Madrasdated High Court · 2025

JUDGMENTThis Civil Miscellaneous Second Appeal has been preferred against the Judgment and Decree dated 02.11.2023 in C.M.A.No.10 of 2022 passed by the learned District Judge, Nagapattinam, confirming the Judgment and Decree dated 28.07.2022 in H.M.O.P.No.110 of 2019 passed by the learned Subordinate Judge, Nagapattinam.2. The brief facts of the case are that the marriage between the appellant and respondent held on 12.05.2013 at Chockaiyan Prema Marriage Hall, Vedharanyam in the presence of elders as per the Hindu Rites and Customs. During their marriage, the parents of appellant/wife had presented gold jewels, two wheeler and household articles as Sridhana to the appellant/wife. At the time of marriage, the respondent/husband was jobless, but, the appellant/wife was working as a Teacher in a Primary School managed by her grand-father. When the appellant/wife was 2 months pregnant, the respondent/husband and his mother had abused and insulted the appellant/wife. During the 7th month of her pregnancy, the parents of appellant/wife had brought the appellant/wife to their home for baby shower. On 02.04.2014, a female child born to the appellant/wife. Since the appellant/wife gave birth to a female child, the respondent/husband 2/19 https://www.mhc.tn.gov.in/judis had beaten the appellant/wife. That apart, without even considering the health condition of the appellant/wife, the respondent/husband compelled the appellant/wife to be ready for 2nd child and also, harassed the appellant/wife by using filthy languages and body shaming words. On 27.04.2018, the respondent/husband went to the appellant's/wife's parents house and demanded the appellant/wife as well as her father to transfer all their properties in his name, but, they refused to do so. Hence, there was a quarrel between the respondent/husband and the family of appellant/wife, during which, the respondent/husband assaulted the appellant/wife as well as her father and also, cut the “Thaali Chain” of the appellant/wife. 3. Aggrieved by the aforesaid activities of the respondent/husband, the appellant/wife filed a petition in H.M.O.P.No.110 of 2019 under Section 13(1)(a) of the Hindu Marriage Act, 1955 before the Sub Court, Nagapattinam seeking divorce to dissolve the marriage held between the appellant/wife and respondent/husband, on the grounds of cruelty. 4. The respondent/husband filed his Counter Statement in H.M.O.P.No.110 of 2019 denying all the averments made by the appellant/wife in H.M.O.P.No.110 of 2019.3/19 https://www.mhc.tn.gov.in/judis

5. Before the trial Court, the appellant/wife examined herself as P.W.1 and 4 documents were marked as Exs.P1 to P4 on the side of appellant/wife. On the side of the respondent/husband, the respondent/husband examined himself as R.W.1, but, no document was marked as exhibit.6. After hearing the arguments on both sides and perusing the oral and documentary evidence, the learned Subordinate Judge, Nagapattinam vide Judgment and Decree dated 28.07.2022, dismissed H.M.O.P.No.110 of 2019 by holding that the reasons assigned by the appellant/wife is not sufficient to conclude that the respondent/husband had caused cruelty to the appellant/wife.7. Aggrieved over the Judgment and Decree dated 28.07.2022 passed by the Trial Court, the appellant/wife preferred an Appeal in C.M.A.No.10 of 2022 before the District Court, Nagapattinam. However, after hearing the learned counsel on both sides and perusing the oral and document evidence of both sides, the First Appellate Court vide Judgment and Decree dated 02.11.2023, confirmed the Judgment and Decree dated 28.07.2022 of the trial Court and dismissed C.M.A.No.10 of 2022 by holding that the 4/19 https://www.mhc.tn.gov.in/judis appellant/wife has failed to prove the allegations raised against the respondent/husband. Aggrieved over the concurrent findings of the Courts below, the appellant/wife has preferred this Civil Miscellaneous Second Appeal before this Court.8. On 15.04.2024, this Civil Miscellaneous Second Appeal was admitted on the following substantial questions of law:“(i) Whether the Courts below were right in not coming to a conclusion that there was cruelty on the part of the respondent/husband due to the fact that he was not taking care of both the appellant and the girl child from the year 2017 onwards and that by itself will amount to mental cruelty warranting dissolution of marriage?(ii) Whether the Courts below did not appreciate the oral and documentary evidence while dismissing the petition filed by the appellant seeking for dissolution of marriage?”9. Today, this Court has framed the following additional substantial questions of law for consideration:“1. Whether the Appellate Tribunal is legally correct in not considering non-compatibility among the parties concerned to pass a decree of Divorce?2. Whether the Court is right in conveniently neglecting the conduct of the respondent who failed to take any steps for a patch up, failed to reply to the legal notice, avoided Court notice on several attempts and chosen to depose only after nearly 37 months, which would amply prove his intention?3. The Courts below are erroneous in its finding as held by the Hon'ble Apex Court that the degree of probability is not beyond any reasonable doubt, but of preponderance?” 5/19 https://www.mhc.tn.gov.in/judis

