Mr. K. Umasankar v. Mrs. Suryakala

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 19-06-2009CORAM:THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVANANDTHE HONOURABLE MR. JUSTICE T.S. SIVAGNANAMC.M.A.No.1423 of 2004Mr. K. Umasankar... Appellant/PetitionerVs.Mrs. Suryakala... Respondent/RespondentCivil Miscellaneous Appeal filed u/Sec.19 of the Family Court Actbeing partly aggrieved by the fair and decreetal order of thePrincipal Family Court Judge, Chennai F.C.O.P.No.1028 of 1997 dated30-12-2002 in so far as it orders dismissing the divorce petition ofthe appellant. For appellant :: Mr. G. AppavuFor respondent:: Miss. C.N.G. EzhilarasiJUDGMENTThe appellant is the husband whose petition for divorce wasdismissed by the Family Court. The facts in brief:The parties were married on 03-08-1995. It was an arrangedmarriage. It was understood that the husband was living in a jointfamily. The wife was a single child and both parties understood thatshe would cope with the requirements of living in a joint family. Nopecuniary demands were made by the husband's side on the wife'sparents. The parents of the husband assured the wife and her parentsthat she would live just as she lived with her parents. His hope fora happy married life were shattered when even on the first night shesuggested that they should live independently since she would not beable to cope in a joint family. From that date, the respondent'swife adopted various tactics to pressurise the appellant's husband toset up a house separately. The respondent was working in ShriramChits Company. She was asked to resign her job, but she did notagree. She also declared that the family members of her husband werefar lower in status compared to her. She abused her husband and hisfamily with wounding words. The frequent visits by her parents didnot improve the situation. Frequently, she would leave home withoutinforming him and go to her parent's house and repeatedly he had to https://hcservices.ecourts.gov.in/hcservices/ go and persuade her to return. There was mental agony andfrustration. In the meantime, she conceived a child. Again on thepretext of taking rest, she went to her parent's home. There wastotal non-cooperation by her in the joint family. She kept theappellant always on tenterhooks. She also spread rumours amongstcommunity that the appellant and his family members were alldrunkards and had lost their property because of gambling at racesand other bad habits. This lowered their image in the community.These rumours were spread to alienate the appellant from his family.The appellant suffered enormously because of all this. It wasincreasingly becoming impossible to persuade the respondent to behaveamicably with the members of his family. She created scenes at homeattracting the attention of their neighbours and tarnished theirrespect in the community. Her parents also confronted his parentsand demanded that a separate home should be set up. This was inDecember 1996. They also threatened that they would lodge complaintsto the police. It was her practice to save her income and to squanderhis money. He tried to encourage her to develop a saving habit bypurchasing UTI Units and other deposits. She slowly andsystematically moved all her belongings and all her valuablejewellery and even her certificates. On 16-01-1997, she left themarital home declaring that she will not return unless he submittedto her dictates and demands. Even the birth of the child did notimprove the situation. When his father died, he hoped it would pavethe way for unity. But she never participated in the last rites andleft abruptly. Losing all hopes of union a legal notice was sent on02-07-1997 and a petition was filed under Section 13(1)(1(a) of theHindu Marriage Act. 2. In response, the wife denied all the averments. According toher, she assured full co-operation and being the only daughter, shewas eager to live with the joint family. She was not asked to stopworking. On the contrary, her husband and his mother insisted thatin the present economic conditions, a second income was necessary.On the first night, what really happened was that the husband cameintoxicated and she could not bear the alcoholic smell. When sheinformed this to her in laws they merely brushed it aside saying thatsuch habits are common. It is true that she is working in Shri RamChits Company. But it is not true that they asked her to stopworking. Whenever it was the pay day, the husband would punctuallycome to her office premises under the mild influence of alcohol tocollect the salary. The joint family did not break up because ofher. They took up another residence only because the landlorddemanded huge advance. The husband would go home late and alsodrunk. She was very disappointed by this. She never spread rumoursabout his family but it is an admitted truth that the male members ofthe husband's joint family ruin the entire wealth in unpalatablehabits. Her parents never visited them frequently. In fact hisrelatives indirectly told her parents that the house in their namewould be transferred to her. The appellant often came late and drunk https://hcservices.ecourts.gov.in/hcservices/ and no one interfered with the wounding comments made by the mother-in-law. She tried to be pleasant and ignored all this. It is onlyfor health reasons that she stayed in her parent's house and not forany other reasons. During her Seemantham celebrations, her relativeswere not properly attended