Madras High Court
P.Jothimani vs M.Pughazhenthi on 21 October, 2019
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
C.M.S.A.Nos.26 of 2017 and 29 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 21.10.2019
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.M.S.A.Nos.26 of 2017 and 29 of 2018
and C.M.P.No.19847 of 2017 in C.M.S.A.Nos.26 of 2017
P.Jothimani ... Appellant in both the appeals
Vs.
M.Pughazhenthi ... Respondent in both the appeals
Civil Miscellaneous Appeals are filed under Section 100 of Code of
Civil Procedure r/w Section 28(1) of Hindu Marriage Act to set aside
Judgment and decree passed by the learned Principal District Judge,
Namakkal dated 07.06.2017 made in C.M.A.Nos.6 and 5 of 2015
respectively reversing the Judgment and Decree passed by the learned
Subordinate Judge, Rasipuram made in H.M.O.P.Nos.14 and 1 of 2013
and 2012 respectively dated 20.04.2015 and to allow the present appeals.
For Appellant : Mr.Ravichandran
Mr.Sundaresan
For Respondent : Mr.V.Karthikeyan for
Mr.V.Nicholas
1/26
http://www.judis.nic.in
C.M.S.A.Nos.26 of 2017 and 29 of 2018
COMMON JUDGMENT
Since the issues involved in these appeals are interlinked, they are taken up together and a common Judgment is being passed.
2. Initially, the respondent/husband has filed H.M.O.P.No.1204 of 2011 under Section 13(1)(i-a)(i-b) of Hindu Marriage Act before the Family Court, Coimbatore for divorce on the ground of cruelty and desertion. Thereafter, as per the orders of this Court in Tr.C.M.P. No.47 of 2012 on 15.03.2012, it was transferred to the Sub Court, Rasipuram and renumbered as H.M.O.P.No.14 of 2013. The appellant / wife has filed H.M.O.P.No.1 of 2012 under Section 9 of Hindu Marriage Act before the Sub Court, Rasipuram for Restitution of Conjugal Rights.
3. On 20.04.2015, the trial court has passed common order in both the petitions, viz., in H.M.O.P.No.1 of 2012, the prayer of the respondent/wife, for restitution of conjugal rights was allowed by directing the appellant / wife and the respondent / husband to live together as husband and wife. The H.M.O.P.No.14 of 2013 filed by the husband for grant of divorce was dismissed. As against the said order, the appellant / husband has filed C.M.A.No.5 of 2015 against O.P.No.1 of 2012, wherein 2/26 http://www.judis.nic.in C.M.S.A.Nos.26 of 2017 and 29 of 2018 restitution of conjugal rights was negatived and C.M.A.No.6 of 2015 was filed against H.M.O.P.No.14 of 2013, wherein the grant of divorce was ordered, thereby the marriage held on 22.10.2007 was dissolved. Aggrieved against the said common order, the appellant/wife has preferred these appeals.
4. The case of the appellant/wife is that she got married to the respondent on 22.10.2007 at Sri Thanthondeeswarar temple at Coimbatore as per Hindu Rites and Customs and her parents had given 32 sovereigns of gold; all the house hold articles; 3 sovereigns of gold to the respondent and Rs.40,000/- as cash. After the marriage, both of them were living at Singapore and a boy child was born. Later, the respondent came back to India along with the appellant and left her at her parents house in the month of April, 2010 and after six months, the respondent had started his own business at Coimbatore. In the said business, all the family members were made as partners. The family members of the respondent / husband used to torture the appellant for various reasons and they were trying to separate both the parties. The respondent has filed H.M.P.No.204 of 2011 for divorce before the Family Court, Coimbatore, when he came and left the appellant at Coimbatore in the year 2010, further, the appellant was 3/26 http://www.judis.nic.in C.M.S.A.Nos.26 of 2017 and 29 of 2018 not aware of the reason as to why the respondent has filed a petition for divorce and she has filed a petition for restitution of conjugal rights.
