J.Anitha v. J.Prakash
Case at a glance
Provisions considered
- Family Courts Act s. 19
- Hindu Marriages Act, 1955
- Hindu Marriages Act s. 9
- Hindu Marriage Act, 1955 ss. 12(1)(C), 13(1)(iii)
Key paragraphs
- Para 2424. The Family Court, on a consideration of the evidenceadduced before it, granted a decree for divorce on the ground thatthe marriage had not been consummated and it amounted to causingmental cruelty and the appellant's complaint on false ground of dowryharassment also caused mental cruelty…
- Para 2727. The learned counsel submitted that the allegation ofmental disorder has been disbelieved and rejected by the FamilyCourt, but divorce had been granted on the ground of mentalcruelty mainly believing the incident that took place on 20.9.2001and the suppression of real reason for cancellation of…
- Para 3737. The learned counsel submitted that the husband wasinside the house when the wife and her parents went to the house ofthe husband and as such he could not have witnessed the allegedremoval of Thali by his wife. The learned counsel submitted thatwhen the incident…
Judgment
night, i.e., on 17.09.2001, the respondent’s mother called theappellant and his parents over phone and informed that the respondentwas having her periods and hence would return only on 20.09.2001. 5. It is the further case of the appellant that on20.09.2001, at around 11.00 am, the respondent, her parents andsister barged into the appellant’s residence and behaved in a veryindecent and inappropriate manner and they shouted at the top oftheir voice using filthy language, which caused severe embarrassmentto the appellant’s family members as this behaviour was witnessed bytheir neighbours and passerby. Threatening the appellant with policeaction stating that they will file a police complaint allegingcruelty and dowry harassment, after four hours, they all leftcarrying with them the articles of the respondent like cloths, silverware, box containing jewels etc., without the knowledge and consentof the appellant and his parents in a stealthy manner.
At that pointof time, the respondent removed her Thali twice and shouted that itwas not necessary and the respondent had since then not returned. Nodowry was either demanded or obtained. Subsequently, therespondent’s parents have been on a defamatory campaign approachedall sorts of people with false stories against the appellant and hisparents.6. On 21.11.2001 repeated phone calls were received by theappellant and his parents to the effect that representatives of awomen's association and her parents would visit the appellant at04.00 pm. Hearing this, the appellant’s father approachedAbiramapuram Police Station at 12.00 noon. However, they did notcome to the appellant’s residence.7. On 24.11.2001 the appellant’s mother lodged a policecomplaint before All Women Police Station, Adyar, and the same wasregistered in the Social Service Register bearing No.1169/CSR/W-2/PS2001. On 25.11.2001, the parents of the respondent also approachedthe same police Station and filed a complaint against the appellantand his parents, which was taken on file as CSRNo.1172/CSR/W2/PS/2001.
The appellant was under the reasonableapprehension that the complaint contains total falsehood, includingallegations of cruelty and dowry harassment. On 26.11.2001 therespondent sent a letter to the appellant making false allegations asthough the mother of the appellant demanded Rs.3 lakhs. The PoliceAuthorities conducted counselling between the two families and aroundsix sittings took place and as there was no positive progress, theappellant has been forced to approach the Family Court.8. The respondent has been suffering from such mentaldisorder and to such an extent that the appellant cannot reasonablybe expected to live with the respondent and the marriage is liable tobe dissolved on the ground of mental disorder. The act of therespondent removing her Thali on many occasions, the acts, deeds and https://hcservices.ecourts.gov.in/hcservices/ attitude and false police complaints by the respondent, from the dayone of the marriage, has caused great mental strain, agony andcruelty to the appellant.
9. The respondent was already engaged to one V.Ramachandranand after the parents of the said Ramachandran found out that therespondent was of unusual character and mentally abnormal cancelledthe marriage, but this fact was not informed either to the appellantor to his parents. This is nothing but a fraud played by therespondent and her parents concealing material facts concerning therespondent. The vessels given by the respondent bear the initials ofthe said V.Ramachandran. Had this fact been informed to theappellant before the marriage, the appellant would not have consentedfor the marriage, therefore, the appellant sought for a decree fordissolution of marriage under Sections 12 (1) (C) or 13 (1) (ia) and13(1) (iii) of the Hindu Marriages Act, 1955.10. The respondent / wife contested the petition by filinga detailed counter statement inter-alia contending as follows:-a. The entire allegations in the petition are denied andthe appellant is put to strict proof of the same.
The respondent isa Commerce Graduate from Meenakshi College for Women in Chennai. Shehad been an outstanding student in all her college days and shepossessed of Proficiency Certificate and Certificate of Merits for Scholastic Excellency. She joined her M.Com., course in SIET collegefor Women and she discontinued the same since her parents wanted herto get married. Pursuant to an advertisement published in the English Daily “The Hindu” dated 17.06.2001, the respondent's parentsvisited the appellant's parents at their residence and exchanged thehoroscopes. On the very same day, the respondent’s parents hadinformed the appellant’s parents that the respondent was earlier tobe engaged to another Groom and the alliance was stopped as the groomwanted to go to USA and the respondent's parents were not inclined tosend the respondent abroad. The letter of mutual understandingbetween the respondent’s family and the earlier groom was shown tothe appellant's family.11.
