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AMARAVATHY Vs. R.A. PAKKIRINATHAN

Judgement

Court:MADRAS HIGH COURT

Bench: JUSTICE S.M. Abdul Wahab

AMARAVATHY Vs. R.A. PAKKIRINATHAN On 21 July 1998

Law Point:
Husband suffered mental agony and pain. Entitled to divorce

 

 

JUDGEMENT

 

This appeal has been preferred against the judgment and decree dated 4.10.1996 in C.M.A. No. 54 of 1995 on the file of the Principal District Judge, Thanjavur, confirming the judgment and decree dated 26.4.1995 of the Sub-Court, Kumbakonam in O.P. No. 18 of 1993.

2. The wife, who is unsuccessful in both the Courts below is the appellant. The respondent/husband filed a petition of divorce under Section 13(1)(a) of the Hindu Marriage Act, 1955. He has succeeded in both the Courts below. As against the concurrent judgments and decrees of the Courts below, the above appeal has been preferred by the wife.

3. The respondent in his petition O.P. No. 18 of 1993 has stated that he married the appellant on 8.7.1987 at Nagoor. The appellant was behaving very cruelly from the beginning. On 15.2.1988 the parents of the appellant came and took her to their house representing that they would be sending her in a day or two. But she did not return. On 24.10.1988 she came with her mother and sister and scolded his mother and sister, standing in the street and created a scene. They left in the next morning spending the night in a third person’s house. On 27.10.1988, the respondent sent a notice calling upon her to join with him. On 1.11.1988 there was a reply. On 12.11.1988 the respondent sent a rejoinder. After exchange of notices, there was conciliation between the parties before the respondent’s Counsel on 20.11.1988 and thereafter the appellant was brought to the matrimonial home. But however again on 3.1.1989 she created a scene in the street. Thereafter, her parents came and took her away. In December, 1989, she made a false complaint to the Dowry Cell. Even though there was some compromise on 16.1.1990 and 12.2.1990, and she came and stayed in the house of the respondent for some time, then again on 13.4.1991, she left the house. Again she made a false complaint in 1992. She also complained to the higher officials of the respondent’s office. She insulted the respondent in a number of ways. Hence, according to the respondent, she committed cruelty.

4. The appellant’s counter states that the marriage took place at Nagoor on 8.7.1987 and thereafter they were living at Dharasuram. But she has denied the allegation of cruelty. She has also stated that she did not behave as alleged by the respondent. On the other hand, she has pleaded that at the instance of his mother and the sister, she was cruelly treated by the respondent. There was no incident as contended by the respondent on 15.2.1988. Her father was a retired teacher. The respondent demanded three more sovereigns of jewel, for which she was treated cruelly. She was also warned that three sovereigns of jewel must be provided within three days, as promised by the father. As there was difficulty, the jewel was not presented. Only because of that the notice dated 27.10.1988 was sent. On 1.11.1988 reply was sent. Thereafter she was taken to the respondent Advocate’s house. Actually, she was sent out of the house. However, she admitted the muchalica dated 16.1.1990. She has informed about the cruel treatment to her parents on 4.4.1990. Thereafter, she was cruelly treated. Therefore, as the cruelty exceeded the limit, on 13.4.1991 without jewels she went away to her parents’ house.

5. The Trial Court considered the issue as to whether there was cruel treatment by the wife to the husband. The Trial Court considered the cruelty as point No. 2 and came to the conclusion that the respondent was treated cruelly by the appellant. The Trial Court has specifically referred to the style of addressing the husband and the mother-in-law by the appellant with the words “Regional Language not given”. The Trial Court has carefully considered the evidence of RW2, though claimed to be an independent witness, but said to be the friend of the appellant’s father. The main reason for disbelieving his version is that he has not been referred to in the counter. It has also taken into account the complaint of the appellant to the Dowry Cell on two occasions and also to the higher officials of the respondent’s office. Taking note of all the relevant facts, it has come to the conclusion that the appellant caused mental agony and pain to the respondent. Hence, the Trial Court allowed the petition.

6. The Principal District Judge, Thanjavur also has considered the point elaborately and found that there was cruelty on the part of the appellant. Hence, it has concurred with the finding of the Trial Court and dismissed the appeal.

7. Now, the learned Counsel for the appellant Mr. R. Sekar has argued two points. First one relates to the incident dated 24.10.1988. On that date, according to the respondent, the appellant came with her sister, stood in the street near his house and scolded his mother in a filthy and vulgar language. The neighbours and others gathered there and in their presence the appellant insulted the respondent and his mother. According to the learned Counsel for the appellant, there was no such incident at all and this fact has been found by the Courts below without legal evidence. Secondly, he contended that the complaint to the Dowry Cell should not be taken as a serious matter and they cannot be termed as act of cruelty.

8. As regards the first point, the learned Counsel for the appellant submitted that if there was really such an incident on 24.10.1988, on 27.10.1988 when Ex. A2 was issued, there would have been mention about it. There is no reference in the said exhibit to this incident.

