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Sujan Christo vs Shamini on 28 March, 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.03.2018

Reserved on : .02.2018
Delivered on :28.03.2018

CORAM
THE HONOURABLE MRS.JUSTICE S.RAMATHILAGAM
C.M.A(MD)No.1161 of 2013
and C.M.P.(MD)No.2202 of 2018

Sujan Christo …Appellant/Petitioner
Vs.

Shamini … Respondent/Respondent

PRAYER: Civil Miscellaneous Appeal is filed under Section 55 of the Divorce
Act, 1860 against the fair and decreetal order dated 6.3.2013 passed in
I.D.O.P.No.111 of 2009 on the file of the District Judge, Kanyakumari at
Nagercoil.

!For Petitioner : Mr.K.C.Gurusamy
^For Respondent : Mrs.Shamini
Party-in-Person

:JUDGMENT

This Civil Miscellaneous Appeal is filed against the fair and decretal
order dated 06.03.2013 passed in I.D.O.P.No.111 of 2009 on the file of the
District Judge, Kanyakumari at Nagercoil.

2. The appellant/husband filed I.D.O.P.No.111 of 2009 under Sections
10(i)(vii) and (x) of the
Indian Divorce Act, 1869 to dissolve the marriage
between the petitioner and the respondent.

3. The averments mentioned in the divorce petition are as follows:
The marriage between the appellant and the respondent was solemnized
on 28.09.2005. According to the appellant, the respondent/wife is a
quarrelsome person and she was suspecting the petitioner whenever he talked
with his friends and relatives. She wanted to visit the petitioner’s office
often and on her arrival to the office, she created worst scenes and she made
troubles. It is averred that the petitioner/husband never had physical
relationship with the respondent/wife till date. Because of her attitude, the
bedroom became a battle field and in front of others, she pretends to be a
loving wife. So, the grievance of the petitioner is that he is not happy
about the married life with the respondent. Since the petitioner is the only
male issue in his family, he has to make impression that he is living happily
with the respondent/wife. The respondent wife also used to say that she had
love affair with one of her family friends. The attitude of the
respondent/wife was also informed to her father. On hearing the same, he said
that the respondent has childish nature and the petitioner has to adjust with
her. The other intolerable attitude of the respondent/wife is that she often
told that she will commit suicide. On one occasion, when both were travelling
in a Car, she opened the Car and tried to jump out of the Car. But that
attempt was prevented by the petitioner. He is always having apprehension
about the words of the respondent that she will commit suicide. The another
reason stated by the petitioner is that on 06.10.2008, the respondent
brutally attacked the petitioner’s sickly father, due to which, he sustained
scratches on his forehead. The respondent/wife was sent to a Psychiatrist for
consultation. The respondent was proved to be an unfit person to lead family
life and she never acted as a dutiful wife to the petitioner. Hence the
petitioner felt that there is no possibility for him to re-union with the
respondent/wife. He prayed for granting of divorce decree.

4. The averments in the counter statement are as follows:
The petitioner and the respondent were leading a very happy marital
life in the petitioner’s house. The respondent stoutly denied all the
accusations made by the petitioner, especially her unwillingness to have
physical relationship with husband. There cannot be pretension for all the
three years. According to her, the common and usual expectation of a newly
married wife, who likes to be always with the husband, was very much mistaken
by the petitioner. The same is stated as one of the reasons for seeking
divorce. The accusations made by the petitioner/husband are baseless and the
incidents are twisted and motivated only for the purpose of the petitioner to
obtain the relief in the petition. In fact, the respondent/wife has stated
that she loves her husband very much and the petitioner/husband only changed
a lot.

5.Before the trial court, on the side of the appellant, the appellant
was examined as P.W.1 and Dr.Ravichandar was examined as P.W.2 and Ex.P.1 to
Ex.P.7 were marked. On the side of the respondent, the respondent was
examined as R.W.1 and Ex.R.1 to Ex.R.31 were marked. Ex.X1 and Ex.X2 were
also marked.