There was no attempt to suppress any fact as alleged bythe appellant. Thereafter, the engagement took place on 02.07.2001at the residence of the appellant and a pooja was performed and somesilver and stainless steel gift items were presented to the appellantby the respondent's family and the respondent was also present in theengagement and she was asked to sing few songs and she sang the samealong with her sister. The marriage was performed on 05.09.2001. During the period of two months from the date of engagement to thedate of marriage, the appellant's family had visited the respondent'sfamily on several occasion and the appellant had occasions topersonally meet and talk to the respondent. Therefore it is notcorrect to state that the appellant was not allowed to meet the https://hcservices.ecourts.gov.in/hcservices/ respondent. When both the families went for purchasing the weddingdresses, the respondent had accompanied them and as such the parentsof the appellant had an occasion to assess the respondent attitudeand mental status.
The appellant had also come to the respondent’shouse to see the wedding dresses and on such occasion also, theappellant was interacting with the respondent.12. At the time of marriage, the appellant was presentedwith gold chain and a costly diamond ring along with the bracelet. The respondent was actively participating in all the events. On thevery same night of the marriage, the nuptials were arranged at thehouse of the appellant. As any other normal girl, the respondent hadthe initial inhibitions and she was also shy and reluctant tointeract with the appellant freely. The new atmosphere and beingbrought up in an orthodox family had made the respondent have herinhibitions initially. However, she had not prevented the appellanteven to touching her as alleged. They were freely discussing witheach other and tried to understand each other and the marriage wasvery much consummated. Both of them went to cinema, temple and beachand their life was perfectly normal, but she was unable to understandthe appellant’s behaviour as he used to get wild if the respondenttalked about her parents or wanted to call up them or to talk to themby phone.
The respondent was effectively prevented from interactingwith her parents. It is not correct to state that the marriage wasperformed against her wishes. The marriage was performed only withher full consent and willingness.13. The next day both of them went to the marriage hall andthe appellant was happily chatting with all the guests who were yetto go back and had his breakfast and lunch in the marriage hallitself and there was no complaint whatsoever from the appellant. Therespondent was taken to Doctor since she complained of pain on herleg as she was standing in the reception whole of the previousevening. Since she was not having proper sleep for about two tothree days her eyes were watering and a little reddish and she wasagain taken to the eye specialist. On 6th and 11th September, therespondent’s parents invited them to their house as some of theirelderly relatives have come there and wanted to see the couple, butthe appellant virtually refused to go to the respondent's house.
On09.09.2001 the respondent's father came to the appellant's house andpersonally invited the appellant to come along with the respondentand his parents to their house as some of the elders of the familywanted to meet them and have lunch with them. At that time, theappellant's mother told the respondent's father that coming from afinancially sound family he could be generous enough to spare a sumof Rs.3 lakhs in order to enable them to buy a flat which is beingused by them as a rented portion. The said demand came to therespondent's father as a bolt from the blue as the respondent'sfather did not expect this. The appellant's mother shouted at therespondent’s father and told him that her son was not a person who https://hcservices.ecourts.gov.in/hcservices/ will merely participate in lunch meetings and they also know how toget their demand complied with and thereafter the respondent's fatherleft the place.
The respondent told her mother-in-law that it is notfair on her part to demand Rs.3 lakhs for the purchase of a flat andfor that the appellant’s mother warned her not to argue with her. 14. On 11.09.2001 the respondent was taken to an eyeDoctor. The respondent requested the appellant to take her to herparent's house at least for about an hour, but the appellant flatlyrefused, which caused great pain to her. The next day the respondentexpressed her disappointment over the appellant's behaviour to herfather-in-law and her father-in-law took her to her parents house, where there was a dialogue between the appellant's father and therespondent's parents and the respondent's parents also expressedtheir unhappiness over the appellant’s behaviour in not visitingtheir house despite being invited by them. There was only anargument and there was no removal of Thali or any other issues asstated by the appellant in the petition.
15. On 14.09.2001 the respondent, her parents and hersister went to the house of the appellant’s grand father forreconciliation as he happens to be a senior member of the family. Only in the light of the advise of the grand father of the appellant, the respondent went back to the matrimonial home and was there until17.09.2001 on which day she was sent along with the maid to herappellant's house. The respondent never spoke incoherently orbehaved abnormally as alleged by the appellant.16. The appellant and his family members have come out witha new charge that the appellant is mentally ill. The respondent'sfather asked them how they can make such an allegation and theywanted her to be taken to a psychiatrist to be checked up and thatwas the reason why she was taken to a psychiatrist Doctor-Mohanraj. As the respondent has no previous history of mental illness of anykind and after examination the Doctor informed the appellant that heshould take care of the respondent and allow her to settle in the newatmosphere without disturbing her or threatening her in any mannerwhich caused anxiety to her.
