 47y; Twpa[s;nsd;/ nkw;brhd;d
Kaw;rpapd; nghJ thjpapd; cwtpdu;fs; ahUk;
tutpy;iy/ nkw;brhd;dthW igry; ngrpa
nghJ vd;Dila bgw;nwhUk;. Vd;Dila
cwtpdUk;. thjpapd; bgw;nwhUk; ,Ue;jdu;/
thjpapd; kw;w cwtpdu;fs; ,Ue;jjhfr;
brhd;dhy; jtW/ jpUkzk; ele;j
Xuhz;ow;Fs;shf 20 Kjy; 25 Kiwfs;
ele;jpUf;Fk;/ xt;bthU Kiwa[k; vd; rhu;ghf
vd; bgw;nwhu;fs;. cwtpdu;fs; midtUk;
,Ue;jdu;/ thjp jug;gpy; mtUila bgw;nwhu;
kw;Wk; rnfhjup kl;Lnk ,Ue;jdu;/////// 25 Kiw g";rhaj;J ele;jbghGJk;
,nj nghd;W jhd; nfl;lhu;fs;/////// thjpapd; $khj;fhuu;fs;. bghUshsu;
ufkj;Jy;yh. Cjtp Kj;jty;yp rpf;fe;ju; ghc&h MfpnahUk; v';fs; $khj;ij nru;e;J cnrd;
vd;gtUk; ,Wjpahf ele;j igrypd;nghJ fye;J bfhz;lhu;fs; vd;why; rupjhd;/////// DW-1 - Re-Examination:
gyKiw g";rhaj;J ele;Jk;
vg;bghGJk; thjpapd; FLk;gj;jpdnuh mtu;
rhu;ghf mtUila ez;gu;fnsh mtUila
cwtpdu;fnsh vd;dplj;jpy; neuoahf nru;e;J
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thH tUkhW brhy;ytpy;iy/@
21. The above deposition of DW-1, during cross-
examination, reveals that the family members of both the spouses had made an attempt for reconciliation between them, but all such efforts ended in vain. Therefore, the Trial Court came to a conclusion that the reconciliation had took place between the parties along with the respective family members and accordingly, the second condition had been fulfilled in respect of the case on hand.
22. The first and the foremost condition rendering a Talak valid and lawful is that it must be for reasonable cause because a marital tie cannot be broken capriciously and whimsically by any husband. The husband placed certain reasons and causes for getting his marriage dissolved and the Trial Court, while summarising such reasons, held that non consummation of marriage; non cooperation/refusal on the part of the wife for coitus; suicidal attempts on the part of the wife; suppression of ailments affecting the wife; harassment by family members of the wife; arrogant behaviour of the wife and refusal on the part of the wife for reunion. 17/28 http://www.judis.nic.in A.S.No.228 of 2019
23. The fact remains that the spouses had lived together only for 3 months as admitted by the husband in his Talak letter Ex.A-
6. The husband mainly contended and instituted the suit on the ground that non-consummation of marriage and in the plaint, the husband has stated in paragraphs 13 and 14 as under:-
“13. The plaintiff with respectfully submits that, the respondent consistently refused to consummate the marriage and there was no sexual intercourse between the plaintiff and the defendant. The plaintiff made all his efforts and attempt, but the defendant refused for the consummation. As such the plaintiff came to know that the refusal of the defendant for consummation of the marriage had arisen from the incapacity for the reasons well known to the defendant. Thereby the willful refusal of consummation had arise from incapacity caused by nervousness or hysteria or from invincible repugnance to the act of consummation refused in impotency of the defendant. The plaintiff made repeated and consistent approaches but was not fruitful. The attempt made by the plaintiff to have sexual intercourse with the defendant does not materialise due to the impotency (rigidity) of the defendant.
14. ... ... ... Even from the first day of 18/28 http://www.judis.nic.in A.S.No.228 of 2019 the marriage, the defendant did not allow the plaintiff for the sexual life and she stated that she was affected by the Asthma and if she involves in the sexual life, her life will become critical. Due to the objection from the defendant, the plaintiff was put to untold miseries and mental agony.”
