Madrasdated High Court · 2012

respondent's demand, she refused to have intimate relationship withhim. On 4.10.2000 when the appellant was taking the respondent inhis scooter, on nearing her parent's house, instead of slowly gettingdown, she deliberately fell down and got injuries on her leg with aview to create a scene. The respondent was not continuouslystaying with the appellant in the matrimonial home. The respondentnever showed any interest towards him let alone attending to hisday to day requirements and other household duties. When theappellant's sister asked the respondent to attend his daily needs,she simply refused to do so by saying that she is not a servantmaid. The respondent made it a routine affair to go to herparents' house and making an occasional guest appearance in thematrimonial home. During her stay in the matrimonial home, therespondent would frequently pick up quarrel with the appellantover the property issue and used to abuse him. The respondent'sparents instead of advising her, they encouraged her by givingill advise. 4. According to the appellant, the respondent would havestayed with him for 20 days in all. It is the further case ofthe appellant that the health of the appellant's mother worseneddue to high blood pressure and sugar level. But the respondentinstead of taking care of her, she abused her in a filthy language.The respondent was brought to the matrimonial home after her stayfor a month in her parents' house, on 5.11.2002. On 8.11.2002, therespondent was taken to her parents' house for conducting theceremony of changing the Mangalsutra to be held on 10.11.2002. 5. It is alleged that even at that time, the demand wasmade by the mother of the respondent to transfer the Adayarproperty to the respondent's name, otherwise, she told that shewould not send the respondent to the matrimonial home. Thereafter,the appellant's friends went to the respondent's house forreconciliation but all their efforts became futile. A month later,the respondent came back on 5.2.2002 to the matrimonial home and on6.2.2002 she acted violently by abusing each and every one of thefamily members and on 7.2.2002 she threw the Mangalsutra and leftfor her parents' house taking most of her belongings with her andbecause of that the appellant's mother suffered heart attack andshe was hospitalised for nearly a month. While so, the respondentgave birth to a female child and the appellant paid the hospitalcharges. 6. On 15.9.2001 the respondent went to the working placeof the appellant and created a scene by shouting and abusing himand his family members. Thereafter, the respondent's parentsapproached Mr.Saidai Duraisamy, who is one of the leaders of theAIADMK political party and a panchayat was held and when thetrue facts were brought to his notice, the respondent was advisedto rejoin with the appellant. https://hcservices.ecourts.gov.in/hcservices/

7. It is the further case of the appellant that on4.1.2002, one Jaipal, Manokaran and two other persons came to theappellant and assured him that they would send the respondent backto the matrimonial home, but thereafter, there was no response fromthem or the respondent's side. On 10.3.2002 the respondentaccompanied by her mother and one relative came to the matrimonialhome with a bag for taking her belongings. At that time, therespondent and her mother created a big galata in the Adayarlocality by abusing the appellant and his family members andcreated a scene by sitting in the middle of the road in front of hishouse. The respondent's mother brought goondas to the scene aftera while. The appellant immediately rang up and complained to thepolice, who in turn rang up to the All Women Police Station andthe respondent was taken to the police station and the appellant gavea complaint and the respondent also gave a complaint. On 14.3.2002,they were called for an enquiry and during the enquiry, therespondent refused to live with the appellant by clearly statingthat if the house property is changed to her name, she will thinkabout her joining with him. The respondent had deserted him andabusing the law to ruin his life. The various acts committed by therespondent has caused great mental agony and it amounts to mentalcruelty and therefore, sought for the dissolution of marriage onthe ground of mental cruelty by filing O.P.No.494 of 2002 beforethe Second Additional Family Court, Chennai. 8. The respondent contested the petition by filing a counterinteralia contending as follows:-a. The petition filed under Section 13(1)(ia) of the HinduMarriage Act is not maintainable. The appellant and hisparents demanded Rs.50000/- besides demanding silver articlesaround one kilogram and 30 sovereigns of gold and also a chainweighing five sovereigns to the appellant herein as dowry. Therespondent's parents spent Rs.1,00,000/- for conducting betrothalceremony. Though the demands of the appellant have been met andRs.7500/- was given for dress materials, the respondent's parentscould not pay Rs.50000/- as demanded by the appellant. Theappellants parents also demanded steel bureau, cot and kitchenarticles and the same were complied with. The respondent had deniedthe allegation that within four days of leading the marital life atAdayar she urged the appellant to change the house property to hername. The respondent was not even aware that the house propertystands in the appellant's mother's name. The allegation that shewas blackmailing the appellant by refusing to have intimaterelationship with him since the appellant refused to accede to herdemand is false. The allegation that she deliberately injured