Madras High Court
R.Premanand vs P.Latha on 21 July, 2022
Author: V.M.Velumani
Bench: V.M.Velumani
C.M.A.No.1319 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON :05.07.2022
PRONOUNCED ON : 21.07.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.No.1319 of 2014
R.Premanand. .. Appellant
Vs.
P.Latha .. Respondent
Prayer: This Civil Miscellaneous Appeal is filed under Section 19 of the
Family Courts Act, against the judgment and decree made in
HMOP.No.766 of 2006 dated 02.03.2009 on the file of the family Court,
Coimbatore.
For Appellant : M/s.R.Sumithra Chakravarthi
for M/s.Geetha Ramaseshan
For Respondent : M/s.A.K.Rajaraman
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C.M.A.No.1319 of 2014
JUDGMENT
(Judgment of the Court was delivered by S.SOUNTHAR, J.) Aggrieved by the dismissal of the petition for divorce filed on the ground of desertion and cruelty, the petitioner/husband has come up with this appeal.
2. The appellant/petitioner/husband filed HMOP.No.766 of 2006 on the file of the Family Court, Coimbatore, seeking divorce on the ground of desertion and cruelty. The marriage between husband and the respondent was solemnised on 23.01.1998. According to appellant after marriage, he and respondent lived together only for two months. Out of wedlock a male child was also born to them on 14.11.1998. It was stated by the appellant in his petition that at the time of marriage, the respondent promised that she would get transfer from Mumbai to Coimbatore, the home town of appellant in order to have a meaningful matrimonial life and she also promised to resign the job in case of difficulty in getting the transfer. It was further averred that the respondent had not taken any meaningful steps to get transfer to 2/20 https://www.mhc.tn.gov.in/judis C.M.A.No.1319 of 2014 Coimbatore, instead she got transfer to Kolkatta. It was further averred that at the time of marriage of appellant's sister in November 1999, the respondent came to the marriage function just like a 3rd person and left to Kolkatta immediately. It was further averred that the respondent had no intention to join with the appellant in matrimonial home and she has no attachment in family life. It was further submitted that the respondent came to the matrimonial home in the month of May 2006 and lived together for only one day and suddenly, she left out of the matrimonial home during night hours. The attempt of the appellant for reunion met with a failure and hence the appellant constrained to file a divorce application on the ground of desertion and cruelty.
3. The respondent filed a counter denying various allegations of the appellant in his petition for divorce. She averred that in-spite of her efforts to get transfer, she could not get transfer order immediately and she used to visit the appellant's residence during the vacation days. It was also averred that when appellant was working in Mumbai from 2001 to 2003, the respondent used to visit appellant's residence there during week end. She further stated during May 2006, when respondent visited 3/20 https://www.mhc.tn.gov.in/judis C.M.A.No.1319 of 2014 appellant's house, the relatives of appellant insisted her to resign her job and she explained to them her inability to resign the job and promised them to get transfer order to Coimbatore within few months. It was also averred that the brother of the appellant abused the respondent and in view of the painful happenings, she left the matrimonial home. In general the respondent expressed her willingness to live with the appellant and sought for dismissal of the petition for divorce.
4. Before the Family Court, the appellant was examined as P.W.1 and Exs.P1 to P13 were marked on his side and the respondent was examined as R.W.1 and Exs.R1 to R18 were marked on her side.
