[Cites 8, Cited by 0]
Madras High Court
S.Gandhimathi vs M.Senthilkumar on 9 January, 2026
Author: P.Velmurugan
Bench: P.Velmurugan
C.M.A.(MD)No.521 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 29.10.2025
Pronounced on : 09.01.2026
CORAM:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
and
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
C.M.A.(MD)No.521 of 2021
and
CMP(MD)No.4595 of 2021
S.Gandhimathi ... Appellant / Respondent
Vs.
M.Senthilkumar ... Respondent / Petitioner
PRAYER: Civil Miscellaneous Appeal filed under Section 19 of the
Family Court Act, 1984, to set aside the fair and decreetal order dated
04.01.2021 passed in H.M.O.P.No.211 of 2017 on the file of the learned
Family Court, Tirunelveli.
For Appellant : Mr.C.Jeyaprakash
For Respondent : Mr.J.Vijayaraja
JUDGMENT
(Judgment of the Court was made by L.VICTORIA GOWRI, J.)
This Civil Miscellaneous Appeal filed under Section 19 of the
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Family Courts Act, 1984, to set aside the judgment and decree dated
04.01.2021 in H.M.O.P. No.211 of 2017 on the file of the learned Family
Court, Tirunelveli, whereby the marriage between the appellant and the
respondent solemnised on 08.09.2013 was dissolved under Section
13(1)(i-a) of the Hindu Marriage Act, 1955.
Prologue:
2. Matrimonial litigation often unfolds as a mosaic of grievances
and counter-grievances, with each spouse projecting themselves as the
aggrieved and the other as the wrongdoer. The Court, in such disputes,
is not required to adjudicate every domestic disagreement or emotional
hurt as if it were a tort, but to determine whether the statutory ground
pleaded in this case, “cruelty” under Section 13(1)(i-a) of the Hindu
Marriage Act, 1955, has been made out on the touchstone of
preponderance of probabilities.
3. The concept of “irretrievable breakdown of marriage” has been
recognised by the Hon’ble Supreme Court in exercise of its
extraordinary powers under Article 142 of the Constitution of India.
However, it is not, by itself, a statutory ground of divorce before this
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Court exercising ordinary appellate jurisdiction. Nevertheless, long
separation, repeated failure of reconciliation efforts and absence of any
realistic prospect of reunion are relevant circumstances while assessing
whether the continuance of a matrimonial bond has caused such
mental agony and emotional distance as to amount to cruelty.
4. The present Civil Miscellaneous Appeal is at the instance of the
wife, challenging the decree of divorce granted in favour of the husband
by the learned Family Court, Tirunelveli, in H.M.O.P. No.211 of 2017,
by judgment and decree dated 04.01.2021. The appellant contends that
the decree is founded upon assumptions, that mere separation has
been treated as a ground, and that the respondent/husband has failed
to prove his case of cruelty.
5. The respondent/husband, on the other hand, supports the
impugned judgment. He maintains that he has been subjected to
mental cruelty by reason of the conduct of the appellant/wife, that
there has been a long-standing separation, that several attempts at
reconciliation have failed, and that there is, in reality, a complete
breakdown of the marital relationship.
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6. In this backdrop, this Court is called upon to re-appreciate the
pleadings and evidence, to examine whether the learned Family Court
has correctly applied the principles governing “cruelty” and the scope of
divorce under Section 13(1)(i-a), and to determine whether the
impugned decree of divorce warrants interference in appeal.
Case of the husband / respondent: (petitioner before the
learned Family Court):
7. The respondent/husband, Senthilkumar, instituted H.M.O.P.
No.211 of 2017 on the file of the learned Family Court, Tirunelveli,
seeking dissolution of marriage under Section 13(1)(i-a) of the Hindu
Marriage Act, 1955, on the ground of cruelty allegedly committed by the
appellant/wife, Gandhimathi.
8. According to the husband, the marriage between him and the
appellant was solemnised on 08.09.2013 according to Hindu rites and
customs at Sri Arumuga Nayanar Sannidhi, within the precincts of Sri
Nellaiappar – Sri Gandhimathi Amman Temple, Tirunelveli Town, in the
presence of elders, relatives and friends. The husband hails from
Gudalur Village in Coimbatore District and the wife is from Tirunelveli
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District.
9. The husband has studied up to D.E.C.E and was residing with
his mother. The wife is an M.B.A. graduate. After the marriage, the
spouses commenced their marital life in the husband’s residence, where
his mother, aged about 65 years and stated to be in poor health, was
also residing.
10. Out of the wedlock, a female child, S. Lokitha, was born on
26.08.2014. The husband does not dispute that the child has all along
been residing with the appellant/wife and is in her custody. The
husband asserts that he took responsibility for all family expenses,
including household expenditure, medical expenses of the wife and
medical expenses of the minor child, and that he did his best to provide
for the family with his earnings.