10. Mrs.T.Aananthi, learned counsel for the appellant/wife submitted that the First Appellate Court ought to have applied its mind to the personal motivated, disrespectful, body shaming, man-handling and irresponsible conduct of the respondent/husband and ought to have been allowed C.M.A.No.10 of 2022 preferred by the appellant/wife.10.1. It is further submitted by the learned counsel for the appellant/wife that the Courts below failed to note that the appellant/wife undergone both verbal and physical harassment in the hands of the respondent/husband and hence, she approached the Court for Divorce. 10.2. The learned counsel for the appellant/wife submitted that the Courts below failed to observe that even before the filing H.M.O.P.No.110 of 2019, there was a long irrevocable period of separation from 2015. It is submitted that the respondent/husband did not even come and visit his new born child which itself shows that the marriage held between the appellant/wife and respondent/husband is broken down. 10.3. It is submitted by the learned counsel for the appellant/wife that the conduct of the respondent/husband clearly reveals his intention to depart 6/19 https://www.mhc.tn.gov.in/judis the appellant/wife and failure in performing his duties and liabilities causing utter failure of matrimonial sanctity which favours the appellant/wife to get her relief of divorce as prayed for.10.4. That apart, the learned counsel for the appellant/wife submitted that the Courts below failed to note that the “Probabilities of Cruelty” felt by the appellant/wife and her small child become victim to the man handling and fight of the respondent/husband is suffice to prove on “Preponderance” and not beyond any reasonable doubts. Therefore, it is submitted that the judgment and decree of the Courts below are liable to be interfered with.11. Despite the service of notice, none appeared on behalf of the respondent/husband.12. Heard the arguments advanced by the learned counsel for the appellant/wife and perused the materials produced before this Court.13. Before going into discussion, it would be necessary to have a look upon the facts of the case in hand. 7/19 https://www.mhc.tn.gov.in/judis

14. The facts on record reveal that the appellant/wife married the respondent/husband on 12.05.2013 as per the Hindu Rites and Customs. At the time of their marriage, the appellant/wife was working as a Teacher in a Primary School managed by her grand-father, but, the respondent/husband was not having any job despite he had qualified M.Sc. and B.Ed. Degrees. After marriage, the appellant/wife and respondent/husband had started living their married life and the appellant/wife became pregnant. During her pregnancy, the appellant/wife was forcibly sent out from her matrimonial house by the respondent/husband. On 02.04.2024, the appellant/wife gave birth to a female child. The appellant/wife had delivered her child only with the help of her parents. After her child's birth, the respondent/husband had started ill-treating and harassing the appellant/wife for the reason that the appellant/wife gave birth to a female child. 15. That apart, the respondent/husband insisted the appellant/wife to get more dowry from her parents and to sell the properties in her name and give money to him to get a job. Further, on 27.04.2018, the respondent/husband demanded the appellant/wife and her parents to transfer the properties belonging to the appellant's/wife's grand-father to the name of respondent/husband, but, the appellant/wife and her parents refused to do so. Hence, there was a dispute arose between the respondent/husband and the 8/19 https://www.mhc.tn.gov.in/judis family of appellant/wife, during which, the respondent/husband assaulted the appellant/wife as well as her father and also cut the “Thaali Chain” of the appellant/wife.16. Under these circumstances, the appellant/wife had sent a Legal Notice dated 02.04.2019 to the respondent/husband stating that she is not willing to live with the respondent/husband, but, the respondent/husband refused to receive the said Legal Notice. While so, the appellant/wife had filed H.M.O.P.No.110 of 2019 before the Sub Court, Nagapattinam seeking divorce to dissolve the marriage held between the appellant/wife and respondent/husband on 12.05.2013. 17. The respondent/husband filed his Counter Statement denying the averments made by the appellant/wife in the petition in H.M.O.P.No.110 of 2019 by stating as follows:(i) The appellant/wife has been working as a permanent Teacher in a Primary School at Manakkaadu, but, suppressing the same, she has stated that she is working as a temporary Teacher.