Prayer:- Civil Miscellaneous Appeal filed under Section 55 of Indian Divorce Act, 1869, to set aside the Judgment and Decree, dated 19.11.2011, passed in I.D.O.P.No.8 of 2007, by the learned Principal District Judge, Thoothukudi.
C.M.A.(MD)No.239 of 2012:
Dr.Salome Devadson, W/o.Prince D.Immanuel .. Appellant Vs.
Dr.I.Prince Devadson .. Respondent Prayer: Civil Miscellaneous Appeal Petition filed under Section 55 of Indian Divorce Act, 1869, to set aside the Judgment and Decree, dated 19.11.2011, passed in I.D.O.P.No.42 of 2007, by the learned Principal District Judge, Thoothukudi.
These Civil Miscellaneous Appeals have been filed by the appellant to set aside the Judgment and Decree, dated 19.11.2011, passed in I.D.O.P.Nos.8 and 42 of 2007, by the learned Principal District Judge, Thoothukudi.
2. Since the issues involved in both the Civil Miscellaneous Appeals are interlinked, they are heard together and disposed of by this common judgment.
3.The appellant is the wife and the respondent is the husband. The marriage between the appellant and the respondent was solemnized on 19.06.2003 at St.John Baptist Church, Kadatchapuram, Thoothukudi District, according to Christian Customs and Rites. The appellant is a Doctor and the appellant's parents are also Doctors. The respondent is working as a Veterinary Doctor and subsequently, obtained Doctorate Degree in the Field of Meat Research. At the time of marriage, the respondent was working as a Scientist at National Research Centre, Hyderabad, Andhra Pradesh. At that time, the appellant was working as Doctor in Leprosy Mission Hospital (TLM) at Kothara, Maharashtra, on 5 years bond. According to appellant, the respondent treated her in suspicious manner regarding her fidelity. He was not behaving like an educated person, but, like a downtrodden uneducated man. At the time of marriage, the respondent promised the appellant that he would allow her to do her Post Graduate studies. Subsequently, he refused to do so.
4.The respondent used to ring up the appellant while assisting the Surgeon in the Operation Theatre and when she did not answer call in the mobile he would question her and harass her by asking cheap questions and mentally harassed the appellant. When they were staying at Hyderabad and when the appellant gave water to small boy, who used to deliver dry cleaned clothes, the respondent shouted at the appellant in the presence of his parents. On 22.05.2005, he sent an Email to the father of the appellant accusing the appellant having affair with the staff of the hospital. He also had cheap suspicion and questioned the appellant about the relationship with the Superintendent, who is an aged person. When her parents presented a Shirt to the respondent, worth Rs.1,400/-, he threw the Shirt and scolded the appellant that the Shirt is fit for only a beggar. The respondent never allowed her to talk to her sister or to his friends. He used to be very friendly with the parents of the appellant in their presence, but he used to talk ill of them in their absence to the appellant. During their Honeymoon Trip at Kodaikanal, he behaved indifferently with everyone and were telling lies to everyone. When he went to USA, he did not inform the appellant or her parents. When the appellant received a Christmas Greetings, wishing a Happy and Peaceful Christmas, he wrongly interpreted the wish 'Happy and Peaceful Christmas'. The respondent is suffering from inferiority complex and used to torture the appellant stating that she is not smart, good looking and her parents dumped her on him, since they could not find a suitable groom. The respondent used to tell the appellant that she is not smart as his sister and he will not take her out with him anywhere. Even though, the appellant as a dutiful wife took care of his mother, the appellant used to find fault with her. The respondent boasted the appellant that he has put 22 locks to his house. For the above mental torture, the appellant issued a notice to the respondent on 06.10.2006 and filed I.D.O.P.No.8 of 2007, for dissolving the marriage, that took place on 19.06.2003 between the appellant and the respondent.