24. Though the husband has taken such a plea of non-
consummation of marriage as his prime ground, he is not certain as to whe4ther his marriage has not been consummated owing to the impotence of the wife or whether his marriage has not been consummated owing to the refusal/non-cooperation on the part of the wife for coitus, since he pleads both. However, the Trial Court found that the husband/plaintiff has conceded in his Talak letter that his marriage has been consummated and the said portion of Ex.A-6 Talak letter is extracted hereunder:-
“kzKwptpw;fhd Kf;fpa fhuzk;
cdf;F ,y;yyw-jhk;gj;a thH;f;ifapy;
tpUg;gk; ,y;yhik/ Jhk;gj;a thH;f;if
ele;j ehl;fs; 4/ mij g[wf;fzpf;fnt
vdf;F fLk; kd cisr;riyf; bfhLj;jha;@
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25. The husband/plaintiff, as PW-1, would admit in his cross-examination as under:-
“thrh/M/6 jyhf; mwptpg;gpy; eh';fs;
,UtUk; 4 ehl;fs; jhk;gj;jpa cwtpy;
<Lgl;oUe;njhk; vd;W brhy;ypa[s;nsd; vd;why;
rupjhd;/ vd;Dila gpuhjpy; vdf;Fk;
gpujpthjpf;Fkpilna jhk;gj;jpa cwnt ,y;iy
vd;W brhy;ypa[s;nsd; vd;why; rupjhd;/@
26. The plea of non-consummation of marriage, either owing to the impotence of the wife, or owing to the refusal/non-
cooperation on the part of the wife for coitus, would vanish in view of the fact that the consummation of marriage has been admitted by the husband both in the Talak letter as well as during cross-examination.
27. The Trial Court made a finding that even assuming that the wife owing to the impotence or owing to the refusal/non- cooperation for coitus. Such refusal/non-cooperation could have been taken place only after the consummation of marriage. Any husband, even after the consummation of marriage, can take the plea of such rejection/non-cooperation as a ground for dissolution of his marriage, but the question to be considered as whether such refusal or non- 20/28 http://www.judis.nic.in A.S.No.228 of 2019 cooperation would, in all cases, enable or empower a husband to revoke his marriage? Coitus is and must be a natural process which requires a suitable atmosphere enabling the spouses to tune their frequencies in consonance with each other and that any undesirable factor or event, either domestic or alien, affecting the mind of a spouse would collapse his/her part in conjugal relationship for which the spouse concerned could not be found fault with. Admittedly, the spouses had lived hardly for about 3 months, that too with persistent quarrels between them and their families as well.
28. Under these circumstances, the Trial Court arrived a conclusion that it would be unjust to hold that such refusal or non- cooperation, if any, would readily entitled or justify the husband to liquidate his marriage. Accordingly, the Trial Court concluded that the ground of non-consummation of marriage, the real fulcrum of the case of the husband, stands failed.
29. Regarding the other grounds such as suicidal attempts on the part of the wife, suppression of ailments affecting the wife and harassment by family members of the wife are concerned, they are obviously collateral to the main ground of non-consummation of 21/28 http://www.judis.nic.in A.S.No.228 of 2019 marriage and it is for the husband to prove those other grounds by producing the necessary documents and other relevant factors. However, except ipse dixit of the husband, there is nothing on ground to prove either the suicidal attempts on the part of the wife or the suppression of ailments affecting the wife, or the ailments of the wife, or the harassment by family members of the wife.
30. The offences or accusations are of such a nature as would require further corroboration and such grounds cannot be taken as it is in the absence of any valid document or evidences and other factual circumstances or at least the probabilities. No such documents or evidences are filed before the Trial Court and the Trial Court also unable to arrive a conclusion that the grounds raised by the husband/plaintiff is true or genuine. In the absence of any such materials to corroborate the grounds or to prove the incidence, the Trial Court rightly concluded that such grounds raised by the husband is untenable and accordingly arrived a conclusion that the husband/plaintiff is not entitled for the relief of declaration as stated in the original suit.