11. The crux of his grievance is that the wife frequently quarrelled
with him from the early days of the marriage, insisting that he should
leave his aged mother and relocate to Chennai for employment, and that
she should live separately with him there. He alleges that she used
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abusive and inappropriate language towards him, neglected her
domestic responsibilities and failed to maintain the home properly.
12. The husband contends that he repeatedly explained that his
mother was aged, ailing and dependent on him, and therefore he could
not leave her alone and settle in Chennai. Yet, according to him, the
wife continued to pick quarrels on trivial matters, particularly on the
issue of leaving his mother and moving out. He asserts that even when
he attempted to advise the wife to take care of the child and the
household, she abused him in filthy language, asserted that she would
live as she pleased, and challenged him to “do whatever you can”. He
further alleges that she told him that if he questioned her conduct, she
would not live with him.
13. The husband further states that he informed the wife’s
parents about her behaviour and requested them to counsel her, but
they failed to take any effective steps. He asserts that this indifference
on the part of her parents emboldened the wife to persist in her
quarrelsome and hostile conduct, causing humiliation to him and to his
mother in the presence of relatives and neighbours.
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14. He alleges that the wife constantly expressed her
unwillingness to live with him at Coimbatore, created disturbances
when he was getting ready to go to work, suspected his movements,
interrogated him and behaved in a dominating manner as if to keep him
under her complete control. According to him, the wife did not receive
and respect relatives and friends who visited their house, but instead
spoke ill of him to them, thereby lowering his image and reputation
within the circle of family and friends.
15. The husband states that he tolerated such behaviour and
mental agony for some time in the interest of the welfare of the minor
child, but matters came to a hault on 05.05.2015. In the morning of
that day, the wife allegedly picked up a quarrel with him and, when his
mother tried to intervene and pacify her, the wife is said to have abused
his mother in vulgar language despite being aware of her ill-health.
16. The husband claims that this incident caused great mental
distress to both himself and his mother. He reiterates that his mother
was undergoing treatment at his expense and that the wife showed no
concern for her health or emotional well-being. Despite his requests and
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attempts to reason with her, the wife allegedly continued to insist that
the husband must hand over his entire income to her and that they
must shift to Chennai, leaving the mother behind. The husband asserts
that he was unable to accede to these demands.
17. On the same day, when he returned home from work in the
evening, he found the house locked and the wife and child missing. On
enquiry, his mother informed him that the wife had taken the child and
gone to her parental home at Tirunelveli without informing him. The
husband asserts that he was emotionally shattered by this
development. He claims that he contacted the wife over phone and
requested her to return to the matrimonial home, but she did not give
any proper reply or assurance.
18. It is further stated that the husband’s relatives attempted
mediation through a panchayat, but these efforts failed. During such
attempts, the wife is alleged to have stated that she did not like the
husband, that her parents had compelled her to marry him without her
consent, and that it was impossible for her to live with him.
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19. The husband contends that these statements clearly revealed
her unwillingness to resume cohabitation. He asserts that there was no
prospect of reconciliation and that the marital bond had been severed in
reality by reason of her conduct and her departure with the child. On
this factual foundation, the husband approached the learned Family
Court seeking dissolution of the marriage on the ground of cruelty
under Section 13(1)(i-a) of the Hindu Marriage Act, 1955.
Case of the wife / appellant: (Respondent before the learned
Family Court):
20. The appellant/wife filed a detailed counter statement before
the learned Family Court, stoutly denying the allegations levelled by the
husband and contending that the petition is not maintainable either in
law or on facts.
21. She states that at the time of marriage, she was given 10
sovereigns of gold jewellery, a silver and brass seer (seethana) set and
other household articles as seer varisai (stridhana/dowry) and asserts
that all these articles are still in the custody of the husband and his
family. According to her, suppressing these facts, the husband has
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instituted these divorce proceedings.
22. She further contends that this is, in fact, the husband’s
second marriage and that from the very inception of the marital
relationship, he was indifferent towards her and did not speak with
affection or concern. Nevertheless, she asserts that she acted as a
dutiful wife, performed all household responsibilities and obeyed the
husband and his family.
23. With respect to the Thalai Deepavali after marriage, she states
that her parents invited both the spouses to celebrate the festival. On
that occasion, the husband’s mother allegedly demanded travel
expenses and insisted that the wife’s father must purchase a gold ring
for the husband. Her father is said to have agreed to this.
24. The wife alleges that when they went to purchase clothes, the
husband insulted her father in the shop and told him to go away.
Deeply hurt, her father returned to his village without saying anything.
