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Sivasankaran vs Santhimeenal on 14 September, 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated: 14.09.2018

RESERVED ON : 19.07.2018

DELIVERED ON : 14.09.2018

CORAM

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

C.M.S.A. (MD) Nos.42 of 2013 and 43 of 2013

Sivasankaran … Appellant in
both appeals

vs

Santhimeenal .. Respondent in

both appeals

Appeals filed under Section 28 of the Hindu Marriage Act read with Section
100 of C.P.C. against the common judgment dated 18.4.2013 in C.M.A.Nos.5 and
7 of 2011 on the file of the Additional District judge, Pudukottai reversing
the order dated 17.3.2008 passed in H.M.O.P.Nos.10 of 2005 and 33 of 2002 on
the file of the Sub-Judge, Pudukottai.

(In both the CMSAs)
!For Appellant
:

Mr.AR.L.Sundaresan, Senior Counsel
for Mr.AN.Ramanathan

^For Respondent
:

Mr.N.Balakrishnan

:COMMON JUDGMENT

These Civil Miscellaneous Second Appeals have 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 common judgment dated
18.4.2013 in C.M.A.Nos.5 and 7 of 2011 on the file of the Additional District
Judge, Pudukottai, reversing the common order dated 17.3.2008 passed in
H.M.O.P.Nos.10 of 2005 and 33 of 2002 on the file of the Sub-Judge,
Pudukottai.

2. The appellant herein is the husband and he had filed H.M.O.P.No.10
of 2005 under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 for divorce.
The respondent herein is the wife and she had filed H.M.O.P.No.33 of 2002
under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal
rights before the Sub-Court, Pudukottai.

3. It is an admitted fact that the marriage between the appellant and
the respondent was solemnized on 17.2.2002 in V.V.Kalyana Mahal at
Chinnalapatti as per Hindu rites and customs. They do not have any issue
from the wedlock.

4. The case of the appellant is that immediately after tying Thali, the
respondent suddenly went to the room, which was allotted to her in the
Kalyanayamandapam, without any reason and when the parents of the respondent
went to the said room, she quarrelled. On seeing this, immediately, the
appellant and his relatives also went to the room of the respondent and asked
about the said quarrel. The respondent replied that only due to coercion by
her parents, she married the appellant and she is not willing for the
marriage with the appellant. After that the respondent left the said room
and went to Pudukottai at late night on 17.2.2002 all alone. Due to the said
activities of the respondent and her parents, the petitioner was put to not
only mental cruelty but also irreparable hardship and injury.

5. According to the appellant, on 18.2.2002, he and his relatives went
to Pudukottai and called upon the respondent to come and live with the
appellant, for which the respondent did not agree. On 25.2.2002, the
appellant sent a notice to the respondent. On 11.3.2002, the respondent sent
a reply to the notice issued by the appellant. In the meanwhile, on
28.2.2002, the appellant lodged a complaint before the All Women Police
Station, Dindigul. In the enquiry, the respondent told that she is not
willing to live with the appellant. In the police station, the respondent
and her parents demanded Rs.1.00 lakh from the appellant for dissolution of
the marriage and the appellant refused to do so. Thereafter, the respondent
lodged a false complaint before the All Women Police Station, Pudukottai,
where the police officials advised the respondent to live with the appellant,
but the respondent refused. Thereafter, the appellant issued another legal
notice on 21.10.2002 seeking for divorce. Despite receipt of the notice, the
respondent did not reply. However, the respondent filed H.M.O.P.No.33 of
2002 for restitution of conjugal rights. Hence, the appellant had filed
petition under Section 13(1)(i-a) of the Hindu Marriage, Act 1955,
hereinafter referred to as ?the said Act? for divorce.

6. The respondent filed counter denying all the averments set out in
the petition filed by the appellant, except the averment as to the
solemnization of the marriage on 17.2.2002 between them as per the Hindu
rites and customs. According to the respondent, when she was always been
ready and willing to resume marital life with the appellant, he wilfully
neglected and deserted the respondent by wilful denial of conjugal rights.
There was no occasion for the police to advise the respondent to live with
the appellant. It is stated that the appellant and his brother had been
motivated to abandon permanently the respondent by means of police threat and
harassment also.