5. The Family Court after consideration of oral and documentary evidences found that the appellant failed to prove both the grounds of desertion and cruelty pleaded by him and consequently dismissed the divorce application. Aggrieved by the same the present appeal is filed and thereafter there is no meaningful cohabitation between them. 4/20 https://www.mhc.tn.gov.in/judis C.M.A.No.1319 of 2014
6. The learned counsel for appellant submitted that casual visit to the matrimonial home for one or two days cannot be treated as a cohabitation in true sense. She further submitted that after May 2006, the respondent has not visited the matrimonial home of the appellant. Therefore, the marriage has become a fiction and it is practically dead for all the purpose. The learned counsel for the appellant also submitted that as counter blast to petition for divorce, the respondent filed a petition for restitution of conjugal rights in O.P.No.413 of 2007. she subsequently withdrew it for the reasons best known to her as evidenced by Ex.P.13. Withdrawal of the petition for restitution of conjugal rights filed by the respondent amply shows her intention not to have cohabitation with the respondent. The learned counsel further submitted that the marriage took place in January 1998. The appellant and respondent lived together only for 2 months and a male child was born in November 1998, they finally had meaningful cohabitation only during November 1999. Thereafter, the respondent used to visit the appellant's house occasionally. Finally she visited appellant's house in May 2006. Therefore, they have been living separately for the past 16 years and hence taking into consideration the long period of separation and also failure of the respondent to have 5/20 https://www.mhc.tn.gov.in/judis C.M.A.No.1319 of 2014 meaningful cohabitation with the appellant/husband, it has to be held that it resulted in mental cruelty to the husband, therefore sought for dissolution of the marriage on the ground of cruelty. In order to support her arguments, she relied on following decisions, for the proposition that if parties live separately for long period of time, irretrievable breakdown of the marriage can be presumed.
(1) Samar Ghosh Vs. Jaya Ghosh reported in (2007) 4 SCC 511; (2) Sukhendu Das Vs. Rita Mukherjee reported in (2017) 9 SCC 632; (3) Satish Sitole Vs. Ganga reported in 2008 (4) CTC 285;
The learned counsel also relied on Debananda Tamuli Vs. Smti Kakumoni Kataky reported in (2022) 5 SCC 459 for the proposition that wife joining the husband for a single day cannot be said to be a resumption of cohabitation. The learned counsel also drew the attention of this Court to the admission made by the respondent that she was not ready to live in the house of the appellant.
7. Per contra, the learned counsel for the respondent submitted that the respondent is not able to live with the appellant continuously in the matrimonial home due to the nature of her job. The respondent is serving 6/20 https://www.mhc.tn.gov.in/judis C.M.A.No.1319 of 2014 as Nurse in Military and it will be very difficult for her to get transfer according to her wish. She relied on Ex.A.16 to show that she got transfer order on 25.09.2006 as evidenced by Ex.R.16 and hence her failure to cohabitate with the appellant continuously from the date of marriage cannot be termed as a desertion or cruelty entitling the appellant to seek divorce. He submitted that wife after filing the petition for restitution of conjugal rights found that she had already made her intention to live with the husband clear by making necessary averment in the counter to the divorce petition and hence no separate petition for restitution of conjugal right is necessary and in order to avoid multiplicity of proceedings, she withdrew the petition seeking restitution of conjugal rights and consequently the same cannot be put against her. Therefore it was contention of the learned counsel for the respondent that appellant failed to prove his plea of desertion as well as cruelty and hence the dismissal of petition for divorce requires no interference by this Court.
