Madras High Court
R.Suganya vs T.Hari on 6 July, 2018
Bench: K.Ravichandrabaabu, T.Krishnavalli
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reservation: 06.07.2018
Date of Judgment: 03.08.2018
DATED: 03.08.2018
CORAM
THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU
and
THE HONOURABLE MRS.JUSTICE T.KRISHNAVALLI
C.M.A(MD)No.65 of 2018
and
CMP(MD)No.1022 of 2018
R.Suganya : Appellant/Respondent/
Wife
Vs.
T.Hari :
Respondent/Petitioner/
Husband
PRAYER:- Civil Miscellaneous Appeal filed under Section 19 of the
Family Court Act, 1984 against the order of the Family Court, Madurai, made
in HMOP No.556 of 2014, dated 10.01.2018.
!For Appellant : Mrs.R.Suganya
(Party-in-
person)
^For Respondent : Mr.R.Dinakaran
:JUDGMENT
(Judgment of the court was delivered by T.KRISHNAVALLI,J) This appeal is preferred against the order and decree, dated 10.01.2018 made in HMOP No.556 of 2005 on the file of the Family Court, Madurai.
2.The respondent in the Original Petition is the appellant. For the sake of convenience, in this judgment, the parties are referred to as arrayed in the Original Petition.
3.The case of the respondent/husband is that the respondent/husband got married to the appellant/wife on 05.03.2012 at Madurai according to Hindu rites and Customs and started their matrimonial life at Chennai and she is always suspicious about his character and conduct and tortured him during night. The appellant/wife is always complaining about the non-birth of the child and also to the non-availment of the housing loan and also not providing comforts, such as Air Conditioner and other luxurious items. On that pretext, she used to quarrel with him. The family members of the appellant/wife are also doing their part in the form of abuse and torture and they continue to cause mental agony. The brother of the appellant/wife and her mother often came down to Chennai and behaved in unruly manner and started blackmailing him, which also caused mental agony and on one occasion, the appellant/wife herein had gone to the extreme step of committing suicide for the reasons best known to her and the parents of the appellant/wife came to Chennai and also made an attempt to attack him, which resulted in lodging a police complaint. In the police station, there was a mediation and both of them were advised to continue their matrimonial life and even then, the appellant/wife did not choose to mend her behavior and attitude. Thus, according to the respondent/husband, the conduct of the appellant/wife had caused immense mental agony and without any justifiable or reasonable cause, she left the matrimonial home and when he made an attempt to bring her back to the matrimonial home, he was beaten by her family members and therefore, alleging mental cruelty, the respondent/husband filed a petition for divorce.
4.The appellant/wife, who was arrayed as the respondent denied the allegations and would contend that for the purpose of filing the petition for divorce, the respondent/husband had deliberately suppressed and gave the wrong address and alleging illness, she was compelled to take certain medicines and she refused to take the same and it is always the habit of the family members of the respondent/husband to cause mental torture and that apart, the respondent/husband is also guilty of suppression of life about his sister-Veeralakshmi and her daughter Priyadharshini. It is further contended that her husband had also lodged a false complaint on 06.03.2013, 07.03.2013 and 17.04.2014 and thereafter, not chosen to press the said complaint.
5.The learned Family Court, Judge, Madurai, after perusing the materials available on record, both oral and documentary, has granted decree of divorce, in HMOP No.556 of 2014, dated 10.01.2018. Aggrieved over the said order, the appellant/wife is before this court.
6.Heard both sides and perused the materials available on record.
7.It is admitted by both sides that the marriage between the accused/wife and the respondent/husband solemnized on 05.03.2012 at Madurai Krishnasamy Temple as per the Hindu Rites and Ceremonies. The respondent/husband filed HMOP No.556 of 2014 for divorce on the ground of cruelty. The husband is the petitioner in HMOP No.556 of 2014 and he was examined as PW1.
8.PW1 stated during his evidence that his wife had suspected his character and for non-availment of Air conditioner in the house and availment of housing loan, his wife picked up quarrel with him and the appellant/wife and her family members drove the mother of the respondent/husband, who is suffering from Cancer and when it was questioned by him, his wife attempted to commit suicide and hence, he gave complaint to the police. The copy of the complaint given by the respondent/husband was marked as Ex.P11.
