1. This Civil Miscellaneous Second Appeal has been filed, to set aside the judgement and decree, dated 25.07.2017, made in HMCMA.No.25 of 2015, by the IV Additional District Judge, Tirunelveli, confirming the judgement and decree, dated 20.04.2015, made in HMOP.No.96 of 2014, passed by the Subordinate Judge, Sankarankoil.
1/10 https://www.mhc.tn.gov.in/judis CMSA(MD).No.36 of 2017
2. The case of the Appellant as set out in the HMOP is that the Appellant is a B.Tech Degree Holder and he got employed at Bahrain. The marriage between the Appellant and the Respondent took place on 24.03.2008 at Karaikudi. They never seen each other before the marriage and on seeing the photo through internet only, the marriage was arranged. To his shock and surprise, the attitude of the Respondent during the nuptial night was confusing him and she was behaving abnormally and the attempts of the Appellant to have the marriage consummated failed. Even after three days of the marriage, her conduct did not change. It was informed by her parents that she would be alright in a while. The marriage was registered on 10.04.2008. She was taken to Vadamalayam Hospital, Madurai on 07.05.2008 by the Appellant for treating her and the said Hospital required the earlier history of the Respondent, but it was not given by her parents. She lived with him only for 50 days. There was no cohabitation between them. In the 2nd week of May, 2008, she was taken by her parents from the matrimonial house and thereafter, she never contacted the Appellant and she did not bother to take care of him. She was not in a sound state of mind and not fit to lead the normal marital life. The Respondent had made a complaint before the concerned Police against the parents of the Appellant and the elder brother of the Appellant on 30.03.2012, without false allegations. In such circumstances, the HMOP has been filed, seeking for a decree of divorce on the grounds of cruelty and desertion.
3. The case of the Respondent, as set out in the counter filed in the HMOP is 2/10 https://www.mhc.tn.gov.in/judis CMSA(MD).No.36 of 2017 that the parties are related to each other. The marriage and the registration of the same are admitted. The facts of non-consummation of marriage and the treatment given to her are denied. The husband and wife were taking through phone even for four months prior to marriage. She was doing her duties in the matrimonial house without fail. A sum of Rs.2,00,000/- and 15 sovereigns of gold jewels and other household articles, as Sridhana, were given at the time of marriage. A sum of Rs.5,00,000/- was spent towards the marriage expenses. She was working as a Steno in the Tamil Nadu State Government and hence, it cannot be stated that she was in a unsound state of mind. The Appellant had stated that only on compulsion, he had agreed to marry. He harassed her mentally by stating that only for getting the money, he had married her. Only for two days, they had physical relationship and thereafter, it was the Appellant, who avoided her and caused cruelty to her by saying one reason or the other and by demanding a dowry of Rs. 5,00,000/-. While so, without informing her, the Appellant had gone somewhere and he was talking to his parents through phone only and he was telling that he was at Mumbai or Chennai. Thereafter, she came to know that actually, Appellant had gone abroad without informing her and thus, it is the Appellant, who deserted her. There was a Panchayat held by the elders and after the Panchayat only, which ended in vein, she came to her parents' house. In 2010, again she went to the matrimonial house, but, the Appellant was not there and the parents of the Appellant were giving evasive answers. Since she did not know about the whereabouts of the Appellant, she was 3/10 https://www.mhc.tn.gov.in/judis CMSA(MD).No.36 of 2017 constrained to file the HCP and to give the complaint. In such circumstances, the HMOP is liable to be dismissed.
4. Before the Trial Court, on the side of the husband, Ex.P1 to Ex.P5 were marked and he examined himself as PW.1 and on the side of the wife, she examined himself as DW.1 and marked Ex.R1 to Ex.R4. After analysing the evidence both oral and documentary, the Trial Court had dismissed the HMOP by the impugned judgement. Before the lower appellate court, Ex.P6 to Ex.P11 were marked. The appeal was also dismissed, dismissing the HMOP, by the impugned judgement. Hence, this Civil Miscellaneous Second Appeal has been filed by the husband.
5. This Civil Miscellaneous Second Appeal was admitted, on the following substantial questions of law:-
(a) Whether the courts below are right in concluding that the filing of numerous proceedings by the Respondent against the Appellant and dismissal by various forums would by itself not amount to mental cruelty?
