Madras High Court
S.Ruby Celsia vs P.Selvakumar on 4 June, 2025
C.M.A(MD)No.1628 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 28.04.2025
Pronounced on : 04.06.2025
CORAM:
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
C.M.A(MD)No.1628 of 2024
and
C.M.P.(MD)No.17354 of 2024
S.Ruby Celsia ... Appellant / Respondent
Vs.
P.Selvakumar ... Respondent / Petitioner
PRAYER: Civil Miscellaneous Appeal filed under Section 55 of the
Divorce Act, 1869, read with Section 104 of Civil Procedure Code, 1908,
to set aside the Judgment and Decree dated 07.11.2024 made in
I.D.O.P.No.181 of 2023 on the file of the learned Additional District
Court (FTC), Tenkasi.
For Appellant : Mr.M.Shemadaniel
For Respondent : Mr.D.Srinivasaragavan
JUDGMENT
This civil miscellaneous appeal is filed by the appellant,
challenging the order passed by the learned Additional District Judge's
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Court (FTC), Tenkasi in I.D.O.P.No.181 of 2023.
2. For the sake of convenience, the parties here to are mentioned
as per their ranking before the Learned Trial Court.
3. The husband was the petitioner before the learned Trial Court
and the respondent is his wife. The respondent wife has preferred this
Civil Miscellaneous Appeal challenging the order passed in I.D.O.P.No.
181 of 2023 dated 07.11.2024. The petitioner husband filed a petition
for divorce under Section 10(1)(vii) and 10(1)(x) of Indian Divorce Act,
1869, seeking to dissolve the marriage solemnized between him and the
respondent wife on 09.11.2018.
4. The gist of the case as averred in the petition for divorce is
as follows:
(i) The marriage between the petitioner husband and the
respondent wife was conducted on 09.11.2018 at Punitha Arulappar
Church, Avudaiyanoor village in the presence of elders and relatives
according to the Christian rites and practices. The marriage was an
arranged marriage. Thereafter, the petitioner and the respondent
together registered their marriage on 31.12.2018 at Pavoorchatram Sub
Registry.
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(ii) The petitioner is an Engineer, and he is working as a Software
Engineer. The respondent is an Engineer who holds a Bachelor of
Technology (Mechanical), a Master of Technology and a doctoral degree
in Engineering. She is presently employed as an Assistant Professor at
K.S. Rengaswamy Engineering College, K.S.R.Education Nagar,
Thiruchengode Taluk, Namakkal District. From the very instance of
marriage, the respondent was not interested in leading a happy family
life. She had declared that she had no belief in the family system and
also refused to live in harmony with the petitioner. Though the
petitioner was patiently handling her with the fond hope that the
respondent would learn the nuances of marriage in due course of time,
he suffered untold mental agony because of the respondent's attitude.
Very often, the respondent left from her matrimonial home to her
maternal home.
(iii) The respondent's father citing the prevailing family problems
in the petitioner's family, fraudulently instigated the petitioner to
execute a settlement deed with respect to his properties in favor of the
respondent. In this regard, the petitioner has filed a suit for recovery of
property in O.S. No. 344 of 2023 on the file of the Principal Subordinate
Judge's Court at Tenkasi and the same is pending. While being so, on
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10.11.2021, the respondent permanently left her matrimonial home and
settled in her maternal home. All the advices and efforts taken by the
petitioner for a reconciliation, proved futile. In fact, the petitioner's effort
to give psychological counselling through a Psychologist to the
respondent also proved futile.
(iv) The respondent categorically declared that she is not ready to
live with him even for namesake. Shocked by the revelations of the
respondent, the petitioner is suffering from a mental and physical
trauma that he is not even able to carry forward his day-to-day affairs of
life normally. The respondent's deeds and activities are legally and
socially unacceptable and she has been living away from him,
separated, for a period of more than two years in her parents' home. As
a result of which, the petitioner has lost hope and a mindset has been
imbibed in him to such an extent that he could no longer live with her
anymore. Hence, this petition for divorce has become necessary and the
petitioner has filed this petition for divorce seeking to dissolve the
marriage on two grounds namely, cruelty and non-consummation of
marriage.
