Madras High Court
Marikani @ Dhanasekaran vs Ramalakshmi @ Kavitha on 18 June, 2018
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 18.06.2018
Pronounced on : 27.04.2018
Pronounced on : 18.06.2018
CORAM
THE HONOURABLE MR. JUSTICE M.V.MURALIDARAN
CMSA(MD)No.23 of 2009
Marikani @ Dhanasekaran .. Appellant
-Vs-
Ramalakshmi @ Kavitha .. Respondent
Prayer: This Civil Miscellaneous Second Appeal has been filed under Section
13(1), (1a) of Hindu Marriage Act and r/w. Section 100 of C.P.C., to set
aside the Fair and Decreetal order passed by the Additional District Judge/
Fast Track Court, Virudhunagar in H.M.C.M.A.No.4 of 2008 dated 26.09.2008 in
confirming the Fair and Decreetal order passed by the Sub Court, Virudhunagar
in H.M.O.P.No.50 of 2003 dated 24.10.2007 and allow this Civil Miscellaneous
Second Appeal.
!For Appellant : Mr.T.Pon Ramkumar
^For Respondent : Mr.R.Karunanithi
:ORDER
This Civil Miscellaneous Second Appeal has been filed by the appellant to set aside the Fair and Decreetal order passed by the learned Additional District Judge/Fast Track Court, Virudhunagar in H.M.C.M.A.No 4 of 2008 dated 26.09.2008 in confirming the fair and decreetal order passed by the learned Sub Court, Virudhunagar in H.M.O.P.No.50 of 2003 dated 24.10.2007.
2.The brief facts of the case is follows:
The appellant is the husband and the respondent is the wife. The marriage between the appellant and the respondent was solemnized on 19.02.1999 at Virudhunagar 24 (House) ?Manai? Telugu Chettiar Mandapam, according to Hindu Customs and Rites in the presence of their elders. After the marriage, the appellant and respondent lived at Chennai. Out of the lawful wedlock they got one girl child namely Rahini. Then after 2 years misunderstanding arose between them. The respondent was developing very small problems into very big quarrel and therefore there was frequent difference of opinions arising between them. The appellant has taken all efforts to pacify the respondent. Even then the respondent was very adamant. All the settlement efforts taken by the elders of the family failed. From 05.05.2002 onwards the respondent is living with her parents. The respondent wantonly neglected the appellant. The respondent used to behave against the appellant in an uncivilized manner for flimsy reasons. The respondent used to abuse the appellant by saying that the appellant was not a husband fit to her status and thus disrespected him in their matrimonial life. The respondent did not serve food to him and did not open the door for appellant who returned from his job and scolded the appellant in the presence of others and hence the appellant has suffered cruelty and for the above mental torture, the appellant issued a notice to the respondent on 11.11.2003 for dissolving the marriage, that took place on 19.02.1999 between them. Thereafter the appellant has filed H.M.O.P.No.50 of 2003 for divorce under Section 13(1) (i-
a) of the Hindu Marriage Act. The respondent wife filed a counter by denying the said allegations and further pleaded that the appellant and his parents demanded a sum of Rs.1,00,000/- towards dowry.
3.The appellant examined himself as P.W.1 and P.W.5 and the documents were marked on his side as Exs.P1 to P5. The respondent examined herself as R.W.1 and marked 2 documents on her side as Exs.R1 and R2.
4.The learned Subordinate Judge, Virudhunagar, considering the pleadings put forth on either side, oral and documentary evidence and submissions of the learned counsel for the parties, held that the appellant has not proved the allegation of mental cruelty and dismissed the H.M.O.P.No.50 of 2003 filed by him. Aggrieved against the said judgment and decree the appellant herein filed a First Appeal in H.M.C.M.A.No.4 of 2008 before the learned Additional District Judge/Fast Track Court, Virudhunagar. The Learned Additional District Judge/Fast Track Court, Virudhunagar by a judgment and decree dated 26.09.2008 in H.M.C.M.A.No.4 of 2008 confirmed the judgment and decree of the Learned Subordinate Judge, Virudhunagar. Aggrieved against the same the present Civil Miscellaneous Second Appeal has been filed by the appellant / husband.
