BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21/01/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.S.A.No.7 of 2007 and M.P.(MD)Nos.1 to 5 of 2007 Sumathi ... Appellant/Wife Vs Palanichamy ... Respondent/Husband Prayer Appeal filed under Section 28 of the Hindu Marriage Act read with Section 100 of the Civil Procedure Code, against the order passed in C.M.A.No.31 of 2005 dated 28.12.2006 on the file of the Principal District Judge, Karur, confirming the order passed in H.M.O.P.No.50 of 2004 dated 29.07.2005 on the file of the Subordinate Judge, Karur. !For Appellant ... Mr.S.Subbiah for Mr.M.Subash Babu. ^For Respondent ... Mr.T.Srinivasa Raghavan for Mr.M.Karthikeya Venkitachalapathy :JUDGMENT
This appeal is focussed as against the order passed in C.M.A.No.31 of
2005 dated 28.12.2006 on the file of the Principal District Judge, Karur,
confirming the order passed in H.M.O.P.No.50 of 2004 dated 29.07.2005 on the
file of the Subordinate Judge, Karur.
2. For convenience sake, the parties are referred to hereunder as husband
and wife.
3. The warp and woof of the case of the husband could pithily and
precisely be portrayed thus:
The marriage between the parties herein took place on 20.02.1997 as per
the Hindu Rites and Customs. During the wedlock, they gave birth to two female
children. The wife is an handicapped lady due to polio, even before such
marriage. Both are employed. The wife started disrespecting the husband and
indulging in giving mental torture to him and treated him cruelly. She was in
the habit of leaving the matrimonial home at her whims and fancies. She also
lodged a false complaint with the police as against the husband and his parents
and the criminal case ended in acquittal. Accordingly, he prayed for divorce.
4. Per contra, denying and disputing, refuting and impugning the
averments/allegations in the petition filed by the husband, the wife filed the
counter with the averments thus:
The husband was a part time worker in Karur Municipality at the time of
his marriage and till he got confirmation in his job, the relationship between
the husband and the wife was cordial. Once, he became permanent in his job, he
started harassing the wife so as to get rid of her and to marry some other girl.
She would also allege that the husband and his parents beat her black and blue
and injured her. Accordingly, she prayed for the dismissal of the divorce
petition.
5. The trial Court framed the relevant issue and during trial, the husband
examined himself as P.W.1 and Exs.A.1 to A.6 were marked and the wife examined
herself as D.W.1 along with D.W.2 and no exhibits were marked on the side of the
wife.
6. Ultimately, the trial Court granted divorce, whereupon the first
appellate Court confirmed the judgment and decree of divorce granted by the
trial Court. However, during the first appellate stage, the following documents
were filed:
Exhibits
Dated
Documents
Ex.R.1
05.03.2003
Certified copy of the F.I.R.
Ex.R.2
21.08.2003
Certified copy of the charge sheet against the petitioner.
Ex.R.3
…
Rough Sketch
Ex.R.4
23.02.2003
Certified of wound certificate of the respondent/wife.
Ex.R.5
…
Certified copy of the Compromise petition in C.C.No.606 of 2003.
Ex.R.6
23.02.2004
Certified copy of the order of J.M.No.2, Karur, in the compromise petition.
Ex.R.7
23.03.2004
Certified copy of the order of the J.M.No.2, Karur, in C.C.No.606 of 2003.
The first appellate Court, it appears, relied on those documents as Exhibits 1
to 7 on the side of the wife and the fact remains that no documents were marked
on the side of the wife before the trial Court and as such, the aforesaid
documents shall be taken as Exs.R.1 to R.7.
7. Being aggrieved by and dissatisfied with, the judgments and decrees of
both the Courts below, the wife preferred this Civil Miscellaneous Second Appeal
on the following main grounds among others:
Both the Courts below erred in appreciating the facts, due to their wrong
approach. The divorce application filed under Section 13(1)(ia) of Hindu
Marriage Act, on the ground of cruelty should have been dismissed. The criminal
case ended in acquittal, consequent upon the compromise arrived at between the
rival parties and not on merits. Exs.A.3 to A.5 were wrongly relied on by the
Courts below. Absolutely, there was no evidence for granting divorce on the
ground of cruelty. Accordingly, she prayed for setting aside the judgments and
decrees of both the Courts below.
