Dr.Gopal Ramanathan v. Jayashree

IN THE HIGH COURT OF JUDICATURE AT MADRASDated :01.07.2008Coram :THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIANandTHE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJACivil Miscellaneous Appeals Nos.611 and 612 of 2007Dr.Gopal RamanathanAppellant / Petitioner in both the appealsvs.JayashreeRespondent / Respondentin both the appeals.Civil Miscellaneous Appeals filed under section 19 of theFamily Court Act against the judgment and decree dated 12.07.2006made in O.Ps. Nos.595 and 995 of 2001 on the file of the IIAdditional Principal Judge, Family Court, Chennai.For appellant:Mrs.Hema SampathFor respondent:Mr.T.MohanJUDGMENTK.RAVIRAJA PANDIAN, J.The appellant-husband, who is a doctor filed O.P. No.595 of2001 against the respondent wife under section 13(1)(ia)(ib) of theHindu Marriages Act seeking a decree of divorce by dissolving themarriage that took place between the parties on 10.06.1988 atChennai and the respondent-wife filed O.P. No.995 of 2002 beforethe same Court for restitution of conjugal rights. Both the caseswere disposed of by the II Additional Family Judge, Chennai by acommon order dated 12.07.2006 by dismissing the O.P. filed by theappellant-husband and as necessary corollary the O.P. filed by therespondent wife was allowed directing the appellant-husband torestore to the respondent-wife all the comforts and bliss ofmarried life. The correctness of the said order is canvassed inthese appeals by the appellant-husband. For the sake ofconvenience, the husband is referred to as the appellant and wifeis referred to as the respondent. https://hcservices.ecourts.gov.in/hcservices/

2. The material facts of the case proceed as follows :The marriage between the appellant and the respondent tookplace on 10.06.1988 at Hotel Kanchi, Chennai, as per the Hindurites and customs. It is the case of the appellant that therespondent had negative attitude and was pessimistic not only withthe appellant, but also with the other family members of theappellant. The appellant thought that the respondent would changein due course of time and gave her a long rope. Even after sevenyears of marriage, the respondent has not changed her attitude.However she was interested to spend more time with her parents.The appellant used to take the respondent out of city for three tofour weeks in a year with the fond hope that the respondent'sattitude towards the appellant would change and they could lead anormal life. The respondent never took any initiatives to haveintercourse with the appellant to develop the family ever afterlapse of years of marriage. All the initiation taken by theappellant to make the respondent to lead a normal family life endedin vain. The respondent's parents took no initiatives to rectifythe indifferent attitude of the respondent, when it was informed tothem. It is the case of the appellant that even though theappellant and the respondent lived under the same roof, for a yearor more, they had no conversation among themselves. When theappellant wanted to sort out the problem, the respondent mistookand left the matrimonial home on 07.04.2000 along with herbelongings. Both of them had a counselling before the famousPshychiatrist Dr.Mathrubutham. He expressed that the marriagebetween the appellant and the respondent would not work out and themarriage has irretrievably broken down and advised them to partwith each other. 3. On the above stated facts, the appellant filed a petitionfor divorce on the ground that the respondent caused mental crueltyby adopting a peculiar way of behaviour which is not expected of awife; that there was no conversation between the husband and thewife for a year or more though they lived under one roof; thatthereafter they lived apart from the year 2000; that therespondent's adamant attitude of not giving the appellant maritalpleasures; that the attitude of the respondent reaching theposition of not meeting the ends at any point of time, whichresulted in the breaking down of the marriage irretrievable. 4. The respondent, the holder of Master degree in pharmacyfrom the Government college of Pharmacy, working as a tutor in thedepartment of pharmacology at Kilpauk Medical college in Chennai.The respondent has denied the allegations of negative attitude andpessimistic views and also alleged that their sexual life wassatisfactory. It is the case of the respondent that the attitude ofthe appellant towards her changed in and around 1989. Theappellant indicated that both of them were incompatible to eachother and wanted her to leave her matrimonial home and thus, therespondent left the matrimonial home on 07.04.2000 against herwish. It is true that the parties underwent counselling of apsychiatrist, but because of the mind set up of the appellant, no https://hcservices.ecourts.gov.in/hcservices/ useful fruit came out of counselling. During February 2001, therespondent's colleagues Mrs. Revathy Kalyanakrishnan andDr.Muthulakshmi Bharathi and the respondent's relatives Mrs.Lalitha Kalyan and K.A. Jayalakshmi attempted to make the appellantto stand to reason for his allegation of cruelty. All theattempts made by the respondent failed. The appellant failed tomake out a case of divorce on the ground of cruelty. On thatpremise the respondent sought to dismiss the petition for divorceand sought for a decree for