Salome vs Dr.Prince D.Immanuel on 6 April, 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 06.04.2017

Reserved on : 14.03.2017

Delivered on : 06.04.2017

CORAM

THE HONOURABLE MS.JUSTICE V.M.VELUMANI

C.M.A.(MD)Nos.238 of 2012 and 239 of 2012

C.M.A.(MD)No.238 of 2012:

Salome, W/o.Prince D.Immanuel .. Appellant

Vs.

Dr.Prince D.Immanuel .. Respondent

Prayer:- Civil Miscellaneous Appeal filed under Section 55 of Indian Divorce
Act, 1869, to set aside the Judgment and Decree, dated 19.11.2011, passed in
I.D.O.P.No.8 of 2007, by the learned Principal District Judge, Thoothukudi.

C.M.A.(MD)No.239 of 2012:

Dr.Salome Devadson, W/o.Prince D.Immanuel .. Appellant

Vs.

Dr.I.Prince Devadson .. Respondent

Prayer: Civil Miscellaneous Appeal Petition filed under Section 55 of Indian
Divorce Act, 1869, to set aside the Judgment and Decree, dated 19.11.2011,
passed in I.D.O.P.No.42 of 2007, by the learned Principal District Judge,
Thoothukudi.

!For Appellant : Mr.G.Prabhu Rajadurai
(in both the C.M.As.) for Mr.D.Rajkumar

^For Respondent : Mr.M.Vallinayagam
(in both the C.M.As.) Senior Counsel
for Mr.K.Samidurai

:COMMON JUDGMENT

These Civil Miscellaneous Appeals have been filed by the appellant to
set aside the Judgment and Decree, dated 19.11.2011, passed in I.D.O.P.Nos.8
and 42 of 2007, by the learned Principal District Judge, Thoothukudi.

2. Since the issues involved in both the Civil Miscellaneous Appeals
are interlinked, they are heard together and disposed of by this common
judgment.

3.The appellant is the wife and the respondent is the husband. The
marriage between the appellant and the respondent was solemnized on
19.06.2003 at St.John Baptist Church, Kadatchapuram, Thoothukudi District,
according to Christian Customs and Rites. The appellant is a Doctor and the
appellant’s parents are also Doctors. The respondent is working as a
Veterinary Doctor and subsequently, obtained Doctorate Degree in the Field of
Meat Research. At the time of marriage, the respondent was working as a
Scientist at National Research Centre, Hyderabad, Andhra Pradesh. At that
time, the appellant was working as Doctor in Leprosy Mission Hospital (TLM)
at Kothara, Maharashtra, on 5 years bond. According to appellant, the
respondent treated her in suspicious manner regarding her fidelity. He was
not behaving like an educated person, but, like a downtrodden uneducated man.
At the time of marriage, the respondent promised the appellant that he would
allow her to do her Post Graduate studies. Subsequently, he refused to do
so.

4.The respondent used to ring up the appellant while assisting the
Surgeon in the Operation Theatre and when she did not answer call in the
mobile he would question her and harass her by asking cheap questions and
mentally harassed the appellant. When they were staying at Hyderabad and
when the appellant gave water to small boy, who used to deliver dry cleaned
clothes, the respondent shouted at the appellant in the presence of his
parents. On 22.05.2005, he sent an Email to the father of the appellant
accusing the appellant having affair with the staff of the hospital. He also
had cheap suspicion and questioned the appellant about the relationship with
the Superintendent, who is an aged person. When her parents presented a
Shirt to the respondent, worth Rs.1,400/-, he threw the Shirt and
scolded the appellant that the Shirt is fit for only a beggar. The
respondent never allowed her to talk to her sister or to his friends. He
used to be very friendly with the parents of the appellant in their presence,
but he used to talk ill of them in their absence to the appellant. During
their Honeymoon Trip at Kodaikanal, he behaved indifferently with everyone
and were telling lies to everyone. When he went to USA, he did not inform
the appellant or her parents. When the appellant received a Christmas
Greetings, wishing a Happy and Peaceful Christmas, he wrongly interpreted the
wish ‘Happy and Peaceful Christmas’. The respondent is suffering from
inferiority complex and used to torture the appellant stating that she is not
smart, good looking and her parents dumped her on him, since they could not
find a suitable groom. The respondent used to tell the appellant that she is
not smart as his sister and he will not take her out with him anywhere. Even
though, the appellant as a dutiful wife took care of his mother, the
appellant used to find fault with her. The respondent boasted the appellant
that he has put 22 locks to his house. For the above mental torture, the
appellant issued a notice to the respondent on 06.10.2006 and filed
I.D.O.P.No.8 of 2007, for dissolving the marriage, that took place on
19.06.2003 between the appellant and the respondent.