5. The respondent / husband in his petition for divorce has stated that they did not demand any jewels, dowry or house hold articles from the appellant and they themselves had given 32 sovereigns of gold and marriage expenses were borne by the respondent. After 10 days of marriage, they proceeded to Singapore and while residing at Singapore, the appellant used to nag the husband and started interfering in his business matters. The appellant had enquired who are all the business partners and she never used to be a loving and affectionate wife and she used to be rude and quarrel with him always. Due to the mental agony, the respondent was feeling depressed. The appellant started suspecting the respondent's character and she also claimed that her husband has purchased car for his sister by paying an amount of Rs.7,00,000/- and quarreled with him. The appellant was also on the presumption that the respondent's sister and sister's husband and the respondent's brother all are doing business jointly. However, they had no connection with the respondent, but the appellant had been complaining about the same and 4/26 http://www.judis.nic.in C.M.S.A.Nos.26 of 2017 and 29 of 2018 started quarreling with the respondent. Inspite of the repeated assurances, he never had any hesitation and went on in his own way and the respondent with no other way, came to India on 23.01.2009, left the appellant and went to Singapore and worked there for five months. Thereafter, came back to Chennai and started his own business in Coimbatore. He also let out his premises to his brother and sister and they were also carrying on their business in the same place. When the appellant became pregnant, the respondent used to take care of her with affection and care. After delivery, the appellant refused to come to the respondent's house by stating that only when the respondent removed his sister and brother from partnership, she will come and live with him. The appellant has stated the same as her condition for arriving at matrimonial house. Due to her unparliamentary words, the respondent returned all the jewels given by the appellant / wife and he had insisted to come and live with him, but the appellant's parents had categorically stated that only because he was working in Singapore, they have given their daughter for marriage and if he is going to live in India, they do not want to send their daughter. Only after such statement by the appellant's parents, the respondent has sent a legal notice on 13.08.2011 for divorce and the appellant has received the same, but did not send any reply. After sending 5/26 http://www.judis.nic.in C.M.S.A.Nos.26 of 2017 and 29 of 2018 notice, some of the relatives of the appellant came and threatened the respondent herein.
6. After hearing both the sides, the trial court has come to the conclusion that within a year from the date of birth of the child, immediately, the respondent / husband has filed a petition for divorce and he has not raised any proper grounds to show that the appellant / wife on her own living separately with her parents. The trial court proceeded to state that when a wife seeks for a separate house for their living, it cannot be said that it is the greediness of the wife to seek so, hence the learned Subordinate Judge, Rasipuram, allowed the petition of the wife, viz., restitution of conjugal rights was ordered. Aggrieved against the same, the respondent/husband has preferred C.M.A.Nos. 5 and 6 of 2015 before the learned Principal District Judge, Namakkal.
7. The lower Appellate Court, viz., the learned Principal District Judge, Namakkal has considered the issues, the trial court Judgment and has stated that the trial court has not approached the case in a proper perspective and has come to the erroneous conclusion. The H.M.O.P.No. 14 of 2013 was filed for divorce on the ground of cruelty and desertion, but 6/26 http://www.judis.nic.in C.M.S.A.Nos.26 of 2017 and 29 of 2018 the appellant / wife had intentionally refused to give marital consortium to husband for more than several years, but the fact of separation was not discussed in the lower court's Judgment.
8. The lower appellate Court in its Judgment had proceed to state that the appellant / wife had inflicted cruelty and insulted the respondent in front of others, but the same was not considered by the lower court and the appellant / wife was always nagging the respondent by suspecting and assassinating his character and conduct, hence it amounts to cruelty, therefore, the appellant has bad intention and misbehavior. The respondent's character has been shown in a bad shape by the lower appellate court stating that the restitution of conjugal rights was filed only to cheat the husband and as well as the appellate court also. The appellant and her family members are interested only at the income of the respondent / husband and they have isolated the respondent from his family members with regard to his business. Hence he has lost concentration in running business and heavy loss has been suffered by him and due to this, the respondent has suffered physically and mentally. Also, the first abortion was without the knowledge and consent of the respondent and this attitude of the appellant has put the respondent / husband in 7/26 http://www.judis.nic.in C.M.S.A.Nos.26 of 2017 and 29 of 2018 dejection mood and the respondent was not able to control the appellant/wife's unnatural behaviour. But, due to the said cruelty, he lost his business and purposely he was avoided to see his one year old son.