restitution of conjugal rights.5. As stated earlier in the preamble portion, the IIAdditional Principal Judge, Family Court, Chennai dismissed thepetition filed by the appellant for divorce and allowed thepetition filed by the respondent for restitution of conjugalrights.6. When the matter was taken up for orders some months back,learned counsel on either side stated that the Bench may directlyfind out the views of the parties so that the parties would be ina position to have their disputes resolved in an amicable manner.As the matter involves the relationship between the husband and thewife, which is delecate in nature, the Bench also accepted therequest of the counsel and asked the parties to be present in Courtand express their mind so as to enable this Court to pass asuitable order. Accordingly, the parties were present in the Courtand both of them stuck to their respective stand. Counsel oneither side expressed their inability to bring the parties to havean amicable settlement and left the dispute to be decided by theCourt in accordance with law. Again, more than five times, the casewas adjourned so as to enable the respective counsel to counseltheir respective parties to reach an amicable settlement. 7. We heard the learned counsel on either side and perusedthe materials available on record.8. The parties are highly educated and hail from affluent andrespected family. But they miserably failed, rather refused tounderstand the basic and fundamental requirements of leading afamily life with minor adjustments with each other. They virtuallyspent 20 years of youthful life in isolation by living apart. Evenduring the shortest period they lived under one roof, silence wasthe only language of conversation between them. Even sporting asmile to each other was unknown and unheard of and virtually theyhave led a robotic life for no tangible reason. Of-course, it isoften said, passage of time would heal the wound in the mind of thepeople, but in the case of the parties here, the adage workedotherwise about – the gap in the marital life has widened as hugeas the years rolled on. The wife is also highly educated and she,after spending more than two decades of youthful life by living inisolation from her husband, however, expressed that she is willingto live with the appellant, who is hating her and made her stayaway from him for such a long number of years. When the Courtsuggested the appellant to start a new life with the respondent,as she is willing, he expressed his difficulty with emotion to the https://hcservices.ecourts.gov.in/hcservices/ effect that it is highly impossible for him even to think of it. 9. On the above stated factual situation, the one and the onlyconclusion that could be arrived at is there had been a long periodof continuous separation, the marriage bond has broken beyond anypossible repair. The marriage became a fiction though supported bya legal tie. The denial of marital comforts to each other for longperiod of years led to mental cruelty.10. In matters relating to matrimonial disharmony leading tofiling of the divorce petition, the decision of the Supreme Courtin the case of Naveen Kohli v. Neelu Kohli, AIR 2006 SC 1675, needsto be noted. In the said decision, where both the spouses had beenliving separately for a fairly long number of years and could notreconcile themselves to live together, forgetting their past, theapex Court granted the decree of divorce. It has been the view ofthe apex Court in a line of decisions that though irretrievablemarriage is not a ground for dissolution of marriage under theHindu Marriage Act, 1955, and irretrievable marriage cannot be usedas a formula to gain relief of divorce automatically (Chetan Dassv. Kamala Devi, (2001) 4 SCC 250), that the words 'conduct ofcruelty of the spouses cannot be decided on the basis of thesanctity of the marriage between the parties, if after endeavour toreconcile the parties, the breakdown is irreparable, then divorceshould not be withheld. (Naveen Kohli's case cited supra). The apexCourt in the case of Naveen Kohli further held that it would beunrealistic for the law not to take notice of that fact and itwould be harmful to society and injurious to the interest of theparties. Where there being a long period of continuous separation,it may fairly be surmised that the irretrievable bond is beyondrepair. The marriage becomes a fiction, though supported by alegal tie. By refusing to sever that tie, the law in such casesdoes not serve the sanctity of marriage, on the contrary, it showsscant regard for the feelings and emotions of parties. Taking noteof the fact that the parties in that case had been livingseparately for more than ten years and the number of proceedingsinitiated by one party against the other, the apex Court found thatthe marriage between the parties was only in name. The marriagehas been wrecked beyond the hope of salvage, public interest andinterest of all concerned lies in the recognition of the fact andto declare defunct de jure what is already defunct de facto. Tokeep the sham is obviously conducive to immorality and potentialitymore prejudicial to the public interest than a dissolution of themarriage bond.11. The apex Court once again in the case of Samar Ghosh v.Jaya Ghose, (2007) 2 MLJ 1185 had an occasion to consider a similarsituation. Referring to various