Madras High Court
Jesu Antony Ezhil Arasu vs S.Babitha Salma on 1 December, 2021
CMA(MD)No.559 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.12.2021
(Reserved on 25.03.2021)
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CMA(MD)No.559 of 2019
and
CMP(MD)No.6813 of 2019
Jesu Antony Ezhil Arasu ... Appellant
vs.
S.Babitha Salma ... Respondent
Prayer : Civil Miscellaneous Appeal filed under Section 55 of the Indian
Divorce Act, against the fair and decreetal order dated 12.06.2019 passed
in IDOP.No.124 of 2018 by the learned Additional District & Sessions
Judge (Fast Track Court), Kanniyakumari District at Nagercoil.
For appellant : Mrs.K.R.Shivashankari
For respondent : Mr.S.C.Herold Singh
JUDGMENT
This Civil Miscellaneous Appeal has been filed against the order
dated 12.06.2019 passed in IDOP.No.124 of 2018 by the learned
Additional District & Sessions Judge (Fast Track Court), Kaniyakumari
District, at Nagercoil.
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CMA(MD)No.559 of 2019
The crux of the case is as follows:
2.The respondent herein is the wife of the appellant filed IDOP No.
124 of 2018 for divorce stating that their marriage was solemnized on
14.07.2004 as per their Christian rites and customs and according to her,
her parents gave 20 sovereign of gold jewels to the appellant and 80
sovereign of gold jewels to herself along with cash of Rs.6 lakhs and one
Maruthi Car and household articles worth of Rs.50,000/- were given as
dowry to the appellant. According to her, after the marriage, they were
living together in the matrimonial home at Azhagappapuram and
thereafter they shifted to Ambattur, Chennai. According to the
respondent/wife, the appellant being not satisfied with the dowry given
by the respondent parents at the time of the marriage, the appellant and
his family members further demanded dowry for the purpose of purchase
a house and to start a clinic. The respondent/wife was harassed by the
appellant continuously and she was stopped from meeting her family
members. The appellant came to the house with intoxication mode and
assaulted the respondent in a brutal manner. The respondent became
pregnant and the appellant and his family members insisted the
respondent to abort the child. According to the respondent, the appellant
who was working as a Railway Medical Officer used to humiliate her in
filthy language in front of the staff and patients. According to her, since
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CMA(MD)No.559 of 2019
the appellant misbehaved with a lady staff from Collectorate who came
to inspect the hospital she filed a police complaint in Crime No.407 of
2016 against the appellant under the Women Harassment Act. The
respondent narrated many other incidents as she also stated on
05.10.2017, the appellant attempted to kill her by attacking brutally but
she was rescued by the housemaid and thereafter, the respondent was
admitted in Sundaram hospital at Puthoor and she lodged a complaint
against the appellant before Thiruvarambu Police Station as she was
facing cruelty and life threat at the hands of the appellant. Thereafter,
she filed IDOP No.124 of 2018 before the learned Additional District and
Sessions Judge, Kanniyakumar at Nagercoil for divorce.
3.The appellant herein has filed a counter in the above IDOP
denying the allegation of dowry before the Court below. According to
appellant, the respondent wanted to settle down in her parents house right
from the marriage and he denied the allegations by the respondent herein.
He also stated that the respondent/wife is a hysteria patient and she used
to shout frequently without any reason. However, the appellant is willing
to join with the respondent.
4.Before the Court below, the respondent/wife herself was
examined as PW1 and Exs.P1 to P8 were marked on the side of the
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CMA(MD)No.559 of 2019
appellant/husband, the appellant himself and two others were examined
as RW1 to RW3 and Exs.R1 to R13 were marked.
5.It appears that the appellant did not come forward to argue the
matter even after several opportunities were given to him and thereafter
considering the available materials and relied upon the judgment of the
Hon'ble Supreme Court in the case of Samar Ghosh vs. Jaya Ghosh
reported in 2007 (4) SCC 511 held that the respondent has proved the
factum of cruelty and on that ground, the learned Judge has granted the
decree of divorce.
6.According to the appellant, the above CMA has been filed by the
appellant stating that the Court below has not at all discussed about the
allegations and proof of physical and mental cruelty from the materials
available on record. Aggrieved by the said order, the appellant who is the
husband filed an appeal. He would further state that the Court below has
failed to note that on the basis of the pleadings and oral and documentary
evidences, the ground of mental cruelty is not made out and therefore,
IDOP is liable to be dismissed. He would also state that the Court below
ought not to have come to the conclusion based on the FIR lodged by the
respondent. It is further stated that the Court below has not at all taken
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CMA(MD)No.559 of 2019
note of the willingness of the appellant to join with his wife/respondent.
Only on assumption, the Court below has held that cruelty is made out.
Thus, he prayed for setting aside the impugned order.