5.The respondent filed counter statement and denied all the averments made by the appellant. According to respondent, the marriage is an arranged marriage. After the appellant and the respondent met only, the marriage was arranged and after betrothal, they were married. The respondent is very proud of having appellant as his wife and has lot of love and affection for her. He took her along with him wherever he went and when she was staying with him in Hyderabad, they visited number of places. He denied the various allegations made by the appellant in her petition. According to the respondent, he informed the appellant and her parents when he left to U.S.A. and gave his address. The notice issued by the appellant was served on him only in U.S.A. The respondent also stated that he has not put 22 locks in his home. The appellant only without any reason, left the matrimonial home and at the instigation of her father, she made these allegations. The respondent was not informed about betrothal and marriage of appellant's younger sister and was not invited for the marriage. When the appellant had a trouble with one of the co-employees at TLM, Kothara, the respondent only went and brought her to Hyderabad and subsequently, left her at her native place. The respondent encouraged the appellant to pursue her Post Graduate Course in C.M.C. at Vellore.
6.On the very same averments made in the counter statement, the respondent filed I.D.O.P.No.42 of 2007, for restitution of conjugal rights. The appellant filed counter statement making the same averments made by her in the petition filed by her in I.D.O.P.
7.Both the I.D.O.Ps. were heard together and common evidence was let in I.D.O.P.No.8 of 2007.
8.The appellant examined herself as P.W.1 and two documents, viz., Marriage Invitation and Legal Notice sent to the respondent were marked as Exs.P.1 and P.2. The respondent examined himself as R.W.1 and marked 137 documents as Exs.R.1 to R.137.
9.The learned Principal District Judge, Thoothukudi, considering the pleadings, oral and documentary evidence and arguments of the learned counsel for the parties, held that the appellant has not proved that the respondent caused mental cruelty and the respondent proved his love and affection for the appellant and dismissed I.D.O.P.No.8 of 2007 filed by appellant and allowed I.D.O.P.No.42 of 2007 filed by the respondent.
10.Against the said common judgment and decree, dated 19.11.2011, the appellant has come out with the present Civil Miscellaneous Appeals.
11.The learned counsel for the appellant referred various averments in the petition, counter statement filed by the appellant and the grounds of appeals. The learned counsel for the appellant submitted that mental cruelty is not defined under the Act and there is no strait-jacket definition for the same. Each case must be decided based on its own facts and circumstances of the case to conclude whether the incidents alleged by the party amounts to mental cruelty or not. In the present case, the appellant has averred various incidents, by which, the respondent has repeatedly caused mental agony and cruelty to the appellant. The learned counsel for the appellant stated that the respondent has admitted in his evidence that he put up 10 locks, not 22 locks to lock the home. Any normal prudent man would not put 10 locks to lock the home. This fact coupled with the fact that the respondent was friendly with the parents of the appellant in their presence and talked about them shows mental illness of the respondent. Only due to the mental cruelty, the appellant has left the matrimonial home and due to the character and attitude of the respondent, it is not safe and advisable for the appellant to join the respondent in the matrimonial home. The appellant and the respondent are living separately for more than 10 years and the marriage has broken irretrievably. The Hon'ble Apex Court in a number of judgments granted divorce on this ground. This case is similar to cases dealt by the Hon'ble Apex Court and therefore, the marriage can be dissolved on this ground also. The respondent has made baseless allegations against the father of the appellant causing mental agony and cruelty.
12.In support of his submissions, the learned counsel for the appellant relied on the following judgments:
(i)2006 (4) SCC 558 [Naveen Kohli Vs. Neelu Kohli], wherein at paragraph 83, it has been held as follows:
?83.Even at this stage, the respondent does not want divorce by mutual consent. From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt in our minds that the respondent is bent upon treating the appellant with mental cruelty. It is abundantly clear that the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again.?
(ii)AIR 2005 SC 3297 [Durga Prasanna Tripathy Vs. Arundhati Tripathy], wherein at paragraphs 29 and 30, it has been held as follows:
?29.The facts and circumstances in the above three cases disclose that reunion is impossible. Our case on hand is one such. It is not in dispute that the appellant and the respondent are living away for the last 14 years. It is also true that a good part of the lives of both the parties has been consumed in this litigation. As observed by this Court, the end is not in sight. The assertion of the wife through her learned counsel at the time of hearing appears to be impractical. It is also a matter of record that dislike for each other was burning hot.