case laws on the subject includingNaveen Kohli, the Supreme Court held that, "under the breakdowntheory, divorce should be seen as a solution and an escape routeout of a difficult situation. Such a divorce unconcerned with thewrongs of the past, but is concerned with bringing the parties andthe children to terms with the new situation and developments byworking out the most satisfactory basis upon which they may https://hcservices.ecourts.gov.in/hcservices/ regulate their relationship in the changed circumstances". On thequestion of cruelty, the apex Court further observed that there cannever be any straitjacket formula or fixed parameters fordetermining mental cruelty in matrimonial matters. Yet, the apexCourt, by way of illustration, listed out the instances of mentalcruelty, as follows :"(i) On consideration of complete matrimoniallife of the parties, acute mental pain, agonyand suffering as would not make possible forthe parties to live with each other could comewithin the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entirematrimonial life of the parties, it becomesabundantly clear that situation is such thatthe wronged party cannot reasonably be asked toput up with such conduct and continue to livewith other party. (iii) Mere coldness or lack of affection cannotamount to cruelty, frequent rudeness oflanguage, petulance of manner, indifference andneglect may reach such a degree that it makesthe married life for the other spouseabsolutely intolerable. (iv) Mental cruelty is a state of mind. Thefeeling of deep anguish, disappointment,frustration in one spouse caused by the conductof other for a long time may lead to mentalcruelty. (v) A sustained course of abusive andhumiliating treatment calculated to torture,discommode or render miserable life of thespouse. (vi)Sustained unjustifiable conduct andbehaviour of one spouse actually affectingphysical and mental health of the other spouse.The treatment complained of and the resultantdanger or apprehension must be grave,substantial and weighty. (vii)Sustained reprehensible conduct, studiedneglect, indifference or total departure fromthe normal standard of conjugal kindnesscausing injury to mental health or derivingsadistic pleasure can also amount to mentalcruelty. (viii)The conduct must be much more than https://hcservices.ecourts.gov.in/hcservices/ jealousy, selfishness, possessiveness, whichcauses unhappiness and dissatisfaction andemotional upset may not be a ground for grantof divorce on the ground of mental cruelty. (ix)Mere trivial irritations, quarrels, normalwear and tear of the married life which happensin day-to-day life would not be adequate forgrant of divorce on the ground of mentalcruelty. (x)The married life should be reviewed as awhole and a few isolated instances over aperiod of years will not amount to cruelty.The ill conduct must be persistent for a fairlylengthy period, where the relationship hasdeteriorated to an extent that because of theacts and behaviour of a spouse, the wrongedparty finds it extremely difficult to live withthe other party any longer, may amount tomental cruelty. (xi) If a husband submits himself for anoperation of sterilisation without medicalreasons and without the consent or knowledge ofhis wife and similarly, if the wife undergoesvasectomy or abortion without medical reason orwithout the consent or knowledge of herhusband, such an act of the spouse may lead tomental cruelty. (xii) Unilateral decision of refusal to haveintercourse for considerable period withoutthere being any physical incapacity or validreason may amount to mental cruelty.(xiii) Unilateral decision of either husband orwife after marriage not to have child from themarriage may amount to cruelty. (xiv)Where there has been a long period ofcontinuous separation, it may fairly beconcluded that the matrimonial bond is beyondrepair. The marriage becomes a fiction thoughsupported by a legal tie. By refusing to severthat tie, the law in such cases, does not servethe sanctity of marriage; on the contrary, itshows scant regard for the feelings andemotions of the parties. In such likesituations, it may lead to mental cruelty. " 10. Taking note of enunciation of law in the above referredto cases and also taking into consideration of the fact that theappellant and the respondent in this case have been living https://hcservices.ecourts.gov.in/hcservices/ separately since the year of marriage, i.e., for two decades, weare of the view that it is impossible and impracticable to preservethe marriage and any further effort to keep the marriage alive,would prove to be totally counter-productive and in order to docomplete justice and to shorten the agony of the parties engaged ina long-drawn legal battle, we are of the view that the order ofthe Family Court ordering restitution of conjugal rights has to beset aside and it is accordingly set aside. There shall be a decreeof dissolution of marriage between the appellant and the respondentwhich took place on 10.06.1988. The appeals are allowed. But, inthe circumstances of the case, there shall be no order as to costs.Sd/-Deputy Registrar./true copy/Sub Asst. Registrar.mfTo1. THE II ADDITIONAL PRINCIPAL JUDGEFAMILY COURT, CHENNAI2. THE SECTION OFFICERV.R.SECTION, HIGH COURT,MADRAS+ 2 CCs To Mr.K.Bhawatharani, Advocate SR NO.33512CMAs. Nos.611 & 612/2007GV(CO)SRA(25/07/2008)