Suppressing these facts, the appellanthad come out with false allegations.17. On 17.09.2001, as the respondent suffered severestomach pain, she was taken to Dr.Radha Madhavan by her mother-in-law. The respondent suffered with the stomach pain because of hermonthly periods and as she was not able to bear the increasing pain, she was taken to her parent's house with the permission of her in-laws. After reaching home, the respondent’s mother informed theappellant as well as his mother that the respondent was having hermonthly periods she will be sent back in two days time. https://hcservices.ecourts.gov.in/hcservices/
The respondent, as promised by her mother, went to thehouse of the appellant with her younger sister and her parents on20.09.2001. When the door was knocked the respondent’s mother-in-lawshouted opened the door with an unpleasant expression. Therespondent's mother-in-law started shouting at the respondent not togo inside and the stay in the hall itself and the appellant's motherabused the respondent's parents and scolded them badly. She saidthat they are not happy with the respondent and they wanted to takeher to a lady psychiatrist for further checkup. The respondent’sparents told her that unless there is reasonable cause, there is noneed for consulting a psychiatrist. The appellant’s father informedthat they are not interested in keeping the respondent with themuntil she agreed to come for a consultation to a lady psychiatrist, which made the respondent to cry and felt harassed. The entirediscussion ended up in the appellant's parents asking the respondentto take her belongings and go to her parent's house until the issuewas reconciled with the intervention of other family members. Theappellant's mother said that they do not want to keep petty thingswith them giving up their major demand of Rs 3 lakhs towards purchaseof the flat. She further told that the respondent is free to bringback the materials when her father had made ready the cash of Rs.3lakhs. The respondent was thus compelled to take few of thematerials and left the place. The respondent denied the allegationthat she removed her thali twice or that she declared that she wasnot going to stay in the appellant's house. The efforts taken by therespondent's family towards reconciliation failed and the respondentwas sent out of the matrimonial home for the no fault of hers. It isonly the greed of the appellant's parents for money that made them tosend her out of the matrimonial home. The respondent and her parentshad contacted the appellant's parents in person on various occasionsproposing reconciliation and the appellant’s grand father wascontacted in this regard, but all their efforts ended in vain.
The respondent's father approached the appellant’sparents and his grand-father and some common friends explaining tothem the events that took place leading to unnecessarymisunderstandings and prayed for reunion, but this effort has beendescribed as a defamatory campaign. The respondent requested theappellant to come and take her back to his house, but the appellantdid not take her back. All efforts for reunion taken by therespondent's parents had been misconstrued and misinterpreted by theappellant. The respondent sent several letters to the appellant butnone of the letters were replied. The respondent also sent prasadamand photos of poojas performed for their welfare. After waiting fortwo months the well-wishers of the respondent's family membersadvised the respondent to approach "The Jana Nayaka Mathar Sangam",which is a social association that help women in distress. Therespondent approached the Sangam and the Sangam contacted theappellant's parents for appointment to solve the dispute, but thishas been wrongly interpreted by the appellant in his petition. https://hcservices.ecourts.gov.in/hcservices/
On 24.01.2001 the appellant's mother lodged a complaintbefore the All Women Police Station, Adyar, containing false andfrivolous allegations. The respondent and her family were called foran enquiry and during enquiry, they explained the entire factsincluding their attempt to bring about a compromise by approaching"The Jana Nayaka Mathar Sangam" and the failure of the efforts. Itwas informed to the police authorities that the separation hadoccurred in view of the failure on the part of the respondent'sfamily to comply with the demand of dowry to the tune of Rs.3 lakhsand the cruelty the respondent had suffered at the hands of theappellant's family. There was six sittings to reconcile, but thesame did not yield any fruitful result and hence the appellant andthe respondent were advised to seek remedy before the Family Court. Even in her letter, dated 26.11.2001 written by the respondent to theappellant, she has clearly mentioned about the dowry demand. Thereason for separation was not the mental status of the respondent, but because of the dowry demand made by the appellant's family andthe failure to comply with the demand. The respondent, even as onthe date is wearing her Thali and she considered it as a sacred oneand she never removed her Thali as alleged in the petition. Eventhough the appellant applied leave for his honeymoon, he spent hisentire leave at home without taking the respondent anywhere outsidesince the demand for dowry was not meted out. The respondent and herfamily had not suppressed the fact of the earlier engagement and thestoppage of the marriage. Some of the vessels presented to theappellant bear the inscription of the name of V.Ramachandran itselfwhich itself shows that the appellant and his family were aware ofthe earlier engagement and cancellation thereof. The allegation thatthe earlier engagement was annulled on account of unusual characterand mental abnormality of the respondent is false.
The respondent is a graduate, a music lover, haspractice in playing violin and she is a polite, humble and softnatured person and she is a timid girl and this has been abused bythe appellant and his family members. The respondent possessesnormal mental and physical health. She is willing and wants to jointhe appellant and lead a happy matrimonial life with him. She hadnot committed any acts of cruelty as alleged in the petition andthere is no legal, moral or justifiable reason for the appellant toseek divorce.
