M. Ramani vs R. Natarajan

R. Subbiah, J.—This Appeal arises out of an order (05-11-2008) passed by the trial Court/Judge, Family Court, Coimbatore, in H.M.O.R.

No. 470 of 2005, whereby petition filed by the respondent herein (Husband) for divorce u/s 13(1)(ia) of the Hindu Marriage Act was allowed.

Case of respondent, in brief, is as follows:

(a) Appellant is the husband and Respondent is the wife. According to the respondent, the marriage between himself and respondent was

solemnised on 05-03-1984 at Erode. Respondent''s mother is the sister of appellant''s father. Respondent protested the marriage between him and

respondent because they are blood relatives; but he was compelled to marry the appellant by her parents and relatives. On 16-12-1984, appellant

delivered twin male children in ARRCEE Hospital, Erode. The first boy died on the same day after his birth and the other boy was found to be

retarded and handicapped and he has no proper blood circulation in the left side of his head, which has resulted in non-movement of his left hand.

Because of consanguineous marriage, the younger boy was born as a handicap. In such a situation, appellant never cared her son''s health

condition and she neglected her own son. So, the child has been taken care of by respondent and his parents. The child at his tender age needed

the attention of mother, but she always avoided him, which caused much worry to the respondent. The ill-treatment of the child by its own mother

amounts to cruelty.

(b) Apart from that, appellant refused to have conjugal relationship with him for the past ten years, which amounts to mental cruelty. Respondent is

employed in Railways. Since appellant totally neglected their son, he put his son Karthic in a Rehabilitation Centre for the Handicapped, namely,

STAR St. Anne''s Rehabilitation Centre for the Handicapped at Singanallur, Coimbatore. Though the said School is situated nearby their area,

appellant never visited that School, but respondent is visiting the school regularly and showering his love and affection on his son. Appellant not

only neglected her son but also her husband.

(c) Even though respondent had made available in the home the required grocery and other provisions, appellant, on account of laziness, did not

prepare food properly. Apart from that, it is the habit of appellant to sell away the grains, grocery and other provisions available in the house,

without the knowledge of respondent and to use the money to go to cinema. When respondent came to know this and enquired the source of

money, she only told that by way of selling groceries and other provisions, she got money. In spite of several warnings given by respondent,

appellant did not change her attitude. Appellant is in the habit of telling lies frequently for silly things.

(d) On 16-04-2005, appellant wanted to go to Railway Hospital, Palghat for taking treatment for her back pain and believing her version,

respondent gave sufficient money though treatment is free of cost. But she proceeded to Erode, her parents'' house, with heavy luggages.

Respondent came to know this from his friends and immediately he checked the provisions kept at his house and found that she had taken away

many things, such as rice, dhal, oil, rava, etc. Thereafter, he found out that this was not the first occasion for selling these items. In spite of these

things, respondent was living with her with a hope that she would realise her responsibilities; but she did not change her activities.

(e) On 08-06-2005, Appellant, attempted to eliminate her husband respondent by poisoning the Rasam and immediately he vomited after

consumption of food and fearing that respondent take up the issue seriously. appellant poured out the entire quantity of Rasam on the ground

outside the house. Appellant failed to perform her duties towards her husband as a dutiful wife. On 09-07-2005, at about 10.00 p.m., father and

brother of appellant visited the respondent''s house and threatened respondent that he will have to face the serious consequences for the actions

towards appellant. The mental, physical and legal cruelty caused by the appellant has created a reasonable apprehension in the mind of respondent

that his personal safety would be endangered and it will be harmful and unsafe to live with the appellant any longer. Under such circumstances,

respondent filed a petition for divorce dissolving the marriage which took place on 05-03-1984.

