JUDGMENT
K. Gnanaprakasam, J.
1. This is an appeal by the wife.
2. The respondent/husband, filed a petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955, for the dissolution of the marriage and same was ordered on 21.2.2000. Aggrieved by the same, wife has preferred this appeal.
3. The respondent/husband, in his petition, had stated that the marriage between the petitioner and the respondent took place on 22.3.1995 at Madras, according to the Hindu Rites and Customs. After the marriage, they lived together at NO.70, Nattu Pillaiyar Koil Street, Chennai 79, for 3 days and subsequently, in place nearby, for a period of 40 days. The petitioner and the respondent lived together along with the petitioner’s parents. During the said period, the respondent behaved indifferently on the first day of the marriage itself. The wife wanted the petitioner to stay with her parents’ house at Raja Annamalaipuram, Chennai and the husband refused to oblige to the said request. Therefore, the wife left to her parent’s house, during the I Week of May 1995. Since then, she has been residing with her parents. Efforts to bring her back ended in vain. Whenever the petitioner tried to meet his wife, he was abused and was not even allowed to enter into the house of the wife. The parents of the petitioner with other elders tried to compromise the matter, but the wife and her father refused for a compromise and wanted to have divorce. The wife also made a complaint to the Police in July 1995 to the All Women Police Station, Adyar, complaining of dowry harassment. According to the petitioner, the wife deserted him for more than two years without reasonable cause and even after the advocate’s notice, the wife has not chosen to come and live with the petitioner.
4. The respondent/wife filed a counter, wherein, she admits the marriage. It is stated that the expenses for the marriage amounting to Rs.1,50,000/- were borne by the respondent’s parents, which is besides the jewels worth Rs.1,00,000/- given by the respondent’s parents. Silver articles and other household articles worth Rs.25,000/- were also given. Rs.50,000/- was paid by the respondent’s parents, in cash, one, month before the date of the marriage. Another Rs.50,000/- was paid, 10 days before the date of the marriage and these amounts were utilised by the petitioner for booking a Maruti Van for the petitioner. Rs.1,00,000/- was paid in cash by the respondent’s parents. The respondent admits that after the marriage, they lived together at No.70, Nattu Pillaiyar Koil Street, Chennai 79 and as the said accommodation was quite inadequate, they have shifted to 17, Perumal Mudali Street, Kondithope, Chennai 79. The respondent wanted the petitioner to stay along with her parents at 13, Gayathri Apartments, Raja Annamalaipuram, Chennai 28 and the petitioner did not agree for the same and therefore, the respondent left to her parents’ house in the I Week of May 1995. The petitioner agreed that he would come and take her back, but, did not turn up. On 23.5.1995, the respondent was willing to go and live with the petitioner, but, the petitioner’s father demanded Rs.1,00,000/-, which was promised to be given by the respondent’s parents at the time of the marriage. The demand by the petitioner for Rs.4,00,000/- in cash,for the construction of house in the petitioner’s father’s place at Thiruvanmiyur and the respondent’s parents could not comply with the said demand immediately and that therefore, petitioner created an unwanted scene and left the place of the respondent, by leaving a challenge that he would take his wife to his house only with the money and not otherwise. But, however, during June 1995, the petitioner used to visit the respondent in her parents’ house and expressed his desire to live separately with the respondent. But, he has not done so. On 14.7.1995, the husband’s parents and his brother Selvam came to the respondent’s parents’ house at Gayathri Apartments and misbehaved very badly, and used filthy language against the respondent and her parents and also threatened to end the life of the respondent and thereupon only, she was forced to give a complaint to All Women Police Station, Adyar. The respondent was willing to lead a happy marriage life, with the petitioner and efforts were also made by the Police at All Women Police Station, Adyar to restore the marital life between the petitioner and the respondent, but they all ended in failure. The petitioner returned all the jewelleries, silver articles and household articles and same was acknowledged by the respondent/wife. It is is stated that even now the respondent/wife is ready and willing to join with the petitioner and it is the petitioner, who is avoiding the respondent, by hurling false allegations.
