Jesu Antony Ezhil Arasu vs S.Babitha Salma

J.Nisha Banu, J

This Civil Miscellaneous Appeal has been filed against the order dated 12.06.2019 passed in IDOP.No.124 of 2018 by the learned Additional District & Sessions Judge (Fast Track Court), Kaniyakumari District, at Nagercoil.

The crux of the case is as follows:

2.The respondent herein is the wife of the appellant filed IDOP No. 124 of 2018 for divorce stating that their marriage was solemnized on 14.07.2004 as per their Christian rites and customs and according to her, her parents gave 20 sovereign of gold jewels to the appellant and 80 sovereign of gold jewels to herself along with cash of Rs.6 lakhs and one Maruthi Car and household articles worth of Rs.50,000/- were given as dowry to the appellant. According to her, after the marriage, they were living together in the matrimonial home at Azhagappapuram and thereafter they shifted to Ambattur, Chennai. According to the respondent/wife, the appellant being not satisfied with the dowry given by the respondent parents at the time of the marriage, the appellant and his family members further demanded dowry for the purpose of purchase a house and to start a clinic. The respondent/wife was harassed by the appellant continuously and she was stopped from meeting her family members. The appellant came to the house with intoxication mode and assaulted the respondent in a brutal manner. The respondent became pregnant and the appellant and his family members insisted the respondent to abort the child. According to the respondent, the appellant who was working as a Railway Medical Officer used to humiliate her in filthy language in front of the staff and patients. According to her, since the appellant misbehaved with a lady staff from Collectorate who came to inspect the hospital she filed a police complaint in Crime No.407 of 2016 against the appellant under the Women Harassment Act. The respondent narrated many other incidents as she also stated on 05.10.2017, the appellant attempted to kill her by attacking brutally but she was rescued by the housemaid and thereafter, the respondent was admitted in Sundaram hospital at Puthoor and she lodged a complaint against the appellant before Thiruvarambu Police Station as she was facing cruelty and life threat at the hands of the appellant. Thereafter, she filed IDOP No.124 of 2018 before the learned Additional District and Sessions Judge, Kanniyakumar at Nagercoil for divorce.

3.The appellant herein has filed a counter in the above IDOP denying the allegation of dowry before the Court below. According to appellant, the respondent wanted to settle down in her parents house right from the marriage and he denied the allegations by the respondent herein. He also stated that the respondent/wife is a hysteria patient and she used to shout frequently without any reason. However, the appellant is willing to join with the respondent.

4.Before the Court below, the respondent/wife herself was examined as PW1 and Exs.P1 to P8 were marked on the side of the appellant/husband, the appellant himself and two others were examined as RW1 to RW3 and Exs.R1 to R13 were marked.

5.It appears that the appellant did not come forward to argue the matter even after several opportunities were given to him and thereafter considering the available materials and relied upon the judgment of the Hon'ble Supreme Court in the case of Samar Ghosh vs. Jaya Ghosh reported in 2007 (4) SCC 511 held that the respondent has proved the factum of cruelty and on that ground, the learned Judge has granted the decree of divorce.

6.According to the appellant, the above CMA has been filed by the appellant stating that the Court below has not at all discussed about the allegations and proof of physical and mental cruelty from the materials available on record. Aggrieved by the said order, the appellant who is the husband filed an appeal. He would further state that the Court below has failed to note that on the basis of the pleadings and oral and documentary evidences, the ground of mental cruelty is not made out and therefore, IDOP is liable to be dismissed. He would also state that the Court below ought not to have come to the conclusion based on the FIR lodged by the respondent. It is further stated that the Court below has not at all taken note of the willingness of the appellant to join with his wife/respondent.

Only on assumption, the Court below has held that cruelty is made out.

Thus, he prayed for setting aside the impugned order.

7.The learned counsel for the respondent/ wife would state that the Court below after giving opportunity to the appellant many times and as the appellant did not appear before the Court. Considering the entire evidence and considering per Clause (vi) of the Judgment of the Hon'ble Apex Court in the case of Samar Ghosh vs. Jaya Ghosh reported in 2007 (4) SCC 511, held that the factum of cruelty is proved and therefore, granted decree of divorce which does not require interference of this Court.

8.Heard the learned counsel for the appellant as well as the respondent and perused the materials available on record.

While defining as to what is 'mental cruelty', the Hon'ble Apex Court has stated that the feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. In this regard, it is useful to refer the judgment of the Apex Court reported in (2007) 4 SCC 511 in the case of Samar Gosh vs. Jaya Gosh as under:

"74. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.

From the above decision, it is clear that the cruelty to one person may not be a cruelty to other and cruelty differs from person to person. For deciding the issue of cruelty, the place of living, the conduct of the persons and their social life have to be taken into consideration. The matrimonial offences are concerned, it cannot be proved beyond reasonable doubt and it can be decided only on preponderance of probability of evidence, but the degree of probability depends on the subject matter.

