Madras High Court
N.Ponni vs N.Karthiraj on 22 February, 2019
Author: C.Saravanan
Bench: S.S.Sundar, C.Saravanan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 17.12.2018
Pronounced on : 22.02.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.M.A.(MD) No.1465 and 1466 of 2016
and
C.M.P.(MD) No.12251 of 2016
and
C.M.P.(MD) No.11140 and 11141 of 2018
and
Crl.R.C.(MD) No.851 of 2016
C.M.A.(MD) NOs.1465 and 1466 of 2016
N.Ponni ... Appellant in
both appeals
vs.
N.Karthiraj ... Respondent in
both appeals
COMMON PRAYER: Appeal filed under Section 19 of the Family Courts Act,
1986, to set aside the order made in H.M.O.P.No.320 and 426 of 2014 on the
file of the Family Court, Madurai dated 11.11.2016.
For Appellant : Mr.A.Arumugam
http://www.judis.nic.in For Respondent : Mr.V.Sakthivel
2
CRL.R.C.(MF) No.851 OF 2016
1.N.Ponni
2.Minor Athi Krishna
(Minor 2nd petitioner rep. through his
mother 1st petitioner herein) ... Petitioners
vs.
N.Karthiraj ... Respondent
PRAYER: Criminal Revision petition filed to set aside the order made in M.C.No.
67 of 2014 on the file of the Family Court, Madurai dated 11.11.2016 by allow
this criminal revision petition and award maintenance to the 1 st petitioner and
enhance the maintenance to the 2nd petitioner.
For Petitioners : Mr.S.Gokul Raj
For Respondent : Mr.V.Sakthivel
COMMON JUDGMENT
(Judgment of the Court was delivered by C.SARAVANAN, J.) These two appeals and RCP’s are directed against common fair and separate decretal orders dated 11.11.2016 passed by the Family Court, Madurai in HMOP No.320 of 2014 and HMOP No.426 of 2014 and a separate decretal order in M.C.No.67 of 2014.
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2. The appellant and the petitioner before this Court is the wife (for the sake of uniformity referred to as “ the appellant, appellant was the respondent in HMOP No.320 of 2014 and the petitioner in HMOP NO.426 of 2014 and M.C.No.67 of 2014.
3. By the decretal order in HMOP No.320 of 2014, the Family Court has dissolved the marriage solemnized between the appellant and respondent on 25.10.2009 under Section 13(1)(ia) of Hindu Marriage Act, 1955 and thereby allowed the said HMOP filed by the respondent husband. CMA No.1455 of 2016 has been filed by the appellant wife against decretal order in HMOP No.320 of 2014.
4. By the decretal order in HMOP No.426 of 2014, the Family Court has dismissed said application filed under Section 9 of the Hindu Marriage Act for restitution of conjugal rights by the appellant. CMA No.1456 of 2016 is against decretal order in HMOP No.426 of 2014.
5. By the decretal order in M.C.No.67 of 2014, the Family Court has directed the respondent to pay a sum of Rs.10,000/- only towards maintenance of the appellant . The above RCP has been filed against the same.
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6. The respondent had originally filed the HMOP No.320 of 2014 for dissolving marriage between the appellant and the respondent solemnized on 25.10.2009 on the ground of cruelty under Section 13(1)(1-ia) of the Hindu Marriage Act, 1995.
7. HMOP.No.320 of 2014 was filed by the respondent husband on 22.3.2012 i.e. within 26 months of the marriage during which time the marriage was consummated and within 11 months of the marriage the appellant delivered their child on 1.9.2010.
8. The appellant spent much of her time either in the company of the parents of the respondent or away from the respondent at her parents house after the appellant became pregnant. The couple hardly lived together.
9. Entire edifice of the case for cruelty before the Family Court is based on few stray incidents which the Family Court has accepted as a good reason to conclude that the appellant was cruel to the respondent to grant a decree of divorce and reject her prayer for restitution of conjugal rights.