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. The Family Court has directed the appellant to pay a sum of Rs.50,000/- towards permanent alimony to the respondent and pursuant to such direction the appellant had deposited the amount by way of bank draft. Considering the status of parties and the economic condition of the appellant who is facing criminal prosecution and out of job and also considering the status of the wife who is employed, we feel that a further sum of Rs.1 lakh by way of permanent alimony would meet the ends of justice. This shall be paid by the appellant within 3 months from today by an account payee demand draft drawn in favour of the respondent - Arundhati Tripathy and the dissolution shall come into effect when the demand draft is drawn and furnished to the respondent.?
(iii)2010 (2) CTC 214 [Manisha Tyagi Vs. Deepak Kumar], wherein at paragraph 24, it has been held as follows:-
?24.This is no longer the required standard. Now it would be sufficient to show that the conduct of one of the spouses is so abnormal and below the accepted norm that the other spouse could not reasonably be expected to put up with it. The conduct is no longer required to be so atrociously abominable which would cause a reasonable apprehension that it would be harmful or injurious to continue the cohabitation with the other spouse. Therefore to establish cruelty it is not necessary that physical violence should be used. However, continued ill-treatment cessation of marital intercourse, studied neglect, indifference of one spouse to the other may lead to an inference of cruelty. However in this case even with aforesaid standard both the Trial Court and the Appellate Court had accepted that the conduct of the wife did not amount to cruelty of such a nature to enable the husband to obtain a decree of divorce.?
(iv)2010 (3) CTC 785 [Jayakumari Vs. Balachander], wherein at paragraph 30, it has been held as follows:
?30.The term 'cruelty' consists of unwarranted and unjustifiable conduct on the part of defendant causing other spouse to endure suffering and distress thereby destroying peace of mind and making living with such spouse unbearable, completely destroying real purpose and object of matrimony. It would of course be difficult to define the expression 'cruelty'. There cannot be any hard and fast rule in interpreting the same. As pointed out, the word "cruelty" cannot be put in a strait-jacket of judicial definition. It must be judged on the facts of each case having regard to the surrounding circumstances. Whether one spouse is guilty of cruelty is essentially a question of fact and previously decided cases have little, if any, value. The term 'cruelty' is not defined in the Act. It is to be judged by taking into consideration the status of life, the standard of living, the family background and the society in which the parties are accustomed to move because particular behaviour may amount to cruelty in one set of circumstances and may not be so in other set of circumstances.?
(v) I (2007) DMC 626 (DB) [Firoz Khan and another Vs. Union of India and others], wherein at paragraphs 97 and 98, it has been held as follows:
?97.Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.
98.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 strait-jacket 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.?
(vi) 2012 (2) MLJ 833 [U.Sree Vs. U.Srinivas], wherein at paragraph 88, it has been held as follows:
?88.In short, it would be difficult for the parties to bury the past and to begin a new relationship of Husband and Wife. For the past 15 years both parties have remained separately. During these years, they developed their own life style, remained in isolation and grown in their own thoughts. Marriage tie between the parties has become emotionally dead and the same is beyond repair because of the emotionally dead relationship which is a positive act of oppressive mental cruelty, in our considered opinion. There is no chance for both parties to live together in future. In such a context, the decree of Divorce is the only remedy to be passed, so that the parties may choose their life of their own way, when there has been no scope for their reunion.?