9. It is true that there is no reference about this incident in Ex. A2. But there is a reference to by that effect on 24.10.1988, the respondent came with third party and wanted him to receive her. There is also a reference on that date he requested her to come with her parents. But she took away some old sarees and uttered that she would not return thereafter. It is also an assertion that ever since the date of the marriage, the respondent was behaving towards him in a most indecent manner and inspite of his continued patience she has not changed her habit. Ex. A2 contains the gentle manly behaviour of the respondent. This can be gathered from the following words :

“You are bound to live with my client under his roof and you have no right to ignore his wish and his actions regarding his married life. Only to give you an opportunity to change yourself and live in a better manner this notice is issued to you.”

In the said notice she was called upon to come and live with the respondent without pestering him as a true Hindu wife. For this, the reply is that she returned to him on 24.10.1989 with three sovereigns of jewels along with 11 sovereigns of jewels. But the reply under Ex. A4 is that as per the notice dated 27.10.1988, if the appellant is desired to join he would take her back. On the other hand she was evasively stated in the reply dated 1.11.1988 to the notice dated 27.10.1988 that she was ready to come when there is a request. This is unnecessary. When there is a request by the husband to join within a week, there is no necessity for further permission from the Lawyer. In Ex. A4 also there is no reference about the incident. But there is a statement that she need not bring the jewels and she could keep them in her parents’ house. What was required was for her only to join the husband. There is also a categorical assertion that the respondent was not interested in the wealth or the jewels. On the other hand, there is also a request to join the husband in the last week of Iyppasi’ Tamil month. It is true that in Ex. A4 dated 12.11.1988 there is no reference to this incident. But PW 1 has spoken about this incident. It is true that PW1 was there when the incident took place. But he has stated that she scolded him also when he returned from the office. The neighbours were watching the incident. PW 2 also has spoken about the incident. PW 2 is the mother of the respondent. She has stated that the appellant has refused to enter the house and she was only standing in the street and scolded them. P W 3 is a person living in the same street where the respondent was living. He has stated that when he walked through the street, he saw the mother of the appellant sitting with her palm touching the cheeks and was crying. He has also stated that the appellant was shouting with vulgar words with another woman, and the people in the street gathered there. Since, the Courts below have concurrently found that this evidence was acceptable, I cannot go into reappreciation of evidence.

10. RW 1 is the appellant herself. She has completely denied the incident. She has blamed the respondent and his mother and states that the mother only scolded her, and she was not allowed to enter into the house. RW 2 is the person said to have accompanied the appellant on 24.10.1988. First of all, I am not able to understand why he was sent alongwith the sister of the appellant. The distance from Nagoor to Dharasuram is not very much. Further, he has stated that when he accompanied the father, the motKer and one Visvanathan to Dharasuram, they scolded them, including him in vulgar terms for not giving the jewels. It is surprising when he should be scolded for the fault of the parents of the appellant. He has stated that one Naidu has signed the voucher. In the first instance when this witness went alongwith the parents of the appellant to the house of the respondent and the appellant was sent only after taking a voucher for the jewels worn by her, when she was taken back to the village. Again, it is stated that on the second occasion on 24.10.1988 when he accompanied the appellant and her sister with the jewels and met the respondent, they were not allowed inside the house, even though they waited till the evening and hence they stayed in the very same Naidu’s house that night. But that Naidu gentleman has not been examined. He has also admitted that he is a relation of the appellant and is known to his father from his younger days. Therefore, much reliance cannot be placed upon the evidence of RW 2.

11. After considering the evidence, I am of the view that the finding of the Courts below that there was an incident on 24.10.1988 and on that date the appellant scolded the respondent and his mother in vulgar terms and created a scene resulting in the gathering of the neighbours.

12. As regards the second point urged by the learned Counsel for the appellant that the complaint given to the Dowry Cell should not be taken as an act of cruelty. According to the learned Counsel, there was no second complaint to the Dowry Cell as contended by the respondent.

13. PW 1 has stated about the complaint to the Dowry Cell. It is stated that during December, 1989, the appellant gave a complaint under the Dowry Prohibition Act against himself, his mother and sister and also his cousin brother Sowrirajan before the Nagapattinam Police. They were enquired about the complaint. They were sent notice under Exs. P7 and P8 for attending the Police Station. Thereafter there was a compromise and the muchalica was executed. Even after the muchalica, again the parents of the appellant took her away on 13.4.1991. Thereafter another complaint was given in 1992. As the respondent apprehended arrest, he has moved the High Court for anticipatory bail. He was given anticipatory bail on condition i.e., to sign at Nagapattinam Dowry Cell Police Station at 10.00 a.m. daily. After some time, the condition was relaxed. On account of this, he suffered mental agony and pain, as the said fact came to be known to the staff of the office in which he was employed. In fact, he has stated that she pressed the police for the arrest inspite of the bail application. But the police refused to do so, since the anticipatory bail has been granted. Not satisfied with this, she has also given complaint to the higher officials in the office of the respondent. These facts are not denied by the appellant. She has admitted about the muchalica, and thereafter the complaint in 1992. She has stated in her deposition in cross-examination that in 1992 February end, she gave a Dowry Prohibition complaint in Nagapattinam Police Station and she gave this complaint for the second time. She has also admitted that she gave the second complaint on the same persons. She has also admitted the anticipatory bail obtained by the respondent. She has also admitted about the complaint to the higher officials in the office of the respondent. A reading of the cross-examination of the appellant herself clearly shows all these aspects.

