In the High Court of Judicature at Madras

Reserved on : 01.10.2015

Pronounced on : 01.12.2015

Coram:
The Hon’ble Mr.Justice S.MANIKUMAR
and
The Hon’ble Mr.Justice M.VENUGOPAL

C.M.A. No.2861 of 2012 and
M.P.No.1/2012 & M.P.No.1/2013

Indra … Appellant
Vs.
B.G.Giri … Respondent

Prayer: Civil Miscellaneous Appeal filed under Section 19 of the Hindu Marriage Act, 1955, against the fair and decreetral order of the Learned II Additional Principal Judge, Chennai dated 05.07.2012 passed in O.P.No.2890 of 2007.

For Appellant : Mr.M.Venkatachalapathy
Senior Counsel for M/s.Surana & Surana

For Respondent : Mrs.Radha Gopalan for Mrs.K.Bhawatharini

J U D G M E N T
[Judgment of the Court was made by M.VENUGOPAL, J.] The Appellant/Respondent has focused the present Civil Miscellaneous Appeal as against the order dated 05.07.2012 in O.P.No.2890 of 2007 passed by the Learned II Additional Principal Judge, Family Court, Chennai.

2.The Learned II Additional Principal Judge, Family Court, Chennai, while passing the impugned order on 05.07.2012 in O.P.No.2890 of 2007 [filed by the Respondent/Petitioner (Husband) under Section 13 (1)(ia) & (ib) and Section 26 of the Hindu Marriage Act, 1955] at paragraphs 19 and 20 had observed the following:

19.In order to strengthen the case of the petitioner, the parents his mother and father were examined as P.W.2 and P.W.3. They too deposed the cruel and the inhuman acts of the respondent not only towards the petitioner but also against them. Even P.W.2 and P.W.3 were not cross examined by the respondent which shows the respondent is admitting her abnormal behaviour towards them which amounts to ground of cruelty. She did not adduce any evidence by examining herself and any other witnesses on her side to establish her case. She even deserted the petitioner and did not give proper care to the child who developed learning disability for which medical treatment is being given to him. Though the respondent and the child are not with petitioner they are being maintained by him as per the Court order. In the above circumstances, the grounds for O.P. Of cruelty and desertion by the respondent against the petitioner has been proved.

20.The petitioner claimed permanent custody of the child who is now with the respondent/wife. Because of the attitude of the parties in the presence of the child, the child had developed learning disability for which medical treatment is being given as evidenced from Ex.P.4. According to the petitioner, the respondent is not properly attending the child as a result of which he developed the above said disability. Therefore, he claims permanent custody of the child. The respondent did not deny that her son is suffering from learning disability. She did not disprove his claim of permanent custody of the child by cross examine the petitioner and his witnesses. In the same manner, she has not come forward to produce evidence so as to reject the claim of the petitioner with regard to the custody of the child. In the absence of any evidence, it is presumed that the petitioner has proved his case and he is entitled for permanent custody of the child as he is the legal guardian of the minor child… and resultantly, allowed the petition and dissolved the marriage that took place between the parties on 02.11.1998 and granted a ‘Decree of Divorce’ on the ground of ‘Cruelty and Desertion’ in favour of the Respondent/Husband. Further, it was held that the Respondent/Petitioner/Husband was entitled to the permanent custody of the minor child Hanuraghav.

3.The Long Germane Original Petition Facts (Filed by the Respondent/Petitioner/Husband):-

a)The Appellant/Respondent (Wife) was married to the Respondent/Petitioner/Husband on 02.11.1998 on Ponnusamy Gounder Marriage Hall, Salem. As a matter of fact, the marriage was solmenised in terms of Hindu Religious Customs and Rites. After marriage, the Respondent/Husband and the Appellant/Wife moved to Chennai and started living at No.40, II Main Road, R.A. Puram, Chennai-28. The marriage was registered in terms of Hindu Marriage Act, 1955. At the time of marriage, the Respondent/Husband was a Software Engineer and the Appellant/Respondent was a house-wife although she being a Post Graduate. Out of the aforesaid wedlock, a male child was born on 28.11.1999. The Respondent/Husband worked in TCS for about four years and later resigned and started his own business. His parents gave funds to him for the purchase of a land at 30/1, I Cross Street, R.A. Puram, Chennai-28 and also, provided further funds for construction of house on the said land and in fact, the title deed of the said property stands in his name. After the marriage, he and his wife lived together at 40, II Main Road, R.A. Puram, Chennai and later at Flat No.2A, II Floor, Dwaraka Apartments, I Avenue, Indira Nagar, Chennai. The Appellant/Wife is owning and living at Door No.15, IV Cross Street, CIT Colony, Chennai-4.

b)According to the Respondent/Husband, right from the third day of the marriage, the Appellant/Respondent started coaxing him to find a job in USA and wanted to settle there. He was unwilling to do that as he saw better future in India itself. His wife brought her own car and took back the same, since he is in possession of two cars and vans of their own use. Under the circumstances, days started rolling out with love and hate relationship between the parties to the marriage. For the Appellant/Wife, frustration started growing because of her dreams settling in USA got diminished day by day.

c)The stand of the Respondent/Husband is that the Appellant/Wife became frustrated and started to abandon him and deprived him of matrimonial happiness. She also used to abuse him in filthy language and cursed him for not settling down in U.S.A. She went to the extent of smashing TV remote and broken the porcelain dinner plates and hitting him with flower vase and tore his shirt into pieces with vigor and anger. He noticed that the Appellant/Respondent losing her control of what she does and behaved like an epilepsy patient which was a mental cruelty not only to him but also to all the elders in the family. He advised her for proper medical check up but she refused to co-operate and again started abusing him in filthy languages. Moreover, her parents were not willing to intervene in this matter.

4.The Substance of the Counter (filed by the Appellant/Wife):-

a)The Appellant/Defendant’s father had given to her Husband/Respondent huge sums of money at various stages. Her parents had conducted her marriage in a very grand scale as to their status and gave expensive gifts to her husband and family. The premises at CIT colony does not belong to her but his owned by her father. At the time of marriage, her Husband was working in TCS and she along with her husband at joint discussion about the prospects of serving at USA when the proposal for their marriage came at their first meeting. She along with her husband for some time lived in Switzerland and during that time, her husband was very happy and had not expressed even an emotion that he had not liked his job or posting. The allegations that she was frustrated in not settling in USA is a figment of imagination of her husband. She was so supportive to her husband’s venture to facilitate his business and her father assisted him to meet his friends, in fact, she and her husband jointly travelled abroad for securing business projects.

b)She never treated her husband or his family members with any kind of mental cruelty and also never behaved like an epilepsy patient. Further, she is willing to disprove her husband’s statement about her health. She had never abused him with filthy language. Her husband never cooperated with the psychological counselling of the trial Court. She even asked one of her husband’s relative (who is a doctor at Coimbatore) to assist them in this regard. After this, he behaved in bizarre behaviour which she does not want to stress at this stage. Since, she is very keen to safe her marriage, the problem started in their marriage when her husband’s parents started interfering in their marital life. His parents had not approved of her actions and they found fault with her for every similar chore or work and she despite treated them with love and affection and agreed to their wishes. Due to ill-treatment meted out by her by her in-laws, they had separate establishment where they lived very happily at Indira Nagar, Adyar, Chennai. The minor child was also studying at Sishya School at Adyar. By this time, all the expenses of the separate establishment was met out by her father as though her husband was alright with her, he refused to take any responsibility towards the establishment. She never humiliated him at any time in public and done anything so as to make him to loose his sleep. She herself is well qualified and she upheld that due to her marriage, understood the burden of her husband’s job and supported him in his business. She left the matrimonial home only when her husband due to encouragement of his mother, who was from the beginning not happy to separate establishment and also that he was never driven out of the flats as projected. The minor child was Dyslexia, it was she who take care of his needs and visited the school explained the problem to the teacher, gave special attention to the child. During September 2007, she shifted to Vellore and admitted the child there where he resides with her. She had not deserted her husband and it was always her husband who left her in the lurch. Her husband never included her as Partner or Director in the Company. From the beginning, she considered her husband’s family as her own but he and his family treated as outsider. The marriage has not broken down and she required counselling.

5.The Appellant’s contentions:

i)The Learned Senior counsel for the Appellant/Wife urges before this Court that the impugned order passed by the Learned II Additional Principal Judge, Family Court, Chennai dated 05.07.2012 in O.P.No.2890 of 2007 is erroneous in Law, weightage of evidence, probabilities of the case.

ii)The Learned Senior counsel for the Appellant submits that the trial Court had in holding that the Appellant/Wife admitted her up namely, behaviour at her husband’s parents and this behaviour amounts to cruelty because of the reason that she had not cross examine them.

iii)Accordingly to the Learned Senior Counsel for the Appellant, the trial Court had failed to appreciate that mere assumption of an ‘existence of facts’ under Section 114 of the Indian Evidence Act, 1872 could not be equated to the proof of the same in terms of the ingredients of Section 101 of the Evidence Act.

iv)The Learned Senior counsel for the Appellant projects an argument that the trial Court who have given the specific findings as to what was the abnormal behaviour which was being referred to and as how it was amounted to cruelty. Further, it is the contention of the Appellant that the Respondent/Husband had only deserted her and started staying along with his mother in the house at R.A. Puram.

v)The Learned Senior counsel for the Appellant proceeds to take a plea that the trial Court had not given any definite finding as to what were the acts constituting abnormal behaviour on the part of the Appellant. Apart from the above, it is the stand of the Appellant/Wife that the trial Court had committed an error in coming to the conclusion that the Respondent/Husband had proved his case for the custody of the minor child on the basis of absence of evidence on the Appellant’s side (Wife’s side) without rendering any finding that the evidence of P.W.1 was sufficient to prove the fact that he is entitled to the custody of the minor child.

vi)The Learned Senior counsel for the Appellant/Wife contends that the trial court had not given any reason for not considering wishes of the minor son as per Section 26 of the Hindu Marriage Act, 1955. Also that, the trial Court had not examined the minor son (aged about 14 years) and considered his views before rendering its finding as provided under Section 26 of the Hindu Marriage Act, 1955.

vii)On behalf of the Appellant, it is reported before this Court that the trial Court had committed an error in not passing an order for permanent alimony. Furthermore, on behalf of the Appellant, it is brought to the notice of this Court that the trial Court had failed to see that there was reasonable cause for not examining the Appellant (Wife) as a witness in view of the unpleasant circumstances on account of her continuous insult by her husband on the hearings of the HMOP which was brought out in her two affidavits before the trial Court during the HMOP’s proceedings.

6.Appellant’s side citations:

i)The Learned Senior counsel for the Appellant/Wife cites the following decisions:

a)In the decision of the Hon’ble Supreme Court Savitri pandey V. Prem Chandra Pandey reported in AIR 2002 SC 591, wherein at paragraphs 18 to 20 it is observed and held as follows:

18.Marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive. The legislature, in its wisdom, despite observation of this Court has not thought it proper to provide for dissolution of the marriage on such averments. There may be cases where, on facts, it is found that as the marriage has become dead on account of contributory acts of commission and omission of the parties, no useful purpose would be served by keeping such marriage alive. The sanctity of marriage cannot be left at the whims of one of the annoying spouses. This Court in V.Bhagat V.D.Bhagat MANU/SC/0155/1994: [AIR 1994 SC 710] held that irretrievable breakdown of the marriage is not a ground by itself to dissolve it.

19.As already held, the appellant herself is trying to take advantage of her own wrong and in the circumstances of the case, the marriage between the parties cannot be held to have become dead for invoking the jurisdiction of this Court under Article 142 of the Constitution for dissolving the marriage.

20. At this stage we would like to observe that the period of limitation prescribed for filing the appeal under Section 28(4) is apparently inadequate which facilitates the frustration of the marriages by the unscrupulous litigant spouses. In a vast country like ours, the powers under the Act are (sic) exercisable by the District Court and the first appeal has to be filed in the High Court. The distance, the geographical conditions, the financial position of the parties and the time required for filing a regular appeal, if kept in mind, would certainly show that the period of 30 days prescribed for filing the appeal is insufficient and inadequate. In the absence of appeal, the other party can solemnise the marriage and attempt to frustrate the appeal right of the other side as appears to have been done in the instant case. We are of the opinion that a minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be void. Appropriate legislation is required to be made in this regard. We direct the Registry that the copy of this judgment may be forwarded to the Ministry of Law & Justice for such action as it may deem fit to take in this behalf.

b)In the decision of the High Court of Madhyapradesh, 2012 (2) MPHT at page 253 (Prakashrao V. Smt. Jyoti) wherein at paragraphs 2, 8 to 13, 17 and 20 it is observed and held as under:

2.The respondent by filing the written statement had denied the allegations by stating that she had always tried to keep her husband and his family members happy, but they used to mistreat her for not bringing the adequate dowry and Rs.10,000/-, colour TV and cooler demanded by them. She further pleaded that since she was beaten by the appellant and his mother and the dowry was demanded, therefore, she had made a complaint to the police under Section 498A of the IPC which had ended into compromise in the presence of respectable members of the family. She had denied the allegation of insulting and mistreating her in-laws or abusing the appellant and throwing Belan on him. She had also denied the allegation of extending threat to commit suicide and had categorically stated that she wanted to live with the appellant and perform her duty as wife.

8. The appellant in order to prove the ground of cruelty had examined himself as FW1. He has stated that the respondent used to abuse and humiliate his parents whereas the statement of PW2 Kusum Deshmukh, Mother of P.W.1, shows that respondent used to treat her father-in-law like her father. The incidents narrated by PW1 in his statement are the usual frictions which take place in the matrimonial life between husband and wife. The incidents of not bringing the drinking water for the guests, refusing to do the work of all the persons etc., are the small issues which would not constitute cruelty and even otherwise they are not supported by any independent evidence. The appellant himself has stated that after the incident he had met his parents but had not informed them about this incident which makes the version of the appellant doubtful.

9.PW2 Smt.Kusum Deshmukh, the mother of the appellant has stated that the respondent used to tell lie in respect of the wiping of the floor of the house and used to cook extra food etc., but she has categorically stated that no hot talks ever took place between her and the respondent. Her statement only indicates that there was some differences and disputes on the small household issues which are normal and natural in any family. Her statement also indicates that the respondent used to treat the parents of the appellant with respect.

10.PW3 Praveen Onkarrao deshmukh is the brother of the appellant but his statement is mainly a hearsay statement based upon the information received from other persons. The incident of putting less salt in breakfast cannot be termed as an act of cruelty.

11. PW4 Mukesh Deshmukh is a friend of the appellant who has categorically stated that in his presence no dispute between the respondent and her in-laws had taken place and even otherwise he is not a reliable witness as he had given the affidavit in-chief as per the instructions of the appellant and his family members.