herleg is false. The allegation that she was staying as a guest inthe matrimonial house has been denied. The respondent was ill-treated by the appellant, his mother and unmarried sister, who is alawyer and she was forced to undergo mental agony. It is denied https://hcservices.ecourts.gov.in/hcservices/ that the respondent lived with the appellant only for 20 days. Buton the other hand, she was living with the appellant from the date ofmarriage till she was driven out by the appellant and her in-laws.The appellant was harassing and torturing the respondent at theill advise of her in-laws. They directed the respondent to getRs.50000/- from her parents, otherwise, they would not allow her tolive with the appellant. b. According to the respondent, while she was residing withthe appellant, on 8.1.2001 she was taken to her parents house forthe ceremony of changing the Mangalsutra to be held on 10.1.2001.The respondent's mother never made any demand for transferring theAdayar house property to her name and she never ill advised therespondent. As per the demand made by the appellant's mother andsister, her parents gave five sovereigns of gold for Thali Kodi.On 13.11.2000, the respondent returned back to her matrimonial home,but she was ill treated again by her in-laws for not bringingRs.50000/- as demanded by them. On 7.2.2001, the in-laws of therespondent beaten her severely and she was driven out of thematrimonial home, though she was pregnant. The appellant nevercame to her house and hence, there was no occasion for her motherto make the demand for transferring the Adayar house property tothe respondent's name. Though she was pregnant, the appellant nevervisited her. The allegation that she threw away the Mangalsutraand left for her parents house is false. Since no steps were takenby the appellant and his parents to take back her to thematrimonial home, she went to the appellant's office and made arequest to him and came back and she never misbehaved and abusedthe appellant at his office. Even though the appellant and hismother promised before the Panchayatadars to take her back within aweek, they never took her back but they were adamant in theirattitude. In spite of several requests made to the appellant, shewas not taken back to the matrimonial home. c. It was further contended that on 10.3.2002, left with noother option, the respondent on her own returned to the matrimonialhome along with her mother and baby and even though the appellantwas willing to take her back, on seeing his mother, the appellantbehaved in a different manner and not only abused her but alsodoubted her character. The appellant and her in-laws beaten herand she was dragging by them to the road and because of that shesustained multiple injuries and was treated at E.S.I. GovernmentHospital, Ashok Nagar. In that regard, she gave a complaint toAll Women Police Station, Chennai-20 on 10.3.2002. The policecalled her and the appellant for an enquiry on 14.3.2002. But duringthe enquiry, the appellant refused to live with her. The contraaverments made in para 13 of the petition are denied as false andmisleading. To escape from the police complaint, the very next dayi.e. on 15.3.2002, the appellant filed the divorce petition. Theallegation that the respondent deserted the appellant is false. The https://hcservices.ecourts.gov.in/hcservices/ respondent does not have any intention of deserting theappellant. The respondent is always ready and willing to live withthe appellant. On the aforesaid contentions, the divorce petitionwas sought to be dismissed. 9. Before the Family Court, the appellant was examined asP.W.1 and one Nithyakumari, Sub Inspector of Police andRajalakshmi, Inspector of Police were examined as P.Ws.2 and 3 on theside of the appellant and Marriage Invitation was marked as Ex.P.1.On the side of the respondent, she was examined as R.W.1 and a policereceipt was marked as Ex.R1. Exs.X1 and X2 were marked as Courtdocuments. 10. The Court below on a consideration of the oral anddocumentary evidence adduced dismissed the petition and beingaggrieved by that the husband has filed the above appeal. 11. Heard both. 12. Mr.T. Murugesan, learned Senior Counsel appearing onbehalf of M/s. Vasudevan & Sudha, learned counsel for the appellantmade the following submissions:- a. Within four days of coming to the matrimonial home, therespondent started demanding the transfer of house propertystanding in the name of the appellant's mother to her name andsince the demand was not acceded to she even refused to haveintimate relationship with the appellant and the appellant andthe respondent had lived as husband and wife only for 20 days. b. The respondent never attended to the personal needs ofthe appellant. She never cared to attend on the sick mother of theappellant; the respondent often left for her parents house and shewas visiting the matrimonial home as a guest; finally therespondent left the matrimonial home on 7.2.2001 and thereafter,the appellant and the respondent had not lived together and thusthey are living separately for the past 11 years and there isabsolutely no chance of any reunion. Though the respondent inher counter statement and evidence stated that she was always readyand willing to live with the appellant, she had not filed anypetition seeking restitution of conjugal rights. 