Dr. M. Kumaresan v. Mrs. K. Mohanapriya

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 25 - 8 - 2011 CORAMTHE HONOURABLE MR. JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR. JUSTICE M. VENUGOPALC.M.A. No. 48 of 2009andM.P. No. 1 of 2009Dr. M. Kumaresan.. Appellant / Respondentvs.Mrs. K. Mohanapriya .. Respondent/ PetitionerAppeals filed under Section 19 of the Family Courts Act against thecommon decretal order dated 28.9.2007 made in F.C.O.P. No. 1611 of2004 and M. C. No. 153 of 2005 on the file of the II AdditionalPrincipal Judge, Family Court, Chennai.For Appellant : Mr. S. KalyanaramanFor Respondent: Mr. KumarJUDGMENT(Delivered by M. VENUGOPAL, J.)The Appellant / Husband has preferred the present CivilMiscellaneous Appeal as against the order dated 28.9.2007 inF.C.O.P. No. 1611 of 2004 on the file of the Learned II AdditionalPrincipal Judge, Family Court, Chennai.2.The Respondent / Petitioner (Wife) filed H.M.O.P. No. 1611of 2004 on the file of the II Additional Family Court, Chennai underSection 13(1)(ia) of the Hindu Marriage Act 1955 seeking the reliefof dissolution of marriage that took place between her and theAppellant / Husband on 01.9.1996 at Salem.3.The Appellant / Husband and the Respondent / Wife gotmarried on 01.9.1996 at K M B Kalyana Mandapam, Salem as per theHindu rites and customs. The Appellant / Husband was working as https://hcservices.ecourts.gov.in/hcservices/ House Surgeon in a Hospital at Salem. The Respondent / Wife, soonafter the marriage, came to know that the Appellant / Husband was adrug addict. It is the case of the Respondent / Wife that theAppellant / Husband consumed liquor throughout the day withoutvisiting the hospital regularly. The Respondent / Wife had notinformed about the habit of drug addiction of the Appellant /Husband to her parents and when she informed his parents about it,they simply ignored it. The Appellant / Husband was a drug addictand this fact was suppressed at the time of her marriage.4.The parties lived initially in Chennai for a few years.Subsequently, because of the Appellant / Husband's drug addict habitand use of drug and also the company of his friends, she was forcedto move out of Chennai to her parents' house at Salem.5.Even in Salem, the Appellant / Husband had not mended hishabits. He and his family members abused the Respondent / Wife andhe assaulted the Respondent / Wife almost daily and used filthylanguage against her and her parents.6.The Appellant / Husband worked in SPMM Hospital, Salem.Because of his indecent behaviour and drug addiction, he was removedfrom service. The Appellant / Husband had not changed hisattitude and also his parents were not bothered to look into thematter. Inspite of the same, the Appellant / Husband continued toconsume drugs daily. As a result of the wedlock between theparties, two male children were born. According to the Respondent/ Wife, at the time of her first pregnancy, she was treated badly bythe Appellant / Husband and his parents. While she was asleep, theAppellant / Husband kicked and threw her out of the room without anycause. He also forced the Respondent / Wife to make a phone callto her parents in Chennai. The Respondent / Wife, at thisjuncture, even went to the extent of thinking to commit suicide.But she had not ventured to do so taking note of the interest of herchildren. With a view to rehabilitate the Appellant / Husband fromthe habit of drug addiction, the Respondent / Wife came to Chennaiwith the help of her parents during August 2001. The Appellant /Husband was brought to Dr.Mu.Va. Hospital in Shenoy Nagar, Chennaifor treatment under the guidance of Dr. Bashyam. Earlier, he hadnot co-operated with the rehabilitation programme but with theassistance of Dr. Bashyam, he recovered from the drug addict habit.7.According to the Respondent / Wife, she used to accompanythe Appellant / Husband to the clinic with her first child dailyto keep him away from the drug habit. The Respondent / Wife waspregnant for the second time. Even during her 8 months' pregnancy,she accompanied the Appellant / Husband and monitored his https://hcservices.ecourts.gov.in/hcservices/ activities.8.The Appellant / Husband one day abused the Respondent /Wife when he purchased the drug in her presence. The Respondent /Wife was prevented from talking to her parents over phone. It isthe version of the Respondent / Wife that the Appellant / Husband'smother gave a cigarette and wine bottle to her first son and forcedhim to smoke and consume the same. But such an attempt wasthwarted at her intervention. Subsequently, some new individualscame to her house. The Appellant / Husband also admitted that hewas not happy with Ganga and started using heroin. The Respondent/ Wife was shocked over this kind of attitude of the Appellant /Husband and later, his hands started shivering. Moreover, hecould not stand or sit for a few minutes in a particular place.All the efforts taken by the Respondent / Wife to rehabilitate theAppellant / Husband proved futile. She got frustrated over theattitude of the Appellant / Husband. Her two children are livingwith her. Unable to bear the cruelty meted out by the Appellant /Husband, she was constrained to file the petition to dissolve themarriage as per Section 13-1 (i-a) of the Hindu Marriage Act, 1955.9.The Respondent / Wife also filed a petition formaintenance in M.C. No. 153 of 2005 and both F.C.O.P. No. 1611 of2004 and M.C. No. 153 of 2005 were tried jointly on the basis of aMemo being filed therein. A common evidence was recorded and theevidence documents were marked in F.C.O.P. No. 1611 of 2004.10.On the side of the Respondent / Wife, she examined herselfas P.W.1 and Exs. P.1 to P.7 were marked. On the side of theAppellant / Husband, he was examined as R.W.1 and no documents weremarked.11.The trial Court, on an analysis and appreciation of oraland documentary evidence available on record, had come to aresultant conclusion that the Respondent / Wife as petitioner inF.C.O.P. No. 1611 of 2004 had proved the aspect of cruelty meted outby the Appellant / Husband and accordingly, allowed F.C.O.P. No.1611 of 2004 by dissolving the marriage between the Respondent /Wife and the Appellant / Husband that took place on 01.9.1996 atK.M.B. Kalyana Mandapam, Salem. Further, the trial Court in M.C.No. 153 of 2005, granted a sum of Rs. 3000/- p.m. to the firstrespondent / petitioner as maintenance and also a further sum ofRs. 1500/- p.m. to each of her two sons as maintenance from the dateof petition, i.e., 17.3.2005.12.The Appellant / Husband had preferred the present CivilMiscellaneous Appeal before this Court only as against the orderdated 28.9.2007 passed by the trial Court in F.C.O.P. No. 1611 of https://hcservices.ecourts.gov.in/hcservices/

2004. 13.The point that arises for determination of this CivilMiscellaneous Appeal is"Whether the Respondent / Petitioner (Wife) isentitled to claim the relief of divorce fromAppellant / Respondent (Husband) in F.C.O.P. No.1611 of 2004 on the file of the II Additional FamilyCourt, Chennai?"14.The Learned Counsel appearing for the Appellant / Husbandurges before this Court that the trial Court failed to comply withthe procedure indicated as per Section 9 of the Family Courts Actas well as Section 23 of the Hindu Marriage Act. 15.It is the further contention of the Learned Counsel forthe Appellant / Husband that the trial Court, without acceptableevidence regarding the allegations of the Respondent / Wife, hadrendered a wrong finding that the Appellant / Husband had committedan action of cruelty on his Wife.16.According to the Learned Counsel for the Appellant /Husband, no one from SPMM Hospital, Salem, was examined to provethat the Appellant / Husband's services were terminated because ofhis drug addiction.17.The Learned Counsel for the Appellant / Husband contendsvehemently that Ex.P.4 letter contents would not in any waystrengthen the case of the Respondent / Wife in regard to theallegation of cruelty made by her in the Original Petition.18.In short, it is the submission of the Learned Counsel forthe Appellant / Husband that none of the points in which divorce wassought for by the Respondent / Wife was proved or even admitted tobe proved during the course of the trial of F.C.O.P. No. 1611 of2004.19.Lastly, it is the submission of the Learned Counsel forthe Appellant / Husband that the evidence of the Appellant / Husbandas R.W.1 clearly points out that he had a genuine desire to livewith the Respondent / Wife and lead a peaceful life which aspect ofthe matter was not appreciated in its proper and real perspective.20.Conversely, it is the contention of the Learned Counselfor the Respondent / Wife that the trial Court had taken note of therelevant facts and circumstances of the case in a cumulative manner.It had also