5.The respondent filed counter statement and denied all the averments
made by the appellant. According to respondent, the marriage is an arranged
marriage. After the appellant and the respondent met only, the marriage was
arranged and after betrothal, they were married. The respondent is very
proud of having appellant as his wife and has lot of love and affection for
her. He took her along with him wherever he went and when she was staying
with him in Hyderabad, they visited number of places. He denied the various
allegations made by the appellant in her petition. According to the
respondent, he informed the appellant and her parents when he left to U.S.A.
and gave his address. The notice issued by the appellant was served on him
only in U.S.A. The respondent also stated that he has not put 22 locks in
his home. The appellant only without any reason, left the matrimonial home
and at the instigation of her father, she made these allegations. The
respondent was not informed about betrothal and marriage of appellant’s
younger sister and was not invited for the marriage. When the appellant had
a trouble with one of the co-employees at TLM, Kothara, the respondent only
went and brought her to Hyderabad and subsequently, left her at her native
place. The respondent encouraged the appellant to pursue her Post Graduate
Course in C.M.C. at Vellore.

6.On the very same averments made in the counter statement, the
respondent filed I.D.O.P.No.42 of 2007, for restitution of conjugal rights.
The appellant filed counter statement making the same averments made by her
in the petition filed by her in I.D.O.P.

7.Both the I.D.O.Ps. were heard together and common evidence was let in
I.D.O.P.No.8 of 2007.

8.The appellant examined herself as P.W.1 and two documents, viz.,
Marriage Invitation and Legal Notice sent to the respondent were marked as
Exs.P.1 and P.2. The respondent examined himself as R.W.1 and marked 137
documents as Exs.R.1 to R.137.

9.The learned Principal District Judge, Thoothukudi, considering the
pleadings, oral and documentary evidence and arguments of the learned counsel
for the parties, held that the appellant has not proved that the respondent
caused mental cruelty and the respondent proved his love and affection for
the appellant and dismissed I.D.O.P.No.8 of 2007 filed by appellant and
allowed I.D.O.P.No.42 of 2007 filed by the respondent.

10.Against the said common judgment and decree, dated 19.11.2011, the
appellant has come out with the present Civil Miscellaneous Appeals.

11.The learned counsel for the appellant referred various averments in
the petition, counter statement filed by the appellant and the grounds of
appeals. The learned counsel for the appellant submitted that mental cruelty
is not defined under the Act and there is no strait-jacket definition for the
same. Each case must be decided based on its own facts and circumstances of
the case to conclude whether the incidents alleged by the party amounts to
mental cruelty or not. In the present case, the appellant has averred
various incidents, by which, the respondent has repeatedly caused mental
agony and cruelty to the appellant. The learned counsel for the appellant
stated that the respondent has admitted in his evidence that he put up 10
locks, not 22 locks to lock the home. Any normal prudent man would not put
10 locks to lock the home. This fact coupled with the fact that the
respondent was friendly with the parents of the appellant in their presence
and talked about them shows mental illness of the respondent. Only due to
the mental cruelty, the appellant has left the matrimonial home and due to
the character and attitude of the respondent, it is not safe and advisable
for the appellant to join the respondent in the matrimonial home. The
appellant and the respondent are living separately for more than 10 years and
the marriage has broken irretrievably. The Hon’ble Apex Court in a number of
judgments granted divorce on this ground. This case is similar to cases
dealt by the Hon’ble Apex Court and therefore, the marriage can be dissolved
on this ground also. The respondent has made baseless allegations against
the father of the appellant causing mental agony and cruelty.