7. According to the respondent, there was no cruelty and the cruelty
and mental agony alleged by the appellant was invented for the purpose of
filing the petition. All the attempts to bring the appellant back had been
thwarted by him and his men. There is no ground much less a valid and
acceptable ground to grant divorce. In fact, the appellant, his brother and
his men not only threatened the respondent, but also harassed and disgraced
her. By any means, they had been motivated to get rid of the respondent.
Either under law or under equity, the appellant shall not be allowed to take
advantage by his wrongs and misdeeds. As counter claim to the petition filed
by the respondent for restitution of conjugal rights, the appellant has filed
the petition for divorce and prayed for dismissal of the petition.

8. Before filing the petition for divorce by the appellant, the
respondent filed H.M.O.P.No.33 of 2002 for restitution of conjugal rights
alleging that the appellant had been wilfully and unlawfully denying the
matrimonial society and companionship with the respondent. He had also been
wilfully denying her conjugal right and society. It is also alleged that all
their attempts to resume the conjugal union had been thwarted by the
appellant and his brother and the respondent is willing to live with the
appellant. Hence, she filed the petition under Section 9 of the said Act.

9. Resisting H.M.O.P.No.33 of 2002, the appellant filed counter denying
all the averments stated in the petition.

10. Before the trial Court, by consent, both the petitions
(H.M.O.P.Nos.10 of 2005 and 33 of 2002) were taken up together and the
evidence was recorded in H.M.O.P.No.10 of 2005 filed by the appellant. On
the side of the appellant, four witnesses were examined and Exs.P1 to P9 were
marked. The respondent examined herself as R.W.1 and Exs.R1 to R7 were
marked.

11. Upon consideration of the oral and documentary evidence, the trial
Court allowed the petition filed by the appellant for divorce and dismissed
the petition filed by the respondent for restitution of conjugal rights.
Aggrieved by the same, the respondent filed C.M.A.Nos.5 and 7 of 2011 before
the Additional District Court, Pudukottai. By a common judgment dated
18.4.2013, both the appeals were allowed by the first appellate Court. Being
aggrieved, the appellant has filed these Civil Miscellaneous Second Appeals.

12. C.M.S.A.(MD) No.42 of 2013 was admitted on the following
substantial questions of law by my predecessor and the same are extracted as
such:

(a) Have not the learned Additional District Judge committed the error in
reversing the judgment and decree of the Trial Court on the ground that the
appellant had not filed the petition under Section 11 and 12 of Hindu
Marriage Act, 1955?

(b) Whether the Additional District Judge is right in holding that mere
quoting wrong provision in the divorce petition is a ground for dismissing?

(c) Whether the Additional District Judge is right in dismissing the petition
disbelieving the evidence of PW-2 and PW-3?

(d) Whether the Additional District Judge is right in ignoring the
independent witnesses of PW-3?

(e) Whether the Additional District Judge is right in failing to draw adverse
inference against the respondent under Section 114(g) of Indian Evidence Act?

(f) Whether the lower appellate court is right in holding that mere denial is
enough to repudiate the plea of the appellant, when the respondent has failed
to prove through evidence?

(g) Whether the Additional District Judge is right in holding that the
appellant is a guilty party in violation of Section 15 of the Hindu Marriage
Act, 1955, when the respondent has failed to prefer the appeal in time?

13. C.M.S.A.(MD) No.43 of 2013 was admitted on the following
substantial questions of law by my predecessor and the same are extracted as
such

(a) Have not the learned Additional District Judge committed the error in
reversing the judgment and decree of the Trial Court and granting decree in
favour of the appellant under Section 9 of the Hindu Marriage Act 1955?

(b) Whether the Additional District Judge is right in allowing the petitioner
under Section 9 of the Hindu Marriage Act 1955 disbelieving the evidence of
PW-2 and PW-3?