6. The petitioner/husband has deposed before the court that the
respondent/wife was threatening him by saying that she will commit suicide.
The parents of the petitioner were ill-treated by the respondent/wife. On
the whole, he was suffering as if he was in the hell. He has come to the
verge of depression and he cannot tolerate anymore and if he continues his
life with the respondent, he will go to the extent of bringing his parents to
a shameful position.

7. During the cross examination, the petitioner has admitted that in
the year September 2005, the marriage engagement was celebrated in the
petitioner’s house. At that time, the respondent/ wife was also present and
he could not find anything wrong with the mentality of the respondent/wife.
Further his evidence is that ?ehDk; mtSk; xnu fy;Yhhpapy; goj;njhk;.mtSk;
cwtpdh; vd;gjhy; ehd; fy;Yhhpapy; ghh;j;J ngrpaJz;L. vq;fs; ,Uthpd;
bgw;nwhUk; tPLfSf;F brd;W tUthh;fs; vd;why; rhpjhd;. ,Uthpd; bgw;nwhUk;
jpUkzj;ij ngrp Koj;jhh;fs;. kDjhuh; vjph;kDjhuUf;F xU -bkapy; mDg;gpaJz;L.
mth; mDg;gpa -bkapYf;F gjpy; mDg;gpndd;. Ex.R1 is the email sent by the
petitioner to the respondent wishing her for X-mas.

8.Further, the petitioner deposed that during the marriage, some gold
gifts were given by both their parents to the petitioner and the respondent.
The petitioner was also given a Maruti Car by the respondent’s father. It is
also the admission of the petitioner that the parents of the respondent gave
a cash of Rs.2 lakhs and he had also received the same happily.

9.Contradictions in the evidence of the petitioner:
9i) Ex.R2 to Ex.R.30 are the photographs produced by the
respondent/wife, which were shown to the petitioner and the details of the
photographs regarding the place, occasion and the persons in the photographs
were all put to the petitioner. The petitioner accepted those photographs,
which clearly proves that some of the photographs were taken in the year
2006. Both the petition and the respondent were seen happily with their
family members. Ex.R2 and R.3 were taken in the year 2007 on the occasion of
the respondent’s birthday. Even in the year 2008, the petitioner and the
respondent were leading a happy life, which was proved by Ex.R.28. From the
above, it is made clear that both the petitioner and the respondent were
living a happy life and they together visited their relatives’ house and
picnic spots and also they went along with their parents.

9.ii) It is also his averment that from the very beginning, the
respondent/wife is not interested in sexual life. The petitioner deposed that
throughout 3 years of married life, unwillingness of the respondent for
sexual life was reported by the petitioner neither to his mother nor his
sister. He has preferred a petition even before the Family Welfare
Counselling that is marked as Ex.P.3 and there is no mention about the
respondent’s refusal to sexual life. But, no medical certificate has been
filed by the petitioner to prove that the respondent/wife is unfit for
marriage life.

9.iii) The petitioner has stated that the marriage has given him
a pain and to his family members. The reason is that the suspicious attitude
of the respondent. From the evidence of the petitioner, it is observed that
the respondent/wife used to enquire him during his office time at Trivandrum
whether he has taken food whether he has completed his work. Only out of care
and affection, she used to enquire with the petitioner about his work and
timings with regard to food. She never expected that this loving and caring
attitude of the petitioner will be mistaken by the petitioner and finding the
same as cause for filing this petition. During cross examination it is
suggested before the respondent that the respondent will make frequent calls
to the petitioner during his office time. But the same was denied by the
respondent before the trial court.

9.iv) In the petition-Ex.P.3, the petitioner has stated that the
respondent/wife was suspecting him whenever he talks with others even with
his family members. The respondent/wife always looks at him in a suspicious
way. Further, the petitioner has stated that even while singing in the choir,
the respondent/wife looked at him. The petitioner has deposed that he could
not identify that whether she looked out of love or suspicious manner.
Ex.R.30 is also the photograph both the petitioner and the respondent/wife
were singing in the choir.

