IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 14.02.2002
Coram :
THE HONOURABLE MR. JUSTICE P. SHANMUGAM
and
THE HONOURABLE MR. JUSTICE P. THANGAVEL
C.M.A. No.37 of 2001 and
C.M.P. Nos.3814 & 11991 of 2001
S.K. Megalai .. Appellant
vs.
R. Muthuraj .. Respondent
PRAYER :
Appeal against the order and Decreetal order dated 24.11.2000 of the
learned Judge of the Family Court, Madurai made in H.M.O.P. No.71 of 1997.
: ORDER
This Appeal coming on for Orders on this day, upon perusing the
Memorandum of Appeal, the order of the Lower Court, and the material papers in
the case, and upon hearing the arguments of Mr. V. Sankaranarayanan for the
appellant and of Mr. A. Natarajan for the respondent and having stood over
for consideration till this day, the Court made the following Order :-
J U D G M E N T
P. SHANMUGAM, J.
The respondent/wife before the Family Court, Madurai is the appellant
before us. The husband filed a petition H.M.O.P. No.71 of 1997 under Section
13(1) of the Hindu Marriage Act for a decree and judgment to dissolve the
marriage between the parties held on 11.11.1991. The Family Court, by a
judgment dated 24.11.2000, granted the decree and directed the dissolution of
the marriage. The appeal is against this judgment and decree.
2. The appellant/wife was working as an Officer in the Indian Bank at
Chennai and the respondent/husband was working as Assistant Chief Controller
of Imports and Exports in the Central Government Commerce Department at the
time of marriage. The marriage was an arranged marriage held according to the
Hindu religious rites and customs on 11.1 1.1991. Misunderstanding arose even
at the time of reception of the marriage and both parties have their own
versions about it. However, they started living together at Madurai, the wife
having got transferred to Madurai. A female child was born to them in
October, 1992. On the basis of a stated incident in the petition that the
wife did not obey the direction of the husband to take the milk tumbler
outside and the refusal and threatening by the wife on the alleged statements
that she will give a police complaint, she is said to have left the
matrimonial house at Madurai along with the child to her parents’ house at
Uthamapalayam. The petitioner went to Uthamapalayam to take the baby back
with him, but the same was resisted to, resulting in the intervention of the
police and ultimately, the child was restored to the wife. Thereafter, the
problem between the parties was settled and compromised on 22.1.1995. The
wife conceived for the second time and she was taken for the second delivery
on 10.10.1996, after taking scanning and undergoing medical tests at Madurai.
The second child was born on 22.11.1996. Contending that the husband was not
informed of the birth of the second child and that his friends were not
permitted to see the child and that the wife had refused to carry out the
marital obligations of conjugal rights, a registered notice was issued by the
husband through his advocate on 29.1.1997, followed by the petition under
Section 13(1) of the Hindu Marriage Act on the ground of mental cruelty.
3. The wife opposed the petition, inter alia, contending that there
is no cause of action for the petition and that the same was made because of
the hatred of the husband’s family towards the birth of two female children
and with an intention to have a second marriage. According to the written
statement, the husband is acting at the instance of his mother and that he had
developed hatred towards the wife only because of the constant instigation by
the mother-in-law. She further says that the mother-in-law had influenced and
interfered even with the official conduct of the husband, resulting in
criminal complaints against him. The minor differences were magnified and the
allegations that she was not happy with the marriage and that she was having
the habit of leaving to her parents’ house without informing the husband and
that the first child was named without informing him were all denied. On the
contrary, she points out that it is her, who was at the receiving end because
of her failure to bring sufficient dowry and for giving birth to a female
child. In any event, after the admitted compromise on 22.1.1995, the husband
has no cause of action to make any complaint against her whatsoever. She
refused the allegation that the husband was not informed of the birth of the
second child. On the contrary, it is her complaint that the husband’s family
came to know that the second child is going to be a female child after the
scanning was done, over which they were very much upset and therefore, inspite
of her informing them about the birth of the second child, they did not come
and see the child. They have invented reasons to immediately give a
registered notice on 22.1.1997 with false allegations to prepare a ground for
a divorce. She had denied all the allegations made in the petition and has
her own version and has put it that she is a person who had been wronged and
that the mental and physical cruelty had been inflicted only on the wife by
the husband and not vice versa.