12.In support of his submissions, the learned counsel for the appellant
relied on the following judgments:

(i)2006 (4) SCC 558 [Naveen Kohli Vs. Neelu Kohli], wherein at
paragraph 83, it has been held as follows:

?83.Even at this stage, the respondent does not want divorce by mutual
consent. From the analysis and evaluation of the entire evidence, it is
clear that the respondent has resolved to live in agony only to make life a
miserable hell for the appellant as well. This type of adamant and callous
attitude, in the context of the facts of this case, leaves no manner of doubt
in our minds that the respondent is bent upon treating the appellant with
mental cruelty. It is abundantly clear that the marriage between the parties
had broken down irretrievably and there is no chance of their coming
together, or living together again.?

(ii)AIR 2005 SC 3297 [Durga Prasanna Tripathy Vs. Arundhati Tripathy],
wherein at paragraphs 29 and 30, it has been held as follows:

?29.The facts and circumstances in the above three cases disclose that
reunion is impossible. Our case on hand is one such. It is not in dispute
that the appellant and the respondent are living away for the last 14 years.
It is also true that a good part of the lives of both the parties has been
consumed in this litigation. As observed by this Court, the end is not in
sight. The assertion of the wife through her learned counsel at the time of
hearing appears to be impractical. It is also a matter of record that dislike
for each other was burning hot.

30.Before parting with this case, we think it necessary to say the
following: Marriages are made in heaven. Both parties have crossed the point
of no return. A workable solution is certainly not possible. Parties cannot
at this stage reconcile themselves and live together forgetting their past as
a bad dream. We, therefore, have no other option except to allow the appeal
and set aside the judgment of the High Court and affirming the order of the
Family Court granting decree for divorce. The Family Court has directed the
appellant to pay a sum of Rs.50,000/- towards permanent alimony to
the respondent and pursuant to such direction the appellant had deposited the
amount by way of bank draft. Considering the status of parties and the
economic condition of the appellant who is facing criminal prosecution and
out of job and also considering the status of the wife who is employed, we
feel that a further sum of Rs.1 lakh by way of permanent alimony would meet
the ends of justice. This shall be paid by the appellant within 3 months from
today by an account payee demand draft drawn in favour of the respondent –
Arundhati Tripathy and the dissolution shall come into effect when the demand
draft is drawn and furnished to the respondent.?

(iii)2010 (2) CTC 214 [Manisha Tyagi Vs. Deepak Kumar], wherein at
paragraph 24, it has been held as follows:-

?24.This is no longer the required standard. Now it would be
sufficient to show that the conduct of one of the spouses is so abnormal and
below the accepted norm that the other spouse could not reasonably be
expected to put up with it. The conduct is no longer required to be so
atrociously abominable which would cause a reasonable apprehension that it
would be harmful or injurious to continue the cohabitation with the other
spouse. Therefore to establish cruelty it is not necessary that physical
violence should be used. However, continued ill-treatment cessation of
marital intercourse, studied neglect, indifference of one spouse to the other
may lead to an inference of cruelty. However in this case even with
aforesaid standard both the Trial Court and the Appellate Court had accepted
that the conduct of the wife did not amount to cruelty of such a nature to
enable the husband to obtain a decree of divorce.?

(iv)2010 (3) CTC 785 [Jayakumari Vs. Balachander], wherein at paragraph
30, it has been held as follows:

?30.The term ‘cruelty’ consists of unwarranted and unjustifiable
conduct on the part of defendant causing other spouse to endure suffering and
distress thereby destroying peace of mind and making living with such spouse
unbearable, completely destroying real purpose and object of matrimony. It
would of course be difficult to define the expression ‘cruelty’. There
cannot be any hard and fast rule in interpreting the same. As pointed out,
the word “cruelty” cannot be put in a strait-jacket of judicial definition.
It must be judged on the facts of each case having regard to the surrounding
circumstances. Whether one spouse is guilty of cruelty is essentially a
question of fact and previously decided cases have little, if any, value.
The term ‘cruelty’ is not defined in the Act. It is to be judged by taking
into consideration the status of life, the standard of living, the family
background and the society in which the parties are accustomed to move
because particular behaviour may amount to cruelty in one set of
circumstances and may not be so in other set of circumstances.?

