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T.Ramasamy vs S.P.Usha on 28 August, 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated: 28.08.2018

RESERVED ON : 24.04.2018

DELIVERED ON : 28.08.2018

CORAM

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

C.M.S.A. (MD) No.11 of 2012
and
M.P.(MD)No.1 of 2013

T.Ramasamy … Appellant

vs

S.P.Usha .. Respondent

Appeal filed under Section 28 of the Hindu Marriage Act read with
Section 100 of C.P.C., against the judgment and decree passed in
H.M.C.M.A.No.66 of 2006 on the file of the I Additional District Court,
Tirunelveli dated 30.03.2010, confirming the order dated 25.08.2006 passed in
H.M.O.P.No.96 of 2005 on the file of the I Additional Sub Court, Tirunelveli.

!For Appellant
:
Mr.M.V.Venkataseshan
for Mr.M.Kannan

^For Respondent
:
Mr.G.Prabhu Rajadurai

:ORDER

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
C.P.C. against the judgment and decree dated 30.03.2010 passed in
H.M.C.M.A.No.66 of 2006 on the file of the learned I Additional District
Court, Tirunelveli, confirming the order dated 25.08.2006 passed in
H.M.O.P.No.96 of 2005 on the file of the learned I Additional Sub Court,
Tirunelveli.

2. The facts are that the marriage between the appellant and the
respondent was solemnized on 12.11.2003 as per Hindu rites and rituals at
Ayya Thaiyal Nayagi Marriage Hall, Sivam East Street, Palayamkottai in the
presence of elders of the family members and relatives. Out of their
wedlock, a male child was born on 21.09.2004.

3. The grounds for seeking divorce by the appellant, as recorded by the
trial Court, are as follows:

(i)Respondent used to demand separate residence.

(ii)Respondent used to suspect the appellant whenever he came late in the
night.

(iii)Respondent refused to attend the dinner hosted by the friend of the
appellant at Hotel Janakiram, Tirunelveli Junction, thereby tortured him.

(iv)When the appellant had left for Salem to attend a State Level Table
Tennis Tournament on 22.08.2004, the respondent left to her parental home for
delivering a child.

4. Upon consideration of the oral and documentary evidence, the trial
Court dismissed the petition filed by the appellant. Aggrieved by the same,
the appellant had preferred an appeal being H.M.C.M.A.No.66 of 2006.

5. By the judgment and decree dated 30.03.2010, the first appellate
Court, confirmed the order of the trial Court and dismissed the appeal
preferred by the appellant. Assailing the concurrent finding, the appellant
has preferred this Civil Miscellaneous Second Appeal.

6. In the appeal, the appellant had raised the following questions of
law:

(1)When there is no specific denial by the respondent about the cruelty
stated in the petition whether the Courts below are committed error in not
taking that the said cruelty are admitted by the respondent as contemplated
under Order 8, Rule 5 of C.P.C.?

(2)Whether the Courts below are right in giving a finding that no cruelty as
alleged in the petition, when the cruelty of threatening the appellant by the
respondent that she will commit suicide after leaving a suicide note that the
appellant is responsible for the suicide in particularly when the said
cruelty has not been specifically denied by the respondent?

7. The learned counsel for the appellant submitted that the Courts
below failed to appreciate that the respondent frequently created noise
scenes at home demanding the appellant’s separation from his aged parents and
indulged in unruly conducts and behaviour causing mental cruelty to the
appellant as a routine affair. The learned counsel further submitted that
the Courts below ought to have seen that there were sufficient grounds to
believe that the respondent indulged in unruly and violent acts, because of
the fact that the appellant’s father was managing the affairs as head of the
family and keep the funds under his control.

8. The learned counsel would contend that the respondent had failed to
offer any explanation for her failure to return to the matrimonial home long
after she had delivered the child on 21.09.2004. He would submit that the
appellant had suffered intolerable mental agony from the hands of the
respondent. He would further submit that the Courts below failed to
appreciate the oral evidence of both sides and have dismissed the petition
filed by the appellant for divorce on flimsy ground. He would submit that
where there had been a long period of continuous separation, it may be
concluded that the matrimonial life is beyond repair. In support of his
contention, the learned counsel relied upon the following decisions:

(i)Naveen Kohli v. Neelu Kohli, reported in (2006) 4 SCC 558.

