THE HONOURABLE MR. JUSTICE R. SUBBIAH and THE HONOURABLE MR. JUSTICE A.D. JAGADISH CHANDIRA Civil Miscellaneous Appeal No. 1413 of 2016 ---
Baby .. Appellant Versus P. Dhanapal .. Respondent Appeal filed under Section 19 of the Family Courts Act, 1984 against the Order and Decree dated 04.04.2016 passed in H.M.O.P. No. 152 of 2015 on the file of Family Court, Erode For Appellant : Mr. Ar.L. Sundaresan, Senior Advocate for Mr. I.C. Vasudevan For Respondent : Mr. S. Kaithamalai Kumaran
JUDGMENT
R. SUBBIAH, J
The appellant is the wife. The respondent is the husband. The appellant is aggrieved by the Order dated 04.04.2016 passed in H.M.O.P. No. 152 of 2015 on the file of Family Court, Erode, by which, the petition filed by her under Section 13 http://www.judis.nic(.1in) (ia) of The Hindu Marriage Act, 1955 for dissolution of the marriage solemnised between her and the respondent on 19.11.2010, was dismissed.
2. The case of the appellant is that the marriage between her and the respondent was solemnised on 19.11.2010 as per Hindu rites and Customs. According to the appellant, at the time of marriage, it was represented that the respondent was employed in Thirupur Eastman Export Company and earning Rs.15,000/- per month. At that time, the appellant was employed as Lecturer in Nanda College. After the marriage, the appellant, respondent and the parents of the respondent lived jointly for about eight months. Thereafter, the appellant and the respondent lived in the house owned by the father of the appellant at Munnamparappu. According to the appellant, only at the time when the appellant and the respondent shifted the residence to Munnamparappu, she came to know that the respondent is jobless. When it was questioned, the respondent replied that he is working as a L.I.C. Agent and earning money. In this regard, the respondent requested the appellant to take a policy in her name by paying a sum of Rs.40,000/- once in six months towards premium amount and accordingly, she has taken a Life Insurance Policy during the year 2011 through the respondent for which she paid a sum of Rs.2,40,000/- towards premium covering a period of six renewals at the rate of Rs.40,000/- per renewal. Further, the appellant has paid a sum of Rs.5,00,000/- to the respondent towards premium amount for the policy taken in the name of her family members. It is the specific grievance of the appellant that the respondent, under the guise of acting as an L.I.C. Agent, did not go for any other employment and when it was questioned, he scolded the appellant in filthy language. According to the appellant, the respondent ill-treated her by stating that she is not fit enough to give birth to a child. By saying so, the http://www.judis.nicr.einspondent also prevented the appellant to sleep in the night, which had a bearing on her while attending to her work on the next day. Above all, the appellant made it clear that the respondent is not inclined to go for any employment and demanded the appellant to bring more amount from her parents. On one occasion, when the physical and mental abuse increased manifold, the appellant resigned from her employment. Thereafter, to prove that the appellant is fit enough to bear a child, she had undergone a medical check up along with the respondent. The medical examination revealed that there is deficiency on the part of the respondent which deprived the appellant to bear a child. After the deficiency of the respondent become apparent, he started treating the appellant cruelly. The respondent, during August 2014, demanded the appellant to bring a sum of Rs.5,00,000/- from her parents to enable him to start a business. Further, the respondent also pledged all the jewels of the appellant, which were offered at the time of marriage by her parents, and spent all the amount thereof. According to the appellant, unable to bear the mental and physical harassment inflicted on her by the repsondent, she left the matrimonial home on 07.02.2015 and took shelter with her parents. Thereafter, on the basis of the complaint given by the appellant on 11.04.2015 before the Superintendent of Police, Erode, an enquiry was conducted during which the respondent had returned the 18 ½ sovereigns of gold ornaments of the appellant, which were pledged by him. According to the appellant, there is no scope for re-union since the matrimonial relationship between the appellant and the respondent had irretrievably broken leaving no scope for resolution of the matrimonial dispute.