Pending the petition for divorce the respondent/wifefiled O.P.No.2268 of 2007 for Restitution of Conjugal Rights under Section 9 of the Hindu Marriages Act. In that petition, theaverments contained in the counter statement have been repeated. Thepetition for restitution was contested by the appellant / husband byfiling a counter statement, which virtually contains the avermentscontained in the divorce petition and therefore the same are notbeing repeated. https://hcservices.ecourts.gov.in/hcservices/
Before the Family Court, on the side of the appellant, the appellant was examined as P.W.1, his father was examined as P.W.2and his grand father was examined as P.W.3 and one family friend wasexamined as P.W.4 and Exs.P-1 to P-4 were marked. On the side of therespondent / wife she was examined as R.W.1 and Exs.R-1 to R-9 weremarked. As per the direction of the Family Court, the respondent wasexamined by Dr.Vijay Nagasamy, Psychiatrist and RelationshipConsultant and he was examined as C.W.1 and his report was marked asEx.C-1.
The Family Court, on a consideration of the evidenceadduced before it, granted a decree for divorce on the ground thatthe marriage had not been consummated and it amounted to causingmental cruelty and the appellant's complaint on false ground of dowryharassment also caused mental cruelty and the respondent had desertedthe appellant without any valid reason but held that the allegedmental disorder of the respondent had not been proved andaccordingly, rejected the prayer for divorce on that ground andconsequently the Family Court rejected the petition filed by therespondent / wife for Restitution of Conjugal Rights. Beingaggrieved by that, the above appeals have been filed as stated supra.
Heard the learned counsel on either side and perusedthe materials available on record.
Mr.V.Rangarajan, the learned counsel for therespondent/wife made the following submissions:-a. The case of the husband is that he was not allowedto interact with his wife before the marriage; the wife informedthe husband that the marriage was performed without her consent; she was having childish behaviour; the wife was restless andimpatient during first night; the marriage was not consummatedbetween 5.9.2001 and 17.9.2011; because of the mental disorder of thewife, the husband suffered mental cruelty; because of the policecomplaint lodged by the wife against the husband and his parents, they had to obtain anticipatory bail and the false allegations ofdemand of dowry had caused mental stress and agony, which amounts tomental cruelty; on 20.9.2001 the wife went to the house of thehusband with her sister and parents and abused them in a filthylanguage and the whole ugly scene was witnessed by the neighbourswhich caused great embarrassment to the husband's family membersand their image and reputation was tarnished and at that timethe wife removed her 'mangal suthra' which also caused mentalcruelty; admittedly, the wife was earlier engaged to oneRamachandran but the marriage was stopped and this fact wassuppressed by the wife and her parents; the wife was takingtreatment for her mental disorder for nearly three years beforethe marriage and this fact had been purposefully suppressed and hadthe stoppage of the earlier marriage and the taking of the treatment https://hcservices.ecourts.gov.in/hcservices/ for mental disorder been brought to the knowledge of the husbandand his family, the husband would not have given his consent forthe marriage.
The learned counsel submitted that the allegation ofmental disorder has been disbelieved and rejected by the FamilyCourt, but divorce had been granted on the ground of mentalcruelty mainly believing the incident that took place on 20.9.2001and the suppression of real reason for cancellation of the earliermarriage. The learned counsel submitted that the case of thehusband is that because the wife is suffering from mentaldisorder, it would amount to causing mental cruelty to thehusband. The husband has not separated the grounds of mentalcruelty and mental disorder. But the Family Court wrongly separatedboth the grounds and held that there is mental cruelty and furtherheld that there is no mental disorder.
The learned counsel submitted that the engagementtook place on 2.7.2011 and the marriage took place on 5.9.2001. On7.9.2001 as the wife had leg pain due to the fact that she had tostand for long hours during marriage reception, she was sent to Orthopedic Surgeon Dr.Subramanian; on 11.9.2001 since the wife hadsome eye problem, she was taken to an Ophthalmologist and again on17.9.2001 since she had stomach pain due to menstrual problem, shewas taken to Dr.Radha Madhavan and all the aforesaid treatmentsgiven to the wife are at the instance of the husband's familymembers and the same have been admitted in the pleadings and theevidence but the Family Court has observed that the same have notbeen proved by adducing acceptable evidence by the wife.
The learned counsel submitted that while the FamilyCourt has totally accepted the case of the husband and withouteven referring to the evidence of P.Ws.1 to 4 has simply observedthat the husband's evidence has been corroborated by the evidenceof P.Ws.2 to 4 and the Family Court has totally failed even to referto the evidence of R.W.1 and the documentary evidence adduced byher; even the evidence adduced on the side of the husband has notat all been discussed; only because of the non consideration of theevidence adduced on the side of the wife erroneous findings havebeen recorded by the Family Court.