(ii)Unreported judgment in C.M.S.A.(MD) No.16 of 2013, dated 06.2.2018
(Solaimallaiyan v. Jeyanthi)

(iii)Unreported judgment in C.M.A. (MD) Nos.238 and 239 of 2012 (Salome v.
Dr.Prince D.Immanuel)

9. Per contra, the learned counsel for the respondent submitted that
the respondent agreed to live with the parents of the appellant, but the
appellant did not give money to the expenses for the joint family. The
appellant used to come late night at about 3’o clock in a drunken mood and he
would never take care of the respondent and her child and the appellant
enjoyed sadistic pleasure by torturing the respondent. He would submit that
in fact, the appellant has not attended the Seemantham function, which itself
shows that the appellant alone tortured the respondent.

10. The learned counsel for the respondent further submitted that after
appreciation of the oral and documentary evidence, the trial Court has
dismissed the petition of the appellant, which was confirmed by the first
appellate Court. He would submit that the Courts below have rightly declined
the prayer of the appellant. There is no question involved in this appeal
and prayed for dismissal of the appeal.

11. According to the learned counsel for the appellant divorce can be
granted on the ground that the respondent wife deserted the appellant husband
for a continuous period of not less than two years immediately preceding the
presentation of the petition and therefore, the appellant is entitled to get
a divorce from the respondent.

12. The cruelty attributed against the respondent by the appellant is
that she was frequently created noise scenes at home demanding appellant’s
separation from his aged parents and indulged in an unruly conducts and
behaviour causing mental agony and torture.

13. It is seen that the respondent had not specifically denied the
mental cruelty attributed by the appellant. According to the respondent, she
had agreed to live in a joint family along with the appellant’s parents and
that she had lived with the joint family for quite some time, say till she
left the matrimonial home for delivery. It appears that after delivery, the
respondent had not returned back the matrimonial home. But the respondent
had failed to do so for one reason or other. If the respondent is really
willing to live with the appellant, she ought to have filed petition for
restitution of conjugal rights.

14. On a perusal of the pleadings and the evidence recorded on both
sides, this Court finds that both the appellant and respondent making
allegations against each other in the petition and the counter. According to
the appellant, by demanding a separate family, everyday his wife, the
respondent was torturing him. It is the case of the appellant also that the
respondent often threatening to commit suicide.

15. On the other hand, the respondent stated that she never asked for
separate family. According to the respondent, the appellant used to come to
home late night at about 3’o clock in a drunken mood and he would never take
care of the respondent and in fact, the respondent was willing to live with
the appellant.

16. The Courts below while declining the relief of the appellant held
that the appellant was a man of undesirable character who had come to the
Court to get an order of divorce on flimsy grounds for reasons best known to
him.

17. In the case on hand, as recorded by the Courts below, absolutely
there was no evidence to show that the respondent left the matrimonial home
on her own accord. At the same time, as stated supra, it is the duty of the
respondent to return back the matrimonial home after giving birth of the male
child. In this case, nothing on record to show that such an attempt was
made by the respondent. There was also no piece of evidence to show that the
appellant invited the respondent to the matrimonial home after delivery of
male child. From the pleadings, it is seen that there were allegations and
counter allegations qua mental cruelty against each other.

18. 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.

19. In Solaimallaiyan v. Jeyanthi, supra, the learned Single Judge of
this Court held:

?9. When I take into consideration the aforementioned factors along with the
important circumstance that the parties are admittedly living separately for
more than nine years and in such cases, the irresistible conclusion would be
that matrimonial bond has been ruptured beyond repair because of the mental
cruelty caused by the respondent/wife. The conduct of the wife shows that
the widening of the rift between them. Therefore, the appellate Court in
the impugned judgment seriously erred in reversing the judgment of the
H.M.O.P.No.27 of 2008 on the file of the Sub-Court, Aruppukottai dated
25.06.2010. The lower appellate Court in the impugned judgment ought to have
considered the most important and vital circumstance of the case in proper
perspective that the parties have been living separately for a period of more
than two years and thereafter, the wife did nto even file any petition for
reunion.

10. Therefore, this is a clear case of irretrievable breakdown of marriage.
In my considered view, it is impossible to preserve or save the marriage by
force or coercion. Any further effort to keep it alive would prove to be
totally counter productive. In the backdrop of the spirit of the case, the
Sub-Judge, Aruppukottai was fully justified in decreeing the appellant’s suit
for divorce.?

20. In Soleme v. Dr.Prince D.Immanuel, supra, is the case where the
appellant/wife and the respondent/husband were living separately for more
than 10 yeas and the attitude of the respondent even after obtaining a decree
of restitution of conjugal rights has not taken steps to enforce the same,
but insisting on retaining matrimonial bond would amount to causing mental
cruelty and to torment and traumatized the appellant. In the given facts
and circumstances of the case, in Salone 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.?

21. In the present case, as stated supra, the respondent left the
matrimonial home in the year 2004 and she had not return back to the
matrimonial home. Since there was no possibility of re-union, directing the
respondent and the appellant to live together as husband and wife would
amount to cause mental cruelty to the appellant.

