Madras High Court
J.Gomathi vs V.Boopathi Raja @ Boopathi on 30 November, 2022
C.M.A.Nos.671 and 673 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 30.11.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A.Nos.671 and 673 of 2022
and C.M.P.No.4785 of 2022
J.Gomathi ...Appellant in both C.M.As
Vs.
V.Boopathi Raja @ Boopathi ...Respondent in both C.M.As
COMMON PRAYER : The Civil Miscellaneous Appeals are filed under
Section 19 of Family Court Act, 1984 against the Order and Decree dated
18.02.2019 made in F.C.O.P.Nos.53 and 22 of 2018 on the file of learned
Family Court, Namakkal.
For Appellant in both C.M.As : Mr.D.Kumaralingam
For Respondent in both C.M.As : No Appearance
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JUDGMENT
(Judgment of the Court was delivered by SUNDER MOHAN.J.)
The above appeals have been preferred by the wife challenging the
dismissal of her petition filed for divorce in F.C.O.P.No.53 of 2018 (Old
H.M.O.P.No.211 of 2015) and allowing the petition for restitution of conjugal
rights filed by the husband/respondent herein in F.C.O.P.No.22 of 2018 (Old
H.M.O.P.No.232 of 2014 dated 18.02.2019 by the Family Court, Namakkal.
2.The appellant filed a petition for divorce. The averments in the said
petition are as follows:-
(a) The marriage between the appellant and the respondent took place on
10.03.2003 at Sangagiri; the appellant was provided with 15 sovereigns of gold
jewellery at the time of marriage; and out of the wed lock a girl child was born
to them. The appellant is a Lab Technician working in Dubai and the
respondent is now working in Tamil Nadu Electricity Board. The respondent
promised the appellant that he would allow her to continue her higher studies
after the marriage. However, the respondent did not keep up his promise.
Within a few months after the marriage respondent started showing his true
colour. The respondent is a drunkard and addicted to bad habits and he is a
spendthrift. Due to these habits, he committed misappropriation in a company
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where he was employed and lost his job. He demanded jewels from the
appellant for obtaining loan to start a business. The respondent did not do
business properly and caused huge loss to the appellant. The appellant was
therefore compelled to go for a job in Bangalore for the welfare of the family
and the child. Even thereafter the respondent grabbed money from the appellant
and spent for his drinking habits. On one occasion, the respondent came home
in an inebriated condition and beat up the appellant. Though the appellant was
advised to give a complaint she refrained from doing so, considering the family
prestige. The respondent by his conduct forced the appellant to leave the
matrimonial home and thereafter, he had not cared to support the appellant or
the child. The respondent herein in order to cover up for his misdeeds filed
H.M.O.P.No.232 of 2014 for restitution of conjugal rights before the Namakkal
Sub Court which was later numbered as F.C.O.P.No.22 of 2018 after it was
transferred to the Family Court, Namakkal.
3. The respondent filed a counter statement in the divorce petition
denying the averments stated in the petition for divorce; including the
averments that the appellant’s father educated the respondent; and that he was a
drunkard and pledged the jewels of the appellant. He had never
misappropriated any money in any company. The respondent filed the petition
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for restitution of conjugal rights in a genuine attempt to live with the appellant.
It was the appellant who ill-treated the respondent. She always wanted to
separate him from his mother. She never did any domestic work and the
respondent’s mother was compelled to do all the domestic work at home. She
humiliated and insulted the respondent stating that the respondent was earning
a meagre amount of Rs.5000/- which was not enough to maintain the family.
The respondent never took away the jewels of the appellant. It was the
respondent who paid for the appellant’s education. The appellant and the
respondent were closely related to each other. The appellant was the respondent
uncle’s daughter and he took utmost care of the appellant. The appellant
compelled the respondent to start an independent business and she volunteered
to give five sovereigns of jewels. With the said money and his own funds, the
respondent started a business of manufacture of distilled water and battery acid.
The appellant never got along well with the respondent’s parents. The
respondent had tolerated the appellant’s behaviour for the welfare of family.
Since the respondent earned less than the appellant, she constantly humiliated
him and made him to do domestic work. The other allegations of cruelty are
false and he was genuinely interested in the matrimonial life and that is why, he
had filed a petition for restitution of conjugal rights in H.M.O.P.No.232 of
2014.