(v) I (2007) DMC 626 (DB) [Firoz Khan and another Vs. Union of India
and others], wherein at paragraphs 97 and 98, it has been held as follows:

?97.Human mind is extremely complex and human behaviour is equally
complicated. Similarly human ingenuity has no bound, therefore, to assimilate
the entire human behaviour in one definition is almost impossible. What is
cruelty in one case may not amount to cruelty in other case. The concept of
cruelty differs from person to person depending upon his upbringing, level of
sensitivity, educational, family and cultural background, financial position,
social status, customs, traditions, religious beliefs, human values and their
value system.

98.Apart from this, the concept of mental cruelty cannot remain static;
it is bound to change with the passage of time, impact of modern culture
through print and electronic media and value system etc. etc. What may be
mental cruelty now may not remain a mental cruelty after a passage of time or
vice versa. There can never be any strait-jacket formula or fixed parameters
for determining mental cruelty in matrimonial matters. The prudent and
appropriate way to adjudicate the case would be to evaluate it on its
peculiar facts and circumstances while taking aforementioned factors in
consideration.?

(vi) 2012 (2) MLJ 833 [U.Sree Vs. U.Srinivas], wherein at paragraph 88,
it has been held as follows:

?88.In short, it would be difficult for the parties to bury the past
and to begin a new relationship of Husband and Wife. For the past 15 years
both parties have remained separately. During these years, they developed
their own life style, remained in isolation and grown in their own thoughts.
Marriage tie between the parties has become emotionally dead and the same is
beyond repair because of the emotionally dead relationship which is a
positive act of oppressive mental cruelty, in our considered opinion. There
is no chance for both parties to live together in future. In such a context,
the decree of Divorce is the only remedy to be passed, so that the parties
may choose their life of their own way, when there has been no scope for
their reunion.?

13.Per contra, the learned Senior Counsel for the respondent submitted
that;

(i)the various allegations made by the appellant against the respondent
are frivolous, baseless and imaginary;

(ii)the marriage was arranged marriage and both gave their consent only
after meeting and talking to each other. After the betrothal, the appellant
and the respondent were constantly talking to each other;

(iii)when the appellant had some trouble with her erstwhile colleagues
when she was working in TLM at Kothara, after betrothal, the respondent only
went to her work place and brought her to Hyderabad and she stayed with her
uncle’s home at Hyderabad;

(iv)after marriage when the appellant was staying with the respondent,
they visited number of places in and around Hyderabad. Similarly, during
their Honeymoon also, they had cordial relationship and there was no
misunderstanding between them;

(v)the respondent never said that the appellant was not smart and good
looking. On the other hand, he was proud of her and were going together to
various places and visited friends’ and relatives’ home;

(vi)the appellant has written number of letters, wherein she has stated
that she is happy to live with the respondent;

(vii)the respondent has produced and marked number of letters and
photographs, which proved that the allegations of the appellant are false and
averments made by the respondent are true;

(viii)by having number of locks in the house will not amount to mental
illness of a person;

(ix)the respondent never suspected the fidelity of the appellant;

(x)the marriage between appellant and the respondent was solemnized
according to Christian Customs and Rites and as per Christian Doctrine, a
person can seek divorce only on the ground of adultery;

(xi)the contention of the learned counsel for the appellant that the
marriage had been broken down irretrievably and therefore, the appellant is
entitled to divorce, is not correct. There is no provision in the Act to
grant divorce on the ground of irretrievable break down of marriage. The
Hon’ble Apex Court has granted divorce on that ground in certain cases,
exercising extraordinary power under Article 142 of the Constitution of
India. The said power is not available to this Court as well as to the Trial
Court. The Hon’ble Apex Court also held in some subsequent judgments that
this ground is not a valid ground for granting divorce and earlier judgments
cannot be taken as precedent; and

(xii)even now, the respondent wants to live with the appellant and lead
a happy married life.