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3. The respondent filed a counter affidavit before the Family Court opposing the Petition filed by the appellant for divorce on the grounds of cruelty. According to the respondent, he was employed in Easement Export Company, Tirupur. It is due to the insistence of the appellant not to go for an employment at Tirupur, he resigned his employment and started a textile business of his own. When appellant and the respondent were residing along with the parents of the respondent, at the request of the appellant, the respondent stayed in the house owned by the father of the appellant at Mullamparappu. After setting up a separate residence, the appellant behaved rudely towards the respondent and did not respect him. Further, even during the year 2002, when the respondent was studying in the college, he was working as a L.I.C. Agent on part time basis and from and out of such income, he was maintaining his family. The L.I.C. policies were taken in the name of the appellant and her families on their own and the premium amount have been remitted in the office of the Life Insurance Corporation periodically. The appellant resigned the employment as Lecturer due to the fact that she was advised by the Doctors to take rest as she was weak and fragile and it had a bearing on her health to bear a child and not due to the mental harassment inflicted on her by the respondent, as alleged. Since there was no child born to the appellant and the respondent, the appellant as well as the respondent have subjected themselves to periodical medical examination from 2011 to 2014 and such expenses were borne by the respondent. Inspite of the advise given by the Doctors, the appellant had gone to Singapore on 20.08.2014 to see her sister and returned to India on 01.09.2014. The respondent has maintained and treated the appellant well and she was not subjected to physical or mental harassment, as http://www.judis.nica.ilnleged. The appellant voluntarily deserted the respondent from his matrimonial relationship during January 2015 and thereafter, she has given a complaint on 07.02.2015 to the Superintendent of Police, Erode against the respondent. During the course of enquiry, the respondent had returned the 18 ½ sovereigns of gold jewels of the appellant and it was also acknowledged by her. The appellant has not shown any interest to lead a happy matrimonial life with the respondent due to instigation of her parents and relatives. The Petition filed for divorce by the appellant has no merits and therefore, the respondent prayed for dismissal of the petition.
4. In order to substantiate the averments made in the Original Petition, the appellant examined herself as PW1, the aunt of the appellant Kannammal was examined as PW2 and Exs. P1 to P7 were marked. On behalf of the respondent, he examined himself as RW1 and marked Exs. R1 to R8. The Family Court, upon analysing the oral and documentary evidence, particularly Ex.R1, disbelieved the statement of the appellant that the respondent was without any employment. The Family Court further disbelieved the statement of the appellant that there was deficiency on the part of the respondent which deprived her from bearing a child. The Family Court, by analysing the medical evidence, found that both the appellant and the respondent were leading a happy matrimonial life atleast till 24.09.2014 when they came back to India from Singapore. Therefore, the Family Court brushed aside the averments and counter averments made by the appellant as well as the respondent regarding the matrimonial dispute prior to 24.09.2014. The Family Court has further found that the appellant has given a complaint dated http://www.judis.nic0.i7n .02.2015 before the Superintendent of Police, Erode only with respect to return of the gold ornaments and they were also returned by the respondent. In the complaint dated 07.02.2015, the appellant did not make any other allegations against the respondent with respect to physical or mental harassment, which are alleged in the Petition for divorce. Therefore, the Family Court dismissed the Petition filed by the appellant for divorce.
5. Mr. Ar.L. Sundaresan, learned Senior counsel appearing for the appellant/wife would mainly contend that the respondent has not discharged his obligation, as a husband, to maintain the wife/appellant. The respondent has no sufficient earning through any employment to maintain the appellant, rather, he was dependent on the appellant even for his basic needs. Further, the respondent had deficiency to give birth to a child, however, he had scolded the appellant as if she was having such deficiency and on that reason caused mental and physical disturbance and did not even allow her to sleep during night. Therefore, apprehending that her life will be further ruined owing to the frequent mental and physical violence inflicted on her by the respondent, she had left the matrimonial home and started residing with her parents for the past more than three years. Above all, it is submitted that the appellant, as PW1, had spoken to about the ill- treatment meted out to her by the respondent in her chief examination, but there was no cross-examination by the respondent to prove the contrary. The Family Court failed to consider that the life of the appellant will be jeopardised if she continued to live with the respondent. While so, the Order passed by the Family Court dismissing the petition filed by the appellant seeking divorce on the grounds of cruelty warrants interference by this Court.