(b) Whether the courts below are right in concluding that the husband has not made out a case of desertion, more so, when the wife admitted that the spouses were living apart for the past 7 years?
6. This Court heard the submissions of the learned counsel on either side and also their rival contentions on the substantial questions of law framed as above.
7. The learned counsel for the Appellant has submitted that it was because of the Respondent that their marriage was not consummated and that he had taken steps to take her abroad after the marriage and that by initiating 4/10 https://www.mhc.tn.gov.in/judis CMSA(MD).No.36 of 2017 various proceedings against the parents of the Appellant and his brother on false allegations and by filing maintenance petition, she had caused mental cruelty to him, which fact was not considered properly by both the courts below and that when the Respondent herself admitted in her cross examination that she was living separately for the past seven years, the courts below failed to consider the fact of desertion in his favour. The learned counsel would further submit that at this long period of continuous separation, reunion is not possible and that the matrimonial bond is beyond repair and that the conduct of the Respondent would prove the harassment and mental cruelty meted out to the Appellant and that both the courts below erred in denying the relief of divorce, when there are ample evidence available and as such, this CMSA is to be allowed, by granting divorce.
8. In support of his contentions, the learned counsel for the Appellant would rely on the decisions reported in 2019 3 MLJ 106 (Martin Sagayanadin Vs. Antoinette), 2012 2 MWN Civil 769 (K.Raghunadhan Vs. M.Revathi), 2008 2 LW 254 (R.Anand Vs. P.Indu), 2021 SCC Online SC 146 (Joydeep Majumdar Vs. Bharti Jaiswal Majumdar), 2013 5 SCC 226 (K.Srinivasa Rao Vs. D.A.Deepa), 2006 4 SCC 558 (Naveen Kohli Vs. Neelu Kohli), 2007 4 SCC 511 (Samar Ghosh Vs. Jaya Ghosh) and 2017 9 SCC 632 (Sukhendu Das Vs. Rita Mukherjee).
9. The learned counsel for the Respondent would submit that when the Respondent was working in the State Government, it cannot be stated that she was in a unsound state of mind and that they had physical relationship 5/10 https://www.mhc.tn.gov.in/judis CMSA(MD).No.36 of 2017 and that it was the Appellant, who avoided her and caused cruelty to her by saying one reason or the other and by demanding a dowry of Rs.5,00,000/- and that it is the Appellant, who without informing her, had gone abroad and deserted her and that when she came to the matrimonial house, she did not found her husband and hence, she initiated proceedings against them and hence, this CMSA is liable to be dismissed. He would rely on the decision reported in AIR 1962 SC 1314 (Sir Chunilal Vs. Mehta and Sons).
10.This Court considered the rival submissions of the learned counsel on either side and also perused the materials available on record.
11.It is not in dispute that the arranged marriage between the Appellant and the Respondent took place on 24.03.2008 at Karaikudi and that the marriage was registered on 10.04.2008. The Appellant has sought for a decree of divorce on the grounds of cruelty and desertion. Both the courts below have concurrently held that the Appellant had not proved the grounds of cruelty and desertion by valid evidence. In this CMSA, the above substantial questions of law have been formulated on those lines. It is, now, to be seen as to whether the courts below are justified in denying to grant the relief of divorce to the Appellant or not, by answering the substantial questions of law on the basis of materials placed on record and the factual matrix of the case.
12.Cruelty may be physical or mental. The question as to whether a spouse is inflicted with physical cruelty or not, can be judged on the basis of direct evidence. But, whereas, the mental cruelty is to be inferred on analysing the factual matrix of each case and drawing conclusion thereon. 6/10 https://www.mhc.tn.gov.in/judis CMSA(MD).No.36 of 2017
13.Ex.P8 is the order dated 10.07.2012 made in HCP(MD)No.439 of 2012 filed by the Respondent against the parents and the brother of the Appellant and in the said order, it was observed by this Court that the HMOP was filed by the detenu/Appellant and the Respondent was contesting the same and the Respondent was directed by this Court to work out appropriate remedy before appropriate forum.
14.Ex.P10 is the order dated, 10.09.2014 made in the complaint in CC.No.275 of 2011 filed by the father of the Respondent against the brother of the Appellant under
Sections 406 and
420 of IPC and it was also dismissed, observing that only in order to wreck vengeance against the family of the Appellant, the complaint had been filed and the CRL.OP and the appeal filed as against the same were also dismissed by this Court, by order dated, 05.01.2015.