She further states that on the same day, the husband consumed
alcohol, quarrelled with her without any justifiable reason, refused to
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accompany her for Thalai Deepavali and demanded divorce.
25. The wife states that the husband’s mother told him that if he
went for the Thalai Deepavali, only then would the ring be given.
Thereafter, he was permitted to go, but according to the wife, she was
allowed to stay with her parents only for the day and was taken back to
Coimbatore that very night.
26. Subsequently, the husband’s mother underwent knee surgery
for joint pain. The wife asserts that she took care of her mother-in-law
“lovingly and with concern” during her treatment and recuperation.
When the wife later conceived, instead of expressing joy or providing
care, the husband and his mother allegedly ill-treated her both
physically and mentally. She claims that there was no emotional
support from the husband during her pregnancy.
27. The wife states that the husband’s mother, who had earlier
driven away his first wife, began treating her in the same manner, with
the apparent intention of expelling her also from the matrimonial home.
By picking unnecessary quarrels, the husband and his mother allegedly
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drove her out while she was pregnant, without giving her any money.
28. With the help of a friend, she contacted her parents, who then
came to Coimbatore and took her back to Tirunelveli. After some time,
she returned to the matrimonial home with her parents in an attempt at
reconciliation.
29. According to the wife, when they reached the husband’s
house, the husband’s mother refused even to open the door and abused
her parents in vulgar language. She allegedly demanded that the wife
must first remove and hand over the gold chain given at the time of
marriage before any discussion could take place. Having no option, the
wife removed and handed over the chain.
30. When the wife requested permission to take her clothes and
medical records from the house, she was not permitted to enter. Her
parents and she were made to wait outside. Eventually, since none
responded positively, they returned to Tirunelveli. From the fourth to
seventh month of pregnancy, the wife stayed at her parental home and
all medical expenses were borne by her parents.
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31. The wife states that several elders from her side attempted
mediation, but there was no positive or lasting response from the
husband’s family. Ultimately, only through the intervention of the
husband’s paternal aunt, she was able to return to Coimbatore again.
She further alleges that without informing her or her parents in
advance, the husband organised the Valaikaappu (bangle ceremony) for
the wife, but deliberately excluded her relatives from participation. After
the function, he is alleged to have instructed her father to come to the
railway station and take her back, despite her advanced stage of
pregnancy. Her parents, worried about her health, complied and
brought her to Tirunelveli. All delivery-related medical expenses were
borne by her parents.
32. The wife states that she underwent caesarean delivery and
gave birth to the female child. On being informed, the husband came to
the hospital on that day, saw the baby once and left. According to her,
he never visited again thereafter. She claims that when she attempted
to contact the husband over phone, he either avoided her calls or
quarrelled with her, repeatedly stating that he would send divorce
papers and asking her to sign them.
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33. Despite this, with a view to secure the future of the child, the
wife’s parents took her and the infant to the husband’s house after
about five months. The husband permitted them to stay and a naming
ceremony was conducted for the child. However, none of the wife’s
relatives were invited for the function. Soon thereafter, the husband
allegedly started quarrelling again and sent her and the child away. She
claims that he habitually used abusive and demeaning language,
repeatedly telling her to “get divorce and leave”.
34. On learning about the death of the husband’s father, the wife
and her parents went to Coimbatore to pay their respects. After the final
rites, there was a discussion before relatives and a temporary
reconciliation appeared to be arrived at. However, according to her,
neither the husband nor his mother had any real intention to accept
her or the child fully into the family fold.
35. She alleges that after this reconciliation, she and the child
were again subjected to ill-treatment, denial of proper food and neglect.
Under the influence and instigation of his mother, the husband
allegedly avoided living with her, failed to provide for her and neglected
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the needs of the child. Due to constant mental agony, financial
insecurity and lack of support, the wife states that she was compelled to
seek employment. She later came to know that the husband had sent
an e-mail to her employer from her own account, stating that she was
not willing to continue the job, thereby causing loss of employment.
36. According to her, whenever her parents approached the
husband seeking a permanent reconciliation, he refused to talk
properly, abused them and insisted that they take her away, making it
clear that he did not wish to live with her. She states that she then
returned to her parental home with the child, taking only the clothes
she was wearing. Since then, despite several attempts on her part and
by elders, the husband has not shown willingness to resume
cohabitation. The wife maintains that she is still ready and willing to
live with the husband and to resume matrimonial life for the welfare of
the minor child. She contends that the husband, having driven her out,
cannot now claim that the marriage has broken down and seek a decree
of divorce.
37. She further contends that the petition for divorce is a ruse to
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avoid his marital and parental responsibilities and to legalise his
abandonment of the wife and child. The wife, therefore, prayed before
the learned Family Court that H.M.O.P. No.211 of 2017 be dismissed
and that she be granted appropriate reliefs in respect of her seer varisai
and maintenance.
