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K.Gangatharan vs Sornasundari on 24 October, 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 24.10.2018

RESERVED ON : 25.07.2018

DELIVERED ON : 24.10.2018

CORAM

THE HON’BLE MR. JUSTICE M.V.MURALIDARAN

C.M.S.A.(MD) No.26 of 2013
and
CMP(MD)No.6158 of 2018

K.Gangatharan … Appellant

vs

Sornasundari .. Respondent

Prayer: Appeal filed under Section 28 of the Hindu Marriage Act read with
Section 100 of C.P.C. against the judgment and decree dated 31.08.2012 in
H.M.C.M.A.No.6 of 2004 on the file of the District Judge, Sivagangai,
confirming the judgment and decree passed in H.M.O.P.No.60 of 2002, dated
03.03.2004 on the file of the Subordinate Judge, Devakottai.

!For Appellant: Ms.P.Malini

^For Respondent : Smt.S.Sujatha
(Legal Aid counsel)

:JUDGMENT

This Civil Miscellaneous Second Appeal has been filed by the appellant
under Section 28 of the Hindu Marriage Act, 1955 read with Section 100 of
Code of Civil Procedure, 1908 against the judgment dated 31.8.2012 in H.M.
C.M.A.No.6 of 2004 on the file of the District Judge, Sivagangai, confirming
the judgment passed in H.M.O.P.No.60 of 2002, dated 03.3.2004 on the file of
the Subordinate Judge, Devakottai.

2. The appellant herein is the husband and he had filed H.M.O.P.No.60
of 2002 under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 for divorce.

3. Briefly stated that the case of the appellant is that the marriage
between the appellant and the respondent was solemnized on 26.10.2001 and
after the marriage, they lived in joint family in the matrimonial home.
Within few days of the marriage, the respondent did not respect the parents
of the appellant and she had not done her duty to her husband. In the
absence of the appellant, the father of the respondent took her to his home
and whenever, the appellant went to his father-in-law house to take back his
wife, the father of the respondent ill-treated, abused and threatened him.

4. According to the appellant, the respondent demanded the appellant to
lead a separate life and accepting the request, they took a rented house
separately and led their separate life. Even during the period of separate
life, the respondent had not cooked properly and unnecessarily quarrelled
with the appellant. Without knowledge of the appellant, the respondent
went to her parents home and in fact, she had aborted pregnancy without the
knowledge of the appellant. The respondent often quarrelled with the
appellant and went to her parents house. On 30.12.2001, the father of the
appellant and a mediator by name Solai went to the house of the respondent
for mediation and at that time, the respondent did not respect them and ill-
treated them.

5. According to the appellant, on 20.5.2002, the respondent quarrelled
with the appellant and again left the matrimonial home by saying that she was
not willing to lead life with the appellant. Thereafter, she had not
returned back to her matrimonial home. On 1.7.2002, the appellant issued a
lawyer notice to the respondent for restitution of conjugal rights and the
respondent failed to receive the said notice. Even after the lawyer notice,
the respondent did not return back to the matrimonial home for leading the
family life. According to the appellant, because of the respondent’s
activities, the appellant suffered a lot by mind. Hence, the appellant has
filed the petition for divorce.

6. Refuting the averments in the petition, the respondent filed counter
stating that it is absolutely false to state that she had not respected the
parents of the appellant and refused to do her duty as wife. It is stated
that at the time of marriage, her father gave 5 soverigns of golden chain to
the appellant and 35 soverigns of gold jewels to her and a cash of
Rs.20,000/- was also given to the appellant as dowry, apart from sridhana
articles worth Rs.50,000/-. It is also stated that the respondent and her
father ever disrespected the appellant and his family members and also never
threatened them.

7. According to the respondent, when the respondent was living with her
husband in the joint family, the parents and the sister of the appellant and
also the appellant demanded dowry of motor cycle, fridge and air-cooler.
They have also demanded Rs.1,00,000/- cash for the improvement of the
business. They threatened her by saying that if she had not fulfilled the
demand, she would have been deserted by the appellant. In the meanwhile, the
respondent conceived pregnancy and the same was informed to the appellant and
his parents. Even after knowing the pregnancy, due to non-fulfilment of the
dowry, they subjected her to cruelty by not providing food and other
facilities to her. According to the respondent, in the year 2002, the
appellant and his parents demanded dowry and assaulted her and deserted from
the matrimonial home. Unable to tolerate the torture of the appellant and
his family members, the respondent came to her father’s house. It is
stated that she was under the impression that the appellant would come to the
parents house of the respondent and take back her matrimonial home for
leading the family life. By suppressing the material facts, the appellant
has filed the petition and prayed for dismissal of the same.