5. The petitioner and the respondent went for trial. The petitioner was examined as PW.1 and Exs.P1 to P3 were marked. Wife was examined as RW.1. Except the husband and the wife, no other independent witnesses have been examined on either side.
6. The family court, after considering all the materials placed before it, has accepted the case of the husband that the wife treated him cruelly and allowed the petition. Aggrieved by the same, wife has preferred this appeal.
7. The learned advocate for the appellant/wife has submitted that she has not committed any act, which would come within the meaning of ‘cruelty’ nor she had any intention to treat her husband cruelly. Wife’s parents have given enough jewels to the husband and the marriage expenses were also borne by them. Not having satisfied with what have been given by the wife’s parents, it has become habitual for her husband and his family members to demand more money and dowry. Further, on 14.7.1995, the husband and his brother Selvam came to the appellant’s house and scolded her in a filthy language and also threatened to end the life of the wife, which alone forced the wife to give a complaint to All Women Police Station, Adyar, which was misunderstood by the husband and he had filed the petition on flimsy grounds, seeking divorce. It is further argued that the none of the acts and activities of the wife constitute cruelty and the family court has not properly considered the case, projected before the court and also failed to note that the alleged cruelty, said to have been committed by the wife was not proved and the evidence both oral and documentary, are very much wanting, in this case, to establish the case of the husband that his wife acted cruelly against her husband.
8. Per contra, the learned advocate for the husband/respondent would submit that after the marriage, they lived together for 3 days in one place and thereafter shifted to nearby place and lived there, for 40 days. Thereafter, the wife demanded the petitioner to come and stay with her parents at Raja Annamalaipuram and the same was not agreed to by the husband and she left to her parents’ house in the I Week of May 1995. Efforts taken by the husband with family members to bring her back to lead the family life have turned futile. The husband, in his evidence, had deposed, that while he and his father were returning from the house of the wife, the car was stopped at the traffic signal at Chamiers Road and at that time, wife got down from the car, with her suit case and refused to accompany the husband to his house. The husband went to the house of his wife, and the wife and her family members scolded him and sent him away. After two days, the husband’s father and his brother Selvam went to the house of the wife to bring her back and it was 9.30 p.m and the wife was absent. When questioned, it was stated, that she had gone to her sister’s house and husband’s father and brother went to her sister’s house and enquired about the wife and they have replied, without opening the door that she has not come. The wife’s father has bluntly stated that he wants to send his daughter to America and therefore, the husband may give divorce. Husband, in his evidence, had stated that his wife had written a letter seeking divorce, which is Ex.P1. Husband relied upon the said letter to prove that the wife had expressed her willingness to give divorce on return of the cash together with interest. Husband also stated that the wife has given a false complaint to the police, upon which, the husband and his father and brother were dragged to the police station, which gave them unnecessary hardship, inconvenience and humiliation and they were put to mental agony and cruelty and therefore, it has become impossible for him to live with his wife and thereby, argued in support of the order passed by the family court.
9. Heard both sides.
10. The marriage between the petitioner and the respondent is not in dispute. The petitioner and the respondent lived together for 3 days in one place and thereafter, they shifted to another place. Thereafter only, the trouble started among the spouses. According to the husband, the wife requested him to come and reside at Raja Annamalaipuram in her parents’ house. But, on the other hand, wife has stated that the accommodation at Kondithope was inadequate and only in the said circumstances, she had requested her husband to come and live at Raja Annamalaipuram in her parents’ house. By and large the husband and the wife lived together and were willing to live together, of course, only for 40 days and in the meanwhile, unnecessary misunderstandings crept between the husband and the wife.
11. The wife’s main contention is that it has become habitual for her husband to demand more money and dowry and as a matter of fact, she narrated three instances, wherein, the husband’s parents demanded money and the same was paid on three occasions. But, it is so unfortunate that neither the husband nor the wife has taken any steps to prove their case. But, they hurled allegations against each other and the husband has come to the court, seeking divorce on the ground of cruelty.