38. In sum and substance, the wife’s case is that she was the
victim of cruelty and neglect, that she was driven out while pregnant,
that she has consistently expressed willingness to cohabit, and that the
husband, being at fault, is not entitled to a decree of divorce. On the
basis of these rival pleadings, the learned Family Court proceeded to
frame issues and record evidence.
Gist of the trial court judgment:
39. Before the learned Family Court, on the side of the
respondent/husband, he examined himself as P.W.1 and marked
Exs.P1 to P4. On the side of the appellant/wife, she examined herself as
R.W.1 and produced Ex.R1 and Ex.R2.
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40. There was no dispute about the fact that the marriage
between the parties took place on 08.09.2013 and that a female child,
Lokitha, was born out of the wedlock.
41. The learned Family Court formulated the following issues for
consideration:
(i) Whether the petitioner/husband is entitled to a decree of
divorce on the ground of cruelty?
(ii) What other reliefs, if any, is the petitioner entitled to?
42. From Ex.R2, the learned Family Court noted that the wife had
filed M.C. No.20 of 2017 on the file of the same Court seeking
maintenance for herself and the minor child. The said maintenance
petition was dismissed insofar as the wife was concerned, on the ground
that she was employed and earning, but partly allowed insofar as the
minor child, directing the husband to pay Rs.4,000/- per month as
maintenance to the child.
43. It was also noticed that the wife had filed I.A. No.105 of 2018
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under Section 26 of the Protection of Women from Domestic Violence
Act, 2005, in the same H.M.O.P., seeking return of seer varisai / dowry
articles, and that the said application was pending.
44. The learned Family Court recorded that both the parties had
levelled allegations of ill-treatment and cruelty against each other but
that no independent witnesses had been examined on either side to
corroborate those allegations. It therefore proceeded to assess the
testimonies of P.W.1 and R.W.1 along with the admitted circumstances.
The Court took note that the parties had been living separately for more
than three years, at least from 2017 until the date of the decree, and
that all attempts at reconciliation in the interregnum had failed. The
learned Family Court, on appreciation of the husband’s evidence, noted
his version that the wife had insisted on a separate residence at
Chennai, resented his care for his aged mother, quarrelled on trivial
issues and ultimately left the matrimonial home with the child on
05.05.2015.
45. On the other hand, the Court recorded the wife’s version that
she was driven out, that she was willing to live with the husband and
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that all her steps, including the filing of maintenance and Domestic
Violence Act proceedings, were compelled by the husband’s neglect and
cruelty. The learned Family Court particularly considered the fact that,
though the wife asserted in her evidence that she was willing to resume
cohabitation, she had during the pendency of the H.M.O.P. filed M.C.
No.20 of 2017 for maintenance and I.A. No.105 of 2018 for return of
seer varisai articles.
46. Accepting the submissions of the husband’s counsel, the
Court held that if the wife had genuinely desired reunion, she might
have filed a petition for restitution of conjugal rights or, at any rate,
refrained from seeking return of all seer varisai articles while asserting
willingness to return to the matrimonial home. From the admitted long
separation, the pendency of M.C. No.20 of 2017 and I.A. No.105 of
2018, and the failure of all reconciliation efforts, the learned Family
Court concluded that there was no real possibility of the parties
resuming cohabitation and that the marital relationship had, in
substance, broken down.
47. Accordingly, under Issue No.(i), the learned Family Court held
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that the husband was entitled to a decree of divorce on the ground of
cruelty, taking note of both his allegations and the overall
circumstances, including irreconcilable separation.
48. On Issue No.(ii), noting the husband’s admission that the seer
varisai articles were in his possession, the learned Family Court
directed him to return the seer varisai articles mentioned in I.A. No.105
of 2018 to the wife within one month from the date of decree. Taking
into account the age and educational needs of the minor child, the
increased cost of living, and the husband’s earning capacity, the Court
enhanced the maintenance payable to minor Lokitha from Rs.4,000/-
per month (earlier ordered in M.C. No.20 of 2017) to Rs.7,500/- per
month.
49. Ultimately, H.M.O.P. No.211 of 2017 was allowed, dissolving
the marriage between the parties, directing return of seer varisai articles
and enhancing the child’s maintenance. Parties were directed to bear
their own costs.
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Grounds of appeal:
50. Aggrieved by the said judgment and decree, the wife has
preferred the present Civil Miscellaneous Appeal, assailing the findings
of the learned Family Court on several grounds, both factual and legal.