9.On perusal of Ex.P11 complaint, dated 06.03.2013, it is stated that the appellant/wife and her relatives came and tortured and his wife suspected his character and insulted his relatives and it caused mental agony and his relatives advised his wife, but she insulted them and hence, he gave Ex.P11 complaint to the police on 06.03.2013. The above complaint was not denied by the appellant/wife. Further, the respondent/husband stated that on the basis of the complaint, police called his wife and her parents and advised his wife to live with him. But the appellant/wife opposed the above contention stating that the police had compelled her to settle the matter and only on the compulsion of the police, she signed in the compromise recorded in the police station. For the compulsion by the police to sign in the compromise recorded in the police station, no complaint was given by the appellant/wife to the superior official of the police officials, who compelled her to sign in the compromise.
10.It is seen from the records that the appellant/wife filed MC No.113 of 2014 seeking maintenance. But in the above case, she has stated that her husband gave complaint on 06.03.2013 and police advised for reunion and on the basis of the advise given by the police, she went to her matrimonial home. Hence, the evidence of RW1 stating that only by the compulsion of the police, she signed in the compromise arrived at in the police station in respect of Ex.P11 is not correct.
11.Further, the appellant/wife stated during her evidence stated that her husband on 05.03.2013 subjected her to cruelty and one mid night, her husband drove her out and it was witnessed by the night watch-man, who was standing adjacent to her house. But the appellant/wife has not given any complaint to the police in respect of the above occurrence. To prove the alleged incident, no evidence was adduced on the side of the appellant/wife. Further, the watchman, who is said to have seen the alleged occurrence was not examined in this case. Hence, the evidence of RW1 stating that her husband subjected her to cruelty and drove her out on 05.03.2013 is not believable.
12.It is argued by the appellant/wife that mere trivial irritations and quarrels between the spouses which happen in day-to-day marriage life may not amount to cruelty and petty quibbles and trifling differences should not be exaggerated and magnified to destroy the marriage and the mental cruelty must be of such nature that the parties cannot reasonably be expected to live together and in this case, there is no allegation of any specific act of cruelty by the appellant. Hence, it is contended that the respondent/husband is not entitled to divorce. In support of her contention, the appellant relied upon the unreported judgment made in CMA No.1920 of 2010, dated 12.06.2012 (Jayashree Vs. Suresh), wherein it is held in para 27 as follows:-
?27.The other contention raised by the learned Senior Counsel appearing for the appellant, is that the petitioner is not entitled to get a decree in his favour in view of Section 23(1)(b) of the Hindu Marriage Act, 1955. Section 23(1)(b) of the Hindu Marriage Act stipulates that if the Court is satisfied that where the ground of divorce petition is cruelty, the petitioner has not in any manner condoned the cruelty, the Court shall decree such relief accordingly. In the present case, in paragraph No.12 of the petition, the petitioner has averred that he never took drastic steps of initiating proceedings to dissolve the marriage because he was interested in the welfare of his children and lived with the respondent for more than 10 years. It is also averred in paragraph No.5 of the petition, that the respondent used to leave the matrimonial home often and the petitioner would bring her back and live with her till she finally left the matrimonial home on 18.05.2004. Even if the allegations of cruelty mentioned in the petition, are taken as true for the sake of argument, the petitioner has condoned the cruelty by his acts in bringing her back to the matrimonial home and living with her. In fact, the respondent left the matrimonial home on 18.05.2004, and the petition seeking for divorce, has been filed in the month of July 2004. Hence, as rightly contended by the learned Senior Counsel for the appellant, the petitioner is entitled to get a decree in his favour in view of Section 23(1)(b) of Hindu Marriage Act.?
13.On perusal of Ex.P17, the Order passed in Domestic Violence Case in M.C No.113 of 014 by the Family Court, Madurai, dated 04.08.2015, it is held as follows:-
?That the petitioner gave a complaint to dowry cell as if her husband and his family members tortured her both physically and mentally and the said copy of the complaint is marked as Ex.P.9. But she has not specifically stated that the Respondent harassed her by demanding dowry and jewels. Since the divorce case was pending before the court, the said complaint was not taken on file and the enquiry also closed as per the Social Welfare Officer report marked as Ex.P.10 and Ex.P11. From the above facts, it clearly reveals that the petitioner went away in order to stay with her parents and subsequently she gave a complaint against the respondent family and left from Chennai. So she was not send out from the matrimonial home by the 1st respondent as she alleged.?
14.It is pertinent to note that no appeal has been preferred by the appellant/wife as against the order passed under Ex.P17. Further, it reveals that the appellant/wife herself went away from the matrimonial home on her own and not by the act of her husband.
15.Per contra, it is argued on the side of the respondent/husband that his wife wrote so many letters to his relatives and his superior officials and she has also filed a Maintenance Case in MC No.113 of 2014 under Domestic Violence Act against him and his relatives, which caused mental agony to him. It is further argued that his wife failed to take care of his mother, who was suffering from Cancer and his wife subjected him to cruelty. The learned counsel for the respondent/husband submitted the ruling reported in 2016(9) SCC 455 (Narender Vs. K.Meena) in support of his submissions.