13. The learned Senior Counsel further submitted that inthe counter statement as well as in her evidence she has made falseallegations as if the appellant and her parents demanded goldjewellery and Rs.50000/- etc. The respondent had lodged afalse complaint which will amount to mental cruelty. The learnedSenior Counsel submitted that P.W.1's evidence has not beenproperly considered by the Court below. The learned Senior Counselsubmitted that though the appellant had reiterated the avermentscontained in the petition relating to the various acts of mental https://hcservices.ecourts.gov.in/hcservices/ cruelty and had deposed that no demand for dowry was made, nosuggestion whatsoever has been put to him suggesting that theappellant and his parents demanded gold jewellery andRs.50000/-. 14. The learned Senior Counsel submitted that therespondent had not put forth her case to P.W.1 during his crossexamination. The learned Senior Counsel submitted that the Courtbelow has not properly considered the evidence on record relatingto the removal of Mangalsutra by the respondent. The observationof the Court below that since the Thali had not been marked as anexhibit, the removal of Thali by the respondent is of nosignificance is fallacious. The removal of Thali by the respondentwould cause mental cruelty to the husband and this itself issufficient to grant divorce. 15. According to the learned Senior Counsel, the Court belowhas not considered the various admissions made by the respondentas R.W.1. The learned Senior Counsel submitted that when therespondent herself had admitted the enquiry conducted by thepolice, the Court below has held that since the copy of thecomplaint has not been filed, the contention of the appellantcannot be accepted. 16. The learned Senior Counsel submitted in March 2002,divorce petition was filed and the petition was dismissed by orderdated 21.8.2006 and on 24.11.2006, the above C.M.A. was filed. On16.11.2006 the respondent lodged a criminal complaint againstthe appellant and his family members for the alleged offences underSections 498 A I.P.C. and Section 4 of the Dowry Prohibition Act.Apprehending the arrest and harassment by the police, the appellantand his family members filed Crl.O.P.No.28946 of 2006 seekinganticipatory bail and by order, dated 22.11.2006 anticipatory bailwas granted to them. As the appellant was being continuouslyharassed, he lodged a complaint on 10.1.2007 and since no actionwas taken, the petition under Section 482 Cr.P.C was filedseeking for a direction. 17. Once again, since the respondent lodged a falsecomplaint against the appellant and his family members, they had tofile Crl.O.P.No.6384 of 2007 seeking anticipatory bail and the samewas granted by order, dated 9.3.2007. In August 2009, once again,as the respondent filed a police complaint, they had to fileCrl.O.P.No.17792 of 2009 seeking anticipatory bail and the same wasgranted by this Court by order dated 25.8.2009. 18. The learned Senior Counsel submitted that in the bailorder, dated 22.11.2006, the appellant and his family members weredirected to surrender before the concerned Court within 15 daysfrom the date of the order and accordingly, they surrendered https://hcservices.ecourts.gov.in/hcservices/ before the IX Metropolitan Magistrate, Saidapet. When theappellant and his family members were granted anticipatory bail forthe second time on 9.3.2007, the learned Judge directed them toappear before the Inspector of Police of All Women PoliceStation, Adayar, Chennai daily at 10.00 a.m. for one week andthereafter as and when required by the respondent police throughsummons. Again, when the respondent filed a complaint in 2009, theappellant filed Crl.O.P.No. 17792 of 2009 and during the hearing,the learned Government Advocate (Crl.side) submitted that thepetition enquiry was pending against the appellant and consideringthe same, anticipatory bail was granted by order, dated 25.8.2009with the condition that the appellant shall report before therespondent police for a period of four weeks and thereafter, shallbe available for interrogation as and when required. The appellanthad to surrender and execute the bond to get bail and he hadcomplied with the conditions imposed by the said order which hascaused great mental agony and hardship to the appellant. Theaforesaid lodging of police complaints by the respondent was notonce but thrice and that too after the dismissal of the divorcepetition and during the pendency of the above appeal, which willclearly show that the respondent had lodged police complaintsjust to harass the appellant and his family members with theintention to cause mental cruelty. 19. According to the learned Senior Counsel, the aforesaidsubsequent conduct of the respondent has to be taken intoconsideration by this Court and on that ground divorce has to begranted. Since false complaints had been lodged subsequent to thedismissal of the divorce petition and during the pendency of theabove appeal and during such period, since anticipatory bail orderswere obtained, those documents could not be filed. But accordingto the learned Senior Counsel, since the anticipatory bail orderspassed by this Court are enclosed in the typed set of papers thisCourt is entitled to take judicial notice of the same and grantthe relief sought for by the appellant. 20. The learned Senior Counsel submitted that admittedly,when the appellant and the respondent are living separately formore than 10 years and there is absolutely no possibility ofreunion between them, no meaningful purpose will be served inkeeping the matrimonial tie alive when the marriage is practicallydead. In this regard, the learned Senior Counsel based relianceon the decision of the Apex Court reported in (2007) 4 SCC 511(Samar Ghosh vs. Jaya Ghosh). 