51. The appellant contends that the judgment and decree of the
learned Family Court are contrary to law, against the weight of evidence
and against the probabilities of the case. She asserts that the learned
Family Court failed to properly appreciate both oral and documentary
evidence and that it adopted an erroneous approach in drawing adverse
inferences against her. A major plank of challenge is that the learned
Family Court erroneously treated “irretrievable breakdown of marriage”
and long separation as if they were statutory grounds of divorce, in the
absence of any specific pleadings by the husband.The appellant
contends that the Court misdirected itself by undertaking an enquiry
into the wife’s “intention” to reunite, instead of insisting on strict proof
of cruelty on the part of the husband. It is her grievance that the
learned Family Court did not assign valid and cogent reasons for
allowing the husband’s petition and that its conclusions rest upon
conjectures and assumptions rather than evidence.
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52. The appellant further argues that mere long separation, in
and of itself, is not a ground recognised by the statute to dissolve a
marriage and that the Court erred in law by permitting the husband to
obtain a decree of divorce without clearly establishing cruelty. It is
contended that the learned Family Court failed to note that, according
to the appellant’s case, it was the husband who had driven out the wife
and minor child from the matrimonial home, and that a spouse who is
responsible for the separation cannot be permitted to take advantage of
his own wrong. The appellant also complains that relevant facts pleaded
and urged by her, including the history of alleged ill-treatment and
ouster, were not properly considered or appreciated by the learned Trial
Court. She relies on the principle that a party must succeed on the
strength of his own case and not on the weakness of the other side, and
contends that, in the present case, the husband has not discharged his
burden of establishing cruelty by acceptable evidence.
53. It is contended that the learned Family Court committed a
serious error in placing undue emphasis on the wife’s failure to file a
petition for restitution of conjugal rights and in treating her
maintenance and Domestic Violence Act proceedings as indicative of
unwillingness to cohabit. The appellant submits that these proceedings
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were only protective and ancillary in nature, necessitated by the
husband’s neglect, and that the Court’s approach in treating them as
grounds to grant divorce is contrary to law and equity. She also
contends that the learned Family Court has allowed the petition on
grounds not specifically pleaded by the husband, leading to material
irregularity in the exercise of jurisdiction. For all these reasons, the
appellant prays that the impugned judgment and decree be set aside
and the husband’s petition in H.M.O.P. No.211 of 2017 be dismissed.
Submissions:
54. The learned counsel for the appellant/wife reiterated the
grounds of appeal and submitted that the learned Family Court has
virtually granted a decree of divorce on the ground of irretrievable
breakdown of marriage, though such a ground is not available under
the Hindu Marriage Act, 1955, to a Civil Court. He contended that the
learned Trial Court has treated long separation and the pendency of
maintenance and Domestic Violence Act proceedings as if they were, by
themselves, sufficient grounds for granting divorce, which is legally
impermissible. The learned counsel submitted that the husband has not
established any specific instances of cruelty of such nature and gravity
as to justify dissolution of marriage, and that at the highest, his version
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discloses ordinary wear and tear of married life and mutual
incompatibility.
55. He further submitted that the Court’s reliance on the wife’s
failure to file a petition for restitution of conjugal rights is misconceived
and contrary to law, inasmuch as there is no legal compulsion that a
spouse must file a petition for restitution of conjugal rights in order to
demonstrate willingness to cohabit. The learned counsel argued that the
wife has at all times expressed willingness to resume cohabitation and
that it is the husband who has persistently avoided reconciliation and
driven her away. According to him, the husband is trying to take
advantage of his own wrong. It was further contended that the learned
Family Court’s reference to “irretrievable breakdown” without specific
pleadings and its treatment of that aspect as a determinant factor
vitiate the decree of divorce, which therefore calls for interference.
56. Per contra, learned counsel for the respondent/husband
supported the judgment of the learned Family Court and submitted that
the decree of divorce is not based solely on irretrievable breakdown, but
is founded upon the cumulative effect of proved cruelty and long,
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irreconcilable separation. He contended that the wife had, of her own
accord, left the matrimonial home on 05.05.2015 with the minor child
and that she has not taken any genuine or concrete steps to restore the
marriage thereafter. According to him, her plea of willingness to resume
cohabitation is only a facade, inconsistent with her actual conduct.
57. The learned counsel for the respondent submitted that the
institution of M.C. No.20 of 2017 and I.A. No.105 of 2018 seeking
maintenance and return of seer varisai, during the pendency of the
divorce petition, coupled with the admitted long separation and failed
mediation, justified the learned Family Court’s inference that the
marriage has, in substance, broken down. He further submitted that
matrimonial cruelty is to be tested on the basis of the impact of the
spouse’s conduct on the other, and that in the present case, the
persistent quarrels, abusive language, compelling the husband to leave
his aged mother, and leaving the matrimonial home with the child have
caused profound mental agony to the husband.