16.The appellant/wife stated during her evidence that her husband had illegal contact with the daughter of his sister and when it was questioned by her, wordy quarrel arose between her and her husband. But in the counter, she has not stated the allegation of illegal intimacy of her husband with the daughter of the respondent/husband, but only in her additional counter she has stated that her husband had illegal contact with the daughter of his sister.
17.It is pertinent to note that if really there was an illegal intimacy, she would have definitely at the first instance, stated in her counter about the illegal intimacy of her husband with his sister's daughter. The respondent/husband stated that his sister and his daughter have not stayed with him and they are residing in Washermenpet. To prove it, Ex.P6 Copy of receipt of Social Economic and Caste wise Census and Ex.P7 Copy of Diary Extract of K.Suganya has been produced. But the appellant/wife has stated the above fact only in her additional counter, which makes it clear that in order to strengthen her case, she has stated the above false allegation against her husband as an afterthought.
18.At this juncture, it is necessary to refer the cross examination of RW1. RW1 stated during her cross examination that ?kDjhuh; ehd; Tl;LFLk;gkhf thH;e;jjhft[k;k 2tJ rnfhjhp kw;Wk; mtUila kfs; gphpajh;\;dp Flk;gj;jpy; jiyaPL bra;J te;jjhf brhy;tJ vk;.rp.113/2014 jPh;g;gpy; bgha; vd;W jPh;g;gpy; bgha; vd;W jPh;khdpf;fg;gl;Ls;sJ mJg; gw;wp vdf;F bjhpahJ.::?
19.The appellant/wife has not denied the above facts. She simply stated that she did not know. Further, no appeal has been preferred as against MC No.113 of 2014 and for proving the illegal intimacy of her husband, no document was filed and no witness was examined on the side of the appellant/wife. Hence, the allegation of illegal intimacy of the respondent/husband was not proved by the appellant/wife. Further perusal of Ex.P13 (Copy of the Order made in CMA(MD)No.347 of 2016) and Ex.P14 (Ex-parte Divorce Order passed by the Family court, Madurai) would show that the appellant/wife has stated so many allegations against her husband to the social organization in which the respondent/husband served as social worker and to the office in which the respondent/husband served.
20.Further, it is seen from the records that the appellant/wife has filed Maintenance Case in MC No.113 of 2014 under the Domestic Violence Act and further gave so many complaints before the police officials against her husband. It is settled law that the Matrimonial law is to safe guard the woman from the husband and family members in the event of any cruelty. But the wife should not use it as a tod to take revenge against her husband and his family members. Hence, it reveals that the appellant/wife only subjected her husband to cruelty and caused mental agony.
21.Further, on perusal of the written submission filed by the appellant/wife, it is seen that the appellant/wife has criticized the judgment passed by the Family Court stating that the Family Court has framed own stories/issues without pleadings and documents on part of her husband, thereby violating the principles of natural justice and to cause prejudice to the appellant/wife. Even though, the appellant/wife is an educated woman, she has simply criticized the judgment passed by the Family Court in an unacceptable language. Already, the appellant/wife filed HMOP No.369 of 2013 for restitution of conjugal rights. But it was dismissed for default. But the appellant/wife has not taken any steps to restore it. Hence, it reveals that she has no intention to join with her husband. Hence, on careful perusal of the evidence of witness and documents, it reveals that the appellant/wife only subjected the respondent/husband to cruelty and thereby caused him mental agony.
22.At this juncture, it is relevant to refer to the ruling in A. Jayachandra v. Aneel Kaur reported in (2005) 2 SCC 22, wherein the Hon'ble Apex Court observed as under:
"The expression "cruelty" has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse, same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.
To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.
The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent."
23.In Vinita Saxena v. Pankaj Pandit reported in (2006) 3 SCC 778 the Hon'ble Apex Court aptly observed as under:
"As to what constitutes the required mental cruelty for the purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home.
If the taunts, complaints and reproaches are of ordinary nature only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer."
24.Keeping in view of the above decisions and also considering the facts and circumstances of this case, this court is of the considered view that the Family Court, Madurai, has rightly granted the decree of divorce, which needs no interference.
25.In the result, this appeal is dismissed and the order and decree passed by the Family Court, Madurai, in HMOP No.566 of 2014, dated 10.01.2018 is confirmed. No costs. Consequently, connected Miscellaneous Petition is closed.
To, The Family Court, Madurai.
.