12. As against this, the respondent had examined herself stating that her father-in-law is a simple and religious person and his behaviour towards her was good and that she had never insulted her father-in-law. Her statement indicates that the behaviour of the appellant and his mother towards the respondent was not proper, yet the respondent wants to live with the appellant since she is from a poor family and in the society to which she belongs second marriage is not permissible. Statement of DW3 Manoj Deshmukh, brother of the respondent also indicates that the behaviour of the appellant and his family members towards the respondent was not good and that the respondent is from a poor family.

13.The above analysis indicates the witness of the appellant have failed to disclose the specific incidents which would amount to cruelty on the part of the respondent. Form their statements it appears that at some occasions some disputes had taken place between the respondent and her husband or in-laws on small household issues relating to day today work, but such disputes are not unusual in the joint families and no inference of cruelty can be drawn on that basis.

17. Learned counsel for the appellant has also placed reliance upon the judgment of the Supreme Court in the matter of Naveen Kohli V. Neelu Kohli reported in MANU/SC/1387/2006: 2006(3) MPLJ 1, wherein it has been held that the cruelty allegations largely depend upon the type of the life the parties are accustomed or their economic or social conditions or their cultural and human values and each case has to be decided on its own merit. We have already examined the entire circumstances of the case in the preceding paragraphs and have found that the appellant has failed to establish the cruelty on the part of the wife, therefore, this Judgment is of no help.

20.The ground of irretrievable breakdown of marriage cannot be upheld also for the reason that the Supreme Court in the matter of Shyam Sunder Kohli V. Sushma Kohli @ Satya Devi reported in MANU/SC/0855/2004: 2005(1) MPLJ 14, has held that the Court only in extreme circumstances may use the ground of irretrievable breakdown of marriage for dissolving marriage. In the matter of Chetan Dass V.Kamla Devi, reported in MANU/SC/0262/2001: AIR 2001 SC 1709, the Supreme Court has taken the view that the husband who commits wrong cannot be given an advantage of his own wrong and cannot be granted divorce on the ground of desertion on the part of his wife who is still prepared to live with him. In the matter of Murarilal s/o Late Harprasad V.Saraswati d/o Late Khuman w/o Murarilal, reported in MANU/MO/0098/2003: 2003(1) JLJ 288= MANU/MP/0098/2003: 2003(2) MPLJ 489, this Court has taken the view that the husband having failed to prove cruelty on the part of the wife is not entitled to decree of divorce invoking the concept of irretrievable breakdown of marriage.

c)In the decision of the High Court of KARNATAKA in AIR 2009 KANT 109, ILR 2009 KARNATAKA, (S.Prasanna Kumar V. R.Saraswathi) wherein at paragraphs 11 and 12 it is observed and held as follows:

11.So far as the allegation of desertion is concerned, in para 13 of the petition has stated that in the month of may 1999 respondent has deserted him. Except one respondent has deserted him. Except one sentence in para 13 we have not seen any other averments in regard to the ground of desertion. In the statement of objection filed by the respondent, she has contended that she was driven out of the matrimonial house by the husband and his parents on 16.06.1999 at about 11.30 p.m. And she was not allowed to enter the matrimonial house even after the panchayat was convened.

12.We have to observe at this stage that convening panchayat after the respondent has left the matrimonial home has not been pleaded by the appellant, which shows that no attempt has been made by the appellant-husband to get his wife back to the matrimonial home. Even the appellant has not sent any legal notice before filing the case. By making one sentence of allegation that respondent has deserted him, no Court can grant a decree of divorce on the ground of desertion without an attempt has not been made by the husband to secure his wife to the matrimonial home. On the contrary, respondent on oath has deposed that a panchayat was, convened and an attempt made by her to join the matrimonial home has failed, with shows that she has not deserted on the contrary it is the appellant who has deserted her. Therefore, we do not see any merits in the allegations made by the appellant to seek divorce on the ground of desertion.

d)In the decision Popuri Sunita Lakshmi v. Poppuri Srinivas [AIR 2004 ANDHRA PRADESH 187] wherein at paragraphs 12 to 15 it is observed and held as under:

12.The evidence of P.W.1 goes to show that the appellant was not allowed to enter into his house when she was pregnant. During his cross-examination he also admitted that he refused to take back the appellant due to the threat made by her that she would commit suicide. P.W.1 stated in his evidence that the appellant used to pick up quarrels to set up a separate family and used to shout hysterically, that she was abusing his parents and once she threw away her thali also. His evidence also would go to show that she used to go to her parents’ house without informing him. What is more, he has stated in the cross-examination as follows:-

…. It is not true to say that I was harassing the respondent to get rid of her with a view to marry another lady. It is not true to say that I was not allowing my wife to go to her parents house, that I was neglecting her in the separate house taken by me and that she was forced to vacate when I did not pay the rents. IT is true that the respondent was pregnant at the time of vacating the house and that she was not allowed to enter my house………….It is true that in conciliation before Lok Adalat I refused to take her. The witness says that it is due to the suicide threat of the respondent. I have not given notice or pleaded the same in the petition. I did not give maintenance to the respondent and my daughter while she was in her parents house. Thus, except stating that the appellant used to pickup quarrels with him regarding setting up of a separate family, there is nothing on record to show that the appellant was ever cruel to him or caused him such mental agony so as to cause a reasonable apprehension in his mind that it would be harmful or injurious to live with her. On the other hand, the above evidence of P.W.1, clearly goes to show that, in fact he treated the appellant with cruelty in not allowing her to enter into his house when she was pregnant.

13.P.W.2 is the father of P.W.1 and he corroborated the evidence of P.W.1 in all material particulars and there is nothing in his evidence also regarding the alleged cruelty meted out by the appellant to the respondent.

14.The evidence of P.Ws 3 to 5 also shows that when they visited the house of the respondent, they saw both the parties quarrelling with each other. The Court below, believing the above evidence, came to the conclusion that the acts alleged by the respondent constitute ‘cruelty’. The above conclusion of the Court below cannot be sustained in the absence of any positive material. The Court below committed a serious error in not considering the evidence of the R.Ws., and totally disbelieving their evidence. There is absolutely no evidence whatsoever to say that the appellant ever treated the respondent with cruelty or committed any acts, which constitute ‘cruelty’. In the absence of such evidence, it cannot be said that the alleged acts of the appellant constitute ‘cruelty’ within the meaning of that term occurring in Section 13(1)(ia) of the Act.

15.The other conclusion arrived at by the Court below that since the parties are living separately and as the appellant has filed an application under Section 125 Cr.P.C., for maintenance, the respondent is entitled to a decree of divorce on that ground above, cannot be sustained in view of the settled position in law. It is well settled that the fact the parties are living separately for long and that there is irretrievable break down of the marriage itself is not a ground for dissolution of the marriage by a decree of divorce (See V.Bhagat’s case (supra). It is also well settled that strict standard of proof as required under the Evidence Act is not necessary and it is sufficient if the Judge trying the matter is satisfied that a matrimonial offence has been committed. Therefore, on facts and in the circumstances of this case, it has to be held that the respondent has utterly failed to establish satisfactorily that the acts of the appellant alleged by him amounts to cruelty. Judged in any view of the matter, the order of the Court below cannot be sustained.

e)In the decision AIR 2004 KARNATAKA 146 (Shivakumar v. Premavathi) wherein at paragraph 10 it is observed as follows:

10.Mere physical separation would not amount to desertion. The animus deserendi on the intention to bring cohabitation permanently to an end should exist. In fact neglect by husband of his wife prima facie constitutes desertion. It is necessary for the husband to establish prima facie that the separation of the wife did constitute desertion by establishing that he did not neglect his wife. In the instant case, the appellant has examined himself as P.W.1 which is a self-interested testimony and in the absence of any corroboration has failed to establish by the desertion complained of.

f)In the decision Ms.Santosh kumari V.Shivprakash Sharma, [AIR 2001 DELHI 376] wherein at paragraphs 7 to 11, it is observed and held as under:

7.It is the common case of the parties that the appellant lived with the respondent for the period from 9th November, 1986 to 3rd December, 1986. On 4th December, 1986, the appellant again left her matrimonial home and on 13th November, 1987, the respondent filed the divorce petition. Learned Trial Judge has held that the said period (from 9th November, 1986 to 3rd December, 1986) during which the parties lived with each other shall count as a part of the period of desertion. Learned Single Judge has also taken the same view by holding that the period of desertion has to be reckoned from 9th November, 1985 when the appellant first left the matrimonial home. It needs to be highlighted that neither the learned Trial Judge nor the learned Single Judge has held that he said period of re-union was stratagem to interrupt continuous period of desertion. Learned Single Judge has misdirected himself in taking an erroneous view that this is a case of condensation of the offence of desertion. In arriving at the said conclusion, he has failed to notice that on 9th November, 1986 when the appellant joined the society of her husband, the statutory period of two years had not elapsed to make the matrimonial offence of desertion complete. Thus, when the offence of desertion was itself incomplete, question of its condensation does not arise. In our opinion, this is a case of termination of desertion. In this context, it is significant to mention that in the case of Bipin Chander Jaisinghbhai Shah (supra) the apex court has quoted the following observations of Pollock, M.R. In Thomas V.Thomas [1924] P.194 with approval:-

Desertion is not a single act complete in itself and revocable by a single act of repentance.”

8.It has to be borne in mind that desertion continues until it is terminated. Termination may take place by the fact of return of the deserting spouse or by supervening intention to return with an approach to the deserted spouse with a view to resumption of life together or by a supervening consensus. As noticed earlier, on 9th November, 1985, i.e., after four and half months of her marriage, the appellant left her matrimonial home and thereafter the respondent filed a petition under Section 9 of the Act for restitution of conjugal rights and during pendency of the said proceedings they reconciled their differences in consequence of which the appellant joined the society of her husband on 9th November, 1986, which ultimately resulted in dismissal of the said petition. This clearly shows that both recognised the matrimonial relationship as continuing even though they were living separate. That rules out animus deserendi. Although the factum of separation was there but no animus appeared on behalf of the appellant to desert her husband permanently forsaking the matrimonial bond. However, on 9th November, 1986, when the appellant joined the Society of her husband, the statutory period of two years had not elapsed to make the matrimonial offence of desertion compete. As noticed earlier, neither the learned Trial Judge nor the learned Single Judge has held that the said re-union was a stratagem to interrupt the continuous period of desertion. That being so, the alleged desertion of the respondent came to an end on 9th November, 1986, when the appellant resumed her matrimonial home with all the implications of marital life. In the case of Bipin Chander Jaisinghbhai Shah (AIR 1957 SC 176), the following legal position summarised in Halsbury’s Laws of England has been quoted with approval:-

Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, `the home’.”

9.It is not merely the physical putting of the tow spouses together at a point of time which would make cohabitation but there being in a state of things” the entry which ends up desertion. In the instant case, @ page  Del 379 neither the learned Trial Judge nor the learned Single Judge attempted to find out as to who was responsible for disruption of that `state of things’. Admittedly, the appellant left her matrimonial home after four and half months of her marriage. It is unnatural for a newly married bride to start planning for dissolution of her marriage without any ostensible reason. Under the circumstances, we are inclined to hold that something must have happened so as to force her to leave her matrimonial home. However, the learned trial Judge had simply noted the grievance of the appellant of her leaving the matrimonial home due to maltreatment of her mother-in-law. It is obvious that the appellant does not accuse the husband for having turned her out of his house. This circumstance clearly shows that there was no animus on behalf of the appellant to desert the husband permanently forsaking the matrimonial bond and abandonment of the obligations of marriage on her part.

10.We may mention at the cost of repetitions that the burden was on the respondent to prove that desertion without cause subsisted throughout the statutory period and the appellant had persisted in the intention to desert throughout the whole of the two years’ period. In this context, it is also significant to mention that the divorce petition was filed on 13th November, 1987 and on 18th November, 1987, the parties had reconciled their differences by making the following statements before the Chief Administrative Officer, Ministry of defense, New Delhi.

Statement of the respondent
I hereby agree to live with my wife Shrimati Santosh Sharma at C1/17-B, Lawrence Road, Delhi. I will not allow the matter regarding our married dispute to come up again. I will keep my wife in comforts and provide the necessary care and affection to make our marriage a success. Sd/shiv Prakash 18th November, 1987.”
Statement of the appellant
In view what has been stated by my husband Shri Shiv Prakash Sahrma, above, I withdrew my allegations made by me to the various authorities in the Ministry of defense as well as to P.M. I shall live no stone unturned in my endeavor t discharge with the duties and obligations expected of a wife. I shall also not leave for my parents home without the due concurrence of my husband.
Sd/-Santosh Sharma
18th November, 1987.”

11.Unfortunately, both the courts below have totally ignored the implication of the said statements. The aforesaid statement of the appellant clearly shows that she was really contrite and anxious to resume married life. In view of the aforesaid statements of the appellant, can the respondent honestly say that his desertion, if any, continued throughout the statutory period without his consent. The appellant had made an unconditional statement that she was willing to go and stay with the respondent. In this view of the matter, it cannot be said that the appellant had been staying away from the respondent with an intention to bring the matrimonial relationship to an end. As indicated earlier, the law insists that the desertion by the offending spouse should be for a continuous period of not less than two years immediately preceding the presentation of the petition. Such ground had obviously not arisen on 13th November, 1987 when the petition fort divorce was filed as the alleged desertion stood terminated on 9th November,m 1986 when the appellant resumed her matrimonial home with all the implications of marital life. That being so, the date of the appellants departure from her matrimonial home is 4th December, 1986 and in view of the provision (ib) of Section 13(1) of the Cat, the petition for divorce was not maintainable as it was filed before completion of the statutory period of two years. Thus both the Courts below have committed a grave error in holding that the respondent was entitled to a decree of divorce on the ground of desertion.

ii)Glimpse of Other Decisions:-

The Learned Senior counsel for the Appellant relies on the following decisions:

I)In the decision S.Valli V.N.Rajendran reported in 2010 (3) MLJ at page 561 wherein at paragraphs 20, 22 & 27 it is observed and held as follows:

20.In this connection it is useful to refer the judgment of the Apex Court reported in (2002) 2 SCC 73 [SAVITRI PANDEY V. PREM CHANDRA PANDEY], wherein the Hon’ble Supreme Court was pleased to hold that a decree for divorce cannot be granted on the ground of desertion in the absence of pleadings and proof. The Trial Court has committed a grave error in shifting the entire responsibility and burden on the appellant to prove the case of the respondent. The respondent being the petitioner seeking divorce on the ground of cruelty is duty bound to substantiate the allegations and averments made in the petition filed for divorce. The Trial Court has granted a decree for divorce on the ground that there was strained relationship between the parties in view of the presence of the respondent’s sister in their matrimonial home which was occasioned due to the strained relationship between her and her husband. Even if the same is true the appellant cannot made solely responsible for that.