12. The term “cruelty” is nowhere defined under the Act. Before the amendment of Marriage Laws (Amendment) Act, 1976 (68/1976), under Section 10, the spouse can seek for judicial separation on certain grounds, among which cruelty is the ground, wherein under Section 10(1)(b), it was defined as “has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party”. But, the said definition has been erased and now what has been available under Section 13(1)(ia) is “has, after the solemnisation of the marriage, treated the petitioner with cruelty”. It is therefore, evident that the term “cruelty” need not necessarily cause a reasonable apprehension in the mind of the other spouse that it would be harmful or injurious for the one spouse to live with the other spouse. As it could be understood, the term ‘cruelty’ is now in its simpliciter. Though the husband has levelled cruelty against his wife and also marked a letter, said to have been written by the wife, which is very much disputed by the wife, there is absolutely nothing on record to show that the wife has behaved, in such a manner that it had caused cruelty of any sort to the husband.
13. Though the husband has filed the petition under Section 13(1)(ia), seeking divorce on the ground of cruelty, in para 7 of the petition, he has stated that “the petitioner states that the respondent had deserted him for more than 2 years without reasonable cause and inspite of best efforts, the respondent was not willing to live with the petitioner…….. Due to the humiliation meted out by the respondent to the petitioner, the petitioner has been put to great mental, physical and social torture by the respondent.” It would reveal the mind of the husband that though he sought divorce on the ground of cruelty, but, had stated that the wife has deserted him and on that ground he wants to have divorce. But, it is so unfortunate that the husband has not let in any acceptable evidence to conclude that the wife has behaved, in such a manner, which was cruel or that she has deserted him. The phraseology used in the petition is that “the wife has behaved, in such a way which caused mental, physical and social torture”. But, the husband has not placed any material before the court to accept his case that she has committed any cruel act, which warrants and justifies the claim of the husband to seek divorce on the ground of cruelty.
14. The family court, no doubt, had analysed the definition of cruelty, based upon the definition in the case of II-1998-DMC-1(DB), “that there is no straight jacket formula for cruelty and it depends upon the number of circumstances and facts of the case and factors constituting cruelty – making false allegation that too unproved tantamounts to cruelty. ”
15. The respondent/husband also relied upon the case (Romesh Chander Vs. Savitri), wherein the Supreme Court held that “If a marriage was dead and there was no chance of its being retrieved, it was better to bring it to an end.” That is the case where the spouses were not able to meet and also lived separately for a long time and order was passed considering the facts and circumstances of the case, in exercise of power under Art.142 of the Constitution of India. Allegations were made by the wife against the husband about his mixing with the undesirable girls, but,no evidence was given to support those allegations nor the same were found proved. The husband, however, had expressed his remorse on his conduct and neglect of his wife. In the said circumstances, it was said that the marriage had broken down emotionally and practically, Looking to such facts and circumstances, the marriage was dissolved, exercising power under Art.142 of the Constitution of India and that is not the facts and circumstances in our case. In fact, the apex court in the case of Chetan Dass Vs. Kamla Devi , has stated, “Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by Statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective for regulating matrimonial norms for making of a well knit, healthy and not a disturbed and porous society. Institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of “irretrievably broken marriage” as a straight jacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case.” Of course, the Family Court has observed that efforts made by the court for reconciliation were not fruitful. The said attempt of the Family Court is contemplated under Section 9 of the Family Courts Act itself. If the effort taken by the Family Court does not yield the desired result, then it has become necessary to face the trial and the same was done in this case. According to the husband, he has suffered so much of cruelty at the hands of the wife and so he is not willing to accept the wife in his matrimonial home at any cost, even if the wife is willing to join with him. But, it could be seen that the wife has been expressing her readiness and willingness to go and join with her husband and at no point of time, she declined to live with him. Further though Ex.P1 said to have been written by the wife, it was not proved to be so, by the petitioner, and we do doubt about the genuineness of Ex.P1, as the same was also not stated in the petition.