4. The parties have examined themselves, besides the lawyer’s notice,
an inland letter and a photo album being marked as exhibits on the side of the
wife. The learned Family Court Judge had considered the materials and also
the only issue whether the respondent had caused such cruelty to the
petitioner to enable him to get a divorce and answered the same in favour of
the husband.
5. The judgment of the Family Court has been assailed on several
grounds. We have heard the counsel for the parties and considered the matter
carefully.
6. On the factual aspects, shorn of all minute details, the major
events that are admitted to have taken place are as follows :
11.11.1991 - Marriage between the parties. October, 1992 - First female child was born. April, 1993 - Termination of medical pregnancy to the wife.
November, 1994 – Husband leaves the house with the female
child to Uthamapalayam and the wife’s
attempt to get back the child through
mediators and complaint in the police
station by the wife for assault and
refusal to give the child.
22.1.1995 - The matter was compromised.
10.10.1996 - Wife leaves for second delivery after
taking a scan and finding that the second
child would be a female child.
22.11.1996 - Female child was born.
29.1.1997 - Registered Advocate's Notice by husband
for judicial separation on the ground of
failure to carry out marital obligations
and cruelty.
7. In reference to the above events, we are concerned with the
instances that are said to have taken place after the admitted compromise on
22.1.1995 and the parties started living together thereafter. Therefore, we
are not seriously concerned with the events that had taken place earlier.
However, for the sake of completion we find from the legal notice as well as
the petition, the following instances of cruelty :
(1)The alleged statement of the wife that she did not like the husband.
(2)The alleged statement of the wife on the next day of marriage reception
that she would commit suicide and the husband giving a telegram to the wife’s
parents and asking them to take her back to advise her.
(3)Not revealing the monthly income and spending for the family and the habit
of leaving the marital home whenever her parents come, without the permission
of the husband.
(4)Naming the child without informing the husband.
(5)Creating an impression among the friends and relatives that the wife had
given dowry.
(6)The refusal to remove the milk tumbler and threatening that she will give a
police complaint and send the husband to jail.
(7)Giving police complaint to get back the baby on 18.11.1994.
(8)Settlement on 22.1.1995.
The incidents that happened after the settlement as set out in the notice and
the petition are as follows :
(1)Attempt of the wife to go to her parents’ house on weekly holidays.
(2)After leaving to her parents’ house on 10.10.1996 for the second delivery,
the failure to inform the husband about the birth of the child and the refusal
to permit the friends of the husband to see the child.
8. The wife, in her counter as well as in her evidence, has stated
that they were living happily after the marriage held on 11.11.1991. The
marriage reception was held at Chennai on 19.11.1991. She had never informed
the husband that she did not like him nor she threatened to commit suicide.
On the contrary, she says that it is only her mother-in-law who gave a
telegram to her parents alleging that their daughter is trying to commit
suicide and her parents came there and finding the telegram to be false, took
serious objection for the same, for which the mother-in-law replied that the
dowry given by them was insufficient. After having married without specifying
the dowry, the allegation of insufficient provisions was the reason for the
controversy, and thereafter, they were living to gether at Madurai and a
female child was born to them in October, 1992. The naming of the child was
done by the husband’s family at Tenkasi, the place of the family deity of the
husband. However, it is the husband, who had left her parental home with the
child on the flimsy allegation that she refused to remove the milk tumbler and
only in her attempt to get back the tender child as also the physical beating
given by the husband which prompted them to file a police complaint and only
then they were able to get back the child. It is only the husband who has
left the house with the child without informing the wife. According to her,
right from the beginning, the mother-in-law was so unhappy on account of the
birth of the female child and became very upset when the second child was also
found out to be a female child. According to her, she had informed the
husband immediately about the birth of the child and she had denied the
alleged refusal to permit the husband’s friends to see the child. It is not
in dispute that the husband did not go to see the child. She has also stated
in her evidence that immediately after the legal notice Ex.P.1 dated
29.1.1997, she contacted her husband over phone as to how he could issue such
a notice. He had replied saying not to take the notice seriously and that he
had issued it only as a joke. It is the husband who had asked her not to come
to his house after the birth of the second child.