58. The learned counsel for the respondent contended that the
appreciation of evidence by the learned Family Court is neither perverse
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nor contrary to record and that this Court, sitting in appeal under
Section 19 of the Family Courts Act, 1984, ought not to substitute its
own view merely because another possible view may exist. On these
submissions, the respondent/husband prayed for dismissal of the
appeal.
59. Heard the learned counsels on either side and carefully
perused the materials available on record.
Points for determination:
60. In the light of the rival pleadings, evidence and submissions,
the following points arise for consideration in this appeal:
(i) Whether the findings of the learned Family Court that the
appellant/wife has treated the respondent/husband with cruelty
warranting dissolution of marriage under Section 13(1)(i-a) of the Hindu
Marriage Act, 1955, suffer from perversity, illegality or material
irregularity?
(ii) Whether the learned Family Court was justified in taking into
account the long separation between the parties and the wife’s conduct,
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including initiation of maintenance and Domestic Violence Act, 2005,
proceedings and non-filing of a petition for restitution of conjugal rights,
as relevant circumstances in assessing the feasibility of reunion?
(iii) Whether, on the totality of the material on record, any
interference is called for with the decree of divorce passed in H.M.O.P.
No.211 of 2017?
61. These points are inter-linked and will be considered together
to avoid repetition. Before adverting to the evidence in detail, it is
apposite to refer to certain settled principles governing cruelty in
matrimonial law and the limited scope of appellate interference in
matrimonial causes.
Analysis:
62. The jurisdiction of this Court under Section 19 of the Family
Courts Act, 1984, is appellate, but in matters arising from matrimonial
disputes, the Court is generally slow to interfere with findings of fact of
the learned Trial Court unless such findings are shown to be perverse,
based on no evidence, or in disregard of material evidence.
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63. The learned Family Court, being the Court of first instance,
has the benefit of observing the demeanour of the parties while they
depose and is best placed to assess their credibility. An Appellate Court
may reappreciate the evidence, but will ordinarily not displace a
possible and reasonable view merely because another view is also
possible.
64. Therefore, the question before this Court is not whether on a
fresh assessment this Court might have reached a different conclusion,
but whether the conclusion actually reached by the learned Family
Court is so unreasonable or unsupported by the material on record as
to warrant interference.
65. It is also to be borne in mind that in matrimonial matters,
strict rules of evidence cannot be applied with a pedantic approach, for
many incidents occur within the confines of the home and in the
privacy of the marital relationship, and seldom lend themselves to
independent corroboration.The standard to be applied is that of
preponderance of probabilities, and the overall pattern of conduct must
be seen, rather than isolated incidents viewed in isolation.
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66. The expression “cruelty” under Section 13(1)(i-a) of the Hindu
Marriage Act, 1955, is not defined in the statute, but has been
explained by judicial pronouncements to include both physical and
mental cruelty. Mental cruelty may consist of such conduct which
causes in the mind of the complaining spouse a reasonable
apprehension that it is not safe to continue the matrimonial
relationship, or which causes deep anguish, disappointment and
frustration such that the marriage becomes insupportable.
67. The Hon’ble Supreme Court, in various decisions, has held
that cruelty in matrimonial law must be assessed having regard to the
social status of the parties, their education, their way of life and the
overall circumstances, and that what may amount to cruelty in one case
may not necessarily do so in another. It is the cumulative effect of the
conduct that is to be considered, not each isolated fact in a vacuum.
68. Persistent quarrels, abusive language, humiliating treatment
of the spouse or his/her relatives, refusal to discharge basic marital
obligations, unilateral withdrawal from cohabitation without just cause,
and repeated false accusations may, in a given case, amount to mental
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cruelty. At the same time, ordinary wear and tear of married life, trivial
irritations and normal differences of opinion do not constitute cruelty.
The Court must distinguish between incompatibility or temperamental
differences and cruelty of such gravity as to warrant dissolution of
marriage. It is also well settled that long separation, though not a
statutory ground by itself, is a relevant factor to determine whether the
marriage has lost its real content and whether continuation of the legal
tie would only prolong mental agony.
69. In the case on hand, both the husband and the wife have
stepped into the witness box and have levelled serious allegations
against each other. No independent witnesses have been examined on
either side. In such a situation, the Court must carefully examine the
pleadings, the testimonies and the admitted or undisputed facts and
circumstances. The husband’s case, in essence, is that the wife
persistently quarrelled with him, insisted that he must leave his aged
mother and set up a separate home at Chennai, used abusive language,
created scenes in front of relatives and neighbours, and ultimately left
the matrimonial home on 05.05.2015 with the minor child, refusing to
return despite his attempts and those of his relatives to bring about a
reconciliation.
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70. The wife, in contrast, asserts that it was the husband and his
mother who ill-treated her, especially during pregnancy, that she was
driven out of the house, compelled to surrender her jewellery, that she
and her parents were insulted when they came for reconciliation, and
that all her attempts to maintain the marriage were thwarted by the
husband’s hostility.