considered the evidence of P.W. 1, viz., Respondent / https://hcservices.ecourts.gov.in/hcservices/ Wife and had come to the right conclusion that the Appellant /Husband caused cruelty to the Respondent / Wife and the same neednot be interfered with by this Court at this distance of time.21.It is to be noted that after the Marriage Laws (Amendment)Act, 1976, cruelty is a ground for divorce as well as JudicialSeparation. Before amendment, it was only a ground for JudicialSeparation and not for divorce.22.The mental cruelty must be of such a kind that the partiescannot live together jointly.23.In Jem vs. Jem 33 reported in (1937) 34 Haw 312, theHon'ble Supreme Court of Hawii observed that "Cruel treatment notamounting to physical cruelty is mental cruelty".24.It is to be borne in mind that numerous acts consideredseparately in isolation may not be hurtful but small, yet whenconsidered in an overall assessment of the fact situation in a givencase, they will come within the ambit of cruelty. Use of repeatedrude language, neglect indifferent and petulance of manner mightreach a stage that makes the matrimonial life for the oppositespouse completely an intolerable one. A humiliating treatment withan object of torture will make the life of other spouse miserableand pitiable one.25.We worth recall the decision in Rosenbaum v. Rosenbaum(1976) 38 111 App 3d 1 whereby and whereunder the Appellate Court ofIllinois observed thus:"To prove a case entitling a spouse to divorce onthe ground of mental cruelty, the evidence must showthat the conduct of the offending spouse isunprovoked and constitutes a course of abusive andhumiliating treatment that actually affects thephysical or mental health of the other spouse,making the life of the complaining spouse miserableor endangering his or her life, person or health".26.A studied neglect, continuous reprehensible conduct,complete departure of normal conjugal affection and derivingsadistic pleasure would amount to cruelty.27.The term "accusation" in Oxford English Dictionary means"the act of accusing, or being accused, the charge, or thedeclaration containing it, and indictment". As per Webster'sEncyclopaedic Unabridged Dictionary, the word "accusation" means "acharge of wrong doing, imputation of guilty or blame, the specific https://hcservices.ecourts.gov.in/hcservices/ offence charged; the act of accusing or charging." 28.In Law Dictionary, the term "accusation" has been definedas "a charge against a person or corporation. In its wider sense,it encompasses indictment, presentment, information and any otherform in which charge of crime or offence can be made against aperson.29.Levelling disgusting allegations / accusations is aserious assault on character, honour, reputation, status and healthof a Wife.30.In matrimonial relations, each spouse generally issupposed to have tolerance and adjustability. However, a Court,dealing with the petition for divorce, should not be too technicaland hyper-sensitive in its approach to the subject matter in issue.31.A pungent intentional and deliberate statement made by theoffending against another spouse could not be brushed aside solightly.32.In the instant case on hand, it is quite evident from theDischarge Summary that the Appellant / Husband was admitted in Dr.Mu. Va. Hospital on 02.8.2001. A perusal of the Discharge Summarygoes to point out that the Appellant / Husband was admitted foraltered behaviour for the past few years, aggressiveness,inability / altered Acusoeium / hallucination / suicidal tendency.The Appellant / Husband, as R.W.1, in his evidence, has deposed thathe used to get angriness and depression. He also admitted duringthe course of his evidence that he wrote Ex. P.4 letter in which hehad mentioned that he was not able to control himself and he utteredvulgar words without his knowledge. It is needless for this Courtto point out that admission in one's evidence is the best version ofevidence and the very fact that the Appellant / Husband was unableto control himself and his uttering of vulgar words prove clearlythat he caused mental agony and torture upon the Respondent / Wifeand his evidence to that effect ought not to be discarded solightly.33.The evidence of P.W.1 (Respondent / Wife) before the trialCourt was to the effect that the Appellant / Husband's mother gavecigarette and wine to her first son and at her intervention, sheprevented the same. However, this