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4.Before the learned Judge the appellant examined two witnesses on her
side and marked Ex.R1 and R2. The respondent examined two witnesses on his
side and marked Ex.P.1.
5.The Family Court held that considering the nature of the allegations
and the fact that a girl child was born out of the wedlock and considering the
welfare of the girl child the marriage cannot be dissolved. The Family Court
further found that it would be in the best interest of preserving the marriage to
order the petition filed by the respondent for restitution of conjugal rights.
Hence, the Court allowed the petition filed by the respondent for restitution of
conjugal rights and dismissed the petition filed by the appellant for divorce.
6. The notice ordered to the respondent through court and also privately
has been served on him. However there is no representation for the respondent.
Hence we propose to decide the appeal in his absence.
7.The learned counsel for the appellant submitted that the appellant and
the respondent are living separately since January 2014. The marriage has now
become dead. The matrimonial bond is beyond repair. Both the appellant and
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the respondent have traded allegations against each other. The allegations made
by the appellant and the respondent against each other would show that a
peaceful matrimonial life is not possible in the circumstances of the case. The
appellant had established the fact that the respondent had caused cruelty in
several ways. He was a drunkard, and on one occasion he had beaten the
appellant which compelled the appellant to leave the matrimonial home. He had
taken away the jewels of the appellant and had caused enormous financial loss
to her. The respondent was not in the habit of doing any job. In fact, he was
dismissed from a job since he committed misappropriation. The incompatibility
between appellant and the respondent has reached a stage where reunion is
impossible. Since the appellant and the respondent are closely related, all
efforts taken by the elders of the family also failed. In such circumstances, the
marriage exists only on paper and if it is not severed it would cause mental
cruelty to the appellant.
8.The points that arise for considerations in the above appeals are as
follows:
(a) Whether the appellant is entitled into decree of divorce?
(b) Whether the Family Court was justified in ordering the respondent’s
petition for restitution of conjugal rights?
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Points (i) and (ii)
9.The averments made in the petition for divorce would clearly indicate
that there is a mismatch in the earning capacity of the appellant and the
respondent. The appellant is more qualified than the respondent. The appellant
has alleged that the respondent is a drunkard and was prone to several bad
habits. He had misappropriated money in a company and also taken away the
jewels belonging to the appellant . These allegations were reiterated during the
appellant's cross examination during the trial. In the cross examination nothing
was elicitated to improbablize the version of the appellant. The appellant and
the respondent are close relatives and it is a matter of common knowledge that
all efforts would have been taken by the family members to find an amicable
solution. However, we find that inspite of the efforts taken by the family
members, the appellant and respondent are living separately for more than eight
years. The respondent had also made several allegations against the appellant in
his petition for restitution of conjugal rights. The allegations suggest that the
respondent also was not very comfortable and that he had suffered cruelty on
account of the appellant’s conduct. He had alleged that the appellant insulted
him and humiliated him because she was more educated and was earning more
than the respondent. The further allegations that the appellant did not do any
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domestic work and she forced the respondent’s mother to do all the work
would go to show that they did not lead a peaceful matrimonial life.
10.That apart the conduct of the respondent in not participating in the
instant proceedings is a factor which ought to be considered. The respondent
is aware of the proceedings before this Court. The respondent has deliberately
avoided the proceedings and has not appeared inspite of his knowledge of the
proceedings and service of notice on him. This conduct is a relevant factor in a
Petition for divorce. The Hon'ble Apex Court in Sukhendu Das v. Rita
Mukherjee reported in (2017) 9 SCC 632 has held as follows:
7. The respondent, who did not appear before the
trial court after filing of written statement, did not
respond to the request made by the High Court for
personal appearance. In spite of service of notice, the
respondent did not show any interest to appear in this
Court also. This conduct of the respondent by itself
would indicate that she is not interested in living with
the appellant. Refusal to participate in proceeding for
divorce and forcing the appellant to stay in a dead
marriage would itself constitute mental cruelty (Samar
Ghosh v. Jaya Ghosh [Samar Ghosh v. Jaya Ghosh,
(2007) 4 SCC 511, p. 547, para 101(xiv)] ). The High
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Court observed that no attempt was made by either of
the parties to be posted at the same place. Without
entering into the disputed facts of the case, we are of the
opinion that there is no likelihood of the appellant and
the respondent living together and for all practical
purposes there is an irretrievable breakdown of the
marriage.
