Challenge in this Civil Miscellaneous Second Appeal is to the Judgment dated 20.06.2005 passed in H.M.C.M.A.No.13 of 2003 by the Principal District Court, Virudhunagar District at Srivilliputhur.
2. The appellant herein as petitioner has filed HMOP.No.29 of 2002 on the file of the Sub Court, Srivilliputhur under
section 13(1) (1-a) of the Hindu Marriage Act, 1955 praying to dissolve the marriage held between her and respondent.
3. It is stated in the petition that the respondent has married the petitioner on 23.05.1996 in Anandhas Thirumana Mandapam, Rajapalayam according to caste custom and Hindu rites. The respondent has adopted tactics to extract money from the father of the petitioner by way of dowry. The petitioner has stayed only seven days at Rajapalayam and subsequently, she has gone to Madurai. During first April, the father of the petitioner has given Rs.2,00,000/- and the respondent has purchased a new Maruti Omni van and sold the same within one or two months. The petitioner after finishing her house Surgency Course has stayed with the respondent in his house at Rajapalayam. The respondent has used to extract money from the father of the petitioner. The father of the petitioner has given Rs.1.5 lakhs to meet the urgent needs of the respondent. During March 1997, the respondent has demanded Rs.5,00,000/- from the petitioner and directed her to get the same from her father. Since the petitioner has hailed from a decent family, she tolerated the invectives hurled by the respondent. The respondent has not allowed to go to her father's house on the eve of Tamil New year day in the year 1997. Despite of ill treatments given by the respondent, the petitioner has lived with the respondent during pregnancy period. The respondent has not allowed the petitioner to make visit to her parents house. The petitioner has joined at Sri Ramachandra Medical College and she has begotten a female child on 08.10.1997 and the entire charges have been borne by the parents of the petitioner. The respondent has not allowed the petitioner to go to the house of her parents. The respondent has also compelled the petitioner to change her name as Chitra Venkat Raja. The respondent has also used to assault the petitioner on several occasions. The respondent has also spoiled the mind of the child by saying that the petitioner would give injection and medicine to her. The child has suffered from severe illness and the respondent has not allowed to take her to the hospital of her father. On 28.10.2001 the parents of the petitioner have sent a Lancer car so as to pick up her and the respondent has slapped the petitioner in the presence of his mother and also scolded her by using filthy words. During June 2001, the petitioner has left for UK and sent a parcel to the child and also talked to her over phone and after knowing all these things the respondent has withdrawn the child from the school. Since the respondent has caused both physical and mental cruelty to the petitioner, she has chosen to give a legal notice on 10.12.2001 and even after receipt of the same, the respondent has not changed his attitude. Under the said circumstances, the present petition has been filed for dissolving the marriage held between the petitioner and respondent.
4. In the counter filed on the side of the respondent it has been stated that both the petitioner and respondent have conducted normal matrimonial life. The respondent has encouraged to pursue higher studies of the petitioner. The respondent has made all adjustment and accommodation. It is false to say that out of the money given by the father of the petitioner, a new Maruti Omni van has been purchased by the respondent and the same has been purchased by the maternal uncle of the respondent and due to mechanical defect the same has been sold. It is false to say that for running the mill of the respondent, he demanded money on various occasions from the father of the petitioner and the same has been closed. It is true to say that the father of the petitioner has spent money towards the studies of the petitioner. It is false to contend that on several occasions the respondent has scolded the petitioner by using filthy words. It is also equally false to say that the respondent has not allowed the petitioner to go to her parent's house on the eve of Tamil New Year day in the year 1997. The respondent has hailed from a respective family and there is no need on the part of the respondent to compel the petitioner to bring grossery and other household articles. The mother of the respondent has stayed in a separate house and it is totally false to contend that the respondent has acted on the evil advice of his mother. The petitioner has left five months old baby and gone to Chennai to continue to her studies. From 25.01.2002 the child has been under the care and custody of the respondent. The respondent has acted both as father as well as mother of the child. The petitioner after marriage has voluntarily changed her name as Chitra Venkat Raja. It is false to say that the same has been done due to compulsion alleged to have been made by the respondent. The petitioner has used to ill treat the respondent and he observed silence so as to lead happy matrimonial life. The petitioner has been ill advised by her father. The respondent has decided to set up a separate residence at Pandichery. The petitioner has continued her career at Jipmer hospital. The father of the petitioner has raised his objection. The father of the petitioner and her sister have exercised undue influence over the petitioner. The petitioner has contacted the child from UK over phone and subsequently she failed to contact the child. It is false to say that the life of the petitioner is in danger if she lives with the respondent. It is true that the petitioner has given a legal notice and the respondent has decided to give a reply notice, but due to advice of the elders he declined to give the same. The respondent has never caused any physical or mental cruelty to the petitioner. There is no merit in the petition and the same deserves dismissal.