(c) Whether the Additional District Judge is right in holding that the
appellant is a guilty party in violation of section 15 of Hindu Marriage Act
1955, when the respondent has failed to prefer the appeal in time?

(d) Whether the Additional District Judge is right in ignoring the
independent testimony of PW-3?

(e) Whether the Additional District Judge is right in ignoring to draw
adverse inference against the respondent under Section 114(g) of Indian
Evidence Act?

(f) Whether the lower appellate court is right in holding that mere denial is
enough to repudiate the plea of the appellant, when the respondent has failed
to prove through evidence?

(g) Whether the lower appellate court is right in not given finding regarding
the satisfaction of the truth statement made in the petition under Section 9
of Hindu Marriage Act 1955?

14.I heard Mr.AR.L.Sundaresan, learned Senior Counsel for
Mr.A.N.Ramanathan, learned counsel for the petitioner and Mr.N.Balakrishnan,
learned counsel for the respondent in both the appeals and perused the entire
materials available on record.

15.The learned Senior Counsel for the appellant submitted that the
first appellate Court failed to see that the respondent had consented for the
marriage only due to the compulsion and coercion of her parents. The first
appellate Court has ignored the ocular witness of PW-2 wherein he had deposed
that the respondent voluntarily deserted the appellant without any cause and
the respondent was not interested to continue the matrimonial life with the
appellant. The learned Senior Counsel further submitted that the first
appellate Court failed to see that PW-3 was an independent witness, who had
deposed the mental cruelty caused by the respondent and that it had failed to
see that the appellant had filed the petition for divorce on the ground of
mental cruelty also. He would submit that the appellant had proved the
mental cruelty by way of lodging of false complaint by the respondent.

16. The learned Senior Counsel then submitted that the first appellate
Court failed to see that the cruelty as per Section 13(1)(i-a) of the said
Act to be considered as a behaviour of the respondent which cause
genuine/reasonable apprehension in the mind of the appellant that it is not
quite safe to continue the relationship of marriage with the respondent.
There was no consummation of marriage.

17. The learned Senior Counsel then submitted that the appellant and
the respondent have been living separately for more than 16 years and it will
not be possible for the parties to live together and also there is no purpose
in compelling parties to live together in the matrimony. Thus, he would
submit that the first appellate Court erred in allowing the appeals filed by
the respondent and prayed for setting aside the judgment of the first
appellate Court. To fortify his submissions, the learned Senior Counsel
cited the following decisions:

(i)Rishikesh Sharma v. Saroj Sharma, reported in (2007) 2 SCC 263

(ii)Samar Ghosh v. Jaya Ghosh, reported in (2007) 4 SCC 511

(iii)Sukhendu Das v. Rita Mukherjee, reported in (2017) 9 SCC 632

18. Per contra, the learned counsel for the respondent submitted that
the relatives of the appellant expected dowry in the form of cash and
motorbike and further since seervarisai articles were not kept in the
marriage hall, they aggrieved and behaved in an unpalatable manner and
separated the appellant from the respondent. He would submit that the reason
for leaving the matrimonial home by the respondent was, on the date of
marriage, when both the appellant and the respondent were in the matrimonial
home, at about 11.30 p.m. the brother of the appellant and his men numbering
15 members came there and pulled the appellant from the room and separated
the respondent.

19. The learned counsel further submitted that according to the
appellant there was no consummation of marriage. In Ex.R3-notice, it has
been stated by the appellant that the marriage ceremony was not performed and
therefore, the marriage is void. If the same is to be taken as true that
there was no consummation of marriage, then the appellant ought to have filed
petition under Section 11 and 12 of the said Act and he ought not to have
filed petition for divorce under Section 13(1)(i-a) of the said Act, which
would reveal that there was consummation of marriage.