5.At the time of admission of the second appeal the following substantial questions of law had been elicited by the learned counsel appearing for the appellant:-
a)Whether the 1st appellate Court is correct in deciding the appeal even without framing the issue independently in which it is mandatory under Order 41 Rule 21 of C.P.C.;
b) Whether Courts below are correct in dismissing the petition filed for divorce in which there is no possibility for reunion of petitioner and the respondent. It is needless to say that it is irretrievable break down marriage.
6.The learned counsel for the appellant referred various averments in the petition, counter statement filed by the appellant and the grounds of appeal.
7.Among the two substantial questions of law elicited by the learned counsel appearing for the appellant, the 2nd substantial question of law was framed by this Court at the time of admission. In regard to the same the entire submissions were made by the counsel for the appellant in respect of the irretrievable break down of marriage.
8.The learned counsel for the appellant submitted that mental cruelty is not defined under the Act and there is no strait-jacket definition for the same. The Hon?ble Apex court as well as this Court in catena of judgments have held that each case must be considered and decided based on its own facts and circumstances of the case to conclude whether the incidents alleged by the party amounts to mental cruelty or not. In the present case, the appellant has averred various incidents, by which, the respondent has repeatedly caused mental agony and cruelty to the appellant. The learned counsel for the appellant stated that the marriage was solemnized on 19.02.1999 and from 05.05.2002 onwards the appellant and the respondent are living separately for more than 15 years and the marriage has been broken irretrievably. The Hon?ble Apex Court and this Court in a number of judgments has chosen to grant divorce on the ground that the parties have been living separately for years together and there is no chance for reunion. This case is similar to the cases dealt by the Hon?ble Apex Court and this Court and therefore, the marriage can be dissolved on this ground also.
9.In support of his submissions, the learned counsel for the appellant relied on the following judgments:
(i) 2006 (4) SCC 558 (Naveen Kohli Vs. Neelu Kohli), wherein in paragraph 83, it has been held as follows:
?83. Even at this stage, the respondent does not want divorce by mutual consent. From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt in our minds that the respondent is bent upon treating the appellant with mental cruelty. It is abundantly clear that the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again.?
(ii) AIR 2005 3297 (Durga Prasanna Tripathy -Vs- Arundhati Tripathy), wherein in paragraphs 29 and 30, it has been held as follows:
?29. The facts and circumstances in the above three cases disclose that reunion is impossible. Our case on hand is one such. It is not in dispute that the appellant and the respondent are living away for the last 14 years. It is also true that a good part of the lives of both the parties has been consumed in this litigation. As observed by this Court, the end is not in sight. The assertion of the wife through her learned counsel at the time of hearing appears to be impractical. It is also a matter of record that dislike for each other was burning hot.
30. Before parting with this case, we think it necessary to say the following: Marriages are made in heaven. Both parties have crossed the point of no return. A workable solution is certainly not possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. We, therefore, have no other option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce. The Family Court has directed the appellant to pay a sum of Rs.50,000/- towards permanent alimony to the respondent and pursuant to such direction the appellant had deposited the amount by way of bank draft. Considering the status of parties and the economic condition of the appellant who is facing criminal prosecution and out of job and also considering the status of the wife who is employed, we feel that a further sum of Rs.1 lakh by way of permanent alimony would meet the ends of justice. This shall be paid by the appellant within 3 months from today by an account payee demand draft drawn in favour of the respondent-Arundhati Tripathy and the dissolution shall come into effect when the demand draft is drawn and furnished to the respondent.?