8. Before the trial Court, on the side of the appellant, P.Ws.1 and 2
were examined and Exs.P1 to P6 were marked. On the side of the respondent,
R.W.1 was examined and no document was marked.

9. Upon consideration of the oral and documentary evidence, the trial
Court dismissed the petition for divorce filed by the appellant. Aggrieved
by the same, the appellant preferred H.M.C.M.A.No.6 of 2004.

10. By the judgment dated 31.08.2012, the first appellate Court
dismissed the appeal preferred by the appellant holding that the appellant
has failed to prove the cruelty made against him and his parents. Aggrieved
by the dismissal of the appeal, the appellant has preferred this Civil
Miscellaneous Second Appeal.

11. I heard Ms.P.Malini, learned counsel for the appellant. Despite
service of notice, the respondent had not entered appearance. By an order
dated 19.04.2018, this Court appointed Smt.Sujatha, learned counsel as Legal
Aid Counsel and she appeared and argued the case on behalf of the respondent.
I perused the entire records.

12. In the present appeal, the appellant had raised the following
substantial questions of law:

(i)Whether the failure on the part of the appellate Court to take note of the
acquittal of criminal case launched by the respondent against the appellant
and his family members resulted in arrest and putting in jail renders its
finding unsustainable or not?

(ii)Whether the trial Court believed the accusation of demanding dowry and
ill-treatment and harassment and driven out of matrimonial home on non-
fulfilment of the same based on the circumstance of filing of charge sheet is
unsustainable in law or not?

(iii)Whether the false and baseless accusation of demanding dowry and ill-
treatment and driven out of matrimonial home on non-fulfillment of same which
was made deliberately and intentionally resulted in arrest and remand causes
mental cruelty or not?

(iv)Whether the non-responding to legal notice issued by the appellant for
restitution of conjugal right and the non-filing of a petition for
restitution of conjugal right and not even stated the respondent is wiling to
join the matrimonial home and no chance for reunion are circumstances
entitles the appellant to get divorce or not?

(v)Whether the acquittal of the criminal case launched by the respondent with
deliberation and knowing it to be false and also knowing the ill-consequences
of such criminal prosecution entitles the appellant to get divorce or not?

(vi)Whether the non-proving of wild accusation made in the counter by the
respondent amounts to causing mental cruelty or not?

(vii)Whether the improper appreciation of evidence on record by both Courts
below render their findings sustainable?

13. The learned counsel for the appellant contended that the trial
Court ought to have held that the accusation of demanding dowry made by the
respondent was false and unfounded and in fact, the respondent had dragged
the appellant and his family members with false complaint and caused arrest
and put them in jail. The aforesaid act of the respondent caused mental
cruelty to the appellant. She would submit that the trial Court ought to
have held that the accusation of demanding dowry was untrue and artificial
and the respondent has deliberately and intentionally made such accusation
against the appellant and his family members with a view to harass them. The
aforesaid act of the respondent also caused mental cruelty to the appellant.

14. The learned counsel then contended that the first appellate Court
has failed to take note of the acquittal of the criminal case prosecuted by
the respondent against the appellant and his family members. She further
submitted that both the Courts failed to see that the respondent has not
responded to the appellant’s demand of restitution of conjugal rights and she
has not filed a petition for restitution of conjugal rights. Further, she
has not even stated in her counter that she was willing to have to conjugal
rights with the appellant.