16. Wife, in her evidence, has also denied the letter Ex.P1, said to have been sent by her. But, however, the Family Court went wrong in observing that “Though the respondent has stated that she has not written a letter Ex.P1 and sent to the petitioner, in her evidence, she has not stated that Ex.P1 has not been written and sent by her to the petitioner, in her counter.” The said observation of the Family Court does not appear to be correct. Ex.P1 was marked through PW.1, while he was in the box, but the counter had been filed in earlier point of time and that therefore, the observation of the Family Court is not correct. As the Family Court was lulled into the belief that the wife has not denied Ex.P1, in her counter, it had extracted certain passages from Ex.P1 and had come to the conclusion that the wife has no mind to live with the petitioner. Much reliance was made by the Family Court in respect of a passage in Ex.P1, which is as follows:- “But, still you don’t believe me, it is your fate. You divorce me. You give back my money with 1 year and 3 months interest and do what nonsense you can.” The Family Court proceeded on the belief that the letter was written by the wife and concluded that the respondent/wife is not willing to go and live with the petitioner in the matrimonial home to lead a family life. In our view, there is no acceptable evidence before the court that Ex.P1 was written by the respondent/wife. Further, the signature in Ex.P1 was also disputed by the wife and the same was not proved to the satisfaction of the court and on that score, we are unable to accept the finding of the Family Court with regard to Ex.P1.
17. The other submission made by the learned advocate for the respondent/husband is that the complaint given by the wife to All Women Police Station, Adyar, had caused cruelty. What all has been stated in the petition is that she has given a complaint to All Women Police Station, Adyar, for dowry harassment and nothing more. Mere giving of a complaint to the Police for dowry harassment would not amount to cruelty. In this connection, it will be useful to refer the decision rendered by the Supreme Court in the case of S. Hanumantha Rao Vs. S. Ramani . In that case also, the wife lodged a complaint with the Women’s Protection Cell through her uncle and as a result of which, the husband and his family members had to seek anticipatory bail. Wife, in her evidence, stated that she had never lodged any complaint against her husband or any member of his family, with the Women’s Protection Cell. However, wife has stated that her parents sought help from the Women’s Protection Cell for reconciliation through one of her relatives, who at one time, happened to be the Superintendent of Police. It is on the record that one of the functions of the Women’s Protection Cell is to bring about reconciliation between the estranged spouses. In the said circumstances, it was held that “there is no evidence on record to show that either the appellant/husband or any member of his family was harassed by the Cell. The Cell only made efforts to bring about reconciliation between the parties, but failed. Out of panic if the appellant and the members of his family sought anticipatory bail, the respondent cannot be blamed for that. Thus, we are of the opinion that the representation made by the parents of the respondent to the Cell for reconciliation of the estranged spouses, does not amount to “mental cruelty” caused to the appellant.” The said proposition is squarely applicable to the case on hand and therefore, the mere fact that the wife has given a complaint to the All Women Police Station, Adyar, would not amount to “mental cruelty”, as contended by the respondent/husband.
18. We are also conscious of the fact that in a case of divorce, we have to take all care and caution before granting a decree of divorce, as it would not only end the marital tie between two individuals, but also would bring the relationship of two families to an end and therefore, the repercussion that would follow in granting a decree of divorce has also got to be borne in mind. We do not find, in this case, that life between the parties has reached to the extent, to come to the conclusion that the marriage between them is dead or cannot be renewed. The marriage took place in the year 1995 and the husband rushed to the court in the year 1997 itself and no efforts have been taken on either side to cement the cleavage between the parties and we hope that the parties would attempt for an amicable settlement of the matter outside the court. We are also able to see that the husband is trying to bank upon the disputed letter (Ex.P1), said to have been written by the wife and wants to get an order of divorce and the Family Court also misdirected itself, in relying upon the said letter and came to the conclusion that the wife had caused cruelty to the husband, which in our opinion, is not proper. In this case, we hope and believe that the spouses could sink their differences and live in harmony and therefore, the order passed by the family court is liable to be set aside and accordingly, it is set aside.
19. In the result, the civil miscellaneous appeal is allowed and the judgement and decree of the Family Court is set aside. Consequently, connected CMP is closed. No costs.