Madras High Court
L.Santhanakrishnan vs Malarvhizhi @ S.Kokila) In Support Of ... on 19 March, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
C.M.A(MD) Nos.460 & 1515 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 31.01.2025
Pronounced On : 19.03.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
C.M.A(MD) Nos.460 & 1515 of 2024
and
C.M.P.(MD)No.15844 of 2024
L.Santhanakrishnan ... Appellant / Petitioner
in both C.M.As
T.Nirmala ... Respondent / Respondent
in both C.M.As
COMMON PRAYER: Civil Miscellaneous Appeal filed under Section 19
of Family Courts Act to call for the records relating to the Judgment
decree dated 06.02.2024 made in H.M.O.P.Nos.443 & 445 of 2023 on
the file of the Family Court, Karur and set aside the same and
consequently, grant divorce to the appellant.
For Appellant : Mr.G.Gomathisankar
For Respondent : Mr.S.Gokulraj
(in both C.M.As)
1/14
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C.M.A(MD) Nos.460 & 1515 of 2024
COMMON ORDER
(Order of the Court was made by G.R.SWAMINATHAN, J.)
The marriage between Santhanakrishnan and Nirmala was
solemnized on 01.07.2018 at Arulmighu Pasupatheeswara Temple,
Karur as per Hindu rites and customs. No child was born through the
wedlock. The parties are remaining separate since 09.12.2020.
Seeking restitution of conjugal rights, Nirmala filed H.M.O.P No.29 of
2021 before the Sub Court, Karur. It was later transferred to the Family
Court, Karur and re-numbered as H.M.O.P.No.445 of 2023.
Santhanakrishnan had filed H.M.O.P.No.400 of 2021 before the Family
Court, Coimbatore. It was later transferred to the Principal Sub Court,
Karur and re-numbered as H.M.O.P.No.138 of 2022 and again,
transferred to the Family Court, Karur and re-numbered as H.M.O.P.No.
443 of 2023. Both the H.M.O.Ps were tried together. Santhanakrishnan
examined himself as P.W.1. Ex.P1 to Ex.P13 were marked on his side.
Nirmala examined herself as R.W.1. Ex.R1 to Ex.R4 were marked on
her side. After consideration of the evidence on record, the Family
Judge, Karur allowed H.M.O.P.No.445 of 2023 and dismissed
H.M.O.P.No.443 of 2023 vide common order dated 06.02.2024.
Challenging the same, these civil miscellaneous appeals have been
filed. C.M.A.(MD)No.460 of 2024 is directed against the order made in
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C.M.A(MD) Nos.460 & 1515 of 2024
H.M.O.P.No.443 of 2023. C.M.A.(MD)No.1515 of 2024 is directed
against the order made in H.M.O.P.No.445 of 2023.
2.The learned counsel appearing for the appellant / husband
reiterated all the contentions set out in the memoranda of grounds of
appeals. He pointed out that the evidence on record would lead one to
the irresistible conclusion that the grounds projected in the divorce
petition are well founded. He also added that the relationship between
the parties has irretrievably broken down and that no purpose will be
served in keeping the marital relationship alive. He relied on the
decision rendered in C.M.S.A No.40 of 2008 (Ravi Kumar Vs.
Malarvhizhi @ S.Kokila) in support of his contentions. He called upon
this Court to set aside the impugned orders and allow these appeals.
3.Per contra, the learned counsel appearing for the respondent
submitted that the impugned order is well reasoned and that it does not
call for interference.
4.We carefully considered the rival contentions and went through
the materials on record. For both the parties, the marriage that took
place on 01.07.2018 was the beginning of their second innings. Their
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C.M.A(MD) Nos.460 & 1515 of 2024
respective first marriages were dissolved through court of law. The
appellant wants to dissolve the second marriage also. He has rested his
case on two grounds. The first ground is that the respondent is suffering
from venereal disease in a communicable form. The second ground is a
more standard one. According to the appellant, the conduct of the
respondent constituted cruelty.
5.Section 13(1)(v) of the Hindu Marriage Act, 1955 provides for
dissolution of marriage by a decree of divorce on the ground that the
other party has been suffering from venereal disease in a communicable
form. Alleging that the other spouse is suffering from venereal disease
casts serious stigma. Therefore, in the very nature of things, strict proof
of this allegation would be required. Section 13(1) of the Hindu Marriage
Act, 1955 has set out as many as seven grounds on which divorce can
be sought either by the husband or the wife. We are of the view that the
ground of adultery and the ground that the other party is suffering from
venereal disease in a communicable form can be said to have been
established only if they meet a higher threshold. As regards the ground
under Section 13(1)(v), we tend to take the view that the fact that the
other party is suffering from the particular affliction is not sufficient by
itself to grant divorce. The other party must be given opportunity to show
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C.M.A(MD) Nos.460 & 1515 of 2024
that his or her condition is not an outcome of a morally deviant conduct
but is due to some circumstance beyond his or her control. Two
instances can be recalled. A few years ago, a lady had gone for
pregnancy check up in a Government Hospital where she came to be
infected with HIV on account of transfusion of contaminated blood. In
this situation, will it be fair to dissolve her marriage for no fault of hers at
the instance of her spouse? We would say “No”. Namdeo Dhasal is
an iconic and revolutionary poet and a dalit activist. His wife Mallika
Amarsheik has written an autobiography titled “I Want To Destroy
Myself”. She recounts how her promiscuous husband gave her
sexually transmitted diseases. Let us ask a hypothetical question.