5. On the side of the petitioner, a reply statement has been filed, wherein the averments made in the counter have been specifically denied.
6. The trial Court after considering the rival evidence adduced on either side, has allowed the petition. Against the order passed by the trial Court, the respondent as appellant has filed H.M.C.M.A.No.13 of 2003 on the file of the first appellate Court. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has allowed H.M.C.M.A.No.13 of 2003 and set aside the order passed by the trial Court and subsequently dismissed the petition filed in HMOP.No.29 of 2002. Against the Judgment passed by the first appellate Court, the present Civil Miscellaneous Second Appeal has been filed at the instance of the petitioner as appellant.
7. At the time of admitting this Civil Miscellaneous Second Appeal, the following substantial questions of law have been formulated for consideration:
1. Has not the lower appellate court committed error in law in rendering the findings without taking note of the cumulative evidence available in this case?
2. Is not the finding of the lower appellate court vitiated due to non- consideration of the entire evidence available on record?
3. Whether the lower appellate court is right in law in taking note of a portion of the happy married life and ignoring the major portion of the appellant's life, which is full of sorrow and cruelty due to the behaviour of the respondent?
4. Is the lower appellate court justified in law in setting aside the well considered finding of the trial court without fully considering the entire findings rendered by the trial court?
5. Is not the finding of the lower appellate court vitiated due to the non consideration of the over whelming evidence available in this case?
6. Can the lower appellate court validly hold that the parties are leading a happy married life when the evidence establish that the appellant is suffering due to the cruelty of the respondent?
7. Is the lower appellate court justified in law in not drawing the adverse inference against the respondent herein for his conduct in not filing the documents inspite of notice?
8. Has not the lower appellate court erred in law in not giving due regard to the cruelty undergone by the appellant at the hands of the respondent and his mother when the appellant was pregnant and after delivery was forced to leave the five month child under the custody of the respondent?
9. Has not the lower appellate court committed error in law in not properly taking note of the conduct of the respondent herein by not allowing the child to be taken to her maternal grandfather, a reputed well known Doctor for treatment?
10. Has not the lower appellate court committed error in law in considering a few instances noted in the Ex.R1 and not considering the entire evidence in the said Ex.R1?
8. Before considering the divergent submissions made by either counsel, it would be apropos to look into the following admitted facts.
9. It is an admitted fact that at the time of marriage the petitioner has completed her MBBS Course and she has to undergo house surgency. At that time the marriage between the petitioner and respondent has been conducted as per caste custom and Hindu rites on 23.05.1996 and both of them have been blessed with a female child on 08.10.1997.
10. On the side of the petitioner various allegations have been levelled against the respondent and thereby the respondent has caused both physical and mental cruelty to the petitioner. Under the alleged said circumstances the present petition has been filed for getting divorcement mainly on the basis of alleged cruelty.
11. On the side of the respondent a detailed counter has been filed, wherein each and every allegation made against him has been specifically denied and further it is stated that the petitioner due to ill advice made by her father has voluntarily withdrawn from the society of the respondent.
12. The trial Court has believed the case of the petitioner and ultimately granted a decree of divorce between the parties. But the first appellate court after having threadbare discussion has set aside the order passed by the trial Court and ultimately dismissed the petition.
13. The learned counsel appearing for the appellant/petitioner has repeatedly contended that the marriage between the petitioner and respondent has been performed on 23.05.1996 and from the inception of marriage the respondent has ill treated the petitioner and on several occasions she has been physically attacked by him and he compelled her to change her name as Chitra Venkat Raja and even she has not been permitted to go to her parent's house and after delivery of the child she has not been permitted to see her. Under the said circumstances the present petition has been filed for dissolving the marriage held between the petitioner and respondent. The trial Court after considering all the evidence available on record has rightly granted a decree for divorce. But the first appellate Court without considering the evidence available on record has erroneously placed much reliance upon the letters written by the petitioner and ultimately set aside the order passed by the trial Court and therefore, the Judgment passed by the first appellate Court is liable to be interfered with.
14. From the argument advanced by the learned counsel appearing for the appellant/petitioner as well as the averments made in the petition, the Court can cull out the following points which paved the way for filing the present petition.
(a) The respondent has refused to have access of the child by the petitioner
(b) The respondent has compelled the petitioner to change her name as Chits Venkat Raja
(c) The respondent has berated the petitioner on several occasions even by using filthy words
(d) The persistent conduct of the respondent has caused both physical and mental cruelty to the petitioner.
