Malarvijy.. v. 1.Kanthan..

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 05-07-2011CORAM :THE HONOURABLE Mr.JUSTICE K. MOHAN RAMANDTHE HON'BLE MR.JUSTICE G.M. AKBAR ALICivil Miscellaneous Appeal No.3135 OF 2008Malarvijy.. Appellant/1st RespondentVs1.Kanthan.. 1st Respondent/Petitioner2.The Registrar of Marriage Pondicherry Municipality Pondicherry .. 2nd Respondents/Petitioner/2nd Respondent Civil Miscellaneous Appeal filed under section 19 of theFamily Courts Act 1984 against the order and the decreetal orderdated 12.03.2008 made in M.O.P.No.187/2004 on the file of theFamily Court at Pondicherry.For Appellant : Mr.T.P. Manoharan For 1st respondent: Mr.R. Saseetharan JUDGMENT(Judgment of the Court was delivered by K. MOHAN RAM,J.,)The present civil appeal arises out of the order anddecreetal order dated 12.03.2008 made in M.O.P.No.187/2004 on thefile of the Family Court at Pondicherry.2. The appellant in this appeal is the wife of the 1strespondent. The 1st respondent filed a petition in M.O.P.No.187 of2004 before the Family Court, Pondicheery under Section 13(1)(ia)of the Hindu Marriage Act, seeking divorce on the ground of mentalcruelty.3. The case of the 1st respondent is that the marriagebetween him and the appellant took place on 7.2.2003 as perHindu rites and customs. The 1st respondent's family is a jointfamily and from the date of marriage, the appellant had notparticipated in the household works, and she never respected theelders of the family. She used to abuse the 1st respondent. Theappellant was not even interested in cohabitation and she https://hcservices.ecourts.gov.in/hcservices/ never permitted the 1st respondent to have sexual relationshipwith her. Whenever the 1st respondent attempted to have sexualrelationship, she used to threaten him that she would shout.When the 1st respondent questioned the appellant, she used to tellthat she never like men and only due to the compulsion of herfather, she had agreed for the marriage. Due to the acts of theappellant, the 1st respondent was forced to take liquor, so that hecan sleep in the night. 4. It is also the case of 1st respondent that theappellant did not want to live in the joint family and wanted tolive separately. On 30.5.2003, the appellant informed the 1strespondent that she is going to stay at her parents' house forsome time and while leaving the matrimonial home, took all herjewels and dress materials and did not contact the 1st respondentfor ten days. On the eleventh day, the appellant contacted the 1strespondent over phone and asked him to come to her place andthreatened that if he did not come, she would lodge policecomplaint. The efforts taken by the 1st respondent to change theattitude of the appellant failed. 5. The appellant contested the petition inter-aliacontending as follows:The alleged act of cruelty has been specifically denied bythe appellant. She has stated that she used to perform her dutiesas expected of a wife towards her husband. It is also statedthat the 1st respondent is a chronic drunkard. On the evening ofthe wedding day, when both of them visited Manakula Vinayagartemple at Pondicherry, she was made to wait outside a wine shopand the 1st respondent, who went inside the shop and returned onlyafter 45 minutes in an inebriated stage. He requested theappellant not to reveal this to any one of the family members.The appellant and the 1st respondent were in her parents'house for three days and even during those days, the 1strespondent was fully drunk and therefore, it was the 1strespondent, who did not fulfil the conjugal rights.6. In paragraph-8 of the counter, the followingallegations have been levelled against the appellant by the 1strespondent.“8. ...... But at the matrimonialhome, the petitioner seemed to beinterested in the welfare of his young,youthful and widowed sister-in-law andher two children and was addicted toliquor and cigarettes and the worstpart was that the petitioner spent allhis times with his sister-in-law in herroom all alone and never came to therespondent's room which was lying atthe rear end of the matrimonial homecomprised in an extent of 30 feet into120 feet. In fact, the respondent didnot even have the company of thepetitioner on many a night's and if atall he came to her room, he used to https://hcservices.ecourts.gov.in/hcservices/ have carnal intercourse with therespondent only with the help of acontraceptive. The respondent submitsthat whenever she questioned thisunusual behaviour of her husband, shewas back fired by stating “CUf;fhfj; jhd; ehd; cd;id fy;ahzk;gz;zpf;bfhz;nld;/ vdf;F vd; mz;zpiaj;jhd;gpof;Fk;/ The petitioner spent all histime with his sister-in-law and therespondent was forced to do all thehousehold work and even wash theclothes of the petitioner's sister-in-law and her childrenand if she couldnot work according to the tunes of thepetitioner's sister-in-law she wasbeaten and ill-treated by thepetitioners sister-in-law and also bythe petitioner at the instigation ofhis sister-in-law.7. Even though at the time of marriage, huge money wasspent and several articles were presented by her parents, she washarassed to bring more dowry. Whenever the appellant went out,the 1st respondent did not accompany her. The appellant was forcedto borrow a sum of Rs.25,000/- from her father for handing overit to the 1st respondent. As the 1st respondent did not feelcontent with the sum given, the appellant had to part with her 2gold bangles weighing 4 sovereigns and another pair of goldbangles weighing 3 sovereigns to the 1st respondent and thereafterwhenever further demands could not be complied with, she wasbeaten up and deprived of food.8. It is further stated that whenever the sister-in-lawof the 1st respondent was not in the house, there was no problembetween them. On 29.5.2003, the 1st respondent and his sister-in-law had severely beaten the appellant, demanding gold jewels andsince she refused to part with the same, she was thrown out of thematrimonial home at around 9.30 p.m on the same day. Now, the 1strespondent is living with his sister-in-law and two children andthe appellant is ready and willing to join and live with the 1strespondent.9. Before the Family Court, the 1st respondent wasexamined as P.W.1 and Exs.P.1 and P.2 were marked, while theappellant herein was examined as R.W.1 and Ex.R.1, the petition inMOP No.187 of 2004, was marked.10. On consideration of the evidence and records, theFamily Court allowed the petition and being aggrieved by that, theappellant has filed the present appeal.11. Mr.T.P. Manoharan, learned counsel for the appellantsubmitted that even if the allegations contained in the petitionfiled by the 1st respondent on its face value are accepted as true, https://hcservices.ecourts.gov.in/hcservices/ the same would not amount to cruelty and the allegations have notbeen proved by acceptable evidence. When the 1st respondent hasnot established the allegations levelled against the appellant, heis not entitled to get a decree for divorce. According to him,the court below has failed to see that in the counterstatement filed by the appellant, she has stated thecorrect facts and the behaviour of the 1st respondent and therelationship between the 1st respondent and his sister-in-law andshe has also stated that the 1st respondent is a drunkard. In herevidence as R.W.1, she has spoken to about the averments made inthe counter statement and though serious allegations have beenmade in the counter statement, the 1st respondent has not chosen tofile any reply statement controverting the same. Therefore, thecourt below is not right in granting the decree for divorce on thebasis that unsubstantiated allegations made by the appellant inthe counter statement viz., the 1st respondent is having illicitintimacy with his widowed sister-in-law itself, will amount tomental cruelty.12. The learned counsel for the appellant also submitsthat the relationship of the 1st respondent with his sister-in-lawinside the house can be spoken to only by the appellant, who wasliving in the house, and it is not reasonable to expect tosubstantiate them by any corroborative evidence. Therefore, theallegations contained in the counter statement have been made onlyas a defence to the petition filed by the 1st respondent and assuch, the same cannot be a ground to grant decree for divorce.According to the learned counsel, unless and until the 1strespondent substantiates the allegations contained in thepetition, he is not entitled to get decree for divorce andtherefore, the order of the court below is liable to be interferedwith.13. Countering the above submissions, Mr.R. Saseetharan,the learned counsel for the 1st respondent submits that though the1st respondent, in his evidence, has spoken to about theaverments contained in the petition and though the court below hasobserved that serious allegations have not been proved, the courtbelow has rightly granted decree for divorce on the ground thatserious allegation of illicit intimacy with the sister-in-law hasnot been established and such serious allegation levelled againstthe 1st respondent by the appellant would amount to mental cruelty.Even if the allegations contained in the petition are not madeout, on the ground of unsubstantiated allegations levelledagainst the 1st respondent by the appellant, the 1st respondent isentitled for a decree of divorce.14. We have anxiously considered the rival submissionsadvanced on either side and perused the materials available onrecord. 