5. Gist of the counter-affidavit filed by the respondent's wife
in I.D.O.P No. 181 of 2023:
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(i) Refuting all the allegations set forth by the petitioner in his
petition for divorce, the counter affidavit has been filed. All the
allegations of frequenting to her maternal home, leaving the petitioner
in their matrimonial home is strongly denied by the respondent wife. It
was contended by the respondent that the petitioner and the
respondent lived together for a period of one week with the respondent
in her village after marriage. Thereafter, for a period of two weeks, the
respondent accompanied the petitioner to Bangalore wherein he was
employed. While being so, the respondent was selected to pursue Ph.D.,
at Mepco Schlenk Engineering College, Sivakasi.
(ii) It was only with the permission of the petitioner, the
respondent joined in her Ph.D., research course and stayed in the
Sivakasi Mepco College and completed her Ph.D., course. Even during
the said six-months period of time, the petitioner used to visit the
respondent in her quarters and stay with her every weekend. After
completion of her research, the respondent and the petitioner lived
together for a period of one and a half years at Bangalore where the
petitioner was employed. During the COVID-19 pandemic, the petitioner
was compelled to work from home, as a result of which, both the
petitioner and the respondent returned to their native and arranged a
rented accommodation at Pavoorchatram village and from May 2021
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until November 2021, they lived in the said village house.
(iii) While being so, it was only at the instance of the petitioner,
the respondent went to her maternal home for taking proper treatment
for begetting a child during December 2021 and left with no other
option, on his compulsion, the respondent had gone to her parent's
house. However, after this, the petitioner did not contact the
respondent. After the hectic efforts taken by the elders of the
respondent's family, the petitioner voluntarily took the respondent along
with him during December 2022 to his Pavoorchatram house, wherein
they lived together for a period of two months.
(iv) In the meanwhile, the petitioner was selected as a Lecturer in
an Engineering College at Thiruchengode. It was only because of the
fact that the petitioner severed all contacts with the respondent during
this period of time, the respondent was left with no other option rather
joining in the said job at Thiruchengode. The allegation that the
respondent's father had instigated the petitioner to execute a settlement
deed in favor of the respondent with respect to his properties are sternly
refuted. It was further submitted that the petitioner himself had
executed the same out of his own will and volition.
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(v) In a similar manner, the respondent has also executed a
settlement deed in favor of the petitioner out of her own volition. Having
accepted the fact that the petitioner has filed a civil suit with respect to
the properties settled by him in favor of the respondent, the respondent
had clarified in her counter in Para 3 that she has appeared in the
aforesaid civil suit and is conducting the same legally.
(vi) The claim of the petitioner of having given psychological
counselling to the respondent is unnecessary and the allegations that
the respondent had permanently deserted the petitioner for no reason
is also strongly denied. It is only for the purpose of living together with
the petitioner, the marriage had been conducted. However, it is only the
petitioner who failed to conduct the matrimonial life with due respect,
love, and affection. During the period when the respondent lived with
the petitioner, he had imposed several conditions of restricting her from
contacting her parents and using social media as well as computer. This
had caused grave impact in her mind, as a result of which, she
continuously suffered from depression and encountered unnecessary
worries.
(vii) When the respondent was taken back by the petitioner at the
instance of the elders of the respondent's family during December 2022,
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it was the petitioner who demanded money to a tune of Rs.4,00,000/-
(Rupees Four Lakhs only) and a car worth Rs.2,00,000/- (Rupees Two
Lakhs only). Not willing to heed to the petitioner's petition for divorce,
the respondent had required the Learned Trial Court to dismiss the
petition for divorce filed by the petitioner.