9.v) It is his specific admission that 90% neuq;fspy; re;njhrkhf
kidtp miwia tpl;L btspna te;jhh; vd;why; rhpjhd;. miwia tpl;L btspna te;j
gpwF mth; re;njhrkhf ,Ug;gJ vdf;F bjhpa[k;. Regarding the allegation that the
respondent wife had love affair with one Peter and she was also pregnant and
hence, she was not happy with him, the petitioner has said that he has not
met any one as Peter in person and the said incident was revealed only by the
respondent.

10. On the other hand, the respondent has deposed before the
court that the respondent and the petitioner were studying in the same
College and both of their families are very close relatives and the
respondent’s father is the family Doctor of the petitioner/husband. Even
before the marriage, they exchanged greeting through e-mail and after a long
period of 2 + years and after discussing detail about the marriage, their
marriage was fixed and hence, the grievance of the petitioner that, she is
not even allowing the petitioner to touch her and the purpose of the marriage
was not consummated, is a false one.

11. It is the further evidence of the respondent/wife that from
the year 2005 to 2008, the respondent/wife was living in the petitioner’s
house happily. According to the respondent, the petitioner always said that
he has done very hard work in the office and he was not in a position for
sexual life. It is also the evidence of the respondent/wife that the
petitioner suffered a severe virus disease at the age of 15 and his spinal
card was affected. Even as on date he is wearing belt and the same was
admitted by the petitioner before the court and the petitioner was only
postponing the child birth and he has severe back pain and she also consented
for postponing the child birth and she never revealed the same to anyone. For
the evidence that for several occasion the petitioner has sleepless night,
for which, he has not taken any treatment.

12. It is also her admission that during her lifetime in the
petitioner’s house, she was attending all the works being a responsible wife
and a family member. At one occasion when the petitioner’s mother had fell
down, she immediately contacted her father, who is the Doctor, and he came to
the house with his Nursing Assistant. The respondent with the help of her
father and Nursing Assistant gave her the required treatment and made her
comfortable. It is also her evidence that she loves the family members very
much.

13. The respondent/wife submitted that even the suicide attempt,
while both of them were travelling in the Car, was made by her only out of
fun and not with any serious manner with an intension to commit suicide. At
that time, it was taken as a joyful occasion, but, today the same incident
was being mentioned by the petitioner as a serious one. Because, on that
occasion, both of them were proceeding to the petitioner’s sister’s house
function and they also returned very happily.

14. On 06.10.2008 she was questioned by her father in law not to
feed the birds and while she was proceeding to her room in the upstairs, her
father in law followed her very closely and he also took hold of her hands by
asking that ”eP vd;d bra;tha;?”. He behaved in a such a way only to
threaten her and hence, she had to relieve her hands from the clutches of the
petitioner’s father, but, the matter was twisted and informed to the
petitioner in a different way and the fact came to know to her only when the
petitioner asked her that ‘vd; mg;ghit moj;jhah?’ and immediately he called
her parents and she was suggested to go with her parents by saying that he
will be coming in the evening. But on the day, he never turned up.

15. But on 17.12.2008 she received a letter from the Family
Welfare Counselling Centre based on the applications given by the petitioner.
In the meanwhile, on 9.10.2008, both have consulted with a Psychiatrist and
the Doctor has also reported that there is no defect in them. It is also
suggested by the Doctor that due to some shock a mild depression might have
occurred. Ex.R.31 is the document filed by the respondent, which was given by
one Doctor Jayaharan Memorial Hospital, wherein it has been held as follows:
”She is fit to lead a normal married life. Her geneto urinery track is
normal both clinically ultra sonologically?.

This test was underwent by the respondent wife by her father’s request.