Could Namdeo Dhasal have filed a divorce petition on the ground that
his wife was suffering from STD? The answer is again “No”. That is
why, we hold that Section 13(1)(v) of the Hindu Marriage Act, 1955
should be understood in the manner indicated above. The other party,
even if afflicted with a venereal disease in a communicable form should
be given an opportunity to show that he or she was not at fault.
6.Coming to the case on hand, we have to straightaway hold that
the appellant has miserably failed to prove the allegation that the
respondent herein is suffering from the condition mentioned in the
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C.M.A(MD) Nos.460 & 1515 of 2024
provision. Unlike in the relied on case (Ravi Kumar vs. Malarvizhi @
Kokila), the appellant did not file any I.A for subjecting the respondent
to any medical test or examination. No diagnostic report has been
marked. What have been marked are the discharge summaries and
other reports issued by an ayurvedic centre where the respondent was
admitted for rejuvenation treatment. Though Ayurveda is a highly
respected and recognised system of Indian medicine, the allegation that
the respondent is suffering from venereal disease could have been
proved only by marking the blood test report. No such report has been
marked. Ex.P10 is the laboratory report pertaining to the appellant only.
Ex.P3 to Ex.P6 are the discharge summaries issued by Arya Vaidya
Pharmacy. From a reading of the aforesaid discharge summaries, one
cannot come to the conclusion that the respondent was suffering from
any venereal disease.
7.It is not as if the divorce petition was filed the day after
contracting the marriage. The parties had resided together for close to
two years. During this period, if the appellant had entertained the
suspicion projected in the divorce petition, he would have definitely
taken the respondent to a specialist-doctor for examination. But no
medical witness was examined. In fact, the statutory provision would
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C.M.A(MD) Nos.460 & 1515 of 2024
be satisfied only by showing that the respondent was suffering from
venereal disease in a communicable form. In other words, it is not
sufficient to merely show that the respondent was suffering from
venereal disease. In this case, the appellant has miserably failed to
prove that the respondent was suffering from any kind of venereal
disease. If the respondent was suffering from the disease as alleged by
the appellant, the appellant also would have been affected. The
appellant in his legal notice dated 28.01.2021 (Ex.R4) has claimed that
he suffered from physical ailments after having sexual intercourse with
the respondent and that he took treatment for the same. If that be so,
the appellant should have marked his medical reports. He had not done
so. Therefore, one can safely come to the conclusion that a false
allegation has been made.
8.It appears that the respondent was having some gynecological
issues. According to the respondent, she only had vaginal discharge
medically know as leukorrhea which is recognised to be easily treatable.
The court below therefore rightly came to the conclusion that the ground
under Section 13(1)(v) has not at all been established.
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C.M.A(MD) Nos.460 & 1515 of 2024
9.The other ground projected by the appellant is that the
respondent had treated him with cruelty. To substantiate the same, the
appellant had made the following allegations:
“a. She was a spendthrift.
b. She was addicted to watching porn and
often indulged in masturbation.
c. She refused to do household chores.
d. She ill-treated her in-laws.
e. She used to engage herself in long
telephonic conversations.”
10.The institution of the O.P was not preceded by any legal
notice. Ex.R4 legal notice was issued almost contemporaneously. It is
silent on most of the allegations made above. To establish his case, the
appellant examined only himself. One of the charges made by the
appellant is that the respondent ill-treated her in-laws. To prove the
same, he could have examined at least one of them. He had not done
so. None of the allegations made by the appellant have been
substantiated or corroborated.
11.The learned counsel for the appellant would argue that the
allegation that the respondent used to watch porn and indulge in
masturbation cannot be corroborated and that it is a case of oath
against oath. According to him, no husband would make such an
allegation unless there is truth therein.
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C.M.A(MD) Nos.460 & 1515 of 2024
12.We are not persuaded by the said submission. Watching porn
(other than the statutorily prohibited type) in a private setting would not
constitute an offence. One of us (G.R.S, J.) had held in P.G. Sam
Infant Jones v. State, (2021 SCC OnLine Mad 2241) as follows :
“5.Viewing pornography privately will not constitute
an offence. Offence is an act that is forbidden by law and
made punishable. That is the definition found in Section 40
of IPC. As on date, there is no provision prohibiting such
private acts. There are some who even elevate it as falling
within one's right to free expression and privacy. But child
pornography falls outside this circle of freedom. Section
67-B of the Information Technology Act, 2000 penalises
every kind of act pertaining to child pornography. Whoever
publishes or transmits or causes to be published or
transmitted material in any electronic form which depicts
children engaged in sexually explicit act or conduct; or
creates text or digital images, collects, seeks, browses,
downloads, advertises, promotes, exchanges or distributes
material in any electronic form depicting children in
obscene or indecent or sexually explicit manner; or
cultivates, entices or induces children to online relationship
with one or more children for and on sexually explicit act or
in a manner that may offend a reasonable adult on the
computer resource; or facilitates abusing children online,
or records in any electronic form own abuse or that of
others pertaining to sexually explicit act with children is
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C.M.A(MD) Nos.460 & 1515 of 2024
liable to be punished. Therefore, even viewing child
pornography constitutes an offence.”