(iii) 2012 (2) MLJ 833 (U.Sree ?Vs- U.Srinivas), wherein in paragraph 88, it has been held as follows:
?88. In short, it would be difficult for the parties to bury the past and to begin a new relationship of Husband and Wife. For the past 15 years both parties have remained separately. During these years, they developed their own life style, remained in isolation and grown in their own thoughts. Marriage tie between the parties has become emotionally dead and the same is beyond repair because of the emotionally dead relationship which is a positive act of oppressive mental cruelty, in our considered opinion. There is no chance for both parties to live together in future. In such a context, the decree of Divorce is the only remedy to be passed, so that the parties may choose their life of their own way, when there has been no scope for their reunion?
(iv) 2010 (3) CTC 785 (Jayakumari Vs. Balachander), wherein in paragraph 30, it has been held as follows:
?30.The term ?cruelty? consists of unwarranted and unjustifiable conduct on the part of defendant causing other spouse to endure suffering and distress thereby destroying peace of mind and making living with such spouse unbearable, completely destroying real purpose and object of matrimony. It would of course be difficult to define the expression ?cruelty?. There cannot be any hard and fast rule in interpreting the same. As pointed out, the word ?cruelty? cannot be put in a strait-jacket of judicial definition. It must be judged on the facts of each case having regard to the surrounding circumstances. Whether one spouse is guilty of cruelty is essentially a question of fact and previously decided cases have little, if any, value. The term ?cruelty? is not defined in the Act. It is to be judged by taking into consideration the status of life, the standard of living, the family background and the society in which the parties are accustomed to move because particular behavior may amount to cruelty in one set of circumstances and may not be so in other set of circumstances.
10.Per contra, the learned counsel for the respondent submitted that
(i) the various allegations made by the appellant against the respondent have not been substantiated and proved; (ii) the contention of the learned counsel for the appellant that the marriage had been broken down irretrievably and therefore, the appellant is entitled to divorce, is not correct; (iii) Even today, the respondent wants to live with the appellant and lead a happy married life.
11.In support of his submissions, the learned Senior Counsel appearing for the respondent relied on following judgments:
AIR 2004 Andhra Pradesh 187, wherein it has been held as follows:
?Divorce ?husband alleging that he was subjected to mental cruelty by wife-except state that she used to pick up quarrel with him regarding setting up to separate family ? No evidence was brought on record by him ? nothing on recording to show that wife was ever cruelty to him or caused him such mental agony so as to cause reasonable apprehension in his mind that it would be the harmful or injuries to live with her ?In absence of any such evidence alleged acts would not constitute cruelty ? further mere fact that parties were living separately or wife had filed maintenance application would also not entitle him to decree of divorce.?
12.Lastly, it urged by learned counsel for the appellant that the parties have been living separately for the last 12 years and the marriage has virtually lost its meaning for them as they have reached a point of no return. She avers that there is no life in the marriage bond and that it should be dissolved for this reason. She has relied on para 26 of the Judgment in K.Srinivas Rao vs. D.A. Deepa, 2013 (2) SCALE 735, reproduced as under:-
?We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the Court?s verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the court?s decree.
25.This Court thus lacks jurisdiction to dissolve a marriage on the doctrine of ?irretrievable breakdown?.
13. CDJ 2016 DHC 1073 (Sandhya Kumari & another Vs. Manish Kumar), wherein at paragraph 21, it has been held as follows:
?21. Though irretrievable breakdown of marriage is not a ground for divorce but in the judgments reported as 2006 (2) Mh.L.J.307 Madhvi Ramesh Dudani Vs. Ramesh K.Dudani, 2007 (4) KHC 807 Shrikumar V.Unnithan vs. Manju K.Nair, (1994) 1 SCC 337 V.Bhagat vs. D. Bhagat and (2006) 4 SCC 558 Navin Kohli vs. Neelu Kohli the concept of cruelty has been blended y the Courts with irretrievable breakdown of marriage. The ratio of law which emerged from said decisions is that where there is evidence that the husband and wife indulged in mutual bickering leading to remonstration and there from to the stage where they target each other mentally, insistence by one to retain the matrimonial bond would be a relevant factor to decide on the issue of cruelty, for the reason the obvious intention of said spouse would be to continue with the marriage not to enjoy the bliss thereof but to torment and traumatized each other.?