15. At the outset, it has to be pointed out that theallegations that the appellant was not attending house hold worksand she was not showing proper respect to the elders itself willnot amount to mental cruelty. Though the 1st respondent hasalleged in the petition as well as deposed in his evidence that https://hcservices.ecourts.gov.in/hcservices/ whenever he wanted to have sexual relationship with the appellant,she refused, however, the said allegation has been denied both inthe counter statement and in her evidence.16. R.W.1, in her cross examination has spokenelaborately about her sexual relationship with the 1st respondent.On these aspects, we cannot expect any corroborative evidenceagainst the evidence of R.W.1. We cannot come to a definiteconclusion that the appellant refused to have sexual relationshipwith the 1st respondent.17. In the counter statement, it is alleged by theappellant that the 1st respondent used to have carnal intercoursewith the appellant only with the help of contraceptives. But asrightly pointed out by the court below, even during the crossexamination of P.W.1, there was not even a suggestion to the factthat the 1st respondent used to have only carnal intercourse. Onthe other hand, it has been suggested that there was only normalsexual relationship between them using contraceptives and as such,the said allegations stand not proved.18. As rightly pointed out by the court below, the exactnature of teasing, yet another allegation is not set out inthe petition and in the evidence and the other family members nothaving been examined to corroborate the evidence of the 1strespondent, the allegation that the appellant teased the 1strespondent's family members is not proved. Therefore, theCourt below is right in coming to the conclusion that theallegation levelled against the appellant by the 1st respondentregarding the acts of cruelty has not been established.19. Now the question remains, whether the court below iscorrect in granting the decree for divorce on the ground that theappellant/wife had made serious allegations against the 1strespondent viz., the 1st respondent is having illicit intimacy withhis sister-in-law will amount to cruelty.20. In paragraph-8 of the counter statement filed by theappellant, she has made very serious allegations against the 1strespondent as if he is having illicit intimacy with his sister-in-law and those allegations have been extracted above.21. If we consider the above said serious allegations, itwould definitely cause mental agony and pain to the 1st respondent.These unsubstantiated allegations made by the appellant againstthe 1st respondent would definitely amount to mental cruelty. 22. In the decision reported in AIR 2005 BOMBAY 180(Manisha Sandeep Gade v. Sandeep Vinayak Gade) a Division Bench ofthe Bombay High Court, while considering the question as towhether the unsubstantiated and unproved allegation of adulterylevelled against the husband by the wife would amount to mentalcruelty, has held that it will amount to mental cruelty. It was acase where the husband has sought for divorce on the ground ofcruelty and while defending the petition, the wife in her writtenstatement, apart from defending her and refuting the allegations https://hcservices.ecourts.gov.in/hcservices/ made against her, had made several allegations against her husbandand one such allegation was that he had illicit relationship withone Leena, wife of Vivek and in fact he wanted to marry her.While considering the legal effect of such an allegation, theDivision Bench has held as follows:-"30. What we have to note is that when one partyto the petition has sought divorce on some ground andthe respondent to that petition does not merely defendit to get it defeated, but makes further seriousallegations against the petitioner, it becomes a clearstep towards the dissolution of the marriage. In thepresent matter, the petitioner has approached the Courtseeking dissolution of his marriage. It is his casethat there is a failure of the marriage and he seeks topoint it out by invoking a ground available under thelaw. At that point of time, if the respondent makes acounter allegation in the written statement, that byitself shows a prima facie failure of the