The Hon'ble Apex Court has held that this conduct itself would
show that the marriage has become dead and any effort made to revive a dead
marriage itself would cause mental cruelty.
11. The Honourable Apex Court in Samar Ghosh Vs. Jaya Ghosh
reported in 2007 (4) SCC 511 while enumerating the factors to be considered
while considering a petition for divorce held as follows:-
“101.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.
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(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.
(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.
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(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.
(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 such cases,
does not serve the sanctity of marriage; on the contrary, it shows
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scant regard for the feelings and emotions of the parties. In such
like situations, it may lead to mental cruelty.”
12. The scope and meaning of the words “mental cruelty” in the context
of divorce was considered by the Hon'ble Apex Court in “Vinita Saxena vs.
Pankaj Pandit reported in (2006) 3 SCC 378” wherein the Hon'ble Apex court
held as follows:
31. It is settled by a catena of decisions that mental
cruelty can cause even more serious injury than the
physical harm and create in the mind of the injured
appellant such apprehension as is contemplated in the
section. It is to be determined on whole facts of the case
and the matrimonial relations between the spouses. To
amount to cruelty, there must be such wilful treatment of
the party which caused suffering in body or mind either
as an actual fact or by way of apprehension in such a
manner as to render the continued living together of
spouses harmful or injurious having regard to the
circumstances of the case.
32. The word “cruelty” has not been defined and it has
been used in relation to human conduct or human
behaviour. It is the conduct in relation to or in respect of
matrimonial duties and obligations. It is a course of
conduct and one which is adversely affecting the other.
The cruelty may be mental or physical, intentional or
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unintentional. There may be cases where the conduct
complained of itself is bad enough and per se unlawful
or illegal. Then the impact or the injurious effect on the
other spouse need not be enquired into or considered. In
such cases, the cruelty will be established if the conduct
itself is proved or admitted.
33. The cruelty alleged may largely depend upon the
type of life the parties are accustomed to or their
economic and social conditions, their culture and human
values to which they attach importance. Judged by the
standard of modern civilisation in the background of the
cultural heritage and traditions of our society, a young
and well-educated woman like the appellant herein is not
expected to endure the harassment in domestic life
whether mental, physical, intentional or unintentional.
Her sentiments have to be respected, her ambition and
aspiration taken into account in making adjustment and
her basic needs provided, though grievances arising
from temperamental disharmony are irrelevant. This
view was taken by the Kerala High Court
in Rajani v. Subramonian [AIR 1990 Ker 1 : (1990) 1
DMC 561]
34. In (1993) 2 Hindu LR 637 (sic), the Court had gone
to the further extent of observing as follows:
“Sometime even a gesture, the angry look, a sugar-
coated joke, an ironic overlook may be more cruel than
actual beating.”
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35. Each case depends on its own facts and must be
judged on these facts. The concept of cruelty has varied
from time to time, from place to place and from
individual to individual in its application according to
social status of the persons involved and their economic
conditions and other matters. The question whether the
act complained of was a cruel act is to be determined
from the whole facts and the matrimonial relations
between the parties. In this connection, the culture,
temperament and status in life and many other things are
the factors which have to be considered.
36. The legal concept of cruelty which is not defined by
the statute is generally described as conduct of such
character as to have caused danger to life, limb or
health (bodily and mental) or to give rise to reasonable
apprehension of such danger. The general rule in all
questions of cruelty is that the whole matrimonial
relation must be considered, that rule is of a special
value when the cruelty consists not of violent act but of
injurious reproaches, complaints. accusations or taunts.
It may be mental such as indifference and frigidity
towards the wife, denial of a company to her, hatred and
abhorrence for wife, or physical, like acts of violence
and abstinence from sexual intercourse without
reasonable cause. It must be proved that one partner in
the marriage however mindless of the consequences has
behaved in a way which the other spouse could not in the
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circumstances be called upon to endure, and that
misconduct has caused injury to health or a reasonable
apprehension of such injury. There are two sides to be
considered in case of cruelty. From the appellant's side,
ought this appellant to be called on to endure the
conduct? From the respondent's side, was this conduct
excusable? The court has then to decide whether the sum
total of the reprehensible conduct was cruel. That
depends on whether the cumulative conduct was
sufficiently serious to say that from a reasonable
person's point of view after a consideration of any
excuse which the respondent might have in the
circumstances, the conduct is such that the petitioner
ought not be called upon to endure.
