Madras High Court
P.Thangamani vs P.Krishnaveni on 12 August, 2024
Author: J.Nisha Banu
Bench: J.Nisha Banu
C.M.A..No.2271 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.08.2024
CORAM
THE HONOURABLE MRS. JUSTRICE J.NISHA BANU
AND
THE HONOURABLE MRS. JUSTICE R.KALAIMATHI
C.M.A.No.2271 of 2022
P.Thangamani ...Appellant
vs.
P.Krishnaveni ...Respondent
PRAYER: Civil Miscellaneous Appeal is filed under Section 19 of the
Family Court Act, 1984 to set aside fair and decreetal order dated
08.01.2015 passed in H.M.O.P.No.1304 of 2010 on the file of the
Additional Family Court, Coimbatore.
For Appellant : Mr.S.Saravanan
For Respondent : No Appearance
JUDGMENT
(The order of the Court was made by Mrs.R.Kalaimathi, J.)
The appellant herein having aggrieved by the order of dismissal
passed in H.M.O.P.No.1304 of 2010 dated 08.01.2015 on the file of the
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Additional Family Court, Coimbatore has preferred this Civil Miscellaneous
Appeal.
Facts narrated in brief by the petitioner:
2. Marriage between the petitioner and the respondent was
solemnized as per Hindu Customs in the presence of both elder members,
friends and relatives on 13.06.2003 at the Vinayaga Temple, Eachanari
and at the C.R.N. Marriage Mahal, Eachanari. After marriage, a boy baby
was born to the respondent through the petitioner. The petitioner would
further submit that the respondent/wife was living in the matrimonial home
happily for some time along with him and his mother. Thereafter, she
started to indulge in unnecessary arguments with his mother and she used
to go to her parents home often. After birth of the child, she refused to
come to the matrimonial home. At the behest of elders of the both sides,
matter was settled and he agreed to live separately in the interest of his
family. Again on 01.12.2005, she quarreled with the petitioner and went to
her parents home. Despite the steps taken by the interested persons,
several times, when the respondent was called to come back to
matrimonial home, she refused to come back.
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3. It has been further averred that when a legal notice dated
06.10.2010 was issued to the respondent, she sent a reply notice
contending that the petitioner demanded dowry and he committed cruelty
by beating her and she was treated like a servant maid, and reuniting with
her husband would not be safe for her life, which are totally incorrect. For
his rejoinder notice dated 28.10.2010, she did not send any reply for the
same. Therefore, it is made clear by the respondent wife that she was not
interested to live along with her husband. For the past 6 years without any
acceptable reason, she has avoided to live together with the petitioner.
Hence this appeal.
4. The details given in the counter by the respondent/wife are
precisely stated hereunder. The marriage date and place are admitted.
She quarreled with her mother in law and denied the fact that she
compelled her husband to set up a separate family. She would state that
she was living in a joint family consisting of her husband's mother, sisters,
brothers and their children. It is her further contention that the petitioner
insisted her for abortion and as she was overburdened with the household
work, she suffered abortion. Because of that, she went to her parents
home. Thereafter, upon the undertaking given by the petitioner and his
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mother, they lived together and she gave birth to a boy baby on
24.10.2004. Eleven months after delivery, for name sake, he did set up a
separate home and he used to take food only at his mother's home. It is
the further contention of the respondent that, at the instigation of her
mother in law, the petitioner demanded an amount of Rs.15,00,000/- and
sent her to her parents house. She got money from her parents, but still
he slapped her by stating that the money got from her parents was
insufficient. The petitioner sent her to the matrimonial home in order to get
jewels from her parents by keeping the custody of the child with him.
Because of that, she was not in a position to lead her life along with her
husband. For the past 5 years, child is taken care of by her and fearing of
the beatings of her husband, she did not go to her husbands house, and
she is ready to live together along with her husband and sought for
dismissal of the petitioner. The allegations raised by her husband are
denied by the respondent/wife. In the given circumstances, whether the
order of dismissal passed by the trial Court is liable to be interfered with or
not is the moot question.
5. The date of marriage and place of marriage are admitted facts,
and it is an arranged marriage.
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6. The main allegation of the petitioner/husband is that after some
time, the respondent used to quarrel often with him and his mother and
she would go off to her parents house is the main ground alleged. The
next ground putforth by the petitioner/husband is that, during the
settlement talks, as she demanded to live separately with her husband, he
came out of the joint family, set up and lived with her. Thereafter also,
she made quarrel and left the matrimonial home and thereby, he has
parted with his wife and child, and living a meaningless life.
7. On the petitioner's side, three witnesses inclusive of the petitioner
have been examined [R.Subramani (P.W.2) and K. Thangaraj (P.W.3)].