22.Another important factor to be noted is that on 05.03.2001 itself both the respondent and his sister filed petitions before the same Court seeking divorce on the ground of cruelty. It is further to be noted that the Trial Court has presumed certain things by accepting the case of the respondent without any evidence whatsoever. In the present case on hand both the parties have let in evidence in support of their case. A decree for divorce cannot be granted for the mere asking. The Court below has to give a clear finding that mental cruelty has been made out by the continued conduct of the party as against the other. The evidence of RW-1 is to the effect that she left the matrimonial home due to ill-health and the delay in joining was due to the ill-health and the consequential death of her father. The said evidence ought to have seen in the proper perspective by the Trial Court especially considering the desire of the appellant to rejoin. The respondent has not made any attempt to see his child after seeing in the hospital at the time of delivery. It is the evidence of the appellant that the respondent was talking to her over phone.

27.There cannot be any specific definition mental cruelty. The mental cruelty cannot be put in a strait-jacket formula. The concept of mental cruelty cannot remain static. Therefore, no uniform standard can be laid down and Courts will have to prudent and have a practical approach in adjudicating a case based upon its own facts. A sustained course of abusive and humiliating treatment rendering the life of spouse is one of the factum to decide the mental cruelty. However, mere trivial irritations, quarrels, normal wear and tear of the married life would not amount to mental cruelty. If by the continued ill conduct of a spouse the relationship deteriorates then such an action alone amount to mental cruelty. The Hon’ble Supreme judgment in SAMAR CHOSH V. JAYA GHOSH (2007 (3) ALT 62) has observed 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 our definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs 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.

99. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instance 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 lock 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, sustained and weighty.

(vii) Sustained reprehensible conduct, studied neglect in difference 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 of knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent of 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.

Applying the said principles to the facts of the case, we are of the opinion that the respondent has not made out a case for both mental and physical cruelty. I.a)Also, in the aforesaid decision, at paragraphs 28 and 36 it is observed and held as under:

28.The above said judgment of the Apex Court was also followed by subsequent judgment reported in (2009) 1 SCC 422 (SUMAN KAPUR V. SUDHIR KAPUR wherein the Hon’ble Supreme Court has observed as follows:

“39.Mental cruelty has also been examined by this Court in Parveen Mehta V.Inderjit Mehta thus: (SCC pp.716-17, para21) “21.Cruelty for the purpose of Section 13(1) (i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.”

40. In A.Jayachandra V. Aneel kaur the Court observed as under: (SCC pp.29, para 10) “10.The expression ‘cruelty’ has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.”

41.In Vinita saxena V.Pankaj pandit the Court said: (SCC pp.796-97, paras 31-32) “31.It is settled by a catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case.

32.The word ‘cruelty’ has not been defined and it has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.”

42.It was further stated: (Vinita Saxena case, SCC pp.797-98, paras 35-36) “35.Each case depends on its own facts and must be judged on these facts. The concept of cruelty has varied from time to time, from place to place and from individual to individual in its application according to social status of the persons involved and their economic conditions and other matters. The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the parties. In this connection, the culture, temperament and status in life and many other things are the factors which have to be considered.

36.The legal concept of cruelty which is not defined by the statue is generally described as conduct of such character as to have caused danger to life, limb or health (bodily and mental) or to give rise to reasonable apprehension of such danger. The general rule in all questions of cruelty is that the whole matrimonial relation must be considered, that rule is of a special value when the cruelty consists not of violent act but of injurious reproaches, complaints, accusations or taunts. It may be mental such as indifference and frigidity towards the wife, denial of a company to her, hatred and abhorrence for wife, or physical, like acts of violence and abstinence from sexual intercourse without reasonable cause. It must be proved that one partner in the marriage however mindless of the consequences has behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury. There are two sides to be considered in case of apprehension of such injury. There are two sides to be considered in case of cruelty. From the appellant’s side, ought this appellant to be called on to endure the conduct? From the respondent’s side, was this conduct excusable? The court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable person’s point of view after a consideration of any excuse which the respondent might have in the circumstances, the conduct is such that the petitioner ought not be called upon to endure.”

36.A similar view has been taken in the judgment by the Hon’ble Supreme Court reported in (2001) 4 SCC 250 (Chetan Dass V.kamla Devi) wherein it has been held as follows:

“14.Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of “irretrievably broken marriage” as a straitjacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case.”

II)In the decision of the Hon’ble Supreme Court Gurbux V. Harminder Kaur reported in II (2010) DMC 706 (SC) and at Special pages 712 and 713 whereby and whereunder at paragraphs 12 & 15 it is observed and held as follows:

12.The married life should be assessed as a whole and a few isolated instances over certain period will not amount to cruelty. The ill-conduct must be precedent for a fairly lengthy period where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, one party finds it extremely difficult to live with the other party no longer may amount to mental cruelty. Making certain statements on the spur of the moment and expressing certain displeasure about the behaviour of elders may not be characterized as cruelty. Mere trivial irritations, quarrels, normal wear and tear of married life which happens in day to day life in all families would not be adequate for grant of divorce on the ground of cruelty. Sustained unjustifiable and reprehensible conduct affecting physical and mental health of the other spouse may lead to mental cruelty. Both the appellant and respondent being highly qualified persons, the appellant being Principal in ITI College, the respondent working as a Librarian in a Government Institute, an isolated friction on some occasion like festival of Lohri even in the presence of others cannot be a valid ground for dissolving the marriage.

15. Finally, a feeble argument was made that both the appellant and respondent were living separately from 2002 and it would be impossible for their re-union, hence this Court exercising its jurisdiction under Article 142 of the Constitution their marriage may be dissolved in the interest of both parties. Though, on a rare occasion, this Court has granted the extraordinary relief dehors to the grounds mentioned in Section 13 in view of the fact that the issue has been referred to a Larger Bench about permissibility of such course at present, we are not inclined to accede to the request of the appellant. If there is any change of law or additional ground included in Section 13 by the Act of Parliament, the appellant is free to avail the same at the appropriate time. III)In the decision of the High Court of Bombay, 2014 (6) Bom CR 641 (Rajesh Hariba Patil V. Sou.Ranjana Rajesh Patil) wherein at paragraphs 5 to 9, 12 & 13 it is observed and held as under:

5.As far as cruelty is concerned, it is stated in the petition that the marriage between the appellant and respondent took place on 11.06.2004 at Nandgaon District-Kolhapur as per Hindu rites and religion. Thereafter son by name Varad was born to the parties. It is the case of the appellant that after the birth of son Varad, the respondent, without any reasonable cause, started picking up quarrel with him and started harassing him. The respondent is beloved daughter and therefore used to visit her parental house frequently. After birth of Varad respondent became more arrogant and started mentally harassing him. The appellant has stated that the family members of the respondent came to the business place of the appellant and caused him mental harassment due to which it is difficult for him to carry on his business.

6.The learned Counsel for the appellant submitted that the respondent though duly served remained absent and therefore his evidence on cruelty remained unchallenged as the matter was ordered to proceed ex parte against the respondent. He submitted that in such case as there was cross-examination to the appellant the case of the appellant that he was treated with cruelty by the respondent, ought to have been accepted by the Family Court. On perusal of the evidence led by the appellant, it is seen that there are only vague statements that respondent resided nicely for a short time and thereafter started picking up quarrels without sufficient reason and started harassing him. She also used to leave frequently to go to the house of her parents. No details about date, no particulars regarding the acts of the respondent or words uttered by the respondent have been stated. Just general and absolutely vague statements have been made. Thus, there is nothing on record to prove the alleged cruelty.

7. It is further the case of the appellant that the family members of the respondent used to harass him at the place of his business and therefore it was difficult for him to carry on his business. If such is the case that there was harassment to the appellant at his place of business, then he could have easily produced the evidence of the persons who wee working at his business place. However, no such evidence has been led by the appellant by examining any witness. The evidence on this aspect is also absolutely vague as to date and material particulars.

8.The word cruelty has not been defined in the act, though it has been specifically used in Section 13(1)(ia) of the Hindu Marriage Act. We may make useful reference to a decision of the Supreme Court in the case of Shobha Rani V. Madhukar Reddi reported in (1998) 1 SCC 105: AIR 1988 Pg.121. In this decision, the Supreme Court had an occasion to examine the concept of cruelty. In this case, the Supreme Court has interpreted the Word cruelty. The Supreme Court observed that cruelty is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. It is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse.

9.The married life should be assessed as a whole and a few isolated instances over certain period will not amount to cruelty. The ill-conduct must be preceded for a fairly lengthy period where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, one party finds it extremely difficult to live with the other party any longer may amount to mental cruelty. Mere trivial irritations, quarrels, normal wear and tear of married life which happens in day to day life in all families would not be adequate for grant of divorce on the ground of cruelty. Only sustained unjustified and reprehensible conduct affecting physical and mental health of the other spouse, may lead to mental cruelty.

12.It is the case of the appellant that the respondent left his house in the year 2007. Thereafter he issued a letter dated 07.10.2010. Reference of the same is made in the examination-in-chief. It is pertinent to note that it is only xerox copy and therefore though the reference relating to it was made in his evidence, it cannot be read in evidence. Even assuming for sake of arguments that it can be read in evidence, however, this document seems to be Inland letter and there is nothing on record to show that it was really issued to the respondent and she has received the same, because there is no postal stamp on it. Therefore this cannot be treated as document to show that the appellant had issued a letter to the respondent calling upon her to join his company for cohabitation and that she had left his house in the year 2007 and thus deserted him.

13.In view of above, we are of the opinion that the learned Judge, Family Court has rightly held that the appellant failed to prove that the respondent treated him with cruelty. Even as far as the ground relating to desertion is concerned, we find that the pleading is vague and there is no evidence to support the same. IV)In the decision of Madhya Pradesh, Padam Singh V. Anita Bai reported in I (2004) DMC 112 wherein at paragraphs 11 to 13, it is observed and held as follows:

11.From the above discussion, it is clear that the appellant/husband has failed to produce the reliable evidence to substantiate his allegations that his wife’s behaviour was agonizing or cruel. However, the demand of the wife for better husband or mother-in-law is not of grave nature as to constitute the matrimonial offence of cruelty. Learned counsel for the appellant has cited the case of Indian Gangele v. Shailendra Kumar Gangele. In this citation it is observed that unruly temper of a spouse or whimsical nature of a spouse is not enough is constitute the cruelty. Unless a reasonable apprehension is caused that it is not possible to continue the married life, the decree of divorce cannot be passed on the ground of cruelty.

12. Consequently, I hold that the appellant/husband has failed to prove by producing the reliable evidence that the behaviour of his wife was so cruel as to cause a reasonable apprehension in the mind of appellant that it is not possible to continue in the married life. The findings of the trial Court that the appellant/husband has failed to establish the ground of cruelty is in accordance with the facts and circumstances of the case.

13. The appellant Padam Singh has not stated on oath that he or his family members made any attempt to bring back his wife from her parental house to his matrimonial house. From the statement of Anita (NAW 1) and Satosh Singh (NAW 2), it is clear that the appellant Padam Singh had refused to keep his wife in his house. Even the witness of the appellant Basant Saini (A.W.2) has admitted in para 3 of his cross-examination that the brother of respondent /wife along with four persons came to meet the appellant in order to pursuade him to keep respondent Anita Bai but the appellant Padam Singh refused to keep his wife. Consequently, it is clear that the respondent/wife has not deserted the appellant but the respondent is living separately because the appellant has refused to keep her in matrimonial house. V)In the decision Chaitali Dey V. Shri Badal Kumar Dey, [AIR 2005 (Jharkand) at page 83 and at special page 85] wherein at paragraphs 6 & 7 it is observed and held as under:

6.What emerges from the evidence of the husband is that though there was, according to him, certain acts which amount @ Page-Jhar85 to cruelty on the part of the wife, like not cooperating with him in establishing a matrimonial home, in not attending to his needs, not serving him food when he came back from office and launching of a prosecution case against him, it transpires that the husband and the wife resumed cohabitation in the year 2000 and as a result of which she became pregnant and that pregnancy was terminated. Of course, both sides accuse the other as responsible for the medical termination of that pregnancy; but the fact remains that this is a case where even assuming that there was any act of cruelty on the part of the wife, earlier, the same had been condoned by the husband cannot be granted a decree for divorce, based on instances and events that took place prior to 27-6-2000. We are also of the view that the acts he has attributed to the wife are normal wear and tear of marriage and do not amount to cruelty in law.

7.As we have noticed, a mere reading of the plaint in this case shows that no cause of action for grant of a decree for divorce is made out in the pleadings. When pleadings are so vague, it is not open to a Court to proceed to grant a decree for divorce on the ground of cruelty by picking out instances from the evidence of the husband here and that of the wife to grant a decree. No doubt, there have been occasional misunderstanding between the spouses, but the Court should have kept in mind that in matrimonial life, such incidents are bound to occur. VI)In the decision of the Hon’ble Supreme Court in Bipin Chander jaisinghbhai Shah V. Prabhawati reported in AIR 1957 (SC) 176 wherein at paragraphs 13 to 17 it is observed and held as follows:

13.It will be seen that the definition is tautological and not very helpful and leads us to the Common Law of England where in spite of repeated legislation on the subject of matrimonial law, no attempt has been made to define “desertion”. Hence a large body of case law has developed round the legal significance of “desertion”. “Marriage” under the Act means “a marriage between Hindus whether contracted before or after the coming into operation of this Act”. “Husband” means a Hindu husband and “wife” means a Hindu wife.

14. In England until 1858 the only remedy for desertion was a suit for restitution of conjugal rights. But by the Matrimonial Causes Act of 1857, desertion without cause for two years and upwards was made a ground for a suit for judicial separation. It was not till 1937 that by the Matrimonial Causes Act, 1937, desertion without cause for a period of three years immediately preceding the institution of proceedings was made a ground for divorce. The law has now been consolidated in the Matrimonial Causes Act, 1950 (14 Geo. VI, c. 25 ). It would thus appear that desertion as affording a cause of action for a suit for dissolution of marriage is a recent growth even in England.

15.What is desertion? “Rayden on Divorce” which is a standard Work on the subject at p. 128 (6th Edn.) has summarised the case-law on the subject in these terms:-

“Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to on end without reasonable cause and without the 850consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party”.

16. The legal position has been admirably summarised in paras. 453 and 454 at pp. 241 to 243 of Halsbury’s Laws of England (3rd Edn.) Vol. 12, in the following words:-

“In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases.

Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, ‘the home’. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated.

The person who actually withdraws from cohabitation is not necessarily the deserting party. , The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.

The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition or, where the offence appears as a cross-charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence”.

17.Thus the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandon the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion.’ For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there., namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi ). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce; under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation 852and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or-implied, of bringing cohabitation permanently to a close. The law in England has prescribed a three year period and the Bombay Act prescribes a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decides to come back to the deserted spouse by a bonafide offer of resuming the matrimonial some with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced,, desertion comes to an end and if the deserted spouse unreasonably refuses the offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce’ the plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law, the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court. In this connection the following observations of Lord Goddard, C.J. in the case of Lawson v. Lawson(1) may be referred to:-

“These cases are not cases in which corroboration is required as a matter of law. It is required as a matter of precaution…………….