The learned counsel submitted that though it is thecase of the husband that the wife was restless and impatient andspeaking incoherently , there is absolutely no acceptable evidenceon record and no medical evidence has been adduced and only theinterested witnesses have been examined, namely, his father, grandfather and family friend; even for the occurrence said tohave taken place on 20.9.2001, which was admittedly witnessed by theneighbours, none of the neighbours have been examined and noexplanation has been given for their non examination. https://hcservices.ecourts.gov.in/hcservices/
The learned counsel submitted that even in chiefexamination P.W.1 had stated that because of their tiredness, theywent to sleep on the first night but he has alleged that she had noinclination for cohabitation, which is contrary to the truth.
The evidence of R.W.1/wife clearly proves hereducational qualification, extracurricular activities like vocal, instrumental, painting etc., which will prove that she is neitherimmature nor mentally ill. The learned counsel submitted that itis the case of the husband that there was no proper interactionbetween him and his wife before marriage. But in his crossexamination, he had admitted that after the purchase of weddingdresses for the marriage, he had visited the wife's place twiceand he has also admitted that after the betrothal, he had visitedthe wife's place four or five times, which is contrary to what hehas stated in his petition as well as in his chief examination.
The learned counsel submitted that the husband andthe wife lived together hardly for 12 days and in these twelvedays, the wife suffered leg pain, eye ailment and stomach pain, and in these circumstances, even if there was no consummation of themarriage, the same cannot be a ground for granting divorce. Thewife in her evidence has stated that she is shy in nature and she isso fond of her parents and when such a girl goes to the husband'splace after her marriage it will normally take sometime for her toadapt to such a new environment and circumstances. Had thehusband been affectionate and infused confidence in her withoutmagnifying the small mistakes, if any, on her part, it would havebeen possible for them to live together and consummate the marriage.R.W.1 in her evidence has categorically stated that she is very muchinterested in living with her husband and she had spoken about thesteps taken by her parents to reconcile the differences between thetwo families and the efforts taken to bring about reunion, butoverlooking all these facts, the Family Court has erroneouslyobserved that the wife has not taken any steps for reunion.
It is the case of the husband that the stoppage of theearlier marriage was suppressed whereas in his cross examinationP.W.1 has admitted that he knew about the cancellation of theearlier marriage and the earlier marriage had been stopped as herfamily did not like to send her with the bridegroom to U.S.A. andthat was the reason for the stoppage of the marriage.
The learned counsel submitted that in Ex.R.3 letterwritten by the husband to the wife he had not mentioned anythingabout the alleged suppression of the stoppage of the earliermarriage and the reason for the same. The learned counselsubmitted that even in Ex.R3 letter dated 8.10.2001 sent by thehusband to the wife, the husband has not alleged that the wife issuffering from mental disorder and therefore, submitted that the https://hcservices.ecourts.gov.in/hcservices/ allegation of mental disorder is a newly invented one and statedin the petition for the first time only to make out a ground forseeking divorce.
The learned counsel submitted that though acomplaint was lodged against the parents of the husband, she hadnot sought for any criminal action being taken against them butonly she had sought for reconciliation and on her complaint, no casewas registered and therefore, it cannot be said that a falsecomplaint for dowry demand had been lodged by the wife. The learnedcounsel further submitted that though R.W.1 in her evidence haddeposed about the demand of Rs.3.00 lakhs made by her mother-in-law, it has not been denied by putting a suggestion in her crossexamination. The learned counsel submitted that the mere filingof the complaint for dowry demand will not amount to causingmental cruelty when such complaint has not been found to be false. In this case when admittedly, no criminal case was registered, the Court below has committed an error in holding that the allegedcriminal complaint had caused mental cruelty.
The learned counsel submitted that the husband wasinside the house when the wife and her parents went to the house ofthe husband and as such he could not have witnessed the allegedremoval of Thali by his wife. The learned counsel submitted thatwhen the incident is said to have been witnessed by the neighbours, any one of the neighbours would have been examined to prove theincident but none of the neighbours have been examined and in theabsence of corroborative evidence and only on the basis of theevidence of the interested witnesses, namely, P.Ws.1 to 4, the Courtbelow has held that the wife had removed her 'Thali' which willamount to mental cruelty, which is erroneous.
The learned counsel submitted that when vessels andother gifts were presented to one Ramachandran at the time of Betrothal, the initials of Ramachandran were inscribed in thevessels and as the marriage was cancelled, the vessels and articleswere returned to the wife and the same were presented to the husbandand from that they could have easily found the initials and theywould have asked the wife's family about the initials of some otherperson and therefore, the allegation that the cancellation of theearlier marriage was suppressed cannot be accepted.