15. According to the learned counsel, both the Courts have failed to
see that the allegation of the respondent demanding motorcycle, fridge, air-
cooler and cash of Rs.1,00,000/- for development of his business by the
appellant and his family members have not been proved by the respondent.
The learned counsel further argued that the respondent has not expressed her
readiness and willingness to have the conjugal rights with the appellant and
there was no chance for reunion were all entitling the appellant to get
divorce from the respondent. In fact, the appellant has proved by way of
cogent evidence for getting divorce on the ground of mental cruelty caused by
the respondent. Finally, the learned counsel submitted that the concurrent
findings of the Courts below are unsustainable and the same is liable to be
set aside. To fortify her submission, the learned counsel relied upon the
following decisions:

(i)Samar Ghosh v. Jaya Ghosh, reported in I (2007) DMC 597 (SC).

(ii)R.Frederick v. H.Malini, reported in (2018) 1 MLJ 325.

16. It is an admitted fact that the marriage between the appellant and
the respondent was solemnized on 26.10.2001 and initially, they lived in the
joint family and after that, the appellant and the respondent led separate
life in a separate rented house.

17. The allegation of the appellant is that the respondent refused to
do her duty as wife and even though, the appellant was with his wife in a
rented house, he led his bachelor life. Further, allegation of the appellant
is that the respondent filed a false dowry harassment petition against the
appellant and his family members. Based on the complaint, they were arrested
and detained in jail. The case was taken on file as C.C.No.26 of 2002 and
after full fledged trial, by the judgment dated 22.10.2008, the appellant and
his family members were acquitted of the offence under Section 498A IPC and
Section 4 of the Dowry Prohibition Act.

18. On a perusal of the judgment dated 22.10.2008 in C.C.No.26 of 2002
on the file of the District Munsif-cum-Judicial Magistrate Court, Karaikudi,
it is seen that the learned Magistrate recorded the finding that in her
evidence P.W.1 (respondent herein) admitted that at the time of marriage, the
appellant has not demanded any dowry and after six months of the marriage
also, the appellant has not demanded fridge, motorcycle and air-cooler as
alleged. Thus, the learned Magistrate held that the from the evidence of
PW.1, the prosecution has failed to prove its case and therefore, acquitted
the accused persons.

19. However, the first appellate Court, in its judgment observed that
the the respondent had filed the petition for dowry harassment against the
appellant and his family members after filing of the divorce application.
The case against them under the dowry harassment was pending and not disposed
of. Therefore, we cannot say that the allegation made against the appellant
and his parents with regard to the dowry harassment was not true. It would
be decided only after trial. The aforesaid finding of the appellate Court
factually incorrect on the ground that in the said criminal case under
Section 498A IPC and Section 4 of Dowry Prohibition Act, the accused were
acquitted on 22.10.2008 itself. So on the date of judgment in the appeal
before the District Judge, Sivagangai in H.M.C.M.A.No.6 of 2004, the
appellant and his parents were acquitted.

20. Cruelty has not been defined in the Act but various pronouncements
of the Apex Court and other High Courts have outlined the scope of the term
‘cruelty’. Cruelty is evident where one spouse treats the other and manifests
such feelings towards him or her as to cause reasonable apprehension that it
will be harmful or injurious to live with the other spouse. Cruelty may be
physical or mental. Whether a spouse is inflicted with physical cruelty or
not, it can be judged on the basis of direct evidence whereas mental cruelty
is to be inferred on analyzing the factual matrix of each case and drawing
conclusion thereon.

21. Cruelty for the purpose of Section 13(1)(i-a) of the Hindu Marriage
Act 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.
According to the appellant, filing of false complaint against the appellant
and his family members has really caused mental cruelty not only to the
appellant, but also to the family members of the appellant.

22. In V.Bhagat v. D.Bhagat, reported in (1994) 1 SCC 337, the Hon’ble
Supreme Court examined the concept of ?mental cruelty? and observed as under:
?16. Mental cruelty in Section 13(1)(i-a) can broadly be defined as that
conduct which inflicts upon the other party such mental pain and suffering as
would make it not possible for that party to live with the other. In other
words, mental cruelty must be of such a nature that the parties cannot
reasonably be expected to live together. The situation must be such that the
wronged party cannot reasonably be asked to put up with such conduct and
continue to live with the other party. It is not necessary to prove that the
mental cruelty is such as to cause injury to the health of the petitioner.
While arriving at such conclusion, regard must be had to the social status,
educational level of the parties, the society they move in, the possibility
or otherwise of the parties ever living together in case they are already
living apart and all other relevant facts and circumstances which it is
neither possible nor desirable to set out exhaustively. What is cruelty in
one case may not amount to cruelty in another case. It is a matter to be
determined in each case having regard to the facts and circumstances of that
case. If it is a case of accusations and allegations, regard must also be
hand to the context in which they were made.?