71. The learned Family Court has not accepted either version in
toto. It has, however, drawn certain inferences from admitted or
established circumstances, namely,
(i) that the parties have been living separately at least since 2017;
(ii) that the wife has instituted M.C. No.20 of 2017 for
maintenance and I.A. No.105 of 2018 under the Domestic Violence Act,
2005, seeking return of seer varisai articles;
(iii) that her maintenance claim for herself was rejected on the
ground of her gainful employment, though maintenance was granted to
the minor child; and
(iv) that no petition for restitution of conjugal rights has been filed
by either party.
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72. It is true that non-filing of a petition for restitution of conjugal
rights cannot, by itself, lead to an inference of unwillingness to cohabit,
nor is there any legal obligation upon a spouse to file such a petition as
a pre-condition to seeking or resisting divorce. However, in the present
case, the learned Family Court has not treated the non-filing of
restitution proceedings as a standalone ground, it has taken it as one
circumstance in a chain of circumstances, including long separation,
failed mediation and the filing of M.C. No.20 of 2017 and I.A. No.105 of
2018.
73. The appellant/wife has claimed that she is willing to live with
the husband even now. But during the pendency of the divorce petition,
she has sought maintenance for herself and the child and has also
sought return of all seer varisai articles. While such claims are perfectly
legitimate in law, the learned Family Court has viewed them as
inconsistent with an unqualified and genuine desire to resume
matrimonial life.
74. The question for this Court is not whether this is the only
inference possible, but whether it is a reasonable inference that could
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be drawn on the facts. This Court finds that, in the context of prolonged
separation, unsuccessful mediation and continued adversarial litigation
between the parties, the inference drawn by the learned Family Court
cannot be said to be perverse. It is also to be noted that the wife herself,
in her pleadings, admits that she has been residing with her parents
along with the child for long periods and that her attempts at
reconciliation have not yielded any stable cohabitation. Her own case
reveals a picture of mutual distrust, repeated quarrels and involvement
of elders on both sides without any lasting resolution. Whatever be the
respective blame, it is clear that the marital relationship has not known
peace or harmony for a substantial period.
75. The husband’s evidence regarding the wife’s insistence on
setting up a separate residence away from his aged mother and the
quarrels on that account has been believed by the learned Family
Court. This Court does not find any material to hold that such
appreciation is wholly unreasonable or contrary to evidence. While the
wife has alleged that she was driven out while pregnant, the learned
Family Court has not found sufficient contemporaneous material or
independent corroboration to accept this allegation in its entirety. The
parties have not produced any prior complaints or notices which might
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have thrown light on the exact sequence of events.
76. In this factual situation, the learned Family Court has
essentially proceeded on the basis of admitted separation, the conduct
of the parties in instituting multiple proceedings against each other and
the failure of all reconciliation efforts. It has then examined whether, in
such a background, compelling the parties to continue in the legal bond
of marriage would serve any useful purpose or would itself amount to
perpetuation of mental cruelty.
77. Having regard to the long separation, already several years by
the time of the impugned decree and even longer by the time of hearing
of this appeal and the absence of any real, demonstrated effort from
either side to restore cohabitation, this Court finds that the Family
Court was justified in concluding that the marriage had lost its real
content. Thus, on a cumulative assessment of the evidence and
circumstances, this Court is unable to hold that the learned Family
Court’s finding of cruelty is vitiated by misreading of evidence or
perversity.
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78. The principal legal contention of the appellant is that the
learned Family Court has virtually granted divorce on the ground of
irretrievable breakdown of marriage, a ground not provided under the
Hindu Marriage Act, 1955. It is indeed correct that irretrievable
breakdown is not a statutory ground before this Court and that only the
Hon’ble Supreme Court, in exercise of its powers under Article 142 of
the Constitution, has, in appropriate cases, dissolved marriages on that
basis to do complete justice between the parties.
79. However, a reading of the impugned judgment reveals that
while the learned Family Court has used the expression “irretrievable
breakdown” in describing the state of the marriage, it has in substance
founded the decree on the ground of cruelty, aided by the fact of long
separation and failed mediation. Long separation is not, in itself, a
ground of divorce, but it is a relevant factor in assessing whether there
is any realistic possibility of reunion and whether the mental agony
occasioned by a dead marriage has crossed the line into cruelty.
80. In the present case, the parties have been living apart for
several years, attempts at reconciliation have not succeeded, they are
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engaged in multiple litigations against each other, and there is nothing
concrete on record to show that they are now in a position to rebuild
their relationship. In such circumstances, to insist that the husband
must indefinitely continue in a marriage which, in reality, exists only on
paper may itself result in mental cruelty. The law does not mandate that
one spouse must be condemned to a life of marital discord and
emotional desertion merely because the other spouse formally asserts a
willingness to continue.