21. Countering the aforesaid submissions, the learnedcounsel for the respondent made the following submissions:- a. The appellant had sought for divorce on the ground offollowing acts, which caused cruelty on the part of the https://hcservices.ecourts.gov.in/hcservices/ respondent, namely, (1) the respondent wanted the houseproperty at Adayar standing in the name of the appellant's motherto be transferred to her name; (2) the respondent never showed anyinterest on her husband and his family members and she nevercared for the personal needs of the appellant and never attended tohousehold affairs; (3) the respondent often left the matrimonialhome and went to her parents house and the appellant and therespondent had only lived together as husband and wife for 20days only; and (4) the respondent filed false complaints against theappellant and his family members and anticipatory bail orders havebeen obtained by the appellant on three occasions.b. The learned counsel submitted that all the aforesaidgrounds except the fourth one had been considered in a threadbaremanner by the Court below by referring to the relevant evidenceon record and all the alleged acts of cruelty have been found to benot proved. The marriage took place on 11.9.2000 and she wasdriven out the matrimonial home on 7.2.2001. All the allegationsmade in the petitions have been specifically denied in the counterstatement by the respondent. c. The learned counsel submitted that in the crossexamination of P.W.1, he had stated that 20 days after themarriage, the respondent's mother demanded him to get the propertytransferred to his name, but the said evidence of P.W.1 falsifiesthe entire allegation that in the petition as well as in theevidence of P.W.1 that immediately after four days of therespondent coming to the matrimonial home, she started demanding thehouse property for being transferred to her name and therefore, theentire case of the appellant falls to the ground. The Court belowis right in coming to the conclusion that there was absolutely nodemand by the respondent to transfer the house property standingin the name of the appellant's mother to her name. d. The learned counsel submitted that the Court below on aconsideration of the evidence, has recorded a finding that thereis no evidence to prove the allegation that the respondentremoved her Thali and threw it away on 7.2.2001. The learnedcounsel submitted that if really, the respondent had removed herMangalsutra and threw it away, the appellant could have examinedother family members, but admittedly, the other family members havenot been examined and therefore, the finding of the Court belowcannot be assailed. e. The learned counsel further submitted that therespondent and her family members mediated with the appellant totake her back. The Court below has pointed out that Mr.SaidaiDuraisamy, Jaipal and Manokaran had acted only as mediators andthey took steps for the reunion of the appellant and the respondentand there was no threat to the appellant as alleged. The Court https://hcservices.ecourts.gov.in/hcservices/ below has also pointed out that if any incident as alleged by theappellant had taken place on 15.9.2001 in his office, he could haveexamined his colleagues and as such, the allegation that therespondent abused the appellant in his office has not been proved. f. The learned counsel submitted that the allegation ofthe appellant that on 10.3.2002, the respondent accompanied by hermother and one relative went to the matrimonial home with goondas andtook her belongings and created a galata in the locality has notbeen proved. If really, any such incident had taken place on10.3.2002, the appellant could have very well examined theneighbours but he had not examined any one of the neighbours aspointed out by the Court below and the Court below has rightlyfound that such allegation has not been proved. g. The learned counsel submitted that in the absence ofthe copy of the complaint said to have been lodged by the respondentit cannot be heard to be contended by the appellant that falseallegations have been made against him and his family members. Thelearned counsel submitted that the Court below has rightly pointedout that the appellant had not cared for the welfare of the childand the appellant admitted in his evidence that he had not spent asingle pie for the child. The learned counsel submitted that thefindings of the Court below are based on evidence and as such, thesame cannot be found fault with. h. As far as the lodging of the complaints by therespondent against the appellant and his family members during thependency of the above appeal is concerned, the learned counselsubmitted that in the absence of copy of the complaints before thisCourt, merely basing reliance on the anticipatory bail ordersobtained by the appellant, this Court cannot come to the conclusionthat the lodging of the complaints and the obtaining ofanticipatory bail orders, will amount to mental cruelty. i. The learned counsel submitted that the respondentalone is taking care of the female child, who is aged about 10years and in the interest of the child and when the respondent iswilling to live with the appellant, divorce should not be granted. 22. We have considered the aforesaid submissions and perusedthe materials available on record. 