Madras High Court
V.Ramasamy vs L.Priya @ Priya Bhuvaneswari on 26 April, 2021
C.M.S.A.Nos.8 & 10 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 17.12.2020
DATE OF DECISION : 26.04.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
C.M.S.A.Nos.8 & 10 of 2013
V.Ramasamy .. Appellant in both the C.M.S.A's
-vs-
L.Priya @ Priya Bhuvaneswari .. Respondent in both the C.M.S.A's
Memorandum of Grounds of Civil Miscellaneous Second Appeals filed under
Section 28 of the Hindu Marriage Act, 1955 read with Section 100 of the Code of Civil
Procedure, against the common judgment and decree dated 08.11.2012 passed in
H.M.C.M.A.Nos.5 & 6 of 2006 on the file of the learned Principal District Judge,
Vellore District, confirming the common judgment and decree dated 12.04.2006 passed
in M.O.P.Nos.90 & 91 of 2003 on the file of the learned Additional Subordinate Judge,
Vellore.
For Appellant :: Mrs.K.Sumathi
For Respondent :: Mr.E.Raj Thilak
JUDGMENT
Heard learned counsel for the parties through video conferencing due to the
Covid-19 pandemic.
2. These two civil miscellaneous second appeals are directed against the
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concurrent findings of facts reached by both the trial Court and the lower appellate
Court repeatedly refusing to grant divorce in favour of the appellant/husband and
granting restitution of conjugal rights in favour of the respondent/wife.
3. The facts in brief leading to the filing of the appeals are stated as follows:-
The appellant is a retired Bank Officer. He married the respondent on 10.2.89 at
Sholinghur, Vellore District as per the Hindu rites and customs. Out of the wedlock, a
male child was born on 26.11.89. During the pregnancy, it was alleged that in spite of
the doctor's advice as well as the advise of the appellant, the respondent/wife had not
taken proper care. Although the respondent had undergone the scan procedure, the
result thereof with regard to the health of the child was concealed, ultimately the
respondent delivered a handicapped male child. It was further alleged that the
respondent/wife was behaving in an adamant manner and she is a severe sugar and
blood pressure patient and the same were purposefully suppressed by her and her family
members with an ulterior motive. It was also further alleged that from the date of
marriage, the respondent was adamantly raising disputes and quarrels even for
cohabitation, as a result, the appellant underwent mental agony, that cannot be
expressed in words, hence, the appellant, who is of soft nature, was not able to lead a
happy matrimonial life with the respondent. On the contrary, the respondent was in the
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habit of threatening the appellant in a cruel manner causing not only stress, strain and
mental agony, but also lot of worries and unpleasantness to the appellant. Many times
the respondent used to raise quarrels and would throw vessels and articles on the
appellant's face and this behaviour of the respondent became a routine affair from the
beginning of the marriage. Although the appellant tolerated all the unlawful activities of
the respondent on the belief that she would change her attitude in due course, no
improvement thereon had occurred. In the meanwhile, subsequent to the delivery of the
male boy, the appellant was transferred to Coimbatore. It was also pleaded that the
appellant had given good treatment to his son in various hospitals at Coimbatore
including one of the famous hospitals, namely, Telungupalayam Hospital. But there was
no improvement in his son's health. This apart, on many occasions, the respondent had
gone to the extent of having kerosene etc., with her and by way of closing the door of the
room, she used to give threats of suicide. Although the appellant was transferred to
Coonoor, he used to visit the house in alternate days for providing treatment to his son,
but the respondent continued her unlawful activities and never cooperated with the
appellant. At one point of time, the mental agony, stress, strain caused by the
respondent's behaviour went out of control, but considering the health condition of his
son, he tolerated her insults. However, the respondent, taking advantage of the ill-health
of her mother, left the matrimonial home on 5.4.95 to her parental home informing the
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appellant that she would come back after a month. Thereafter, the appellant visited her
parents house more than 50 times and in addition, the appellant's parents also visited the
respondent's house and requested her to come back to the matrimonial home. But the
respondent, purposefully and intentionally with an ulterior motive, never turned back to
the appellant's house. Therefore, the appellant sent several letters requesting the
respondent to come back to the matrimonial home to lead the matrimonial life. When
there was no response from the respondent for seven long years and thereby deserted the
appellant, he filed the petition in H.M.O.P.No.471 of 2001 before the Family Court,
Coimbatore seeking divorce, on the ground of cruelty and desertion, under Section
13(1)(i-a) & (i-b) of the Hindu Marriage Act, to dissolve the marriage solemnized on
10.2.89 between the appellant and the respondent. Thereafter, within three months, the
respondent filed H.M.O.P.No.629 of 2001 before the Family Court, Coimbatore seeking
restitution of conjugal rights under Section 9 of the Hindu Marriage Act, on 22.11.2001.