part of evidence of theRespondent / Wife was denied by the Appellant / Husband. Eventhough the Appellant / Husband had denied the factum of the https://hcservices.ecourts.gov.in/hcservices/ incident, he had not chosen to examine his mother to repudiate thesame. Inasmuch as the Appellant / Husband's mother was involved inthe matter in issue, the non-examination of his mother was, indeed,a fatal one in the considered opinion of this Court.34.Earlier, the Appellant / Husband was serving in SPMMHospital as Doctor for seven months. It was mentioned that due tohis misbehaviour and drug addiction, he was relieved from theHospital. Subsequently, he started a separate Hospital to have hisown livelihood and to improve his profession and earnings. On theside of the Appellant / Husband, no evidence was let in or adducedto show as to why he left the SPMM Hospital and why he set up aseparate Hospital. Inasmuch as the Appellant / Husband had not letin any evidence to establish as to why he had left the earlier SPMMHospital and since in a civil case like this nature, a preponderanceof probability has to be taken note of by this Court, this Court isleft with no other option but to accept the version projected by theRespondent / Wife that only because of his abnormal behaviour anddue to drug addiction, he was relieved from the SPMM Hospital wherehe was working earlier.35.The Respondent / Wife before the trial Court, had come outwith a plea that she was beaten by the Appellant / Husband. TheAppellant / Husband, as R.W.1, had, in his evidence (in cross-examination), tacitly admitted that he used to get angry anddepression. Ex.P.4 letter was written in his own handwritingwherein he made a mention that he used to get irritation and couldnot control himself. Further, he proceeded to use vulgar words.The contents of Ex.P.4, prima facie, go against the stand taken bythe Appellant / Husband. In short, the contents of Ex.P.4 and inview of the admission of the Appellant / Husband as R.W. 1 that hehad beaten the Respondent / Wife physically, the evidence of theRespondent / Wife as P.W.1 in this regard are accepted by thisCourt. No Hindu woman would accept the husband to beat herphysically and that too, violently and also to use vulgar words onher. A Husband beating the wife is certainly a Human Rightsviolation besides attracting the provisions of Domestic ViolenceAct. Inasmuch the Appellant / Husband had admitted that he usedto get irritation and also used vulgar words and because of anotherfact that Ex.P.4 contents unerringly point out that he had beatenthe Respondent / Wife, we come to an inevitable conclusion that theAppellant / Husband had treated the Respondent / Wife cruelly andalso committed cruelty upon her. On this score alone, theRespondent / Wife was entitled to claim the relief of divorce asprayed in the F.C.O.P.. Consequently, the Civil MiscellaneousAppeal filed by the Appellant / Husband is devoid of merits.36.In this connection, we pertinently point out that as https://hcservices.ecourts.gov.in/hcservices/ regards, M.C. No. 153 of 2005, the Appellant / Husband, being aDental Surgeon, was expected to earn an income of Rs. 25,000/- permonth though the Appellant / Husband before the trial Court, in hisevidence, had deposed that he had not owned any building in his namein Salem and he was only getting a sum of Rs. 2000/- per month asaverage income, these aspects were disbelieved by the trial Court.Finally, taking note of the fact that the Appellant / Husband, beinga Dental Surgeon, would earn an average income of Rs. 25,000/- permonth, it granted a sum of Rs. 3000/- per month to the Respondent /Wife and also granted Rs. 1500/- per month to each of her childrenbeing the maintenance amount, which, in our considered opinion, wasa reasonable, fair and equitable one.In the result, the Civil Miscellaneous Appeal is dismissedleaving the parties to bear their own costs. The order of theFamily Court in F.C.O.P. No. 1611 of 2004 is affirmed by this Courtfor the reasons assigned in this Appeal. Consequently, the connectedMiscellaneous Petition is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.griTo1. The II Additional Principal Judge,Family Court, High Court Buildings, Chennai 104.2. The section OfficerVR Section, High Court, Madrs1 cc to M/s. S. Kalyanaraman, Advocate, Sr. 531221 cc to Mr. Kumar, Advocate, Sr. 53036C.M.A. No. 48 of 2009RK (CO)kk 21/9