9. The allegations of cruelty prior to 22.1.1995, the date of the
admitted compromises, are not established and in any event, the husband had
admittedly condoned whatever that had happened prior to 22.1.199 5.
Therefore, we are seriously concerned only with the alleged incidents that are
said to have taken place after that. The parties were living together from
January 1995 to 1996. The main grounds of cruelty, after this, is the failure
of the wife to inform the birth of the child to the husband and permit his
friends to see the child, which was followed by the legal notice dated
29.1.1997 stating that she had failed to discharge her marital obligations.
In his legal notice, it is stated as follows :
“My client’s friends settled the matter, made a compromise on 22.1.1
995. You came to the matrimonial home. Even after settlements, you often
unco-operated with my client for no reason.”
Till 10.10.1996, the date on which she left for her parental home for the
second deliver after scanning, the only allegation in the notice is that it is
only the husband who was looking after the child and that she used to go to
her parents’ house on weekly holidays. After the birth of the child, the wife
did not bother to send a word to him about the delivery and his friends were
also refused permission to see the new born child. On the contrary, the wife
has stated in her counter that the birth of the second child was immediately
informed to the husband and since the husband’s mother had already developed a
hatred towards female child, neither the husband nor anyone from his side
choose to come and see the second child. Therefore, the fact remains that
admittedly, the husband did not make any attempts to go and see the child even
assuming that he came to know through somebody about the birth of the child.
10. Secondly, there is no question of refusal to perform the marital
obligations on the part of the wife, between 22.11.1996 and 29.1.199 7,
especially after the birth of the second child on 22.11.1996, since the
husband had not gone to take the wife back and further, it is too short a
period for the wife to leave the tender child. It is crystal clear that the
allegations made after 22.1.1995 that she did not inform the birth of the
child and the refusal to permit his friends to see the child, which are not
denied, are too trivial so as to constitute mental cruelty for the husband.
As a matter of fact, the admitted failure of the husband to go and meet the
second child and his insistence upon the wife to come and perform the marital
obligations within two months of the birth of the second child itself is only
a cruelty against the wife and not against the husband.
11. The next main ground argued and objected to by the counsel for
the respondent herein is as to the allegations contained in the statement of
objections filed by the wife before the Family Court.
12. At the outset, it has to be stated that the respondent did not
amend his petition alleging a new ground for divorce namely mental cruelty on
the basis of the allegations contained in the statement of objections. In the
counter, the wife had stated that she is inherently a disciplined,
sophisticated and modest housewife, who had determined to dedicate herself as
a duty-bound housewife to her husband. But on the other hand, the respondent
happened to be a “henpecked puppet” of his sadist mother and a greedy woman,
who exploited the official status of her son and trained him to e xtend his
hands beyond his reaches and invited criminal cases. She says as follows :
“The respondent (wife) was very much disturbed by the activities of
the petitioner right from the threshold of her marital career. But, neither
the petitioner nor his mother entertained the feelings of the respondent. The
disagreeing attitude of the respondent towards the corrupt activities of the
petitioner gradually developed a dent in their relationship.”
In other words, the allegation of the wife was that the greediness of the
mother-in-law is the root cause for the activities of her husband, both inside
the house as well as in his official capacity. She had stated that the
husband earned several lakhs of rupees out of the corrupt practice and
purchased several properties and jewels in the names of his brothers, mother
and relatives in Uthamapalayam. The respondent, in his deposition as P.W.1,
has admitted that R.C. No.15 of 1992 was filed by the C.B.I. Madras before
the Special Court, in which he was shown as the 10th accused. Thereafter, he
was deleted from the chargesheet. He further admits that his net income
during 1992-9 3 was Rs.6,000/- or Rs.7,000/- and one of his brothers Ravi was
studying in a college during 1992-93. For the suggestion that during that
period 1992-93 four properties were purchased in the name of his brother and
his father, the respondent has stated that he is not aware of those purchases.