Copy of the marriage invitation, reply notice of the respondent/wife are
Ex.P.1 and Ex.P.4. The respondent has examined herself as R.W.1.
8. The petitioner has examined himself as P.W.1. He has filed his
proof affidavit in line with averment made in the petition. Cousin Sister of
the petitioner Thiru.R.Subramani son of Ramasamy Gounder has
supported the version of the petitioner. It is the evidence of P.W.2, that,
without any reason, often the respondent used to go to her parents house.
When this was resisted by the petitioner, it became an issue and she
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would also often quarrel with her mother in law. He has also stated that he
has settled the quarrel between the petitioner and respondent on few
occasions and suddenly on 01.04.20005, she quarreled with the petitioner
and left the matrimonial home, went and stayed with her at parents
residence along with her child. At the request of the petitioner, he along
with Thangaraj, Balasubramanian, Siva Subramanian, Myilsamy and
Magesh Babu went to the parents residence in the year 2006 for talk of
settlement. In the panchayat, the respondent, her parents and her two
sisters husband were there. During the settlement talks, the respondent
refused to live with the petitioner and she would state that if she is
compelled to live with her husband she would commit suicide along with
her child. Her parents also stated that they could not compel their
daughter to go to her matrimonial home. Yet another witness (P.W.3), his
father's side relative, one Thangaraj son of Kandhigounder aged about 67
years has spoken about the above said issues and supported the case of
the petitioner.
9. The main contention of the respondent/wife is that, soon after the
marriage, she was in the joint family consisting of her husband's mother,
brothers, sister and their children. When she was in the joint family, she
was in the family way. Because of the work burden, she suffered by
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abortion. The doctor had opined that, sever household work is the reason
for abortion. She was affected physically and mentally and came to her
parents house. Only after eleven months from her date of delivery, her
husband came and they were taken to the matrimonial home and she lived
separately along with her child and her husband was taking food at her
mother's residence. Though she has stated that she was assaulted and
her husband demanded an amount of Rs.15,00,000/-, and for that, she
was sent out of the matrimonial home, the respondent has not taken any
positive steps to reunite with her husband either through settlement talks
or lodging of compliant before the police or by issuance of notice. On the
other hand, she has stated that she is so scared of her husband's beating
and she is ready to reunite with her husband.
10. It is the specific evidence of the respondent/wife that, at the
instigation of her mother in law only, she had difference of opinion with her
husband and on her (wife) demand only, a separate matrimonial home
was set up by the petitioner was admitted by her.
11. When her child was one year old, she came to parents home
once for all, and she did not take any effective steps to reunite with her
husband. In the year 2010, the petitioner/husband has filed the petition for
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divorce on the ground of cruelty and desertion under Sections 13 (1) (ia)
and 13 (ib) of the Hindu Marriage Act, 1955.
12. In Dr.N.G.Dastane Vs. Mrs.S.Dastane reported in 1975 (2) SCC
326, the Hon'ble Supreme court has held that:
“27. The misconception regarding the standard of proof in
matrimonial cases arises perhaps from a loose description of
the respondent's conduct in such cases as constituting a
“matrimonial offence”. Acts of a spouse which are calculated
to impair the integrity of a marital union have a social
significance. To marry or not to marry and if so whom, may
well be a private affair but the freedom to break a matrimonial
tie is not. The society has a stake in the institution of marriage
and therefore the erring spouse is treated not as a mere
defaulter but as an offender. But this social philosophy,
though it may have a bearing on the need to have the clearest
proof of an allegation before it is accepted as a ground for the
dissolution of a marriage, has no bearing on the standard of
proof in matrimonial cases.”
13. It is relevant to refer the observations made by the Hon'ble
Supreme Court in V.Bhagat Vs. D. Bhagat reported in (1994) 1 SCC 337:
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“16. 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. In other words, mental
cruelty must be of such a nature that the parties cannot
reasonably be expected to live together. The situation must be
such that the wronged party cannot reasonably be asked to
put up with such conduct and continue to live with the other
party. It is not necessary to prove that the mental cruelty is
such as to cause injury to the health of the petitioner. While
arriving at such conclusion, regard must be had to the social
status, educational level of the parties, the society they move
in, the possibility or otherwise of the parties ever living
together in case they are already living apart and all other
relevant facts and circumstances which it is neither possible
nor desirable to set out exhaustively. What is cruelty in one
case may not amount to cruelty in another case. It is a matter
to be determined in each case having regard to the facts and
circumstances of that case. If it is a case of accusations and
allegations, regard must also be had to the context in which
they were made.”