The said petitions were transferred to the jurisdictional Court at Vellore pursuant to the
order passed by this Court in Tr.C.M.P.Nos.5474 & 5475 of 2003 dated 10.7.2003 and
re-numbered as M.O.P.Nos.90 & 91 of 2003 respectively on the file of the Additional
Subordinate Judge, Vellore.
3.2. The trial Court took up both the petitions for joint trial. While considering the
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allegation of cruelty caused to the appellant/husband, with reference to the alleged letters
said to have been written by the respondent/wife giving threats of suicide, the trial Court,
finding that no letters as alleged by the appellant were produced before the Court and
that the allegation of murder of the appellant's parents not being substantiated, for the
simple reason that the parents of the appellant were not even examined before the Court
to prove that allegation, came to the conclusion that no cruelty as alleged by the
appellant/husband was made out. The trial Court also perused the Exhibits A2 & A3
letters, which do not indicate the intention of the respondent to put an end to the
matrimonial tie. On the other hand, the trial Court has come to the conclusion that a
perusal of the letters would go to show that the respondent is interested in her son's life
and requested for sufficient money from the appellant to maintain herself and the son. At
one point of time, the respondent/wife having taken care of the son for 15 long years,
filed a memo on 22.8.2002 requesting her husband to keep his son for sometime, citing
a reason that he was longing for the love and affection of the father, for which the
appellant has filed a counter statement opposing the said request stating that it would be
difficult to maintain him. Therefore, the trial Court has come to the conclusion that the
appellant/husband, to get rid of the special child and also the mother, who cannot be
faulted for delivering the special child, as the appellant has invented the grounds for
divorce, rejected the petition for divorce and allowed the petition for restitution of
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conjugal rights, giving a finding that there was no cruelty caused by the respondent/wife
and that there was no desertion, for the simple reason that only the appellant has taken
both the respondent with the son by car to her parental house and left them there with
the promise that he would come and take them back. But he did not turn up to take them
back to the matrimonial home. Therefore, the trial Court held that the ground of
desertion also was not made out.
3.3. Aggrieved thereby, H.M.C.M.A.Nos.5 & 6 of 2006 were preferred by the
appellant before the learned Principal District Judge, Vellore. The lower appellate Court,
finding that the foundation of marriage is tolerance, adjustment and respect towards
each other and that there is no iota of evidence to show that the appellant was put into
mental agony by means of cruelty and that the respondent/wife has proved the case by
way of adducing oral evidence for confirming the order granting restitution of conjugal
rights, also gave a finding that the appellant was not subjected to cruelty at the hands of
the respondent as alleged therein. When the lower appellate Court also has come to the
conclusion that no case of cruelty or desertion was made out, aggrieved thereby, the
present civil miscellaneous second appeals have been filed by the appellant raising the
following substantial questions of law:-
“(i) Whether the appellant/husband is entitled for divorce on
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the ground of cruelty and desertion and whether the
respondent/wife is entitled for the relief of restitution of
conjugal rights?
(ii) Whether the Courts below have properly applied the law of
evidence as the question of proof of cruelty and desertion can
always be decided only on oath?
(iii) Whether the finding of the lower appellate Court in putting
the blame on the appellant in not taking care of the spastic
child is not contrary to the evidence available on record?”
4. Mrs.K.Sumathi, learned counsel appearing for the appellant/husband, narrating
the facts that there was a marriage solemnized between the appellant and the respondent
on 10.2.89 and out of the said wedlock, a male child was born on 26.11.89, drawing the
Court's notice to paragraph-6 of the divorce petition, stated that when a specific
averment about the respondent's adamant attitude, behaviour and quarrelling nature was
made, there was no specific denial by the respondent in the counter affidavit. Moreover,
when it was pleaded by the appellant/husband that the respondent by taking kerosene
with her and by way of closing the door of the room in which she was staying, gave a
threat of suicide attempts and thereby caused mental agony, there was no specific denial,
except a formal denial in paragraph-7 of her counter affidavit. When the Courts below
have wrongly proceeded that there was no sufficient evidence produced to substantiate
the allegation of cruelty said to have been caused to the appellant, the concurrent
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findings of both the Courts below are liable to be interfered with, she pleaded. In
support of her submissions, placing reliance on the judgment of the Apex Court in
Pankaj Mahajan v. Dimple, (2011) 12 SCC 1, Mrs.Sumathi argued that the Apex Court
in the said judgment has held that giving repeated threats to commit suicide would
amount to cruelty. Even in the case of Narendra v. Meena, 2016 (6) CTC 440, the
Apex Court has clearly observed that the threats or acts of committing suicide would
constitute cruelty. Moreover, when the respondent has not even denied the averments of
the appellant with regard to the cruelty said to have been caused by the respondent by
making threats of suicide and once the respondent failed to deny the said averment, the
same should be taken as proved, as per the ratio laid down by the Apex Court in
Laxman v. Annapurani, 2018 (6) MLJ 289. Since the evidence on record and the ratio
laid down by the Apex Court on the issue of cruelty were ignored repeatedly, the said
concurrent errors of the Courts below shall be liable to be interfered with by this Court.