20. The learned counsel would submit that the appellant has not taken
interest in living with the respondent. In fact, in his cross-examination,
the appellant himself admitted that two days after the marriage, he tried for
living with the respondent and on the third day, he decided for divorce,
which would clearly show that the appellant has not shown sincere interest in
living with the respondent. The learned counsel next contended that the
first appellate Court, after appreciating the oral and documentary evidence,
rightly set aside the order of the trial Court and dismissed the petition
filed by the appellant for divorce by observing that the appellant has failed
to establish the ground for which he asked for divorce. Further, the first
appellate Court has rightly allowed the petition filed by the respondent for
restitution of conjugal rights. Therefore, there is no necessity to
interfere with the judgment of the first appellate Court and prayed for
dismissal of both the appeals. In support of his submissions, the learned
counsel relied upon the following decisions:

(i)Vishnu Dutt Sharma v. Manju Sharma, reported in (2009) 6 SCC 379

(ii)Veerasamy v. Jayanthi @ Jayalakshmi, reported in 2018(2) MWN (Civil) 357

(iii)Savitri Pandey v. Porem Chandra Pandey, reported in (2002) 2 SCC 73

(iv)Prakash Chand Sharma v. Vimlesh, reported in 1995 Supp (4) SCC 642

(v)Tejinder Kaur v. Gurmit Singh, reported in AIR 1988 SC 839

21. According to the appellant, the unruly conduct and behaviour of the
respondent in the marriage hall on the date of marriage and the quarrel
caused mental cruelty to him and that there were sufficient ground to believe
that the respondent indulged in unruly. When the appellant and his relatives
enquired the respondent in the marriage hall itself, she told that she was
not willing for the marriage and only on the compulsion of her parents, she
agreed for the marriage. Thereafter, she left for Pudukottai lonely.

22. So far as the alleged cruelty said to have been attributed by the
appellant at the marriage hall is concerned, the respondent contended that
post marital formalities, in the marriage hall itself, the appellant and his
brother demanded Hero Honda motorcycle and Rs.1.00 lakh cash. Since the
respondent and her parents could not concede such demand, the appellant and
his brother quarrelled with them and with pained heart and tears in their
eyes, the parents of the respondent left the marriage hall for Pudukottai.
After taking all formalities in the marriage hall, the respondent’s brother
had taken the appellant and the respondent to Pudukottai and after completion
of formalities at the respondent’s parental home, the appellant, as desired
by him, had taken the respondent to the house at Alangulam Housing Unit in
Pudukottai town. According to the respondent, on 17.2.2002, at about 11.30
P.M., when both the respondent and the appellant were in the room, the
brother of the appellant and his men knocked the door and pulled the
appellant from the room and separated the respondent and left the said place
in a motorcycle. In such situation, the respondent left the house at night
hours to her parental home.

23. In the case on hand qua dowry demanded by the appellant and his
brother, except the oral testimony of the respondent, no other witness was
examined to prove the same. In her counter, the respondent stated that
aggrieved by the refusal to meet the demand for dowry, the appellant’s
brother and his wife with their gangsters stormed the house (i.e. house
bearing No.B12/2) in the midnight at 11.30 P.M. On 17.2.2002. When the
appellant opened the door, his brother slapped and pulled him down and
separated the respondent and left the said place in the motor vehicle. In a
shocked and sorrow state, the respondent had been taken to her parental home.
Since then she was under their care and protection, which shows that on her
own, the respondent left the house at midnight on 17.2.2002.

24. In his evidence, the appellant deposed that he and his family
members requested the respondent for reunion and the respondent refused for
reunion and stated that if compelled for reunion, she will commit suicide. In
his evidence, P.W.2-Periyannan who attended the marriage stated that
immediately after the marriage, the parents of the respondent left the
marriage hall leaving the respondent. When enquired, the respondent informed
that under the compulsion, she agreed for the marriage and she wants to go to
Pudukottai and accordingly, she left for Pudukottai.

25. The learned counsel for the respondent vehemently contended that
the appellant has been wilfully and unlawfully denying the matrimonial
society and companionship with the respondent. The appellant had also
wilfully denying respondent’s conjugal right and society and the respondent
is interested to resume conjugal union. Hence, she filed the petition for
restitution of conjugal rights.

