Madras High Court
Dr.P.Seethalakshmi vs G.Vediyappan on 5 September, 2024
Author: J.Nisha Banu
Bench: J.Nisha Banu
C.M.A.No.17 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 19.08.2024
Pronounced on : 05.09.2024
CORAM
THE HONOURABLE MRS. JUSTRICE J.NISHA BANU
AND
THE HONOURABLE MRS. JUSTICE R.KALAIMATHI
C.M.A.No.17 of 2023
Dr.P.Seethalakshmi ...Appellant
vs.
G.Vediyappan ...Respondent
PRAYER: Civil Miscellaneous Appeal is filed under Section 19 of the
Family Court Act, 1984 to set aside the fair and decreetal order dated
29.09.2022 passed in O.P.No.71 of 2020 on the file of Family Court,
Dharmapuri.
For Appellant : Mr.R.Thamaraiselvan
For Respondent : Mr.A.Arun
JUDGMENT
(The order of the Court was made by Mrs.R.Kalaimathi, J.)
This Civil Miscellaneous Appeal has been preferred by the
respondent/wife against the order passed in O.P.No.71 of 2020 on the file
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of the Family Court, Dharmapuri against the order dated 29.09.2022 in
O.P.
2. The petitioner G.Vediyappan filed the above said O.P under
Section 13(1) (i) (ia) of the Hindu Marriage Act, 1955 for an order of
divorce. The O.P was allowed by annulling the marriage that took place
between the parties on 25.06.2007 at Dharmapuri. Aggrieved, the wife
has preferred this appeal.
3. Facts leading to the filing of the petition is set out hereunder in
brief:
Marriage between the petitioner and the respondent was solemnized
on 25.06.2007 at Sengunthar Thirumana Mandapam, Annasagaram,
Dharmapuri in the presence of elder persons. The marriage is still
subsisting. Expenses for the marriage were borne out by the parents of
the petitioner (husband). In the year 2007, the petitioner was working in
Indian Army. After marriage, both lived happily at the residence of the
petitioner. The respondent was admitted at the National Institute of Open
Schooling by the petitioner, and she completed her 12th standard.
Thereafter, the petitioner admitted his wife to the B.S.M.S. Course in RVS
Siddha Medical College and Hospital, Coimbatore. The respondent
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applied for an educational loan for her studies. The loan was repaid by the
petitioner and his father. A girl child by name Dhanusha was born to them
on 30.03.2008 and on 15.01.2012, a boy child by name Pughal Krishnan
was born to them. Upto the year 2012, the married life went on peacefully.
The respondent after returning from Coimbatore to Dharmapuri, did not
come to the matrimonial home and went to her parents house. She
completed her studies in the year 2016. Upon the request of the
respondent, the petitioner made arrangements to start a clinic at Indur,
Dharmapuri District by renting one shop at Indur. The petitioner got retired
from Army Service in the year 2016 and both lived at the petitioner's
house. The respondent refused to live in the village atmosphere and was
compelling her husband to set up a separate house at Dharmapuri town.
The respondent did not heed to the request of the petitioner and his
parents, and refused to live in the matrimonial home. Therefore, the
petitioner was forced to take the respondent along with their children and
started to reside in a rented house at Pidamanery, Dharmapuri. After a
few days, she did not return to the matrimonial home some times for
months together. When this was questioned by the petitioner, the
respondent/wife told him that she was staying along with her maternal
aunt. But, the enquiry revealed that the respondent was not staying at her
maternal aunt house. The respondent quarreled with the petitioner on the
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ground that, as the petitioner was doing hotel and milk business, she does
not like the same as she is a doctor and it affects her status. The
respondent often quarreled with the petitioner and failed to take care of the
children. Meanwhile, they shifted to another rented house at Gandhi
Nagar, thereafter to Kandasamy Vathiyar Street at Dharmapuri. The
respondent did not change her attitude. The respondent compelled the
petitioner not to talk with his parents and told him not to visit his native
village. She threatened him that if the petitioner does so, she would
commit suicide along with the children. She would scold him in filthy
language and it was recorded by the petitioner (Ex.P.10) and she deserted
the petitioner. The respondent also took her jewels and articles. When
the petitioner contacted the respondent through phone as to the said
details, she stated that she was not willing to live with the petitioner and
disconnected the phone. These details are acts of cruelty. The petitioner
by taking care of the children has been running the family with great
difficulties. There is no chance of reunion. Hence, the petition for divorce
on the grounds of cruelty and desertion.