Resisting the said case, appellant filed a counter admitting the marriage between them and they lived as husband and wife and denied all the

averments made in the petition. The marriage between her and the respondent is not unusual and it is customary to marry the maternal uncle''s

daughter in all the castes. During the seventh month of her pregnancy, respondent kicked her with his leg on her stomach, which resulted in the

birth of mentally retarded and handicapped child. She admitted the birth of twin children and one boy died; but she denied that she has not

bothered about her son''s health condition and she neglected him. There is no ill-treatment of the child by her. On the contrary, she was very

affectionate towards her son and he was also affectionate towards his mother. The allegations with regard to selling groceries by the appellant and

threatening made by her father are utter false.

Respondent has illegal contact with a daughter of one Muthukrishnan and she is a divorcee. When she questioned, respondent ill-treated her

which resulted in all the defamatory remarks made against her in the petition. Under such circumstances, she prayed for dismissal of the petition.

Respondent filed a reply to the counter-statement inter alia stating that he has no illegal contact with a daughter of his colleague Muthukrishnan,

who is his cousin brother. The alleged divorcee is of the age of his son Karthick and he treats her as his daughter. It is only an imaginary story of

the appellant.

In order to prove the case, the respondent examined herself as P.W. 1 besides examining four witnesses as P.Ws. 2 to 5 and marked 48

documents as Exs. P-1 to P-48 and on the side of appellant, neither witness was examined nor document was marked. Finding that appellant has

caused mental cruelty to respondent, on a perusal of entire evidence, both oral and documentary, the trial Court, granted divorce in favour of

respondent. Feeling aggrieved, the present appeal has been filed.

Heard the learned counsel for the parties and perused the materials available on record.

Though several allegations made were by respondent against appellant on the ground of cruelty, the Court below had granted divorce mainly on

the following allegations that they were proved;

(i) On 09-07-2005 at 10.00 p.m. appellant''s father and brother visited the house and threatened the respondent to face dire consequences;

(ii) respondent used to steal the grocery items from her house and take it to her parents'' house for sale and to spend the amount for seeing cinemas

and other entertainments;

(iii) appellant attempted to eliminate the respondent by poisoning Rasam; and

(iv) appellant neglected her mentally retarded and handicapped son Karthick.

With regard to the averment made by respondent that he was threatened with appellant''s father and brother on 09-07-2005, it is the submission

of appellant that as R.W. 1, she had denied the suggestion that on 09-07-2005, her father and brother threatened her husband. Moreover,

appellant''s father is none other than the maternal uncle of respondent. It is the further contention of appellant that if at all they have threatened the

respondent with dire consequences endangering his life, respondent would have definitely made a police complaint or he would have definitely

informed the same to the elders of both sides; but he did not examine anybody to sustain his allegation.

But we find that from the evidence on record that respondent had examined his colleague, by name, Sankar as P.W. 2, who had categorically

stated in his evidence that the respondent was staying in the Southern Railway Union Office for 15-20 days due to threat by his father-in-law and

brother-in-law during July 2005 and the relevant portion of his evidence reads as under:

(Vernacular matter omitted......Ed.)

Even in P.W.2''s cross-examination, his statement made in the chief examination was not assailed by appellant. Under such circumstances, we

see no reason to discard the evidence of P.W. 2 and, as such, we do not find any infirmity in the finding arrived at by the trial Court, relying upon

the evidence of P.W. 2 that the respondent was threatened by the family members of the appellant.

It is the case of the respondent that very often the appellant used to steal the groceries from his house and take it to her parents'' house and

sometimes, she used to sell the groceries and grains available in his house to her neighbours and to spend the sale price by seeing cinemas in

theaters with her friends and other entertainments. In this regard, the respondent, while adducing evidence, had narrated the incidents in support of

his allegation, as under:

(Vernacular matter omitted......Ed.)

To corroborate his evidence, respondent has also examined his colleague Annadurai as P.W. 3, who deposed that:

The Trial Court, by relying upon the evidence of P.W. 3 answered the issue in affirmative; but we are of the opinion that the evidence of P.W.