(ii) At the time of marriage, the appellant/wife was working as a Teacher in a Primary School which is 25 km away from the house of respondent/husband and thus, she had to travel 25 km everyday for the sake 9/19 https://www.mhc.tn.gov.in/judis of job. Travelling such a long distance during pregnancy would endanger the life of the baby in the womb and therefore, the respondent/husband had allowed the appellant/wife to stay in her parents' house.(iii) The respondent/husband and his family members were happily accepted the birth of female child. (iv) On 27.04.2018, when the respondent/husband invited the appellant/wife to live with him, the appellant/wife refused to come and live with respondent/husband. That apart, the appellant/wife and her father insulted the respondent/husband. (v) The respondent/husband is always ready and willing to live with the appellant/wife.18. During trial, the appellant/wife admitted that she is working as a permanent Teacher in the school managed by her grand-father. Further, the appellant/wife admitted that she has not given any complaint against the respondent/husband and also, admitted that the respondent/husband is not having the habit of consuming alcohol. 19. During cross-examination, the respondent/husband had stated that he did not cut the “Thaali Chain” of the appellant/wife on 27.04.2018 during the dispute between the respondent/husband and the family of 10/19 https://www.mhc.tn.gov.in/judis appellant/wife, in fact, the appellant/wife herself removed her “Thaali Chain” at the instance of her father and kept the same in the Pooja Room. 20. On appreciation of oral and documentary evidence, the Trial Court had held that the appellant/wife and the respondent/husband have a female child and the allegations made by the appellant/wife against the respondent/husband are ordinary occurrences that would be happened in the day-to-day life of a Hindu joint family and the same are not extraordinary occurrences such as cruelty. Further, the Trial Court had held that the allegation levelled against the respondent/husband that the respondent/husband had caused cruelty to the appellant/wife has not been proved by the appellant/wife. 21. Considering the fact that the appellant/wife has not proved the allegations levelled against the respondent/husband and also, considering the future of the female child that was born to the appellant/wife and the respondent/husband, the Trial Court dismissed the petition in H.M.O.P.No.110 of 2019 filed by the appellant/wife vide Judgment and Decree dated 28.07.2022.22. As against the Judgment and Decree dated 28.07.2022 in 11/19 https://www.mhc.tn.gov.in/judis H.M.O.P.No.110 of 2019 passed by the Trial Court, the appellant/wife had preferred an appeal in C.M.A.No.10 of 2022 before the First Appellate Court. However, the First Appellant Court vide Judgment and Decree dated 02.11.2023, dismissed C.M.A.No.10 of 2022 with the following observation:“15. The appellant has also failed to prove the allegations raised against the respondent either through oral or documentary. It came to light from the findings of the trial court in Para – 5, 6, 13 that even for small issues in the matrimonial life divorce petition is filed for want of separation which leads to irreparable loss of life between the parties. The above said appellant's original petition has not fulfilled the grounds for cruelty and mere factum of separation. And the fault divorce grounds are not satisfied and supported the pleading and evidence and consequently cruelty was not proved.16. As discussed above, the trial court has rightly decided the petition for divorce in favour of the respondent and hence, this appellate court concludes that there is no reason to interfere in such findings of the trial court and so the appeal is also to be dismissed and this point is decided accordingly.”Hence, the appellant/wife has preferred this Civil Miscellaneous Second Appeal against the Judgment and Decree dated 02.11.2023 in C.M.A.No.10 of 2022 passed by the First Appeallate Court, confirming the Judgment and Decree dated 28.07.2022 in H.M.O.P.No.110 of 2019 passed by the Trial Court.23. From a perusal of the records, it is seen that at the time of marriage, the appellant/wife was employed as a Teacher and the respondent/husband was not having any permanent job. It appears that 12/19 https://www.mhc.tn.gov.in/judis immediately after the marriage, there was a misunderstanding started between the appellant/wife and the respondent/husband. 