8. Heard both sides.
9. At the time of admitting this second appeal, my learned Predecessor
framed the following substantial questions of law:
1. Whether the grant of divorce under ground of cruelty is right or not?
2. Whether the complaint preferred by the wife against husband is amount
to mental agony?
3. Whether the act of mental cruelty continued even after the compromise?
4. Whether the husband has discharged his burden of proof?
At the time of hearing the second appeal, the following additional substantial
questions of law are framed:
(i) Whether after compromise the act of mental cruelty will stand?
(ii) Whether the husband discharge his burden of proof?
The Points:
10. Axiomatic and obvious, the fact is that there is no proper
definition of cruelty as found set out in any statute, whereupon the Honourable
Apex Court in catena of decisions highlighted as to what would amount to mental
and physical cruelty. Before embark upon the discussion, based on factual and
legal issues involved in this case, I would like to refer to the following
decisions purposefully and fruitfully:
(i) Savitri Pandey v. Prem Chandra Pandey reported in (2002) 2 Supreme
Court Cases 73. An excerpt from it, would run thus:
“6. Treating the petitioner with cruelty is a ground for divorce under
Section 13(1)( i-a ) of the Act. Cruelty has not been defined under the Act but
in relation to matrimonial matters it is contemplated as a conduct of such type
which endangers the living of the petitioner with the respondent. Cruelty
consists of acts which are dangerous to life, limb or health. Cruelty for the
purpose of the Act means where one spouse has so treated the other and
manifested such feelings towards her or him as to have inflicted bodily injury,
or to have caused reasonable apprehension of bodily injury, suffering or to have
injured health. Cruelty may be physical or mental. Mental cruelty is the conduct
of other spouse which causes mental suffering or fear to the matrimonial life of
the other. “Cruelty”, therefore, pos tulates a treatment of the petitioner with
such cruelty as to cause a reasonable apprehension in his or her mind that it
would be harmful or injurious for the petitioner to live with the other party.
Cruelty, however, has to be distinguished from the ordinary wear and tear of
family life. It cannot be decided on the basis of the sensitivity of the
petitioner and has to be adjudged on the basis of the course of conduct which
would, in general, be dangerous for a spouse to live with the other. In the
instant case both the trial court as well as the High Court have found on facts
that the wife had failed to prove the allegations of cruelty attributed to the
respondent. Concurrent findings of fact arrived at by the courts cannot be
disturbed by this Court in exercise of powers under Article 136 of the
Constitution of India. Otherwise also the averments made in the petition and the
evidence led in support thereof clearly show that the allegations, even if held
to have been proved, would only show the sensitivity of the appellant with
respect to the conduct of the respondent which cannot be termed more than
ordinary wear and tear of the family life.”
(ii) Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate reported in
(2003) 6 Supeme Court Cases 334. An excerpt from it, would run thus:
“6. In V. Bhagat v. D. Bhagat 2 it was observed that mental cruelty in
Section 13(1)( i-a ) can broadly be defined as that conduct which inflicts upon
the other party such mental pain and suffering as would make it not possible for
that party to live with the other and the parties cannot reasonably also be
expected to live together or that the wronged party cannot reasonably be asked
to put up with such conduct and continue to live with the other party. It was
also considered to be not necessary to prove that the mental cruelty is such as
to cause injury to the health of the wronged party. That was a case wherein the
husband filed a petition against the wife for divorce on the ground of adultery.
In the written statement filed by the wife in the said proceedings, she alleged
that the husband was “suffering from mental hallucination”, that his was a
“morbid mind … for which he needs expert psychiatric treatment”, and that he
was “suffering from paranoid disorder” etc. and that during cross-examination
several questions were put to him suggesting that the petitioner and several
members of his family including his grandfather were lunatics and that the
streak of insanity was running in the entire family. It is in the said context
this Court though he ld the allegations levelled against the wife were not
proved, the counter-allegations made by the wife against the husband certainly
constituted mental cruelty of such a nature that the husband cannot reasonably
be asked to live with the wife thereafter. The husband, it was also held, would
be justified to say that it is not possible for him to live with the wife. In
rejecting the stand of the wife that she wants to live with her husband, this
Court observed that she was deliberately feigning a posture, wholly unnatural
and beyond comprehension of a reasonable person and held that in such
circumstances the obvious conclusion has to be that she has resolved to live in
agony only to make life a miserable hell for the husband, as well. …
11. … To satisfy the requirement of clause ( i-a ) of sub-section (1) of
Section 13 of the Act, it is not as though the cruel treatment for any
particular duration or period has been statutorily stipulated to be necessary.