14.The learned counsel for the appellant submitted that the appellant and the respondent were living together as husband and wife only for 3 years and there is no possibility for them to live as husband and wife and all the efforts taken by the elders of both sides have ended in vain due to the aforesaid facts of the case. The long separation also coupled with the attitude of respondent would amount to mental cruelty caused to the appellant. In order to support his arguments the learned counsel for the appellant relied on judgment of this court reported in CDJ 2017 MHC 2905 and placed much reliance on para 15,18,19 and 20.
?15. The learned counsel for the appellant by reply submitted that the appellant and the respondent were living together as husband and wife only for 5 months and there is no possibility for them to live as husband and wife, in view of the facts and circumstances of the case. The long separation coupled with the attitude of respondent would amount to mental cruelty caused to the appellant.
18.Per contra, the respondent has marked 137 documents to substantiate his case that he never caused mental cruelty. The learned Principal District Judge, considering each and every allegation made by the appellant, rejected the same holding that the appellant failed to prove the same. The learned Principal District Judge failed to consider the fact that the father of the appellant gave a complaint against the respondent and the respondent made allegations against the father of the appellant that only because of instigation of father of the appellant, the appellant had filed the petition for divorce and the father of the appellant gave a false complaint against the respondent. These allegations coupled with various averments made by the appellant would definitely amount to mental cruelty caused by the respondent.
19.The learned counsel for the appellant contended that divorce can be granted on the ground of irretrievable break down of marriage as per judgments of the Hon?ble Apex Court. This contention is untenable. The Hon?ble Apex Court has granted divorce on that ground exercising its extraordinary power under Article 142 of the Constitution of India. The said power is not available to this Court or to the Trial Court. In the subsequent judgments, the Hon?ble Apex Court held that the earlier judgment, granting divorce on the ground of irretrievable broken down cannot be taken as precedent. It is pertinent to note that the respondent obtained a decree of restitution of conjugal rights. There is nothing on record to show that after obtaining decree, he took steps to make the appellant to live with him as his wife. He has not filed any E.P. as per Order 21 Rule 32 Civil Procedure Code. Where a person, who suffered a decree of restitution of conjugal rights has willfully failed to obey the decree, the person, who obtained decree can enforce the same y attachment of his or her property. In the circumstances, the fact that the appellant and the respondent are living separately for more than 10 years and the attitude of the respondent even after obtaining a decree of restitution of conjugal rights has not taken steps to enforce the same, but insisting on retaining matrimonial bond would amount to causing mental cruelty and the torment and traumatized the appellant. This has been held so by the Delhi High Court in the judgment reported in 2016 (O) Supreme (Del.) 3869 and the Hon?ble Apex Court in the judgment reported in 2006 (4) SCC 558 (cited supra).
20. The ratio laid down in the said judgments are squarely applicable to the facts of the present case. The insistence of the respondent to continue the matrimonial tie even though he is fully aware that there is no possibility of re-union and living together as husband and wife, amounts to causing mental cruelty to the appellant.?