23. As rightly contended by the learned counsel for therespondent, when it is the specific case of the appellant that 4days after the respondent came to the matrimonial home , she starteddemanding transfer of the house property standing in the name ofthe mother of the appellant to her name, but to the contrary, hehas deposed in his cross examination that 20 days after themarriage, the respondent's mother asked him to get the house https://hcservices.ecourts.gov.in/hcservices/ property standing in his mother's name transferred to theAppellant's name. This evidence of P.W.1 falsifies his case thatthe respondent was pestering him to get the property transferredto her name and therefore, the finding of the Court below on thisaspect cannot be said to be erroneous. 24. Similarly, the allegation of the appellant that therespondent removed her Mangalsutra and threw it away has not beenproved by acceptable evidence. Regarding the removal ofMangalsutra, except the evidence of P.W.1, there is no othercorroborative evidence and if really, there had been such removalof Mangalsutra by the respondent, the other family members of theappellant would have witnessed it and their non examination throws adoubt about the veracity of the said allegation and therefore, theCourt below is right in coming to the conclusion that no suchincident could have occurred. 25. Similarly, the allegation of the appellant that on15.9.2001, the respondent came to the company and created ascene by abusing the appellant has also not been proved byacceptable evidence as rightly pointed out by the Court below. 26. Further, the case of the appellant that on 10.3.2002,the respondent accompanied by her mother and one relative came tohis house and the respondent's mother accompanied by goondas came tothe matrimonial home and created a big galata and abused theappellant and his family members has also not been proved byacceptable evidence. If really, the incident had occurred in frontof the house of the appellant, certainly neighbours would havewitnessed the same and as such the non examination of any one ofthe neighbours shows that no such incident had occurred asalleged by the appellant. No independent witness had been examinedto prove the said incident. As rightly pointed out by the Courtbelow that no such incident had taken place in front of the houseof the appellant, which finding is perfectly in order. But,however, in our considered view, the Court below has not properlyconsidered the case of the appellant that between between11.9.2000, namely the date of marriage and 7.2.2001, namely, thedate on which the respondent is said to have left the matrimonialhome; the respondent had admittedly been leaving the matrimonialhome frequently and visiting her parents house on and off. Whileit is the case of the appellant that they had lived as husband andwife hardly for 20 days, it is the case of the respondent that theyhad lived together for nearly two months. But the fact remainsthat after 7.2.2001 till date they had not lived together ashusband and wife. 27. In the petition it has been specifically pleaded by theappellant that there was no demand for dowry from his side. It https://hcservices.ecourts.gov.in/hcservices/ has also been specifically stated in the petition that the respondentnever showed any interest in attending the personal needs of theappellant and in attending the household chores. It has also beenstated in the petition that the respondent was asked by theappellant's sister to at least attend the appellants daily needsbut she refused the same by saying that she is not a servant maid.The said averments and allegations have been reiterated in hischief examination by the appellant as P.W.1. P.W.1 has stated thathe had never demanded any dowry. He has also deposed that when therespondent was in the matrimonial home she never used to attendhousehold chores and she told him that she does not know cooking.But no suggestion whatsoever has been put to him on this aspect.P.W.1 has specifically stated that he had requested the respondentto cook food for him so that he can take food. The respondent toldhim that she does not know cooking. On this aspect also there isabsolutely no cross examination or suggestion. He had alsodeposed that his personal needs were not attended to by therespondent and on this aspect also, there is no cross examination.28. P.W.1 has deposed that the averment in the counterstatement to the effect that the respondent was harassed and forcedto bring 50 sovereigns as dowry is false but no suggestion hasbeen put to him on this aspect suggesting that the appellant andhis mother and sister harassed her and demanded her to bringRs.50000/- from her parents. The only suggestion that has beenmade to P.W.1 is that the appellant and his mother and sisterharassed her and only because of that the respondent left thematrimonial home and this suggestion has been denied by theappellant. 29. In this context, it is pertinent to point out that itis well established rule of evidence that a party should put toeach of his opponent witnesses so much of his case as concernsthat particular witness and if no such questions are put, the Courtpresume that the witness account has been accepted. If it isintended to suggest that a witness was not speaking the truthupon a particular point, his attention must first be directed tothe fact by cross examination so that he may have an opportunityof giving an explanation. 30. In the decision reported in 2011 (5) L.W. (Crl.) 347 (S.Hymavathy vs. S. Venkateswara Rao), the aforesaid legal principlehas been laid down in paragraph 48. Thus as pointed out above, therespondent has failed to make necessary suggestions to P.W.1 andhis attention had not been drawn to the allegations made by therespondent and no opportunity had been given to P.W.1 to give anexplanation and therefore, it would amount to accepting the case ofthe appellant. When the evidence of the appellant that therespondent failed to attend to his personal needs and householdchores and even failed to cook for him stand unrebutted then this https://hcservices.ecourts.gov.in/hcservices/ Court has to come to the conclusion that as a wife the respondenthad failed to discharge her normal duties as a dutiful wife. Suchconduct on the part of the respondent would have definitelycaused mental cruelty to the appellant. 