15. In order to repel the argument advanced by the learned counsel appearing for the appellant/petitioner, the learned counsel appearing for the respondent/respondent has contended that after marriage both the petitioner and respondent have lived happily and both of them have used to exchange their views by way of writing letters, wherein nothing has been stated by the petitioner about the cruelty alleged to have been caused by the respondent and after delivery of child the same has been left under the care and custody of the respondent and all the allegations levelled against the respondent are nothing but false and the trial Court without giving importance to the letters exchanged between the petitioner and respondent has been completely swayed by the allegations made in the petition as well as evidence given by the petitioner and ultimately, erroneously granted a decree for divorce. But the first appellate Court after evaluating all the evidence available on record properly has rightly dismissed the petition and therefore, the Judgment rendered by the first appellate Court is perfectly correct and the same needs no interference.
16. The petitioner has been examined as P.W.1. During the course of chief examination she has assorted the troubles and tribulations alleged to have been caused by the respondent. But during the course of cross examination she has clearly admitted that she has been displaying a name board as A.B.Chitra. Further she has admitted that she is in the habit of writing diary and further she has stated that the respondent has used to read her diary and due to that she suppressed the truth. Further she has stated that the respondent has not received Rs.2,00,000/- by way of dowry. Further she admitted that during her pregnancy period and also during her stay in hostel, every 15 days the respondent has used to come and see her. Further she admitted that she has given a gift to the respondent by saying that her husband is a noble husband. Further she has stated that on the date of delivery of the child itself, her husband has come to see the same. She has also admitted in categorical terms that she has not written anything in her diary about the alleged beating made by the respondent.
17. From the evidence of the petitioner the Court can very well come to a conclusion that both the petitioner and respondent have led a happy marital life and due to that both of them have been blessed with a female child. If really from the inception of marriage, the respondent has used to torture the petitioner and also scolded her by using filthy words, definitely the same should be written in the diary of the petitioner.
18. It is an admitted fact that both the petitioner and respondent have used to exchange letters. Exs.P9, P15 to P19 are the letters written by the respondent to the petitioner. Ex.P9 has been written on 21.08.1999, wherein it has been specifically stated that "the petitioner can live as she likes". In Ex.P15, it is stated that "you are in a new family life married to the one who likes, loves and adores you". In Ex.P16, it is stated that "from your point of view you feel that I don't know how to keep you, if I love you so much". In Ex.P17, it is stated that "I am very happy that we will be meeting soon in a weeks time". In Ex.P18, it is stated that "I miss you much more than you could possibly imagine, And I really want you to know you're the blood in my vein & heart And you're the air I breath"
always & forever.
In Ex.P19, it is stated that "I want to be happy at least with your studies. Take care of loving papa and good bye till I see you next".
19. From the letters written by the respondent to the petitioner, the Court can easily deduce that both of them have lived happily and the conduct of the respondent would go to show that he is an uxorious husband.
20. Now the Court has to look into the letters written by the petitioner to the respondent and the same have been marked as Exs.R2 to R17. In Ex.R2, it is stated like thus:
Venky, forgive your loving Chithukutty, if you think she has done any mistake. To err is human - to forgive divine. I love you a lot Venky. In Ex.R3 it is stated that "We have been longing for this Jan 24th and it is soon going to come". In Ex.R4, it is stated that "I feel very bad and even shed tears. Missing my darling Venky terribly. Sorry for all the difficulties you've had thro' me kanna. Forgive me Venky". In Ex.R.5, it is stated that "it was so nice staying with you for three days away from this environment. I love you Venky. Expecting your earliest reply. With lot of love and kisses". In Ex.R6, it is stated that "Hope your health is fine Venky. Here Kutty (our Sinna kutty) is doing fine. Take care of your health Venky. My prayers for your health of happiness with lots of love, kiss and affection". In Ex.R7, it is stated that "I am longing to stay with you very much Venky". In Ex.R8, it is stated that "I am missing home and Kutty a lot. In Ex.R9, it is stated that "Venky please forgive me and do love me at least a little though not like before. I cannot imagine a life without your love. I always believe and thank you for a loving and caring husband. So please continue to love me Venky. Please consider this as a begging letter from me for your true love and care which I am very sure not to get from anywhere else in this world except you and only you Venka".