6. Two witnesses were examined on the side of the petitioner as
PW-1 and PW-2 by the Learned Trial Court and Exhibits P1 to P7 were
marked. The respondent wife was examined as RW-1 and exhibits R1
series, Exhibit R1 to R3 were marked on the side of the respondent.
7. On the basis of the evidence deposed, documents marked, and
the arguments put forth by the respective parties, the Learned Trial
Court giving way to the evidence deposed by PW-2, one Dr. Ayyappan,
who claimed to have been running a mental hospital by name and style
of Thanvanthri Hospital at Tirunelveli, came to a conclusion that the
respondent had suffered a mental illness, namely, Paranoid
Schizophrenia, and concluded that it was the respondent who was not
inclined to live together with the petitioner and she had conducted her
matrimony without any love and affection and the Learned Trial Court
came to a conclusion that the petitioner and the respondent did not live
a happy married life and most of their marital life was led only in
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isolation.
8. Further, the Learned Trial Court also concluded that the
respondent had intentionally avoided to consummate the marriage and
the allegations leveled against the petitioner by the respondent itself
would show that the petitioner has been subjected to cruelty. Further,
the Learned Trial Court observed that the respondent had behaved
violently and hysterically in an aggressive manner exposing anger and
hatred towards the petitioner and the behavioral changes of the
respondent would have obviously caused mental agony to the petitioner
which could very well be perceived from the evidence let in the trial by
the respective parties and concluded that the case is a fit case for grant
of divorce by dissolving the marriage which was held between the
petitioner and the respondent on the ground of non-consummation and
mental cruelty.
9. It is a settled proposition of law that while considering the facts
in issue, the primordial duty of the Trial Court is to substantiate the
evidence as to the facts in issue which were properly pleaded by the
respective parties. Without pleadings, the evidence deposed beyond the
scope of those facts which are already pleaded cannot be taken as
substantial facts to decide the facts in issue. The Honourable Supreme
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Court in the case of Ms.Trojan & Co Ltd vs R. M. N. N. Nagappa
Chettiyar1 has held as under:
“It is well settled that the decision of a case cannot be based
on grounds outside the pleadings of the parties and it is the case
pleaded that has to be found. Without an amendment of the plaint,
the Court was not entitled to grant the relief, not asked for and no
prayer was ever made to amend the plaint so as to incorporate in it
an alternative case.”
10. It is the considered view of this Court that though the Court
has very wide discretion in granting relief, however, the Court cannot
ignore and keep aside the principles governing grant of relief and resort
to grant relief beyond the scope of the facts in issue which were pleaded
by the respective parties, more particularly in matrimonial cases. In the
instant case, the petitioner husband had laid a petition for divorce
under the grounds of having willfully refused to consummate the
marriage and cruelty.
11. For the sake of convenience, section 10(1)(vii) and section
10(1)(x) of Indian Divorce Act, 1869, is extracted as follows:
“10.Grounds for dissolution of Marriage- (1) Any marriage
soleminzed, whether before or after the commencement of the Indian
1 AIR 1953 SC 235
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Divorce (Amendment) Act, 2001 (51 of 2001), may, on a petition
presented to the District Court either by the husband or the wife, be
dissolved on the ground that since the solemnization of the
marriage, the respondent-
(vii) has willfully refused to consummate the marriage and
the marriage has not therefore been consummated;
(x) has treated the petitioner with such cruelty as to cause a
reasonable apprehension in the mind of the petitioner that it would
be harmful or injurious for the petitioner to live with the
respondent.”
12. The marriage between the petitioner and the respondent was
held on 09.11.2018. Though it is pleaded in para 4 of the petition for
divorce that, from the very instance of the marriage, the respondent had
been reluctant to nurture a cordial matrimonial life, she went to the
extent of informing the petitioner that she was not interested or inclined
towards leading a matrimonial life and she went to the extent of telling
that she did not have any faith in living a cordial matrimonial life with
him. In para 5 of the petition, the petitioner had claimed that the
respondent frequented to her maternal home very often, and in para 6,
he had made it clear that finally on 10.11.2021, the respondent had
separated the petitioner permanently and left for her maternal home.