31. It has to be pointed out that when P.W.1 has statedthat no demand was made by him for dowry, no suggestion has beenput to him suggesting that he had demanded dowry. But on theother hand, the respondent in her counter statement as well as inher evidence has stated as if the appellant and his family membersdemanded gold jewellery and Rs.50000/- Therefore, this part of thecase of the respondent cannot be accepted. 32. Further, it has to be pointed out that in herevidence R.W.1/respondent had deposed that even before themarriage the appellant and his family members demanded Rs.50000/-in cash and 35 sovereigns of gold jewellery and her parentspromised to give Rs.50000/- after the marriage. At the time of theceremony of changing the Mangalsutra, the mother of the appellantdemanded Rs.50000/-. In her chief examination, she had admittedthat she urged the appellant to set up a separate house. In thechief examination itself, she has deposed that her husband is agood person. She has also deposed that the appellant had notcome to see the child. But in her cross examination, she hasstated that her husband had come to see the child. She has alsostated that every day her husband used to come and see her childand he had also bought all the necessary things for the child.Thus it is seen that R.W.1's evidence is mutually contradictory.I t is also pertinent to point out that while she had admitted inher evidence that a complaint was lodged by her against herhusband on 10.3.2002, she had deposed that she does not rememberthe allegations made against her husband in the complaint.Further, she had stated that she does not remember whether she hadmade allegations of dowry demand against her husband in the saidcomplaint. The evidence of R.W.1 shows that she was evasive.She had not specifically denied in her evidence that she had notmade any allegation of dowry demand against her husband in hercomplaint dated 10.3.2002. The appellant had summoned P.Ws.2 and3, who are the Sub Inspector of Police and Inspector of Policerespectively and P.W.2 in her evidence had stated that therespondent had given a complaint on 10.3.2002 and it wasregistered in the CSR Register as Serial Number 208. P.W.2 hasdeposed that the complaint given by the respondent could not betraced. P.W.3 was the Sub Inspector of Police of All WomenPolice Station, Adayar, when the respondent lodged a complaint on10.3.2002. She has also deposed that on the basis of the saidcomplaint of the respondent both the appellant and the respondentwere enquired. She has also deposed that she does not know that therecords relating to CSR No.208 of 2002 have been lost or not.The xerox copy of the petition register has been marked as Ex.X2. https://hcservices.ecourts.gov.in/hcservices/ Since the complainant, namely, the respondent did not want to livewith the appellant, they got separated and both of them stated thatthey could solve the problem before the Family Court and thecomplaint was withdrawn. Thus the fact remains that the respondenthad lodged a complaint against the appellant and an enquiry wasconducted, but yet the respondent in her evidence as stated above,has feigned ignorance about the contents of the complaint and shehas not specifically deposed that she had not made any allegationsof dowry demand against the appellant. Thus, it is clear that therespondent has made the allegations of dowry demand against theappellant and his family members. The allegations both in thecounter statement and in her evidence and in the complaint dated10.3.2002 lodged by her before the All Women Police Station,Adayar, stand unsubstantiated. Making false allegations against theappellant and his family members and making the appellant to go tothe police station, definitely will amount to causing mental crueltyto the appellant. But this aspect has not at all been consideredby the Court below. 33. Further, as contended by the learned Senior Counsel forthe appellant, the divorce petition was filed in March 2002 and thesame was dismissed by the Family Court on 21.8.2006 and the aboveappeal was filed on 24.11.2006. After the dismissal of the divorcepetition, on 16.11.2006 the respondent had lodged a criminalcomplaint against the appellant and her mother and sister before theInspector of Police, J-2 All Women Police Station, Adayar, Chennai.Apprehending arrest, they had filed Crl.O.P.No.28946 of 2006 seekinganticipatory bail and by order, dated 22.11.2006 anticipatory bailwas granted to them. In that anticipatory bail order, theappellant and his family members were directed to surrender beforethe concerned Court within 15 days from the date of receipt of acopy of that order and accordingly, they surrendered before the IXMetropolitan Magistrate, Saidapet, as seen from the intimation,dated 19.12.2006 sent by the court to the Inspector of Police, J-2All Women Police Station, which is enclosed in the typed set ofpapers at page 117. 34. Again, the respondent lodged another complaintbefore the very same Police Station in 2007 and the appellant,his sister and mother had filed Crl.O.P.No.6384 of 2007 seekinganticipatory bail and by order, dated 9.3.2007, this Court hasgranted anticipatory bail to them with the condition that theappellant shall appear before the respondent police daily at10.00 a.m. for one week and thereafter, as and when required bythe respondent police through summons and the sister and mother ofthe appellant were directed to appear before the respondent as andwhen required. In the very same order, they were also directed toexecute the bond and furnish two surities within two weeks fromthe date of receipt of a copy of that order and the said order hadalso been complied with. https://hcservices.ecourts.gov.in/hcservices/