4. Counter details given in brief.
Marriage between the parties is admitted. The petitioner promised
to the respondent to support her studies. At the time of marriage, the
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parents of the respondent gave 15 sovereigns of jewels to her, two
sovereigns to the petitioner, two wheeler and household articles. After one
week of marriage, the petitioner pledged the jewels of the respondent to
clear the housing loan. While the first children was 1 1/2 years, the
petitioner went to Army. The mother in law of the respondent did not
support her, and hence she was staying at her parents home. It is by the
efforts of the respondent father, she joined in the Siddha Medical College
and studied BSMS. She completed her course in the year 2016 and the
petitioner also returned to Dharmapuri after retirement. Both the petitioner
and respondent were staying at the petitioner's residence at Alivayan
Kottai. With the retirement benefit funds, the petitioner started an online
business in the name and style of Viha Exports. As there was no proper
internet connection in the village, they decided to shift residence to
Dharmapuri. The petitioner owns 5 acres of land and 15 cows. The
petitioner owned a four wheeler to distribute milk and running three hotels
in Dharmapuri. She got a loan of Rs.15 lakhs and completed her studies
in the year 2016 and started a clinic at Indur. The petitioner did not repay
the educational loan of the respondent and the petitioner quarreled with
the respondent. During corona lock down period, due to lack of transport,
she found it difficult in reaching her clinic and took a rented house at Indur
and stayed along with her father. Frequently, she used to go to Aalivayan
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Kottai to see her children. This petition was filed with false allegations, the
respondent is ready to live with the petitioner and hence sought for
dismissal of the petition.
5. At trial, the petitioner examined himself as P.W.1. Three
witnesses were examined and 13 documents were marked. On the
respondent side, the respondent/wife has examined herself as R.W.1.
6. Mr.T.Thamaraiselvan, learned counsel for the appellant/wife
would vehemently contend that the allegations raised in the petition are
false. The respondent is a dutiful wife and she obtained educational loan
and completed her BSMS course. The petitioner did not take any steps to
repay the educational loan. He would further contend that her mother in
law never supported her and her maternal aunt having obtained loan from
her is in inimical terms, therefore their evidence and her daughter
Dhanusha, who is in the custody of the petitioner were made to support
the false contentions of the petitioner. It was further contended that due to
the corona lock down, she was made to stay with her father in order to
attend clinic at Indur.
7. Per contra, Mr.A. Arun, learned counsel for the
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respondent/husband would strenuously argue that it was the petitioner
who took efforts to settle the issues between the spouses and due to the
acts of cruelty committed by the respondent, the husband has filed the
petition and prayed to confirm the order of the trial Court.
8. The main allegations raised in the petition are acts of cruelty and
desertion to the effect that the respondent/wife was not affectionate either
to her husband or to the children. The respondent would straightaway go
to her parents house from Coimbatore College. She was not visiting the
petitioner or the children or her parents in laws. When she was contacted
through phone, she did not show any interest to talk to the members of the
petitioner's family. It is the further contention of the petitioner that the
respondent did not like the village life and wanted to shift to town, and she
was often quarreling with the petitioner. Thereafter also, she did not take
care of the family and refused to come to the matrimonial home.
Therefore, if these allegations are correct, and if yes, whether it amounts
to acts of cruelty is the moot question.
9. P.W.1 has spoken in line with the details of the petition. P.W.2 to
P.W.4 are the mother of respondent Seethalakshmi, maternal aunt of the
respondent and daughter of the petitioner and respondent. P.W.2/Mother
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of the respondent has supported the case of the petitioner. During the
cross examination of P.W.2-mother of the respondent, she would state
that college expenses were borne out by the petitioner. For the past two
years, her daughter was not residing along with the petitioner. Her son in
law/petitioner told her that her daughter often quarreled with him and she
was not taking care of the children. She would further state that the
respondent would never consider her as her mother and hence, she never
gave any advise to her. She has lastly stated that she does not
understand the attitude of her daughter.