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6. Mr. Kaithamalai Kumaran, learned counsel appearing for the respondent would oppose the submissions made by the learned Senior counsel for the appellant by contending that a clear finding has been given by the Family Court that the respondent was in employment and out of the earnings, he maintained the appellant befitting to his financial capability. Further, the averments made by the appellant for grant of divorce are not legally sustainable and they are trivial in nature which can be resolved by mutual understanding. The Family Court has given a specific finding of fact that the matrimonial life of the appellant and the respondent was blissful atleast till 24.09.2014 when the appellant and respondent came back to India from Singapore. Therefore, the allegations made by the appellant regarding the physical violence or mental harassment soon after the marriage may not be true. Further, the learned counsel for the respondent submitted that the allegations made by the appellant with respect to infliction of cruelty on her has not been substantiated by her by any acceptable evidence. While so, the Family Court is wholly justified in dismissing the petition filed by the respondent for divorce and he prayed for dismissal of the Civil Miscellaneous Appeal.
7. We have heard the learned Senior Counsel for the appellant and the learned counsel for the respondent. On perusal of the evidence made available on record, particularly the chief-examination of the appellant, as PW1, she has clearly narrated the mental cruelty inflicted on her by the respondent by citing various instances. Such evidence of PW1 was also corroborated by PW2, aunt of PW1. In http://www.judis.nich.ien r evidence, PW1 has specifically deposed that she was subjected to harassment by the respondent by stating that she is unfit to bear a child. It is further deposed that after she return home from her employment, she was made to do all house hold chores and thereafter, she will not be allowed to sleep in the night by nagging her in all forms and manifestations which had a bearing on her while attending to her work on the next day. PW1 has specifically deposed that when the results of the medical examination unfolded to the effect that it is the respondent who is having some deficiency which hindered the couple from giving birth to a child, the nagging caused by the respondent has increased manifold. The deposition of PW1 in her chief examination can usefully be extracted hereinbelow:-
“gpd;dpl;L vd; bgw;nwhh;fs; ,dpnkw;bfhz;L cjtp bra;aKoahbjd;W Twpa epiyapy; vjphpkDjhuiu ntiyf;Fr; brd;W FLk;gk; elj;JkhW brhd;djhy; nfhgkile;j vjph;kDjhuh; ntiyf;F bry;;y Kaw;rpf;fhky; ehd; FHe;ij bgw jFjpaw;wth; vd;Wk;. ,ij kiwj;J jpUkzk; bra;J bfhLj;Jtpl;ljhft[k; vd;ida[k; vdJ bgw;nwhiua[k; nftykhf jpl;o vd;id cly; hPjpahf bfhLik bra;jhh;/ mnjhly;yhky; gzpf;Fr; brd;W fisg;ghf tUk; vd;id ,ut[ KGtJk; J}';ftplhky; jfhj thh;j;ijfshy; jpl;o bfhLikg;gLj;jpdhh;/ mJklLkpd;wp vjph;kDjhuh; jhd; ve;j ntiyf;Fk; nghfkhl;nld; vd;Wk;. mtUila brytpw;F vd; bgw;nwhhplk; ,Ue;J gzk; th';fp tuntz;Lk; vd;Wk;. bjhe;jut[ bfhLj;jhh;/ J}';fpf; bfhz;oUf;Fk;nghJ vGg;gp FHe;ij bgw;Wf; bfhs;s Koahj vdf;F J}f;fk; ntz;oa[s;sjh vd;Wk; jpl;o kd cisr;riy Vw;gLj;jpdhh;/ mjdhy; cly; kw;Wk; kdepiy ghjpf;gg;gl;L vdJ tphpt[iuahsh; ntiyia tpl;Ltpl;nld;/ vjph;kDjhuhpd; Fw;wr;rhl;od; mog;gilapy; ,UtUf;Fk; FHe;ijg; bgWk; jFjp gw;wp kUj;Jt ghpnrhjid bra;jjpy; vjph;kDjhuUf;Fj; jhd; cly; hPjpahf FiwghL cs;sbjd;W bjhpe;jgpwF vd;id bfhLikg;gLj;j Muk;gpj;jhh;/ 2014 Mf!;L khjk; Kjy; thuj;jpy; bjhHpy; bra;a U:/5.00.000-? gzk; ntz;Lbkd;Wk; Jd;g[Wj;jp tPl;il tpl;L Jwj;jptpl;lhh;/ mbjhly;yhky; vy;nyhhplKk; ehd; jhahf jFjpaw;wth; vd;Wk;. Mij kiwj;J jpUkzk; bra;Jtpl;lhh;fs; vd;Wk;. ehd; kDjhujpd; jFjpf;F Vw;wthpy;iy vd;Wk;. ,dpnkw;bfhz;L vd;Dld; nrh;e;J thH vdf;F tpUg;gkpy;iy vd;Wk; Twp tUfpwhh;/ vjph;kDjhuUld; nrh;e;J thH;e;jhy; vdJ capUf;F Mgj;J Vw;gLk; epiy cs;sJ/ http://www.judis.nic.in