81. Therefore, this Court is of the view that the learned Family
Court has not treated “irretrievable breakdown” as a substantive ground
but only as a descriptive label of the factual situation which, when
combined with the proved conduct and long separation, was held to
amount to cruelty. The submission of the appellant that the decree is
bad for invoking irretrievable breakdown as a ground is therefore not
acceptable. On the contrary, the learned Family Court has applied the
statutory ground of cruelty under Section 13(1)(i-a) and has merely
used the language of “breakdown” to explain the extent of mental
separation between the spouses.
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82. This Court, after independent reappreciation, finds that the
impugned conclusion is supported by the material on record and does
not warrant interference. Accordingly, the challenge on this score must
fail.
83. The appellant has contended that she was the one who was
driven out from the matrimonial home and that, therefore, the husband
should not be allowed to take advantage of his own wrong and seek
divorce on the plea of cruelty. The principle that a spouse cannot take
advantage of his or her own wrong is undoubtedly a salutary one, but
for its application, the foundational fact that the spouse seeking relief is
solely responsible for the separation or the wrong must be clearly
established.
84. In the present case, while the wife has alleged that she was
ousted and driven away, the husband has asserted that she left on her
own accord, taking the child with her, and refused to return in spite of
his and his relatives’ efforts. The learned Family Court has not found
sufficient material to conclude that the husband was exclusively
responsible for the separation or that he acted with such cruelty as to
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disentitle him from relief. On the contrary, it has accepted his version
that the wife voluntarily left the matrimonial home amidst quarrels and
that she has since not genuinely attempted to restore the relationship.
85. The parties have not produced contemporaneous records like
police complaints, legal notices or other documentary material to
substantiate the allegation that one or the other party drove out the
spouse. What remains is essentially their word against each other. In
such a situation, this Court would be slow to overturn the finding of the
learned Family Court, which has had the benefit of observing the
demeanor of the parties. This Court does not find any compelling reason
to hold that the husband’s conduct is such that he is disentitled from
seeking relief.
86. It must also be kept in mind that both spouses have levelled
allegations of ill-treatment and that the present case does not fall into
the category where all blame can be laid at the doorstep of one party
alone. Consequently, the plea that the husband is taking advantage of
his own wrong is not made out on the facts and evidence on record.
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87. Having regard to the totality of the circumstances, the nature
of allegations and counter-allegations, the prolonged separation, the
failure of mediation, the multiplicity of litigation and the absence of any
real prospect of reconciliation, this Court is of the considered view that
the learned Family Court was justified in concluding that the marriage
has, in substance, irretrievably broken down and that the continuance
of such a dead relationship would itself amount to mental cruelty.
88. The decree of divorce granted under Section 13(1)(i-a) of the
Hindu Marriage Act, 1955, is, therefore, supported by evidence and in
consonance with the principles laid down by judicial precedents relating
to mental cruelty. This Court finds no perversity, illegality or material
irregularity in the appreciation of evidence or in the application of law
by the learned Family Court that would warrant appellate interference.
The findings of the learned Family Court on the crucial issue of cruelty
are affirmed.
89. Insofar as the directions for return of seer varisai/dowry
articles are concerned, the same are beneficial to the appellant/wife and
have not been challenged on any independent ground of illegality or
lack of jurisdiction. The enhancement of maintenance for the minor
child from Rs.4,000/- to Rs.7,500/- per month has been made after
considering the cost of living, the age and educational needs of the child
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and the earning capacity of the husband, and does not suffer from any
infirmity. Accordingly, all three points for determination are answered
against the appellant and in favour of the respondent/husband.
90. In the result, this Court finds no merit in the Civil
Miscellaneous Appeal. The Civil Miscellaneous Appeal in C.M.A. (MD)
No.521 of 2021 is dismissed.
91. The judgment and decree dated 04.01.2021 passed in
H.M.O.P. No.211 of 2017 on the file of the learned Family Court,
Tirunelveli, dissolving the marriage solemnised between the appellant
and the respondent on 08.09.2013 under Section 13(1)(i-a) of the Hindu
Marriage Act, 1955, are confirmed. In the facts and circumstances of
the case, there shall be no order as to costs in this appeal.
Consequently, the connected Civil Miscellaneous Petition is closed.
[P.V.,J.] [L.V.G.,J.]
09.01.2026
NCC : Yes / No
Index : Yes / No
Internet : Yes
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Sml
To
The Family Court,
Tirunelveli.
Copy to
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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P.VELMURUGAN, J.,
AND
L.VICTORIA GOWRI, J.,
Sml
09.01.2026
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