to. She was forced to resign her job on02-07-1996. She was subjected to enormous suffering. She lived alife of suffocation. She was asked to go to her parent's house forgetting money for paying the rent. When she refused, she was ill-treated more. Thereafter, he and his parents started to coerce herthat if she wanted her parents to visit her, the immovable propertyshould be transferred to her name. He mercilessly and withoutconscience threatened her that if she failed to do so he may even doaway with her. It is not correct to state that she is alwaysluxurious and spending of the money. It was not correct to statethat she reluctantly came to her father-in-law's last rites. Sherushed to attend the last rites. But she was not allowed toparticipate. The harassment and torture continued and finally on 16-01-1997 she was forced to leave the house. ON 23-01-1997, under theinfluence of alcohol, he went to her house and demanded the transferof title of the property. She only prayed that he should set up aseparate house away from his other relatives and take his time forhis wife, daughter and mother. Therefore, the petition for divorcemust be dismissed as devoid of merits. 3. On the side of the appellant only one witness was examinedwhich was himself and nine exhibits were marked. Three witnesseswere examined on the side of the respondent. The learned PrincipalJudge, Family Court found that the marriage had not irretrievablybroken down and that the facts of cruelty were not proved.4. The learned counsel for the appellant submitted that theparties having been living separately, right from 1997, that is 12years from the date of decree which was in 2002. The learnedcounsel submitted that the learned Family Court Judge had afterrejecting her allegations that the appellant was a drunkard ought tohave seen that such baseless and scathing allegations themselves wereacts of cruelty and it was erroneous to dismiss them as minor wearand tear of daily life. The learned counsel submitted that it wasclear from the evidence that the respondent was not living with herhusband and at any rate in a joint family; and because she had beenbrought up as the only child she is not willing to accept even thecommon day to day requirements of a family. The learned counselsubmitted that her leaving the house on 16-01-1997 was withoutjustification. She had given complaints to the police which resultedin the unnecessary detention for 10 hours in the Police Station andshe has also brought down the image of their family by makingcomplaints to his Community people. The baseless allegations thatthey had ruined of their wealth in immoral habits had lowered theirimage in the community and the appellant was so much disgusted thatit is an act of extreme mental cruelty. The learned counsel also https://hcservices.ecourts.gov.in/hcservices/ submitted that it is very clear that the respondent has no love forher husband as could be seen from the harsh allegations in thecounter. According to him, the Family Court erroneously declined togrant him the relief prayed for. 5. The learned counsel for the respondent submitted that theallegations in the counter were made only in response to theaverments in the petition where she was branded as a stubbornarrogant woman. She also submitted that when the woman wanted toreunite with her husband, her only recourse would be to approach thecommunity elders and pray for reunion. The learned counsel for therespondent on the other hand that no acts of cruelty was made out andthe judgment required no interference. 6. Now let us examine the various allegations and counterallegations made by the parties :-(i) The allegation regarding drunkenness According to the respondent, on the first night, the appellanthad come under the influence of alcohol and this was intimated to hisparents on the next day. The Family Court did not believe this andheld that "it is only concocted for the purpose of this case." Inher evidence, she had stated "on the first night he came drunk andtherefore, I was deceived". Her allegations are not only that he wasan alcoholic, but that his whole family had recklessly destroyedtheir family wealth by drunkenness and bad habits. This is what shehas stated in the counter."It is further submitted that the petitioner used tocome home often quite late and on several occasions drunk.Though she was much disappointed at this, as she was in thebeginning of her marital life she tried to tolerate. Howevershe made sincere efforts requesting the petitioner not tocome home drunk as she could not bear the alcohol smell.But the petitioner hardly needed to her request. Here againit is submitted that she never spread rumours about hisfamily at any point of time. It is an admitted truth knownto the neighbours that the male members of this joint familyruined the entire wealth in unpalatable habits. Therespondent came to know of the same habits. The respondentcame to know of the same from the neighbours and hence therewas no chance for her to spread such a rumour amidstneighbours thereby mollyfying (nullifying) their respect,honour and dignity. In fact the neighbours commented to herthat she owned huge wealth. Though she was much troubledshe truly tried to ignore this comment in order to avoiddisharmony between her and her husband and the in laws." https://hcservices.ecourts.gov.in/hcservices/ But there is no proof of these allegations. We do not know what isthe extent of the property, nor as to which