3 is self-interested since he is very close to P.W. 1. Therefore, the Court below ought not to have relied upon the evidence of P.W. 3 to answer

this issue in favour of P.W. 1. Moreover, we are of the opinion that taking the groceries from her own house cannot be construed as ""mental

cruelty"" to the respondent. Hence, we are of the opinion that the said allegation cannot be taken as one of the grounds for granting divorce under

the ground of mental cruelty.

The other allegation made by the appellant that on 08-06-2005, appellant attempted to eliminate the respondent by serving Rasam mixed with

poison. After consumption of food with Rasam, immediately respondent vomited. When he wanted to inform about this to his mother, appellant

poured the entire quantity of Rasam on the ground. In this regard, learned counsel for respondent has examined his brother as P.W. 5 to

corroborate the said evidence. But we are of the opinion that P.W. 5, being brother of respondent, he has to be construed as a self-interested

witness. In the absence of any other independent witness to corroborate the said allegation, the same cannot be taken as one of the grounds for

granting divorce.

However, we find from the evidence of PW. 1 and other records that respondent and his son were totally neglected by appellant and that all

along the son has been only with the respondent, who is taking care of his son. It is the respondent, who admitted him in a Rehabilitation School,

Singanallur. In fact, in her evidence, appellant has not denied the case of respondent that her son is under the care and custody of the respondent.

Therefore, we find from the evidence that the respondent and his son were totally neglected by the appellant, which would fall within the definition

of ""mental cruelty"".

Above all, we find that appellant had made a specific allegation in the counter to the divorce petition that the respondent is having illegal

intimacy with the daughter of one Muthukrishnan. When she made the allegation as against the respondent, she ought to have proved the same; but

she has not taken any efforts to prove the said allegation. On the other hand, respondent had examined the said Muthukrishnan, the father of

alleged divorcee, as P.W. ''4 who had categorically stated in his evidence that the respondent''s son Karthik and his daughter are in the same age

and since he had pointed out the mistakes and advised her, appellant levelled false allegations against his daughter. The relevant portion reads as

follows:

(Vernacular matter omitted:.......Ed.)

Therefore, we are of the opinion that when the appellant had chosen to make a serious allegation in counter, she should have proved the same,

but she failed to do so and hence, we are of the opinion that making such bald allegation in the counter and later failed to prove the same would

suffice to come to the conclusion that appellant is causing mental cruelty to respondent by her conduct. In this regard, a reference could be placed

in the judgment reported in Nemai Kumar Ghosh Vs. Sm. Mita Ghosh, , wherein it has been held as follows:

On a conspectus of all these decisions cited hereinbefore, it is now well settled that if any imputations against the character of any spouse is

alleged either by the wife or by the husband without any foundation and the same is based on mere suspicion, even in such cases such baseless

allegations of illicit relationship amount to mental cruelty and it will be a valid ground for passing a decree of divorce under the provisions of Section

13(ia) of the Hindu Marriage Act. We have already held hereinbefore on a consideration of the evidence on record that the respondent wife, since

after her marriage with the appellant, became suspicious about his character and used to doubt that the appellant was in illicit connection with his

own sister-in-law (elder brother''s wife). This has caused serious mental pain and agony to the appellant inasmuch as it has been stated by the

appellant and also pleaded in his petition that he held his sister-in-law in high esteem like his mother and it was under her care and affection that he

was brought up and it was she and his elder brother who arranged his marriage with the respondent. In such circumstances, we are constrained to

hold, considering the social status of the appellant who is now working as an officer, i.e. Branch Manager of the United Commercial Bank, that this

behaviour on the part of the respondent amounted to mental cruelty and it gives sufficient reasons for the appellant to think that it would not be safe

for him to live with the respondent. Furthermore, it appears that the respondent after their separation since Sept. 1977, not only has no mind to

patch up the differences and to return to the matrimonial home for the simple reason that she has not come up before this Court to contest the