10. The appellant and the respondent have lived for a very brief period together. Initially, they lived in Pondicherry when the respondent http://www.judis.nic.in 5 was employed with the famous JIMPER Medical College and Hospital as an anesthesiologist and later in Coimbatore with respondent’s parents after the respondent decided to re-locate take up employment in Coimbatore for good.
11. The couple appear to have indulged in petty quarrel during their short stay with each other which is primarily on account of the appellant’s expectation for a separate matrimonial home when the respondent relocated the appellant to Coimbatore at the respondent’s parents house and on account of attention the appellant sought from the respondent as a young bride during their initial stay in Pondicherry when also appellant became pregnant.
12. Ultimate precursor and trigger for filing HMPOP No.320 of 2104 by the respondent appears to be a threat from appellant’s uncle named Ramasamy, a lawyer who appears to have advised the respondent to set up a separate matrimonial home away from his parents which the respondent did not take kindly.
13. It has been further alleged that on 16.03.2012 at about 8.30 p.m. two advocates came to the house of the respondent’s parents house when the respondent was not at home and threatened the parents of the respondent http://www.judis.nic.in 6 that if the appellant did not agree for separate matrimonial home, they would lodge a complaint against the parents and sisters of the respondent.
14. It is the respondent’s case that the appellant’s uncle apparently threatened to ruin the respondent’s career and to see that the members of respondent’s family were also framed up for harassing the appellant and that the appellant apparently told that her family had given 80 sovereign at the time of marriage instead of 60 sovereign in presence of elders of the family when attempt was made bring peace between the estranged couple ie. appellant and the respondent.
15. Therefore, the respondent feared that if he lived with the appellant it would not only endanger him and he would loose his peace of mind but also expose his family members to unnecessary hardship and danger of criminal prosecution.
16. At the time of the filing of the said HMOP, the appellant was a mere 24 year women while the respondent, a 34 year man. At the time of marriage, the appellant was about 21 1/2 years and the respondent about 31 ½ years.
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17. As per the usual customs, the appellant’s parent had gifted jewelry, cash and a brand new swift car at the time of marriage, to give a head to the newly married couple to lead a comfortable life. However, they the couple ended up separating from each other.
18. The grievance of the respondent before the Family Court was that he was a busy anesthesiologist and that after the marriage the appellant and the respondent started their matrimonial life in Pondicherry.
19. According to the respondent, the appellant frequently quarreled with the respondent for trivial reasons and did not cook food forcing them to go out to hotels of meals.
20. That on 23.02.2010 at 6.00 p.m., she quarreled when the respondent was in hospital for not giving medicines when she was pregnant and used to torture him by saying only he should give medicines regularly even though she knew that the respondent as an anesthesiologist and was under work pressure.
21. That the appellant stated she felt like falling down from upstairs owing to severe back pain. This according to the appellant put him to http://www.judis.nic.in 8 severe mental strain making it difficult for him to balance his career as an anesthesiologist and his personal life.
22. It is further stated that on a particular occasion, the appellant left the matrimonial home without informing the respondent and refused to come back home and stated that she did not know her way back to home. Later, appellant brought the appellant her back.
23. Fearing untoward incident and in view of the impending delivery of their child and with a view to take up permanent employment in Coimbatore, the respondent left the appellant at his parents house on 03.03.2010 while he continued to work in Pondicherry.
24. The appellant was however uncomfortable and frequently quarreled with the respondent whenever he visited. That the respondent called her father who insisted on taking the appellant to Madurai.
25. Hence, the respondent arranged for the appellant to go to Madurai to her parents house.
26..2It is stated that he feared instability and took up employment in Coimbatore though the appellants parents wanted them to re-locate the http://www.judis.nic.in 9 Madurai so that they can bestow their attention to the appellant and the new born baby.
27. It is stated that though the appellant delivered a male child on 01.09.2010 in Madurai, the appellant did not consult the respondent in selecting the name for the child.
28. Three months after delivery, the appellant returned back to the respondents parent and quarreled with the respondent. frequently left for her parents house .