7.The learned counsel for the respondent/ wife would state that the
Court below after giving opportunity to the appellant many times and as
the appellant did not appear before the Court. Considering the entire
evidence and considering per Clause (vi) of the Judgment of the Hon'ble
Apex Court in the case of Samar Ghosh vs. Jaya Ghosh reported in
2007 (4) SCC 511, held that the factum of cruelty is proved and
therefore, granted decree of divorce which does not require interference
of this Court.
8.Heard the learned counsel for the appellant as well as the
respondent and perused the materials available on record.
9. While defining as to what is 'mental cruelty', the Hon'ble Apex
Court has stated that the feeling of deep anguish, disappointment,
frustration in one spouse caused by the conduct of other for a long time
may lead to mental cruelty. In this regard, it is useful to refer the
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CMA(MD)No.559 of 2019
judgment of the Apex Court reported in (2007) 4 SCC 511 in the case of
Samar Gosh vs. Jaya Gosh as under:
“74. No uniform standard can ever be laid
down for guidance, yet we deem it appropriate to
enumerate some instances of human behaviour
which may be relevant in dealing with the cases of
'mental cruelty'. The instances indicated in the
succeeding paragraphs are only illustrative and not
exhaustive.
(i) On consideration of complete
matrimonial life of the parties, acute mental pain,
agony and suffering as would not make possible
for the parties to live with each other could come
within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire
matrimonial life of the parties, it becomes
abundantly clear that situation is such that the
wronged party cannot reasonably be asked to put
up with such conduct and continue to live with
other party.
(iii) Mere coldness or lack of affection
cannot amount to cruelty, frequent rudeness of
language, petulance of manner, indifference and
neglect may reach such a degree that it makes the
married life for the other spouse absolutely
intolerable.
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(iv) Mental cruelty is a state of mind. The
feeling of deep anguish, disappointment,
frustration in one spouse caused by the conduct of
other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and
humiliating treatment calculated to torture,
discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and
behaviour of one spouse actually affecting physical
and mental health of the other spouse. The
treatment complained of and the resultant danger
or apprehension must be very grave, substantial
and weighty.
(vii) Sustained reprehensible conduct,
studied neglect, indifference or total departure
from the normal standard of conjugal kindness
causing injury to mental health or deriving sadistic
pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than
jealousy, selfishness, possessiveness, which causes
unhappiness and dissatisfaction and emotional
upset may not be a ground for grant of divorce on
the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal
wear and tear of the married life which happens in
day to day life would not be adequate for grant of
divorce on the ground of mental cruelty.
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(x) The married life should be reviewed as a
whole and a few isolated instances over a period of
years will not amount to cruelty. The ill-conduct
must be persistent for a fairly lengthy period,
where the relationship has deteriorated to an extent
that because of the acts and behaviour of a spouse,
the wronged party finds it extremely difficult to
live with the other party any longer, may amount to
mental cruelty.
(xi) If a husband submits himself for an
operation of sterilization without medical reasons
and without the consent or knowledge of his wife
and similarly if the wife undergoes vasectomy or
abortion without medical reason or without the
consent or knowledge of her husband, such an act
of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have
intercourse for considerable period without there
being any physical incapacity or valid reason may
amount to mental cruelty.
(xiii) Unilateral decision of either husband
or wife after marriage not to have child from the
marriage may amount to cruelty.
(xiv) Where there has been a long period of
continuous separation, it may fairly be concluded
that the matrimonial bond is beyond repair. The
marriage becomes a fiction though supported by a
legal tie. By refusing to sever that tie, the law in
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CMA(MD)No.559 of 2019
such cases, does not serve the sanctity of marriage;
on the contrary, it shows scant regard for the
feelings and emotions of the parties. In such like
situations, it may lead to mental cruelty.
10. From the above decision, it is clear that the cruelty to one
person may not be a cruelty to other and cruelty differs from person to
person. For deciding the issue of cruelty, the place of living, the conduct
of the persons and their social life have to be taken into consideration.
The matrimonial offences are concerned, it cannot be proved beyond
reasonable doubt and it can be decided only on preponderance of
probability of evidence, but the degree of probability depends on the
subject matter.
11. Now, let us analyse the issue involved in this case. In this case,
both the appellant/husband and the respondent/wife are Doctors. The
appellant was working in Railway Department as Railway Medical
Officer. Initially, they lived in the matrimonial home along with the
parents of the appellant/husband at Kanyakumari and then, they lived at
Chennai and thereafter, at Trichy. The respondent / wife filed the petition
for divorce only on the ground of cruelty. She alleged various incidents
of physical and mental cruelty at the hands of the appellant/husband.
They are:
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(a) The appellant/husband demanded additional dowry
immediately after shifting of the house to Ambattoor, Chennai for
purchasing a house and to start a clinic and harassed the respondent/wife
by all means.
