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Bench: JUSTICE S. Rajeswaran

H. SUDHA Vs. T.V. RAMESH On 11 June 2008

Law Point:
Exact date and time of desertion and instances of cruelty not specifically pleaded by Wife in her petition. No ground for grant of divorce to Wife made out.





Both the Civil Miscellaneous Second Appeals are filed by the petitioner/wife in H.M.C.P. Nos. 47 of 2000 and 2 of 2005 before the Sub-Judge, Sankari, Saleem District against the common order dated 20.9.2007 passed in C.M.A. Nos. 13 of 2005 and 39 of 2006 by the I Additional District Judge, Saleem reversing the judgment and decree dated 25.4.2005 passed by the Subordinate Judge, Sankari in H.M.O.P. No. 47 of 2000 and H.M.O.P. No. 2 of 2005.

2. The facts which are necessary to dispose of both the Appeals are as under:

The appellant in both the Appeals (hereinafter referred to as wife) filed H.M.O.P. No. 47 of 2000 against the respondent in both the Appeals (hereinafter referred to as husband) under Section 13(1)(ia), (ib) of the Hindu Marriage Act, 1955.

3. The case of the wife in H.M.O.P. No. 47 of 2000 is that the marriage between her husband and herself took place on 19.8.1994 and a child by name Sahana was born to them during the course of their wedlock. While so, the husband was afflicted with paralytic attack and therefore, he was taking treatment in the hospital for his disease. The wife was attending to him in the hospital as well as in residence. At that time, the husband and the parents of her husband committed cruelty on her and therefore, she left the matrimonial house along with her daughter. When her relatives approached the husband and requested him to take her back and resume the matrimonial life, the husband refused to do. On her part, on 15.9.2000, she approached her husband and asked him to take her back and to resume the married life. That attempt was also in vain, due to the refusal of her husband. Hence, she filed H.M.O.P. No. 47 of 2000 praying for a decree of divorce.

4. The husband filed a counter statement wherein it is stated by him that both of them had a very good life after the marriage and only after his health conditions deteriorated, he has to spend enormously for his medical treatment, which resulted in selling his house as well as the Borewell lorries owned by him. Only at the instance of her parents, the wife refused to join and he was always ready and willing and resume the married life. After treatment, now, he is able to speak and walk and as such, he very much wants to join his wife and daughter. He also referred to the H.M.O.P. No. 2 of 2005 filed by him under Section 9 of the Hindu Marriage Act, for restitution of conjugal rights. The husband has also stated in his counter that now, the wife has become an I.A.S. Officer, and it is her duty to take care of him and to stand by him at the time of his sufferings. Hence, he prayed for the dismissal of the Divorce Petition.

5. In H.M.O.P. No. 2 of 2005, it is stated by the husband that the wife has filed Divorce Peition at the instance of her parents and there are no merits in the Petition filed by the wife for divorce and to dismiss the Restitution Petition filed by the husband. Aggrieved by the same, the husband filed C.M.A. No. 13 of 2005 and C.M.A. No. 39 of 2006 against the common judgment of the Trial Court. The Lower Appellate Court on 20.9.2007 allowed both the Appeals by setting aside the orders of the Trial Court and aggrieved by the same, the wife has filed the above Appeals under Section 100 of C.P.C.

6. The above Petitions were admitted on 19.12.2007 by this Court and at the time of admission, the following substantial question of law were considered by this Court.

1. Whether in law the Lower Appellate Court was right in reversing the well considered judgment of the Trial Court and directing restitution of conjugal rights while declining to grant a decree for divorce as sought by the appellant, when from the facts and the evidence it is clear that the marriage between the parties had broken down irretrievably?

2. Whether in law the Lower Appellate Court was not wrong in failing to see that the Appellant had to leave due to the respondent’s fault and that his acts of cruelty justify the grant of divorce vide Samar Ghosh v. Jaya Ghosh, 2007 (3) CTC 464?