35. Once again, in the year 2009, the respondent had againgiven a complaint before the very same police station against theappellant for the alleged offences under Sections 494, 496 and 506(ii) I.P.C. Apprehending the arrest, the appellant had filedCrl.O.P.No.17792 of 2009 before this Court and anticipatory bailhad been granted by order, dated 25.8.2009 with the conditionthat the appellant shall report before the respondent police for aperiod of four weeks and thereafter shall be available forinterrogation as and when required. 36. Thus, it is seen that the respondent had beenrepeatedly lodging the complaints against the appellant and hisfamily members with an intention to harass them and the appellantand his family members were not allowed to live in peace evenafter the filing of the divorce petition and its dismissal and alsoduring the pendency of the above appeal. In the first twocomplaints lodged in 2006 and 2007 the allegation of dowry demandhas been made as seen from the anticipatory bail orders. It iscontended by the learned counsel for the respondent that in theabsence of copy of the complaints lodged by the respondent, andwithout considering the nature of the allegations made against theappellant and his family members, this Court cannot act on thebasis of the three anticipatory bail orders produced in the typedset of papers, but we are unable to countenance the aforesaidsubmissions made by the learned counsel for the respondent. It iswell settled that even subsequent events can be taken intoconsideration for granting relief sought for by the petitioner inthe O.P. In this case, as pointed out above, three complaints havebeen lodged by the respondent during 2006 and 2007 and that tooafter the disposal of the above O.P. When admittedly, theappellant and the respondent are living separately right from March2001, there would not have been any occasion or chance for theappellant and his family members to harass the respondent demandingdowry. 37. It is true that the copy of the complaints filed bythe respondent are not available before this Court, but it is wellsettled that this Court can take judicial notice of the orderspassed by this Court. The genuineness of the copy of the order ofthis Court filed by the appellant in the typed set of papers is notchallenged by the respondent and in fact they cannot even if theywant. Since the aforesaid three anticipatory bail orders had beenobtained after the dismissal of the divorce petition, it cannot beexpected to be produced before the Family Court. 38. As pointed out above, the appellant and his familymembers had to abide by the conditions imposed on them whilegetting anticipatory bail orders on the aforesaid three occasionsand they had to appear before the respondent or the court https://hcservices.ecourts.gov.in/hcservices/ concerned. Such surrender before the court and appearance beforethe respondent and the court concerned would definitely have causedgreat mental agony and embarrassment to the appellant and hisfamily members. Therefore, we are of the considered view thatthe aforesaid act of the respondent in lodging false complaintswith unsubstantiated allegations of dowry demand will amount tomental cruelty. 39. As has been laid down in a catena of decisions of theApex Court the court dealing with the petition for divorce on theground of cruelty has to bear in mind that the problems before itare those of human beings and the psychological changes in aspouse's conduct have to be borne in mind before disposing ofthe petition for divorce. However, insignificant or trifling, suchconduct may cause pain in the mind of another, but before theconduct can be called cruelty, it must touch a certain pitch ofseverity. It is for the court to weigh the gravity. It has tobe seen whether the conduct was such that no reasonable personwould tolerate it. It has to be considered whether thecomplainant should be called upon to endure as a part of normalhuman life. Every matrimonial conduct, which may cause annoyanceto the other, may not amount to cruelty. Mere trivialirritations, quarrels between spouses, which happen in day-to-daymarried life, may also not amount to cruelty. Cruelty inmatrimonial life may be of unfounded variety, which can besubtle or brutal. It may be words, gestures or by mere silence,violent or non violent. 40. The foundation of a sound marriage is tolerance,adjustment and respecting one another. Tolerance to eachother's fault to a certain bearable extent has to be inherent inevery marriage. Petty quibbles, trifling differences should not beexaggerated and magnified to destroy what is said to have beenmade in heaven. All quarrels must be weighed from the point ofview in determining what constitutes cruelty in each particularcase and as noted above, always keeping in view the physical andmental conditions of the parties, their character and socialstatus. A too technical and hypersensitive approach would be counterproductive to the institution of marriage. 