29. It is stated that the appellant did not share kitchen with her in laws and her mother frequently visited the appellant and instigated the appellant against the respondent and his parents.
30. That during a quarrel on 15.04.2011 and she cut the thali (mangalsutra). However, the respondent later apologized for her conduct. That On 16.04.2011 the respondent's sisters came to Coimbatore to visit Masani Amman Kovil, Pollachi along with appellant and the respondent.
31. However, the appellant refused to accompany them and pressurized the respondent also to not to accompany them and that on http://www.judis.nic.in 10 18.4.2011 appellant left for parents house along with her father without informing the respondent. Thereafter, the appellant refused to come back unless the respondent agreed to set up an independent matrimonial home.
32. That the appellant threatened the respondent by saying that her father knew higher police officials and would lodge dowry harassment case against the respondent, her sisters and parents, if he did not make separate matrimonial home.
33. It is submitted that though the appellant was taken care by the respondent, the appellant frequently harassed the respondent and left the matrimonial home on 18.04.2011 with the young child without any intimation accompanied by her father.
34. Though, attempts were made to reunite them, the appellant refused to come and did not relent from her demand for a separate matrimonial home. The respondent has cited such trivial and similar instance to justify his case for divorce before the Family Court.
35. The Appellant has denied the above allegations in the counter filed by her before the Family Court. The family court has however found the respondents version more plausible to grant a decree to dissolve the http://www.judis.nic.in 11 marriage and to reject the application for restitution of conjugal rights only on the ground that the appellant has not denied the allegation of the respondent.
36. We have considered rival contentions and have perused the respective petition and the evidence on record.
37. It is noticed that the marriage between the appellant and the respondent was solemnized on 25.10.1999 when the respondent was employed with JIPMER, Pondicherry.
38. The appellant and the respondent briefly lived together and in that brief stay together they have indulged in petty quarrel. It appears to be normal for the young couple to indulge after the honeymoon period.
39. The appellant was aged hardly 21 years old at that time as evident from the divorce petition filed on 22.03.2012.
40. Appellant became pregnant immediately after marriage and was left to deal with mood swing and discomfort associated with first pregnancy by herself. The respondent has blamed the appellant for few utterances made by her at that time.
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41. It is the respondent’s case that the appellant was inconsiderate and did not co-operate with the respondent even though she knew that as an anesthesiologist the respondent cannot come to comfort her at her beck and call whether at Pondicherry when he was employed there or later in Coimbatore when they live briefly as a joint family with his parents. Instead, the appellant demanded a separate matrimonial home and made it a condition for her to return back.
42. It is evident that the respondent did not compromise and was unrelenting and did not want to stay away from his parents at Coimbatore and insisted with the appellant also lives with his parents, even though he understood that the appellant was uncomfortable in respondent’s parents house. There they did not share the kitchen with his parents and therefore the relationship was not cordial. In between, the three incidents in April 2011 has been stated to infer cruelty.
43. After the appellant left the respondent, there have been attempts to unite the couple and appellant’s parents and uncle have attempted to reason with the respondent to set up a separate matrimonial home for their welfare.
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44. Since the respondent was steadfast, appellant’s father and uncle also father and uncle are accused of having threatened the respondent. There is however no proof to establish the same.
45. The Family Court after narrating the facts and deposition recorded has merely reproduced few decisions of the Honourable Supreme Court. The Family Court has held that the appellant was guilty of cruelty as the appellant has neither denied the allegations in the petition nor effectively cross- examined the respondent and has therefore concluded that there was sufficient evidence on record to hold that the appellant had caused mental cruelty. The Family Court has held that the appellant had not effectively rebutted the allegations of the respondent and therefore was was admission by the appellant.
46. It further held that appellant has not substantiated that the petition for Restitution of conjugal rights was bona fide intention to rejoin the respondent.
47. The Family Court has also concluded that the appellant has not chosen to examine her parents as witness to speak about the alleged incidents surrounding the departure of the appellant from the matrimonial home with them.
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48. The Family Court has also concluded that HMOP No 426 of 2014 was filed only as an afterthought after HMOP 320 of 2014 with an intention to defeat the same.