26. On the other hand, the learned Senior Counsel for the appellant
submitted that after tying thali, the respondent said that she is not
interested in the marriage and only on the pressure of her parents, she
agreed for the marriage with the appellant. When that being so, how she
could resume the conjugal union and it only shows the ill-motive with which
she had filed the petition for restitution of conjugal rights. There is no
bona fide in the petition filed by the respondent under Section 9 of the said
Act and therefore, the trial Court was right in dismissing her petition. The
learned Senior Counsel would submit that on the ground of long separation and
of irretrievable breakdown of marriage, the appellant is entitled to get
divorce.

27. In the decision cited by the learned Senior Counsel for the
appellant in Sukhendu Das v. Rita Mukherjee, supra, 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.?

28. In Rishikesh Sharma v. Saroj Sharma, supra, 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.?

29. To counter, the arguments of the learned Senior Counsel, the
learned counsel for the respondent submitted that it is only the Hon’ble Apex
Court, which in exercise of its extraordinary powers under Article 142 of the
Constitution of India, can pass such orders to do complete justice to the
parties and relied upon the decision of the learned Single Judge of this
Court in Veerasamy v. Jayanthi @ Jayalakshmi, supra, wherein, this Court held
as under:

?16. ….. Though there is no provision under the Hindu Marriage Act, 1955
for granting Divorce on the ground that the marriage had broken down
irretrievably, under Article 142 of the Constitution of India, the Hon’ble
Supreme Court of India can grant a Decree for Divorce on the said ground. It
is only the Apex Court, which in the exercise of its Extraordinary powers
under Article 142 of the Constitution of India, can pass such orders to do
complete justice to the parties. The said power is not vested with any other
Court in the country. The direction issued by the Apex Court under Article
142, while moulding the relief depending on the particular facts and
circumstances of a case. It has not comprised the ratio decidendi and
therefore, cannot be perceived to be a binding precedent. Therefore, the
Judgment relied upon by the learned Counsel for the Appellant is not
applicable to the present case.?

30. In Savitri Pandey v. Prem Chandra Pandey, supra, cited by the
learned counsel for the respondent, it has been held as under:
?17. The 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
sanctity of marriage cannot be left at the whims of one of the annoying
spouses. This Court in V.Bhagat v. D.Bhagat, (1994) 1 SCC 337 held that
irretrievable breakdown of the marriage is not a ground by itself to dissolve
it.?

31. In Vishnu Dutt Sharma v. Manju Sharma, supra, the Hon’ble Supreme
Court held:

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

32. In the case on hand, admittedly, the parties have crossed 42 and 47
years respectively and are living separately and working independently.
There is no child born from the wedlock, as it was admitted by both parties
that on the date of marriage itself they have separated.

33. Though in trial Court, the respondent had not made any allegation
against the appellant that he had performed second marriage, for the first
time in the first appellate Court, she made allegations, in fact, she had
filed petition to let in additional evidence to speak qua appellant’s second
marriage with one Jeyanthi on 23.3.2008.

34. Citing the decision in Savitri Pandey v. Prem Chandra Pandey,
supra, the learned counsel for the respondent contended that remarriage by
divorced person during pendency of appeal filed after expiry of limitation
period is at the risk of the party entering into such remarriage and its
validity is entirely dependent on the outcome of the pending appeal.

35. In Prakash Chand Sharma v. Vimlesh, supra, the Hon’ble Supreme
Court held as follows:

?4. …… If the husband remarried in hot haste after the institution of
the second appeal which was delayed by one three days, we cannot see how that
fact can come to his rescue. That is clearly opposed to Section 15 of the
Hindu Marriage Act which in terms states that when a marriage is dissolved by
a decree of divorce and there is no right of appeal against the decree or
where there is such a right, the time for filing an appeal has expired or an
appeal has been presented and has been dismissed, it shall be lawful for
either party to the marriage to remarry. In the instant case no doubt the
second appeal was delayed by three days but the fact is that it was
instituted and was pending on the date of the second marriage. Therefore,
the husband acted in disregard of Section 15 and cannot get the benefit of
his own wrong.?