However, except for pleading that the respondent had informed him that
she is neither interested nor inclined nor has faith in a normal
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matrimonial relationship, nowhere in any part of the petition for
divorce, the petitioner had stated that the marriage was not
consummated.
13. Per contra, the counter affidavit filed by the respondent wife
itself commences in para 1 of the counter affidavit categorically refusing
and denying the contention set forth in para 4 of the petition for divorce
where the petitioner husband had claimed that the respondent had
informed him that she was neither inclined nor interested nor had any
faith in the matrimonial relationship. It is specifically denied in para 1
of the counter affidavit filed by the respondent that such an averment
made by the petitioner husband is fully incorrect and false. In para 2 of
the counter affidavit, she had categorically contended that the
respondent had lived with the petitioner and had elaborated in the rest
of the portions of the counter affidavit, the instances during which the
petitioner and the respondent lived together and the efforts taken by the
petitioner in encouraging her in pursuing a research studies and
completing Ph.D., after her matrimony.
14. However, in para 6 of her counter affidavit, she had also
pleaded that lastly when she was taken back to her matrimonial home
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in December 2022 at the instance of the elders, the petitioner had
treated her with unkindness by demanding more money and a car
worth Rs.2,00,000/- (Rupees Two Lakhs only). However, she had
required the learned Trial Court to dismiss the petition for divorce.
When a petition for divorce has been laid under section 10(1)(vii) of the
Indian Divorce Act, 1869, it is pertinent to provide sufficient proof of
non-consummation of marriage to obtain divorce under the said
ground.
15. No instances of willfully refusing to cooperate in
consummating the marriage has been put forth either in the pleadings
or in the evidence by the petitioner. The petitioner has failed entirely to
prove non-consummation of the marriage. Pleadings are wholly silent
on that point and no specific instance of any wilful refusal by the
respondent to consummate was pleaded or proved. A veil pleading of the
petitioner that the respondent had informed him at the very instance of
the marriage that she is neither inclined nor interested nor had any
faith as to the matrimonial relationship would not strengthen his
ground of non-consummation. However, a careful perusal of the
pleadings, documents, and the materials available on record, more
particularly, the R1 series document marked by the respondent wife as
RW-1 while deposing her evidence demonstrates a very cordial and
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warm relationship between the petitioner husband and the respondent
wife, for atleast two years after theri wedding on 09.11.2018. Those
photographs directly controvert the petitioner's assertion that the
marriage was never consummated.
16. The moments of intimacy which are mirrored in the exhibit R1
series photograph will resonate the fact that after marrying the
respondent on 09.11.2018 at least for a period of two years the
petitioner and the respondent had led a happy matrimonial life without
too many complications. Exhibit R1 series would defy the claim of the
petitioner husband that the marriage was not consummated. Having
lived together for at least two to three years before laying the petition for
divorce, the claim of the petitioner husband that the marriage was not
at all consummated without any substantial piece of evidence could not
be accepted and the said claim should be negated.
17. The other ground on which the divorce has been sought for is
the ground of cruelty. For the purpose of establishing the factum of
cruelty, the learned Trial Court had given weightage to the evidence
deposed by one Dr.Thiru.Ayyappan who deposed his evidence as PW-2.
It is ridiculous as to how the learned Trial Court relied upon the
evidence deposed by PW-2 without marking even a single document
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which would substantiate the fact that the respondent had suffered
from Paranoid Schizophrenia.