14.In support of his submissions, the learned Senior Counsel
appearing for the respondent relied on following judgments:

(i)1982 (2) SCC 474 [Reynold Rajamani and another Vs. Union of India
and another], wherein at paragraphs 4 and 5, it has been held as follows:

?4.It cannot be denied that society is generally interested in
maintaining the marriage bond and preserving the matrimonial state with
a view to protecting societal stability, the family home and the proper
growth and happiness of children of the marriage. Legislation for the
purpose of dissolving the marriage constitutes a departure from that primary
principle, and the Legislature is extremely, circumspect in setting forth the
grounds on which a marriage may be dissolved. The history of all matrimonial
legislation will show that at the outset conservative attitudes influenced
the grounds on which separation or divorce could be granted. Over the
decades, a more liberal attitude has been adopted, fostered by a recognition
of the need for the individual happiness of the adult parties directly
involved. But although the grounds for divorce have been liberalised, they
nevertheless continue to form an exception to the general principle favouring
the continuation of the marital tie. In our opinion, when a legislative
provision specifies the grounds on which divorce may be granted they
constitute the only conditions on which the court has jurisdiction to grant
divorce. If grounds need to be added to those already specifically set forth
in the legislation, that is the business of the Legislature and not of the
courts. It is another matter that in construing the language in which the
grounds are incorporated the courts should give a liberal construction to it.
Indeed, we think that the courts must give the fullest amplitude of meaning
to such a provision. But it must be meaning which the language of the section
is capable of holding. It cannot be extended by adding new grounds not
enumerated in the section.

5.When therefore Section 10 of the Indian Divorce Act specifically sets
forth the grounds on which a marriage may be dissolved, additional grounds
cannot be included by the judicial construction of some other section unless
that section plainly intends so. ……?

(ii)2009 (10) SCC 415 [Anil Kumar Jain Vs. Maya Jain], wherein at
paragraphs 27, 29 and 30, it has been held as follows:

?27.In all the subsequent cases, the Supreme Court invoked its
extraordinary powers under Article 142 of the Constitution of India in order
to do complete justice to the parties when faced with a situation where the
marriage-ties had completely broken and there was no possibility whatsoever
of the spouses coming together again. In such a situation, this Court felt
that it would be a travesty of justice to continue with the marriage ties.

29.In the ultimate analysis the aforesaid discussion throws up two
propositions. The first proposition is that although irretrievable break-down
of marriage is not one of the grounds indicated whether under Sections 13 or
13- B of the Hindu Marriage Act, 1955, for grant of divorce, the said
doctrine can be applied to a proceeding under either of the said two
provisions only where the proceedings are before the Supreme Court. In
exercise of its extraordinary powers under Article 142 of the Constitution
the Supreme Court can grant relief to the parties without even waiting for
the statutory period of six months stipulated in Section 13-B of the
aforesaid Act. This doctrine of irretrievable break-down of marriage is not
available even to the High Courts which do not have powers similar to those
exercised by the Supreme Court under Article 142 of the Constitution. Neither
the civil courts nor even the High Courts can, therefore, pass orders before
the periods prescribed under the relevant provisions of the Act or on grounds
not provided for in Section 13 and 13-B of the Hindu Marriage Act, 1955.

30.The second proposition is that although the Supreme Court can, in
exercise of its extraordinary powers under Article 142 of the Constitution,
convert a proceeding under Section 13 of the Hindu Marriage Act, 1955, into
one under Section 13-B and pass a decree for mutual divorce, without waiting
for the statutory period of six months, none of the other Courts can exercise
such powers. The other Courts are not competent to pass a decree for mutual
divorce if one of the consenting parties withdraws his/her consent before the
decree is passed. Under the existing laws, the consent given by the parties
at the time of filing of the joint petition for divorce by mutual consent has
to subsist till the second stage when the petition comes up for orders and a
decree for divorce is finally passed and it is only the Supreme Court, which,
in exercise of its extraordinary powers under Article 142 of the
Constitution, can pass orders to do complete justice to the parties.?

(iii)2009 (6) SCC 379 [Vishnu Dutt Sharma Vs. Manju Sharma], wherein at
paragraphs 5, 10 and 12, it has been held as follows:

?5.The trial Court after examining the evidence came to the conclusion
that no case of cruelty had been made out as alleged by the appellant. The
Trial Court held that considering that the respondent had been turned out of
the matrimonial house and had been given beatings for which she was medically
examined, it was the respondent who was treated cruelly by the appellant.
Being aggrieved, the appellant preferred an appeal in the High Court.

10.On a bare reading of Section 13 of the Act, reproduced above, it is
crystal clear that no such ground of irretrievable breakdown of the marriage
is provided by the legislature for granting a decree of divorce. This Court
cannot add such a ground to Section 13 of the Act as that would be amending
the Act, which is a function of the legislature.