The learned counsel submitted that the Family Courthas observed that the receiving of threatening calls from therespondent and her family members would amount to mental cruelty inthe absence of any acceptable proof. Had the Family Courtconsidered the letters written by the wife, it could have seenthat the wife has suffered mental cruelty at the hands of thehusband and his family members and not the husband and his familymembers at the hands of the wife and her family. The learned https://hcservices.ecourts.gov.in/hcservices/ counsel submitted that the evidence of C.W.1 Dr. Vijay Nagasamyclearly proves that the wife is not suffering from any mentaldisorder or any mental illness. Therefore, the Court below isright in rejecting the prayer for divorce on the ground of mentaldisorder. The learned counsel submitted that the wife and herfamily members came to the matrimonial home on 20.9.2001, butit was the husband and his family members who did not allow her tostay in the matrimonial house and sent her back by making ademand of Rs.3.00 lakhs for purchasing a flat. The learned counselsubmitted that several attempts made by the wife and her familymembers for reconciliation and reunion, have gone in vain because ofthe adamant attitude of the husband and his family members and therelevant evidence on this aspect has not at all been considered bythe Family Court, which has resulted in the recording of a erroneousfinding that the wife had not taken any steps for reunion with herhusband. When the wife is not at fault and she had been sent awayfrom the matrimonial home, she is entitled to get a decree for Restitution of Conjugal Rights.
The learned counsel in support of his submissionsrelied on the following decisions:-a. AIR 1982 Calcutta 138b. (1988) 4 SCC 247c. 2003 (2) CTC 760 d. AIR 1988 SC 121e. AIR 1982 Delhi 240f. AIR 2003 Karnataka 357g. AIR 1968 Punjab & Haryana 489h. AIR 1999 Himachal Pradesh 17i. AIR 2007 SC 1426j. (2005) 2 SCC 22 k. AIR 2006 SC 167541. Countering the said submissions, Mr.K.P.Gopalakrishnan, the learned counsel for the appellant/husband made the followingsubmissions:-a. People get married for begetting a child and to havemarital pleasure in the matrimonial life. But in this case, afterthe marriage the wife stayed with her husband only for 12 daysand during that period, there was no conjugal relationship. Evenduring these 12 days, the wife went to her parents house severaltimes. On 17.9.2001 the wife left the matrimonial house with no ideaof return; on 20.9.2001 she returned to her matrimonial home withan idea to pick up a quarrel and after four hours of quarrel usingfoul words by the wife and her parents and threw away her 'Thali'and took all her articles and left the matrimonial home for ever; later, the wife filed a false police complaint against the husbandand his parents as if they demanded dowry, which necessitated the https://hcservices.ecourts.gov.in/hcservices/ filing of a petition for anticipatory bail; there was severalthreatening telephone calls to harass them; the wife made falseallegations in her letters and in her counter and in her restitutionpetition before the Family Court, which points out the complete breakdown of matrimonial life with no chances of living together and nouseful purpose will be served in continuing the matrimonial tie.
The learned counsel submitted that it is a fit casewhere the marriage should be dissolved as the marriage hasirretrievably broken down as per the decisions of the Apex Court. The learned counsel submitted that on the side of the appellant, thehusband was examined as P.W.1 and he gave cogent evidence which wasnot demolished by the respondent/wife. During his chiefexamination, P.W.1 has spoken about the mental condition of hiswife; non consummation of marriage; the incident that took place on20.9.2001 and the removing of Thali by the wife; withholding thefacts with regard to the mental condition of the wife; withholding ofthe reasons for the cancellation of the earlier marriage afterbetrothal and the evidence of P.W.1 has been corroborated by theevidence of his father P.W.2, his grandfather P.W.3 and his familyfriend P.W.4., but their evidence have not been demolished in thecross examination. Their evidence have been properly consideredby the Family Court and only after the consideration of theirevidence the Family Court has rightly granted the the decree fordissolution of marriage on the ground of mental cruelty andtherefore, there is no reason whatsoever to interfere with the wellconsidered judgment of the Family Court.
The learned counsel submitted that at the instance ofthe husband, the wife was examined by Psychiatrist Dr.VijayNagasami and he has submitted a report Ex.C1, wherein he has statedas follows:-"She appears to have been over-protected byboth parents and led an extremely sheltered life withlimited social exposure. ""Her intellectual functioning appeared to beborder line on clinical examinations although no grossmental sub-normality could be detected. ""It is difficult for such a person to leada normal married life. They will require moretraining to lead normal married life. ""By giving proper training it may bepossible for her to work on the relationship. ""She is perfectly rational but less awareas to how to conduct herself in married life. " https://hcservices.ecourts.gov.in/hcservices/ "Under socialised person can lead a normallife if they are given proper training. ""Anitha did not tell me that prior to themarriage she had consulted psychiatrist and that shehas taken medicine. Anitha did not tell me that shehad consulted Psychologist and she was takingmediation for her psychological problems. ""According to my report Anitha issuffering from low self esteem, over protection byher parents, extremely limited interaction withopposite gender, delayed response to questions putto her, undersocialised behaviour problem, frontallobe deficits and border line IQ."