23. In Parveen Mehta v. Inderjit Mehta, reported in (2002) 5 SCC 706,
the Hon’ble Supreme Court held:

?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 post 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 of 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.?

24. According to the appellant, the respondent left the matrimonial
home and lived with her parents house and she has not returned back the
matrimonial home. To prove that the appellant has taken steps to live with
the respondent, he had filed Ex.P4 notice dated 1.7.2002, wherein the
appellant has called upon the respondent to come and lead happy matrimonial
life. According to the appellant, the respondent had failed to receive the
said notice. Since the respondent had failed to come and join with the
appellant, he had filed petition for divorce.

25. However, the first appellate Court held that the appellant and the
respondent lived separately for about eight years and that there was no
reason for reunion. It was on the part of the appellant to take steps for
the reunion. The mistake was on the part of the appellant and he has not
taken any steps for the reunion. The aforesaid finding of the first
appellate Court is unsustainable on the ground that nothing prevented the
respondent from taking steps for reunion. Admittedly, in the case on hand,
the respondent has not taken steps for reunion, nor she had shown her
readiness and willingness to live with the appellant. On the other hand, the
respondent prosecuted the appellant and his family members by lodging a false
complaint. The aforesaid act of the respondent, admittedly, would cause
mental cruelty to the appellant.

26. In K.Srinivas v. K.Sunita, reported in (2014) 16 SCC 34, Hon’ble
Supreme Court held that ?filing of false criminal complaint constitutes
matrimonial cruelty?.

27. In Samar Ghosh v. Jaya Ghosh, supra, the Hon’ble Supreme Court,
enumerated some instances of human behaviour which may be relevant in dealing
with the cases of ?mental cruelty?. While enumerating instances, the Hon’ble
Supreme Court observed that instances are only illustrative and not
exhaustive.

28. The learned counsel for the appellant would submit that on the
ground of long separation and of irretrievable breakdown of marriage, the
appellant is entitled to get divorce. In support, the learned counsel relied
upon the decisions in Geeta Jagdish Mangtani v. Jagdish Mangtani, reported in
II (2005) DMC 492 (SC) and Narendra v. K.Meena, reported in (2016) 9 SCC 455.

29. In Geeta Jagdish Mangtani v. Jagdish Mangtani, supra, the Hon’ble
Supreme Court held:

?5. ….. The marriage survived only for a brief period of about seven
months. After 2nd June, 1993 till the exchange of notices and replies during
September to December, 1996 and filing of the divorce petition ultimately by
the husband on 31st December, 1996, there has been no attempt on the part of
the wife to stay with the husband. She is a school teacher and it is common
knowledge that in schools there are long vacations during summon months, more
so, in Government schools where the wife teaches. At least during those
holidays she could have visited the husband at Ulhasnagar along with her son
and stayed with him. There is nothing on record to show that any such
attempt was ever made by her to visit the husband during this entire period.
She has stated in her evidence that the husband used to come and stay with
her during her vacations. This has been denied by the husband. Therefore,
the conclusion in inevitable, that there was never any attempt on the part of
the wife to go to husband’s house i.e., matrimonial home of the parties after
she left on 2nd June, 1993. From this fact alone animus deserendi on the
part of the wife is clearly established. She has chosen to adopt a course of
conduct which proves desertion on her part. In the facts and circumstances
of the case, it cannot be said that this desertion on the part of the wife
was with a reasonable cause. Such a course of conduct over a long period
indicates total abandonment of marriage and cannot be justified on ground of
monetary consideration alone as a reasonable cause to desert. It also
amounts to wilful neglect of the husband by the wife. …..?

30. In Narendra v. K.Meena, supra, the Hon’ble Supreme Court held as
under:

?18. Applying the said ratio to the facts of this case, we are inclined to
hold that the unsubstantiated allegations levelled by the respondent wife ad
the threats and attempt to commit suicide by her amounted to mental cruelty
and therefore, the marriage deserves to be dissolved by a decree of divorce
on the ground stated in Section 13(1) (i-a) of the Act.?