16. After analyzing the oral and documentary evidence, the trial court
has dismissed the divorce petition.

17. Against which, the appellant has filed this Civil Miscellaneous
Appeal on various grounds.

18. The learned counsel appearing for the appellant would mainly argue
that the few photographs that have been selected and filed by the
respondent/wife cannot prove the real life of the appellant and the
respondent. The further ground raised by the appellant is that the lower
court has failed to see that the respondent was giving trouble from the date
of marriage due to her suspicious nature and also the habit of the
respondent/wife, who often takes the ‘Thali’ and threatened him that she will
commit suicide and from the date of marriage and he was in very pathetic
situation with fear. According to the learned counsel for the petitioner, the
trial court has not considered the situations narrated by the petitioner.

19. The number of photographs taken on several occasions which covers
the period 2005 to 2008 shows that the petitioner and the respondent were
living a happy life. But the petitioner has stated that she has selected a
few photographs only for the purpose of proving the court that she is leading
a happy life with the petitioner, but her evidence is false.

20. Per contra, the respondent/wife, who appeared before this Court,
has stated that both families are relatives and both the petitioner and the
respondent are known to each other and they are also very much understanding
person. Hence, only out of love and right with the family members and the
petitioner, she behaved and lived with all affection, right and
responsibility, but, she is very much shocked these things are taken as a
cause for filing this petition. It is also the argument of the respondent
that she felt that she has been neglected for nothing in spite of her
affectionate and dutiful activities towards the petitioner and his family
members.

21. I have heard the learned counsel for the petitioner and the
respondent/wife, who appeared party-in-person.

22. From the perusal of the evidence of both the petitioner and the
respondent and also the arguments advanced by the learned counsel for the
petitioner and the respondent, who appeared party-in-person, it is seen that
both the petitioner and the respondent are very much known to each other even
during their College days and both families are also close relatives. Only
after discussing for 2 + year, their marriage was fixed. There
was also exchange of greetings between them even before the marriage. So
that, the character and behavior of the respondent must be known to the
petitioner very well. Hence, the evidence of the petitioner that she was
behaving in a different manner is not a fair one. Her affectionate attitude
and rightful behavior have been twisted for the purpose of filing this
petition by saying all her behaviors are horrible and the petitioner cannot
tolerate the same.

23. Both were suggested for consulting a Psychiatrist, who has given a
report that there may be a mental depression due to some shock and the same
will be cured in due course.

24. It is also observed that nothing has been elicited from the cross
examination of the respondent regarding her different attitude or her
threatening nature by frequently saying that she will commit suicide. This
sort of cross examination ” ehd; jw;bfhiy bra;Jbfhs;tjhf kpul;ondd; vd;Wk;
mij kDjhuh; vd; je;ijaplk; brhd;dhh; vd;Wk; mg;nghJ vd; je;ij 3 taJ FHe;ijia
elj;JtJnghy; vd;id elj;j ntz;Lbkd;W brhd;dhh; vd;why; rhpay;y”’, for which
the respondent has answered that rkhjhdg;gLj;Jk; nehf;fj;Jld; vd;id
FHe;ijnghy vd;W vd; je;ij Fwpg;gpl;L brhy;ypapUf;fpwhh;. Even the regular and
casual small quarrels between the young husband and the wife has been taken
as a major issue by the petitioner and the same is revealed by way of cross
examination that ”Fspj;J Koj;jt[ld; mtiu gj;jphpf;if ,jH;fis bfhLj;J gof;f
ntz;Lbkd;W brhy;ntd; vd;why; rhpay;y. kDjhuh; jhd; nrhh;t[w;W ,Ug;gjhft[k;
jd;dhy; gof;f Koatpy;iy vd;W brhd;dhy; ehd; mtUld; rz;il nghl;L gpur;rid
cz;Lgz;Zntd; vd;why; rhpay;y”.

25. On legal aspect, the petitioner/husband has filed this under
Section 10(1)(vii) and (x) of the Divorce Act, 1869, which is extracted
hereunder:

Section 10(1):- Any marriage solemnized, whether before or after the
commencement of the
Indian Divorce (Amendment) Act, 2001, may, on a petition
presented to the District Court either by the husband or the wife, be
dissolved on the ground that since the solemnization of the marriage, the
respondent

(vii)has wilfully refused to consummate the marriage and the marriage has not
therefore been consummated; or

(x) has treated the petitioner with such cruelty as to cause a reasonable
apprehension in the minds of the petitioner that it would be harmful or
injurious for the petitioner to live with the respondent.