14. But the learned Counsel for the appellant Thiru R. Sekar, states that the complaints were given with the bona fide intention of joining the respondent. The contents of the complaints are not known. Neither the copies nor the originals of the complaints have been produced in the case. In the circumstances, the contention of the learned Counsel for the appellant cannot be accepted.

15. The learned Counsel for the appellant cited the following decisions :

(1) Narayan Ganesh Dastane v. Sucheta Narayan Dastane, 1975 (3) SCR 967; (2) Keshaomo v. Nisha, AIR 1984 Bom. 413; (3) S. Saikumari v. P. Mohanasundaram, I (1995) DMC 520 (DB)=1995 (1) LW 201.

and contended that the conduct of the spouse must show that the other spouse cannot live together, then only the conduct of a spouse can be treated as cruel.

16. Narayan Ganesh Dastane v. Sucheta Narayan Dastane, (supra). The above decision has been cited by the learned Counsel for the appellant to support his contention that even though after the incident on 24.10.1988 and the first complaint to the Dowry Cell there was a reconciliation and the appellant was taken back. Therefore, there was condonation of cruelty. The Apex Court has held in the aforesaid decision as follows :

“Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things : forgiveness and restoration. The evidence of condonation in this case is, in our opinion, as strong and satisfactory as the evidence of cruelty. But that evidence does not consist in the mere fact that the spouses continued to share a common home during or for some time after the spell of cruelty. Cruelty, generally, does not consist of a single isolated act but consists in most cases of a series of acts spread over a period of time. Law does not require that at the first appearance of a cruel act, the other spouse must leave the matrimonial home lest the continued co-habitation be construed as condonation. Such a construction will hinder reconciliation and thereby frustrate the benign purpose of marriage laws.”

After discussing at length the Apex Court has put it succinctly in one sentence as follows :

“Condonation is always subject to the implied condition that the offending spouse will not commit a fresh matrimonial offence, either of the same variety as the one condoned or of any other variety.”

Here in this case, the appellant has committed the same offence of giving a complaint to the Dowry Cell and she went even further to send a complaint to the higher officials of the respondent’s office. Therefore, there is no condonation.

17. In the aforesaid decision, the Apex Court at page 988 made it clear with the following words :

“It therefore becomes necessary to consider the appellant’s argument that even on the assumption that the appellant had condoned the cruelty, the respondent by her subsequent conduct forfeited the conditional forgiveness, thereby reviving the original cause of action for judicial separation on the ground of cruelty.”

18. In Keshaorao v. Nisha (supra), a Full Bench of the Bombay High Court also has held that cruelty contemplated is a conduct of such type that the petitioner cannot reasonably be expected to live with the respondent. This is also not in favour of the appellant but it supports the case of the respondent. The conduct of the appellant leaving the respondent and then quarrelling with him, leaving the matrimonial home, giving complaints about the husband in Dowry Cell and to higher officials of the respondent. The attitude of the appellant for the period from 1987 to 1992 shows that the respondent with the wife of such conduct cannot lead a peaceful life.

19. S. Saikumari v. Mohanasundaram P. (supra). The said case is not helpful because, after the acts of cruelty, the couple continued to live together. Even on the date of petition, there was co-habitation in that case. Therefore, the principle laid down in this case is not helpful, since there is no co-habitation in this case after she left the matrimonial home on 13.4.1991. There was no co-habitation till the filling of the petition on 21.12.1992.

20. In the decision cited by the learned Counsel for the respondent i.e., S. Murugan v. Vaikunda Lakshmi, 1998 (2) LW 100, a Single Judge of this Court has taken the view that cruelty to a spouse means and includes a mental torture caused by one spouse towards the other. Any man with reasonable self respect and power of endurance will find it difficult to live with a taunting wife. In this case also there is ample evidence to show that the appellant has been quarrelling with the respondent’s mother and sister every now and then. She has repeated her acts even after a compromise. From the evidence, I am able to find that the respondent is a peace loving person. He has stated in his evidence as follows :

“Regional Language not given.”

Even though the statements may be termed as exaggerated, the substance is that the person is unable to cope up with the conduct of the appellant. When that is the situation, no useful purpose will be served in keeping the matrimonial tie. Already about six years have lapsed after they have embarked upon the Court proceedings. Even earlier for about two years, there was no reconciliation and joining together.

Thus for almost a decade they have been fighting in Courts. Even before the commencement of the hearing, this Court gave an opportunity to the Counsel on both sides to give advice and their views ascertained. Even die good officers of the Counsels were of no avail and there is no possibility of their joining together. In the circumstances, in my view, no useful purpose will be served in allowing to continue the relationship alone as husband and wife in name. Therefore, I have to only affix my stamp of approval for the decisions of the Courts below. Hence, the appeal is dismissed. However, there will be no order as to costs.

Appeal dismissed.

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