As to what constitutes the required mental cruelty for purposes of the said
provision, in our view, will not depend upon the numerical count of such
incidents or only on the continuous course of such conduct, but really go by the
intensity, gravity and stigmatic impact of it when meted out even once and the
deleterious effect of it on the mental attitude, necessary for maintaining a
conducive matrimonial home. If the taunts, complaints and reproaches are of
ordinary nature only, the courts perhaps need consider the further question as
to whether their continuance or persistence over a period of time render, what
normally would, otherwise, not be so serious an act to be so injurious and
painful as to make the spouse charged with them genuinely and reasonably
conclude that the maintenance of matrimonial home is not possible any longer.
…”
(iii) Parveen Mehta v. Inderjit Mehta reported in (2002) 5 Supreme Court
Cases 706. An excerpt from it, would run thus:
“17. This Court, construing the question of mental cruelty under Section
13(1)( i-a ) of the Act, in the case of G.V.N. Kameswara Rao v. G. Jabilli
[(2002) 2 SCC 296] observed: (SCC pp. 303-04, para 12)
“12. The court has to come to a conclusion whether the acts committed by the
counter-petitioner amount to cruelty, and it is to be assessed having regard to
the status of the parties in social life, their customs, traditions and other
similar circumstances. Having regard to the sanctity and importance of marriages
in a community life, the court should consider whether the conduct of the
counter-petitioner is such that it has become intolerable for the petitioner to
suffer any longer and to live together is i mpossible, and then only the court
can find that there is cruelty on the part of the counter-petitioner. This is to
be judged not from a solitary incident, but on an overall consideration of all
relevant circumstances.”
21. Cruelty for the purpose of Section 13(1)( i-a ) is to be taken as a
behaviour by one spouse towards the other, which causes reasonable apprehension
in the mind of the latter that it is not safe for him or her to continue the
matrimonial relationship with the other. Mental cruelty is a state of mind and
feeling with one of the spouses due to the behaviour or behavioural pattern by
the other. Unlike the case of physical cruelty, mental cruelty is difficult to
establish by direct evidence. It is necessarily a matter of inference to be
drawn from the facts and circumstances of the case. A feeling of anguish,
disappointment and frustration in one spouse caused by the conduct of the other
can only be appreciated on assessing the attending facts and circumstances in
which the two partners of matrimonial life have been living. The inference has
to be drawn from the attending facts and circumstances taken cumulatively. In
case of mental cruelty it will not be a correct approach to take an instance of
misbehaviour in isolation and then pose the question whether such behaviour is
sufficient by itself to cause mental cruelty. The approach should be to take the
cumulative effect of the facts and circumstances emerging from the evidence on
record and then draw a fair inference whether the petitioner in the divorce
petition has been subjected to mental cruelty due to conduct of the other.”