5. Adding further, Mrs.Sumathi argued that as the parties are living separately
from 5.4.95, the date on which the respondent deserted the appellant, they cannot come
back to the matrimonial home. Therefore, on the ground of long separation of 25 long
years, the appellant's prayer for divorce can be considered, because a quarter century of
the matrimonial life had been wasted by both parties. When many efforts were taken
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before the Mediation Centre, during the pendency of the matters before this Court and
also before the Family Court, no more further deliberations could be initiated to patch up
the huge gap that has occurred in the matrimonial life. Therefore, it is a case where,
considering the long separation of a quarter century, the marriage solemnized on 10.2.89
is liable to be dissolved. Continuing her arguments, learned counsel appearing for the
appellant submitted that when the Civil Procedure Code is made applicable in
matrimonial dispute, this matrimonial dispute was tried by the Courts below. When the
appellant has specifically pleaded the threats of suicide made by the respondent for
causing cruelty, the respondent in her counter has not made a specific denial. In view of
the legal position that the respondent has not legally established her case, the Courts
below ought to have rejected her case as unsustainable in law and granted divorce
holding that the appellant has established the ground of cruelty and desertion. Since the
appellant, who is now aged 62 years, is not able to handle the physique of his son, who
is aged 32 years, he has engaged a helper and also paying him from his pension, apart
from paying Rs.10,000/- as monthly maintenance to his wife, the respondent herein
without any default. Although the appellant has been taking care of his son for the past
13 years, admittedly during this long period, the respondent has not shown any iota of
love and affection towards the son and also to the appellant/husband. That clearly shows
that they are inimically opposed to each other, therefore, any proposal for re-union
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would put the son also in a hostile atmosphere. Hence the re-union will not be in the
interest of any one, especially the ailing son. This aspect has been completely
overlooked by the Courts below. Therefore, considering the fact that they are living
separately for the past 25 long years, visualizing that the preservation of such a marriage
is totally unworkable which has ceased to be effective and allowing the same deadlock to
continue would be a greater source of misery to the parties, she prayed for granting
divorce by dissolving the marriage.
6. Learned counsel appearing for the respondent, opposing the above prayer,
argued that after the marriage was solemnized on 10.2.89, the respondent underwent a
medical check up including scan procedure. When it was found out that the child was
not growing normally, after deliberations, the appellant advised the respondent to abort
the child. This was not liked by the respondent/wife. Therefore, alleging that the
respondent was showing adamant attitude and quarreling with the appellant for not
aborting the child, has wrongly added yet another unfounded allegation that she used to
make threats of committing suicide, thereby causing mental agony and mental cruelty to
him. This aspect has been examined by the trial Court. When no letters as alleged by
the appellant were produced by him before the trial Court and this apart, the allegation
of murder of his parents also was not substantiated, inasmuch as the parents of the
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appellant were not even examined before the trial Court to prove the above allegation.
Above all, the trial Court, going into the evidence, came to the conclusion that the
conduct of the appellant in writing letters in cordial terms in the years 1998 and 2000
under Ex.B3 and Ex.B4 would clearly militate the allegation of the appellant that the
respondent used to make suicide attempts during her stay at the matrimonial home etc.
On this score, the trial Court came to the conclusion that the allegation levelled by the
appellant against his wife are unbelievable.
7. Coming to the allegation of desertion, it was pleaded that it is the own admitted
case of the appellant that after the birth of the child, he was transferred to Coimbatore in
the year 1991. During that time the respondent has joined the company of the appellant.
Therefore, when the respondent had gone to her parental home in the month of March
1989 for delivery, she also returned to the matrimonial home after the birth of the child
only in the year 1991. Secondly, as the child was afflicted with cerebral palsy, it is
always difficult to maintain the child, because there is no proper treatment for cerebral
palsy. Even the persons who are suffering from cerebral palsy cannot maintain
independently. Knowing this, the appellant had developed hatred and disliking towards
the spastic child from the very beginning. This could be evidently seen from the memo
filed by the respondent before the trial Court on 22.8.2002 requesting the appellant to
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keep his son in custody for sometime, as he was longing for the affection of the father.