9. Apart from the above, the lower appellate court has stated that the appellant /wife being a doctor and she is from a rich family, the respondent was afraid to approach the appellant/wife even in day to day affairs, but the lower court has not appreciated the respondent's miserable life. However, proceeded to grant the prayer for restitution of conjugal rights. Before the lower appellate Court, the appellant / wife has submitted that there was no reason to believe that she has inflicted cruelty on her husband. The respondent was earning Rs.2 lakhs as salary in Singapore per month and after returning to his native, he started his business along with his brother and sister. The P.W.2's [who is the relative of the respondent/husband and has been for compromise between the parties] statement was considered by the lower appellate court, who would state that only because the respondent was living and working in Singapore, the appellant's parents wanted to marry the respondent for their daughter and if he was living in Coimbatore, they would not have given their daughter in marriage. He further deposed that on the appellant's side, they have stated that all the properties have to be transferred into the appellant/wife's 8/26 http://www.judis.nic.in C.M.S.A.Nos.26 of 2017 and 29 of 2018 name and the respondent/husband's brother and sister has to vacate the said premises and business, further they also wanted the appellant and the respondent to be as a separate family and only if these things would happen, the appellant's parents would send their daughter to matrimonial home, otherwise the appellant's parents will not send their daughter to matrimonial home. The appellant/wife also in her cross examination has stated that the word given by the panchayat people stating that the respondent/husband's brother and sister have to leave the company and the husband and wife have to do business separately, was not agreed upon by the respondent / husband, he left the appellant and after that, he did not turned up. So the Lower appellate court has come to the conclusion that only the wife was insisting upon the respondent to get separated from the family members that too only on monetary consideration and the appellant wanted the respondent to leave all his family members and live with her as a separate family and this act amounts to cruelty and will attract Section 13 (1)(a)(1) of Hindu Marriage Act,1955 and granted divorce. As against the same, the appellant/ wife is before this Court.
10. The learned counsel for the appellant submitted that the lower 9/26 http://www.judis.nic.in C.M.S.A.Nos.26 of 2017 and 29 of 2018 appellate Court has not properly appreciated the evidence on record and failed to take into consideration the evidence of the appellant. Further, he would contend that while the appellant was living with the respondent, the parents of the respondent have treated the appellant very cruelly and tortured her mentally and physically and the appellant was always ready and willing to live with the respondent, but the respondent was very adamant and during cross examination, he had stated that 'at the Coimbatore Court there was a mediation talk and at that time, he had deposed that he cannot live with the appellant and also stated that there is no torture from the appellant', however, the same was not taken note of by the lower appellate court.
11. The learned counsel for the appellant contends that the lower appellate court has taken note of the evidence of P.W.2, wherein he had also deposed that 'he knew the problems between the appellant and respondent through hearsay' however, the lower appellate court has not considered the same and erroneously passed judgment against the appellant. Therefore, he prays to set aside the Judgment of the lower appellate Court.
12. The learned counsel for the appellant in support of his 10/26 http://www.judis.nic.in C.M.S.A.Nos.26 of 2017 and 29 of 2018 contentions, has relied on the Division Bench Judgment of this Court reported in 2010 (22) R.C.R.(Civil) 817 [Venkatasubramani V. Sreemathy] wherein it is held that 'wife had offered to return to matrimonial home provided that the husband set up separate residence, offer of the wife was a bonafide, nothing on record to hold that she had declared to bring the marriage permanently to an end, further held that it was unfair for the appellant to insist upon the wife to give consent for second marriage. There was no intentional desertion on the part of the respondent wife, insistence by the respondent for setting up separate resident is no ground for grant of divorce, no interference called for in the finding of the trial court and appeal of the husband was dismissed.'