The further suggestion that these properties were purchased and buildings
constructed at the cost of Rs.15,00,000/- and that it was his property was
denied. In this context, the wife has stated that the greediness of his
mother had spoiled the mind of her husband to follow her dictates. Apart from
this, she had apprehension even for the life and safety of her two female
daughters. She had emphatically denied that neither the respondent nor anyone
went to her house to see the female children when they were born and stated
that she was denied entry to her marital house after delivery of the second
child. Inspite of several attempts made on her part through her father,
relatives and mediators to try to join the husband, the respondent has denied
that right with an ulterior motive of satisfying his mother’s commands.
13. Though some of the expressions used are caustic like “corrupt
practice” and activity and that he acted like a “henpecked puppet of his
saddist mother and greedy woman”, the language by itself cannot be taken out
of context and relied solely for the purpose of establishing mental cruelty on
that score. The fact remains that a criminal case was registered wherein he
was arrayed as the 10th accused and subsequently absolved of the charges and
that the husband was admitted to have purchased properties in the name of his
family members and was acting at the whims of his mother and that the
disagreeing attitude of the wife to these activities is one of the grounds to
refuse her the right to join her husband. Apart from that, she had alleged
that the mother of the husband had developed serious hatred towards her
because of the birth of the second daughter to the extent of weeping on
knowing about the result of the scanning and the admitted failure of the
respondent to come and see her and the issue of legal notice within three
months of the birth of the second child on the ground that she had not
provided conjugal rights to the husband would only go to show how far the wife
is driven and out of desparation, she has made the claim in the counter
statement. Therefo re, we have taken into account the whole background and
the context in which these expressions were used.
14. Reliance was was made by the counsel for the respondent to the
judgment in V. BHAGAT VS. MRS. D. BHAGAT (A.I.R. 1994 S.C. 710). In our
view, this judgment cannot be of any assistance to the respondent for the
reason that their lordships have observed therein that the case is an unusual
case calling for an unusual solution. They have also cautioned in paragraph
23 of the judgment by clarifying that merely because there are allegations and
counter allegations, a decree of divorce cannot be granted. Their lordships
observed as follows :
“If it is a case of accusations and allegations, regard must also be
had to the context in which they were made.”
Referring to the marriage in that case, it was observed,
“It was one which has turned into a hole for sure. The allegations
and counter allegations are indicative of the intense hatred and rancour
between the parties. Any reconciliation is out of question. Each party, it
appears, is out to punish the other for what other is supposed to have said or
done. This appears to be the single thought ruling their lives today. A good
part of the life of both the parties is consumed in this litigation and yet
the end is not in sight. For the parties to come together, they must be
superhumans, which they are not. The parties have crossed the point of no
return long ago. The nature of allegations levelled against each other show
the intense hatred and animosity of each bears towards the other. The
marriage is over except in name. Both the parties are well settled and the
chilren are grown up and are on their own. On these facts, the allegations
were held not made in a fit of anger or under an emotional stress. They were
made in a formal pleading and the questions to that effect were put by her
counsel at her instance in the cross-examination. Even in her additional
written statement, she had asserted her right. The wife has contribued lack
of mental equilibrium of the husband and all members of his family are
lunatics and streaks of insanity run through his entire family. The husband
in that case was a practising lawyer. He began suspecting her infidelity and
when questioned of her adulterous behaviour, she admitted the same and asked
to be pardoned. This was denied to by the wife. According to the respondent,
she is an incorrigible adulteress. The wife characterised the husband like
Othello, a pathological, suspicious character.”