For this memo, the appellant father has filed a counter affidavit opposing the said prayer
stating that it was difficult to maintain him. The counter affidavit filed by the father not
to take his son would clearly show that the appellant was not interested in maintaining
him. In view thereof, the trial Court has come to the conclusion that mere sending of
monthly maintenance alone would not prove the good conduct of the appellant and the
facts of the matter would show that the allegation of cruelty has been pressed into
service by the appellant only in order to get rid of the respondent and his son. Moreover,
the appellant alone brought the respondent and his son in a car to her parental house
and left them. Thereafter abruptly, he filed the case for divorce. As the respondent was
living with her parents, she has been giving treatment to the child from the date of his
birth till 2003 at C.M.C.Hospital, Vellore and the Exhibits B7, B8, B9, B10, B23 and
B31 would clearly suggest the fact that the child was treated only at the C.M.C.Hospital,
Vellore. The continuous treatment record of the hospital would clearly suggest the fact
that the respondent was taking care of the child from the very beginning and only for
treating the child, she was staying with her parents. Therefore, the allegation of
desertion also should not be accepted for the findings given by both the Courts below.
Hence such findings on record supported by evidence cannot be interfered with by this
Court, he pleaded.
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8. Heard both sides.
9. Admittedly, after the marriage was solemnized on 10.2.89 between the parties,
the respondent became pregnant. When she went for medical check up, it was found
that the child was not growing as a normal child, therefore, on the advice given by the
doctors, both the appellant and the respondent had detailed discussions whether to go
for delivery of the child or to abort the child. It appears that the respondent/wife
declined to accept the advise of the husband to abort the child. Finally, when the child
was born, it was a spastic child. Naturally when the child became spastic, the husband's
advise to the respondent to abort the child became the cause of frustration, as a result,
the frequent quarrels and differences between the couple got aggravated. Even from the
date of birth of the child, the respondent has been giving treatment in the
C.M.C.Hospital, Vellore. Therefore, the Courts below have found that the allegation of
cruelty should be more serious than ordinary wear and tear of marital life. Even the
insignificant and trivial wear and tear cannot be taken as a ground for divorce, for the
simple reason that the foundation of marriage is tolerance, adjustment and respect
towards each other. In this context, the Courts below have come to the conclusion that
there was no iota of evidence to show that the appellant had been put into mental agony
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by means of cruelty. The attitude of the appellant by filing counter affidavit to a memo
filed by the respondent on 22.8.2002 requesting the appellant to keep his son in custody
for sometime, as he was longing for the affection of the father, would show that the
appellant was not interested to maintain him. In this regard, the Courts below have
given a finding that only to get rid of the custody, the appellant has invented frivolous
allegations of cruelty.
10. Coming to the allegation of desertion, the respondent deposed before the
Courts below that she came to the parental house along with her father in law with the
hope that her husband would come and take them back to the matrimonial home. But it
was only the appellant who had delayed their return on the pretext of auspicious day and
astrologer's opinion etc. When she visited the matrimonial home, thereafter, again the
appellant brought her and the minor by car to her parental house and left them abruptly
and subsequently filed the case for divorce. That also shows that the appellant was not
interested to keep both the respondent and his son. Although the finding of facts by both
the Courts below on the allegation of cruelty and desertion were found against the
appellant, in the light of the memo filed before the Court on 22.8.2002 by the
respondent/wife requesting the appellant to keep his son in custody for sometime, as he
was longing for the affection of his father, the reply of the appellant through his counter
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that it was difficult to maintain his son, clearly shows that the appellant was not willing
to see his wife and son. However, the written arguments filed by the appellant before
this Court would show that the appellant, who is aged about 62 years, has taken back
his son, aged 32 years, and maintaining him with the assistance of a helper by paying
from his pension, besides paying Rs.10,000/- to the respondent as maintenance.
Although the allegation of cruelty and desertion has been found against the appellant,
yet another important factor that they are living separately for the past 25 long years, a
quarter century, would compel this Court to grant the decree of divorce, in the light of
the various pronouncements of the Apex Court.
11. In this context, it is pertinent to extract the ratio laid down by the Hon'ble
Apex Court in the case of Naveen Kohli v. Neelu Kohli, 2006 (2) CTC 510, as follows:-
“79. Undoubtedly, it is the obligation of the Court and all
concerned that the marriage status should, as far as possible,
as long as possible and whenever possible, be maintained, but
when the marriage is totally dead, in that event, nothing is
gained by trying to keep the parties tied forever to a marriage
which in fact has ceased to exist.....
