Jayashree v. S. Suresh

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 12-6-2012CORAMTHE HONOURABLE MR.JUSTICE C.NAGAPPANANDTHE HONOURABLE MR.JUSTICE R.KARUPPIAHCIVIL MISCELLANEOUS APPEAL No.1920 of 2010andM.P.No.1 of 2010Jayashree.. Appellant/RespondentvsS.Suresh. Respondent/PetitionerCivil miscellaneous appeal preferred under Order 19 of FamilyCourt Act against the order and decree dated 21.5.2010 made in FCOPNo.78 of 2005 on the file of the Family Court, Salem.For Appellant: Mr.S.V.Jayaraman Senior Counsel for Mr.T.DhanasekaranFor Respondent: Mr.S.MakeshJUDGMENT(Judgment of the Court was delivered by C.NAGAPPAN, J.)This appeal is preferred against the order and decree dated21.5.2010 made in F.C.O.P. No.78 of 2005 on the file of the FamilyCourt, Salem.2.The respondent in the Original Petition is the appellant.For the sake of convenience, in this judgment, the parties are referredto as arrayed in the Original Petition.3.The respondent/petitioner filed Original Petition underSection 13(1)(i-a) of the Hindu Marriage Act, 1955, seeking for a decreeof divorce dissolving the marriage between him and theappellant/respondent which was held on 22.8.1993 at Seshadri Mahal,Tatabad, Coimbatore 12.4.The case of the petitioner is that the marriage took placeon 22.8.1993 and they along with the parents of the petitioner lived asa joint family and the respondent used to pick up quarrels with the https://hcservices.ecourts.gov.in/hcservices/ petitioner and his parents even for flimsy and trivial matters and thepetitioner is the only son for his parents and his sister was marriedand well placed. It is further stated by the petitioner that therespondent used to create some unpleasantness in the house and leave thematrimonial home either to her parents' place or to her grandmother'splace at Coimbatore very frequently and the petitioner used to bring herback to the matrimonial fold and the respondent used to come back withreluctance. 5.According to the petitioner, the respondent never used togive respects to elders in the family or to the petitioner and used toaddress them in singular language and because of the same, thepetitioner went away with the respondent to live separately on the hopethat a separate residence will bring some peace and there are twochildren born out of the marriage. It is further stated by thepetitioner that the respondent never corrected herself and hence thepetitioner came back to his parental home and was living there with therespondent and the petitioner used to advise the respondent to help hisaged mother and share the work burden; but, the respondent used to shoutat the petitioner by saying that she would do all these things onlyafter the death of the petitioner's mother and on hearing this, themother of the petitioner felt hurt. 6.It is further alleged in the petition, that whenever thepetitioner gets up in the morning and asks for coffee, the respondentused to tell him that he could have a cup of coffee in a Hotel by payingRs.2/- and the indifferent attitude of the respondent hurt thepetitioner and his parents. According to the petitioner, on account oflack of peace in the house, he could not concentrate in the business andbecame depressed and consumed sleeping tablets and was admitted in thehospital for about a week. 7.It is further stated by the petitioner that on someoccasions, when both the petitioner and the respondent went out forfunction or otherwise, the respondent used to pick up quarrel and shoutat the petitioner and create an ugly scene in the presence of public andrelatives and the respondent had indifferent attitude towards the familyof the petitioner. It is further averred by the petitioner that on18.5.2004, the respondent went away from the matrimonial home withoutinforming the petitioner and has not returned till the filing of thepetition. 8.According to the petitioner, his sister Geetha has stoppedvisiting his house fearing for the indifferent attitude of therespondent. It is also stated by the petitioner that he never tookdrastic steps of initiating proceedings to dissolve the marriage becausehe was interested in the welfare of the children and at the time offiling of the petition, the stage has reached that there is no point inputting up with the behaviour of the respondent and hence he has filedthe petition.9.The respondent filed a counter statement admitting themarriage with the petitioner and the birth of two children out of the https://hcservices.ecourts.gov.in/hcservices/ wedlock. According to the respondent, the petitioner is quarrelsome,characterless and a drunkard and he was not having any standardavocation and besides, he also demanded dowry and drove the respondentfrom matrimonial home for getting money. It is further alleged by therespondent that she always respected elders in the family and neverquarrelled with the parents of the petitioner and the petitioner'sparents were living separately from the inception of their marriage andhence there is no occasion to quarrel with them and she lived with thepetitioner as a dutiful wife till 18.5.2004 on which date, thepetitioner drove her out. 10.According to the respondent, she is educating the childrenby housing them at her grandparents' house at Coimbatore and she istaking care of the children by visiting Coimbatore often and she isalways ready and willing to live with the petitioner and she hasspecifically denied all the allegations made against her in thepetition.11.During the trial, the petitioner examined himself as P.W.1and examined his father as P.W.2 and marked Exs.A1 to A7. Therespondent examined herself as R.W.1 and marked Ex.B1 and B2 on herside. The Family Court on a consideration of oral and documentaryevidence, held that the