10. The relative of both petitioner and respondent, R.Meena,
(P.W.3) cousin sister of respondent father has stated that the respondent
Seethalakshmi set up a clinic at Indur and thereafter, there was a complete
change in her attitude and as she failed to take care of the husband and
children, the daughter of the petitioner and respondent Dhanusha (P.W.4)
would depose that it was her father who took care of them. Her mother
would not be affectionate either towards her father or to them. Her mother
would shout at her mother in law in filthy language. It has come on record
through the evidence of P.W.4 that after quarrel, her mother would go out
during night time and she would not return back to her residence for about
a week.
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11. Per contra, the respondent denied the allegations made in the
petition and she stated that she was taking care of the children and her
husband.
12. The respondent has completed ANM Nursing Course, Social
Community Medicine Course, Diploma in Alternative Medicine, Food and
Nutrition Course. She obtained loan of Rs.2 lakhs from the Indian Bank,
Ellakiampatti and the expenses were met by her husband and her father in
law.
13. The petitioner has completed 10th standard and he was working
in the Indian Army till 2016. Whereas, the respondent has completed very
many para medical courses and thereafter, she did her BSMS in a private
medical college and hospital, Coimbatore and completed her studies in the
year 2016. The details of marriage and they have two children out of the
wedlock are admitted facts.
14. In the matrimonial cases, burden of proof lies on the petitioner.
As regards the degree of probability, it is not beyond reasonable doubt,
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but, based on preponderance of probabilities.
15. 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
each household and each person. Even deliberate and willful intention
may not matter at times.
16. 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.
17. Useful reference may be made as to the observations of the
Apex Court in the matters of granting of divorce on the ground of cruelty in
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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.”
18. 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:
“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
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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.”
19. In Samar Ghosh vs Jaya Ghosh reported in (2007) 4 SCC
511, the Hon'ble Supreme Court has held that:
“101. (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.”
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20. 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”...”.
21. It is pellucid that the petitioner has been living along with his
children and his parents. At the relevant point of time, he was doing
agriculture and he was running his hotel business. On the other hand, the
respondent did set up a clinic at Indur and naturally, she has to travel from
village to the clinic. The respondent is a siddha doctor by profession.
Naturally, she would be interested to practice as a siddha doctor. For
which, she needs to spend more time in her clinic. This cannot be taken
as a ground for cruelty. On the other hand, the petitioner stoutly contends
that she would often quarrel with him and with his mother. This has been
spoken out by the petitioner. P.W.2 is the mother of the respondent, living
in separation from her husband, has spoken in support of her son in law.
As an educated person, she is expected to have tackled the simple issues
effectively.
22. The petitioner and the respondent have developed
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incompatibility as the respondent/wife is qualified as a siddha doctor
besides completed very may para medical courses. It is so unfortunate
that the minor daughter of the petitioner and respondent has been dragged
to the Court. Most of the times, the children are the sufferers in broken
families, the marriage has become unworkable and long before ceased to
be effective. Especially for the wife, marriage has turned to be a source of
greater misery.
23. The commissions and omissions complained of may not be
cruelty in the eyes of respondent who is a siddha doctor. But in the view
of the petitioner/husband who has completed 10th standard and looking
after his agriculture, hotel business, and milk vending business, the
commission and omission on the part of the respondent have to be
categorized as acts of mental cruelty, which the petitioner does not
condone.
24. We have no hesitation to observe that, based on the both sides
evidence, the matrimonial bond between the petitioner and the respondent
has been ruptured to the maximum extent, especially, the respondent does
have less emotions towards her husband and children.
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25. We have taken note of the above said situations, especially after
2016. We have also strongly impressed by the consideration that
marriage has become unworkable and it is clearly broken down. In the
interest of both sides in order to do complete justice to the parties, as the
marriage has become fiction, it is better to permit them to live apart. Of
course, we are conscious of the fact that Hindu Marriage as per Vedic
Philosophy, it is sanskar. Hindu Marriage is a sacrament, in such a view of
the matter and to shorten agony of the parties, we deem it fit that
dissolution of marriage is the inevitable conclusion and the respondent is
entitled for decree of divorce, and we order that this Civil Miscellaneous
Appeal stands dismissed by confirming the order of decree dated
29.09.2022 passed by the trial Court in O.P.No.71 of 2020. There is no
order as to costs.
(J.N.B.,J.) (R.K.M.,J.)
05.09.2024
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 Family Court, Dharmapuri.
Pre-Delivery Judgment made in
05.09.2024
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