12.If we grant divorce on the ground of irretrievable breakdown, then
we shall by judicial verdict be adding a clause to Section 13 of the Act to
the effect that irretrievable breakdown of the marriage is also a ground for
divorce. In our opinion, this can only be done by the legislature and not by
the Court. It is for the Parliament to enact or amend the law and not for the
Courts. Hence, we do not find force in the submission of the learned counsel
for the appellant.?

(iv)2016 SCC OnLine Delhi 5312 : (2016) 234 DLT 243 (DB) [Mini Appa
Kanda Swami @ Mani Vs. M.Indra], wherein at paragraphs 10, 20, 21 and 25, it
has been held as follows:

?10.The question for consideration is whether the conduct of the
respondent/wife in the circumstance of the case, amounted to cruelty, to
entitle the husband to divorce. Cruelty could be physical or mental or both.
While it is easy to discern physical cruelty, mental cruelty has to be
assessed from the overall behavior of spouses as well as other incidental
factors. There is no doubt that in a matrimonial setup, a couple, which
decides to live together, invariably has different attitudes and opinions,
likes and dislikes, and more often than not spouses behave differently when
faced with the same situations. While disputes and arguments are normal in a
marriage, in order to constitute cruelty, the conduct of the spouse should be
something more serious than the ordinary ?wear and tear? of a marital life.

20.A person is not allowed to take advantage of his own wrong. The
appellant has failed to prove his allegation of cruelty. Not just this, he
had also demanded dowry and it is he who abandoned the respondent. Under the
circumstances, there is no infirmity in the order of the learned trial judge
inasmuch as the appellant is not entitled to a decree of divorce under
Section 13(1)(ia) of the Hindu Marriage Act, 1955. Furthermore, Section
23(1)(a)
of the Act makes it abundantly clear that a decree can be granted
when the Court is satisfied that the petitioner is in no way taking advantage
of his wrong. Such is not the case here, as it is the appellant who abandoned
the company of his wife.

21.Lastly, it is urged by learned counsel for the appellant that the
parties have been living separately for the last 12 years and the marriage
has virtually lost its meaning for them as they have reached a point of no
return. She avers that there is no life in the marriage bond and that it
should be dissolved for this reason. She has relied on para 26 of the
Judgement in K. Srinivas Rao vs. D.A. Deepa, 2013 (2) SCALE 735, reproduced
as under:-

?We are also satisfied that this marriage has irretrievably broken
down. Irretrievable breakdown of marriage is not a ground for divorce under
the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account
of bitterness created by the acts of the husband or the wife or of both, the
courts have always taken irretrievable breakdown of marriage as a very
weighty circumstance amongst others necessitating severance of marital tie. A
marriage which is dead for all purposes cannot be revived by the court’s
verdict, if the parties are not willing. This is because marriage involves
human sentiments and emotions and if they are dried-up there is hardly any
chance of their springing back to life on account of artificial reunion
created by the court’s decree.?

25.This Court thus lacks jurisdiction to dissolve a marriage on the
doctrine of ?irretrievable breakdown?.

(v)2016 (O) Supreme (Del.) 3869 : (2016) 234 DLT 381 [Sandhya Kumari
Vs. Manish Kumar], wherein at paragraph 21, it has been held as follows:

?21.Though irretrievable breakdown of marriage is not a ground for
divorce but in the judgments reported as 2006 (2) Mh.L.J. 307 Madhvi Ramesh
Dudani Vs. Ramesh K.Dudani, 2007 (4) KHC 807 Shrikumar V.Unnithan vs. Manju
K.Nair, (1994) 1 SCC 337 V.Bhagat vs. D.Bhagat and (2006) 4 SCC 558 Navin
Kohli vs. Neelu Kohli
the concept of cruelty has been blended by the Courts
with irretrievable breakdown of marriage. The ratio of law which emerged from
said decisions is that where there is evidence that the husband and wife
indulged in mutual bickering leading to remonstration and therefrom to the
stage where they target each other mentally, insistence by one to retain the
matrimonial bond would be a relevant factor to decide on the issue of
cruelty, for the reason the obvious intention of said spouse would be to
continue with the marriage not to enjoy the bliss thereof but to torment and
traumatized each other.?