8. In the evidence of PW1, she has categorically stated that the respondent has no wherewithal to maintain her by earning through any employment. The respondent depended on the appellant even for his needs and also refused to go to any employment. Above all, it is specifically stated by the appellant, as PW1, that soon after the medical examination revealed that there was some deficiency on the part of the respondent, which deprived the couple from giving birth to a child, the respondent started nagging the appellant in all forms and manifestations and caused her mental and physical discomfort and disturbance. It is also deposed by the appellant that she apprehends danger to her life if she continued to live with the respondent any longer. When such statement was made by the appellant as PW1, the respondent ought to have subjected her to cross- examination on the above aspects to disprove such allegations. However, the respondent has not chosen to cross-examine the appellant on the above vital aspects relating to medical examination or the allegation that there was deficiency on the part of the respondent which deprived the couple to bear a child. When the deposition made by the appellant, as PW1, were not controverted by cross- examining her on specific and vital aspects, it would amount to an admission of such deposition made by her. Further, the appellant has specifically stated that the respondent has informed his friends and relatives that the appellant is not fit enough to bear a child, which according to the appellant, is far from truth and contrary to the medical examination. In the above circumstances, when serious allegations were made by the appellant, even to the extent of stating that she apprehends danger to her life if she is permitted to reside with the respondent, the respondent has an obligation to cross-examine the appellant to controvert the http://www.judis.nics.ianme. In the absence of any cross-examination by the respondent, we are of the view that the deposition of PW1 has to be accepted in it's entirety. Therefore, we are of the opinion that the allegations made by the appellant with respect to mental cruelty inflicted on her by the respondent have to be accepted. Further, the specific allegation of the appellant is that every day when she returns home from work, during night hours, she was not allowed to sleep by the respondent who kept on nagging her persistently alleging that she is not fit to bear a child, which would have an adverse bearing on her while attending to her work the following day. In such circumstances, we are of the view that the above allegations are sufficient to constitute mental cruelty and agony to the appellant. Such an incident cannot be viewed in isolation and the evidence on record proves to be of a nature of continuous humiliation as an every day occurrence perpetuated by the respondent and it cannot be said to be a trivial issue which would happen in day to day normal life. Thus, the evidence of PW1 would indicate that the dispute or difference of opinion between the couple are not trivial in nature and they led to a serious breakage of matrimonial journey commenced by them.