8. On going through the oral and documentary evidence it is clear the marriage had taken place on 23.01.1998 and the parties lived together 7/20 https://www.mhc.tn.gov.in/judis C.M.A.No.1319 of 2014 for a short period and a male child was born during November 1998. It is also admitted by the respondent that there was no continuous cohabitation. According to the respondent, she used to visit the appellant's house during vacation. As per the averments in the petition, the respondent came to matrimonial home during May 2006 and stayed there for one day. The petition for divorce was filed immediately thereafter. So condition for filing petition on the ground of desertion namely separation for a continuous period of two years is not satisfied in the present case. The learned counsel for the appellant relied on Debananda Tamuli Vs. Smti Kakumoni Kataky reported in (2022) 5 SCC 459 for a proposition that stay of wife at matrimonial home for one day cannot be termed as resumption of cohabitation. The close scrutiny of that case makes it clear that husband in that case was doing business in Tezpur and the wife was working as a Lecturer in Guwahati. The marriage was solemnised on 17.06.2009 and they had been living separately from 01.07.2009. The divorce petition was filed on 09.09.2011. It was argued in that case by wife she came down to the husband's place during December 2009 in order to attend funeral of her Mother-in-law for one day. Therefore there was no separation for 8/20 https://www.mhc.tn.gov.in/judis C.M.A.No.1319 of 2014 continuous period of 2 years. In that context the Apex Court said staying in husband's house for single day for the purpose of attending funeral of mother-in-law cannot be termed as resumption of cohabitation. As far as the case on hand is concerned there was no special occasion for the wife to visit the husband's house during May 2006. She visited husband's house in May 2006 during holidays and in view of some misunderstanding she left the matrimonial home within a day. It cannot be termed as a casual visit for a single day on special occasion. She came back to husband's house with an intention to resume cohabitation but due to eruption of some misunderstanding, she left the matrimonial home . Therefore the main condition for maintaining an application for divorce on ground of desertion namely continuous separation for 2 years is not satisfied in this case. Therefore the finding of the Family Court that husband has not made out a case for desertion is well founded and the same is confirmed.
9. The other two decisions relied by the learned counsel for the appellant namely Satish sitole Vs. Ganga reported in 2008 4 CTC 285 and Sukhendas Das Vs. Rita Mukerjee, reported in 2017 9 SCC 632 are 9/20 https://www.mhc.tn.gov.in/judis C.M.A.No.1319 of 2014 not useful to the appellant as in those cases the Hon'ble Apex Court had dissolved the marriage on ground of irretrievable breakdown of marriage by resorting to its power under Article 142 of Constitution of India. We have no power parallel to one available to the Hon'ble Apex Court under Article 142 of Constitution of India. Therefore, we cannot grant divorce on ground of irretrievable break down of marriage when such ground is not recognised by Hindu Marriage Act.
10. As far as the ground of cruelty is concerned it is undisputed that parties had meaningful cohabitation only for two months immediately after marriage. Even as per the admitted case of wife after birth of her child during November 1998, she used to visit her husband only during vacation, finally she visited matrimonial home in May 2006 and stayed there for only one day. So from the pleadings and evidence of parties, it is clear they had meaningful cohabitation only for two months after marriage and there is no continuous cohabitation from November 1998. They lastly resided together for one day during May 2006, thereafter there is no resumption of cohabitation for the past 16 years. When the husband had filed a petition for divorce, wife filed a counter 10/20 https://www.mhc.tn.gov.in/judis C.M.A.No.1319 of 2014 blast petition for restitution of conjugal rights in HMO.P.No.413 of 2007. Subsequently as evidenced by Ex.P.13, she withdrew the same for the reasons best known to her. The Family Court relied on the decision in R.C.Senthil Kumar Vs. K.Sudha reported in 2008 (2) CTC 745 and held if wife's willingness to resume to cohabitation is set out in the counter to the divorce application, there is no necessity for her to file a separate petition for restitution of conjugal rights. It further held that when wife chooses not to resort to any legal proceedings against her husband by filing a petition for restitution of conjugal rights, it speaks volumes about her genuine intention to resume cohabitation. However in the facts of the present case, it is not a case where wife has not chosen to resort to litigation against her husband. The respondent/wife in her wisdom had resorted to litigation by filing a counter blast application for restitution of conjugal rights. After resorting to litigation by filing a counter blast application for restitution of conjugal rights, absolutely there is no plausible explanation on her side to withdraw the said application. The wife's decision to withdraw the petition filed by her for restitution of conjugal rights, can be taken as a piece of evidence to gather her inclination towards non-resumption of cohabitation. 11/20 https://www.mhc.tn.gov.in/judis C.M.A.No.1319 of 2014
11. The intention of the respondent/wife to refuse cohabitation with appellant is very well established by her admission in cross examination. The respondent/wife while she was examined as R.W.1 made it clear that she was not ready to live in the house of the appellant/husband. The Vernacular portion of her admission is as follows:
"ehd; nfhaKj;J}Uf;F gzp khWjy; Mfp te;jij ehd; vd; fztUf;F bjhptpf;ftpy;iy vd;why; rhpay;y/ vd; fzth; brhe;j tPlo; y; FoapUf;fpwhh;/ ehd; mth; tPlo; y; ngha; FoapUf;f jahuhf ,y;iy/"
From the evidence of the respondent/wife extracted above, it is very clear that she never nurtured an intention to resume cohabitation in the appellant's home.