appeal even though this Court directed the appellant to serve notice of the appeal by registered post and file affidavit-of-service. Affidavit-of-

service has been filed by the appellant stating that the Court''s order has been complied with. But in spite of such service of notice, the respondent

did not think it fit to contest the appeal. This bespeaks the mind of the respondent that she is not willing to go back to the matrimonial home even if

this action becomes unsuccessful. In these circumstances, we are constrained to hold that this is a fit case where for ends of justice the application

for divorce should be allowed. We are fortified by our above findings with the most pertinent observations of the Supreme Court made in the case

of Smt. Saroj Rani Vs. Sudarshan Kumar Chadha, where their Lordships have held, ""Furthermore we reach this conclusion without any mental

compunction because it is evident that for whatever be the reasons this marriage has broken down and the parties can no longer live together as

husband and wife; if such is the situation it is better to close the chapter.

In Smt. Vimla Ladkani Vs. Dr. Chandra Prakash Ladkani, it has been held as follows:

Apart from what has been said above, there is another material on record which also goes to show that the case of cruelty has been established.

Smt. Vimla. appellant, admitted in Para 10 that her relations with Doctor Saheb, i.e. the respondent, are seriously un cordial for the last 7 or 8

years. She also admitted in Para 22 that it was correct that on 26-4-1991, she, had accused her of demand of dowry and breach of trust and filed

a report in Mahila Thana, Padav. It was also correct that on that report, a case was registered against both of them. The Police had gone to arrest.

This accusation has not been established. Not only this, the appellant also accused the respondent of immoral life when she made allegations in

written statement as well in this regard as mentioned in the narration of facts above. Not only this, she also stated on oath in this regard that the

petitioner/respondent used to roam about with girls. In Para 31 of her statement, she stated that when written statement was filed, her husband did

not roam about with girls, and hence it was not mentioned in the written statement, but she has made a complaint with her mother. She stated that

she did not make any complaint to the police and has not lodged any report. Thus, all these accusations appear to be incorrect and such allegations

are made which have no foundation. They do constitute cruelty. Making false allegations in open Court about the character of the husband and the

family members so as to injure the reputation of the husband amounts to cruelty.

The principles laid down in the above judgments are squarely applicable to the facts of this case. In the instant case also, appellant had introduced

the allegation assassinating the character of her husband by stating that he had an illegal intimacy with the daughter of his colleague, which she has

failed to establish. Therefore, we are of the opinion that appellant had caused mental cruelty to respondent by way of making such false allegations

in the counter.

Further, at this stage, it would be appropriate to rely upon the decision rendered by the Hon''ble Apex Court in Samar Ghosh Vs. Jaya Ghosh,

wherein the relevant paragraph, which consists some instances of human behaviour which may be relevant in dealing with the cases of ""mental

cruelty"" is extracted hereunder:

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 dictum laid down in the above judgment, it is clear that sustained unjustifiable conduct and behaviour of one spouse actually affecting

physical and mental health of the other spouse could be one of the valid grounds for granting decree of divorce. In the instant case, we find that

respondent and the son were totally neglected by appellant and she has not chosen to take care of her mentally retarded son and she has also not

fulfilled her marital obligations. Moreover, she went to the extent of making accusation against her husband assassinating his character, which

injured the reputation of respondent. In these circumstances, we do not find any compelling circumstances to make any interference in the judgment

and decree of the trial Court and the appeal is liable to be dismissed.

Respondent shall pay permanent alimony of Rs. 3,00,000/- to the appellant within three months from the date of receipt of a copy of the

judgment. On failure to pay the amount within the stipulated time of three months, respondent shall pay interest at the rate of 7.5%- per annum on

the said amount. Resultantly, the Civil Miscellaneous Appeal fails and is dismissed. Consequently, M.P. No. 1 of 2009 is closed. However, there

will be no order as to costs.