(b) The appellant not even allowed the respondent to meet any one
including her family members and parents.
(c) The appellant is a drug addict and he behaved in a violent
manner.
(d) The appellant used to come to the house in an inebriated mood
and assault the respondent in a brutal manner, which caused the
respondent to have sleepless nights and starvation.
(e) The appellant insisted the respondent to abort the fetus without
assigning any reason.
(f) On the refusal of the respondent, the appellant kicked the
respondent's abdomen by his leg, which led to the hospitalization and
there was a threatening of abortion till the delivery of child on
03.08.2006.
(g) The appellant used to humiliate by using filthy language and
assault her in front of the patients and staff.
(h) The appellant pledged all the jewels of the respondent for his
own immoral and illegal means.
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CMA(MD)No.559 of 2019
(i) The appellant misbehaved with a lady staff from Collectorate,
for which a case in Crime No.407 of 2016 registered.
(j) While working at Trichy, the appellant attacked a staff by name
Ravi, for which a protest was made by the staff of the hospital.
(k) On 05.10.2017, the appellant attacked the respondent with a
boori stick, but she was rescued by a servant maid viz., Mrs.Suguna and
she was hospitalized at Sundaram Hospital, Puthoor and thereafter, the
respondent lodged a complaint in Crime No.714 of 2017 and the
appellant was arrested.
(l) The life of the respondent has become miserable and she is
facing the apprehension of life threat and there is no possibility of living
with the appellant.
According to the appellant/husband, there was no incidents occurred as
alleged by the respondent/wife and they were living happily and even
now he is ready to live with the respondent/wife and produced
photographs to show that they had a happy married life.
12. According to the respondent/wife, the photos produced by the
appellant/husband are not related to recent years, she was ill-treated by
appellant/husband and that she tolerated the same from the inception till
the date of lodging of complaint dated 04.10.2017, considering the future
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CMA(MD)No.559 of 2019
of their daughter.
13. The appellant took two different stands in this case. On the one
hand, he described the respondent/wife as a hysteria patient and psycho.
On the other hand, he raised allegations only against his father-in-law,
which are not substantiated by any material and not an iota of allegation
against the respondent/wife. At the same time, he maintained to say that
he is ready to live with the respondent/wife in his counter affidavit as
well as in his evidence.
14. In this case, the appellant admitted in his evidence that there
was a protest against him in the hospital alleging that he assaulted a staff
in the hospital. The appellant further admitted that he did not purchase
any house in the name of her wife or daughter, though he purchased
several houses in his name. He further admitted that there was no ill-
treatment by the respondent and they lived happily. More over,
admitted in his cross examination that the respondent/wife has informed
that due to kick by appellant/husband on her abdomen, threatened
abortion caused.
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15. According to the respondent/wife, on 05.10.2017 the
appellant/husband attacked her with boori stick and attempted to kill her
for not getting money demanded by him from her parents. But, according
to the appellant, on 05.10.2017, on the ill-advice of the father-in-law, the
respondent/wife attacked her with boori stick and lodged a false
complaint against him. As rightly held by the Court below, it is a
mysterious one, when the appellant himself claims that the respondent is
a good wife and he is also a good husband, there is no need for the
respondent to lodge a false complaint as against the appellant. The
appellant and the respondent made allegations against each other. The
submission of the appellant that on the ill-advice of her father, the
respondent suddenly changed her character is very unbelievable. The
totality of the above factors is not in favour of the appellant/husband. On
the other hand, it is in favour of the respondent/wife. As rightly held by
the Court below, the present case is fitting with the clause (vi) mentioned
in the decision in Samar Ghosh case (cited supra).
16. More over, in this case, this Court made an attempt to refer the
matter to the mediation for settlement, but the respondent/wife refused
for any mediation. Thereafter, this Court directed both the parties to
appear before this Court on 05.03.2021. Accordingly, both the parties
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CMA(MD)No.559 of 2019
appeared on 05.03.2021. However, no settlement could be arrived. It is
needless to say that there are two thinks to live peacefully in all walks of
life. They are “do it” or “leave it”. Love cannot be created by
compulsion. It should be by inclination.
17. This Court does not find any valid reason to interfere with the
finding of the Court below. Hence, this Court is inclined to affirm the
decision of the Court below.
18. In the result, this Civil Miscellaneous Appeal is dismissed. No
costs. Consequently, connected miscellaneous petition is also dismissed.
Index :yes/No 01.12.2021
Internet:yes/No
bala
To
1.The Judge,
Additional District & Sessions Judge,
(Fast Track Court),
Kanniyakumari at Nagercoil.
2.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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CMA(MD)No.559 of 2019
J.NISHA BANU, J.
bala
PRE-DELIVERY JUDGMENT MADE IN
CMA(MD)No.559 of 2019
DATED : 01.12.2021
https://www.mhc.tn.gov.in/judis