14 It is relevant to refer to the observations made by the Hon'ble
Supreme Court in the matters of granting of divorce on the ground of
cruelty in Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal reported in
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(2012) 7 SCC 288. The Hon'ble Supreme Court has observed that “... The
testimony of the appellant husband established that the wife was
crumpling the ironed clothes, hiding the keys of the motorcycle and locking
the gate to trouble him and the said incidents were taking place for a long
time. In such circumstances it is surprising to find that the courts below
could record a finding that the appellant used to enjoy the childish and
fanciful behaviour of the wife pertaining to the aforesaid aspect. This
finding is definitely based on no evidence. Such a conclusion cannot be
reached even by inference nor any surmises and conjectures would permit
such finding to be recorded. The embarrassment and harassment that
might have been felt by the husband can easily be visualised...”
15. In the case of Roopa Soni Vs. Kamalnarayan Soni reported in
2023 SCC Online SC 1127 has observed that “...the court as the
interpreter of law is supposed to supply omissions, correct uncertainties,
and harmonise results with justice through a method of free decision —
libre recherché scientifique i.e. “free scientific research”...”.
16. In matrimonial cases, burden of proof lies on the petitioner.
However, the degree of probability is not one beyond reasonable doubt,
but of preponderance of probabilities.
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17. The allegations raised by the petitioner have been spoken by the
petitioner (husband) and by his close relatives, namely R.Subramanian
(P.W.2) and K.Thangaraj (P.W.3). Though the respondent/wife has
denied the allegations of the petitioner, from the cross-examination of
D.W.1, it is pellucid that at her instance, she came out from the joint family
and her husband did set up a separate home where she lived along with
her child at Salai. She would also accede to the fact that, at the instance
of her mother in law only her husband-petitioner quarreled with her.
18. Therefore, the instances of cruelty raised by the petitioner would
amount to cruelty or not is the moot question. Cruelty is of two types
namely mental and physical cruelty. The petitioner has raised allegations
that his wife has caused him mental cruelty and had discarded him without
reasonable cause and sought for an order of divorce.
19. As regards the word 'Cruelty', the Court has got a wider
spectrum for consideration so as to apply it contextually. It depends upon
the educational, social and financial background of spouse, culture,
conduct of husband and wife, physical and mental weakness of the
spouse, etc. The reasons are enumerative and exhaustive. It differs in
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each household and each person. Even deliberate and willful intention
may not matter at times.
20. With the passage of time, due to the impact of, especially
electronic media, the concept of cruelty is bound to change from time to
time. There cannot be any fixed parameters for determining the issue of
cruelty in matrimonial matters. Therefore, it is prudent to adjudicate on a
case to case basis, by evaluating in a given situation. Acts of cruelty
would differ from person to person and man to a woman and a broad
approach is the need of the hour in matrimonial matters. In the modern
era, issues have to be dealt with some latitudinarianism.
21. From the evidence of P.W.1, it is pellucid that from 01.12.2005
onwards, she has been living along with her parents. O.P for divorce was
filed in the year 2010. Therefore, from the evidence of P.W.1 coupled with
evidence of P.W.2 and P.W.3, it is asserted that it was a habit of the
respondent, to quarrel with her mother in law and she used to go to her
parents home often. Thereafter also, when she was living separately from
the joint family from 01.04.2005 onwards , she has been living along with
her parents. These acts amount to cruelty according to the petitioner. But,
these details were held to be not amounting to cruelty, and the learned
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Trial Judge chose to dismiss the petition, hence this appeal.
22. The allegations raised by the petitioner has been spoken out in
detail by P.W.2 and P.W.3, and it is also made clear that the respondent
living with her parents from 01.04.2005 onwards till date. It is also
pertinent to note that the respondent did not take any steps to reunite with
her husband. The petitioner did not approach the Family Court soon after
his wife left the matrimonial home. We feel that home is a pleasant place
to live. But, the wife feels otherwise at her matrimonial home and left the
same. Now the son is the direct victim. She feel into rough weather and
preferred to go out of the matrimonial home.
23. Based on the aforestated discussions, we are of the considered
view that the petitioner has proved his case by preponderance of
probabilities. In the given circumstances, we are of the opinion that
accepting the allegations of the petitioner and an Order of divorce has to
be granted on the ground raised under Sections 13 (1) (a) and 13 (1) (b) of
the Act of 1955. In sequel to this, the Order of the Trial Court stands set
aside and the marriage took place on 13.06.2003 at the Vinayaga Temple,
Eachanari stands dissolved.
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24. Accordingly, this Civil Miscellaneous Appeal stands allowed and
the order passed in H.M.O.P.No.1304 of 2010 dated 08.01.2015 on the file
of the Additional Family Court, Coimbatore stands set aside. There is no
order as to costs.
(J.N.B.,J.) (R.K.M.,J.)
12.08.2024
Index : Yes/No
Internet : Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation Case : Yes/No
mac
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J.NISHA BANU, J.
and
R.KALAIMATHI, J.
mac
To
The Additional Family Court,
Coimbatore.
12.08.2024
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