7.The Respondent/Husband’s side Contentions:

i)Numerous acts of bad and cruel behaviour of the Appellant/Respondent/Wife was concealed by the Respondent/Husband to his parents especially, the demeaning his parents and grandmother. She also used to time and again threw any and every articles that she came across in her frenzied mood and because of her such behaviour, her mother took her to a rented flat at Adyar. Subsequently, when her father returned from abroad, mediation took place between all the parties and the Appellant/Respondent was counseled by her parents and she was again accompanied into his house, after assurance given by the parents for the best behaviour of their daughter. But the counseling proved futile. Later, when the Appellant/Respondent once again behaved badly by vociferously accusing him and his parents in open, his relatives and the Appellant/Wife’s relatives jointly held a meeting in which the Appellant/Wife’s stand was implemented and the parties moved into an independent rented flat at No.2A, II Floor, I Avenue, Dwaraka Apartments, Indira Nagar, Chennai during February 2005. An independent household was set up in the said flat, having only three of them.

ii)He admitted his minor son Master Hanuraghav in School and took care of his day-to-day needs. The Appellant/Wife when she become violent she used to whack the child up every now and then on many occasions she had beaten him very badly. Even in the said flat, she refused to co-habitat with the Petitioner and within a few days, once again started throwing articles at him. When he went for walking in the earlier morning, his wife (Appellant) joined him only to humiliate him in the public by shouting at him, as a result of which, he gave up his walking. However, she never permitted him to sleep peacefully in the night time and harassed him, that he loose sleep in the night which would unable him to work on the following morning. She was always behaving like a nagging wife.

iii)Added further, when he had occasioned to proceed to USA for a week’s time, for presentation of paper on Software Project and when he was about to leave, she (Appellant/Respondent) made his life miserable by once again indulging in all the aforesaid acts. Her said attitude become intolerable and he was driven out of the said flat because of her arrogant behaviour in June 2005.

iv)His wife (Appellant/Wife) dropped his son in his custody and later, she joined in a company M/s.IL & FS Investment (P) Ltd at Adyar, Chennai and never returned to the matrimonial home, inspite of various efforts made by him and his relatives and the parties continued to live separately and that the child being with him.

v)His minor son Hanuraghav faced impairment of his intelligence as a result of atrocious behaviour of the Appellant and also belonging to the status of being a child of divided parents. His son’s school teacher stated that he has to undergo clinical test and psychological test which was carried by him with Madras Dyslexia Association, T.Nagar, Chennai. The Appellant had never cared to visit the child from June 2005 till date (filing of the Original Petition).

vi) The Appellant/Respondent/Wife who stayed away from the family for more than two years, all of a sudden, on 17.09.2007 at about 10.00 a.m., with an ulterior motive and mala-fide intention came along with her mother and some unknown persons to the residence/premises at R.A. Puram, Chennai. Both of them used abusive languages and threatened him that he would be done away by hiring thugs and would see that all sorts of criminal cases would be filed against him to make sure that he is arrested and detained in custody. They not only threatened him but also his family members. His wife assaulted his mother and threatened to endanger her life. The matter became worst on 18.09.2007 when they continued to stay in his residence at R.A. Puram, Chennai and continuously misbehaved there. Thereafter, relatives from both sides came and mediated and at about 1.00 a.m., his wife and her mother were escorted by their relatives to their flat. Later on the next day, on 18.09.2007, she telephoned him and used abusive language and once again threatened him saying that her mother was arranging for harming him at any costs. Her mother also used abusive languages against him and threatened to finish him and his parents by engaging rowdies. The Appellant by squatting over the above said property and had driven him and his parents out of the said property by her arrogant attitude.

vii)His mother on 18.09.2007, due to the arrogant behaviour of of his wife (the Appellant) lodged a complaint before the Additional Commissioner of Police, Chennai (who later forward the same to Assistant Commissioner of Police, Teynampet who received the said complaint) and the All Women Police Station, Teynampet had registered the same in C.S.R.No.89/CSR/W-24. His wife had deserted him in the year 2005 itself when she refused to co-habitat with him, abandoned him with the child and he and his child were left to manage their own affairs without her assistance. Thereafter, he and his wife lived separately and apart for about last two years and four months, the marriage between them had irretrievably broken down following such desertion and coupled with the above said acts of cruelty. The Respondent/Husband enabling to bear the mental, psychological and physical torture caused by his wife (Appellant) to him, his child and to his parents, had filed the Original Petition seeking the relief of dissolution of marriage and also the custody of his minor child.

8.The Learned counsel for the Respondent/Husband submits that the trial Court on a careful analysis, meticulous examination, available evidence of witnesses P.W.1 to 3 and also, taking note of the exhibits marked i.e., Ex.P1 to Ex.P8 and Ex.R1 came to the resultant conclusion that the Respondent/Husband had proved all the grounds of cruelty and desertion by the Appellant/Wife and dissolved the marriage that took place between the parties on 02.11.1998 and also further observed that the Respondent/Husband was entitled to the right of custody of minor child and the said finding of the trial Court need not be disturbed by this Court at this distant point of time, because of the reason that the conclusion arrived at, does not suffer from any legal infirmities and material irregularities in the eye of Law.

9.Citations projected on the Respondent/Husband’s side:

I)The Learned Counsel for the Respondent/Husband cites the following decisions:

a)In the decision of the Hon’ble Supreme Court Durga Prasanna Tripathy V. Arundhati Tripathy reported in 2005 (7) SCC at page 353 and at special page 354 whereby and whereunder it is observed and held as follows:

Fourteen years have elapsed since H and W have been separated and there is no possibility of the said parties resuming the normal marital life even though W is willing to join H. There has been an irretrievable breakdown of marriage between H and W. There is clear finding of the Family Court that in spite of good deal of endeavour to effect a reconciliation the same could not be effected because of the insistence of W to remain separately from her in-laws. It was totally an impracticable solution. The evidence adduced by W before the Family Court belies her stand taken by her before the Family Court. Under the circumstances, H had proved before the Family Court both the factum of separation as well as animus deserendi which are the essential elements of desertion. Enough instances of cruelty meted out by W to H were cited before the Family Court.

In the facts and circumstances of the case, the reunion is impossible H and W are living away for the last 14 years. A good part of the lives of both the parties has been consumed in this litigation. The end is not in sight. The assertion of W through her learned counsel at the time of hearing appears to be impractical. A workable solution is certainly not possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. Hence, there is 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. a.i)Furthermore, in the aforesaid decision wherein at paragraphs 18 to 23, 27 & 27 it is observed as under:

18.This apart, since October 1991 till date the respondent has not taken any steps from her side to go back to her matrimonial home. The said fact gets reflected from her own deposition before the Family Court wherein she has deposed as under:

On 23.10.1991, the petitioner left me in the house of my father. I went to the marital home with my father and other relations, but the petitioner created trouble and did not accept me as his wife. So I came away to my father and have taken shelter there.

The petitioner left me in my father’s house after the marriage on 23.10.1991. It is not a fact that I came away suo motu from the marital home deserting the petitioner. Again I cam and stayed in the marital home from December 1991 till February 1992 and thereafter came to my father’s house.

19. The Family Court has given cogent and convincing reasons for passing the decree of divorce in favour of the appellant. Having been convinced that there was no chance of reunion or reconciliation between the parties, more so because of the complaint filed by the respondent before the Mahila Commission, the Family Court with a view to put a quietus to the litigation inter se and the bitterness between the parties rightly passed the decree of divorce.

20. The Division Bench of the High Court by the impugned judgment has reversed the finding of the Family Court. The learned Judges of the High Court held against the appellant on two points namely:

(a) Misquoting of the evidence of the respondent by the Family Court; and

(b) inconsistent plea of the appellant with regard to leaving the matrimonial home by the respondent.

a. Both the aforesaid points taken into consideration by the learned Judges of the High Court cannot, in our view, be construed as a finding upon the merits of the case.

21. In our view that 14 years have elapsed since the appellant and the respondent have been separated and there is no possibility of the appellant and the respondent resuming the normal marital life even though the respondent is willing to join her husband. There has been an irretrievable breakdown of marriage between the appellant and the respondent. The respondent has also preferred to keep silent about her absence during the death of her father-in-law and during the marriage ceremony of her brother-in-law. The complaint before the Manila Commission does not implicate the appellant for dowry harassment though the respondent in her evidence before the Family Court has alleged dowry harassment by the appellant. It is pertinent to mention here that a complaint before the Mahila Commission was lodged after 7 years of he marriage alleging torture for dowry by the mother-in-law and brother-in-law during the initial years of marriage. The said complaint was filed in 1998 that is only after notice was issued by the Family Court on 27.03.1997 on the application filed by the appellant under Section 13 of the Hindu Marriage Act. The Family Court, on examination of the evidence on record, and having observed the demeanour of the witnesses concluded that the appellant had proved that the respondent is not only cruel but also deserted him for more than 7 years. The desertion as on date is more than 14 years and, therefore, in our view there has been an irretrievable breakdown of marriage between the appellant and the respondent. Even the Conciliation Officer before the Family Court gave its report that the respondent was willing to live with the appellant on the condition that they lived separately from his family. The respondent in her evidence had not disputed the fact that attempts have been made by the appellant and his family to bring her back to the matrimonial home for leading a conjugal life with the appellant. Apart from that, relationship between the appellant and the respondent have become strained over years due to the desertion of the appellant by the respondent for several years. Under the circumstances, the appellant had proved before the Family Court both the factum of separation as well as animus deserendi which are the essential elements of desertion. The evidence adduced by the respondent before the Family Court belies her stand taken by her before the Family Court. Enough instances of cruelty meted out by the respondent to the appellant were cited before the Family Court and the Family Court being convinced granted the decree of divorce. The harassment by the in-laws of the respondent was an afterthought since the same was alleged after a gap of 7 years of marriage and desertion by the respondent. The appellant having failed in his efforts to get back the respondent to her matrimonial home and having faced the trauma of performing the last rites of his deceased father without the respondent and having faced the ill-treatment meted out by the respondent to him and his family had, in our opinion, no other efficacious remedy but to approach the Family Court for decree of divorce.

22.In the following two cases, this Court has taken a consistent view that where it is found that the marriage between the parties has irretrievably broken down and has been rendered a deadwood, exigency of the situation demands, the dissolution of such a marriage by a decree of divorce to put an end to the agony and bitterness:

(a) Anjana Kishore V. Puneet Kishore (2002) 10 SCC 194

(b) Swati Verma V.Rajan Verma (2004) 1 SCC 123 :

2004 SCC (Cri) 25

23.Likewise, in the following htree cases, this Court has observed that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case and those facts have to be viewed as to the purpose which is revealed by those facts or by conduct and expression of intention, both anterior and subsequent to the actual act of separation:

(a) Sanat Kumar Agarwal V. Nandhini Agarwal (1990) 1 SCC 475

(b) Adhyatma Bhattar Alwar V. Adhyatma Bhattar Sri Devi (2002) 1 SCC 308

(c) G.V.N.Kameswara Rao V. G.Jabilli (2002) 2 SCC 296

27.The decision reported in Romesh Chander V.Savitri (1995) 2 SCC 7: AIR 1995 SC 851 : 1995 AIR SCW 647 is yet another case where this Court in its powers under Article 142 of the Constitution the husband in the name of the wife. In that case, the parties had not enjoyed the company of each other as husband and wife for 25 years, this is the second round of litigation which routing through the trial court and the High Court has reached the Supreme Court. The appeal was based on cruelty. Both the courts below have found that the allegation was not proved and consequently it could not be made the basis for claiming divorce. However, under Article 142 of the Constitution directed the marriage between the appellant and the respondent shall stand dissolved subject to the appellant date of the order and the dissolution shall come into effect when the house is transferred and possession is handed over to the wife.

28.The facts and circumstances in the above three cases disclose that reunion is impossible. The case on hand is one such. It is not in dispute that the appellant and the respondent are living away for the past 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 was burning hot.

b)She also relies on the decision of the Hon’ble Supreme Court Iswar Bhai C.Patel Alias Bachu Bhai Patel V. Harihar Behera and Another reported in 1999 (3) SCC at page 457 and at special page 462 whereby and whereunder at paragraph 17, it is observed as under:

17.Admittedly Respondent 1 had an account in Central Bank of India Limited, Sambalpur Branch which his father, namely, Respondent 2 was authorised to operate. It is also an admitted fact that it was from this account that the amount was advanced to the appellant by Respondent 2. It has been given out in the statement of Respondent 2 that when the appellant had approached him for a loan of Rs.7000, he had explicitly told him that he had no money to lend whereupon the appellant had himself suggested to advance the loan from the account of Respondent 1 and it was on his suggestion that Respondent 2 issued the cheque to the appellant which the appellant, admittedly, encashed. This fact has not been controverted by the appellant who did not enter the witness-box to make a statement on oath denying the statement of Defendant (Respondent) 2 that it was at his instance that Respondent 2 had advanced the amount of Rs.7000 to the appellant by issuing a cheque on the account of Defendant (Respondent). 1. Having not entered into the witness-box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of principles contained in illustration g) of Section 114 of the Evidence Act, 1872. b.ii)Also, in the aforesaid decision at page 464, at paragraph 29, it is observed as follows:

29.Applying the principles stated above to the instant case, it would be found that in the instant case also the appellant had abstained from the witness-box and had not made any statement on oath in support of his pleading set out in the written statement. An adverse inference has, therefore, to be drawn against him. Since it was specifically stated by Respondent 2 in his statement on oath that it was at the instance of the appellant that he had issued the cheque on the account of the Respondent 1 in Central Bank of India Ltd., Sambalpur Branch and the appellant, admittedly, had encashed that cheque, an inference has to be drawn against the appellant that what he stated in the written statement was not correct. In these circumstances, the High Court was fully justified in decreeing the suit of Respondent 1 in its entirety and passing a decree against the appellant also.

c)The Learned counsel for the Respondent seeks in aid of the decision of the Hon’ble Supreme Court Vishwanath Agrawal V.Sarla Vishwanath Agrawal reported in 2012 (7) SCC 288 and at special page 289 wherein it is observed as under:

The testimony of the appellant husband established that the wife was crumpling the ironed clothes, hiding the keys of the motorcycle and locking the gate to trouble him and the said incidents were taking place for a long time. In such circumstances it is surprising to find that the courts below could record a finding that the appellant used to enjoy the childish and fanciful behaviour of the wife pertaining to the aforesaid aspect. This finding is definitely based on no evidence. Such a conclusion cannot be reached even by inference nor any surmises and conjectures would permit such finding to be recorded. The embarrassment and harassment that might have been felt by the husband can easily be visualised.

d)The Learned counsel for the Respondent draws the attention of this Court to the Division Bench of this Court S.Latha Kunjamma V. K.Anilmumar reported in 2008 (2) KLJ at page 49 whereby and whereunder at paragraphs 7, 9 to 16, 18 & 19, it is observed and held as follows:

7.False, defamatory, scandalous, malicious, baseless and unproved allegatioas made against the spouse in the written statement may amount to cruelty. The irresponsible insinuation and allegations which were made during the course of litigation against the wife cannot be brushed aside. Such a view was taken by the Rajasthan High Court in the decision reported in Parihar V. Parihar. Pushparani v. Krishan Lal is a case where the wife had in her written statement alleged that an illicit relationship existed between her husband and one Smt. Bindra Devi. When the husband appeared in the witness box the said statement was directly suggested to him in the cross-examination. This imputation was not ground pleaded in the petition by the husband it was held by the Delhi High Court that the allegations of adultery made by the wife in the written statement and at the time of cross-examination could be taken into consideration for granting a decree of divorce on the ground of cruelty. The learned Judge had followed the principle that cruelty subsequent to the institution of the petition could be taken into account to prevent multiplicity of proceedings. The Supreme Court in Upper Ganges Valley Electricity Supply Co. Ltd., V. Electricity Board 1971 SC 683 held that the court can take subsequent events into account mainly on two situations.

i) litigation between the parties ought to be shortened and

ii) to do complete justice between the parties

9. The Supreme Court in the decision reported in Vijay Kumar Ramchandra Bhate V. Neela Vijaykumar Bhate considered the question whether character assassination in or during divorce proceedings amounts to cruelty. In that case in the written statement filed by the husband, allegations were made against wife branding her as unchaste woman keeping illicit relations sexually and otherwise with a neighbour’s son. Subsequently the husband sought to withdraw those allegations by amendment of the written statement. The amendments were allowed and were actually carried out by the trial court. The Supreme Court held that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra marital relationship constitute grave assault on the character, honour, reputation, status as well as the health of the wife. It is held that such aspersions of perfidiousness attributed to the wife viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed.