(iv) A.Jayachandra v. Aneel Kaur reported in 2005-2-L.W.149. An excerpt
from it, would run thus:
“10. The expression “cruelty” has not been defined in the Act. Cruelty
can be physical or mental. Cruelty which is a ground for dissolution of
marriage may be defined as willful and unjustifiable conduct of such character
as to cause danger to life, limb, or health, bodily or mental, or as to given
rise to a reasonable apprehension of such a danger. The question of mental
cruelty has to be considered in the light of the norms of marital ties of the
particular society to which the parties belong, their social values, status,
environment in which they live. Cruelty, as noted above, includes mental
cruelty, which falls within the purview of a matrimonial wrong. Cruelty need
not be physical. If from the conduct of his spouse same is established and/or
an inference can be legitimately drawn that the treatment of the spouse is such
that it causes an apprehension in the mind of the other spouse, about his or her
mental welfare then this conduct amounts to cruelty. In delicate human
relationship like matrimony, one has to see the probabilities of the case. The
concept, a proof beyond the shadow of doubt, is to be applied to criminal trials
and not to civil matters and certainly not to matters of such delicate personal
relationship as those of husband and wife. Therefore, one has to see what are
the probabilities in a case and legal cruelty has to be found out, not merely as
a matter of fact, but as the effect on the mind of the complainant spouse
because of the acts or omissions of the other. Cruelty may be physical or
corporeal or may be mental. In physical cruelty, there can be tangible and
direct evidence, but in the case of mental cruelty there may not at the same
time be direct evidence. In cases where there is no direct evidence, Courts are
required to probe into the mental process and mental effect of incidents that
are brought out in evidence. It is in this view that one has to consider the
evidence in matrimonial disputes.”
11. I am of the considered opinion that the aforesaid excerpts from the
decisions of the Honourable Apex Court would be more than sufficient to have a
clear understanding as to what type of conduct of a spouse would constitute
cruelty as against the other spouse.
12. As such, the perusal of the aforesaid decisions would clearly indicate
that mere wear and tear in the marital life, should not be taken as sufficient
ground constituting cruelty for granting divorce.
13. It is therefore clear that in the wake of the dicta of the Honourable
Apex Court, it has to be analysed as to whether both the Courts below approached
the problem in proper perspective. A mere perusal of findings of both the
Courts below, to say the least, would speak volumes that they never considered
those decisions in proper perspective.
14. The perusal of the petition in H.M.O.P.No.50 of 2004 filed by the
husband under Section 13(1)(ia) of the Act, would demonstrate that the husband
made some bald allegations that the wife insulted him; made publications as
against him; lodged false complaint with the police and that thereby caused
physical and mental cruelty to him.
15. It is therefore just and necessary to analyse in seriatim the various
points raised by the parties concerned.
16. The contention of the husband that she gave false complaint with the
police and it ended in acquittal as though it was an acquittal on real merits of
the case, turned out to be false. During trial, the true picture was brought to
limelight as under what circumstances, the criminal case ended in acquittal.
17. As many as six documents were marked during trial, still the judgment
of the criminal Court was not marked in view of the obvious reason that had it
been marked, it would have exposed the unsatisfactory plea of the husband.
18. During the appellate stage, the certified copy of the judgment of the
criminal Court, was marked. The perusal of it, would clearly highlight that
the case ended in acquittal, because the wife herself resiled from her
complaint.
19. During the second appellate stage, both sides filed M.P.Nos.3,4 and 5
of 2007 respectively and heard both sides thereon. I am of the considered
opinion that this being a matrimonial matter, for the purpose of comprehensively
deciding the dispute, it is just and necessary to permit all of them to file
additional documents on their sides, Moreover, these additional documents are
not cooked up ones or brought about artificially for the purpose of this case.
Accordingly, M.P.No.5 of 2007 is allowed and the following documents are marked
on the husband’s side as under:
(i)Ex.P.7 – The Certified copy of the order passed by the Sessions Judge,
Karur in Cr.R.P.No.21 of 2006 dated 29.06.2007.
(ii)Ex.P.8 – Notice from the Commissioner, Karur Municipality, dated
26.05.2003.
On the side of the wife, M.P.No.4 of 2007 is allowed and the following documents
are marked on the wife’s side:
(i)Ex.R.8 – Certified copy of the order dated 21.03.2003 passed in
Crl.O.P.No.7324 of 2003.
(ii)Ex.R.9 – Certified copy of the order dated 13.05.2003 passed in
Crl.O.P.No.13840 of 2003.
20. During the appellate stage, the order of the Magistrate was filed and
relied on as evidence. The typed set of papers filed before this Court would
evidence that before the Criminal Court, a compromise petition was filed,
setting out the fact that before the Panchayat, the husband and wife got the
matter settled and that they intended to resume cohabitation. Accordingly, they
wanted the criminal case to be dropped. However, the learned Magistrate by
virtue of his order dated 23.02.2004, dismissed the said petition on the ground
that the offences under Section 498(A) and 506(ii) I.P.C were non-compoundable
ones.