26. Section 10(1)(vii) is concerned, regarding the refusal of the
respondent/wife for the sexual life, simply the petitioner has given a
evidence orally. But no document has been filed by the petitioner that from
the date of marriage till date, when the respondent stayed in the
petitioner’s house, they never had any sexual contact. Whereas Ex.P.31 proves
that she is a fit person for a family life. It is also observed that when the
respondent has filed a document that she is fit for family life, the
petitioner has not filed any document before the court that he is also a fit
person for the family life. The evidence of the petitioner does not appear to
be a true one.

27. It is his own admission that he was very happy with the petitioner
on those occasions, on which occasion the photographs were taken. The
photographs were all admitted by the petitioner. When this is the admission
of the petitioner himself, then the unhappy life and refusal to have physical
relationship are all the reasons that has been created only for the purpose
of filing the petition not on his own will and clear mind.

28. The evidence of the respondent is that the petitioner even at the
age of 15 was having a viral disease and his spinal card was also affected
and it is his admission that as on date, he is wearing belt. It is also her
evidence that she was directed that they should not have any child in the
near future. Further due to his work load and long travelling to the office,
he is not in a position to have any sexual life. Only as per his suggestion,
child birth was postponed and this fact is not known to the family members.

29. In the judgment in Raja @ Arokia jesuraj Vs. Mrs.V.Victoria, it is
stated that ”cruelty” has not been defined by the legislature. The relevant
portion is extracted hereunder:

”The legislature has not defined the word ‘cruelty’. The idea, the meaning
and the concept of cruelty changes from time to time, varies from place to
place and differs from individual to individual. It is settled law that what
constitutes cruelty dependends upon circumstances of each particular case and
it has to be judged on the totality of the circumstances, in this case, both
the appellant and the respondent mutually allege cruelty against each other?

30. Next, Section 10(1)(x) is to be dealt with. The incidents narrated
by the petitioner are that the respondent/wife is suspecting his friendly
behavior with his friends and family members, she often picked quarrel for
flimsy things and she repeatedly threatened by saying that she will commit
suicide. These are all the behavior of the respondent, which the petitioner
depicts as cruelty. Whether the abovesaid behaviors of the respondent amount
to cruelty, which forced the petitioner to file a petition for the relief of
divorce? Regarding cruelty, no clear evidence has been placed by the
petitioner before the trial court. If it is the attitude of the respondent
repeatedly, the petitioner would have taken any guidance from his family
members or the well wishers of the respondent/wife. But he has not taken any
steps.

31. If really he had suffered because of the cruel attitude of the
respondent, he would not have kept quite for all these years. He would have
revealed the same atleast to his close friends. But his evidence is that he
has not revealed anything to his family members or any person. The incidents
that he revealed during his evidence are not proved the nature of cruelty.
Being very close relative and known persons this sort of respondent’s
behavior cannot be taken as one of cruel nature and the petitioner cannot
sought for such a relief. On the side of the petitioner regarding the
aspect that the respondent had committed adultery, there is no iota of
evidence. Hence, on the legal aspect, the case of the appellant is not
sustainable.

32. Further, no independent witness was examined on the side of the
petitioner regarding the mental health of the respondent/ wife. But on the
other hand, the respondent in her evidence as well as during the argument in
person has submitted that she was all along a lovable, good, dutiful and
affectionate wife. Only out of love and affection, she behaved with the
petitioner and she never imagined that all these natural character is being
understood by the petitioner and presented before the court for claiming the
relief of divorce. Things were misinterpreted and twisted so as to favour his
claim of divorce for which the respondent argued that she is not prepared for
that.

33. As stated by the respondent, there was no such serious things. Her
submissions shows her care, love and possessiveness towards the petitioner.
There are only trivial quarrels that would usually occur between the newly
married people. The petitioner is one of a relative person and both the
petitioner and the respondent are known to each other for a very long time.
These are proved factors, due to which, she has moved with the petitioner
with such attachment, love and possessiveness.

