V. Saravankumar vs M. Parameshwari

P. Devadass, J.—Since the Family Court, Madurai, refused divorce, the husband is before us with this appeal. The appellant/husband wants

to bid farewell to his wife permanently, since, according to him, she has caused him cruelty and also deserted him. Thus, he has structured his petition u/s 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955. The charge against his wife is that she kept herself away from his company and stayed in her mother's house and she has also treated him with cruelty. She denied these allegations. According to her, it is because of him she and her daughter are living in her parents house.

In his mission to get disruption of the marital tie between himself and herself, the appellant deposed himself as P.W. 1 before the learned Family

Court Judge. His wife as RW 1 stoutly refuted those allegations. He had catalogued certain incidents as act of cruelty, which has been not accepted by the Family Court Judge.

The learned counsel for the appellant/husband contended that the evidence of PW 1 demonstrates that the wife/respondent has continuously ill-

treated her husband, and from December, 2005 she has also deserted him. The learned counsel further contended that the respondent took him for a jolly ride. She consented for mutual divorce, she received Rs. 1,00,000/-, a petition was also filed, but, before the Court she has withdrawn her

consent. According to the learned counsel for the appellant, this would also be a kind of cruelty.

On the other hand, the learned counsel for the respondent/wife contended that the acts of cruelty as alleged in the petition remain

unsubstantiated. He further contended that the appellant obtained respondent's signature in a petition practicing fraud on her and on coming to know that it is a petition for divorce by mutual consent, she had protested to it.

We have given our anxious consideration to the rival submissions, carefully perused the evidence and the materials on record and the impugned

judgment of the Family Court, Madurai.

Admittedly, on 27.08.2004, in Madurai, the appellant married the respondent, according to Hindu rites and custom. They were blessed with a

daughter. She is Dharani. But, not with a happy married life. He alleges cruelty and desertion on her part. She denies it.

No divorce for mere asking. The effect of divorce decree upon a woman is disastrous as she has to undergo many social stigma. But, its effect

will be more on their innocent child. Grounds for divorce have been prescribed in the statute and the Courts cannot travel beyond that. The grounds alleged must be proved with necessary proof.

Now, in this case, divorce has been sought for by the husband on the ground of cruelty and desertion. Cruelty need not be physical. It may be

mental also. The cruelty complained of must be of such a nature that it is quite intolerable, unbearable for the spouse to lead a peaceful married life with the other spouse. Mere wear and tear, skirmishes and regular fight between the spouses in day-to-day family life shall not take the character of cruelty as contemplated in Section 13(1)(i-a) of the Hindu Marriage Act.

When we read the evidence of PW 1, it transpires that to drive away his wife from his house, he is making a mountain out of a mole. There is no

specific and concrete instances of cruelty. They appears to be mere wear and tear in routine family life. Her evidence shows that glamouring for more dowry he torched her and drove her away to her parents house. It is pertinent to note that he had already divorced a lady and married the

respondent second time.

When the marriage failed, there is no point in taking the unwilling horse to drink water. When they mutually consent to separate themselves

permanently, there is no point in compelling the spouses to carry on the failed marriage. This is the idea behind inserting Section 13(B) in the Hindu

Marriage Act providing for divorce by mutual consent.

On filing a petition for divorce by mutual consent grant of divorce is not automatic. The Act itself provides some "waiting period" also called

cooling period"" before divorce by mutual consent is granted so that the spouses can revise their hasty decisions. It may be due to the future of

their children or future of their life. Before signing the judgment, it is also the duty of the Court to ensure that the consent has not been obtained by any undue influence. Thus, it is not the law that once the wife has signed the petition for divorce by mutual consent she cannot go back.

In this case, the respondent stated that fraudulently her signature has been obtained in a petition for divorce by mutual consent. On coming to

know the truth, she has refused her consent. Her husband is unable to countenance this. He alleged that he had paid her Rs. 1,00,000/- to get divorce from her. At the most, the amount has gone to the benefit of his wife and daughter for their living expenses.

Now considering the evidence adduced in this case, we are convinced that the grounds for divorce alleged in the petition are not established.

Thus, the Family Court has rightly refused him divorce. In the light of the above, this appeal fails and it is dismissed. The judgment of the Family

Court, Madurai, is confirmed. No costs.