10. The Supreme Court also observed that it is futile for the husband to claim that by the withdrawal of allegations unilaterally by him by filing an application for amendment of the written statement has wiped out completely all those allegations for all purposes. The amendments carried out subsequently will not absolve the husband from being held liable for having treated the wife with cruelty by making earlier such injurious reproaches and statements due to their impact when made and continuing to remain on record. The Supreme Court also had occasion to consider whether the averments made in the written statement had constituted mental cruelty in the decision reported in V.Bhagat V. D.Bhagat 1994 (1) SCC 37. The Supreme Court held that the allegations of “paranoid disorder” “mental patient” “needs phychological treatment to make him act as a normal person” and the statement by the wife that her husband and all the members of his family are lunatics are assertions which constitute mental cruelty of such a nature that the husband cannot reasonably be asked to live with the wife thereafter. The Supreme Court also held that the husband in the position of the petitioner herein would be justified in saying that it is not possible for him to live with the wife in view of the said allegations.

11.The question that requires to be answered based on the submissions made by the appellant is as to whether the averments, accusations and character assassination of the husband attributed to the wife in the written statement and during examination of the parties constitute mental cruelty for substaining the claim for divorce under Section 13(1)(i-a) of the Hindu Marriage Act Allegations and accusations made in the written statement or suggested in the course of examination and by way of cross-examination if not proved, would amount to worst form of insult and cruelty warranting the claim of the wife being allowed and the same would satisfy the requirement of law. A well behaved, educated, disciplined wife who started married life with her lover under no circumstance can tolerate him who attributes extra-marital relationship. Such disgusting accusations certainly will cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and leaving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with the husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.

12. In the light of the principles enunciated herein above we may examine whether the allegations made by the husband in his written statement, in his examination and the question put by his counsel to the petitioner in cross-examination amounts to mental cruelty within the meaning of Section 13(1)(i-a) of the Hindu Marriage Act. The relevant portion of the written statement is as follows:

Now the petitioner is in love with her co-worker and wanted to get rid of this respondent. It was the petitioner who deserted this respondent to join her present finance.

In the chief examination of the respondent as RW1 the respondent deposed as follows:

In the cross-examination of RW1 the relevant portion is as follows:

In the cross examination PW1 (petitioner) the question put is extracted as follows:

13. The allegation made in the pleadings filed in the Court and the questions to that effect put by his counsel at his instance in the chief allegation in the pleadings and putting such questions to the wife while she was in the witness box, is bound to cause the wife intense mental pain and anguish besides affecting her career and professional prospects. In the councillor’s report dated 25-3-2006 it is stated that the husband alleged extra marital relationship on wife. The allegations against the wife may not be true; it may also be true; it shows that he assumes thing against his wife which are not well founded. He was not able to prove the allegations levelled against his wife. These assertions do constitute mental cruelty of such nature that the petitioner cannot reasonably asked to live with the respondent thereafter. The wife in the position of the petitioner herein would be justified in saying that it is not possible for her to live with him in view of the said allegations. Despite all that the husband says that he wants to live with the petitioner. The obvious conclusion is that he has resolved to live in agony only to make life a miserable hell for the petitioner as well. This type of callous attitude in the context of the facts of this case leaves no doubt that the respondent was bent upon treating the petitioner with mental cruelty.

14.The husband and wife on several occasions appeared before this Court in person and we had the opportunity to interact with the couple on several such occasions. The petitioner/wife unequivocally submitted that due to the cruel nature and behaviour of her husband she cannot live with him any more. It is abundantly clear that the marriage between the parties has broken down irretrievably and there is no chance of their coming together again.

15.The learned Counsel for the respondent/husband contended before us that it is a well-settled position that where no claim has been made in the pleadings no amount of evidence can be looked into upto a plea which was never put forward. He also contended that the pleadings of the parties form the foundation of their case on which issues are raised, evidence let in and findings arrived at for deciding disputes. The learned Counsel argued that only from the pleadings, the opposite party must know what is the case he has to answer and prove. Otherwise the rules of pleadings and the provision for amendment of pleadings for deciding the real question in controversy between the parties will become meaningless. According to him the Act and Rules enjoins and mandates that in cases where desertion and or cruelty are alleged, the petitioner shall state the date and the circumstances under which the alleged, desertion began and-or the specific acts of cruelty. Since there is no averment of any specific act of cruelty in the petition this Court is not empowered under law to grant divorce on the ground of cruelty. The counsel relied on the decision reported in Mohammed Sageet V.Prakash Thomas. He also cited the decision in Yamanaji H.Jadhav V.Nirmala, Koluthara Exports Ltd., V. State of Kerala AIR 2002 Supreme Court 973, and Suchitra v. Anil Krishnan 2007 (2) KHC 680. The learned Counsel for the respondent submitted that the dismissal of application for amendment to insert the ground of cruelty on the basis of the alleged false imputation made against the appellant in the counter of the respondent precluded the appellant from raising the ground of cruelty. We reminded the counsel that this Court can take subsequent events into account to shorten the litigation between the parties and for doing complete justice to them. Character assassination in and during the course of proceedings amounts to cruelty. Even in cases where such allegations are withdrawn that will not absolve the husband being held liable for having treated the wife with cruelty by making earlier such injurious statements due to their impact when made and continuing to remain on record as held by the Supreme Court in Vijaykumar Ramachandran Bhate V.Neela Vijayakumar Bhate cited supra.

16. No doubt, the burden must lie on the petitioner to establish her case. Proof beyond reasonable doubt is a higher standard proof in trials involving enquiry into issues of criminal nature. The ground of desertion upon which the petition for dissolution of marriage was filed does not require that the petitioner must prove her case beyond all reasonable doubt in matrimonial proceedings. The court below was therefore in error in holding that the proof adduced by the petitioner as PW1 is not sufficient proof for supporting the ground of desertion. The standard of proof required in matrimonial cases under the Act is not to establish the grounds alleged beyond reasonable doubt but merely one to find out whether the preponderance is in favour of the existence of the said fact alleged.

18. On going through the oral evidence of the parties and the pleadings we are convinced that the findings of the Family Court are not justified on the materials available on records to find that the grounds of desertion is not made out. In the decision reported in Jothish Chandra v. Meera Guha it is held that if one spouse is forced by the conduct of other to leave home it may be that the spouse responsible for the driving out is guilty of desertion which means constructive desertion. The Supreme Court in the case Bipin Chander Jaisinghbhai Shah V. Prabhawati in which it is held that where the wife is forcibly turned out from her marital home by the husband, the husband is guilty of constructive desertion. The test is not who left the matrimonial home first. If one spouse by his words and conduct compel the other spouse to leave the marital home, the former would be guilty of desertion, though it is the latter who has physically separated from the other and has been made to leave the marital home. Going by the decisions discussed above, pleadings and findings on record we are of the view that the respondent had deserted the petitioner and the case will come under the category of ‘constructive desertion’ as the petitioner was compelled to leave her marital home and it is impossible for her to join the respondent. The parties have no contact with each other ever since they are separated on 15-01-2003. In spite of good deal of endeavour on our part to effect reconciliation the same could not be materialised. It was a total impracticable solution. Under the circumstances we find that the factum of separation as well as animus deserendi which are the essential elements of desertion stand proved.

19. The parties are bent upon to continue their litigation and workable solution is not possible. The parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. Hence there is no other option except to allow the appeal and to set aside the judgment of the family court and to grant a decree of divorce. We are also convinced that no useful purpose will be served in keeping such a marriage alive on paper, it would only aggravate the agony of the parties. In Anjana Kishore v. Puneet Kishore and in Swati Verma V.Rajan Verma the Supreme Court held that the marriage between the parties has irretrievably broken down and has been rendered a dead wood, exigency of the situation demands the dissolution of such a marriage by a decree of divorce to put an end to the agony and bitterness. The Supreme Court has observed in Sanat kumar V.nandini Agrawal 1990 SCC 475, Adhyatma Bhattar V. Adhyatma Bhattar Sri Devi and in G.V.N.Kameswara Rao V.G.Jabilli 2002 (2) SC 296 that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case and those facts have to be viewed as to the purpose which is revealed by those facts or by conduct and expression of intention both anterior and subsequent to the actual act of expression. These decisions are quoted with approval by the Supreme Court in Durga Prasanna Tripathy V. Arundhati Tripathy. In the decision reported in Naveen Kohli V. Naalu Kohli the Supreme Court observed that once the parties have separated and the separation has continued for sufficient length of time and one of them has presented a petition for divorce it can well be presumed that the marriage has been broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. II)The Panoramic Spectrum of Other Decisions:

Besides the above, the Learned counsel for the Respondent/Husband quotes the following decisions:

i)In the decision of the Hon’ble Supreme Court Naveen Kohli V. Neelu Kohli reported in 2006 (4) SCC 558 and at special pages 560 to 562, it is observed and held as under:

Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions and their culture and human values to which they attach importance. Each case has to be decided on its own merits.

(Paras 64 and 48) N.G.Dastane V.s.Dastane, (1975) 2 SCC 326; Bertram, 1944 P.59: 113LJP 52 171 LT 167 (CA); Cooper V.Cooper, 1950 WN 200: 59 LGR 377 (HL) Kaslefsky V.Kaslefsky, (1950) 2 ALL ER 398: 1951 P 38 (CA); Blyth, (1966) 1 All ER 524: (1966) 2 WLR 634 (HL); Wright, (1948) 77 CLR 191: 22 Aus LJ 534; Gollins V.Gollins, 1964 AC 644: (1963) 2 All ER 966: (1963) 3 WLR 176 (HL); Sirajmohmedkhan Janmohamadkhan V.Hafizunnisa Yasinkhan, (1981) 4 SCC 250; 1981 SCC (cri) 829; Shobha Rani V.Madhukar Reddi (1988) 1 SCC 105: 1988 SCC (Cri) 461; Parveen Mehta V. Inderjit Mehta, (2002) 5 SCC 706; Chetan Dass V. Kamla Devi, (2001) 4 SCC 250; Sandhya Rani V.Kalyanram Narayanan, 1994 Supp (2) SCC 588; Chandrakala Menon V.Vipin Menon, (1993) 2 SCC 6 : 1993 2 SCC 706: 1993 SCC (Cri) 485; Kanchan Devi v. Promod Kumar Mittal, (1996) 8 SCC 90; Swati verma V.Rajan Verma, (2004) 1 SCC 123 : 2004 SCC (Cri) 25; Prakash Chand Sharma V.Vimlesh, 1995 Supp (4) SCC 642; A.Jayachandra V.Aneel Kaur, (2005) 2 SCC 353; Lalitha V.Manickswamy, (2001) 1 DMC 679 (SC), considered. Sheldon V.Sheldon (1966) 2 ALL ER 257 : (1966) 2 WLR 993 (CA): Bipin Chander Jaisinghbhai Shah V.Prabhawati, 1956 SCR 838: AIR 1957 SC 176; Lachman Utamchand Kripalani V. Meena, (1964) 4 SCR 331: AIR 1964 SC 40, cited The High Court ought to have condisdered the repercussions, consequences, impact and ramifications of all the criminal and other proceedings initiated by the parties against each other in the proper perspective. The findings of the High Court that these proceedings could not be taken to be such which may warrant annulment of marriage is wholly unsustainable. The advertisement in newspaper to the effect that the status of the appellant in a registered company was only that of an employee can be said to have lowered the prestige of the appellant. Likewise the respondent wife’s cautioning the entire world not to deal with the appellant (her husband) would lead to mental cruelty. 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 mind that the respondent is bent upon treating the appellant with mental cruelty. (paras 80, 82, 81 and 83) Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. Once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of parties.