21. Ex.R10 is a greeting card sent by the petitioner to the respondent on the eve of Valentine day, wherein it is stated that "count the number of V in this card and tell me Venky". In Ex.R11 it is stated that "I know you are the most understanding husband and I am lucky about it and I know no man will do what you do for me Venky. I am not just telling this to please you. I really feel it from my heart Venka". In Ex.R12 it is stated that "take care of your health Venka, these 5 months will be over very soon and we will never be away from each other thereafter". In Ex.R13 it is stated that "I know how much I love you my darling Venka". In Ex.R14, it is stated that "please don't mistake me and let me read a bit even when you are here with pappa Venky. With lots of love and kisses". In Ex.R16 it is stated that "My dear Venky, you are the best of the things in my life. Your love is one I will never get from anywhere else. My prayers are always for your health, happiness, prosperity and long life. "I LOVE U VENKA". In Ex.R17 it is stated that "I promise not to hurt you mentally any more from my part".
22. From the words used by the petitioner in the letters written by her, the Court can easily learn that from the inception of marriage both the petitioner and respondent have lived happily. If really the respondent has demanded money from the petitioner on various occasions and thereby tortured her and if really the respondent has restrained the petitioner from going to her parent's house, definitely the petitioner would not have written the words mentioned in her letters. Therefore, from the words found in the letters written by both the petitioner and respondent, the Court can very well come to a conclusion that both the petitioner and respondent are zestful partners in their marital life and further the respondent has proved that he is an uxorious husband. Further it is not an exaggeration to say that the words used by the petitioner in her letters addressed to the respondent are nothing but clear answers to all the allegations levelled against the respondent.
23. The only defence taken on the side of the petitioner is that from the inception of marriage the respondent has caused untold miseries to the petitioner and in order to refine him, the petitioner has written attractive and loving words in her letters. In fact, this Court has completely scanned the entire words used by the petitioner in her letters and nowhere the petitioner has expressed her dissatisfaction towards the respondent and at the same time in some letters she has shown her regret for the mistake committed by her. Therefore, it is quite clear that all the allegations levelled against the respondent are totally unbelievable and the same cannot be given much importance.
24. The present petition has been filed under section 13 (1) (i)(a) of the Hindu Marriage Act, 1955, wherein it is stated that "has, after the solemnisation of the marriage, treated the petitioner with cruelty". In the instant case, as noted down in many places, both the petitioner and respondent are zestful partners of their marital life. In fact both of them have loved each other to the maximum extent and further the respondent has proved to be an uxorious husband and therefore, the question of granting divorce between the petitioner and respondent does not arise.
25. The learned counsel appearing for the appellant/petitioner has relied upon the following decisions:
(a) In (2007) 4 Supreme Court Cases 511 (Samar Ghosh Vs. Jaya Ghosh) the Honourable Apex Court has held that "mental cruelty" is also a ground of divorce. Further it has been held that if the concerned marriage has irretrievably broken down, the same can be dissolved.
For better appreciation, the facts of the case mentioned in the decision are very much essential.
The parties in that case have lived separately for more than 16 1/2 years and the entire substratum of marriage had already disappeared. Further the appellant has undergone a heart bypass surgery, neither the respondent (wife) nor any member of her family bothered about the health of the appellant. Further both parties have been directed to appear before the Honourable Supreme Court and the appellant has not prepared to speak to the respondent, even though a request has been made. Under the said circumstances, the Honourable Apex Court has held that divorcement of their marriage is necessary mainly on the ground of mental cruelty as well as irretrievable breakdown of marriage.
(b) In (2002) 5 Supreme Court Cases 706 (Parveen Mehta Vs. Inderjit Mehta), the Honourable Supreme Court has held that Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling of one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty.
In the present case, right from the beginning the matrimonial relationship between the parties was not normal; the spouse stayed together at the matrimonial home for a short period of six months; the respondent had been trying to persuade the appellant and her parents to agree to go for proper medical treatment to improve her health so that the parties may lead a normal sexual life; all such attempts proved futile. The appellant even refused to subject herself to medical tests as advised by the doctor. After 21.06.1987, she stayed away from the matrimonial home and the respondent was deprived of her company. In such circumstances, the respondent who was enjoying normal health was likely to feel a sense of anguish and frustration in being deprived of normal cohabitation that every married person expects to enjoy and also social embarrassment due to the behaviour of the appellant. Further, the conduct of the appellant in approaching the police complaining against her husband and his parents and in not accepting the advice of the superior judicial officer and taking a false plea in the case that she had conceived but unfortunately there was miscarriage, are bound to cause a sense of mental depression in the respondent. The cumulative effect of all these on the mind of the respondent, amounts to mental cruelty caused due to the stubborn attitude and inexplicably unreasonable conduct of the appellant.