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12. The expression mental cruelty is very well explained by the Apex Court by illustrative definition in Samar Ghosh Vs. Jaya Ghosh report in (2007) 4 SCC 511. The relevant observations of the Apex Court is as follows:
"101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of "mental Cruelty". The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life of the other spouse absolutely intolerable.13/20
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(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealously, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate of the grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount 14/20 https://www.mhc.tn.gov.in/judis C.M.A.No.1319 of 2014 to cruelty. The ill conduct must be persistent for a fairly lengthy period. where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent of knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parities. In such like situations, it may lead to mental cruelty."
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13. The illustration xiv, mentioned above makes it clear long period of continuous separation raises a presumption that matrimonial bond is beyond repair and marriage has become a fiction, though supported by a legal tie. The Hon'ble Apex Court has gone to the extent of saying, in such cases, refusal of divorce would amount to mental cruelty. If one of the party to the marital tie wants to continue the legal relationship of marriage without any meaningful cohabitation, that itself can be termed as mental cruelty to the other party. In the case on hand, parties had meaningful cohabitation only for 2 months in the year 1998 at the time of marriage. Thereafter, they did not have any meaningful cohabitation. Though according to wife, she visited husband's house during vacation till 2006. Admittedly after 2006, there is no resumption of cohabitation. The petition for restitution of conjugal rights filed by the wife as a counter blast to the divorce application was subsequently withdrawn. During enquiry before the Family Court wife deposed that she had no intention to live in the house of the appellant. Further there is no acceptable evidence available on record to justify wife's failure to have meaningful cohabitation after 1999 at least during vacation days. 16/20 https://www.mhc.tn.gov.in/judis C.M.A.No.1319 of 2014 Taking into consideration the totality of the evidence available on record, we hold that the respondent/wife has no intention to have meaningful cohabitation with the husband. Her casual visit to matrimonial home for one or two days that too nearly 16 years back will not help her to continue the legal relationship of marriage without any meaningful cohabitation.
14. The facts and circumstances of the case on hand fits into the illustration xiv referred in Samer Ghosh Vs. Jaya Ghosh (cited supra) and hence we hold that the respondent/wife by her refusal to have meaningful cohabitation with the appellant/respondent for considerably long period of time, caused mental cruelty within the meaning of Section 13(1)(a) of Hindu Marriage Act, entitling the husband to seek divorce. Accordingly the fair and final order passed by the Family Court, in HMOP.No.766 of 2006 is set aside and the appellant/husband is granted divorce by dissolving the marriage that took place on 23.01.1998 between the appellant and the respondent.
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15. In nut shell,
(i) The appeal is allowed by setting aside the fair and decreetal order passed in HMOP.No.766 of 2006 dated 02.03.2009 on the file of the Family Court, Coimbatore.
(ii) The original petition HMOP.No.766 of 2006 stands allowed.
(iii) In the facts and circumstances of the case there is no order as to costs.
(V.M.V., J) (S.S., J)
21.07.2022
Index : Yes / No
Internet : Yes/ No
Speaking/Non-speaking Order
jai
To
1.The Family Court,
Coimbatore.
2.The Section Officer,
VR Section,
High Court, Madras.
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C.M.A.No.1319 of 2014
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C.M.A.No.1319 of 2014
V.M.VELUMANI, J.
and
S.SOUNTHAR, J.
jai
C.M.A.No.1319 of 2014
21.07.2022
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