18. That apart, this Court is shocked by the way the Trial has
been conducted by the learned Trial Court in admitting the evidence of
PW-2 that the respondent suffered from Paranoid Schizophrenia when
the said aspect was not at all pleaded by the petitioner in any portion of
his petition for divorce. What the petitioner had pleaded, more
particularly, in paragraph 3 of his petition for divorce, is that the
respondent had left her matrimonial home permanently on 10.11.2021
to her parents house, despite the advice rendered by the elders of both
sides. It is only in this point, the petitioner had pleaded in paragraph 6
of his petition for divorce that, even he had taken efforts by taking the
respondent to a psychologist for the purpose of giving her a
psychological counselling and the same proved futile. Nowhere in the
pleadings in the petition for divorce, the petitioner had claimed that the
respondent had suffered from a psychiatric condition, namely, Paranoid
Schizophrenia, and that she was treated by a Psychiatrist for the said
mental health condition.
19. This Court is very particular in distinguishing between the
aspect of Psychology and Psychiatry. Though Psychologists and
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Psychiatrists work in the mental health area, their approaches and
qualifications obviously differ. Many Psychologists are qualified either in
M.A.,/M.Sc., Psychology or MSW (Master of Social Work). On the other
hand, Psychiatrists are qualified medical practitioners who prescribe
medicines and also treat the mental patients. Psychologists normally
conduct counsellings in matters of depression and incompatibility with
any aspect of life. On the other hand, the Psychiatrists are medical
practitioners who treat mental patients with proper diagnosis and
medications. In the instant case, having pleaded that the respondent
was subjected to a counselling process with a Psychologist later at the
time of deposing evidence, the petitioner had went to the extent of
deposing his evidence narrating that the respondent was subjected to
treatment in the mental hospital and he also managed to examine one
Dr. Ayyappan as PW-2 in which the PW-2 went to the extent of deposing
evidence that he had treated the respondent for at least seven days for
Paranoid Schizophrenia.
20. This Court is of the considered view that the learned Trial
Court ought erred in admitting and acting upon the evidence that lies
outside the scope of the parties pleadings. The petitioner never pleaded
that the respondent suffered from Paranoid Schizophrenia. Yet PW-2
was allowed to testify to that effect and the Trial Court relied on that
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testimony to brand on otherwise healthy woman as mentally ill, without
a shred of documentary corroboration. The Hon'ble Apex Court has well
settled in Ms.Trojan & Co Ltd vs R. M. N. N. Nagappa Chettiyar's
case that, a Court cannot adjudicate on matters not pleaded not grant
relief on a case not set out in the pleadings. Those principles apply even
greater rigour in matrimonial litigation. While the Court enjoys wide
discretion in moulding reliefs, it cannot transgress the boundaries of
the pleadings or the substative law. Section 10(1)(vii) and Section 10(1)
(x) of the Indian Divorce Act, 1869, invoked by the petitioner require
strict proof respectively of (a) wilful refusal to consummate and (b)
cruelty. No such proof has been adduced. In the absence of any proper
medical records in this regard, the Trial Court ought not to have
admitted the evidence of PW-2 at all. Psychologists are those who focus
on therapy and counselling to help individuals with behavioral and
emotional issues, Psychiatrists are the medical practitioners who can
diagnose mental disorders, prescribe medication and provide medical
treatments. Though the respondent had admitted in her counter
affidavit that she suffered mental depression due to her incompatibility
with the petitioner in her matrimonial life, she had categorically denied
in her evidence that she suffered any mental health problems.
21. Considering the nature of allegations which has been put
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forth by way of evidence as against the respondent both by PW-1 and
PW-2 that the respondent suffered from Paranoid Schizophrenia, this
Court, by order dated 20.03.2025, required the said PW-2, namely, Dr.
B. Ayyappan, Thanvanthri Hospital, North Bypass Road, Vannarpettai,
Tirunelveli-627 003, to appear before this Court on 27.03.2025 at 3.30
P.M in the chamber, requiring him to produce the complete original
medical records pertaining to the respondent wife, namely, Mrs. Ruby
Celsia, who was claimed to have been admitted on 27.05.2021 and was
taking treatment there at and discharged on 03.06.2021, in a sealed
cover. Interestingly the said doctor, namely, Dr. B. Ayyappan, appeared
on 27.03.2025 without any medical records and submitted before this
Court that he is handicapped with medical records and he do not have
any medical records pertaining to the respondent in his hospital.