The petition for the dissolution of the marriage was filed in the year 1996. In the meantime so many years have elapsed since the spouses parted company. In these circumstances it can be reasonably inferred that the marriage between the parties has broken down irretrievably without any fault on the part of the respondent. Further, the respondent has remarried in the year 2000. On this ground also the decision of the High Court in favour of the respondent's prayer for dissolution of the marriage should not be disturbed.
26. It is an everlasting principle of law that all cases that come before the Court must be determined on its own particular fact. The circumstances vary infinitely from case to case.
27. In the decision referred to supra, as enunciated earlier the marriage between the parties has become irretrievably broken down and further the circumstances prevailed therein led to divorcement. But in the instant case, the position is entirely different. Even at the risk of repetition, the Court would like to point out that from the inception of marriage both of them have proved to be a zestful partners and further the respondent has always proved to be an uxorious husband and the petitioner has also equally proved to the same extent. But unfortunately, due to some circumstances, both of them have been driven to live separately. It is an admitted fact that both of them have been blessed with a female child. From the close reading of the petition as well as counter, the Court can easily discern that both the petitioner and respondent have hailed from respectable families and both should think of the future life of their female child. If divorcement is granted betwixt them, definitely the future life of their female child would be paralysed and the same would also create a perpetual stigma in the future life of their child. Therefore, it is quite clear that the facts and circumstances of the decisions mentioned supra are totally different from the facts and circumstances prevailing in the present case and therefore, the dictums mentioned in the decisions referred to supra cannot be a basis for granting divorce in the present case.
28. Now the Court has to look into the decisions accited by the learned counsel appearing for the respondent/respondent.
(a) In (1988)1 Supreme Court Cases 105 (Shobha Rani Vs. Madhukar Reddi) the Honourable Apex Court has held that evidence of harassment or of intention to treat with cruelty not essential to establish cruelty. The Court would draw inference and decide on the basis of preponderance of probabilities having regard to the nature of conduct of the other spouse and its impact on the complaining spouse in the context of their standard of life
(b) In 2002-3-L.W.661 (D.Suganthi Vs. B.Janakiram) the Division Bench of this court has held that we are also conscious of the fact that in a case of divorce, we have to take all care and caution before granting a decree of divorce, as it would not only end the marital tie between two individuals, but also would bring the relationship of two families to an end and therefore, the repercussion that would follow in granting a decree of divorce has also got to be borne in mind. We do not find, in this case, that life between the parties has reached to the extent, to come to the conclusion that the marriage between them is dead or cannot be renewed.
(c) In 2001-3-L.W.210 (Chetan Dass Vs. Kamla Devi), the Honourable Apex Court has held that the appellant cannot be allowed to take advantage of his own wrong for the purpose of obtaining a decree.
29. In the instant case, as noted down in many places, even though several allegations have been levelled against the respondent, all those allegations proved to be false in view of the words coined by the petitioner in the letters written by her. If really, both of them have not loved each other and if really both of them have not led happy marital life, definitely the words mentioned in the letters written by the petitioner would not have emerged. The words mentioned in the letters written by the petitioner itself have proved that all the allegations levelled against the respondent in the petition are false and further, it has already been pointed out that the future life of their female child should also be taken into consideration. Both of them have hailed from respectable families and also caste. If divorce is granted on the basis of the mere allegations made against the respondent in the petition, there is no second opinion that the future life of their female child would be affected and their dovercement would definitely create atimy in the future life of their child. Therefore, viewing from any angle, no scope is in existence for granting divorce between the petitioner and respondent.
30. The trial Court without giving much importance to the letters exchanged between the parties or without reading the same in a proper perspective, has erroneously granted divorcement between the petitioner and respondent. But the first appellate court after having elaborate discussion and also having practical approach has rightly come to the conclusion that no suitable ground is in existence for granting divorce. In view of the discussion made earlier, it is very clear that the Judgment passed by the first appellate Court is perfectly correct. Under the said circumstances the argument advanced by the learned counsel appearing for the appellant/petitioner is sans merit, whereas the argument advanced by the learned counsel appearing for the respondent/respondent is really having subsisting force and further all the substantial questions of law raised in the present Civil Miscellaneous Second Appeal are not legally and factually sustainable and altogether the present Civil Miscellaneous Second Appeal is liable to be dismissed.
31. In fine, this Civil Miscellaneous Second Appeal deserves dismissal and accordingly is dismissed without cost. The Judgment dated 20.06.2005 passed in H.M.C.M.A.No.13 of 2003 by the Principal District Court, Virudhunagar District at Srivilliputhur is confirmed.
mj To
1.The Principal District Court, Virudhunagar District at Srivilliputhur
2.The Sub Court, Srivilliputhur