15.The learned counsel for the appellant by reply submitted that the
appellant and the respondent were living together as husband and wife only
for 5 months and there is no possibility for them to live as husband and
wife, in view of the facts and circumstances of the case. The long
separation coupled with the attitude of respondent would amount to mental
cruelty caused to the appellant.

16.I have considered the submissions of the learned counsel appearing
for the parties and perused the materials available on record and the
judgments relied on by the learned counsel on either side.

17.Both the appellant and the respondent are well educated and they are
in medical profession. Both come from respectable family and the marriage
between them is an arranged marriage and both gave their consent willingly.
In spite of this background, misunderstanding has arisen and the appellant
has made allegations against the respondent causing mental cruelty. She has
also alleged that the respondent is suffering from inferiority complex and
mental illness. The appellant has alleged mental cruelty, not physical
cruelty. The issue of mental cruelty has been considered by this Court and
the Hon’ble Apex Court in various judgments. It has been held that mental
cruelty is not defined in the Act and it cannot be put on a strait-jacket
formula. Facts and circumstances of each case must be considered on merits
to decide whether the party alleging mental cruelty has proved the same.
Normal wear and tear and minor misunderstanding and irritation in family
life, cannot be termed as mental cruelty. The action alleged against other
party must be such that which makes it impossible for the party to live with
other party as husband and wife. In the present case, the appellant has made
various allegations against the respondent which according to her, amounts to
mental cruelty and it is not possible for her to live with the respondent as
wife any longer. The appellant as P.W.1 deposed about these averments.

18.Per contra, the respondent has marked 137 documents to substantiate
his case that he never caused mental cruelty. The learned Principal District
Judge, considering each and every allegation made by the appellant, rejected
the same holding that the appellant failed to prove the same. The learned
Principal District Judge failed to consider the fact that the father of the
appellant gave a complaint against the respondent and the respondent made
allegations against the father of the appellant that only because of
instigation of father of the appellant, the appellant had filed the petition
for divorce and the father of the appellant gave a false complaint against
the respondent. These allegations coupled with various averments made by the
appellant would definitely amount to mental cruelty caused by the respondent.

19.The learned counsel for the appellant contended that divorce can be
granted on the ground of irretrievable break down of marriage as per
judgments of the Hon’ble Apex Court. This contention is untenable. The
Hon’ble Apex Court has granted divorce on that ground exercising its
extraordinary power under Article 142 of the Constitution of India. The said
power is not available to this Court or to the Trial Court. In the
subsequent judgments, the Hon’ble Apex Court held that the earlier judgment,
granting divorce on the ground of irretrievable broken down cannot be taken
as precedent. It is pertinent to note that the respondent obtained a decree
of restitution of conjugal rights. There is nothing on record to show that
after obtaining decree, he took steps to make the appellant to live with him
as his wife. He has not filed any E.P. as per Order 21 Rule 32 Civil
Procedure Code. Where a person, who suffered a decree of restitution of
conjugal rights has wilfully failed to obey the decree, the person, who
obtained decree can enforce the same by attachment of his or her property.
In the circumstances, the fact that the appellant and the respondent are
living separately for more than 10 years and the attitude of the respondent
even after obtaining a decree of restitution of conjugal rights has not taken
steps to enforce the same, but insisting on retaining matrimonial bond would
amount to causing mental cruelty and to torment and traumatized the
appellant. This has been held so by the Delhi High Court in the judgment
reported in 2016 (O) Supreme (Del.) 3869 and the Hon’ble Apex Court in the
judgment reported in 2006 (4) SCC 558 [cited supra].

20.The ratio laid down in the said judgments are squarely applicable to
the facts of the present case. The insistence of the respondent to continue
the matrimonial tie even though he is fully aware that there is no
possibility of re-union and living together as husband and wife, amounts to
causing mental cruelty to the appellant.

21.For the above reasons, both the Civil Miscellaneous Appeals are
allowed. The common judgment and decree, dated 19.11.2011, passed in
I.D.O.P.Nos.8 and 42 of 2007, by the learned Principal District Judge,
Thoothukudi, are set aside. I.D.O.P.No.8 of 2007 filed by the appellant for
divorce, is allowed and I.D.O.P.No.42 of 2007 filed by the respondent for
restitution of conjugal rights, is dismissed. No costs.

To

1.The Principal District Judge,
Thoothukudi.

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

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