The learned counsel submitted that R.W.1 (wife) hadadmitted in her evidence that she has the mind of a child; she isunder treatment for three years with Dr.Nambi Rajan; she does notknow the names or dosage particulars of the tablets prescribed byDr.Nambi Rajan; she is not interested to have sex and she is notinterested in matrimonial life. According to the learned counsel, all the aforesaid submissions point out to a mental disorder of sucha kind and extent that the appellant/husband cannot be reasonablyexpected to live with the respondent/wife. The report of the doctorC.W.1 also shows that the wife has incomplete development of mindas contemplated in the Act. 45. The learned counsel submits that her mental conditionwas not intimated to the husband and his family members. Similarly, the reasons for cancellation of the earlier marriage wasalso not intimated to the husband and his family members, whichamounts to withholding of vital information concerning the wife thiswould entitle the husband to seek a decree for divorce on the groundof nullity under Section 12(1)(C) of the Hindu Marriage Act.
46. The learned counsel submitted that the Family Courthaving concluded that there was material misrepresentation failed topass a decree of nullity under Section 12(1)(c) of the HinduMarriage Act. The learned counsel submitted that the petition forrestitution of conjugal rights has to be decided separately onmerits. In this case, the husband had not withdrawn from thecompany of his wife, whereas the wife has withdrawn voluntarilyfrom the company of the husband without any reasonable cause andtherefore, she is not entitled for restitution of conjugal rights. 47. In support of the aforesaid submissions, the learnedcounsel relied on the following decisions:- https://hcservices.ecourts.gov.in/hcservices/ a. 2010 1 MLJ 889b. 2009 5 LW 781c. 2009 3 LW 708d. 2009 2 LW 192e. 2009 2 LW 43f. 2009 1 LW 332g. 2008 4 MLJ 1172h. 2008 3 LW 864i. 2007 5 MLJ 1397j. 2007 4 LW 249k. 2007 2 LW 902l. 2006 2 LW 606 m. 2006 2 LW 419n.
2005 4 CTC 287 o. 2005 2 SCC 22p. 2003 4 LW 609q. 2002 2 LW 250 48. We have considered the aforesaid submissions andperused the materials available on record. 49. At the outset we would like to point out that aperusal of the judgment of the Court below shows that the FamilyCourt has not at all referred to and discussed the evidence ofR.W.1 and the documentary evidence adduced on her side. Similarly, the Family Court after referring to the case of thehusband has referred to a part of P.W.1's evidence and has not atall referred to and discussed the evidence of P.Ws.2 to 4 and simplyhas stated that the allegations have also been substantiated byP.Ws.2 to 4. Similarly, as regards the incident that took placeon 20.9.2001 after referring to P.W.1's evidence the Family Courthas observed that the same has been proved. The evidence of P.Ws.2to 4 is neither referred to nor discussed. 50. As far as the alleged telephone calls said to havebeen received by the husband's family, the Family Court has basedreliance on the complaint of the husband's mother with the AllWomens Police Station, Adayar.
The Family Court has not at allreferred to the allegations contained in the complaint lodged by thewife and in fact the complaint was not marked separately. The FamilyCourt has observed that the contention of the wife that due to thephysical ailment of thigh pain, eye pain and stomach pain she was notable to cohabit with the appellant for the said twelve days is notacceptable because there is no supporting medical proof for thesame to the effect that during the said period due to the saidailment she is not in a position to have cohabitation as she wasmedically prevented for the same. The said observation is totallyperverse as the husband himself in his petition as well as in hisevidence admitted that she was treated for the said ailments. Theadmitted fact need not be proved by the wife. Therefore, it is clear https://hcservices.ecourts.gov.in/hcservices/ that the Family Court has not at all applied its judicial mindto the evidence available on record.
Similarly, we would like topoint out that some of the submissions made by Mr.K.P.Gopalakrishnan, learned counsel for the appellant/husband arenot based on any evidence. 51. The following are the admitted and undisputed facts:-a. The betrothal between the appellant and therespondent took place on 12.7.2001. The marriage was solemnised on5.9.2001. The respondent wife complained of leg pain and she wastaken to Orthopedic doctor and was treated and she was advised tocome bak again for a test. On 15.9.2001 at the instance ofappellant's parents, the respondent was taken to PsychiatristDr.Mohan Raj; on 17.9.2001 she had to leave the matrimonial homebecause of stomach pain due to menstural problems; on 20.9.2001 therespondent/wife with her family members went to the matrimonial home; on 24.11.2001 the mother of the appellant/husband filed a falsecomplaint against the respondent/wife and her parents; on25.11.2001 the respondent/wife gave a complaint at All WomensPolice Station, Adayar; but no case was registered; on the basis ofthe both the complaints only counselling was conducted and in thesecircumstances, a petition for dissolution of marriage was filedby the appellant/husband on 25.2.2002.