41. If the facts of this case and the findings recordedby us as above are considered in the backdrop of the aforesaidlegal principles, the act of the respondent in making falseallegations against the appellant and his family members, which areunsubstantiated and the act of the respondent in lodging thecomplaint after complaint against the appellant and his familymembers and forcing them to approach this Court seekinganticipatory bail and as a result they had to comply with theonerous conditions imposed by this Court would definitely amountto "mental cruelty". If really, the respondent was or is really https://hcservices.ecourts.gov.in/hcservices/ interested in living with the appellant as claimed by her, shewould not have acted as above and definitely she would not havelodged three complaints even after the dismissal of the divorcepetition and during the pendency of the above appeal. Therefore, theaforesaid acts of the respondent clearly establishes the hollownessof her claim that she wants to live with the appellant. 42. In this case, admittedly, the appellant and therespondent are living separately from March 2001 upto date, i.e.for nearly 11 years. Therefore, as has been laid down by the ApexCourt in the decision reported in (2006) 4 SCC 558 ( Naveen Kohlivs. Neelu Kohli), once the parties are separated and theseparation has continued for a sufficient length of time and one ofthem has presented a petition for divorce, it can well be presumedthat the marriage has broken down. Once the marriage has brokendown beyond repair, it would be unrealistic for the law not totake notice of that fact, and it would be harmful to society andinjurious to the interest of the parties. 43. At this juncture, it has to be pointed out that whenthe above appeal came up for hearing before the earlier Bench,namely, before K.M.J., and G.M.A.J., we made several attempts tobring about a reunion between the appellant and the respondent, butour attempt failed. When the appeal was argued before the presentBench, we wanted to know whether there is any possibility forreunion. But the learned Senior Counsel for the appellant aftergetting instructions from his client submitted that there isabsolutely no possibility for reunion. But when we enquired therespondent she stated that she wants to live with the appellantand even expressed her hope that she will join with her husband oneday or the other. 44. Undoubtedly, it is the obligation of the court andall concerned that the marriage status should, as far as possible,as long as possible and whenever possible, be maintained, but whenthe marriage is totally dead, in that event, nothing is gained bytrying to keep the parties tied forever to a marriage which in facthas ceased to exist. In the instant case, there has been totaldisappearance of emotional substratum in the marriage.Preservation of such a marriage is totally unworkable which hasceased to be effective and would be greater source of misery forthe parties, not to grant a decree of divorce would be disastrousfor the parties. Otherwise, there may be a ray of hope for theparties that after a passage of time (after obtaining a decree fordivorce) the parties may psychologically and emotionally settledown and start a new chapter in life. 45. Further, in the decision of the Apex Court reported in(2207) 4 SCC 511 (Samar Ghosh vs. Jaya Ghosh), the Full Bench of https://hcservices.ecourts.gov.in/hcservices/ the Apex Court has enumerated some instances of human behaviourwhich may be relevant in dealing with the cases of “mentalcruelty”. The following two instances enumerated therein are verymuch relevant for deciding the case on hand. 46. It has been laid down that the married life should bereviewed as a whole and a few isolated instances over a period ofyears will not amount to cruelty. The ill conduct must bepersistent for a fairly lengthy period, where the relationship hasdeteriorated to an extent that because of the acts and behaviourof a spouse, the wronged party finds it extremely difficult tolive with the other party any longer, may amount to mental cruelty. 47. Where there has been a long period of continuousseparation, it may fairly be concluded that the matrimonial bond isbeyond repair. The marriage becomes a fiction though supported by alegal tie. By refusing to sever that tie, the law in such cases,does not serve the sanctity of marriage; on the contrary, it showsscant regard for the feelings and emotions of the parties. Insuch like situations, it may lead to mental cruelty. 48. The aforesaid law laid down in the said decisionsquarely applies to the facts of this case. Therefore, we are ofthe considered view that when the appellant and the respondent arenot living together for well over a period of 11 years and thematrimonial bond is beyond repair, the marriage becomes a fictionthough supported by a legal tie and therefore, we are of theconsidered view that this is a fit case, where the Court belowought to have granted a decree for divorce and therefore, we areconstrained to set aside the order and the decretal order, dated21.8.2006 passed in O.P.No.494 of 2002 on the file of the IIAdditional Family Court, Chennai. 49. For the aforesaid reasons, the above appeal is allowedby granting a decree for divorce dissolving the marriage betweenthe appellant and the respondent that took place on 11.9.2000.However, there will be no order as to costs. Connected M.Ps areclosed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.rnb https://hcservices.ecourts.gov.in/hcservices/ ToThe II Additional Family Court, Chennai. + 3 CCS To Mr.R.Vasudevan Advocate SR NO.29947+ 1 CC To Mr.S.M.Loganathan Advocate SR NO.29998 C.M.A.No.1106 of 2007and Connected M.Ps. JSV(CO)ABH/16.05.2012