Kirusula vs S. Edmond St. Jacques

Abdul Hadi, J.—This Civil Miscellaneous Appeal by the wife is against the order dated 18.5.1994 in M.O.P. No. 102 of 1993 on the file of the Family Court, Pondicherry, granting dissolution of marriage between the appellant wife and the respondent-husband that took place on 31.10.1988, on the ground of cruelty by the wife against the husband. The said M.O.P. was filed by the husband. Out of the said marriage two children were born, one on 9.4.1990 and another in March, 1993. There is also no dispute that the husband is deaf and the husband''s mother is blind. Several forms of cruelties were alleged in the abovesaid husband''s petition. Some forms of the cruelties, about which alone we are concerned in the light of the arguments advanced before us, are as follows:-

(i) On 24.1.1991, the wife started quarrelling with the husband and demanded arranging a separate house to the husband''s mother, fox which the husband refused to yield since his mother was aged about 75 years without eye sight. However, later the husband arranged a rented house and shifted his mother to that house in the month of May, 1991.

(ii) Despite the husband''s disapproval, the wife underwent abortion and when the husband''s mother questioned this, the wife beat the husband''s mother.

(iii) In the month of April, 1991, the wife gave food poison in the food to the husband and his mother.

(iv) In the month of May, 1993, when the husband asked why the wife went to Cuddalore with somebody, the wife replied that he should not question about her activities and that he would not be her husband and so saying removed her thali and gave it to him.

(v) On 23.6.1993, the wife came in a ambassador car along with her brother and three goondas to the husband''s house and assaulted him and caused injuries on his left leg. At that time there was no electricity. Immediately the husband lodged a complaint to the police against the wife and her brother and three goondas. Then the husband was given treatment in a hospital on the requisition of police. This incident was also noticed by one Nagammal (P. W.2).

No doubt, in the counter filed by the wife, the abovesaid allegations have been denied.

The Court below has decreed the M.O.P. on the following reasoning, which touch upon only some of the abovesaid forms of cruelty alleged and extracted above. The said reasoning could be gathered from the following observations in the impugned order;-

"To show that he lived in a separate house and fixed a house for his mother...the petitioner has produced the lease deed...under Ex.P.5 (dated 6.5.1991).... Further the petitioner has examined the attestor of this document (P.W.5) to prove the execution of the lease deed. The respondent has denied the document and contended that it was prepared for the purpose of this case. If it is so, she ought to have taken steps to examine the person to whom the lease was executed by the petitioner to show that no such residence was fixed by the petitioner.... On 23.6.93 the respondent came to his house along with her brother and some other person and has beaten him and due to that, he has sustained bleeding injures and reported the matter to the police. The petitioner has relied mainly upon his complaint to show that the respondent has gone to the extent of beating him.... To prove his case that he has lodged a complaint against the respondent and her brother he has produced the copy of the G.D. entry and marked it as Ex.P.4. A clear examination of this document goes to show that the petitioner has complained against the respondent and her brother expressed his willingness to settle the matter with the religious heads. The petitioner has also added that this incident was witnessed by his mother (P.W.4) and one Nagammal (P.W.2)...it is clear that the petitioner has proved that he was subjected to ill-treatment by the respondent."

Thus, the Court below rests its decision virtually only on holding that two forms of cruelties are proved, viz., that the husband had to settle his blind mother in a separate house in view of such unfair insistence by the wife and that the wife and his brother have beaten the husband, causing injury and leading to police complaint.

Both the rival Counsel took us to several portions of evidence let in. Learned Counsel for the appellant mainly points out that the Court below has erred in having found that the above referred to forms of cruelty have been proved. Of the two, she also points out that with reference to the former one, there is condonation by the husband since even though initially the mother had to be settled in a different house other than the matrimonial home, subsequently the couple and the husband''s mother were living together and the couple also were living happily and the abovesaid second child was born to them during that time. Regarding this contention, she also relies on the decision in Saikumari v. Mohanasundaram (1995-1-L.W.201). Regarding the latter one, the said learned Counsel submits that if at all there is evidence that the wife''s brother beat the husband, that by itself would not prove that there was cruelty on the part of the wife.