13.Per contra, the learned Senior Counsel for the respondent submitted that;
(i)the various allegations made by the appellant against the respondent are frivolous, baseless and imaginary;
(ii)the marriage was arranged marriage and both gave their consent only after meeting and talking to each other. After the betrothal, the appellant and the respondent were constantly talking to each other;
(iii)when the appellant had some trouble with her erstwhile colleagues when she was working in TLM at Kothara, after betrothal, the respondent only went to her work place and brought her to Hyderabad and she stayed with her uncle's home at Hyderabad;
(iv)after marriage when the appellant was staying with the respondent, they visited number of places in and around Hyderabad. Similarly, during their Honeymoon also, they had cordial relationship and there was no misunderstanding between them;
(v)the respondent never said that the appellant was not smart and good looking. On the other hand, he was proud of her and were going together to various places and visited friends' and relatives' home;
(vi)the appellant has written number of letters, wherein she has stated that she is happy to live with the respondent;
(vii)the respondent has produced and marked number of letters and photographs, which proved that the allegations of the appellant are false and averments made by the respondent are true;
(viii)by having number of locks in the house will not amount to mental illness of a person;
(ix)the respondent never suspected the fidelity of the appellant;
(x)the marriage between appellant and the respondent was solemnized according to Christian Customs and Rites and as per Christian Doctrine, a person can seek divorce only on the ground of adultery;
(xi)the contention of the learned counsel for the appellant that the marriage had been broken down irretrievably and therefore, the appellant is entitled to divorce, is not correct. There is no provision in the Act to grant divorce on the ground of irretrievable break down of marriage. The Hon'ble Apex Court has granted divorce on that ground in certain cases, exercising extraordinary power under
Article 142 of the Constitution of India. The said power is not available to this Court as well as to the Trial Court. The Hon'ble Apex Court also held in some subsequent judgments that this ground is not a valid ground for granting divorce and earlier judgments cannot be taken as precedent; and
(xii)even now, the respondent wants to live with the appellant and lead a happy married life.
14.In support of his submissions, the learned Senior Counsel appearing for the respondent relied on following judgments:
(i)1982 (2) SCC 474 [Reynold Rajamani and another Vs. Union of India and another], wherein at paragraphs 4 and 5, it has been held as follows:
?4.It cannot be denied that society is generally interested in maintaining the marriage bond and preserving the matrimonial state with a view to protecting societal stability, the family home and the proper growth and happiness of children of the marriage. Legislation for the purpose of dissolving the marriage constitutes a departure from that primary principle, and the Legislature is extremely, circumspect in setting forth the grounds on which a marriage may be dissolved. The history of all matrimonial legislation will show that at the outset conservative attitudes influenced the grounds on which separation or divorce could be granted. Over the decades, a more liberal attitude has been adopted, fostered by a recognition of the need for the individual happiness of the adult parties directly involved. But although the grounds for divorce have been liberalised, they nevertheless continue to form an exception to the general principle favouring the continuation of the marital tie. In our opinion, when a legislative provision specifies the grounds on which divorce may be granted they constitute the only conditions on which the court has jurisdiction to grant divorce. If grounds need to be added to those already specifically set forth in the legislation, that is the business of the Legislature and not of the courts. It is another matter that in construing the language in which the grounds are incorporated the courts should give a liberal construction to it. Indeed, we think that the courts must give the fullest amplitude of meaning to such a provision. But it must be meaning which the language of the section is capable of holding. It cannot be extended by adding new grounds not enumerated in the section.
5.When therefore Section 10 of the Indian Divorce Act specifically sets forth the grounds on which a marriage may be dissolved, additional grounds cannot be included by the judicial construction of some other section unless that section plainly intends so. ......?
(ii)2009 (10) SCC 415 [Anil Kumar Jain Vs. Maya Jain], wherein at paragraphs 27, 29 and 30, it has been held as follows:
?27.In all the subsequent cases, the Supreme Court invoked its extraordinary powers under
Article 142 of the Constitution of India in order to do complete justice to the parties when faced with a situation where the marriage-ties had completely broken and there was no possibility whatsoever of the spouses coming together again. In such a situation, this Court felt that it would be a travesty of justice to continue with the marriage ties.
29.In the ultimate analysis the aforesaid discussion throws up two propositions. The first proposition is that although irretrievable break-down of marriage is not one of the grounds indicated whether under Sections 13 or 13- B of the Hindu Marriage Act, 1955, for grant of divorce, the said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court. In exercise of its extraordinary powers under
Article 142 of the Constitution the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in Section 13-B of the aforesaid Act. This doctrine of irretrievable break-down of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under
Article 142 of the Constitution. Neither the civil courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on grounds not provided for in Section 13 and 13-B of the Hindu Marriage Act, 1955.
30.The second proposition is that although the Supreme Court can, in exercise of its extraordinary powers under
Article 142 of the Constitution, convert a proceeding under Section 13 of the Hindu Marriage Act, 1955, into one under Section 13-B and pass a decree for mutual divorce, without waiting for the statutory period of six months, none of the other Courts can exercise such powers. The other Courts are not competent to pass a decree for mutual divorce if one of the consenting parties withdraws his/her consent before the decree is passed. Under the existing laws, the consent given by the parties at the time of filing of the joint petition for divorce by mutual consent has to subsist till the second stage when the petition comes up for orders and a decree for divorce is finally passed and it is only the Supreme Court, which, in exercise of its extraordinary powers under
Article 142 of the Constitution, can pass orders to do complete justice to the parties.?