49. The Family Court has therefore concluded that the respondent had substantiated the ground for divorce as the appellant had failed to make out a case for restitution of conjugal rights.
50. The Family Court therefore held that the respondent was eligible for a decree for dissolution of marriage solemnized with the appellant.
51. In our view, the appellant and the respondent have hardly lived together and in that short period of time, the respondent has concluded that he cannot lead a peaceful life with the appellant and that her demand for an independent matrimonial home away was not negotiable while the appellant has stood with her resolve which has led to the filing of the cases.
52. Instead of getting to know each other, the appellant become pregnancy immediately after the marriage which had obviously put strain both on the appellant and the respondent.
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53. The respondent however left the appellant to nurse herself with his parents after she became pregnant. The respondent thus anchored a feeling of hopelessness in the appellant by leaving the appellant at his parent’s house, while he continued to work from Pondicherry and thereafter relocated himself to Coimbatore.
54. Later the appellant, delivered a male child on 01.09.2010. After delivery, the appellant briefly returned the respondent’s parents house after family panchayat by which time the respondent had taken up employment in Coimbatore.
55. It appears constant that the constant retrain of the appellant that they set up an independent matrimonial home away from respondent’s parents. However, the respondent refused and insisted on staying with his parents with which the appellant was not comfortable. Thereafter, the respondent filed the HMOP No.320 of 2014.
56. It appears that the appellant’s mother also frequently visited Coimbatore to help her which may have soured of the relationship between the appellant and the respondent's and their families. http://www.judis.nic.in 16
57. The Court referred to the following cases to conclude that there was cruelty:
(i)Vinod Kumar Subbiah Vs. Saraswathi Palaniappan – C.A.Nos.5511-5512 of 2014 of the Supreme Court
(ii)A.Jayachandra Vs. Aneel Kaur 2005 SAR(Civil) 130
(iii)Pankaj Mahajan Vs. Dimple @ Kajal 2011 SAR (Civil) 944
(iv)Arun Kumar Jain @ Bunty Vs. Geeta (2014) 4 MLJ 641
(v)U.Sree Vs. U.Srinivas AIR 2013 Supreme Court 415
58. We are however not convinced with the reasoning of the family court in allowing the prayer for dissolution of marriage under section 13(1) (i-a) of the Hindu Marriage Act, 1955.
59. Mere reproduction of allegations in the petition and head notes from the decisions of the court are not sufficient to come to conclusion that the appellant was guilty of cruelty so as to warrant dissolution of marriage.
60. In this case, parties have hardly been together. The fact that the appellant became pregnant immediately after marriage and was alone in Pondicherry with the respondent cannot be ignored. The appellant had no one http://www.judis.nic.in 17 else but the respondent and therefore demanded his attention. Such demand for attention cannot amount to cruelty. It only indicates that the appellant was helpless pregnant woman and therefore craved for his attention which was quite natural. It cannot be a ground for inferring cruelty.
61. The fact that she may have stated that she felt like falling from stairs on account of back pain did not mean she meant to be cruel to the respondent. It only meant that she was expressing her pain and helplessness.
62. Though, the respondent was not required to prove his case as per strict rules of evidence, yet was bound to prove the case on his the principles of preponderance of probability.The Family court ought to have examined the different probabilities before arriving at the preponderance of probability as to whether the appellant was cruel to the respondent in the facts and circumstances of the case.
63. In Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati, (1964) 7 SCR 267 : AIR 1965 SC 364 the Hon’ble Supreme Court held as follows:-
22. It is true that in divorce cases under the Divorce Act of 1869, the Court usually does not decide merely on the basis of the admissions of the parties. This is a rule of prudence and not a requirement of law. That is because parties might make collusive statements admitting allegations against each other in order to http://www.judis.nic.in gain the common object that both desire, for personal reasons. A 18 decision on such admissions would be against public policy and is bound to affect not only the parties to the proceedings but also their issues, if any, and the general interest of the society.
