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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 28.06.2019

CORAM:

THE HON’BLE MR. JUSTICE T.RAJA

C.M.S.A.No.34 of 2010

S.Rajendran .. Appellant

Vs

K.Geetha .. Respondent

Prayer : Civil Miscellaneous Second Appeal filed under Section 100 of the Civil

Procedure Code against the judgment and decree dated 16.12.2008 made in

C.M.A.No.1 of 2008 on the file of the Principal District Court, Coimbatore,

reversing the judgment and decree dated 31.10.2007 made in H.M.O.P.No.103 of

2005 on the file of the Sub-Court, Udumalpet.

For Appellant : Mr.N.Manohar

For Respondent : No Appearance

JUDGMENT

This Appeal is directed against the judgment and decree dated

16.12.2008, passed in C.M.A.No.1 of 2008, by the learned Principal District Court,

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Coimbatore, reversing the judgment and decree dated 31.10.2007, passed in

H.M.O.P.No.103 of 2005, by the learned Sub Court, Udumalpet.

2. Learned counsel for the appellant/husband submitted that the

learned first appellate Court, while reversing the judgment and decree granted in

favour of the husband praying to grant divorce, ought to have seen that they

were in matrimonial life only for a period of 4 months and thereafter, they were

separated and they have been living separately for about 15 years. It is further

submitted that for all these years, neither the respondent/wife moved any

application for restitution of conjugal rights nor given any consent expressing her

readiness and willingness for matrimonial life with the appellant/husband,

therefore, by taking note of all these facts, the learned trial Court has rightly

come to the conclusion that the marriage solemnized between the appellant and

respondent on 01.09.2003 reached the deadlock and accordingly, it has granted

divorce as sought for by the appellant/husband. However, the learned first

appellate Court, without even giving any reasonable finding on this issue, has

reversed the judgment and decree of the trial Court. It is further contended that

as the parties have been separated for about 15 long years, there will not be any

remote chance of reunion and thus, on this basis, the judgment and decree

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passed by the learned first appellate Court reversing the judgment and decree

passed by the learned trial Court is liable to be set aside.

3. Although Legal Aid counsel was appointed by this Court on

19.12.2018 on behalf of the respondent/wife, he has not appeared before this

Court on 27.06.2019 and 28.06.2019, therefore, this Court is constrained to

dispose of the case on the basis of the available materials before it as this appeal

is of the year 2010.

4. Admittedly, the marriage between the appellant/husband and

the respondent/wife was solemnized on 01.09.2003 and it is also an admitted fact

that they lived together only for a period of four months as their marital life

came to an end on 18.01.2004 itself. Thereafter, for about 15 long years, they

have been living separately. In view of the difference of opinion and domestic

quarrel, the appellant/husband filed H.M.O.P.No.103 of 2005 on the file of the

learned Sub-Court, Udumalpet. Pending HMOP, the respondent/wife filed a

complaint before the Police Station demanding her belongings and jewels from

the appellant/husband. In the presence of police officials, the appellant/husband

also surrendered the entire belongings of her and to that effect, she was also

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given receipt. The said receipt was marked as Ex.P.3 before the trial Court. The

above said facts were also admitted in the counter affidavit filed before the trial

Court. Examining all these facts, the learned trial Court, by taking note of the

fact that the respondent/wife had not even field a petition for restitution of

conjugal rights, had rightly granted the divorce. Besides, the trial Court had also

observed that there is nothing on evidence to show that the respondent/wife had

expressed her willingness to resume her matrimonial life. However, the learned

first appellate Court without even taking note of the well-reasoned findings of

the learned trial Court mechanically reversed the judgment and decree passed by

the learned trial Court.

5. The Hon’ble Apex Court in Parveen Mehta Vs. Inderjit Mehta

[(2002) 5 SCC 706] held that, for the purpose of Section 13(1)(i-a) of the SectionHindu

Marriage Act, cruelty is to be taken as a behaviour by one spouse towards the

other, which causes reasonable apprehension in the mind of the later that it is not

safe for him or her to continue the matrimonial relationship with the other and

mental cruelty is a state of mind and feeling with one of the spouses due to the

behaviour or behavioural pattern by the other. Paragraph Nos.21 and 22 thereof

are extracted below:-

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21. Cruelty for the purpose of Section

13(1)(ia) is to be taken as a behavior 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

behavior or behavioral pattern by the other. Unlike the case

of physical cruelty the 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 misbehavior 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.

22. Judged in the light of the principles

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discussed above what we find is that right from the

beginning the matrimonial relationship between the parties

was not normal; the spouses stayed together at the

matrimonial home for a short period of about six months;

the respondent had been trying to persuade the appellant

and her parents to agree to go for proper medical treatment

to improve her health so that the parties may lead a normal

sexual life; all such attempts proved futile. The appellant

even refused to subject herself to medical test as advised by

the doctor. After 21st June, 1987 she stayed away from the

matrimonial home and the respondent was deprived of her

company. In such circumstances, the respondent who was

enjoying normal health was likely to feel a sense of anguish

and frustration in being deprived of normal cohabitation

that every married person expects to enjoy and also social

embarrassment due to the behavior of the appellant.

Further, the conduct of the appellant in approaching the

police complaining against her husband and his parents and

in not accepting the advice of the superior judicial officer

Mr.S.K.Jain and taking a false plea in the case that she had

conceived but unfortunately there was miscarriage are

bound to cause a sense of mental depression in the

respondent. The cumulative effect of all these on the mind of

the respondent, in our considered view, amounts to mental

cruelty caused due to the stubborn attitude and inexplicably

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unreasonable conduct of the appellant

6. In yet another judgment, the Hon’ble Apex Court in Samar

Ghosh Vs. Jaya Ghosh [(2007) 4 SCC 511], while dealing an issue whether the

mental cruelty is a ground for divorce under Section 13(1)(i-a) of the SectionHindu

Marriage Act, 1955, held that refusal of wife to have intercourse for considerable

period without there-being any physical capacity or valid reason would amount

to mental cruelty. Besides, it is further held that where there has been a long

period of continuous separation, it may fairly be concluded that the matrimonial

bond is beyond repair and by holding so, the Hon’ble Apex Court granted

divorce. For better appreciation, relevant portion of paragraph No.101 is

extracted below:-

101………..(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

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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.

7. In the light of the above, in the present case, it is to be noted that

both the parties have been living separately for the past 15 years, therefore, it

would be difficult for them to bury the past and to begin a new relationship as

Husband and Wife. During these years, they developed their own life style,

remained in isolation and grown in their own thoughts. Marriage tie between the

parties has become emotionally dead and the same is beyond repair because of

the emotionally dead relationship. Thus, in my considered view, there is no

chance for both parties to live together again as they have been living separately

for more than 15 long years. In such a context, I am of the considered view that

the decree of Divorce is the only remedy to be passed, so that the parties may

choose their life of their own way, when there has been no scope for their

reunion.

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8. Accordingly, in such view of the matter, the judgment and decree

passed by the learned first appellate Court reversing the judgment and decree

passed by the learned trial Court granting divorce in favour of the

appellant/husband is set aside. Consequently, for the reasons stated above, the

Civil Miscellaneous Second Appeal is allowed. No Costs.

28.06.2019

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To

1. Th Sub-Court, Udumalpet.

2.The Principal District Judge, Coimbatore.

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T.RAJA, J.

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C.M.S.A.No.34 of 2010

28.06.2019

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