Now, let us analyse the issue involved in this case. In this case, both the appellant/husband and the respondent/wife are Doctors. The appellant was working in Railway Department as Railway Medical Officer. Initially, they lived in the matrimonial home along with the parents of the appellant/husband at Kanyakumari and then, they lived at Chennai and thereafter, at Trichy. The respondent / wife filed the petition for divorce only on the ground of cruelty. She alleged various incidents of physical and mental cruelty at the hands of the appellant/husband.

They are:

(a) The appellant/husband demanded additional dowry immediately after shifting of the house to Ambattoor, Chennai for purchasing a house and to start a clinic and harassed the respondent/wife by all means.

(b) The appellant not even allowed the respondent to meet any one including her family members and parents.

(c) The appellant is a drug addict and he behaved in a violent manner.

(d) The appellant used to come to the house in an inebriated mood and assault the respondent in a brutal manner, which caused the respondent to have sleepless nights and starvation.

(e) The appellant insisted the respondent to abort the fetus without assigning any reason.

(f) On the refusal of the respondent, the appellant kicked the respondent's abdomen by his leg, which led to the hospitalization and there was a threatening of abortion till the delivery of child on 03.08.2006.

(g) The appellant used to humiliate by using filthy language and assault her in front of the patients and staff.

(h) The appellant pledged all the jewels of the respondent for his own immoral and illegal means.

(i) The appellant misbehaved with a lady staff from Collectorate, for which a case in Crime No.407 of 2016 registered.

(j) While working at Trichy, the appellant attacked a staff by name Ravi, for which a protest was made by the staff of the hospital.

(k) On 05.10.2017, the appellant attacked the respondent with a boori stick, but she was rescued by a servant maid viz., Mrs.Suguna and she was hospitalized at Sundaram Hospital, Puthoor and thereafter, the respondent lodged a complaint in Crime No.714 of 2017 and the appellant was arrested.

(l) The life of the respondent has become miserable and she is facing the apprehension of life threat and there is no possibility of living with the appellant.

According to the appellant/husband, there was no incidents occurred as alleged by the respondent/wife and they were living happily and even now he is ready to live with the respondent/wife and produced photographs to show that they had a happy married life.

According to the respondent/wife, the photos produced by the appellant/husband are not related to recent years, she was ill-treated by appellant/husband and that she tolerated the same from the inception till the date of lodging of complaint dated 04.10.2017, considering the future of their daughter.

The appellant took two different stands in this case. On the one hand, he described the respondent/wife as a hysteria patient and psycho. On the other hand, he raised allegations only against his father-in-law, which are not substantiated by any material and not an iota of allegation against the respondent/wife. At the same time, he maintained to say that he is ready to live with the respondent/wife in his counter affidavit as well as in his evidence.

In this case, the appellant admitted in his evidence that there was a protest against him in the hospital alleging that he assaulted a staff in the hospital. The appellant further admitted that he did not purchase any house in the name of her wife or daughter, though he purchased several houses in his name. He further admitted that there was no ill-treatment by the respondent and they lived happily. More over, admitted in his cross examination that the respondent/wife has informed that due to kick by appellant/husband on her abdomen, threatened abortion caused.

According to the respondent/wife, on 05.10.2017 the appellant/husband attacked her with boori stick and attempted to kill her for not getting money demanded by him from her parents. But, according to the appellant, on 05.10.2017, on the ill-advice of the father-in-law, the respondent/wife attacked her with boori stick and lodged a false complaint against him. As rightly held by the Court below, it is a mysterious one, when the appellant himself claims that the respondent is a good wife and he is also a good husband, there is no need for the respondent to lodge a false complaint as against the appellant. The appellant and the respondent made allegations against each other. The submission of the appellant that on the ill-advice of her father, the respondent suddenly changed her character is very unbelievable. The totality of the above factors is not in favour of the appellant/husband. On the other hand, it is in favour of the respondent/wife. As rightly held by the Court below, the present case is fitting with the clause (vi) mentioned in the decision in Samar Ghosh case (cited supra).

More over, in this case, this Court made an attempt to refer the matter to the mediation for settlement, but the respondent/wife refused for any mediation. Thereafter, this Court directed both the parties to appear before this Court on 05.03.2021. Accordingly, both the parties appeared on 05.03.2021. However, no settlement could be arrived. It is needless to say that there are two thinks to live peacefully in all walks of life. They are "do it" or "leave it". Love cannot be created by compulsion. It should be by inclination.

This Court does not find any valid reason to interfere with the finding of the Court below. Hence, this Court is inclined to affirm the decision of the Court below.

In the result, this Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.