9. The learned counsel for the appellant relied on the decision of the Division Bench decision of this Court in the case of (V. Rajagopalan vs. T.R. Parimala) reported in CDJ 2015 MHC 6392 wherein the Division Bench of this Court, by placing reliance on various decision of the Apex Court, has given broad definition to the term 'cruelty' employed in The Hindu Marriage Act, 1955. Useful reference of the decision can be made to Paragraph Nos. 24 to 26 which reads as follows:-
http://www.judis.nic.in “24. It is to be borne in mind that the term Cruelty is not defined in The Hindu Marriage Act, 1955. Further, the word Cruelty cannot be placed in a straight-jacket definition. Admittedly, cruelty is a term with wider connotations. At times, the 'Mental Cruelty' is more damagiong than 'Physical cruelty' in the considered opinion of this Court.
25. In so far as the 'Mental Cruelty' is concerned, it continues to affect an individual all along and any amount of heeling words/heeling touch certainly would not remove the scars, which continue to prick and cause hurt in a continuous fashion. As regards the 'physical cruelty' is concerned, the injury may not cause a damage to that measure but it would leave a scar to remind one of the incident. However, an individual may suffer cumulative effect of physical and mental agony which may result a decision of breaking the thread as per decision Manmohan Singh vs. Aneetha Preet reported in 2013 (1) H.L.R. At Page No.289 and at Page 305 (Punjab and Haryana).
26. That apart 'cruelty' for the purpose of Section 13 (1) (I-a) of The Hindu Marriage Act, 1955 is to be construed as a behaviour by one spouse towards the other which causes a genuine and a reasonable apprehension in the latter's mind that it is not safe for her or him to continue the marital relationship with the other.”
10. The learned counsel for the appellant also relied on the decision of the Apex Court in (Durga Prasanna Tripathy vs. Arundhati Tripathy) reported in AIR 2005 Supreme Court 3297 (1) wherein it was held as follows:-
“30. Before parting with this case, we think it necessary to say the following. Marriages are made in heaven. Both parties have crossed the point of no return. A workable solution is certainly not possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. We therefore have no other option except to allow the appeal and set aside the Judgment of the High Court and affirming the order of the Family Court granting decree for divorce......
11. Applying the above decisions to this case, in the light of the specific allegation of the appellant, as PW1, to the effect that the respondent has made false propoganda to his friends and relatives that it is due to the deficiency on her http://www.judis.nicp.ian rt she could not give birth to a child, inspite of the fact that the medical examination unfolded that there was deficiency on the part of the respondent to give birth to a child, which went uncontroverted by cross-examining her, we are of the opinion that such allegations would have caused an immeasurable scar in her mind and caused mental discomfort and disturbance for her to even lead a normal life. Therefore, it cannot be said that the appellant did not make out a case for grant of divorce on the ground of cruelty. On a cumulative reading of the evidence led by the appellant and the respondent, we could come to an irresistible conclusion that it could no longer be safe or possible for re-union among the couple and it would be better to dissolve the matrimonial tie between the parties leaving it open for them to lead a life of their own without being disturbed by the other.
12. In the light of what is stated above, we set aside the order passed by the Family Court, Erode on 04.04.2016 in HMOP No. 152 of 2015 and allow the instant appeal. Consequently, HMOP No. 152 of 2015 filed by the appellant is allowed dissolving the marriage solemnised between the appellant and the respondent on 18.11.2010. No costs.
(R.P.S.J.,) (A.D.J.C.J,) -08-2017 rsh Index : Yes / No To The Presiding Officer Family Court, Erode http://www.judis.nic.in
R. SUBBIAH, J
and
A.D. JAGADISH CHANDIRA, J
rsh Pre-delivery Judgment in CMA No. 1413 of 2016 07-08-2017 http://www.judis.nic.in