13. The learned counsel for the appellant relies on the Division Bench Judgment of this Court reported in (2010) 3 MLJ 561 [S.Valli V. N.Rajendran] wherein it is held that 'Mere Bickerings in marital life cannot be a ground for cruelty'
14. Heard the learned counsel for the respondent on the submissions of the learned counsel for the appellant. He has also relied on the Judgment of Hon'ble Supreme Court reported in (2016) 9 Supreme 11/26 http://www.judis.nic.in C.M.S.A.Nos.26 of 2017 and 29 of 2018 Court Cases 4 [Narendra V. K.Meena] wherein at paragraph nos.10 to 19 it is held as follows:
'10. With regard to the allegations of cruelty levelled by the Appellant, we are in agreement with the findings of the trial Court. First of all, let us look at the incident with regard to an attempt to commit suicide by the Respondent. Upon perusal of the evidence of the witnesses, the findings arrived at by the trial Court to the effect that the Respondent wife had locked herself in the bathroom and had poured kerosene on herself so as to commit suicide, are not in dispute. Fortunately for the Appellant, because of the noise and disturbance, even the neighbours of the Appellant rushed to help and the door of the bathroom was broken open and the Respondent was saved. Had she been successful in her attempt to commit suicide, then one can foresee the consequences and the plight of the Appellant because in that event the Appellant would have been put to immense difficulties because of the legal provisions.
11. We feel that there was no fault on the part of the Appellant nor was there any reason for the Respondent wife to make an attempt to commit suicide. No husband would ever be comfortable with or tolerate such an act by his wife and if the wife succeeds in committing suicide, then one can imagine how a poor husband would get entangled into the clutches of law, which would virtually ruin his sanity, peace of mind, career and probably his entire life. The mere idea with regard to facing legal consequences would put a husband under tremendous 12/26 http://www.judis.nic.in C.M.S.A.Nos.26 of 2017 and 29 of 2018 stress. The thought itself is distressing. Such a mental cruelty could not have been taken lightly by the High Court. In our opinion, only this one event was sufficient for the Appellant husband to get a decree of divorce on the ground of cruelty. It is needless to add that such threats or acts constitute cruelty.
Our aforesaid view is fortified by a decision of this Court in the case of Pankaj Mahajan v. Dimple @ Kajal (2011) 12 SCC 1, wherein it has been held that giving repeated threats to commit suicide amounts to cruelty.
11. The Respondent wife wanted the Appellant to get separated from his family. The evidence shows that the family was virtually maintained from the income of the Appellant husband. It is not a common practice or desirable culture for a Hindu son in India to get separated from the parents upon getting married at the instance of the wife, especially when the son is the only earning member in the family. A son, brought up and given education by his parents, has a moral and legal obligation to take care and maintain the parents, when they become old and when they have either no income or have a meagre income. In India, generally people do not subscribe to the western thought, where, upon getting married or attaining majority, the son gets separated from the family. In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason, she would never insist that her 13/26 http://www.judis.nic.in C.M.S.A.Nos.26 of 2017 and 29 of 2018 husband should get separated from the family and live only with her.
13. In the instant case, upon appreciation of the evidence, the trial Court came to the conclusion that merely for monetary considerations, the Respondent wife wanted to get her husband separated from his family. The averment of the Respondent was to the effect that the income of the Appellant was also spent for maintaining his family. The said grievance of the Respondent is absolutely unjustified. A son maintaining his parents is absolutely normal in Indian culture and ethos. There is no other reason for which the Respondent wanted the Appellant to be separated from the family - the sole reason was to enjoy the income of the Appellant. Unfortunately, the High Court considered this to be a justifiable reason.