36. In Tejinder Kaur v. Gurmit Singh, supra, the Hon’ble Supreme Court
held thus:

?7. In Chandra Mohini v. Avinash Prasad (1967) 1 SCR : (AIR 1967 SC 581), on
somewhat similar facts it was held that though S.15 in terms does not apply
to a case of special leave to appeal to the Supreme Court, a spouse who has
won in the High Court and got a decree of dissolution of marriage cannot by
marrying immediately after the High Court’s judgment take away the right of
presenting an application for special leave to appeal from the other spouse.
It was further held that the successful party must wait for a reasonable time
and make sure whether an application for special leave has been filed in this
Court. ….?

37. In the case on hand, the trial Court delivered its common order on
17.3.2008 granting divorce and declining conjugal rights. On a perusal of
the decree of the first appellate Court, this Court finds that against the
order granting divorce in H.M.O.P.No.10 of 2005, the respondent filed an
appeal on 1.7.2008 and the same was returned and finally represented on
11.11.2009. Against the order declining restitution of conjugal rights, the
respondent filed appeal on 8.1.2010 and the same was returned and finally
represented on 15.11.2010.

38. Since the remarriage aspect is not in issue in the appeal filed by
the respondent before the first appellate Court, the first appellate Court
observed that they cannot form part for consideration of the grounds raised
in the petitions and counters. When such being the finding of the first
appellate Court, we do not want to elaborate upon the said aspect any
further.

39. It is pertinent to note that the appellant and the respondent are
well educated and the appellant was working as Professor in the College and
the respondent was working as teacher. In the case on hand, on reading of the
pleadings and the evidence adduced on both sides, I find that both the
appellant and the respondent are making claims and counter claims with regard
to the acts and omissions committed by each other.

40. In the case on hand, 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. The appellant
contends that the incident which took place on 17.2.2002 at the marriage hall
caused intolerable mental agony/mental cruelty from the hands of the
respondent. Therefore, the appellant is entitled to maintain petition under
Section 13(1)(i-a) of the said Act.

41. The learned Senior Counsel for the appellant submitted that 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. In support, the learned
Senior Counsel relied upon the decision in Samar Ghosh v. Jaya Ghosh, supra.

42. 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.

43. The trial Court, after analysing the evidence of both sides and
demeanour of witnesses, particularly the appellant and the respondent, came
to the conclusion that the petitioner had made out the ground for divorce.
In paragraph 18, the trial Court held as under:

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jug;gpdhpd; rhl;rpa’;fspypUe;J bjspthf bjhpa tUfpwJ/ kDjhuh; vjph;kDjhuUld;
nrh;e;J thH;tjw;F Kaw;rpfs; nkw;bfhz;oUf;fpwhh; vd;gJ kDjhuh; jug;gpy;
tprhhpf;fg;gl;oUf;Fk; rhl;rpfspd; rhl;rpa’;fs; K:yk; bjhpa tUfpwJ/ Mdhy;
vjph;kDjhuh; kDjhuUld; nrh;e;J thH;tjw;F vd;d eltof;if nkw;bfhz;lhh; vd;gij
epU:gpg;gjw;F vjph;kDjhuh; jug;gpy; rhl;rpfnsh. Rhd;whtz’;fnsh
Kd;dplg;gltpy;iy/ cga jug;gpdUf;Fk; ,ilapyhd jpUkz ge;jk; kPz;Lk; ,iza KoahJ
mstpw;F cile;J cs;sJ vd;gJ cga jug;gpdhpd; rhl;rpa’;fspypUe;J bjspthf
bjhpatUfpwJ/ cga jug;gpdUk; gog;gwpt[ ,y;yhj egh;fs; ,y;iy/ ed;whf
goj;jth;fs;/ kDjhuh; fy;Y}hp nguhrpauhft[k;. vjph;kDjhuh; gs;spapy;
Mrphpauhft[k; ntiy ghh;j;J tUfpd;wdh;/ cga jug;gpdUk; nrh;e;J thH ntz;Lbkd;W
epidj;jpUf;Fk; gl;rj;jpy; fz;og;ghf nrh;e;J thH;tjw;fhf re;jh;g;g’;fs;
,Ue;jpUf;Fk;/ Mdhy; vjph;kDjhuh; kDjhuUld; mt;thW nrh;e;J thH;tjw;fhd ve;j
Kaw;rpa[k; nkw;bfhs;shky; kDjhuh; fhty;epiyaj;jpy; g[fhh; bfhLj;j gpd;dh;
kDjhuUld; nrh;e;J thHntz;Lbkd;W fye;Jiu kPl;liltpg;g[ chpik ghpfhuk; nfhhp
mry; kD vz;/33-02I jhf;fy; bra;jpUf;fpwhh; vd;gJ bjhpatUfpwJ/@