(iii)2009 (6) SCC 379 [Vishnu Dutt Sharma Vs. Manju Sharma], wherein at paragraphs 5, 10 and 12, it has been held as follows:
?5.The trial Court after examining the evidence came to the conclusion that no case of cruelty had been made out as alleged by the appellant. The Trial Court held that considering that the respondent had been turned out of the matrimonial house and had been given beatings for which she was medically examined, it was the respondent who was treated cruelly by the appellant. Being aggrieved, the appellant preferred an appeal in the High Court.
10.On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature.
12.If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts. Hence, we do not find force in the submission of the learned counsel for the appellant.?
(iv)2016 SCC OnLine Delhi 5312 : (2016) 234 DLT 243 (DB) [Mini Appa Kanda Swami @ Mani Vs. M.Indra], wherein at paragraphs 10, 20, 21 and 25, it has been held as follows:
?10.The question for consideration is whether the conduct of the respondent/wife in the circumstance of the case, amounted to cruelty, to entitle the husband to divorce. Cruelty could be physical or mental or both. While it is easy to discern physical cruelty, mental cruelty has to be assessed from the overall behavior of spouses as well as other incidental factors. There is no doubt that in a matrimonial setup, a couple, which decides to live together, invariably has different attitudes and opinions, likes and dislikes, and more often than not spouses behave differently when faced with the same situations. While disputes and arguments are normal in a marriage, in order to constitute cruelty, the conduct of the spouse should be something more serious than the ordinary ?wear and tear? of a marital life.
20.A person is not allowed to take advantage of his own wrong. The appellant has failed to prove his allegation of cruelty. Not just this, he had also demanded dowry and it is he who abandoned the respondent. Under the circumstances, there is no infirmity in the order of the learned trial judge inasmuch as the appellant is not entitled to a decree of divorce under
Section 13(1)(ia) of the Hindu Marriage Act, 1955. Furthermore,
Section 23(1)(a) of the Act makes it abundantly clear that a decree can be granted when the Court is satisfied that the petitioner is in no way taking advantage of his wrong. Such is not the case here, as it is the appellant who abandoned the company of his wife.
21.Lastly, it is urged by learned counsel for the appellant that the parties have been living separately for the last 12 years and the marriage has virtually lost its meaning for them as they have reached a point of no return. She avers that there is no life in the marriage bond and that it should be dissolved for this reason. She has relied on para 26 of the Judgement in K. Srinivas Rao vs. D.A. Deepa, 2013 (2) SCALE 735, reproduced as under:-
?We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court's verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the court's decree.?
25.This Court thus lacks jurisdiction to dissolve a marriage on the doctrine of ?irretrievable breakdown?.
(v)2016 (O) Supreme (Del.) 3869 : (2016) 234 DLT 381 [Sandhya Kumari Vs. Manish Kumar], wherein at paragraph 21, it has been held as follows:
?21.Though irretrievable breakdown of marriage is not a ground for divorce but in the judgments reported as 2006 (2) Mh.L.J. 307 Madhvi Ramesh Dudani Vs. Ramesh K.Dudani, 2007 (4) KHC 807 Shrikumar V.Unnithan vs. Manju K.Nair, (1994) 1 SCC 337 V.Bhagat vs. D.Bhagat and (2006) 4 SCC 558 Navin Kohli vs. Neelu Kohli the concept of cruelty has been blended by the Courts with irretrievable breakdown of marriage. The ratio of law which emerged from said decisions is that where there is evidence that the husband and wife indulged in mutual bickering leading to remonstration and therefrom to the stage where they target each other mentally, insistence by one to retain the matrimonial bond would be a relevant factor to decide on the issue of cruelty, for the reason the obvious intention of said spouse would be to continue with the marriage not to enjoy the bliss thereof but to torment and traumatized each other.?