14. In the opinion of the High Court, the wife had a legitimate expectation to see that the income of her husband is used for her and not for the family members of the Respondent husband. We do not see any reason to justify the said view of the High Court. As stated hereinabove, in a Hindu society, it is a pious obligation of the son to maintain the parents. If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that and in this case, we do not find any justifiable reason, except monetary consideration of the Respondent wife. In our opinion, normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income. The 14/26 http://www.judis.nic.in C.M.S.A.Nos.26 of 2017 and 29 of 2018 persistent effort of the Respondent wife to constrain the Appellant to be separated from the family would be torturous for the husband and in our opinion, the trial Court was right when it came to the conclusion that this constitutes an act of ‘cruelty’.
15. With regard to the allegations about an extra-marital affair with maid named Kamla, the re-appreciation of the evidence by the High Court does not appear to be correct. There is sufficient evidence to the effect that there was no maid named Kamla working at the residence of the Appellant. Some averment with regard to some relative has been relied upon by the High Court to come to a conclusion that there was a lady named Kamla but the High Court has ignored the fact that the Respondent wife had levelled allegations with regard to an extra-marital affair of the Appellant with the maid and not with someone else. Even if there was some relative named Kamla, who might have visited the Appellant, there is nothing to substantiate the allegations levelled by the Respondent with regard to an extra-marital affair. True, it is very difficult to establish such allegations but at the same time, it is equally true that to suffer an allegation pertaining to one’s character of having an extra-marital affair is quite torturous for any person – be it a husband or a wife.
16. We have carefully gone through the evidence but we could not find any reliable evidence to show that the Appellant had an extra-marital affair with someone. Except for the baseless and reckless allegations, there is not even the slightest evidence that would suggest that there was something 15/26 http://www.judis.nic.in C.M.S.A.Nos.26 of 2017 and 29 of 2018 like an affair of the Appellant with the maid named by the Respondent. We consider levelling of absolutely false allegations and that too, with regard to an extra-marital life to be quite serious and that can surely be a cause for metal cruelty.
17. This Court, in the case of Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, 2003 (6) SCC 334 has held as under:-
“7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the 16/26 http://www.judis.nic.in C.M.S.A.Nos.26 of 2017 and 29 of 2018 findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.”
18. Applying the said ratio to the facts of this case, we are inclined to hold that the unsubstantiated allegations levelled by the Respondent wife and the threats and attempt to commit suicide by her amounted to mental cruelty and therefore, the marriage deserves to be dissolved by a decree of divorce on the ground stated in Section 13(1)(ia) of the Act.
19. Taking an overall view of the entire evidence and the judgment delivered by the trial Court, we firmly believe that there was no need to take a different view than the one taken by the trial Court. The behaviour of the Respondent wife appears to be terrifying and horrible. One would find it difficult to live with such a person with tranquility and peace of mind. Such torture would adversely affect the life of the husband. It is also not in dispute that the Respondent wife had left the matrimonial house on 12th July, 1995 i.e. more than 20 years back. Though not on record, the learned counsel submitted that till today, the Respondent wife is not staying with the Appellant. The daughter of the Appellant and Respondent has also grown 17/26 http://www.judis.nic.in C.M.S.A.Nos.26 of 2017 and 29 of 2018 up and according to the learned counsel, she is working in an IT company. We have no reason to disbelieve the aforestated facts because with the passage of time, the daughter must have grown up and the separation of the Appellant and the wife must have also become normal for her and therefore, at this juncture it would not be proper to bring them together, especially when the Appellant husband was treated so cruelly by the Respondent wife'.