44. On the contrary, the first appellate Court observed that betrothal
between the appellant and the respondent took place on 1.2.2002 and when the
marriage was love marriage between them, the contention that the respondent’s
parents coerced the respondent to marry the appellant cannot be true and the
respondent behaved like a lunatic in the marriage hall was not correct. It
has also observed that in his cross-examination, the appellant stated that
for two days after the marriage, he tried for living with the respondent and
on the third day, the appellant decided to divorce the respondent, which
shows that the appellant has no sincere interest in living with the
respondent. The first appellate Court went one step further and observed
that a perusal of the betrothal photos (Exs.R8 and R9) reveal that the wife
(respondent) was a very much willing party for the marriage. Therefore, the
contention that she was coerced to marry the appellant was false. The
aforesaid finding of the first appellate Court is nothing but a figment of
imagination. How can one jump to a conclusion as to whether a person is
willing or not willing for marriage just on perusal of the photographs.

45. On perusal of the pleadings and in particular the oral evidence of
the respondent, it is clear that she had sent several letters to the College
Principal, Education Minister and Director of Collegiate Education, thereby
causing cruelty to appellant. Sending letters to the College Principal,
Education Minister etc. was not denied by the respondent. In this regard,
the first appellate Court was wrong in saying in its order that only when the
appellant planned for a second marriage, she sent those letters, as no women
would tolerate her husband undergoing second marriage when she was very much
willing to live with him. How the first appellate Court can arrive at a
conclusion that the respondent was very much willing to live with the
appellant. If she is very much willing to live with the appellant, she ought
to have taken steps for reunion and same is to be supported by oral testimony
by examining her parents and mediator and/or panchayatdars. In this case,
admittedly, on the side of the respondent, even her parents, brother and
other close relatives have not been examined. The non-examination of
witnesses on her side would show that she has not taken steps for reunion
with the appellant as rightly held by the trial Court. Mere filing of
petition seeking for restitution of conjugal rights is not enough that the
respondent was really willing for reunion. It appears that only after
lodging a complaint by the appellant before the police station, the
respondent had filed the petition for restitution of conjugal rights and
thus, there is no bona fide in the petition filed by her.

46. It is seen that the respondent had not specifically denied the
mental cruelty attributed by the appellant. It is admitted that the
respondent left the marriage hall and/or the house at Alangudi Housing Unit
in Pudukottai 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 and/or the house at
Alangudi Housing Unit, Pudukottai. In this case, nothing on record to show
that such an attempt was made by the respondent. From the pleadings, as
stated supra, there were allegations and counter allegations qua mental
cruelty against each other.

47. 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.

48. 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.?

49. In the present case, as stated supra, the respondent left the
matrimonial home in the year 2002 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.

50. 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.?

51. 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.

52. The long separation coupled with the attitude of respondent would
amount to mental cruelty caused to the appellant. Mental cruelty is not
defined in the Act and it cannot be put on a strait-jacket formula. Facts
and circumstances of each case must be considered on merits to decide whether
the party alleging mental cruelty has proved the same.