15.The Respondent had also filed a complaint against the Petitioner and his family Members in DVC.No.1 of 2014 under the provisions of the Protection of Women From Domestic Violence Act, 2005 and it was allowed in part, by order dated 04.09.2015, observing that the Respondent did not prove the domestic violence by valid evidence and that the Respondent had not come to court with good intention, however, ordering to return the jewels and sridhana articles and it was marked as Ex.P11.
16.Even during the pendency of the appeal, the Respondent had filed MC.No.9 of 2016 seeking maintenance and CRMP.No.3314 of 2017 for an interim maintenance, though she was a Government Servant and the said petition 7/10 https://www.mhc.tn.gov.in/judis CMSA(MD).No.36 of 2017 was dismissed, stating that the Respondent had not come to court with clean hands and the allegations made by her are false and she is in ill-motive to her husband.
17.By proceedings dated, 11.08.2017, before the Sub Inspector of Police, All Women Police Station, Karaikudi, jewels and other articles were returned back to the Respondent. Even during the pendency of this Civil Miscellaneous Second Appeal, the Respondent had sent a notice, dated 24.01.2018, to the counsel for the Appellant, calling upon him to pay a sum of Rs.50 lakhs for the mental agony caused to her, by filing this CMSA.
18.It is pertinent to point out that all the above proceedings were initiated by the Respondent after filing of the HMOP. Further, all the above proceedings initiated by the Respondent against the Appellant and his family Members were dismissed, as not substantiated, by various forums condemning the act of the Respondent. The above said conduct of the Respondent would clearly go to show her attitude towards the Appellant and his family Members and that she is not willing to live together and that the Respondent had harassed the Appellant and caused mental cruelty to the Appellant, by initiating proceedings against him.
19.The essence of marriage is sharing of a common life and all the happiness which life has to offer and all the misery that has to be faced in life. Desertion means intentional permanent abandonment of one spouse by other without the consent of other and reasonable cause. In this case, the Respondent in her cross examination had deposed that she along with the Appellant lived 8/10 https://www.mhc.tn.gov.in/judis CMSA(MD).No.36 of 2017 together only for a month and that for the past 7 years, they have been living separately and she did not file any petition for restitution of conjugal rights. As as on date, i.e. for the past 13 years, admittedly, the husband and wife are living separately, which has created an unbridgeable distance between them. In this case, such an essence of marriage is missing. Living separately for a long period and not being able to live together is to form basis of breakdown of marriage.
20.When there has been a long period of continuous separation, it can fairly be surmised that the matrimonial bond is beyond repair and 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, as has been held in 2006 4 SCC 588 and 2012 2 MWN Civil 769 cited supra. Filing false complaints and initiating proceedings with false allegations against the husband and his family Members would amount to cruelty, as has been held in 2008 2 LW 254 and 2013 5 SCC 226 cited supra.
21.In this case, taking into consideration the above said factors coupled with the admitted fact that the parties are living separately for more than 13 years, the irresistible conclusions that could be arrived at would be that the matrimonial bond has been ruptured beyond repair, because of the mental cruelty caused by the Respondent by initiating of various proceedings with false allegations before various forums and the marriage becomes a fiction though supported by a legal tie and that it will not be possible for the parties to live together. In such view of the matter, this is a case where the 9/10 https://www.mhc.tn.gov.in/judis CMSA(MD).No.36 of 2017 A.A.NAKKIRAN, J.
Srcm courts below ought to have granted a decree for divorce, but both the courts below have miserably failed to do so and hence, the impugned judgements of both the courts below have to be necessarily set aside and the Appellant is entitled for a decree of divorce as prayed for in the HMOP. Accordingly, the substantial questions of law are answered in favour of the Appellant and against the the Respondent.
22.In fine, this Civil Miscellaneous Second Appeal is allowed. No costs.
07.09.2021 Index:Yes/No Web:Yes/No Speaking/Non Speaking Srcm To
1. The IV Additional District Judge, Tirunelveli
2. The Subordinate Judge, Sankarankoil
3. The Record Keeper, VR Section, Madurai Bench of Madras High Court, Madurai Pre-Delivery Judgement in CMSA(MD).No.36 of 2017 10/10 https://www.mhc.tn.gov.in/judis