22. In the absence of any medical records which would
substantiate that the respondent was treated in Thanwantri Hospital,
the manner in which the Trial Court had conducted the Trial by
admitting the evidence of PW-2 and allowing him to depose evidence
elaborating the mental health condition of the respondent to that extent
that she suffered from Paranoid Schizophrenia and that too without any
proper documentary evidence, I am of the considered view that, the
learned Trial Court failed in dispensation of justice by painting a normal
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woman as a Paranoid Schizophrenic patient giving way to the society to
annihilate the respondent questioning her credibility and personality
posing serious threat even to her future livelihood and employment.
23. It is an admitted fact that the respondent is an Engineer and
she had completed her B.Tech., M.Tech., as well as she is a doctorate in
Engineering. That apart, she is also serving as an Assistant Professor in
an Engineering College at Thiruchengode. The only allegation which has
been set forth by the respondent as against the petitioner is that, he
had subjected her to certain restrictions that she should not frequently
converse with her parents and that she should not use her computer,
as a result of which, she suffered mental agony and depression. She has
also pleaded in her counter affidavit that after rejoining her husband at
the instance of the elders in December 2022, the petitioner had
demanded a car as well as cash of Rs.4,00,000/- (Rupees Four Lakhs
only) from her parents.
24. However, the learned Trial Court went on to observe that the
allegations leveled by the respondent against the petitioner itself would
show that the petitioner was subjected to cruelty and that the
respondent suffering from Paranoid Schizophrenia might also have had
a grave implication on the mental and living condition of the petitioner
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and proceeded to conclude that the marriage was not consummated
between the petitioner and the respondent, and the petitioner had
suffered cruelty in the hands of the respondent and allowed the petition
for divorce.
25. However, I am of the considered view that the learned Trial
Court gravely erred by relying upon the evidence deposed by PW-2
which was not based on any material evidence, in the absence of any
document marked before the learned Trial Court. That apart, this Court
has confirmed the same by requiring the said PW-2 who claimed himself
to be a doctor who treated the respondent for Paranoid Schizophrenia to
produce the entire original medical records concerning the respondents
alleged hospitalisation. In response to the same, the said PW-2 duly
appeared before this Court only to clarify before this Court that his
evidence before the learned Trial Court was without any material
evidence and that he was handicapped by the absence of any relevant
documents. His failure to produce the relevant medical records for my
perusal itself would render his testimony as PW-2 inadmissible and the
Trial Court's reliance on it is a grave error.
26. Given (a) the total lack of admissible evidence of non-
consummation (b) the absence of proof of cruelty, and (c) the procedural
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illegality of relying on unpleaded and unproved allegations of Paranoid
Scheozphrnia, the impugned decree cannot stand. Accordingly, I do not
find any merit in the order passed by the learned Trial Court and hence,
the same has to be interfered necessarily and accordingly, the order
passed by the learned Trial Court is hereby set aside. To conclude, the
available record underscores that, in adjudicating disputed facts, the
Trial Court's “primordial duty” is to confine itself to the issues framed
on the pleadings and to base its findings on admissible evidence alone.
Evidence adduced beyond the scope of the pleadings is not “material”
within the meaning of the law of evidence and must be discarded. The
Trial Court's departure from that duty in a sensitive matrimonial case
mandates appellate correction.
27. With the above observations, this Civil Miscellaneous Appeal
is allowed. There shall be no order as to costs. Consequently, connected
miscellaneous petition is closed.
04.06.2025
NCC : Yes / No
Index : Yes / No
Internet : Yes
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To
The Additional District Court (FTC),
Tenkasi.
Copy to
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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L.VICTORIA GOWRI, J.,
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04.06.2025
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