53. 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.?

54. 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.?

55. In the case on hand, the trial Court stated that so many 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.

56. 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.?

57. Admittedly, both the parties have not pleaded scope for settlement
between them. 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.

58. 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.?

59. 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 first appellate Court was
not right in reversing the finding of the trial Court, which has rightly
allowed the petition for divorce filed by the appellant since the appellant
and the respondent were living separately for long number of years.

60. The above said view of this Court is fortified by a larger Bench
decision of the 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 sixteen years, right from the date of
marriage till date.

61. Before parting with the judgment, the agonizing facts of the case
need to be reiterated. The appellant was of 31 years of age and the
respondent 28 when they got married in 2002. The petition for divorce was
filed by the appellant one year after the marriage i.e in 2002, and the
decree of divorce was granted in 2003. The first appeal was filed by the
respondent before the first appellate Court and the first appellate Court
reversed the decree of divorce in 2013. The second appeal was filed by the
appellant before this court in 2013 and has come for the final decision in
the year 2018.

62. The fact that the parties who stayed together for about 24 hours
spent close to 16 years in alleys of Courts to get rid of each other, is
nothing but appalling to say the least. The institution of marriage, which is
considered the holy union of two souls, is made mockery of by such like cases
and it is no wonder that the relevance of this pious bond is under scanner by
the youth today. Each marriage has its bitter sweet moments which are
cherished by the couple in the sunset of their lives. The companionship of
the years spent together is a comforting pillar of strength in their old age
and it is most unfortunate that the parties in the present case were devoid
of making any such memories, more so because of their own faults. This
poignant adjudication has again drawn the mind to wonder about the litigative
voyage in our Courts, especially in matrimonial cases, which leaves the
parties with no hope, zeal, or time to start their lives afresh.

63. It would also be pertinent to mention here that as per the mandate
of Section 9 of The Family Courts Act, 1984 and section 23(2) of the Hindu
Marriage Act, the Matrimonial Courts should make every positive endeavour to
bring about reconciliation between the parties so that the matter can be
amicably settled on mutually acceptable terms at the very threshold. The
Courts should make efforts at the initial stage itself so that the burden of
the Courts is also lessened and the parties are also saved from the arduous
litigation. The services of the Mediators and Counsellors especially
appointed for this purpose are at the disposal of the Family Courts, and
should be utilized to the fullest so that parties are reconciled or agree to
part mutually and amicably. Let the object of section 9 of the Family Courts
Act and section 23(2) of the Hindu Marriage Act not be defeated by a
ritualistic exercise but a concerted, cohesive and conscientious effort on
the part of the Matrimonial Courts to bring the parties to a pacific
agreement. In-time intervention of the courts dealing with marital disputes
with devotion of sufficient hearings at the initial stage itself may save
such parties this long ordeal. The courts should make sustained and
persistent attempts even when the pleadings are complete and evidence led, as
it will certainly yield potent results.

64. 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, which the trial Court has rightly done. The parties
who are litigating since 2002 and have lost valuable part of life can live
peacefully for remaining part of their life.

65. 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 respondent and also the fact that the parties who stayed
together only for about 24 hours, there is no need to order permanent alimony
to the respondent. However, it is directed that golden ornaments, silver
and other articles, belonging to the respondent, if any lying with the
appellant, the same shall be returned to her.

66. In the result, both the Civil Miscellaneous Second Appeals are
allowed and the common judgment and decree dated 18.4.2013 passed in
C.M.A.Nos.5 and 7 of 2011 on the file of Additional District Judge,
Pudukottai is set aside, thereby the common order and decreetal order passed
in H.M.O.P.Nos.10 of 2005 and 33 of 2002 on the file of the Sub-Judge,
Pudukottai stand restored. No costs. Consequently, connected miscellaneous
petitions are closed.

To

1.The Additional District Judge,
Pudukottai.

2.The Sub-Judge, Pudukottai.

.

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