7. Heard Mrs. Hema Sampath, the learned Senior Counsel for the wife and Mr. N. Manoharan, the learned Counsel for the husband. I have also perused the documents and judgments filed in support of their submissions.

8. The learned Senior Counsel for the wife submitted that considering the fact that after the family disputes, the wife has passed her Civil Services Examination and is an I.A.S. Officer now and considering the fact that they have been living separately for more than 10 years, it is a case of complete breakdown of the marriage and on this ground alone, the Appeals filed by the wife are to be allowed. The learned Counsel in support of her submissions, based reliance on the judgment of the Supreme Court reported in Samar Ghosh v. Jaya Ghosh, I (2007) DMC 597 (SC)=IV (2007) SLT 76=II (2007) CLT 72 (SC)=2007 (3) CTC 464, and a Division Bench of this Court reported in Ms. R. Mallika v. R. Rajagopal, 2007 (6) MLJ 1337.

9. Per contra, the learned Counsel for the husband submitted that the Lower Appellate Court has elaborately gone into the factual aspects of the case and reversed the judgment of the Trial Court. This Court can interfere with the judgment of the Lower Appellate Court under Section 100 of C.P.C. only when the appellant is able to raise substantial question of law. According to the learned Counsel for the husband, there is no substantial questions of law either raised or involved in the present case and, therefore, this Second Appeal is to be dismissed. The learned Counsel referred to the grounds contained in the petitioner’s Petition and submitted that they are hardly sufficient to make a case of cruelty and desertion.

10. The learned Counsel for the respondent further submitted that merely because the husband and wife are not staying together for the past 10 years is not a ground for granting the decree of divorce. Hence, he prayed for the dismissal of both the Petitions. The following judgment are relied on by the learned Counsel for the husband in support of his submissions:

Smt. Inderjit Kaur v. Surinder Singh, 1998 (4) Civ.LJ 599; Smt. Nalini Sunder v. Sri G.V. Sunder, AIR 2003 Kar. 86; Neeta Kirit Desai v. Bino Samuel George, AIR 2003 Bom. 7; Harish Kumar Ledwani v. Smt. Anita Ledwani, AIR 2003 MP 197; Ajay Sayajirao Desai v. Mrs. Rajashree Ajay Desai, AIR 2005 Bom. 278; A. Jayachandra v. Aneel Kaur, 2005 (1) CTC 215: AIR 2005 SCW 163.

11. I have considered the rival submissions carefully with regard to facts and citations.

12. The case of the wife in the Divorce Petition is that her husband and her husband’s parents treated her with cruelty and therefore she had to leave the matrimonial home. In spite of her request made to the husband to take her back, the husband did not care to resume the married life with her. Except the above general and sweeping allegations, nothing else was there in the Divorce Petition filed by the wife. But she admittedly improved her case with regard to cruelty in her evidence.

13. The Trial Court has found that the issue is not relating to the demand of dowry. The Trial Court came to the conclusion that the husband has filed the Petition for restitution of conjugal rights only after the wife has become an I.A.S. Officer. The Trial Court held that when husband himself is suffering physically and financially, how it is possible for him to resume the married life with his wife and daughter.

14. The Lower Appellate Court after re-appreciating and re-evaluating the evidence found that the exact date and time of desertion and the instances of cruelty were not specifically pleaded by the wife in her Petition.

15. The Lower Appellate Court also found that the month and the year of her leaving the matrimonial home as spoken to by her in the evidence was also not true. Considering Ex. B1, which is a Complaint given by the wife on 2.2.1999, in connection with taking away of their lorry, the Lower Appellate Court found that what was said in the cross-examination was not correct. The wife also admitted the signature in the Complaint. When the Complaint Ex.B1 was given on 2.2.1999, the wife deposed in her evidence that she left her matrimonial home in October 1998. The Lower Appellate Court is of the view that instead of leaving in her husband at the time of physical and financial crisis, she has to take care of him and support him to come out of the rut. The Lower appellate Court referred to the fact that it is not possible for the husband to attack her physically when he himself is suffering from paralytic attack. The Lower Appellate Court has also considered the fact that the evidence let in by the parties was not properly gone into by the Trial Court. Hence, the Appeals were allowed.