15.The learned counsel for the appellant by reply submitted that the appellant and the respondent were living together as husband and wife only for 5 months and there is no possibility for them to live as husband and wife, in view of the facts and circumstances of the case. The long separation coupled with the attitude of respondent would amount to mental cruelty caused to the appellant.
16.I have considered the submissions of the learned counsel appearing for the parties and perused the materials available on record and the judgments relied on by the learned counsel on either side.
17.Both the appellant and the respondent are well educated and they are in medical profession. Both come from respectable family and the marriage between them is an arranged marriage and both gave their consent willingly. In spite of this background, misunderstanding has arisen and the appellant has made allegations against the respondent causing mental cruelty. She has also alleged that the respondent is suffering from inferiority complex and mental illness. The appellant has alleged mental cruelty, not physical cruelty. The issue of mental cruelty has been considered by this Court and the Hon'ble Apex Court in various judgments. It has been held that mental cruelty is not defined in the Act and it cannot be put on a strait-jacket formula. Facts and circumstances of each case must be considered on merits to decide whether the party alleging mental cruelty has proved the same. Normal wear and tear and minor misunderstanding and irritation in family life, cannot be termed as mental cruelty. The action alleged against other party must be such that which makes it impossible for the party to live with other party as husband and wife. In the present case, the appellant has made various allegations against the respondent which according to her, amounts to mental cruelty and it is not possible for her to live with the respondent as wife any longer. The appellant as P.W.1 deposed about these averments.
18.Per contra, the respondent has marked 137 documents to substantiate his case that he never caused mental cruelty. The learned Principal District Judge, considering each and every allegation made by the appellant, rejected the same holding that the appellant failed to prove the same. The learned Principal District Judge failed to consider the fact that the father of the appellant gave a complaint against the respondent and the respondent made allegations against the father of the appellant that only because of instigation of father of the appellant, the appellant had filed the petition for divorce and the father of the appellant gave a false complaint against the respondent. These allegations coupled with various averments made by the appellant would definitely amount to mental cruelty caused by the respondent.
19.The learned counsel for the appellant contended that divorce can be granted on the ground of irretrievable break down of marriage as per judgments of the Hon'ble Apex Court. This contention is untenable. The Hon'ble Apex Court has granted divorce on that ground exercising its extraordinary power under
Article 142 of the Constitution of India. The said power is not available to this Court or to the Trial Court. In the subsequent judgments, the Hon'ble Apex Court held that the earlier judgment, granting divorce on the ground of irretrievable broken down cannot be taken as precedent. It is pertinent to note that the respondent obtained a decree of restitution of conjugal rights. There is nothing on record to show that after obtaining decree, he took steps to make the appellant to live with him as his wife. He has not filed any E.P. as per Order 21 Rule 32 Civil Procedure Code. Where a person, who suffered a decree of restitution of conjugal rights has wilfully failed to obey the decree, the person, who obtained decree can enforce the same by attachment of his or her property. In the circumstances, the fact that the appellant and the respondent are living separately for more than 10 years and the attitude of the respondent even after obtaining a decree of restitution of conjugal rights has not taken steps to enforce the same, but insisting on retaining matrimonial bond would amount to causing mental cruelty and to torment and traumatized the appellant. This has been held so by the Delhi High Court in the judgment reported in 2016 (O) Supreme (Del.) 3869 and the Hon'ble Apex Court in the judgment reported in 2006 (4) SCC 558 [cited supra].
20.The ratio laid down in the said judgments are squarely applicable to the facts of the present case. The insistence of the respondent to continue the matrimonial tie even though he is fully aware that there is no possibility of re-union and living together as husband and wife, amounts to causing mental cruelty to the appellant.
21.For the above reasons, both the Civil Miscellaneous Appeals are allowed. The common judgment and decree, dated 19.11.2011, passed in I.D.O.P.Nos.8 and 42 of 2007, by the learned Principal District Judge, Thoothukudi, are set aside. I.D.O.P.No.8 of 2007 filed by the appellant for divorce, is allowed and I.D.O.P.No.42 of 2007 filed by the respondent for restitution of conjugal rights, is dismissed. No costs.
To
1.The Principal District Judge, Thoothukudi.
2.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai. .