21. In view of the clinching admitted facts, the matter is clear that even
before the disposal of the Criminal case, the compromise was arrived at between
the husband and the wife to the effect that the criminal case should be
withdrawn and they should resume cohabitation. Since the offences are non-
compoundable, the wife was constrained to depose quite contrary to her complaint
which resulted in acquittal of the husband and his parents in the criminal case.
In this proved background, if the averments in the petition are considered, it
is at once clear that the husband was guilty of suppression of material facts.
22. It is not as though the criminal Court gave a finding that the husband
was innocent on real merits of the case. But, in view of the compromise alone,
the said acquittal resulted.
23. Quite contrary to the undertaking given before the Criminal Court as
found set out supra, the husband resiled and backed out from his stand relating
to resumption of cohabitation within a period of one month from the date of such
acquittal and he had chosen to issue divorce notice to his wife.
24. At this juncture, the pertinent question arises as to how such a
course was open for the husband. The learned Counsel for the wife would
correctly argue that for the purpose of getting acquittal, the husband
hoodwinked the wife to enter into such a compromise with him and consequently,
made her to depose as though there was no harassment meted out to her by the
husband and his parents. The very fact that he agreed to resume cohabitation
with his wife and thereafter got the criminal case ended in acquittal in his
favour, would clearly demonstrate that the husband is not entitled to press into
service the alleged facts of cruelty purportedly perpetrated by the wife as
against the husband.
25. After such compromise and the consequent acquittal recorded in the
criminal case, there was no more act of cruelty allegedly perpetrated by the
wife as against the husband. Hence, in such a case, the theory of cruelty as
put forth by the husband should have been rejected by both the Courts below.
26. Ex.A.4 is dated 27.04.2004, the certified copy of the husband’s
divorce notice issued to the wife, whereas the acquittal judgment of the
criminal Court is dated 23.03.2004. Ex facie and prima facie, it is crystal
clear that the husband exploited the situation and got acquittal from the
Criminal Court. However, after getting the benefit of acquittal, he turned
turtle and had a volte face which resulted in issuing divorce notice by him to
his wife quite antithetical to his previous stand of compromise.
27. At this juncture, the learned Counsel for the husband drew the
attention of this Court to the additional substantial questions of law to be
framed in this appeal and accordingly, both sides submitted their arguments.
28. The learned Counsel for the husband would contend that a sum of Rs.2
lakhs was paid by the husband to the wife before the criminal case ended in
acquittal, by way of showing his concern towards her.
29. The learned Counsel for the wife would contend that absolutely no such
amount was paid to her and the evidence in that regard is not clear. Whatever
might be the circumstances, the husband having agreed to resume cohabitation
with the wife prior to the acquittal recorded by the criminal Court, was not
justified in veering round and taking an antithetical plea seeking divorce by
issuing Ex.A.1, the divorce notice, almost a month after the criminal case ended
in acquittal. In fact, the wife is the sufferer as she sustained injury
inflicted by the husband and her in-laws and it is clear from the records placed
before the Court.
30. The F.I.R itself which was lodged by her with the police on 05.03.203,
would contain the details of the injuries sustained by her, as the husband and
others attacked her and thereupon only, the police registered the case in
Cr.No.1 of 2003. As such, the husband having perpetrated cruelty as against the
wife, cannot try to turn the table as against her and that too, when the
criminal case ended in acquittal on the assurance of the husband that there
would be resumption of cohabitation between the husband and the wife.
Ultimately, the husband after reaping the fruit of the wife’s concession and
kindness towards him, by securing acquittal in his favour, cannot be heard to
contend that the wife was harsh towards him earlier to such acquittal nor can he
be given the facility of obtaining divorce on the ground of alleged false
complaint lodged by her with the police.
31. To the risk of repetition, it could be highlighted that after such
acquittal, there is no evidence to show that the wife behaved cruelly and in
fact, even before that there is nothing to show that she behaved cruelly towards
the husband.