15. It is seen that only due to money dispute, the basic problem arose between the parties. As stated by the respondent / husband, the financial status of both the parties are different and from the statement of the respondent / husband, it could be seen that the appellant/wife is a Doctor hailing from a well off family. The respondent was working in a company at Singapore and with the fond hope that the appellant will reside in Singapore, she had married the respondent. The first pregnancy was aborted, but there is no proof provided to show that she has wantonly done the same and thereafter, a boy child was born. After the delivery, the appellant was residing at Chennai and the respondent has not taken his wife back to Singapore. The appellant / wife's statement is that the respondent/husband's family members were ill treating her from the date of marriage. The appellant's sister was already married and at that time, the 18/26 http://www.judis.nic.in C.M.S.A.Nos.26 of 2017 and 29 of 2018 appellant was living with the respondent/husband. The company, viz., J B D Machinery was taken care by the respondent and respondent's family members and J B D Industries was taken care by the respondent and the same was not known to appellant. The appellant had stated in her proof affidavit that she never intended to separate the family members from her husband and her husband only had filed a petition in the year 2011 for divorce and only after two years she has filed a petition for restitution of conjugal rights. The J B D Industries also went on loss and the appellant did not think about the profit and the money, which was earned by the respondent. The statement of appellant's parents that they have given their daughter for marriage only because the respondent was working in Singapore, was denied by the appellant. Further, she denied all the allegations stated by the respondent/ husband.
16. There is no evidence shown by the respondent/ husband that the appellant/wife always wanted the respondent to be separated from his family. The appellant has been living separately from her husband/respondent from the year 2010 onwards and no such material evidence has been produced to show that she wanted to join as a partner in the firm. Further, the appellant has stated that the panchayatdars has 19/26 http://www.judis.nic.in C.M.S.A.Nos.26 of 2017 and 29 of 2018 given an advice, which was not accepted by the respondent/ husband and after that, he did not turn up. The Lower court has come to the conclusion that it is not the common practice or desirable practice for Hindu's son in India to get separated from the parents upon being getting married at the instance of the wife, especially when the son is the only earning member of the family. But, here, it is not the case, as the respondent / husband's brother, sister, all are having similar industries and they are operating the same. Normally, a son is brought up by his parents with a moral obligation to take care and maintain his parents when they become old, because they have no other income to maintain themselves. But, in the present case, no materials have been produced to show that the respondent / husband's family members or parents were not able to maintain themselves or having only meager income. The appellant, being a Doctor, out of personal interest would have enquired who are all the partners in the business and if she wanted her husband to have a separate business concern, she would have asked him to take her also as a partner and there is nothing wrong in asking her husband to make her also as a partner. There is no proof also produced by the respondent / husband to show that the appellant/wife had taken steps to separate the respondent from his family for monetary considerations.
20/26 http://www.judis.nic.in C.M.S.A.Nos.26 of 2017 and 29 of 2018
17. The mental torture given by the appellant / wife has not been proved by any evidence. The appellant / wife is living separately for two years, the order of the lower appellate Court by setting aside the trail court's order is wrong, because in the year 2010 only, the appellant/wife came to India and in the year 2011, the respondent/ husband has filed a petition for divorce. The issuance of legal notice for divorce by the respondent /husband and the non-reply by the respondent/wife do not amount to, as if, she has accepted all the statements of the legal notice. The appellant has submitted that she wanted to live along with the respondent and her son and she does not have any intention to be separated from her husband. The respondent / husband's submission that he has lost all the money while doing business and the same is due to the cruelty created by the appellant/wife, do not sound good. In Singapore, the respondent was earning Rs.2 Lakhs and later point of time, he had invested all the money in his business and blaming the wife that he could not concentrate in his business and the same has caused loss in his business is not proved. The averment that in the year 2011 itself, he had asked the respondent's parents to send their daughter to matrimonial house, who in turn, have refused and had stated that only because he was 21/26 http://www.judis.nic.in C.M.S.A.Nos.26 of 2017 and 29 of 2018 living in Singapore, they had given their daughter in marriage, is not acceptable, because only in the year 2010 to 2011, the respondent / husband has started his business and if any loss has occurred to him due to various reasons, he cannot contend that due to the mental agony caused by the appellant/wife, he has suffered loss. The respondent/ husband has filed a divorce petition on the ground of cruelty and desertion and for that, he ought to have shown causes of mental agony induced by the appellant/wife. In the year 2011 itself, alleged panchayat has been convened, i.e., on 29.07.2011, on that day, he left the house of the wife and did not turned up. In the absence of any valid material that the wife has committed cruelty, the issue is decided in favour of the appellant/wife.