In the extraordinary facts and circumstances of the case, to resolve the problem in the interest of all concerned, while dissolving the marriage between the parties, we direct the appellant to pay Rs.25,000,000/- (Rupees twenty five lakhs) to the respondent towards permanent maintenance to be paid within eight weeks. This amount would include Rs.5,00,000/- (Rupees five lakhs with interest) deposited by the appellant on the direction of the trial court. The respondent would be at liberty to withdraw this amount with interest. Therefore, now the appellant would pay only Rs.20,00,000 (Rupees twenty lakhs) to the respondent within the stipulated period. In case the appellant fails to pay the amount as indicated above within the stipulated period, the direction given by us would be of no avail and the appeal shall stand dismissed. In awarding permanent maintenance financial standing of the appellant has been taken into consideration.

ii)In the decision of the Hon’ble Supreme Court Vinod Kumar Subbiah V. Saraswathi Palaniappan reported in 2015 (4) MLJ at page 374 (SC) and at special page 375, wherein it is observed and held as under:

This Court is unable to uphold the conclusions of the High Court. The Appellant had duly pleaded instances of mental cruelty which he proved in evidence and documents. An examination of the divorce petition makes it abundantly clear that various allegations of cruelty were made out and a number of incidents were mentioned therein. Further evidence was submitted during the course of the Trial to substantiate these allegations, which is in keeping with Order VI Rule 2 of the CPC. Furthermore, Court finds that the Trial Court examined the evidence at great length and came to the reasoned conclusion that the actions of the Respondent amounted to cruelty. If a spouse a buses the other as being born from a prostitute, this cannot be termed as wear and tearof family life. Summoning the police on false or flimsy grounds cannot also be similarly viewed. Making it impossible for any close relatives to visit or reside in the matrimonial home would also indubitably result in cruelty to the other spouse. After a cursory discussion of the evidence which the Trial Court had discussed thread bare, the High court was not justified to set aside the conclusions arrived at by the Trial Court without giving substantiated reasons.

iii)In the decision of the Hon’ble Supreme Court Smar Ghosh V. Jaya Ghosh reported in 2007 (4) SCC 511 at page 516, it is observed and held as follows:

On a proper analysis and scrutiny of the judgments of the Supreme Court and other courts it is clear that there cannot be any comprehensive definition of the concept of mental crueltywithin all kinds of cases of mental cruelty can be covered. No court should even attempt to give a comprehensive definition of mental cruelty.

The 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 another case. The concept of cruelty differs from person to person depending upon the upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and the value system.

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., 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 straitjacket 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 the aforementioned facts into consideration.

iv)In the decision of the Hon’ble Supreme Court Smt.Rohini Kumari V. Narendra Singh reported in 1972 (1) SCC 1, wherein it is observed and held as follows:

(i)The essential elements of desertion are physical separation, animus deserendi which meant the intention to bring the cohabitation permanently to an end, absence of consent and absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the intention aforesaid. The conduct of the husband marrying during the statutory period of two years is subject to a very important condition, namely, that the second marriage should have had such an impact on the mind of the wife so as to cause her to continue live apart and continue the desertion. If the conduct of the husband has had no such effect it cannot be said that the desertion on her part terminated by reason of the conduct of the husband. On the finding that the second marriage did not have any such impact on the mind of the wife, it is clear that within the meaning of Section 10(1)(a) the desertion by the wife has been proved without reasonable cause and without consent or against the wish of the husband. (Paras 4,5 and 6) Lachman Utamchand Kripalani V.Meena (1964) 4 SCR 331: AIR 1964 SC 40: 66 Bom LR 297: (1965) 1 SCA 310; Bipin Chander Joisinghbhai Shah V. Rushingamna AIR 1963 AP 323 (1962) 2 AWR 452; A.Annamalai Mudaliar V. Perumayee Ammal and Others, AIR 1965 Mad 139: ILR ( 1964) 1 Mad 845 77 Mad LW 548: (1964) 1 Mad LJ 122 referred to

(ii) Section 10 of the Hindu Marriage Act, 1955 and Section 18 of he Hindu Adoptions and Maintenance Act, 1956 are quite distinct and one cannot be said to control the other. It is quite obvious that Section 18 of the Maintenance Act does not amend or abrogate the provisions of Section 10 of the Hindu Marriage Act. (para 10)

(iii) It is well known that when a particular branch of law is codified it is intended and the object essentially is that on any matter specifically dealt with by that law it should be sought for in the codified enactment alone when any question arises relating to that matter. Ordinarily when it has been expressly stated that an enactment is meant for codifying the law the court is not at liberty to look to any other law. Therefore unless in any other enactment there is a provision which abrogates any provision of the Act or repeals it expressly or by necessary implication the provision of the Act alone will be applicable to matters dealt with or covered by the same. (para 10)

v)In the decision of the Hon’ble Supreme Court Vidhyadhar V. Manik Rao and Another reported in 1999 (3) SCC at page 573 where it is observed and laid down as under:

As regards right of defendant 1 to raise pleas, it is not possible to subscribe to the view expressed in broad terms in Lal Achal Ram case by Privy Council that a stranger to a sale deed cannot dispute payment of consideration or its adequacy. A distinction has to be drawn between a deed which was intended to be real or operative between the parties and a deed which is fictitious in character and was never designed as a genuine document to effect transfer of title. In such a situation, it would be open even to a stranger to impeach the deed as void and invalid on all possible grounds. A person in his capacity as a defendant can raise any legitimate plea available to him under law to defeat the suit of the plaintiff. This would also include the plea that the sale deed by which the title to the property was intended to be conveyed to the plaintiff was void or fictitious or, for that matter, collusive and not intended to be acted upon. Thus, the whole question would depend upon the pleadings of the parties, the nature of the suit, the nature of the deed, the evidence led by the parties in the suit and other attending circumstances.

vi)In the decision of this Court T.Tamilarasan V. Arokkiasamy and Others reported in 2007 (3) CTC 59 and at page 65 & 66, wherein at paragraphs 17 and 18 it is observed and held as follows:

17.In a similar circumstance as correctly pointed out by the learned counsel for the appellant, this Court had an occasion to decide about the validity of such orders passed by the appellate Court under Order 41 Rule 27 and 28 CPC and that was the case decided in Sri Varadharaja Perumal Temple V.Jeyakumar, 2005 (1) L.W. 444 the operative portion of the judgment is as follows:-

“14. . . The reasonings recorded by the first appellate Court in paragraph-13 is not in accordance with Order 41 Rule 27 C.P.C. No finding is given as if the documents were sought to be produced before the trial Court. Whereas the trial Court refused to admit the evidence, which ought to have been admitted. Further, I find no finding that the appellant/defendant in A.S.No.60/92 was unable to produce the document despite the exercise of due diligence, such as the same was not within his knowledge or he was unable to produce the same, after the exercise of due diligence, etc. This being the position, by allowing the document, to be marked in the appellate stage, without giving an opportunity to the other side, to question the same by way of cross examination, the appellate Court deprived the right of opportunity to the plaintiff. In this view, in my considered opinion, the admission of the additional evidence viz., Exs.B3-B5 are not legally sustainable, which alone appears to be the basis for allowing the appeal. Exs.B3 to 5 are not the documents emanated between the parties and it seems, the notice and reply notice is not connected with the plaintiff temple. This being the position, the plaintiff temple should have been given an opportunity to explain under what circumstances these documents might have come into existence, such as the documents are prepared for the occasion or the recitals if any, adverse against the temple are not binding upon the temple etc. Thus, depriving the right of the temple, as if these documents are all admitted documents a finding given by the learned Additional Subordinate Judge, Cuddalore, is legally not sustainable. Even taking into account that these documents could be admitted as evidence, as submitted by the learned counsel for the appellant, the alleged admission contained therein or the recitals, could not be taken as the monumental proof to establish the relationship between the parties, as landlord and tenant.”

18.The effect of a party in not appearing in the witness box offering himself to be cross examined but only filing a statement of oath has been held to be a case of adverse inference to be drawn against him as per Section 114 of Evidence Act. The conduct of the party in not entering into the witness box and the law on this aspect as per the adverse inference has been settled by the Honourable Supreme Court in the judgment rendered in Vidhyadhar V.Mankikrao reported in 1999 AIR SCW 1129 by referring to the various judgments of the High Courts and the Privy Council in the following manner which is as follows:-

“16.Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbaksha Singh V. Gurdial Singh AIR 1927 PC 230. This was followed by the Lahore High Court in Kirpa Singh V.Ajaipal Singh, AIR 1930 Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari V. Radhabai Krishnarao Deshmukh, AIR 1931 Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter V. Narsingh Nandkishore Rawat, AIR 1970 Madh Pra 225, also followed the Privy Council decision in Sardar Gurbakhsh Singh’s case (AIR 1927 PC 230)(supra). The Allahabad High Court in Arjun Singh V. Virender Nath, AIR 1971 Allahabad 29 held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab and Harayana High Court in Bhagwan Dass V.Bhishan Chand, AIR 1974 Punj and Har 7, drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.

Deliberations:

10.At the outset, it is to be pointed out that the Respondent/Petitioner/Husband had filed O.P.No.2890 of 2007 on the file of the Learned II Additional Principal Judge, Family Court, Chennai (under Section 13(1)(ia) and 13(ib) of the Hindu Marriage Act, 1955) against the Appellant/Respondent/Wife, seeking a relief of ‘Divorce’ and dissolving their marriage that took place between him and the Appellant/Wife on 02.11.1998. pg 7 & 12 Also, he had sought the custody of the minor child (Hanuraghav aged about 7 years and 9 months). However, the Appellant/Respondent/Wife in her counter (of the Original Petition) had denied the fact that she ‘deserted’ the Respondent/Husband or subjected him to ‘cruelty’. Further, she had averred that the marriage had not broken down. She also denied that she used abusive language at the Respondent/Husband or that she threatened him by engaging rowdies. Instead of, her stand in the counter was that the Respondent/Husband left her and her child in the lurch and drove her from the matrimonial house with his relatives by enacting a drama of himself by vacating the house and prevented her entry into the matrimonial home by giving a false complaint to the senior police officials such as Additional Commissioner of Police etc.

11.A deeper perusal of the contents of the counter filed by the Appellant/Wife (of the Original Petition) indicates that the Appellant/Wife had averred that it was only the Respondent/Husband left the matrimonial house because of the encouragements of his mother who was from the very beginning not happy with the separate establishment and that apart, she never drove him out of the flat as stated by him. Continuing further, the Appellant/Wife had categorically averred in the counter that she never humiliated the Respondent/Husband at any point of time in public nor she conducted herself in such a way as to make him loose his sleep.

12.It is to be noted that the concept of marriage in present day modern world is no longer a celestial bond, as it was before realising the futility of returning a bond legally which has in fact, became a bondage and source of agony, the law makers have provided a way out by enabling the parties to seek dissolution of marriage on certain specified grounds. In the instant case, it is worthwhile to make a significant reference to the evidences of P.W.1 (Respondent/Husband), P.W.2 and P.W.3 for a fuller and better appreciation of the subject matter in issue.

13.It is to be borne in mind the term ‘Cruelty’ is nowhere defined, nor which is coupled capable of any definition, it has no parameters. It is subjective and relative.

14.Evidence of P.W.1 (the Respondent/Husband):-

i)In his proof affidavit (before the trial Court) had reiterated the averments/pleas taken by him in the Original Petition in O.P.No.2890 of 2007. As such, the same are not repeated, except to make a mention of portion of the said evidence which are necessary and essential for the purpose of adjudicating the controversies that centres around the parties. Thus, the evidence of P.W.1 (Husband) that once the Appellant/Respondent (Wife) named him as homosexual in order to provoke him and about this, he brought the same to the notice of his Wife’s father who advised him to undergo the test which made him to go into the shell further.

ii)Apart from that, he had stated that the Appellant/Wife for her own reason refused to have normal cohabitation with him saying that he is homosexual. Moreover, he had stated in his proof affidavit that the child developed ‘Dyslexia problem’ and it was his mother who took care of the child by taking it to the hospital for treatment. Besides this, it is the further evidence of P.W.1 that when he was assigned with an assignment wherein, he was to go to USA for attending the conference, which the Appellant/Wife could not tolerate and created a duress and not permitted him to visit even his parents before departing to USA and she started throwing things at him whatever was available and she laid her hands at him and unpacked his boxes and threw away all the papers which were kept to be presented on his official duty in USA. She also went to the extent of warning him if instead of her protest, if he sees his parents, he should not enter the house again and if he wanted to do so, he had to obey what of she utters. Since, he could not resist from meeting his parents, he was not permitted to enter the matrimonial home by her arrogant behaviour since June 2005.

iii)According to P.W.1 (Husband), after his return from USA, he directly went to his parents’ house and on coming to know about his arrival, the Appellant/Wife came to his parental house and dropped his son in his custody stating that she was not a ‘baby sitter’ and after this, she took a job at M/s.IL & FS Investment (P) Ltd., Adyar Chennai and thereafter, not even bothered to look after the well being of the child. Also, he proceeds to state that because of her wife’s uncaring attitude, the minor child developed attention deficit hyperactive disorder and when he consulted a paediatric neurologist, he was assured that it was curable one if proper care was bestowed immediately. In the meanwhile, during April 2007, school teacher also noticed the child’s abnormal behaviour and made a request that the child should undergo a clinical test and psychological test at Madras Dyslexia Association, T.Nagar, Chennai. The Appellant/Wife never cared to visit the child during the said period from January 2006 and he along with his mother took care of the child and as per the recommendation made by the school. P.W.1 in his chief examination (by means of an affidavit) had deposed that all of a sudden on 17.09.2007 after a gap of more than two years, the Appellant/Wife along with her mother barged into the place where he was staying with his parents and threatened him and his family members, by saying that she would file criminal complaint against him and further, he would see that he would be arrested and detained in custody. Furthermore, on 18.09.2007, the Appellant/Wife made phone calls to the Respondent/Husband (P.W.1) and threatened him again that he would be done away at any costs. Subsequently, she squatted over his place of residence and assaulted his mother and threatened to endanger her life and drove him and his parents out of the house by her arrogant atrocious behaviour and they were forced to take shelter in one of the relatives’ house which created social stigma on them because of the arrogant behaviour of his wife and her mother (mother-in-law), he lodged a complaint before the Additional Commissioner of Police, Chennai on 18.09.2007 which was forwarded to the Assistant Commissioner of Police, Teynampet, Chennai (who received the complaint) and the All Women Police Station, Teynampet registered and issued a receipt in C.S.R.No.89/CSR/W-24. In the enquiry conducted by the police officials, they convinced the Appellant and she handed over the keys of his parents’ house to him. This incident had perforced him to file an Original Petition for ‘Divorce’ because of the reason that the Appellant/Wife not only tortured him and his son but also the entire family, as his parents were chased out of their own house in their old age who are also patients taking treatment.

15.Deposition of P.W.1 (in Cross Examination):

a)P.W.1 (Husband) in his cross examination had deposed that if receipts were produced in regard to his son’s education expenses, he would reimburse the same. Further, he had stated that he has not angry with his son and also that the Appellant/Wife had bet his mother at 3.25 p.m., in the afternoon and that he had not seen the act of his wife beating his mother and that his mother had not gone to the doctor for treatment and that Ex.P5, receipt given by the police for the complaint received by them.

b)Proceeding further, it is the evidence of P.W.1 that he had not mentioned in its Original Petition that he had sustained swelling abrasion and blood injury. In the petition, he had stated that the Appellant/Wife had tored his shirt but the same was not produced before the trial Court. And further, he had not mentioned the colour of the shirt and also, whether it was T-shirt or ordinary shirt or halve sleeve or full sleeve shirt. That apart in his petition, he has not stated that the Appellant/Wife had bet him on his head and only in the sworn affidavit, he had mentioned that his wife had bet him on his head.