32. The complaint given by her as against her husband to the Commissioner
of Karur Municipality, the employer of the husband, was anterior to such
compromise. The additional documents filed before this Court dated 26.05.2003
the communication issued by the Commissioner would demonstrate that the said
complaint was given by her on 23.05.2004 long prior to the said compromise. Her
complaint to Human Rights Commission was referred as “sub-judice” before such
compromise. As such, the conduct of the husband clearly exposes his unwarranted
attitude towards his wife.
33. Admittedly, the wife happened to be the husband’s father’s sister’s
grand daugther and even before marriage, she was a lame. Admittedly and
unambiguously, it was a love marriage between them. After giving birth to two
children, the wife being lame, could have had no rhyme or reason to pick up
unnecessary quarrels with the husband or to torture him or to indulge in
pinpricks as against him. Whereas considering the preponderance of
probabilities and the averments in the petition coupled with the oral evidence
on both sides, it is clear that this is not a fit case for divorce.
34. The husband cannot try to capitalize his own misconducts and
unwarranted attitude towards his wife. If at all, there is any evidence to prove
that the wife gave any false complaint either to the police or to the higher
officials of the husband, the question of taking them into consideration would
arise. In this case, the husband at the first instance, could not get
anticipatory bail as evidenced by the additional document, but others could get
anticipatory bail as per the order dated 21.03.2003 in Crl.O.P.No.7324 of 2003.
However, subsequently, by virtue of order dated 13.05.2003, in Crl.O.P.No.13840
of 2003, the husband got anticipatory bail, but the wife did not oppose it by
figuring herself as an intervener. Simply because, the wife approached the
police for help and that too after sustaining injuries, there is no presumption
that the wife had intended to treat the husband cruelly. But, on the other
hand, if the complaint lodged with the police is turned out to be one actuated
by malice or if there are successive frivolous complaints by the wife, then such
facts would enure to the benefit of the husband in seeking divorce. Here, it is
not so for the reasons already adverted to supra. She has not given any
frivolous complaint with the employer of the husband also.
35. In the petition itself, absolutely there is no plausible reason set
out as to what made such lame wife to create trouble when the husband was
allegedly so kind and considerate towards her. As such, the case of the husband
is an untenable one and unbelievable one.
36. The learned Counsel for the husband cited the following decisions:
(i) Dastane v. Dastane reported in AIR 1975 SUPREME COURT 1534.
(ii) Chetan Dass v. Kamla Devi reported in (2001) 4 Supreme Court Cases
250.
37. The learned Counsel for the wife relied on the following dicta:
(i) Rajinder Bhardwaj v. Anita Sharma reported in AIR 1993 DELHI 135.
(ii) A.Jayachandra v. Aneel Kaur reported in 2005-2-L.W.149.
(iii) Gajalakshmi v. R.Saravanan reported in 2004(1) TLNJ 329.
38. In fact, the wife was driven to the extent of filing an application
under Section 125 C.P.C for maintenance and except to the wife, the maintenance
was ordered to the minor children on the ground that she was employed. The
trial Court as well as the appellate Court simply misunderstood the judgment of
the criminal court and the complaint given to the employer by the wife and
consequently misapplied the decision of the Honourable Apex Court in
A.Jayachandra v. Aneel Kaur reported in 2005-2-L.W.149.
39. The findings of both the Courts below are far from satisfactory as
they should not have been carried away by the acquittal of the criminal case as
well as the complaint given by the wife to the employer of the husband in
granting divorce.
40. Hence, a deep scrutiny clearly highlights that the husband was at
fault in causing the matrimonial rift in the relationship between them and that
alone, paved the way for the dispute. Accordingly, the points are answered.
41. In the result, this second appeal is allowed, setting aside the
judgments and decrees of both the Courts below and ultimately, the H.M.O.P.No.50
of 2004 on the file of the Subordinate Judge, Karur, is dismissed.
42. I am of the firm opinion that this is a fit case for the husband to
bury the hatchet and think of reunion. Both parties should forget about the
past and the unsavory events which took place in their life and resume
cohabitation at the earliest point of time in the best interest of their two
female children whose future is of paramount importance. Consequently,
M.P.Nos.1 and 2 of 2007 are closed. No costs.
rsb
To
1.The Principal District Judge, Karur.
2. The Subordinate Judge, Karur.