81. The High Court ought to have visualized that preservation
of such a marriage is totally unworkable which has ceased to
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be effective and would be greater source of misery for the
parties.
82. The High Court ought to have considered that a human
problem can be properly resolved by adopting a human
approach. In the instant case, not to grant a decree of divorce
would be disastrous for the parties. Otherwise, there may be a
ray of hope for the parties that after a passage of time (after
obtaining a decree of divorce) the parties may psychologically
and emotionally settle down and start a new chapter in life.
83. In our considered view, looking to the peculiar facts of
the case, the High Court was not justified in setting aside the
order of the trial court. In our opinion, wisdom lies in
accepting the pragmatic reality of life and take a decision
which would ultimately be conducive in the interest of both the
parties.”
12. A perusal of the above ratio would show that a human problem can be
properly resolved by adopting a human approach and applying the same ratio in the
cases on hand, when the parties are living separately for 25 long years, not to grant a
decree of divorce would be disastrous for the parties. The reason being that preservation
of a ruined marriage is totally unworkable, as this would be a source of misery for the
parties. Yet another reason being that when mediation efforts were taken during the
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pendency of the matters, the parties declined to accept the proposal for re-union.
Therefore, when the parties are living separately for 25 long years and the mediation
efforts undertaken also proved to be of no avail, this Court, following the ratio laid down
by the Apex Court in Naveen Kohli's case cited supra, is inclined to dissolve the
marriage solemnized between the parties.
13. Equally this Court is conscious of the fact that the interest of the respondent
also has to be safeguarded. Section 25 of the Hindu Marriage Act says that at the time of
passing any decree or at any time subsequent thereto, on an application made to it, may
order one party to pay such monthly sum as maintenance to the other party. But the
Division Bench of this Court in Chandrika v. M.Vijayakumar, 1996-1 117
Mad.L.W.695 has held that the Court may grant permanent maintenance to a party while
disposing of the main petition even if no proper application has been moved. Following
the said ratio, in the cases on hand, since it is represented that the appellant has been
paying a sum of Rs.10,000/- per month to the respondent/wife as maintenance without
any default and also taking care of his son with the assistance of a helper by paying
from his pension, bearing in mind that the appellant is a retired Bank Officer, this Court
directs the appellant to continue to pay the said sum of Rs.10,000/- per month as
maintenance to the respondent without fail.
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14. For all the aforementioned reasons, considering the long separation of the
parties for almost a quarter century, the impugned judgments and decrees passed by the
Courts below are set aside and the civil miscellaneous second appeals stand allowed,
answering the substantial questions of law in favour of the appellant, granting the decree
of divorce by dissolving the marriage solemnized on 10.2.89 between the parties, subject
to the payment of the maintenance amount as quantified above, and rejecting the prayer
of the respondent for restitution of conjugal rights. Consequently, M.P.No.1 of 2013 is
closed. No costs.
Speaking order 26.04.2021
Index : yes
ss
To
1. The Principal District Judge
Vellore District
2. The Additional Subordinate Judge
Vellore
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C.M.S.A.Nos.8 & 10 of 2013
T.RAJA, J.
ss
Judgment in
C.M.S.A.Nos.8 & 10 of 2013
26.04.2021
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C.M.S.A.Nos.8 & 10 of 2013
C.M.S.A.Nos.8 & 10 of 2013
T.RAJA, J.
After the pronouncement of the judgment, learned counsel appearing for the
respondent requested this Court to make it clear that the respondent/mother is also
entitled to have the visitation rights to see her son.
2. Although this request was objected to by Mrs.K.Sumathi, learned counsel
appearing for the appellant stating that in view of the long gap created by the respondent
in not visiting her son for a long time, her son may become volatile or tense at any
moment.
3. However, this Court, for the reason that the son was with the respondent for
long time till he was taken care of by the appellant, overruling the objection, hereby
grants the visitation right and permits the respondent/mother to visit her son once in a
month and be with him for half a day, either in the morning from 8.00 A.M. to 2.00
P.M., or in the evening from 1.00 P.M. to 7.00 P.M., as the case may be.
Speaking order 26.04.2021
Index : yes
ss
To
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C.M.S.A.Nos.8 & 10 of 2013
1. The Principal District Judge
Vellore District
2. The Additional Subordinate Judge
Vellore
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C.M.S.A.Nos.8 & 10 of 2013
T.RAJA, J.
ss
Judgment in
C.M.S.A.Nos.8 & 10 of 2013
26.04.2021
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