properties were ruined bythe bad habits of the family. The allegations are baseless andunproved. Therefore, it is clear that these reckless allegations ofdrunkenness not only of the petitioner, but his whole family by whichthey had destroyed the entire wealth, are false allegations and notborne out by evidence. (ii) The allegation regarding the demand of the husband totransfer the house in her nameThe Family Court rejected this on the ground that it is notpossible to accept that the petitioner and his parents demanded totransfer the house that stands in the name of the respondent'sparents immediately. "It is only a cock and bull story. Hence it isunacceptable one". Therefore, this allegation of unreasonabledemands made by the appellant and his parents have been rejected bythe Family Court. (iii) Break-up of joint family because of the wife's conductIt is the appellant's case that she had frequent quarrels withthe members of the petitioner's family and that she disrespected her,which resulted in the break-up of the joint living of the members ofthe family. With regard to this the Family Court extracted theappellant's evidence which is to this effect:"In June 1996, my father, mother and I came awayseparately. The respondent had gone to the parent's housefor delivery. It is because of her inimical attitude thatwe came separate."The Family Court rejected the appellant's case stating that when shewas not in the marital house, she cannot be said to the cause of thebreak-up. But the evidence cannot be read disjointly. The appellantstates that since the respondent's attitude with her family memberswas unfriendly and hence, they set up an independent house in July,1996 and she was at that time in her parent's house for delivery. Itis possible that they chose to shift the residence at that time, tocause least physical disturbance to the pregnant woman. Therefore,the evidence of the appellant that they had to separate because ofher attitude cannot be rejected. (iv) Threat to life made her leave the houseIt is her case that on 16-01-1997, she left the house becauseshe was threatened by the appellant and his mother that they wouldkill her. But she has not stated that the appellant and his parentsthreatened her that they will pour kerosene. Therefore, theallegations that the appellant threatened to do away with therespondent were found to be false by the Family Court. When the case https://hcservices.ecourts.gov.in/hcservices/ of the respondent that she left the house on 16-01-1997 because ofthe torture inflicted by the appellant and his mother has beenrejected as unacceptable, then we have to accept the case that sheleft the marital home on her own accord without any intention toreturn. (v) The allegation regarding the complaints made to the policeand before the Community AssociationBefore the Family Court, the respondent had conceded that shehad given a complaint before the Police Station and also before hercommunity Association. The Family Court rejected the appellant'scase of giving complaints amounted to cruelty on the ground that thishappened during the pendency of the petition and therefore, cannot beincluded as an act of cruelty. 7. Ex-P8 in which the appellant has accepted that she had takenaway all her belongings. Ex-P8 is dated 20-12-1997 and therespondent has signed stating that, "The above mentioned stridhanproperties were taken by me from my husband amicably". After signingthis for some odd reason, the respondent has rescind from thispossession and decided to contest the matter. 8. In the facts and circumstances of the case, it is clear thatboth the parties agreed to separate by mutual consent. Theallegation that before the passing of the decree, the respondent gavecomplaints before the Police Station and the Community Associationwill not be of any help to the appellant to seek divorce of mentalcruelty. But there are other allegations on the side of therespondent that the appellant coerced the respondent to leave herjob and the respondent requesting the appellant to leave his parentsand set up a separate residence. If the respondent had insisted oncontinuing her employment notwithstanding his request to resign fromher job in Shri Ram Chits that cannot be an act of cruelty.Similarly, her request to set up a separate residence cannot also betermed as such an act of cruelty for grant of divorce. But we have tosee the whole picture of this man and this woman who have joined inmarriage and who have now come before the Family Court. There are noset parameters of cruelty. It depends on many variables, includingthe social status, educational background, etc.9. In 2002 (2) SCC 296 (G.V.N. Kameswara Rao Vs. G. Jabilli),the Supreme Court held that, "because of non-cooperation and thehostile attitude of the respondent, the appellant was subjected toserious traumatic experience which can safely be termed as"cruelty".." In the present case, the Family Court held that thehusband himself was responsible for many of the incidents and heshall not be allowed to take advantage of his own faults. In theabove cited judgment, the High Court also came to the sameconclusion, but the Supreme Court felt that the High Court was not https://hcservices.ecourts.gov.in/hcservices/ justified in its conclusion.10. In 2009 (1) DMC 515 (SC) (VIshnu Dutt Sharma Vs. ManjuSharma), the Supreme Court held that to grant divorce on the groundof irretrievable breakdown would amount to add such a ground toSection 13 of Hindu