The husband is the appellant. His Original Petition in H.M.O.P.No.190 of 2008 filed on the ground of cruelty was allowed by the Principal Sub Court, Thanjavur. On appeal by the wife, the said decree was reversed, which resulted in dismissal of his application for divorce. Aggrieved by the same, the present Civil Miscellaneous Second Appeal has been filed by the husband.
2. The case of the husband before the trial Court was that the respondent/wife did not co-operate for conjugal relationships and that she treated him with cruelty and tortured him. She always doubted the character of the appellant and whenever any other woman spoke to him, she would pick up quarrel and ill-treat him. This continuous suspicion led to severe stress, resulting in mental cruelty. It is also further alleged that she would abuse him in filthy, vulgar and unparliamentary language in the presence of outsiders. She also made wild and untruthful allegations against the appellant to his friends and relatives which led to considerable mental agony. The very attitude of the respondent has caused mental torture and cruelty to the appellant and hence, he was forced to seek divorce on the ground of mental cruelty.
3. The respondent/wife resisted the said application, denying all the allegations and contended that she wants to live with her husband and she had denied the allegations regarding cruelty. She would also claim that she got a girl child out of their marriage and that at least for the welfare of the child, she has to live with her husband.
4. On the above pleadings, the trial Court framed the following issue: ?Whether the Petitioner is entitled to get a decree of divorce as prayed for??
5. The appellant himself examined as P.W.1 and two independent witnesses were examined as P.W.2 and P.W.3 and Exs.P.1 and P.2 were marked. On the side of the respondent, she was examined as R.W.1 and no documents were marked.
6. The trial Court, upon consideration of the evidence, came to the conclusion that the conduct of the wife had resulted in mental cruelty and the copies of the complaint given by him under Ex.P.1 and Ex.P.2 before All Women Police Station, Pattukkottai, would also show that the wife is in the habit of defaming the husband in the presence of others.
7. The trial Court also took note of the fact that the sister of the wife is a Police Constable and his complaints, with the help of her sister, were not taken on file. The trial Court concluded that these actions of the wife would amount to cruelty and allowed the application granting divorce.
8. Aggrieved by the same, the wife filed an appeal in C.M.A.No.43 of 2010, on the file of the I Additional District and Sessions Judge, Thanjavur.
9. The lower appellate Court framed the following issues for consideration:
?1.Whether the Petitioner has established his case on mental cruelty as prayed for by him?
2.Whether the Trial Court is right in granting divorce to the Petitioner?
3.Whether the impugned order of the trial Court suffers from illegality or material irregularity, warranting interference in this appeal?
4.Whether the Civil Miscellaneous Second Appeal deserves to be allowed??
10. The lower appellate Court did not, in fact, reverse the finding of fact made by the trial Court. All that the lower appellate Court would conclude is that the acts of cruelty alleged in the petition relate mental cruelty, whereas the evidence has been let in to show that there was physical cruelty by the wife against the husband and the lower appellate Court would also conclude that the claim of the husband that she did not co-operate for conjugal relationships is not correct solely on the basis that there is one child born out of the marriage.
11. The lower appellate Court would conclude that though the evidence of P.W.2 and P.W.3 is available to show that the wife has assaulted the husband in a public street and such assault would amount to physical cruelty and not mental cruelty. On the above findings, the lower appellate Court allowed the appeal pointing out that there was no pleadings regarding physical cruelty and dismissed the application for divorce. Aggrieved by the same, the husband is before this Court.
12. This appeal has not been admitted and only notice was ordered.
13. The following substantial questions of law are framed for determination in this appeal:
?(i) Whether the lower appellate Court was right in reversing the findings of the trial Court on the ground that the husband has not pleaded mental cruelty?
(ii) Whether the lower appellate Court was right in interfering with the decree for divorce after having found that the evidence of P.W.2 and P.W.3 stood uncontroverted??
14. I have heard Mr.M.V.Venkataseshan, learned Counsel for the appellant and Mr.M.P.Senthil, learned Counsel for the respondent.
15. No doubt, true that the entire petition filed by the husband deals with mental cruelty and not physical cruelty. However, any physical cruelty when committed to the knowledge of others, it makes the husband a laughing stock in the presence of third parties and the same would undoubtedly amount to mental cruelty. The learned District Judge, in my considered opinion, was not correct in concluding that the acts of the wife spoken to by P.W.2 and P.W.3 would not lead to mental cruelty.