Where, however, there is no room for supposing that parties are colluding, there is no reason why admissions of parties should not be treated as evidence just as they are treated in other civil proceedings. The provisions of the Evidence Act and the Code of Civil Procedure provide for Courts accepting the admissions made by parties and requiring no further proof in support of the facts admitted.
64. The Court there has also observed as follows: -
23. Section 58 of the Evidence Act inter alia provides that no fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing or which by any rule of pleading in force at the time they are deemed to have admitted by their pleading. Rule 5 of Order 8, CPC, provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleadings of the defendant, shall be taken to be admitted except as against a person under disability.
24. Both these provisions, however, vest discretion in the Court to require any fact so admitted to be proved otherwise than by such admission. Rule 6 of Order 12 of the Code allows a party to apply to the Court at any stage of a suit for such judgment or order as upon the admissions of fact made either on the pleadings or otherwise he may be entitled to, and empowers the Court to make such order or give such judgment on the application as it may think just. There is therefore no good reason for the view that the Court cannot act upon the admissions of the parties in proceedings under the Act.
65. As per Section 10 of the Family Court Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) the shall apply and the Family Court is deemed to be a civil court. Though, Family Courts are not bound to record http://www.judis.nic.in the evidence of witnesses at length. It would suffice if on the 19 examination of each witness the Court records or causes to be recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the witness and the Judge and shall form part of the record. The Family Court may, if it thinks fit, and shall, on the application of any of the parties to the suit or proceeding summon and examine any such person as to the facts contained in his affidavit.
66. Thus, the Family Court a has wide discretion to examine the case without mechanically accepting the averments on the face of it.
67. In the case of mental cruelty, the Court has to draw proper inference from the attending facts and circumstances.
68. Even though, a defendant is required to deny or dispute the statements made in the plaint categorically, evasive denial would amount to an admission of the allegation made in the plaint in terms of Order 8 Rule 5 of the Code and failure to make specific denial amounts to an admission as per the decision as held by the Honourable Supreme Court in Jaspal Kaur Cheema v. Industrial Trade Links, (2017) 8 SCC 592, the averments in the petition in support of HMOP by the respondent do not make out a case for cruelty by the appellant on the respondent even though the appellant has merely given a http://www.judis.nic.in general denial 20
69. Regarding the appellant’s demand for separate matrimonial home away from the respondent’s parent cannot be considered to be case for inferring cruelty though in Narendra v. K. Meena, (2016) 9 SCC 455 held that “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 persistent effort of the respondent wife to constrain the appellant to be separated from the family would be tortuous 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”.
70. However, in the present case, both the appellant and the respondent’s family were well to do and it is not a case where the respondent’s family was dependant on his bounty for their sustenance. Therefore, a demand for a separate matrimonial home cannot be a ground to infer cruelty in the facts of the case.
71. The respondent decided to shift to Coimbatore and assumed that the appellant would be able adjust with them even before the appellant and the respondent could get to know other and learn to adjust with each other.
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72. The respondent left the appellant with his parents with a clear intention to rejoin his family. It was not as if, at the time of the marriage the appellant was clearly informed that couple would have eventually settle down and live as a joint family after the marriage with his parents. We are therefore not convinced that the appellant was guilty of cruelty.
73. In A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22 the Court held that “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 http://www.judis.nic.in 22 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.”
74. In A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22, the Hon’ble Court held that “Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining http://www.judis.nic.in 23 spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted..
75. The Family Court has not done this exercise in the present case and has simply concluded that the appellant has not effectively rebutted the allegation in the petition filed by the respondent.
76. In A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22, the Court also held that “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 http://www.judis.nic.in the circumstances, which would constitute cruelty. It must be of the type as to 24 satisfy the conscience of the court that the relationship between the parties had deteriorated to such an 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”.
77. In Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, Hon’ble Supreme Court observed as under:-
“100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.”
78. In the same decision, the Hon’ble Court has given instances as to when http://www.judis.nic.in cruelty can be inferred with the following caveats:-. 25
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 for the other spouse absolutely intolerable.