On the other hand, learned Counsel for the respondent points out that going through the different parts of relevant evidence relating to different forms of cruelties, it is clear that the cruelty alleged is proved. Then, with reference to the above referred to condonation theory spoken by learned Counsel for the appellant, he relies on the decision in Rita Vs. Brh Kishore Gandhi, to contend that there can be no condonation at all in the present case. In this connection he also relies on the decision in Dr. N.G. Dastane Vs. Mrs. S. Dastane, .

We have considered the rival submissions. After going through the entire evidence, the following features clearly establish that the wife is guilty of cruelty and, except referring to these facts, nothing further need be said for confirming the order of the Court below: Those features are as follows:- Firstly we find no cross-examination against the following deposition given by P.W.1, the husband:-

"The respondent got conceived for the second time and asked my permission to get it aborted. But I refused to give consent and in spite of my refusal she got it aborted. When the same was questioned by (my) mother she has beaten my mother."

(emphasis supplied)

The important point to be noted here is that the husband has deposed that the wife has beaten the husband''s mother. As against this deposition, there is no cross-examination at all. Learned Counsel for the appellant could not point out any cross-examination on this aspect. Wife beating the husband''s mother, who is blind, is indeed a grave thing and can be taken as cruelty meted out to the husband in the above context.

Secondly, with reference to the following deposition given by P.W.1 also, there is no cross-examinations:

"The next day when I enquired about her behavior she has stated that she did not like to live with me and has removed the thali and gave it to me. I sent a telegram to her brother and he came to Pondicherry. I revealed the entire fact to her brother, but he did not enquire the respondent but he threatened me with dire consequences if anything happens to the respondent."

(emphasis supplied)

The wife removing the thali after saying that she did not like the husband and giving it back to the husband is also a grave form of cruelty meted out against the husband.

Thirdly, on one other aspect regarding another form of cruelty also, there is no cross-examination of P.W.1''s deposition, which is as follows:-

"I have written a letter to the respondent stating about her behavior and conduct on 23.6.93. Her brother came along with three gondas to my house with the respondent, at the time there was no current. When I opened the door they have entered into my house and beaten me. I sustained bleeding injuries in my hand, leg and nose.... I sent to the police station along with my mother and reported the matter to the police. They sent me to the hospital. Police have enquired the matter and dropped the same with an advice. Ex.P.4 is the report...dated 28.6.1993."

(emphasis supplied)

Regarding this deposition, the main thing to be noted is that there is no specific cross-examination that the husband was not beaten on the above referred to occasion. In other words, though there is suggestion in the cross-examination that goondas have not accompanied the wife''s brother and that the wife did not accompany her brother, there is no suggestion that the wife''s brother did not beat the husband, which resulted in bleeding injury. No doubt, there is suggestion that the husband was under the influence of alcohol then and the husband beat the wife''s brother. However, the complaint made to the police by the husband is not denied. There is also no cross examination against the deposition of P.W.4, the mother that husband was beaten by the wife''s brother. Further the version given by RW.1, the wife itself in relation to the abovesaid incident is as follows:-

"We went to the police station, alone with my brother, his wife, my children and my husband. The police officer has enquired the matter and advised the petitioner to lead a happy married life."

(emphasis supplied)

Further, Ex.P.4, the report to the police also shows that the complaint was that the wife''s brother beat the husband and caused abrasions. It is also mentioned there under the column, ''how the complaint was disposed of thus:-

Here again, it is clear that the wife''s brother beat the husband and caused the injury. No doubt, learned counsel for the appellant argues that even if the wife''s brother has beaten the husband and caused injury, that by itself will not prove that the wife is guilty of cruelty. But, in the light of other features in the case and in the light of the fact that there was no protest by the wife against, her brother beating the husband and causing injury, it could be taken that this occurrence also is one form of cruelty meted out by the wife against the husband.

In the light of the abovesaid features, there is no necessity for us to go into the other features of the case in relation to other forms of cruelty, particularly, the form of cruelty said to be manifested in the husband being forced to settle his blind mother in a separate house other than matrimonial home. Therefore, there is also no necessity to go into the question of the theory relating to condonation. But, one thing we incidentally went to add is that in the light of the observations in Dr. N.G. Dastane Vs. Mrs. S. Dastane, and Rita Vs. Brh Kishore Gandhi, we do not think that we could accept the contention put forward by learned Counsel for the appellant. There is also no necessity to go into the question of wife giving food poison. All said and done, there is absolutely no reason to interfere with the decree of divorce given by the Court below on the footing that the wife is guilty of cruelty. Accordingly the appeal is dismissed. No costs.