34. The argument of the petitioner is that only in front of the family
members the respondent behaved like a good person but with the petitioner she
was very harsh and cruel. On perusal of the photographs, which are more in
numbers taken on various occasions and various periods, show that both the
petitioner and the respondent were very happy. When a person, who is unhappy
, cannot act like a very happy person for a very long time.

35. The petitioner who admits the fact that he knows the petitioner
before the marriage and both families are also relatives cannot make such a
evidence before the court that as though he married a woman of a unknown
family or a new person. The respondent has also argued that there was no such
occasion for the petitioner to make such a false allegation against her.

36. She would submit that the petitioner/ husband is a loving person
and he was very much affectionate with the respondent throughout her married
life. Now only under the pressure of the family members, he has filed this
petition.

37. It is her further argument that in spite of all her good qualities,
the very few incidents that have been very much mistaken by the petitioner
and the said incidents are taken to the level of a mountain. Based on which,
the petitioner sought for divorce. The respondent further argued that after
the petitioner sent the respondent to her parent’s house, he never turned up
and only letter was sent from the Family Welfare Counselling. This shows his
mentality that he never even gave an opportunity to the respondent for giving
any explanation.

38. If these are all the factors that the petitioner consider as
cruelty, the same ought to have been informed to any one of the elderly
members of the family or any one of the well wishers and they could be very
much discussed by face to face by the petitioner and the respondent. Only
then, a decision can be arrived, these type of behaviors can be altered and
the respondent can live with the petitioner happily.

39. It is the argument of the respondent that even during the
mediation, she never had given an opportunity to talk with the petitioner or
to ask pardon for her deeds, which caused inconvenience to the
petitioner.Further, the respondent has argued that after sending the
respondent to her parent’s house, the respondent’s mother died and the
respondent’s father was also ill. Even on those very worst situations, the
petitioner did not make a visit to the respondent’s father’s house or never
asked anything about the respondent’s responsibility in taking care of the
father and also regarding the death of her mother. She alone managed those
worst situations and she further depressed due to the filing of divorce
application.

40. The respondent further states that now she has lost her parent’s
support and she was all along expecting and longing for the petitioner to
come and take her to his matrimonial home. But, she was very much
disappointed. She had nowhere to go and none of them was inclined to take her
back. she was stubbornly prevented from entering into the matrimonial house
also. Hence, she had to sought for the assistance of the police on the
earlier occasion, when she was under total despair what she can do to regain
her marital life. Even as on date, she is expecting a positive result from
the petitioner. She is also ready to correct herself from the things that the
petitioner considered as cruelty and intolerable, which hurdled them to live
a happy life.

41. Further, the evidence on the side of the petitioner based on Ex.X.1
and X.2 which shows that the respondent is not permanently affected by the
schizophrenic disease. It is also observed from the evidence of the
petitioner and the respondent that the petitioner was affected by viral
disease and even as on date, he is wearing belt as his spinal card was
affected. But there is no grievance by the respondent for his ailment.

42. Upon hearing the submissions and on careful scrutiny of the
records, I am of the view that suspecting behavior, repeated suicidal
threatening, refusal for sexual life, quarrelsome nature are all the only
reasons stated for seeking relief. The respondent wife submitted that she is
waiting with a hope that the petitioner will take her back to her matrimonial
house.

43. Based on the above facts and circumstances of the case, the
petitioner is not entitled for the relief sought for by him and the
respondent is entitled for continuing the matrimonial life and the order of
the trial court, does not require any interference. The petitioner is
directed to live with the respondent.

44. In the result, this Civil Miscellaneous Appeal is dismissed. No
costs. Consequently, M.P.(MD)No.2202 of 2018 is also dismissed.

To,

1.The District Judge, Kanyakumari at Nagercoil.

2.The Record Keeper, V.R.Section,Madurai Bench of Madras High Court, Madurai.

.

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