(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 jealousy, 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. http://www.judis.nic.in
(ix) Mere trivial irritations, quarrels, normal wear and 26 tear of the married life which happens in day-to-day life would not be adequate for 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 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 sterilization without medical reasons and without the consent or 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 parties. In such like situations, it may lead to mental cruelty.
79. Thus, it is evident that the Court while enumerating the instances considered the time spent by the parties in the company of each other to ascertain whether the conduct of one party amounted to cruelty or not on the other.
80. In this case, as mentioned the parties have hardly lived in the http://www.judis.nic.in 27 company of the each other. Right after the marriage the appellant was pregnant and was shifted by the respondent to her in laws place.
81. Pregnant appellant was re-located with her in-laws away from the company of respondent and thereafter to her parents house for delivery and post delivery of the child and thereafter for a short while in her in-laws place which triggered the demand for separate matrimonial home and the divorce petition.
82. The ease with which the respondent would have re-adjusted in his parents house after marriage and same could not be expected from the appellant as frequent spatial change and dislocation would have disturbed the bond that was developing between them. If at all, it was the respondent who was cruel to the appellant though unintentionally by shifting the appellant to his parents house. The respondent has chosen a easy way out to wriggle out of his responsibility even though the marriage involves adjustment and compromise for a life time.
83. In present case, so called admission by the appellant based on the averment of the respondent in the petition merely because the respondent has not effectively rebutted the same in counter does not justify an assumption http://www.judis.nic.in 28 and inference of cruelty to grant divorce. It has a deleterious consequences on the well being of the child born to them.
84. Even if there was admission to the allegations in the petition filed in support of HMOP, averment made therein hardly make out a case for granting of decree for dissolution of marriage. We are convinced the Court committed error in granting divorce.
85. The averments in the petition and the evidence on record do not disclose cruelty. Stray incidents that have been chronicled in the petition are so trivial and even if not denied specifically cannot mean that there was admission of cruelty. It can at best be admission to the pleading.
86. We therefore feel that the institution of marriage between the appellant and the respondent deserves a chance to survive not only for the sake of each other but also for their progeny who has not been given the comfort and warmth of steady home to face the world.
87. In view of the foregoing reasons, both the appeals are allowed. The respondent being an anesthetist is required to maintain the appellant and http://www.judis.nic.in his child properly. Mere payment of Rs.10,000/- as ordered by the Court 29 was not sufficient. Considering the background of the parties herein, we are inclined to enhance the maintenance amount to Rs.20,000/-.p.m.
88. The respondent shall deposit the amount to the credit of the appellant together with arrears with interest at 9% per annum from the date of Misc. Petition.
89. The respondent is also directed take immediate steps to set up a separate matrimonial home within three months of the receipt of this order and take the appellant and their child with him.
90. The respondent has to raise to the occasion and do the needful and leave the past behind. The appellant also should take steps to willingly join the respondent by putting the past behind to start a fresh journey marital with the respondent.
91. They can certainly rely on the wisdom of their respective in-laws in nurturing the re-union and their child. If required, they can take the assistance of psychologist and marriage counsellors to work out the re-union to last beyond their life for the sake of their only son. http://www.judis.nic.in
92. The two appeals and the revision petition thus stand allowed. No 30 cost. Consequently, connected miscellaneous petitions are closed.
(S.S.S.R.J.,) (C.S.N.J.,)
Index :Yes/No 22.02.2019
Internet :Yes/No
Speaking : Non Speaking
Arul/kkd
To
The Family Court,
Madurai.
http://www.judis.nic.in
31
S.S.SUNDAR,J
AND
C.SARAVANAN,J.
Arul/kkd
Pre- delivery Common Judgment in
C.M.A.(MD) No.1465 and 1466 of 2016
and
C.M.P.(MD) No.12251 of 2016
and
C.M.P.(MD) No.11140 and 11141 of 2018
and
Crl.R.C.(MD) No.851 of 2016
22.02.2019
http://www.judis.nic.in