Therefore, in our view, in the facts and circumstances of the said case, their
lordships held that divorce can be granted in the peculiar facts and
circumstances. None of these parameters set out in the said judgment apply to
the facts of the case on hand. A Division Bench of the Bombay High Court in
RAJEN VASANT REVANKAR VS. SHOBHA RAJAN REVANKAR (A.I.R. 1995 BOMBAY 246)
held that wild, reckless and scandalous allegations by the wife against the
husband’s mother, his two married sisters and brother-in-laws in letters
amount to cruelty. In this case, the wild and baseless allegations against
all the family members were found repeated and the Division Bench, held that
attempts at reconciliation failing, the marriage irretrievably broke down and
granted the decree for divorce. In both the above judgments, their lordships
held that mental cruelty should be of such a nature that the parties cannot be
reasonably expected to live together. The situation must be such that the
wronged party cannot be reasonably asked to put up with such conduct and
continue to live with the other party. Applying this ratio, we cannot hold
that the husband has reasonable apprehension from his wife that he cannot be
expected to live with her.
15. The judgment in V. BHAGAT VS. D. BHAGAT cited supra was
referred to and explained in PUSHPAVATHI @ LALITHA VS. MANICKASAMY [I (2001)
DMC 679 (SC)]. Their lordships in this case held that what is cruelty in one
case may not amount to cruelty in another case. It is a matter to be
determined in each case having regard to the facts and circumstances of that
case. If it is a case of accusations and allegations, regard must also be had
to the context in which they were made. The failure of the respondent in
making it as a plea for a ground of divorce and to give an opportunity to
explain the case of the wife also has to be taken into account. In R.
BALASUBRAMANIAN VS. VIJAYALAKSHMI BALASUBRAMANIAN [1999 (7) S.C.C. 311], the
Supreme Court held that the cruelty stood condoned by the parties living
together and celebrating wedding anniversary. In this case, all the
allegations prior to 22.1.1995 stood condoned by their subsequent cohabitation
and getting a second child. After the birth of the second child, there is
hardly any acceptable material to constitute cruelty. There is absolutely no
cause of action to issue a legal notice dated 29.1.1997 and it is obviously
intended to refer to the earlier incidents to prepare a ground of a petition
for divorce. Therefore, there are no bonafides in the allegation of cruelty.
In S. HANUMANTHA RAO VS. S. RAMANI [1999 (3) S.C.C. 620], the Supreme
Court held that hypersensitivity and panic reaction of complainant/spouse
cannot be used to case a blame on and make out a case of mental cruelty. In
that case, a complaint before the Womens’ Protection Cell was made by the wife
against the husband and his family members, who in panic, sought anticipatory
bail, in the absence of any record to show that any members of the family were
harassed, and that only a plea was made to bring a reconciliation between the
parties, the respondent cannot be blamed for that. In this case also, the
police complaint is the result of the snatching away of the tender child by
the husband without informing the wife and others and they were to go along
with the family members and seek protection of the police to get the child.
It was a conciliation by which the husband handed over the child to th wife.
Therefore, the action of the wife to seek protection of police for getting
back her child cannot be treated as amounting to cruelty against the husband.
On the contrary, it is the other way around.
16. Lastly, a reference was made to one of the letters written by the
wife ten years back to one of her friends. It is an undated letter without
address and not posted. Admittedly, this letter came to be marked not through
the respondent. The letter was simply shown to the wife and was marked. The
admissiblity of this letter itself is in doubt. Apart from this, the letter
was not posted and it is not intended to be seen by anybody. She writes
therein that she is not interested to marry the man as he wants an Accountant,
i.e. the appellant and he demands for one car and …. pounds of gold also.
She says, ” Think of it, what kind of desparate life I am going to have”. She
prays the help of the God as she was upset at the proposal at that time. A
reading of this letter would only show that she is not happy for the proposal
because of the amounts demanded by the husband’s family. Apart from this, we
do not find anything u nusual so as to say that there she was having an affair
with another person and that therefore, this has caused mental agony to the
husband.