Marriage Act and that cannot be done. 11. In 2006 (4) SCC 558 (Naveen Kohli vs. Neelu Kohli), a threeJudge Bench of the Supreme Court held as follows :"73. A law of divorce based mainly on fault isinadequate to deal with a broken marriage. Under the faulttheory, guilt has to be proved; divorce courts arepresented with concrete instances of human behaviour asthey bring the institution of marriage into disrepute.74. We have been principally impressed by theconsideration that once the marriage has broken down beyondrepair, it would be unrealistic for the law not to takenotice of that fact, and it would be harmful to society andinjurious to the interests of the parties. Where therehas been a long period of continuous separation, it mayfairly be surmised that the matrimonial bond is beyondrepair. The marriage becomes a fiction, though supported bya legal tie. By refusing to sever that tie the law in suchcases does not serve the sanctity of marriage; on thecontrary, it shows scant regard for the feelings andemotions of the parties.75. Public interest demands not only that the marriedstatus should, as far as possible, as long as possible, andwhenever possible, be maintained, but where a marriage hasbeen wrecked beyond the hope of salvage, public interestlies in the recognition of that fact.76. Since there is no acceptable way in which a spousecan be compelled to resume life with the consort, nothingis gained by trying to keep the parties tied forever to amarriage that in fact has ceased to exist....83. Even at this stage, the respondent does not wantdivorce by mutual consent. From the analysis and evaluationof the entire evidence, it is clear that the respondent hasresolved to live in agony only to make life a miserablehell for the appellant as well. This type of adamant andcallous attitude, in the context of the facts of this case,leaves no manner of doubt in our minds that the respondentis bent upon treating the appellant with mental cruelty. Itis abundantly clear that the marriage between the partieshad broken down irretrievably and there is no chance of https://hcservices.ecourts.gov.in/hcservices/ their coming together, or living together again.84. The High Court ought to have appreciated thatthere is no acceptable way in which the parties can becompelled to resume life with the consort, nothing isgained by trying to keep the parties tied forever to amarriage that in fact has ceased to exist.85. Undoubtedly, it is the obligation of the court andall concerned that the marriage status should, as far aspossible, as long as possible and whenever possible, bemaintained, but when the marriage is totally dead, in thatevent, nothing is gained by trying to keep the parties tiedforever to a marriage which in fact has ceased to exist. Inthe instant case, there has been total disappearance ofemotional substratum in the marriage. The course which hasbeen adopted by the High Court would encourage continuousbickering, perpetual bitterness and may lead to immorality....87. The High Court ought to have visualised thatpreservation of such a marriage is totally unworkable whichhas ceased to be effective and would be greater source ofmisery for the parties.88. The High Court ought to have considered that ahuman problem can be properly resolved by adopting a humanapproach. In the instant case, not to grant a decree ofdivorce would be disastrous for the parties. Otherwise,there may be a ray of hope for the parties that after apassage of time (after obtaining a decree of divorce) theparties may psychologically and emotionally settle down andstart a new chapter in life.89. In our considered view, looking to the peculiarfacts of the case, the High Court was not justified insetting aside the order of the trial court. In our opinion,wisdom lies in accepting the pragmatic reality of life andtake a decision which would ultimately be conducive in theinterest of both the parties."In the above case, the Supreme Court also held thus :"81. The findings of the High Court that therespondent wife’s cautioning the entire world not to dealwith the appellant (her husband) would not lead to mentalcruelty is also wholly unsustainable."So on facts, the Supreme Court found that this was cruelty. https://hcservices.ecourts.gov.in/hcservices/

12. Coming to this case, after holding that the respondent'sallegations that the husband was alcoholic were false; and theallegations of financial demands by the husband were false; and therespondent's allegations that the entire family members of thehusband were persons of immoral habits were false, the consequentdissipation of the family wealth was not proved, the trial courtshould have dissolved the marriage on the grounds of cruelty. We areunable to understand why these acts were not enough to prove cruelty.These acts of cruelty are similar to the case in Naveen Kohli. Theappellant has clearly made out a case for dissolution of marriage.Incidentally, we also feel that the marriage also has irretrievablybroken down and no purpose will be served by keeping it alive.13. For all these reasons, the civil miscellaneous appeal isallowed; there will be a decree for dissolution of the marriage dated3.8.1995, but there shall be no order as to costs.Sd/Assistant Registrar/True Copy/Sub Assistant RegistrarglpTo 1 The Principal Family Court Judge, Chennai2 The Section Officer, VR. Section, High Court, Chennai-104+One CC to Mr.G.Appavu Advocate (CC Sr.NO.24489) C.M.A.No.1423 of 2004CO GVSRA 29/07/2009