18. The respondent's contention that he has undergone mental torture due to the appellant/wife's unnatural behavior and cruelty, therefore, cannot do the business properly and due to that he fell down from the upstairs, suffered heavily and broke his leg, is also not an acceptable reason for causing cruelty by this Court for granting divorce. The allegations that the appellant/wife was spreading rumors about the 22/26 http://www.judis.nic.in C.M.S.A.Nos.26 of 2017 and 29 of 2018 respondent/husband's character and business status, due to which, there was a mental agony, was not proved by letting in any evidence. When there is no specific evidence stating that these acts created and caused mental agony, cruelty against the person, the divorce cannot be granted on that ground. The mere small trivial issues arising between the husband and wife regarding their expectations for future life, cannot be termed as a 'cruelty' caused by the wife.
19. The respondent/ husband's admission that there was a panchayat held on 29.07.2011 would show that he was in touch with the wife's family and the question of desertion does not arise. Insofar as the plea raised by the respondent / husband regarding visitation of the child, there is no petition filed by the husband seeking for visitation rights or guardianship. In view of the same, there is no proof to show that he had really had any intention to reunite with the appellant/wife. Always the respondent / husband had passed allegations against the appellant / wife, however, at the time of marriage itself, he was well aware that the wife is a qualified Doctor and she is also from a well off family, hence the appellant/wife is also aware of all the current situations in the business and she would have thought it fit to have their own business venture, the same 23/26 http://www.judis.nic.in C.M.S.A.Nos.26 of 2017 and 29 of 2018 cannot be termed that she had caused cruelty in asking to remove the brother and sister from the partnership. If at all the respondent's sister and brother are doing the separate business, as per the statement of the appellant / husband, then, he need not have worried about the same, he could have told to the appellant / wife that they are not partners in the business and that he is doing separate business, which would have given full stop to all these problems, instead, the respondent / husband has dragged the matter to this level. It is also clear that the appellant and the respondent have fought for all the small issues and they have not thought about the small son born to them, who will lose the affection of the parents and only if parents are living together, children will live happily and if they are separated, the mental trauma undergone by the child cannot be measured by words.
For all the above stated reasons, the present Civil Miscellaneous Second Appeals are Allowed and the common Judgment and Decree passed by the learned Principal District Judge, Namakkal dated 07.06.2017 made in C.M.A.Nos.6 and 5 of 2015 respectively is set aside and the Judgment and Decree passed by the learned Subordinate Judge, 24/26 http://www.judis.nic.in C.M.S.A.Nos.26 of 2017 and 29 of 2018 Rasipuram made in H.M.O.P.No.14 of 2013 and H.M.O.P.No. 1 of 2013 dated 20.04.2015 is confirmed. Consequently, connected miscellaneous petition is closed. No costs.
21.10.2019 Index : Yes/No Internet : Yes/No Speaking /Non-Speaking Judgment ssd To
1. The learned Principal District Judge, Namakkal
2. The learned Subordinate Judge, Rasipuram
3. The Section Officer, VR Section, Madras High Court, Chennai 25/26 http://www.judis.nic.in C.M.S.A.Nos.26 of 2017 and 29 of 2018 V.BHAVANI SUBBAROYAN, J., ssd C.M.S.A.Nos.26 of 2017 and 29 of 2018 and C.M.P.No.19847 of 2017 in C.M.S.A.Nos.26 of 2017 21.10.2019 26/26 http://www.judis.nic.in