16. It would be appropriate to refer to the evidence of P.W.2 and P.W.3 at this juncture. P.W.2, in his chief examination, has stated as follows:
?ehd; jw;nghJ jQ;rht{h; rpnyhd; fhydpapy; trpf;fpnwd;. kDjhuh; vjph;kDjhuiuj; bjhpa[k;. vq;fs; tPl;Lf;fUfpy; FoapUe;jhh;fs;. jpUkzj;jpw;F gpwF 1> 2 thuq;fs; mq;F ,Ue;jhh;fs;. gpwF rz;ilahf ,Ue;jJ. bjUf;fhuh; vd;w Kiwapy; nfl;nld;. mth; rz;iliag; bghWj;Jf; nfl;ff;TlhJ vd;W brhy;yptpl;lhh;fs;. vjph;kDjhuh; mof;fo tPl;ilj; jpwe;Jnghl;Ltpl;L ngha;tpLthh;. ehq;fs; nfl;ljw;F> nfl;ff;TlhJ vd;W brhy;yptpl;lhh;. gpwF kDjhuh; kUj;Jtkidapy; nrh;f;fg;gl;oUe;jhh;. kDjhuh; tPl;ow;F te;jgpwF vjph;kDjhuh; FLk;gj;jhh; te;J kDjhuhplk; jfwhW bra;jhh;fs;. kDjhuiu clk;gpy; Jzp ,y;yhky; nghl;L moj;jhh;fs;. ehd;jhd; mtUf;F nt\;o bfhLj;njd;. ePjpkd;wj;jpypUe;J rhl;rp brhy;y rk;kd; te;jJ.? In the cross examination of the said witness, namely, P.W.2, there is not even a suggestion that the incident as spoken to by him in the chief examination did not happen. The following is the cross-examination of P.W.2:
?ehd; vjph; bjUtpy; FoapUf;fpnwd;. ehd; kDjhuUf;F cwtpdh; ,y;iy. kDjhuh; vdf;F ez;gUk; ,y;iy. xnu bjUtpy; FoapUg;gjhy; gHf;fk;. tPl;ow;Fs; kDjhuUf;Fk; vjh;kDjhuUf;Fk; vd;d gpur;rpid vd;W bjhpahJ. ve;j njjpapy; mth;fSf;F rz;il te;jJ moj;jhh;fs; vd;W Qhgfk; ,y;iy. kDjhuh; brhy;ypf;bfhLj;J mth; brhy;ypf;bfhLj;J bgha;ahf rhl;rp mspf;fpnwd; vd;why; rhpay;y. mtUf;F Mjuthf bgha; rhl;rpak; mspf;fpnwd; vd;why; rhpay;y.? P.W.3 in his chief examination has stated as follows:
?ehd; jQ;rht{h; rpnyhd; fhydpapy; FoapUf;fpnwd;. kDjhuiua[k; vjph;kDjhuiua[k; vdf;F bjhpa[k;. rhl;rp brhy;y rk;kd; te;jJ. kDjhuUf;Fk; vjph;kDjhuUf;Fk; 2 tUlq;fSf;F Kd; jpUkzk; ele;jJ. jpUkzj;jpw;F ehd; nghapUe;njd;. ,ilapy; mth;fSf;Fs; rz;il te;jJ. ehd; gf;fj;J bjUtpy; ,Uf;fpnwd;. ehd; me;jg; gf;fkhf nghFk;nghJ rz;il ele;J bfhz;oUe;jJ. kDjhuh; nkhrkhf fple;jhh;. ehd; ngha; cjtp bra;njd;.?
Even in his cross-examination, the fact that such incident took place, is not disputed. The cross-examination of P.W.3 is as follows:
?kDjhuh; vd;d tHf;F nghl;Ls;shh; vd;W bjhpahJ. mth;fSf;Fs; vg;go FLk;gk; elj;jpdhh;fs; vd;W bjhpahJ. kDjhuh; nfl;Lf; bfhz;ljw;F ,zq;f mtUf;F rhjfkhf bgha; rhl;rp mspf;fpnwd; vd;why; rhpay;y.?
17. The above evidence on record and the letter given by the wife to All Women Police Station, Pattukkottai, wherein she has accused of him of attempting a second marriage, would definitely show that the husband has been treated with cruelty by the wife. Once the evidence of P.W.2 and P.W.3 remains on record and it is not controverted, I do not think that there can be worst cruelty than what has been described by two witnesses. Both P.W.2 and P.W.3 have categorically spoken to the effect that the husband was stripped naked on road and beaten by her and her sister. I do not think that any better evidence is required to prove the physical as well as mental cruelty. The learned District Judge was wrong in stating that the evidence of P.W.2 and P.W.3 would only prove the physical cruelty and not mental cruelty.
18. In my considered opinion, the action of the wife spoken to by P.W.2 and P.W.3 would establish beyond all reasonable doubt that the behavior of the wife, in fact, amounted to mental cruelty and the learned Sub Judge was right in taking into account the said evidence and concluding that the husband is entitled to divorce on the ground of mental cruelty. The learned District Judge was also not right in stating that there was lack of pleadings regarding mental cruelty, when the pleadings would show that the entire conduct of the wife amounted to mental cruelty. Considering the fact that the wife and her sister had indulged in such heinous act by stripping the husband naked in the road, I do not think that there can be a better case for concluding that it amounts to mental cruelty.
19. Therefore, both the substantial questions of law are answered in favour of the appellant and the learned District Judge was not right in reversing the decree for divorce granted by the trial Court on the ground of mental cruelty.
20. The learned Counsel for the respondent would rely upon the judgment of the Division Bench of this Court in Vijayalakshmi Balasubramanian v. R.Balasubramanian reported in 1997-II-MLJ-370, wherein the Division Bench of this Court had pointed out that isolated incident of cruelty alone, should not be criterion. True, there can be no quarrel over the said proposition that solitary incident cannot be a ground for cruelty, but, in the case on hand, what has been proved, is a very heinous conduct by the wife and her sister to strip naked the husband in the street and beat him up and taking into account the seriousness of the conduct of the wife, I find that solitary incident is sufficient ground for divorce in the case on hand. The whole matrimonial relationship has to be considered, but when a Hindu marriage is considered to be sacrosanct, such conduct on the part of the wife, cannot be brushed aside as a solitary incident.
21. In the result, this Civil Miscellaneous Second Appeal is allowed and the judgment and decree of the lower appellate Court are set aside and the judgment and decree of the trial Court are restored. No costs. Consequently, the connected miscellaneous petition is closed.
To
1.The I Additional Sessions Judge (PCR), Thanjavur.
2.The Principal Sub Court, Thanjavur.
3.The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai..