IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONBLE MR.JUSTICE P.D.DINAKARAN and THE HONBLE MR.JUSTICE P.P.S.JANARTHANA RAJA
C.M.A.No.1905 of 2002
P.Devaraj .. Appellant
V.Geetha .. Respondent
PRAYER: Appeal against the order dated 13.9.2000 made in
H.M.O.P.No.308 of 1995 on the file of the Family Court, Coimbatore.
For Appellant : Mr.K.Kalyanasundaram
For Respondent : Mr.A.S.Vijayaraghavan
JUDGMENT :(Delivered by P.D.DINAKARAN,J.)
As the dispute between the parties is very narrow, the parties were
directed to appear in person to sort our their differences as requested by
their respective counsel. Accordingly, both the parties appeared before this
Court on 14.07.2006. All st were initiated by their respective counsel to
sort out differences and to bring the parties together for amicable
settlement. But, unfortunately, learned counsel for both the parties could
not succeed in their efforts to bring the appellant/husband and the
respondent/wife together. Hence the matter stood adjourned today.
2. When the matter was taken up for hearing today (26.7.2006), at the
outset, this Court opined that the submissions may be made before some other
Bench as the efforts made by the learned counsel for both sides before this
Bench ended in vain. Howe the learned counsel appearing for both sides
expressed their view that there is no need to post this case before any other
Bench and requested us to dispose of the matter on merits. Hence, the matter
is heard and disposed of on merits as hereunder:-
3. Alleging cruelty and desertion against the respondent/wife, the
appellant-husband approached the Family Court, Coimbatore under Section 13 of
the Hindu Marriage Act (hereinafter referred to as the Act) by way of a
petition in H.M.O.P.No.308 of , praying for dissolution of their marriage
solemnized on 10.6.1988 by a decree of divorce. The Family Judge dismissed
the petition by an order dated 13.9.2000. Hence, the present appeal.
4.1. The facts of the case giving rise to the filing of the present
appeals are that marriage between the parties was solemnised on 10.6.1988.
After the marriage the appellant and the respondent lived at Coimbatore. The
respondent avoided the appel from consummating the marriage, however with
great difficulty the marriage was consummated. The respondent complained
abdominal pain and it was suspected that she might be suffering from cancer in
the uterus. It was alleged that the appellant was not informed about the
details of ailment and the material facts were suppressed by the respondent.
Without the knowledge of the appellant, the respondent consented for operation
and her uterus was removed on 31.10.1988. After the operation, the
respondent/ wife was not interested in the matrimonial life, and when the
appellant tried to have sexual intercourse with the respondent, the respondent
ill-treated the appellant and refused to sleep along with him. The
petitioner, thus, was put to physical and men tal agony in view of the
non-cooperative attitude of the respondent. The respondent also quarreled
with the appellant on one ground or the other. The respondent/wife deserted
the petitioner from 25.12.1989 and there was no cohabitation since then.
4.2. Based on the said allegations the appellant filed H.M.O.P.No.308
of 1995 praying for dissolution of their marriage by a decree of divorce.
4.3. The said petition was resisted by the respondent/wife by taking
the stand that the appellant and she had sexual intercourse, she also became
pregnant and when the appellant took the respondent to the Doctor, the Doctor
informed her that she sho undergo an operation and with the consent of the
appellant, the operation was performed and uterus was removed. After the
operation, when the respondent went to her marital house the appellant and his
mother subjected her to cruelty and drove her away f rom their house. It is
submitted that she is not impotent, she never deserted the appellant and she
did not ill-treat the appellant.
4.4. The trial Court, after considering the submissions of both sides
and the evidence adduced, came to the conclusion that (i) the respondent/wife
is not impotent; (ii) the respondent/wife never refused to have sexual
intercourse with the appellant she never treated the appellant with cruelty;
(iii) the respondent/wife never deserted the appellant, and refused to grant
the relief of divorce. Hence, the present appeal.
5. Mr.K.Kalyanasundaram, learned counsel for the appellant contends
(a) the respondent/wife never had any interest to have sexual intercourse, she
was non co-operative, the marriage was not consummated for considerable time
and she deserted appellant from 25.12.1989;
(b) the above said non-cooperative and rigid attitude of the respondent/wife
amounts to physical and mental cruelty; and
(c) the respondent/wife underwent surgery of removal of uterus without the
knowledge of the appellant/husband.
6. In opposition, Mr.A.S.Vijayarghavan, learned counsel for the
respondent made submissions supporting the impugned order for the very reasons
stated in it. In his argument, he reiterated the submissions that were made
before the trial Court.
7.1. Even though treating the spouse with cruelty is a ground for
divorce under Section 13(1)(i-a) of the Hindu Marriage Act, cruelty has not
been defined under the Act but in relation to matrimonial matters it is
contemplated as a conduct of such t which endangers the living of the
petitioner with the respondent. Cruelty consists of acts which are dangerous
to life, limb or health. Cruelty for the purpose of the Act means where one
spouse has so treated the other and manifested such feelings toward s her or
him as to have inflicted bodily injury, or to have caused reasonable
apprehension of bodily injury, suffering or to have injured health. Cruelty
may be physical or mental. Mental cruelty is the conduct of other spouse
which causes mental sufferi ng or fear to the matrimonial life of the other.
Cruelty, therefore, postulates a treatment of the petitioner with such
cruelty as to cause a reasonable apprehension in his or her mind that it would
be harmful or injurious for the petitioner to live wi th the other party.
Cruelty, however, has to be distinguished from the ordinary wear and tear of
family life. It cannot be decided on the basis of the sensitivity of the
petitioner and has to be adjudged on the basis of the course of conduct which
would, in general, be dangerous for a spouse to live with the other.
7.2. In the instant case, the trial court, after considering the
averments made in this regard and the evidence led in support of thereof,
found on facts that the appellant failed to prove the allegations of cruelty
attributed to the respondent, and same in our considered opinion, needs no
8.1. It is well settled that no decree of divorce could be granted on
the ground of desertion in the absence of proof. Desertion, for the purpose
of seeking divorce under the Act, means the intentional permanent forsaking
and abandonment of one se by the other without that others consent and
without reasonable cause. In other words it is a total repudiation of the
obligations of marriage. Desertion is not the withdrawal from a place but
from a state of things. Desertion, therefore, means withd rawing from the
matrimonial obligations i.e. not permitting or allowing and facilitating the
cohabitation between the parties.
8.2. The proof of desertion has to be considered by taking into
consideration the concept of marriage which in law legalises the sexual
relationship between man and woman in the society for the perpetuation of
race, permitting lawful indulgence in p on to prevent licentiousness and for
procreation of children. Desertion is not a single act complete in itself, it
is a continuous course of conduct to be determined under the facts and
circumstances of each case. If a spouse abandons the other in a sta te of
temporary passion, for example, anger or disgust without intending permanently
to cease cohabitation, it will not amount to desertion. It has always to be
kept in mind that the question of desertion is a matter of inference to be
drawn from the fa cts and circumstances of each case.
8.3. In the instant case, when the respondent/wife, after the
operation, went to her marital house, it is the appellant and her mother, who
subjected her to cruelty and sent her out. Moreover, the appellant/husband,
after the above dispute with the pondent/wife, married one Priyalakshmi and
has two children through her. It is also not disputed that on a report by the
respondent/wife, the police prosecuted the appellant and convicted him under
Section 494 of the Indian Penal Code and sentenced him and the same was
confirmed by the lower Appellate Court and now, an appeal is pending before
the High Court. Under such circumstances, the ground of desertion, the aid of
which is sought by the appellant for seeking divorce, also deserves no
9.1. It cannot be disputed that a woman without a uterus is quite fit
for sexual intercourse. Impotency is incapacity for sexual intercourse or
when coition is difficult or painful. The presence or absence of uterus is
quite immaterial to the ques whether a woman is impotent or not. Merely
because the uterus of a woman is removed, she could not be held to be impotent
and that could not be a ground to declare the marriage void, vide Samar Som v.
Sadhana Som, AIR 1975 Calcutta 413.
9.2. In the case on hand, the marriage was consummated, the
respondent/wife also became pregnant, and only to save her from the impending
danger of escalation of uterus cancer, she was operated and her uterus was
removed. Even though it is alleged he appellant that the removal of uterus
was done without his knowledge, the trial Court recorded that the appellant
during his cross-examination, admitted that the respondent was admitted in
Ramakrishna Hospital for the purpose of operation and the appel lant was in
the hospital and according to R.W.2, Dr.Tmt.Mrudubashini, who performed
surgery, consent was obtained from the appellant for operation, and these
facts substantially establish that the appellant was aware of the removal of
the uterus of the r espondent.
For the reasons aforesaid, we dismiss this appeal and affirm the order
of the Family Court. No costs. Considering the trauma and agony suffered by
the respondent/ wife, who appeared before us, and her request for maintenance
and return of ornament we make it clear that she is always at liberty to
approach the Court concerned by filing necessary petition for maintenance and
the same shall be considered on merits as and when filed.
To:The Family Court Coimbatore.