31. Admittedly, in the case on hand, based on the false complaint, the
appellant and his family members were prosecuted which caused mental cruelty
to the appellant and his family members. In Geeta Jagdish Mangtani v.
Jagdish Mangtani and Narendra v. K.Meena, supra, though divorce was sought
under Section 13 (1) (i-a), the facts and circumstances of the case is
entirely different and those two cases are distinguishable.

32. In the case on hand, spouses were living separately for the past
fourteen years and the respondent wife has not taken any steps for reunion.
Therefore, the conduct of the respondent over a long period would show that
she is not interested in the matrimonial life.

33. In R.Frederick v. H.Malini, a Division Bench of this Court held as
under:

?24. In the present case, admittedly, the Appellant and the Respondent are
residing separately for the past 19 years. The long separation between them
would render the matrimonial life slipping to a stage beyond retrieval. The
matrimonial life between the Appellant and the Respondent has irretrievably
broken leaving little or no scope, practically, for re-union of the couple,
at this stage. Thus, no useful purpose could be achieved by keeping the
matrimonial tie alive when practically there is no possibility or chance for
the couple to get re-union. Therefore, in the best interest of the Appellant
and the Respondent, it is desirable that the matrimonial relationship between
them has to be snapped leaving the parties to decide their future course of
living in the manner they wish.?

34. In Sukhendu Das v. Rita Mukherjee, reported in (2017) 9 SCC 632,
the Hon’ble Supreme Court held as under:

?This Court, in a series of judgments, has exercised its inherent powers
under Article 142 of the Constitution for dissolution of a marriage where the
Court finds that the marriage is totally unworkable, emotionally dead, beyond
salvage and has broken down irretrievably, even if the facts of the case do
not provide a ground in law on which the divorce could be granted (Manish
Goel v. Rahini Goel, (2010) 4 SCC 393). Admittedly, the appellant and the
respondent have been living separately for more than 17 years and it will not
be possible for the parties to live together and there is no purpose in
compelling the parties to live together in matrimony (Rishikesh Sharma v.
Saroj Sharma, (2007) 2 SCC 263). The daughter of the appellant and the
respondent is aged about 24 years and her custody is not in issue before us.
In the peculiar facts of this case and in order to do complete justice
between the parties, we allow the appeal in exercise of our power under
Article 142 of the Constitution.?

35. In Rishikesh Sharma v. Saroj Sharma, reported in (2007) 2 SCC 263,
the Hon’ble Supreme Court held:

?4. … In the instant case the marriage is irretrievably broken down with no
possibility of the parties living together again. Both the parties have
crossed 49 years and living separately and working independently since 1981.
There being a history of litigation with the respondent wife repeatedly
filing criminal cases against the appellant which could not be substantiated
as found by the courts. This apart, only child born in the wedlock in 1975
has already been given in marriage. Under such circumstances, the High Court
was not justified in refusing to exercise its jurisdiction in favour of the
appellant. This apart, the wife also has made certain allegations against he
husband, that the husband had already remarried and is living with another
lady as stated by her in the written statement. The High Court also has not
considered the allegations made by the respondent which have been repeatedly
made and repeatedly found baseless by the courts.

5. In our opinion it will not be possible for the parties to live together
and therefore, there is no purpose in compelling both the parties to live
together. Therefore, the best course in our opinion is to dissolve the
marriage by passing a decree of divorce so that the parties who are
litigating since 1981 and have lost valuable part of life can live peacefully
for remaining part of their life.

6. During the last hearing both the husband and wife were present in the
Court. The husband was ready and willing to pay a lump sum amount by way of
permanent alimony to the wife. The wife was not willing to accept the lump
sum amount but however expressed her willingness to live with her husband.
We are of the opinion that he desire to live with her husband at this stage
and at this distance of time is not genuine. Therefore, we are not accepting
this suggestion made by the wife and reject the same.?

36. In the case on hand, admittedly, the parties have crossed 48 and 38
years respectively and were living separately. One male child born from the
wedlock. No valid explanation for the respondent’s failure to return to the
matrimonial home is forthcoming. In fact, the appellant contends that
behaviour of the respondent caused genuine/reasonable apprehension in the
mind of the appellant that it is not quite safe to continue the relationship
of marriage with the respondent. Therefore, the appellant is entitled to
maintain divorce petition under Section 13(1)(i-a) of the said Act.