15.Further the Learned counsel for the appellant relied upon the on judgement of Hon?ble Division Bench of this court reported in CDJ 2017 MHC 6040 wherein in para 15 and 16 it held as follows:
?15.Further it is to be seen that the parties have been living separately for more than 10 years. On a perusal of the records and deposition of the appellant as well as the respondent coupled with the fact that the marriage between the appellant and the respondent took place on 03/04/2007 dispute arose between them within three months of marriage, M.C.no.58 /2009 was filed on the file of the Judicial Magistrate, Erode on 8. 10.2009 and during the pendency of the M.C.No. 58 /2009 and thereafter, steps had been taken by the respondent/husband to join to her in matrimonial home filed and that the appellant had filed H.M.O.P.No. 72 of 2010 on the file of the ii additional Sub -Judge, erode under section 9 of the Hindu Marriage Act, for restitution of conjugal rights on 09/03/2010 and the same was ordered on 13/12/2010 and H.M.O.P.No. 224 of 2014 for diverse was filed on 25/07/2013, after six-years of marriage and after completion of trial of the Family Court has granted diverse on 14/11/2016 and the appeal has been filed on 02/01/2017 and till today the parties are living separately. The parties have been litigating for more than 10 years. In respect of cruelty that husband had let in evidence that he was elected in treated and the is also admitted case of the wife that there was dispute between them within three months from the date of my marriage. Hence we find that there is no possibility for reunion between the appellant and the respondent due to the long period of separation and the matrimonial bond has broken beyond repair as evidenced and thus killing upon the judgement of Samar Ghosh, the family court had held that the husband had made out a case for divorse and had allowed the petition granting divorse dissolving the marriage between the appellant and the respondent dated 30/04/2007.
16. Further the family court has also held that in spite of several efforts taken by the respondent/respondent for reunion and orders being passed by the family court allowing the petition for restitution of conjugal rights, the appellant/wife had refused to join with him. The respondents last husband had also approached the police by giving a petition to the police to give effect of the said order wherein the police had advised the appellant/wife to join the respondents last husband and even then appellant/wife had not joined the respondents last husband and thereby allowed the petition on the ground of desertion too.?
16.I have carefully considered the submissions made by Mr.T.Pon Ramkumar learned counsel for the appellant and Mr.R.Karunanithi, learned counsel for the respondent and on perusal of the records and the present state of mind of the parties as the dispute involved is between the parties to the marriage, I allow this appeal for the following reasons:-
As rightly pointed out by the counsel for the appellant the term ?Mental Cruelty? does not have a proper shape and it differs from case to case and the same has to be put on consideration individually. Hence when the same is being done and taken for consideration in the present case , the respondent and the appellant are living separately for the past 12 years. Moreover if the respondent had been willing to live with the appellant as submitted by her, she would have taken strenuous efforts for reunion instead of litigating before the court for long years. This factual aspects are supported by the judgments relied on by the counsel appearing for the appellant and the dictums laid down have considerable force for allowing this appeal. Like wise the appellant and the respondent are living separately for the past 12 years. Hence it can easily arrived and concluded that they are not ready and willing to bury their past and live happily as husband and wife. For the said reason this court feels that the marriage between the appellant and the respondent has irretrievably broken and there is no chance of reunion between the parties.
During the course of arguments , the learned counsel for the respondent submitted that the interim maintenance awarded by the Sub court , Virudhunagar has been complied with by the appellant and sought permission for withdrawing the same. In regard to the same , the learned counsel appearing for the appellant has chosen to give consent for withdrawing the amount and the same is also recorded by this Honorable court. Further more, this Honorable court directs the appellant to continue depositing the amount in compliance with the order passed by the Sub-Court, Virudhunagar in consonance with the Hindu Marriage Act and Family Courts Act.
17.In the result:
(a) this Civil Miscellaneous Appeal is allowed. The judgment and decree in H.M.C.M.A.No 4 of 2008 dated 26.09.2008 passed by the learned Additional District Judge/ Fast Track Court, Virudhunagar, confirming the order in H.M.O.P.No.50 of 2003 dated 24.10.2007 passed by the learned Sub Court, Virudhunagar and the petition in H.M.O.P.No.50 of 2003 filed by the appellant for divorce, is allowed;
(b) the respondent is permitted to withdraw the maintenance amount deposited by the appellant before the learned Subordinate Court, Virudhunagar;
(c) the appellant shall continue to pay the interim maintenance to the respondent as ordered by the learned Subordinate Court , Virudhunagar;
(d) There shall be no order as to costs .
Note:Issue order copy on 22.06.2018 To
1.The Additional District Judge/ Fast Track Court, Virudhunagar.
2.The Sub Court, Virudhunagar.
.