16. In the light of the above facts and circumstances, considering the fact that the Appeals have been filed under Section 100 of C.P.C., as rightly submitted by the learned Counsel for the respondent, the appellant is not able to establish any substantial question of law.

17. Now, let me consider the judgment relied on by both the learned Counsel.

18. In Ms. R. Mallika v. R. Rajagopal (supra), a Division Bench of this Court in a Civil Miscellaneous Appeal filed against the decree of divorce granted by the Family Court, after re-evaluating the evidence came to the conclusion that the marriage is irretrievable broken down. In that case, the Division Bench considered the long period of separation, no attempt made by the parties to reunite the differences between them persisting and also mediation efforts made by the Court and thereafter came to the conclusion that the marriage has been irretrievably broken down.

19. In Samar Ghosh v. Jaya Ghosh (supra) the Hon’ble Supreme Court held as under:

“100. 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.

101 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. 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.”

20. In Smt. Inderjit Kaur v. Surinder Singh, 1998 (4) Civ.LJ 599, a Division Bench of Punjab and Haryana High Court came to the conclusion that there was no evidence on record to prove the conduct, behaviour of the husband as intolerable for the wife and came to the conclusion that in such a case, the divorce would not be granted.

21. In Smt. Nalini Sunder v. Sri G.V. Sunder, I (2003) DMC 254 (DB)=AIR 2003 Kar. 86 a Division Bench of the Karnataka High Court observed that a party cannot make out a case on the basis of evidence for which he/she had laid no foundations in the Applications.

22. In Neeta Kirit Desai v. Bino Samuel George, I (2003) DMC 151 (DB)=AIR 2003 Bom. 7, a Division Bench of the Bombay High Court observed that the lapse of time in litigation along cannot be a ground to hold that the marriage is dead.

23. In Harish Kumar Ledwani v. Smt. Anita Ledwani, AIR 2003 MP 197, the Madhya Pradesh High Court held that if the case of the ground enumerated in the Hindu Marriage Act has been made out, a decree for divorce cannot be granted simply because there has been irretrievably breakdown of marriage.

24. In Ajay Sayajirao Desai v. Mrs. Rajashree Ajay Desai, AIR 2005 Bom. 278, another Division Bench of the Bombay High Court held as under:

“13. This takes us to consider the ground of desertion. It is now well settled that insofar as desertion is concerned, what is required of a spouse seeking divorce on the ground of desertion is proof that throughout the whole course of two years as contemplated by Clause (ib) of Sub-section (1) of Section 13 of the Act, the other spouse has without cause been in desertion. The deserting spouse must be shown to have persisted in the intention to desert throughout the whole period. In fulfilling its duty of determining whether on the evidence a case of desertion without any cause has been proved by the Court ought not to leave out of account the attitude of mind of the petitioner. If on the facts it appears that a husband has made it plain to his deserting wife that he will not receive her back, or if he has repelled all the advances which she may have made towards a resumption of marriage life, he cannot complain that she may have made towards a resumption of married life, he cannot complain that she may have made towards a resumption of married life, he cannot complain that she has persisted without cause in her desertion. In other words, insofar as deserting spouse is concerned, two essential conditions must exists, namely, the factum of separation, and the intention to bring cohabitation permanently to an end (animus desecidendi). Similarly, two elements are essential so far as deserted spouse is concerned, namely, the absence of consent and absence of conduct giving reasonable cause to the spouse leaving matrimonial home to form the necessary intention to bring cohabitation permanently to an end. The petitioner for divorce bears two spouses respectively. These essential conditions must continue throughout the period of two years specified in Clause (ib) of Sub-section (1) Section 13 of the Act. This position of law is settled by the Apex Court as back as in 1956 in Bipinchandra Jaisinghbhai Shah v. Prabhawati, 1957 (59) Bom. LR 322 : AIR 1957 SC 176 which has been followed and reiterated by the Apex Court and High Courts in several judgments.