37. 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. (Ref: Samar Ghosh v.
Jaya Ghosh, supra)

38. It is admitted that the respondent left the matrimonial home on her
own accord. It has been established that thereafter, the appellant has taken
steps to get back the respondent to the home, but the respondent refused to
return back the matrimonial home. In this case, nothing on record to show
that such an attempt was made by the respondent.

39. The matrimonial duties and responsibilities in particular are of
varying degrees from house to house or person to person. When a spouse makes
complaint about the treatment of cruelty by the partner in life, the Court
should not search for standard in life. A set of facts stigmatised as
cruelty in one case may not be so in another case. The cruelty alleged may
largely depend upon the type of life the parties are accustomed to or their
economic and social conditions. It may also depend upon their culture and
human values to which they attach importance. The Judges and lawyers,
should not import their own notions of life and may not go in parallel with
them. When we deal with the conduct of human beings, who are not generally
similar. Among the human beings there is no limit to the kind of conduct
which may constitute cruelty. New type of cruelty may crop up in any case
depending upon the human behaviour, capacity or incapability to tolerate the
conduct complained of.

40. In an unreported judgment in C.M.A. (MD) Nos.238 and 239 of 2012
(Salome v. Dr.Prince D.Immanuel), this Court held that where the
appellant/wife and the respondent/husband were living separately for more
than 10 years and the attitude of the respondent even after obtaining a
decree of restitution of conjugal rights has not taken steps to enforce the
same, but insisting on retaining matrimonial bond that would amount to
causing mental cruelty and to torment and traumatized the appellant. In the
given facts and circumstances of the case, in Salome v. Dr.Princice
D.Immanuel, supra, the learned Single Judge of this Court held:
?20. … The insistence of the respondent to continue the matrimonial tie
even though he is fully aware that there is no possibility of re-union and
living together as husband and wife, amounts to causing mental cruelty to the
appellant.?

41. Thus, the Courts below failed appreciate the evidence adduced on
either side and came to a wrong conclusion that the mistake is on the part of
the appellant and he had failed to establish the cruelty made against him and
his family members. As stated supra, the appellant suffered mental cruelty
on the sole ground of lodging of false complaint by the respondent and he is
entitled to get divorce from the respondent.

42. In the present case, as stated supra, the respondent left the
matrimonial home in the year 2001 and she had not returned back to the
matrimonial home. Since there was no possibility of re-union, directing the
appellant and the respondent to live together as husband and wife would in
fact make the matrimonial life a hell for both parties.

43. In K.Srinivas Rao v. D.A.Deepa, reported in 2013 (2) SCALE 735, the
Hon’ble Supreme Court held as under:

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

44. The ratio of law which emerged from catena of decisions of the
Hon’ble Supreme Court is that where there is evidence that the husband and
wife indulged in mutual bickering leading to remonstration and there from to
the stage where they target each other mentally, insistence by one to retain
the matrimonial bond would be relevant factor to decide on the issue of
cruelty, for the reason the obvious intention of said spouse would be to
continue with the marriage not to enjoy the bliss thereof but to torment and
traumatized each other.

45. Apart from proving the lodging of the false complaint against the
appellant which caused mental cruelty, the long separation coupled with the
attitude of respondent would also amount to mental cruelty caused to the
appellant. Nearly 17 years have elapsed since the spouses parted company.
In these circumstances, it can be reasonably inferred that the marriage
between the parties has broken down irretrievably.

46. In Sandhya Rani v. Kalyanram Narayanan, reported in 1994 Supp (2)
SCC 588, the Hon’ble Supreme Court held:

?since the parties are living separately for the last more than three years,
we have no doubt in our minds that the marriage between the parties has
irretrievably broken down. There is no chance whatsoever of their coming
together. Therefore, the Court granted the decree of divorce.?

47. Admittedly, both the parties have not pleaded scope for settlement
between them before the Courts below. Since there was no possibility of
reconciliation, an inference has to be drawn that the marriage between the
appellant and the respondent has broken down irretrievably with a view to
restore good relationship and to put a quietus to the litigation between the
parties and not to leave any room for future litigation so that they may live
peacefully thereafter.