22. 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 amongs 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.?

23. The ratio of law which emerged from catena of decisions of the
Hon’ble Supreme Court 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.

24. 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.

25. 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.?

26. 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.?

27. In the case on hand, the Court below 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.

28. 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.?

29. 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.

30. In Naveen Kohli v. Neelu Kohli, supra, 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.?

31. The aforesaid decision would squarely 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 have not
justified in dismissing the petition for divorce filed by the appellant since
the appellant and the respondent were living separately for long number of
years.

32. It is seen from the records that already the matter was referred
to the Mediation and Conciliation Centre attached to this Bench. On
09.07.2013 when the matter was posted before the Mediation Centre, both
parties were absent and the matter was adjourned. On 26.07.2013, when the
matter was taken by the Mediation Centre, the appellant Ramasamy present and
the respondent has not appeared. The Mediation Centre adjourned the matter
to 19.08.2013. Thereafter, on 21.08.2013, the matter was posted before the
Mediator Mr.M.R.Sreenivasan. The report of the Mediator dated 21.08.2013,
reads thus:

?Mediation could not succeed. Hence, this case is referred back to the
Hon’ble Court.?

The report of the Mediation Centre clearly shows that the parties were not
interested in settling the matter. Despite the intervention of the Mediator,
both the appellant and the respondent are not willing for re-union.

33. In my considered view, looking into the peculiar facts of the case
and also in the interest of both the parties, it would be appropriate to set
aside the judgment and decree of the Courts below.

34. As discussed above, there was no possibility of the appellant and
the respondent for re-union and since the parties were living separately for
long number of years and that the appellant is entitled to get decree of
divorce, it is the duty of the appellant to settle permanent maintenance to
the respondent wife and the child. In the instant case, the appellant has
not stated anything to keep the male child in his custody. On the other
hand, the respondent was taking care of the male child from the year 2004
onwards and now the male child is with the respondent. The respondent has to
take care of the male child born out of the wedlock in future.

35. 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 respondent. Considering the financial status
of the appellant therein, the Hon’ble Court directed the appellant to pay
Rs.25.00 lakhs to the respondent towards permanent maintenance.

36. Following the decision of the Hon’ble Supreme Court in Naveen Kohli
v. Neelu Kohli, supra, it would be appropriate to award permanent maintenance
in this matter also. In his petition, the appellant stated that he was
employing as a Clerk in the Employees’ Provident Fund Office at
Palayamkottai. At the time of filing petition, the petitioner was aged 31
years and now approximately, his age would be 44 and would get attractive
salary.

37. It is to be noted that earlier, the respondent had filed petition
seeking interim maintenance before the Chief Judicial Magistrate Court,
Tuticorin in M.C.No.16 of 2015. By an order dated 12.07.2006, the Chief
Judicial Magistrate directed the appellant to pay a sum of Rs.1000/- to the
respondent and Rs.750/- to the minor male child. It is stated that the
appellant has not complied with the said direction.

38. Without expressing anything on the merits of the order passed in
the aforesaid Maintenance Case and as this Court held that re-union of the
appellant and the respondent is not possible and also considering the long
separation between the parties, I am of the considered view that it would be
appropriate to direct the appellant to pay Rs.10,00,000/- (Rupees Ten Lakhs
only) to the respondent towards permanent maintenance to maintain herself and
the minor male child.

39. In the result, the judgment and decree dated 30.03.2010 passed in
H.M.C.M.A.No.66 of 2016 on the file of the learned I Additional District
Judge, Tirunelveli confirming the order dated 25.08.2006 passed in
H.M.O.P.No.96 of 2005 on the file of the learned I Additional Sub Court,
Tirunelveli is set aside. The marriage between the appellant and the
respondent solemnized on 12.11.2003 stands dissolved according to the
provisions of the Hindu Marriage Act, 1955. Considering the status of the
appellant and his employer, he is directed to pay a sum of Rs.10,00,000/-
(Rupees Ten Lakhs only) to the respondent towards permanent maintenance to be
paid within a period of twelve weeks from the date of receipt of a copy of
this order. Out of Rs.10,00,000/-, the respondent is entitled to
Rs.5,00,000/- to maintain herself and Rs.5,00,000/- is directed to be
deposited in the name of minor male child for the welfare of the minor male
child. In case, the appellant fails to pay the amount indicated above within
the stipulated period, the direction given by this Court would be of no avail
and the appeal shall stand dismissed. No costs. Consequently, connected
miscellaneous petitions are closed.

To

1.The I Additional Sub Judge,
Tirunelveli.

2.The I Additional District Judge,
Tirunelveli.

.

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