Having said so, we have to clarify that any addiction is bad and porn
addiction definitely so. It would affect the viewer in the long run. Since it
objectifies women and portrays them in a degrading manner, it cannot
be morally justified. But personal and community standards of morality
are one thing and breach of law is another. So long as the act of the
respondent has not fallen foul of law, the appellant cannot seek divorce
on this ground. Section 13(1)(i)(ia) is to the effect that a marriage can be
dissolved if the respondent has “treated the petitioner with cruelty”.
Oxford Advanced Learner's Dictionary defines “treat” as behaving in a
particular way towards somebody or something. In other words, the
cruel conduct emanating from the respondent should be directed
towards the petitioner. If the act in question concerns the respondent
alone and it is not directed towards the petitioner, the act by itself would
not constitute cruelty. The expression “treat” denotes intentional
conduct. Thus, the act of the respondent in merely watching porn
privately by itself may not constitute cruelty to the petitioner. It may
affect the psychological health of the viewing spouse. That by itself will
not amount to treating the other spouse cruelly. Something more is
required. If a porn watcher compels the other spouse to join him or her,
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C.M.A(MD) Nos.460 & 1515 of 2024
that would certainly constitute cruelty. If it is shown that on account of
this addiction, there is an adverse impact on the discharge of one's
conjugal obligations, then it could furnish an actionable ground.
13.The case of the appellant is that the respondent would
endlessly watch porn on her mobile phone. It is pertinent to note that
the appellant did not call for forensic examination of the respondent's
mobile phone. Any digital activity would leave behind a digital trail.
Even without subjecting the instrument or equipment to forensic
examination, it is possible to gather the details and particulars from the
service providers. We consciously have not dealt with issue of spousal
privacy in this context. This is because the appellant did not even put a
suggestion in this regard to the respondent while cross-examining her.
14.The other allegation is that the respondent would indulge in
masturbation. Calling upon a woman to respond to this averment itself
is a gross infringement of her sexual autonomy. If after contracting
marriage, a woman has sexual relationship outside marriage, it would
furnish ground for divorce. However, indulging in self-pleasure cannot
be a cause for dissolution of marriage. By no stretch of imagination, can
it be said to inflict cruelty on the husband. The mandate of statute is that
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C.M.A(MD) Nos.460 & 1515 of 2024
unless it is shown that the petitioner has been treated with cruelty, the
conduct of the respondent cannot attract Section 13(1)(i-a). When
masturbation among men is acknowledged to be universal,
masturbation by women cannot be stigmatised. While men cannot
engage in sexual intercourse immediately after indulging in
masturbation, that would not be the case with women. It has not been
established that the conjugal relationship between the spouses would
suffer if the wife has the habit of masturbation. The Hon'ble Supreme
Court in Rajive Ratori v. UOI [2024) SCC OnLine SC 3217], while
citing a NALSAR report dealing with the emotional and relational
challenges faced by PWDs, referred to the fact that their emotional
needs such as privacy and self-pleasure are often overlooked. When
privacy is a fundamental right, it includes within its scope and reach
spousal privacy too. The contours of spousal privacy would include
various aspects of a woman's sexual autonomy. So long as something
does not fall foul of law, the right to express oneself cannot be denied.
Self-pleasure is not a forbidden fruit; its indulgence shall not lead to a
precipitous fall from the Eden garden of marriage. After marriage, a
woman becomes a spouse but she continues to retain her individuality.
Her fundamental identity as an individual, as a woman, is not subsumed
by her spousal status.
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C.M.A(MD) Nos.460 & 1515 of 2024
15.The respondent in her testimony had denied all the allegations
made by the appellant. If the allegations made by the appellant were
true, it is improbable that they would have been together for close to 2
years. The appellant has not furnished any evidence to show that the
respondent failed to do household chores. The court below after a
careful appreciation of the entire evidence on record came to the
conclusion that the appellant had not proved his case. After a careful
re-appreciation of the evidence on record, we are unable to take a
contra view. We confirm the order passed by the court below. These
Civil Miscellaneous Appeals are dismissed. No costs. Consequently,
connected miscellaneous petition is closed.
(G.R.S., J.) (R.P., J.)
19.03.2025
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
SKM
To
The Judge, Family Court, Karur.
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C.M.A(MD) Nos.460 & 1515 of 2024
G.R.SWAMINATHAN, J.
AND
R.POORNIMA, J.
SKM
C.M.A(MD) Nos.460 & 1515 of 2024
19.03.2025
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