48. In Naveen Kohli v. Neelu Kohli, reported in (2006) 4 SCC 558, the
Hon’ble Supreme Court observed as under:

?85. Undoubtedly, it is the obligation of the court and all concerned that
the marriage status should, as far as possible, as long as possible and
whenever possible, be maintained, but when the marriage is totally dead, in
that event, nothing is gained by trying to keep the parties tied forever to a
marriage which in fact has ceased to exist. In the instant case, there has
been total disappearance of emotional substratum in the marriage. The course
which has been adopted by the High Court would encourage continuous
bickering, perpetual bitterness and may lead to immorality.

86. In view of the fact that the parties have been living separately for more
than 10 years and a very large number of aforementioned criminal and civil
proceedings have been initiated by the appellant against the respondent, the
matrimonial bond between the parties is beyond repair. A marriage between
the parties is only in the name. The marriage has been wrecked beyond the
hope of salvage, public interest and interest of all concerned lies in the
recognition of the fact and to declare defunct de jure what is already
defunct de facto. To keep the sham is obviously conducive to immorality and
potentially more prejudicial to the public interest than a dissolution of the
marriage bond.?

49. The aforesaid decision would squarely be applicable to the facts of
the present case. In the instant case, not to grant a decree of divorce
would be disastrous for the parties. Thus, the Courts below erred in
dismissing the petition for divorce filed by the appellant since the
appellant and the respondent were living separately for long number of years.

50. The above said view of this Court is fortified by a larger Bench
decision of the Hon’ble Supreme Court in Samar Ghosh, supra, wherein qua long
separation, it has been emphatically held as under:

?95. 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. The
court, no doubt, should seriously make an endeavour to reconcile the parties;
yet, if it is found that the breakdown is irreparable, then divorce should
not be withheld. The consequences of preservation in law of the unworkable
marriage which has long ceased to be effective are bound to be a source of
greater misery for the parties.?

(emphasis supplied)
In the case on hand, as held above, the marriage is irretrievably broken and
there has been a long separation of seventeen years.

51. Looking into the peculiar facts and circumstances of the case, I am
of the opinion that it will not be possible for the parties to live together
and therefore, there is no purpose in compelling both the parties to live
together. Therefore, the best course is to dissolve the marriage by passing
a decree of divorce. The parties who are litigating since 2002 and have lost
valuable part of life can live peacefully for remaining part of their life.

52. In Naveen Kohli v. Neelu Kohli, supra, while granting divorce to
the appellant therein, the Hon’ble Supreme Court has considered permanent
maintenance to be paid to the wife. In the case on hand, considering
avocation of the appellant and the fact that the parties who stayed together
only for a few months and also the fact that one male child was born from the
wedlock, it would be appropriate to order permanent alimony to the
respondent. Thus, a lump sum amount of Rs.5,00,000/- is directed to be given
by the appellant to the respondent towards permanent alimony towards the
respondent and the male child, if the child with the respondent. It would
also appropriate to direct the appellant to return golden ornaments, silver
and other articles, belonging to the respondent, if any available with the
appellant.

53. In the result, the Civil Miscellaneous Second Appeal is allowed and
the judgment and decree dated 31.08.2012 passed in H.M.C.M.A.No.6 of 2004 on
the file of the learned District Judge, Sivagangai, confirming the order
dated 03.03.2004 passed in H.M.O.P.No.60 of 2002 on the file of the learned
Sub-Court, Devakottai is set aside. H.M.O.P.No.60 of 2002 filed by the
appellant is allowed and the marriage between the appellant and respondent
solemnized on 26.10.2001 stands dissolved. The appellant is directed to pay
a sum of Rs.5,00,000/- to the respondent as permanent alimony towards the
respondent and her male child, if the child with the respondent. The
appellant is also directed to return golden ornaments, silver and other
articles, belonging to the respondent, if any available with the appellant.
No costs. Consequently, connected miscellaneous petition is closed.

The Legal Aid authorities attached to this High Court is directed to
pay a sum of Rs.5,000/- to the Legal Aid Advocate Smt.S.Sujatha.

To

1.The District Judge,
Sivagangai.

2.The Sub-Judge,
Devakottai.

.

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