16.Evidence of P.W.2 (Respondent/Husband’s father):

i)The Respondent/Husband’s father in his evidence (in chief examination) had deposed that after the birth of his grandson who was aged about 3 years and 4 months, the Appellant (his Son’s Wife) started to misbehave with them by using unwanted words. He insisted his son P.W.1 (Respondent) to keep the Appellant engaged in his business which he commenced newly after his exist from TCS. This had not given any change but she was more vigorous and violent not only against them but also to family guest. Furthermore, on one particular day, his daughter-in-law (Appellant) quarrelled with his son (P.W.1) after he came back from his office by 11.00 p.m., by throwing articles and toring his shirt. In fact, his son (P.W.1) came rushing from the first floor to the ground floor and told him that he committed mistake by selecting her as his wife. When he enquired with the Appellant, she instead of refraining herself from her bad behaviour, started abusing him in the presence of his mother (grandmother of P.W.1) who was staying with him during that time.

ii)Apart from the above, it is the evidence of P.W.2 that his wife immediately phoned up to Appellant’s parents (who were staying at Adyar) and her mother and brother came to the scene and tried to pacify her during the whole night and at that time, his grandson was not well and kept under her wife’s care. His daughter-in-law’s mother expressed her willingness to take back the Appellant and grandson and the request was rightly accepted by us. After passing of few months, since there was no response from the Appellant’s side, he took his wife and son to the Appellant’s house and spoke to her in the presence of her parents and advised her to behave properly and lead her marital life in a pleasing manner. As a matter of fact, her parents also advised her. Thereafter, the Appellant came back to their house and has been quiet for a few months without much problem till her sister’s marriage and soon after her sister’s marriage, they were not able to tolerate her unruly behaviour.

iii)P.W.2 adds to state (in chief examination) that on a particular day, the Appellant (Daughter-in-Law) left to her parents’ place to Vellore without informing him or his son. Thereafter three months no sign of her or response not only from her but also from her parents and after a few months, he contacted her parents and enquired about her and they invited them for a family counseling on either side to which he agreed and went to their place along with some of their family members and discussed at length and to sort out the difference and her attitudinal problem and also, Appellant’s father apologized before all of them for her daughter’s behaviour and assured us that henceforth, she would behave in a proper manner. Also that, a joint decision made by himself and Appellant’s parents to make his daughter-in-law and his son to stay separately at Appellant’s father’s flat at Adyar and even this had not met with fruitful result and one day, his son came back to them and stated that he could not tolerate her atrocities and verbal abuse.

iv)P.W.2 in his chief examination had stated that after his son left his daughter-in-law and came back to his house, within a few days, his daughter-in-law came and dropped their grandson in their house for her own reason, to which, he did not knew till date and his wife was taking care of his son since then. For more than two years nothing happened, as his son and grandson were with them and was working with some private company. Moreover, on one particular day, his daughter-in-law came to their house along with her mother and quarreled with his wife in filthy language. When he came to know about this through his wife, he rushed to Chennai the next day and advised his daughter-in-law that this is not the way to enter his house during his absence and behave in an unruling manner and in fact, he wanted his daughter-in-law to stay away from his house till she mends her words and ways. But she totally refused to comply with his advice and stayed in stubborn manner at his house. In this situation, he left his house along with his wife and decided to stay away along with his wife to his relatives house. After couple of days, he and his wife came back to his house. The Appellant came to be quiet and hence, left his wife at his house and went to office to attend to his work. But the next day, when he went to his office, he received a call from his wife who was crying over the phone stating that the Appellant had hit her in her forehead and his wife was unable to tolerate the harassment made by his daughter-in-law.

v)P.W.2 had deposed that he rushed back to his house, consoled his wife took her away from his house along with his son and filed a complaint before the Teynampet Police Station and in the meanwhile, his son had filed divorce petition before the Family Court and the Police Inspector called him for an enquiry and his son and himself went to the station, where the Appellant was sitting with her lawyer and her lawyer pacified them stating that his daughter-in-law should vacate the house and hand over the key to his son and therefore, asked us to withdrew the complaint. Accordingly, they withdrew the complaint and proceeded with the Divorce Petition from 2007.

17.P.W.3 (Mother-in-Law of the Appellant) in her chief examination had repeated her husband’s evidence (P.W.2) and as such, the same is not repeated.

18.The term ‘Cruelty’ postulates a treatment of the person with such cruelty so as to cause a genuine and reasonable apprehension in his/her mind that it is injurious or harmful for him/her to live with the other side. In fact, ‘Cruelty’ may be inferred from the facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence and inference on the said issue can only be drawn after all the facts were taken into account by the concerned Court, in the considered opinion of this Court. In reality, ‘Mental Cruelty’ is a state of mind and feeling with one of the spouse due to the behaviour or behavioural pattern by the other. ‘Mental Cruelty’ is difficult to be proved by direct evidence unlike the case of the ‘Physical Cruelty’. ‘Cruelty’ as a ground of ‘Divorce’ in terms of Section 13 (1) (ia) of Hindu Marriage Act, 1955 is a conduct of such nature that the husband could not reasonably be expected to live with the wife. The onus to establish ‘Cruelty and Desertion’ is on the respondent/husband. In case of mental cruelty, the enquiry must commence in regard to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the other party whether it caused reasonable apprehension that it would be injurious or harmful to live with the other, ultimately, ‘Cruelty’ is a matter of inference to be drawn by taking into account, the nature of the conduct and its effect on the complaining spouse.

19.At this juncture, this Court aptly points out the definition of ‘Mental Cruelty’ in terms of Blacks Law Dictionary [VIII Edn. 2004] which runs as follows:

Mental Cruelty-As a ground for divorce, one spouse’s course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse. A wife who denies conjugal bliss to the husband, would be accountable on a charge of having caused mental cruelty to the latter.

20.The words ‘Mental Cruelty’ in 24 American Jurispredence 2D is stated as under:

Mental Cruelty as a course of unprovoked conduct toward one’s spouse which causes embarrassment, humiliation, and anguish so as to render the spouse’s life miserable and unendurable. The plaintiff must show a course of conduct on the part of the defendant which so endangers the physical or mental helath of the plaintiff as to render continued cohabitation unsafe or improper, although the plaintiff need not establish actual instances of physical abuse. 43.In the instant case, our main endeavour would be to define broad parameters of the concept of ‘mental cruelty’. Thereafter, we would strive to determine whether the instances of mental cruelty enumerated in this case by the Appellant would cumulatively be adequate to grant a decree of divorce on the ground of mental cruelty according to the settled position as crystallized by a number of cases of this Court and other Courts.

21.In the decision of the Hon’ble Supreme Court of Hawli in Jem V. Jem 33 reported in 1937 (34) Haw 312, it has held that cruel treatment not amounting to physical cruelty is mental cruelty.

22.In Wilde, J.O. In Power V. Power (1865) r SW & Tr. 173: 12 LT 824, it is observed that Cruelty lies in the cumulative ill conduct which the history of marriage discloses.

23.In the decision of Hon’ble Supreme Court Manisha Tyagi V. Deepak Kumar reported in Manisha Tyagi V. Deepak Kumar I 2010 DMC 451 (SC): 2010 (3) MLJ 358, it is held that even the continued ill-treatment, cessation of marital intercourse, studied neglect, indifference of one spouse to other may lead to inference of cruelty.

24.In the decision of Richardson V. Richardson [1949 (2) All E.R. 330 and at page 332], the Learned Judge had observed that ‘A matrimonial offence, seems to mean an offence against the vows of marriage. The vows of marriage are well known. Desertion is certainly one offence, and cruelty as defined by the law is another’.

25.Further, in the decision of the Hon’ble Supreme Court in Sirajmohmedkhan Janmohamadkhan V. Hafizunnisa Yasinkhan AIR 1981 SC 1972: (1981) 4 SCC 250, it has laid down thus:

… The concept of legal cruelty changes according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions, this feature has obtained legislative recognition, that a second marriage is a sufficient ground for separate residence and maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which lead to mental or legal cruelty.

26.Moreover, in the Division Bench Decision Tarak Nadi V. Smt. Dolly Nandi nee Paul [AIR 2009 Cal 248 and at special page 251] whereby and whereunder at paragraphs 14 & 15 it is observed as under:

14.Although it was sought to be argued on behalf of the respondent that the expenses of birth of the child were born by the family of the wife and that the husband did not take any step, we find that the husband has denied such allegation and the wife refused to produce the discharge certificate from the nursing home which would indicate that the husband signed the same. Be that as it may, in this appeal where the dispute is as regards desertion started in the year 1997, those facts are immaterial. The wife in her cross-examination admitted that her relation with her husband till Matul Bhat of her daughter was good. Thus, in the absence of any evidence of torture in her matrimonial home, there was no justification of withdrawing from the society of the husband. It is apparent that the wife without any just cause refused to stay with the husband nor did she ever try to go back to her or to settle elsewhere even if we accept her contention that she was not liked by her in-laws.’when her relation with her husband was good till Matul Bhat of her daughter, there was no reason for not communicating with the husband from the year 1997 till 2002, the date of presentation of the petition for divorce. The wife in this case has failed to prove any just cause for not living with the husband and her intention to severe the relationship was final would appear from her conduct that she kept no touch with her husband till the institution of proceedings from 1997 and even after getting the news of death of her father-in-law she did not feel the necessity of standing by the side of her husband. The letters sent under registered posts were also not replied and no reason has been assigned for not giving such reply.

15.The learned trial Judge, as it appears from the judgment impugned, did not at all consider the aforesaid aspects of the evidence on record and disbelieved the case of desertion simply because the husband in his cross-examination stated that he was not willing to accept his wife if she wanted to go back at that stage. Once a valuable right of divorce has accrued in favour of the husband if he declined to take back the wife at the time of hearing of the suit. Otherwise, no decree for divorce can be granted on the ground of desertion and the errant spouse at the time of hearing by giving a pretended proposal of resumption of relationship can frustrate the petition for divorce although desertion for more than two years is proved.

27.In the present case, on behalf of the Appellant/Respondent/Wife, it is represented before this Court that even though the Appellant/Wife was not examined as a witness on her side to rebut the averments made by the Respondent/Husband in the Original Petition as well as in the Proof Affidavit, yet a prime stand is taken on her behalf that the Respondent/Husband had not proved the factum of ‘Cruelty’ and ‘Desertion’. Therefore, he is not entitled to claim the relief of dissolution of marriage on these grounds set out in the affidavit. Repelling the contentions of the Appellant’s side, the Learned counsel for the Respondent/Husband submits that in view of the fact that the Appellant/Wife had not gone into box before the trial Court and examined herself as a witness to rebut the averments made by the Respondent/Husband in the Original Petition as well as in the averments made in the Proof Affidavit, a Court of Law is to draw an adverse inference under Section 114 (g) of the Indian Evidence Act, 1872, because of the reason that she is a material witness and her non examination tantamounts to withholding of her evidence, clearly compels a Court of Law to draw an adverse inference against her.

28.It is to be pointed out that the use of words ‘May presume’ in Section 114 of the Indian Evidence Act, 1872, leave it to the Court to make or not to make presumptions, according to the circumstances of the case and presumption when made is again a rebuttable one, as a matter of fact. Section 114 of the Act gives a discretion to a judicial to infer one fact to the existence of another having a natural events or human conducted as per decision in In re, Madugula Jermiah [AIR 1957 AP 611].

29.It is to be borne in mind that a ‘Presumption’ and ‘Inference’ are not the same thing. Though originally, the presumptions were treated as inference based on human experience, inference can be recorded as a permissible deduction from the evidence before a Court of Law and the trier of fact may accept or reject or accord such probative value as it desires, while a presumption is characteristically a rule of law fixed and relatively defined in its scope and effect. To put it succinctly, a ‘presumption’ is a mandatory deduction which the law expressly directs she be made in a particular situation; while inference is no more than a permissible deduction which the trier of facts may adopt when an express direction of Law to that effect.

30.Apart from that, a ‘presumption’ is mandatory. An inference is permissible. Also an inference may be, and often is retroactive i.e., to say a trier may for the present conditions infer a previous fact. Further, an adverse presumption for non-production of available evidence is, of course, always optional and one, of fact depending upon the whole set of facts. It is not obligatory as per decision Indira V. Raj Narain [AIR 1975 SC 2299]. Moreover, in the decision of Narayanan V. State [AIR 1959 SC 484]. Salutary principle is reiterated and it was observed that to determine whether a witness is material or not, the test is whether he is essential witness to the unfolding of narrative on which the prosecution is based as per decision Narain V. State (AIR 1959 SC 484).

31.Further, if a man wrongfully withholds evidence, every presumption to his disadvantage consistent with the facts admitted or proved will be adopted as per decision Williamson V. Rover Cycle [1901 (2) IR at page 619]. Before drawing an adverse inference, the Court should satisfy itself that the witness was available at the time of hearing but was kept back as per decision Jagdish V. S [AIR 1970 Bom 166].

32.Besides this, it cannot be forgotten that presumption are necessarily made against parties who having a knowledge of the facts in dispute will not subject themselves to examination, when a prima-facie case is made against them, and when by their own evidence, they might have answered it as per decision Nawab Syed V. Amanee, [19 WR 149 PC pp 150-151]. In fact, when a party stuns the witness box even though he or she was expected to figure as witness, then adverse inference would be drawn as per decision Prabhakaran V. Ranganathan, [2009 (1) MLJ 67 (Mad)]. Generally speaking, it is the bounded duty of a person personally knowing the whole circumstances to tender evidence and to submit to cross examination. Non-appearance as a witness would be the strongest possible circumstance to discredit the truth of his case as per decision Gurbakhsh V. Gurdial, [AIR 1927 PC 230]. Where a person having personal knowledge of certain material facts of the case does not enter the witness box and avoids cross examination, the Court would be justified in drawing adverse inference against him or her as per decision 2010 (3) MPLJ 477 [Pandru V. Dharam Singh].

33.As far as the present case is concerned, the Respondent/Husband was examined as P.W.1 (before the trial Court) and was cross examined by the Appellant/Wife to some extent, however, the cross examination of P.W.1 (Husband) was centred around the aspect of payment of interim alimony for the Appellant/Wife and the educational expenses of the child. At this stage, this Court aptly points out that the preamble portion to the Order passed by the Learned II Additional Principal Judge, Family Court, Chennai in O.P.No.2890 of 2007 dated 05.07.2012 categorically points out that when the Petition came up for final hearing on 28.06.2012 (in the presence of the Respondent/Petitioner/Husband) and at the time of Appellant/Respondent/Wife’s side evidence, she was called absent and set ex-parte. Thereupon, the trial Court was constrained to pursue the petition and counter and other connected material papers available on record and the evidence adduced on the side of the Respondent/Husband/Petitioner and passed orders in the Original Petition.