37. As to what constitutes the required mental cruelty for
the purposes of the said provision, 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.
38. If the taunts, complaints and reproaches are of
ordinary nature only, the court perhaps need consider
the further
question as to whether their continuance or persistence
over a period of time render, what normally would,
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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.
39. The modern view of cruelty of one spouse to another
in the eye of the law has been summarised as follows in
(1977) 42 DRJ 270 (sic) Halsbury's Laws of England,
Vol. 12, 3rd Edn., pp. 270-71:
“The general rule in all questions of cruelty is that the
whole matrimonial relations must be considered, and
that rule is of special value when the cruelty consists not
of violent acts, but of injurious reproaches, complaints,
accusations or taunts. Before coming to a conclusion, the
judge must consider the impact of the personality and
conduct of one spouse on the mind of the other, and all
incidents and quarrels between the spouses must be
weighed from that point of view. In determining what
constitutes cruelty regard must be had to the
circumstances of each particular case, keeping always in
view the physical and mental condition of the parties,
and their character and social status.”
40. This Court in N.G. Dastane (Dr.) v. S.
Dastane [(1975) 2 SCC 326 : AIR 1975 SC 1534]
observed as under: (SCC p. 338, para 32)
“The Court has to deal, not with an ideal husband and
an ideal wife (assuming any such exist) but with the
particular man and woman before it. The ideal couple or
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a near-ideal one will probably have no occasion to go to
a matrimonial court for, even if they may not be able to
drown their differences, their ideal attitudes may help
them overlook or gloss over mutual faults and failures.”
13. In “ Naveen Kohli v. Neelu Kohli reported in “(2006) 4 SCC 558”
the Hon'ble Apex court held as follows:
“86. In view of the fact that the parties have been living
separately for more than 10 years and a very large number of
aforementioned criminal and civil proceedings have been
initiated by the respondent against the appellant and some
proceedings have been initiated by the appellant against the
respondent, the matrimonial bond between the parties is beyond
repair. A marriage between the parties is only in name. The
marriage has been wrecked beyond the hope of salvage, public
interest and interest of all concerned lies in the recognition of
the fact and to declare defunct de jure what is already defunct
de facto. To keep the sham is obviously conducive to immorality
and potentially more prejudicial to the public interest than a
dissolution of the marriage bond.
87. The High Court ought to have visualized that
preservation of such a marriage is totally unworkable which
has ceased to be effective and would be greater source of
misery for the parties.”
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14.Applying the above principles to the facts of the instant case, we find
that the appellant and respondent are living separately for more than 8 years.
The respondent had not participated in the proceedings inspite of knowledge
of the proceedings. The allegations made by the appellant and respondent
against each other establishes that the matrimonial bond is beyond repair.
Further the allegations and the evidence adduced by the parties are such that
one can conclude that the appellant has suffered mental cruelty. Therefore in
such circumstances if the Court refuses to sever the tie, it would cause mental
cruelty to the party seeking divorce.
15. Therefore, we are of the view that the appellant is entitled to decree
of divorce. The respondent’s petition for restitution of conjugal rights has no
merits and has to be dismissed. The order of family Court allowing the petition
for restitution of conjugal rights is set aside.
In nutshell
a) The appeals in C.M.A.Nos.671 and 673 of 2022 are allowed
b) The F.C.O.P.No: 53 of 2018 filed by the appellant for divorce is
allowed.
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c) The F.C.O.P.No 23 of 2018 filed by the respondent for restitution of
conjugal rights is dismissed.
d)No Costs. Consequently, the connected miscellaneous petition is
closed.
(V.M.V.,J) (S.M.,J)
30.11.2022
Index: Yes/No
Internet: Yes/No
dk
To
1.The Family Court
Namakkal.
2.The Section Officer
VR Section
High Court of Madras
Chennai – 600 104
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C.M.A.Nos.671 and 673 of 2022
V.M.VELUMANI,J.
and
SUNDER MOHAN,J.
dk
C.M.A.Nos.671 and 673 of 2022
and C.M.P.No.4785 of 2022
30.11.2022
https://www.mhc.tn.gov.in/judis