15. We should also like to consider the submission that the husband is entitled for decree of divorce on the ground that there is irretrievably break down of the marriage. The law is well settled that on the ground of irretrievably break down of marriage, the Court must not lightly dissolve a marriage. It is only in extreme circumstances the Court can use this ground for dissolving a marriage. In this case, the wife at all stages, as observed earlier and even before us, has been ready to go back to the husband. It is husband who has refused to take the wife back. The husband has made baseless allegations against the wife. He even vent to the extent of filling the false Complaints against the wife and her family members with the police at Pune and Nagpur which in our opinion was only to create evidence against the wife. The marriage, therefore, cannot be dissolved on the ground of irretrievably break down. The observations made by the Apex Court in para 17 in A. Jayachandra v. Aneel Kaur, I (2005) DMC 111 (SC)=VII (2004) SLT 581=2005 AIR SCW 163, case would be material wherein the lay laid down in Shyam Sunder’s case, AIR 2004 BC 5111 has been reiterated.

15.1. It is thus clear that the reasons assigned by the husband for his wife not being ready to live with him having been found else the husband cannot be given advantage of his own wrong and granted decree of divorce on the ground of desertion and particularly when the wife is prepared to live with him unconditionally. In our opinion, the petition of the husband, on the ground of desertion also fails. Accordingly, the appeal is dismissed with costs.”

25. In A. Jayachandra v. Aneel Kaur, I (2005) DMC 111 (SC)=VII (2004) SLT 581=AIR 2005 SCW 63, the Hon’ble Supreme Court held as under:

“11. The expression cruelty has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the inquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted (see Sobba Rani v. Madhukar Reddi, AIR 1989 SC 121).

12. To constitute cruelty, the conduct complained of should be grave and weighty so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than ordinary wear and tear of married life. The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social statutes of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

13. The Court dealing with the Petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse’s conduct have to be borne in mind before disposing of the Petition for divorce. However, insignificant or trifling, such conduct may cause pain to the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by make silence, violent or non-violent.

17. Several decisions, as noted above, cited by learned Counsel for the respondent to contend even if marriage has broken down irretrievably decree of divorce cannot be passed. In all these cases, it has been categorically held that in extreme cases the Court can direct dissolution of marriage on the ground that the marriage broken down irretrievably as is clear from para 9 of Shiv Sunder’s case (supra). The factual position in each of the other cases is also distinguishable. It was held that a long absence of physical company cannot be a ground for divorce if the same was on account of husband’s conduct. In Shiv Sunder’s case (supra), it was noted that the husband was leading adulterous life and he cannot take advantage of his wife shunning his company. Though the High Court held by the impugned judgment that the said case was similar, it unfortunately failed to notice the relevant factual difference in the two cases. It is true that irretrievably breaking of marriage is not one of the statutory grounds on which Court can direct dissolution of marriage, this Court has with a view to do complete justice and shorten the agony of the parties engaged in long drawn legal battle, directed in those cases dissolution of marriage. But as noted in the said cases themselves those were exceptional cases.”

26. It is important to note that the above judgments except the judgment of the Supreme Court and the judgment of the Punjab and Haryana High Court, were all delivered by the High Courts in its First Appellate Jurisdiction. But the above Appeals herein, have been filed under Section 100, C.P.C., and as pointed out by me, already, the appellant is not able to raise and prove any substantial questions of law arising out of these Appeals. If that being so, if the First Appellate Court has correctly evaluated the evidence and come to the right conclusion, it is not possible for this Court to interfere with the findings of the Appellate Court.

27. Hence, I do not find any merits in the above Appeals and as such I find no grounds to interfere with the findings of the First Appellate Court, which is the last Court of facts.

28. In the result, both the Appeals are dismissed with no costs.

Appeals dismissed.

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