34.Inasmuch as the cross examination of P.W.1 was not projected in regard to ‘Cruelty and Desertion’ on the part of the Appellant/Wife and further, when the Appellant/Wife was not in a position to impeach the evidence of the P.W.1 (Respondent/Husband) coupled with the averments made by him in the Original Petition, this Court unhesitatingly draws an adverse inference against the Appellant/Wife to the effect that she had caused ‘Mental Cruelty’ to the Respondent/Husband. Further, when the Appellant/Wife, possessing personal knowledge of certain material facts of the case/controversies between herself and the Respondent/Husband had not filed the proof affidavit or not entered into the witness box for cross examination, certainly it is a clear case of drawing an adverse inference against her and accordingly, an adverse inference is so drawn.

35.Coming to the aspect of ‘Desertion’ it is to be pointed out that the said term means Desertion of a spouse by other spouse to the marriage without reasonable cause and without consent or against the wish of such person and includes willful neglect. The prime ingredients of desertion are 1)there must be an intention to bring cohabitation permanently to an end and 2)there is an element of separation and these two ingredients should continue during the whole statutory period. If the spouse abandons the other spouse in a state of temporary passion ex: anger or disgust without intending cohabitation permanently to an end, it would not amount to Desertion as per decision Sunil Kumar Gupta V. Kunti Gupta [AIR 2003 Jharkhand at page 42 & 44].

36.It is to be remembered that ‘Right of Divorce’ on the ground of ‘Desertion’ accrues if two years is established. Whether the deserting spouse joins matrimonial home before the completion of two years and then once again leaves the other party for the fault of the deserted spouse, desertion of two years cannot be counted from the date of first act of desertion as per decision Ram Dayalal V. Smt. Uma Wanti reported in 1990 (II) DMC 622. If two years are not completed, the matrimonial offence of Desertion is not committed as per decision Ms.Santosh Kumari V. Shiv Prakash Sharma [AIR 2001 Delhi 376]. The period of limitation as to a continuous period and cannot be made up by aggregating the period to less than two years immediately preceding to the presentation of the petition with an earlier but detach party of whatever duration as per decision Sitabai V. Ramachandra [59 Bom LR 885].

37.There is no ground like Mutual Desertion and the Petitioner succeed only when she/he is able to establish Desertion by the Respondent as per decision Smt.Guru Bachan Kaur V. Preetam Singh [AIR 1998 All 140]. In effect, Desertion is not the withdrawal from a place but from the state of things. It means withdrawing from the marital obligations i.e., to say not permitting or allowing and facilitating the cohabitation between the parties. Moreover, it is not a single act complete in itself. It is a continuous course of contact should be established based on the facts and circumstances of the given case. In reality, the Petitioner must prove that there was desertion throughout the statutory period and there was no bona-fide attempt on the part of the Respondent to return to the matrimonial house and that the Petitioner did not prevent the other spouse be his/her action by words or conduct from cohabitation, as per decision Chintala Venkata Satyanarayana V. Chintala Shyamala [AIR 2003 AP 322]. Insofar as the onus is concerned, it is always on the Petitioner in proving the factum of Desertion as well as Animus deserendi, which he/she has to prove to the satisfaction of the Court as per decision Arundhati Deepak Patil V. Deepak Bhaurao Patil [2008 (5) Bom CR 1 at page 12]. The essence of Desertion means the intentional permanent abandonment by one spouse by other without that others consent and without a reasonable cause as opined by this Court.

38.At this juncture, this Court relevantly points out that Mere animus reverndi is not sufficient to terminate the act of desertion and that intention may be coupled with factum reverndi i.e., the wife ought to have been in fact returned to the matrimonial house. In the absence of the same, it could not be held that desertion came to an end. In this connection, in the decision of this Court P.Kalyanasundaram V. K.Paquialatchamy [2003 (1) MLJ 669 and at page 680 (Mad)] it is held that the conclusion arrived at by the Family Court to the effect that expression of willingness to come back to the home was sufficient and it terminated the desertion was erroneous.

39.At this stage, on behalf of the Appellant/Wife, a legal plea is taken before this Court that it is only the Respondent/Husband withdrew the company of the Appellant/wife and he had not taken any steps to rejoin thereafter. Further, on behalf of the Appellant, it is also brought to the notice of this Court that the Appellant/Wife had given Ex.P6, letter dated 29.09.2007 (in the police station) addressed to the Respondent/Husband inter-alia stating that she was living in the premises at 30/1, I Cross Street, R.A. Puram, Chennai from 17th September 2007 and that she is handing over the keys to him etc.

40.It is to be noticed that the Original Petition No.2890 of 2007 before the Learned II Additional Principal Judge, Family Court, Chennai was filed on 24.09.2007. In the said petition, the Respondent/Husband at paragraph 10 at among other things observed that during June 2005, he had occasioned to proceed to USA for a week’s time for presentation of a paper on the software project and he was about to leave the Appellant/Respondent/Wife made his life miserable once again indulging in intolerable acts and in fact, he was driven out of the said flat by her arrogant behaviour during June 2005 . Further at paragraph 12 of the petition, he had among other things averred that his minor son master Hanuraghav is impairment of his intelligence as a result of atrocious behaviour of the Appellant etc., and further, his son’s school teacher pointed out that his son was to undergo clinical and psychological test with Madras Dyslexia Association, T.Nagar, Chennai. Thus, the Appellant/Wife never cared to visit the child at any time during the said period from June 2005 till this date (filing of the Original Petition).

41.The Respondent/Husband in the Original Petition at paragraph 14 had stated that when the Appellant/Wife was staying away from the family for more than two years and all of a sudden, on 17.09.2007 with ulterior motive and mala-fide intention, she came along with her mother and some unknown persons to his residence at 30/1, I cross street, R.A.Puram, Chennai and both of them used abusive language and threatened him that he would be done away by hiring thugs etc. Added further, the matter became worse when they continue to stay at his house at R.A.puram and continuously misbehaved there. Therefore, the relatives from both the sides came and mediated and at about 1.00 a.m., the Appellant and her mother was escorted by their relatives to their flats. Subsequently, on the next day on 18.09.2007, the Appellant phoned up the Respondent/Petitioner and used abusive language saying that her mother is arranging for harming him at any costs. Also at para 16, the Respondent had stated that the Appellant/Wife deserted him in the year 2005 itself. When she refused to cohabitation with him, abandoned him with the child and the family and when he and his minor son were left to manage their affairs without her assistance whatsoever. Moreover, they are living separately for the last two years and four months and when the marriage was irretrievably broken down following such desertion and coupled with the act of cruelty mentioned in the petition.

42.Before the trial Court, in the Original Petition, Ex.P5 complaint dated 18.09.2007 was (issued by the police) marked. Even though the Appellant/Wife in Ex.P6, letter dated 29.09.2007, addressed to the Respondent/Husband had stated that she was living with the Respondent/Husband at the residence/premises bearing No.30/1, I Cross street, R.A.Puram, Chennai from 17.09.2007. Unfortunately, she had not chosen to examine herself to substantiate the said verbatim projected by her. That apart, a futile bid on the part of the Appellant/Wife all of a sudden to enter into the house of the Respondent/Husband on 17.09.2007 at 10.00 a.m. together with her mother and some unknown persons etc., would not go to show that there was no desertion for a continuous period of two years. As such, the contra plea taken on behalf of the Appellant/Wife that there was no continuous period of two years, in regard to the plea of Desertion is not accepted by this Court, based on the facts and circumstances of the case which float on the surface.

43.Be that as it may, even though the parents of the Respondent/Husband as P.W.2 and P.W.3 before the trial Court were examined (by way of proof affidavit in chief examination), were not cross examined by the Appellant/Wife, in fact, the Respondent/Husband as P.W.1 and his parents as P.W.2 and P.W.3 had deposed about inhuman conduct of the Appellant/Wife. In short, this Court succinctly points out that in the absence of cross examination of P.W.2 and P.W.3 by the Appellant/Wife’s side and also added further, when P.W.1 was not cross examined by the Appellant/Wife touching upon the aspect of Cruelty and Desertion, safely and rightly, an adverse inference would be drawn in the eye of law and that their evidence had remained unimpeachable and there were of worthy of acceptance. Also that, she had also not produced any other witness to examine on behalf of the Appellant especially, when she had not let in any evidence by examining herself before the trial Court subjected herself to cross examination.

44.Viewed in that perspective, this Court rightly comes to an irresistible and inevitable conclusion that the Respondent/Husband had established the ground of ‘Cruelty and Desertion’ as averred by him in the petition. In this regard, this Court is in complete agreement with the view taken by the trial Court and the same is Just and Proper.

45.Also that, in the present case, there is a complete break down of the marriage and the marriage between the parties has broken down irretrievably beyond repair. It is no longer possible for the parties to live together and directing the respective parties to live together as husband and wife would be a meaningless affair. Also that the continuous of marriage only for name sake would be of no utility value to any one. For all practical purposes, the marriage between the parties held emotionally and practically became dead with no scope for revival. Suffice it for this Court to point out that the entire conspectus of attendant facts coupled with the circumstances of the case indicate that living of the Appellant/Wife and the Respondent/Husband would not only be difficult, but also impossible. As such, the trial Court had rightly held that there was no option but to grant a ‘Decree of Divorce’. It is evident from the order passed by the trial Court in O.P.No.2890 of 2007 dated 05.07.2012, when it granted the relief of Dissolution of Marriage that took place between the parties on 02.11.1998 but it had not awarded any sum to the Appellant/Wife towards permanent alimony. In this connection, this Court worth recalls and recollects the decision of the Hon’ble Supreme Court in Satish Sitole V. Ganga (Smt) [2008 (7) SCC 734] whereby and whereunder the Hon’ble Supreme Court following the precedent in Romesh Chander, 1955 (2) SCC 7 while invoking the Art.142 of the Constitution of India observed that the marriage dissolved to husband paying permanent alimony of Rs.2 lakhs and costs of the Appeal was assessed at Rs.25,000/-.

46.That apart, considering the interest of welfare of the Appellant/Wife and her status, this Court taking note of the spiraling raises of essential commodities, costs of inflation, deflation etc., and also on the basis of Fair Play, Equity and even as a matter of prudence, to prevent an aberration of Justice and to secure the ends of Justice, directed the Respondent/Husband to pay a sum of Rs.10 lakhs (Rupees Ten Lakhs Only) to the Appellant towards permanent alimony in full and final settlement, within a period of one month from the date of receipt of copy of the judgment.

47.One cannot brush aside a very vital fact in dealing with an application for the custody of the child of tender age in terms of Section 26 of the Hindu Marriage Act, 1955 in the case of a Hindu, a Court of Law has to be guided by the considerations underlying the Hindu Minority and Guardianship Act, 1956. Section 6 of the Hindu Minority and Guardianship Act lays down who the natural guardians of a Hindu minor. Sub section (1) of the Section specifies that in the case of a boy and an unmarried girl, the father after him, the mother would be guardian in regard to the custody. Provided the custody of a minor who has not completed the five years of age shall ordinarily with the mother. Section 13 of this Act prescribes that in the appointment or declaration of any person as guardian of a Hindu minor, the welfare of the minor shall be of paramount consideration and no person shall be entitled to the guardianship by virtue of the provision of the Hindu Marriage Act, 1955 or of any law relating to guardianship in marriage among Hindus, if the Court is of the opinion that his or her guardianship will not be for the welfare of the minor. Section 5 of the Hindu Minority and Guardianship Act, 1956 says that the Act shall have an overwriting effect. Before deciding the question as to whether the custody should be given to the mother or the father or partially to one and partially to the other, the High Court must i)take into account the wishes of the child concerned and ii)assess the psychological impact, if any, on the change in custody after obtaining opinion of a child Psychiatrist or a child welfare worker. If a court of Law finds that it is just and proper that the custody of children may be transferred from one parent to the other that can be made under provisions of Section 26 of the Hindu Marriage Act, 1955 itself, as per decision Sangeeta V. Sanjai @ Babla [2006 (4) AWC at page 3344 and 3346 (All.)]. Apart from that, a minor child so long as minor, can claim maintenance from his father or mother. It is well settled position of Law that in the matter relating to the custody of minor child, the paramount consideration is the welfare of the minor and not the legal right of one or the other side. It is irrelevant as to whether mother or father is to be accused for the marital imbalance paving way to the dispute in regard to the custody of the child.

48.No wonder, normally, when the child is of tender age, it is the mother who can take care and provide motherly affection but this cannot be pressed into service as an universal application. Of course, there may be certain exception where a father can take care of the child much better than the mother of the minor. The first duty of the Court is to see what is for the benefit of the child and that should be the primary consideration. The welfare of the child is neither to be measured by a ‘Monetary-Tape’ nor by ‘Physical Comfort’ only. Further, the innocent parties are entitled to the custody of the children, even when no misconduct of them is proved against the offending party, provided the interest of the child does not suffer. The issue as to who is the natural guardian is to be determined with reference to the Hindu Minority and Guardianship Act, 1956, and not as per Hindu Law. In fact, the ingredients of Hindu Minority and Guardianship Act, 1956 overrides the Hindu Marriage Act, 1955.

49.Coming to the aspect of custody of the minor child Hanuraghav, it is to be pertinently pointed out by this Court that the child as seen from Ex.P4, Assessment Report of Madras Dyslexia Association, T.Nagar, Chennai, had developed learning disability for which medical treatment is provided to him. In fact, the Respondent/Husband had claimed permanent custody of the minor son. Ordinarily, the views of minor may be ascertained but they are not conclusive as per decision of this Court Rajaih V. Dhanapal reported in 1985 (1) MLJ at page 97. It is needless for this Court to state that after completion of five years, automatically, the right of father as a natural guardian under Hindu Minority and Guardianship Act, 1956 revives and prevails over the right of the mother as opined by this Court. Since the welfare of the child is paramount consideration in deciding the custody of the child and even though the Respondent/Husband is the natural guardian of the minor child according to the relevant provision contained in Hindu Minority and Guardianship Act, 1956, r/w.Guardianship and Wards Act, 1890, this Court considering the welfare of the minor and also taking note of the fact that the child is taking treatment for his learning disability is of the considered opinion that the interest of the minor child would be well served and taken care of by the Respondent/Husband (father) if the custody of the child is ordered to be given to him. Moreover, even regard to custody, maintenance and education of the minor child, the Respondent/Husband is a fit person and taking into consideration, this Court holds that the Respondent/Husband is entitled to for the permanent custody of the child. The Respondent/Husband is to take care of the welfare of the minor son Hanuraghav to maintain him, to meet out his educational expenses and to incur necessary medical expenses as the case may be. Since the Appellant/Wife is the mother of the minor son, she is entitled to the visitation rights and in this regard, this Court grants her permission to move the concerned Family Court by filing necessary application and to seek redressal of her grievance in the manner known to Law and in accordance with Law.

50.In the upshot of the above said qualitative and quantitative discussions, the Civil Miscellaneous Appeal fails and the same is dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.

[S.M.K., J.] [M.V., J.]

01.12.2015