petitioner is entitled to a decree of divorce onthe ground of cruelty and allowed the petition as prayed for.Challenging the same, the respondent-wife has preferred the presentappeal.12.The point for consideration in the appeal is as to whetherthe respondent treated the petitioner with cruelty as alleged in thepetition.13.Mr.S.V.Jayaraman, learned Senior Counsel appearing for theappellant/respondent, submits that the petitioner and the respondentmarried in the year 1993 and lived together for 11 years and havebegotten two children and the parents of the petitioner lived separatelyin the downstairs portion and the allegation that the respondent washostile towards them and the petitioner is false and there are materialcontradictions in the testimonies of P.Ws.1 and 2 belying their versionsand the trial Court has failed to appreciate the same and in any event,the petitioner is not entitled to get a decree in his favour in view ofSection 23(1)(b) of the Hindu Marriage Act, 1955 and hence the impugnedorder is liable to be set aside.14.In support of his submission, learned Senior Counsel reliedon the following decisions of the Supreme Court:(i) JAYACHANDRA V. ANNEL KAUR (2005 (2) SCC 22) and(ii) NAVEEN KOHLI V. NEELU KOHLI (2006 (4) SCC558).15.Per contra, Mr.S.Makesh, learned Counsel appearing for therespondent/petitioner, submits that the trial Court on over allconsideration of all relevant circumstances, has concluded that thepetitioner has proved the mental cruelty as against the respondent and https://hcservices.ecourts.gov.in/hcservices/ the conclusion is sustainable on facts and in law. In support of hissubmission, he relied on the following decisions of the Supreme Court:(i) G.V.N.KAMESWARA RAO V. G.JABILLI ((2002) 2 SCC296) and(ii) VINITA SAXENA V. PANKAJ PANDIT (AIR 2006SUPREME COURT 1662).16.We considered the rival submissions and perused thematerial records.17.The specific case of the respondent/petitioner is that theappellant/respondent treated him with cruelty and has sought for decreeof divorce under Section 13(1)(i-a) of the Hindu Marriage Act. Thecruelty alleged in the petition, is mental cruelty and the burden is onthe petitioner to prove the same. It is well settled in law that themental cruelty in Section 13(1)(i-a) must be of such nature that theparties cannot reasonably be expected to live together and it is amatter to be determined having regard to the facts and circumstances ofthe case. The question to be considered is as to whether theaccusations alleged in the petition by the petitioner, constitute mentalcruelty for sustaining the claim for divorce.18.In paragraph No.4 of the petition, it is alleged that eversince the date of marriage, the respondent-wife was in a belligerentmood and used to pick up quarrels with the petitioner and his parentseven for flimsy and trivial matters. There are no particulars mentionedwith regard to the date and time of such conduct of the respondent-wifeand the allegation is vague only.19.In paragraph No.5 of the petition, it is alleged that therespondent-wife used to leave the matrimonial home either to herparents' place or to her grandmother's place at Coimbatore frequentlyand the petitioner used to bring her back to the matrimonial home andthe respondent would return with reluctance. Nothing turns out in thisallegation except the attempted desertion by the wife and here also,none of the particulars are found mentioned. 20.In paragraph No.6 of the petition, it is averred that therespondent-wife did not give any respect to the petitioner or hisparents and used to address them in singular words and that necessitatedthe petitioner to go for a separate residence along with the respondent-wife and two children were born and even then, the conduct of therespondent remained the same and hence he came back to the parentalhome. It is relevant to point out that in this paragraph also, thereare no particulars mentioned as to when the petitioner opted forseparate residence and when he returned back to the parental home. Inthis context, the oral evidence has to be looked upon. P.W.1, thepetitioner, has testified that even after one month of their marriage,there was difference of opinion between him and the respondent and hencehe set up a separate residence at Goundampalayam where they lived for 4½ years and thereafter, he returned to the house of his parents andstarted living separately in the first floor, whereas his parents wereresiding in the ground floor. If that is so, the petitioner and the https://hcservices.ecourts.gov.in/hcservices/ respondent lived with the parents of the petitioner only for a period ofone month after their marriage and thereafter, there was no joint livingtill the date of filing of the petition.21.In paragraph No.7 of the petition, it is alleged that thepetitioner's mother used to get up early in the morning and aftercleaning the front-yard of the house, would put kolam and when thepetitioner advised the respondent to help his aged mother, therespondent used to shout at him by saying that she would do all thesethings, only after the death of the petitioner's mother and on hearingthe same, the petitioner's mother felt hurt and the respondent neverused to help the petitioner's parents in any way. The said allegationcannot be termed as an act of cruelty. Moreover, as already seen, evenaccording to the petitioner, they lived as a joint family only for amonth after their marriage. Hence there is little chance for therespondent to have uttered the words alleged by the petitioner.Further, the petitioner has failed to examine his mother to substantiatethe said allegation. 