31. The ground raised regarding arrogancy and 22/28 http://www.judis.nic.in A.S.No.228 of 2019 offensiveness, which is general in nature and such grounds are usually raised against many families in society. If such general grounds are raised for the purpose of dissolution of marriage, more specifically, in a case of Triple Talak, then it would not only be dangerous, but will be a wrong message to the society at large.
32. The spouses, in the present case, having lived hardly for three months, raising a ground of arrogancy and offensiveness at the first instance can never be accepted unless there is a strong proof to establish the same . The quarrels between the spouses and their families are the normal affairs in our society.
33. This being the practical circumstances prevailing in our society, then the Courts are to be cautious in entertaining such grounds in the absence of any clinching evidence. Having regard to the short span of marital life and considering the persistent quarrels between the spouses and their families as well, the Trial Court arrived a conclusion that the husband/plaintiff has failed to establish such grounds with sufficient materials.
34. The last ground raised against the wife/defendant by 23/28 http://www.judis.nic.in A.S.No.228 of 2019 the husband/plaintiff is that the wife has not shown her interest for reunion and the wife has no animus revertendi to resume her marital life with the husband. However, such a ground pertaining to animus revertendi has been taken by the husband only after the pronouncement of Talak (Muthalak) and therefore, it would not assume any importance as this case was dealing with the validity of Talak (Muthalak). However, the doctrine of animus revertendi would play a vital role only in cases for restitution of conjugal rights, but not in cases for dissolution of marriage where the grounds must be grave, weighty and reasonable.
35. In paragraph-18 of the plaint, the husband/plaintiff raised yet another ground of mental illness of the wife. However, whenever such serious grounds are raised by the husband/plaintiff, then the said mental illness or otherwise is to be established by marking the relevant medical records or other circumstances. The Trial Court found that no such medical records or documents filed and accordingly rejected the said ground.
36. As far as the said ground is concerned, even before this Court, both the husband and the wife are present. They are well 24/28 http://www.judis.nic.in A.S.No.228 of 2019 educated and capable of articulating their case, this Court could able to arrive a conclusion that the defendant/wife is not mentally ill and she is of sound mind. Both the husband and the wife, who all are young couple, have taken a decision and in fact, the wife pleaded that the husband contracted the second marriage with another woman and now living with her and the said fact is not disputed by the husband even before this Court. Even under those circumstances, the wife pleaded that she is ready to settle the matter provided the husband pays a just compensation which would be acceptable to her. The husband pleaded the inability to settle any compensation and under those circumstances, all the efforts taken by the Court to settle the matter in the appeal suit got failed.
37. In view of the facts and circumstances and perusal of the findings of the Trial Court, this Court has no hesitation in arriving a conclusion that there is no perversity or infirmity as such in respect of the conclusion arrived by the Trial Court and the appellant has not established any acceptable legal grounds for the purpose of sustaining the Talak (Muthalak) pronounced by him on 27.04.2015.
38. Accordingly, the judgment and decree dated 25/28 http://www.judis.nic.in A.S.No.228 of 2019 08.10.2018 passed by the learned Principal Judge, Family Court, Coimbatore in O.S.No.24 of 2015 is confirmed and consequently, the appeal suit, namely, A.S.No.228 of 2019 stands dismissed. However, there shall be no order as to costs.
12-02-2020 Index : Yes/No. Internet: Yes/No. Speaking Order/Non-Speaking Order Svn 26/28 http://www.judis.nic.in A.S.No.228 of 2019 To The Principal Judge, Family Court, Coimbatore.
27/28 http://www.judis.nic.in A.S.No.228 of 2019 S.M.SUBRAMANIAM, J.
Svn A.S.No.228 of 2019 12-02-2020 28/28 http://www.judis.nic.in