17. Section 10 of the Family Courts Act, 1984 says that subject to
the other provisions of the said Act and the Rules, the provisions of the Code
of Civil Procedure, 1908 shall apply to the suits and proceedings before the
Family Court. Order 7, Rule 14 C.P.C. deals with the documents relied on in
the plaint. Rule 14 mandates the production of the documents when the plant
is presented and at the same time, deliver the documents or copy thereof to be
filed with the plaint. Sub-rule (2) says that where he relies on any other
document, whether in his possession or power or hand as evidence of his claim,
he shall enter such document in a list to be added or annexed to the plaint.
Rule 17 says that a document which ought to be produced in court when the
plaint is presented and when it is produced, it shall not, without the leave
of the court, be received as evidence on his behalf at the hearing of the
suit. Sub-rule (2), which is relevant for our purpose states as follows :
“Nothing in this rule applies to documents produced for
crossexamination of the defendant’s witnesses, or in answer to any case set up
by the defendant or handed over to a witness merely to refresh his memory.”
18. In this case, the petitioner ought not have been permitted to
mark a new document without the leave of the court while the respondent is
being cross-examined, especially when there is such a plea in the petition.
There is no scope for marking such a document through the respondent. The
heading of Rule 18, which says, “Admissibility of document not produced with
plaint filed”, shows that the document said to have been produced is
inadmissible in evidence. However, the learned Judge, in our view,
erroneously went on to mark this document as Ex.P.3 and narrated the full text
of the letter, holding that this letter clearly reveals that she had lots of
love to one Mr. Jugal Kishore Hasmukh who had an idea of getting her hand and
that she did not like to marry the petitioner. The respondent had deposed
that she had realised the mistake after writing the letter and therefore, she
decided not to post it to the destination. The learned Judge went on to hold
that the sentence written in the letter exhibited her inner feeling towards
the petitioner and therefore, she might have informed the husband, whom she
had to marry against her wishes, that she was not interested in the marriage
and therefore, she has caused mental agony by writing this letter. We are
totally unable to accept the reasoning of the learned Judge. In our view,
this undated and unposted letter cannot be treated as having been addressed to
anybody, much less to reveal the feelings of the respondent this cannot give
rise to a reasonable presumption that she has got a hatred against her
husband. The learned Judge failed to see that many such proposals and
arrangements would have come prior to one’s marriage. They might have liked a
person for one reason or the other, but that may not fructify the marriage.
Simply because the appellant liked a person other than her husband, that does
not mean that she developed a hatred towards her husband, whom she had married
later on. The unearthing of this letter after ten years and putting that
against the appellant as if it had caused a mental agony to the respondent is
clearly illegal.
19. A Division Bench of the Calcutta High Court in SHRI PRANAB BISWAS VS.
SMT. MRINMAYEE DASSI & ANOTHER (A.I.R. 1976 CALCUTTA 156), held that in
order to determine that a love letter written to her lover would amount to
mental cruelty, that must be evidenced to show that there was reasonable
apprehension of harm or injury in the mind of the respondent/husband.
20. The finding of the learned judge that by writing the letter, the
wife had caused mental agony to the husband cannot be sustained for the
reasons stated above. The learned Judge further erred in holding that it
cannot be held that the petitioner is entitled to get divorce merely because
of the threat of the wife to commit suicide. It should be taken into account
as one of the points in favour of the petitioner. This is in the absence of
establishment of the fact that the wife threatened to commit suicide. From
the evidence, we find that the allegation is unfounded and it has no evidence
to support the case of threat. The wife has stated at more than one place
that she is always ready and willing to live with her husband and that it was
only her husband who is not willing to permit her to lead the marital life.
21. For all these reasons, there are absolutely no grounds to sustain
the contention of cruelty under Section 13(1) of the Hindu Marriage Act. The
findings of the learned Judge are therefore liable to be set aside and
accordingly set aside. The appeal is allowed. No costs. Consequently, the
connected C.M.Ps. are closed.
14..02..2002.
Index : Yes
ab
Sd/..
Assistant Registrar
// TRUE COPY //
Sub Assistant Registrar (C.S.)
To
The Presiding Officer,
Family Court,
Madurai.
P. SHANMUGAM, J.
and
P. THANGAVEL, J.
Pre-delivery Judgment in
C.M.A. No.37 of 2001
Delivered on