22.It is alleged in paragraph No.8 of the petition, thatwhenever the petitioner asked for morning coffee, the respondent used totell him that he could have a cup of coffee in a Hotel by paying for thesame. This allegation is insignificant and trifling and the conducteven if it is true, can never be termed as cruelty.23.It is averred in paragraph No.9 of the petition, thatbecause of lack of peace in the house, the petitioner could notconcentrate on his finance business and he became dejected and deprivedand consumed sleeping tablets and admitted in a hospital for a week.Except the testimony of P.W.1, the petitioner, there is no documentaryevidence to substantiate the above allegation. Moreover, the saidallegation has been specifically denied by the respondent. It isfurther alleged in the said paragraph that on some occasions, when boththe petitioner and the respondent went out for function, the respondentused to pick up quarrel with the petitioner and create an ugly scene inthe presence of relatives and public. The petitioner has not let in anyevidence for the said allegation either by examining any of hisrelatives or any independent witness. It is also pertinent to point outthat no particulars as to when and where the respondent behaved in thesaid fashion are found mentioned in the said paragraph. 24.In paragraph Nos.10 and 11 of the petition, it is allegedthat the respondent left the matrimonial home on 18.5.2004, withoutinforming the petitioner or his parents. P.Ws.1 and 2 in theirtestimonies, have stated that the respondent left the petitioner only on18.5.2004. The respondent also in her testimony as R.W.1, has admittedthe same. Hence it is clear that only on 18.5.2004, the respondent wentaway from the petitioner. 25.In paragraph No.12 of the petition, it is averred that thesister of the petitioner Geetha stopped visiting the house of thepetitioner fearing for the indifferent attitude of the respondent andthe petitioner never took drastic steps of initiating proceedings todissolve the marriage because he was interested in the welfare of the https://hcservices.ecourts.gov.in/hcservices/ children and only at the time of filing of the petition, he thought thatthe stage has reached to break the marriage in law. The petitioner hasfailed to examine his sister Geetha to substantiate the said allegation.26.The Supreme Court in the decisions relied on by theappellant/petitioner, has laid down that mere trivial irritations andquarrels between the spouses which happen in day-to-day marriage life,may not amount to cruelty and petty quibbles and trifling differencesshould not be exaggerated and magnified to destroy the marriage and themental cruelty must be of such nature that the parties cannot reasonablybe expected to live together. In the present case, as already seen, thepetitioner has not alleged any specific act of cruelty and has also notsubstantiated the pleas made by him in the petition. There is no doubtabout the legal propositions laid down by the Supreme Court in thedecisions relied on by the learned Counsel for therespondent/petitioner, and in fact, in one of the decisions, it is heldthat austerity of temper, rudeness of language and occasional outburstof anger may not amount to cruelty, though it may amount to misconduct.As already seen, the petitioner has failed to prove the mental crueltyalleged by him against the respondent.27.The other contention raised by the learned Senior Counselappearing for the appellant, is that the petitioner is not entitled toget a decree in his favour in view of Section 23(1)(b) of the HinduMarriage Act, 1955. Section 23(1)(b) of the Hindu Marriage Actstipulates that if the Court is satisfied that where the ground ofdivorce petition is cruelty, the petitioner has not in any mannercondoned the cruelty, the Court shall decree such relief accordingly.In the present case, in paragraph No.12 of the petition, the petitionerhas averred that he never took drastic steps of initiating proceedingsto dissolve the marriage because he was interested in the welfare of hischildren and lived with the respondent for more than 10 years. It isalso averred in paragraph No.5 of the petition, that the respondent usedto leave the matrimonial home often and the petitioner would bring herback and live with her till she finally left the matrimonial home on18.5.2004. Even if the allegations of cruelty mentioned in thepetition, are taken as true for the sake of argument, the petitioner hascondoned the cruelty by his acts in bringing her back to the matrimonialhome and living with her. In fact, the respondent left the matrimonialhome on 18.5.2004, and the petition seeking for divorce, has been filedin the month of July 2004. Hence as rightly contended by the learnedSenior Counsel for the appellant, the petitioner is not entitled to geta decree in his favour in view of Section 23(1)(b) of Hindu MarriageAct. 28.The trial Court virtually accepted the evidence of P.Ws.1and 2 without proper appreciation and adopted an erroneous approach bypicking up answers from the evidence of the appellant/R.W.1 and therebydrawing inference in favour of the respondent/petitioner. The findingof the trial Court is erroneous and misconceived and is liable to be setaside.29.In the result, this civil miscellaneous appeal is allowed https://hcservices.ecourts.gov.in/hcservices/ and the order and decree passed by the Family Court in FCOP No.78 of2005, are set aside and the Original Petition in FCOP No.78 of 2005 onthe file of the Family Court, Salem, is dismissed. However, there shallbe no order as to costs. Consequently, connected MP is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.RegistrarnsvTo:The Family JudgeFamily Court, Salem.+1cc to M/s.T.Dhanasekaran, Advocate Sr 33044+1cc to Mr.S.Makesh, Advocate Sr 32758TAM(CO)km/10.7.CMA No.1920 of 2010