marriage. ....31. .... In a matrimonial matter, one cannotapply the standard of stricter evidence. Nothingprevented her from establishing her allegations. Therespondent could not have established the negative byleading any further evidence that the allegations madeby the wife were false. The appellant had made theallegations. The burden was on her. She had failed toprove those allegations. Once she fails to prove thoseallegations and if those allegations are not inconsonance with matrimonial relationship, and thehusband complains that they have caused him agony, theinference that they constitute cruelty has to follow.32. In the circumstances we are satisfied thatthe learned Judge was right in coming to the conclusionthat the allegations made by the appellant wife werebaseless and false and constituted a cruelty. He was,therefore, right in granting the decree of divorce onthat ground. ..."23. In AIR 1989 PUNJAB AND HARYANA 310 (Kiran Mandal v.Mohini Mandal) a Division Bench of that Court, has held asfollows:-"14. ... She made false allegations against herhusband that he had illicit relations with his brother'swife. These false allegations did have an injuriouseffect on the husband.15. Cruelty within the meaning of S. 13 of theHindu Marriage Act is not confined to physical violencebut includes mental torture caused by one spouse to theother. The wife had made it insufferable for the husbandto live with her. Any man with reasonable self respectand power of endurance will find it difficult to livewith a taunting wife, when such taunts are in fact insult https://hcservices.ecourts.gov.in/hcservices/ and indignities. Human nature being what it is, areasonable man's reaction to the conduct of the offendingspouse is the test and unending accusations andimputations can cause more pain and misery than physicalbeating. ...."24. In Smt. Chanderkala Trivedi v. Dr. S.P.Trivedi, 1993(3) Scale 541, the husband sued for divorce on the ground ofcruelty by wife. The wife filed a written statement wherein sheattributed adultery to the husband. In reply thereto the husbandput forward another allegation against the wife that she washaving undesirable association with young boys. Considering themutual allegations, His Lordship, R.M.Sahai, J., speaking forDivision Bench, observed:"Whether the allegation of the husband that shewas in the habit of associating with young boys and thefindings recorded by the three Courts are correct or notbut what is certain is that once such allegations aremade by the husband and wife as have been made in thiscase then it is obvious that the marriage of the twocannot in any circumstance be continued any further.The marriage appears to be practically dead as fromcruelty alleged by the husband it has turned out to beat least intimacy of the husband with a lady doctor andunbecoming conduct of a Hindu wife."25. In the light of the law laid down in the aforesaiddecisions, if the facts of the present case are considered, itcould be seen that when serious allegations of adultery is made bythe wife against the husband and the same stands unsubstantiatedthat will definitely amount to mental cruelty as far as thehusband is concerned. The unfounded allegations made by the wifeagainst her husband by itself shows the prima facie failure of themarriage. 26. As far as the contentions of the learned counsel forthe appellant that unless and until the 1st respondentsubstantiates his allegations contained in the petition, he is notentitled for decree for divorce and merely on the ground thatwhen the wife has made serious allegations, he is not entitled toget decree is concerned, it has to be pointed out that makingunsubstantiated allegations about the character of the husband andaccusing him of illicit intimacy would itself amount to mentalcruelty. Therefore, the said contention of the learned counselfor the appellant cannot be countenanced when the veryallegations made against the 1st respondent will amount to mentalcruelty. 27. Under the above circumstances, it isimmaterial that the 1st respondent should establish theallegations of cruelty pleaded in the petition. Therefore, thesaid contention of the learned counsel is rejected. https://hcservices.ecourts.gov.in/hcservices/

28. We do not find any other valid reason to interferewith the reasonings of the Court below. Hence the appeal fails andthe same is dismissed. No order as to costs.srSd/-Deputy Registrar//True Copy//Sub Asst. RegistrarToThe Judge, Family Court, Pondicheery+ 1 cc to Mr. T. P. Manoharan, Advocate SR No.39583SV(CO)SR/6.9.2011C.M.A.No.3135 of 2008