24. Furthermore, it is also seen that when the appellant/wife was pregnant, she was not cared by the respondent/husband and she was forcibly sent out from the matrimonial house by the respondent/husband. That apart, the respondent/husband started harassing the appellant/wife for the reason that the appellant/wife gave birth to a female child. However, the appellant/wife did not give any Police complaint against the respondent/husband.25. Under these circumstances, on 27.04.2018, the respondent/husband demanded the appellant/wife and her father to transfer the school property belonging to the appellant's/wife's grand-father in his name and further, he assaulted the appellant/wife as well as her father and cut the “Thaali Chain” of the appellant/wife. These cruel activities of the respondent/husband necessitated the appellant/wife to send a Legal Notice dated 02.04.2019 to the respondent/husband and also, to file a petition for divorce.26. The fact remains that when the respondent/husband married the 13/19 https://www.mhc.tn.gov.in/judis appellant/wife, the respondent/husband was not having any job which was admitted by the respondent/husband himself during the cross-examination. The fact also remains that the Primary School where the appellant/wife is working as a Teacher was belonged to the appellant's/wife's grand-father and the respondent/husband forced the appellant/wife to transfer the said school property in his name. 27. It is to be noted that from the date of marriage, there was a misunderstanding and dispute between the appellant/wife and the respondent/husband, due to which, the appellant/wife left her matrimonial house and live with her parents from the year 2014 itself. 28. It is also to be noted that after the appellant/wife delivered her child, the respondent/husband started ill-treating and harassing the appellant/wife for the reason that the appellant/wife gave birth to a female child. Further, there is no proof that the respondent/husband has taken care of his child as a father. 29. Though the respondent/husband is ready to live with the appellant/wife, he is not ready to take care of his child. That apart, the respondent/husband is not inclined to meet the family expenses since he is 14/19 https://www.mhc.tn.gov.in/judis jobless. Therefore, the appellant/wife alone has to meet the family expenses as well as the expenses towards the maintenance of her child in her income. 30. The conducts of the respondent/husband clearly shows that the respondent/husband caused both mental and physical cruelty to the appellant/wife.31. At this juncture, it is pertinent to state that it is a settled preposition of law that there is no specific definition for the expression, “Cruelty”. Cruelty can be physical or mental. If any conduct of the husband caused mental agony to his wife, the same has to be considered as “Cruelty” which includes both physical and mental cruelty. If from the conduct of the spouse, same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty.32. In the case in hand, it has been clearly narrated by the appellant/wife that after her marriage, she was harassed by the respondent/husband and hence, she left the matrimonial house and started to 15/19 https://www.mhc.tn.gov.in/judis live at her parents’ house. It has also been narrated by the appellant/wife that the respondent/husband persuaded her as well as her father to transfer the school property belonged to her grand-father to the name of respondent/husband.33. While dealing with the divorce cases, the Court should see the probabilities of the case and it should not expect direct evidence for each and every event. In a case of mental cruelty, there cannot be any direct evidence.34. However, in the present case, the Courts below have failed to note that the mental and physical cruelty caused by the respondent/husband to the appellant/wife forced the appellant/wife to approach the Court for divorce. The Courts below have erroneously held that the appellant/wife has failed to prove the allegations raised against the respondent/husband either through oral or documentary evidence.35. From a careful perusal of the oral and documentary evidence produced before this Court, it can be presumed that the conducts of the respondent/husband which caused mental and physical cruelty to the appellant/wife. Hence, it has to be held that the appellant/wife has proved the allegation against the respondent/husband that the appellant/wife was 16/19 https://www.mhc.tn.gov.in/judis harassed and beaten by her husband in the presence of her family members. Accordingly, all the additional substantial questions of law are answered in favour of the appellant/wife. 36. In the result, this Civil Miscellaneous Second Appeal is allowed and the Judgment and Decree dated 02.11.2023 in C.M.A.No.10 of 2022 passed by the learned District Judge, Nagapattinam as well as the Judgment and Decree dated 28.07.2022 in H.M.O.P.No.110 of 2019 passed by the learned Subordinate Judge, Nagapattinam are hereby set aside. Consequently, the Petition filed by the appellant/wife in H.M.O.P.No.110 of 2019 before the Subordinate Court, Nagapattinam is decreed as prayed for and the marriage held between the appellant/wife and the respondent/husband is ordered to be dissolved by granting divorce to her. No costs. Consequently, connected Civil Miscellaneous Petition is closed. 24.06.2025mrrIndex : Yes/NoSpeaking Order (or) Non-Speaking OrderTo1.The District Judge, Nagapattinam.17/19 https://www.mhc.tn.gov.in/judis

2.The Subordinate Judge, Nagapattinam.T.V.THAMILSELVI, J.mrrC.M.S.A.No.21 of 202424.06.202518/19 https://www.mhc.tn.gov.in/judis