52. The following alleged acts and omissions on the partof the wife are relied upon by the appellant/husband to contendthat the same caused mental cruelty to him:-a. On the first night, the respondent/wife behavedinappropirately without any enthusiasm; she was restless andimpatient; she behaved strangely and childishly and did not allowthe appellant/husband even to touch her and the marriage was notconsummated; the respondent/wife even on the very first nightinformed the appellant that the marriage was performed against herconsent and will and she was not interested in marrying theappellant; on 12.9.2001 the respondent/wife, who was accompanied bythe appellant's father, left the house to go to Opthal clinic, buton the way she insisted to go to her parents house and on reachingher parents house she changed her mind and refused to go to theclinic and she removed her Thali and refused to leave her parentshouse; on 14.9.2001 the respondent and her parents visited theappellants grandfather's residence and wanted to reconcile the issueand at that time, she spoke incoherently and seemed very restlessand impatient; on 20.9.2001 the respondent/wife and her familymembers came to the appellant's house and they behaved in a veryindecent manner; they abused the appellant and his family members byusing filthy words which caused severe embarrassment to theappellant and his family members as the incident was witnessed bytheir neighbours and passers by; only after four hours they left with https://hcservices.ecourts.gov.in/hcservices/ the articles of the respondent without the knowledge of theappellant and at that time the respondent/wife removed her Thalitwice saying that it was not necessary; on 21.11.2001 repeated phonecalls were received by the appellant and his parents to the effectthat the representatives of women's association would visit theappellant's house and apprehending some trouble, the appellant'sfather gave a complaint with the Abiramapuram Police Station, butnone turned out; on 25.11.2001 the parents of the respondent lodgeda complaint against the appellant and his parents whichnecessitated the appellant for seeking anticipatory bail for him andhis family members; in the complaint false allegations of dowrydemand have been made, which caused great mental cruelty.53.
Ex.R.3 is the letter dated 8.10.2001 written by theappellant/husband to the respondent/wife. In Ex.R3 except thefollowing, nothing has been stated about what happened in the firstnight:-"It is painful to say that the marriage waswrecked on the wedding night itself. The marriage wasnot consummated. "54. Though in Ex.R.3, the appellant has narrated everythingin minute details, he has not stated that the respondent behavedinappropriately without any enthusiasm; she behaved very strangelyand childishly and did not allow the appellant even to touch her; she appeared to be frightened and agitated; she was restless andimpatient; she never allowed the appellant to touch her; on thefirst night, she informed him that her marriage was against herwill and consent and she was not interested in marrying theappellant and therefore, we are of the considered view that theaforesaid allegations made in the petition for divorce do not findplace in Ex.R3 but are only invented for the purpose of thiscase.
When all the other events have been mentioned with minutedetails, if really, the respondent/wife had behaved as alleged bythe husband, he would have mentioned the same in Ex.R.3. Except thenon consummation of the marriage, none of the allegations have beenmentioned in Ex.R3. Therefore, the said allegations appear to beinvented only for the purpose of this case. In fact, P.W.1 inhis chief examination has stated as follows:-"cly; nrhh; thfapUf;fpwJ vd;W mth; brhy; ynt ehd; mtiujhk; gj;;jpa cwtpw;F tw;g[Wj;jtpy; iy55/ Though P.W.1 has stated in his chief examination thatthe respondent/wife told that she is not interested in sexualintercourse, there is no such pleading in the petition. Any amountof oral evidence without pleading cannot be looked into. Similarly, in his chief examination, P.W.1 has stated that before the doctor https://hcservices.ecourts.gov.in/hcservices/ the respondent/wife has stated that she is not interested to have achild.
But there is no such pleading in the petition. 56. It is an admitted fact that on 7.9.2001 therespondent/wife complained of leg pain and the appellant's fathertook her to Dr.M.Subramaniam M.S. (Ortho); on 11.9.2001 shecomplained of eye pain and she was taken by the appellant toDr.Radhika, Ophthalmologist; on 17.9.2001 she complained of severestomach pain and she was taken to Dr.Radha Madhavan by theappellant's mother. The aforesaid facts have been stated in thepetition and have been admitted by P.W.1 in his evidence. But the Family Court has observed that the said allegations have not beenproved by the respondent/wife by adducing medical evidence. Admitted facts need not be proved. This simple proposition of lawthat has not been kept in mind by the Family Court. 57. It is relevant to point out that even in Ex.P.3 dated26.11.2001 the letter written by the respondent/wife to her husbandbefore the filing of the divorce petition, she has stated as follows:-"Regarding our Wedding night (nuptial) youhave to understand that I had entered a new atmosphereof your house and the only other members present inthe house were your mother and sister.
How can a justmarried girl be without shyness, fear and anxiety onher first night. In spite of that, I cooperated fullywith you on the wedding night and all the subsequentnights I stayed with you. ""I have lived with my parents and onlysister for more than 20 years in a very homelyatmosphere. About my timid nature and shybehaviour – my parents have spoken to you and yourparents – you admired my softness and discipline. Your father praised me whenever occasion permittedand I thank him for that. ""I was a darling of my house. It takes sometime for me or my parents to adjust to each one'sabsence. ""Our relations and friends say that newlymarried couple go for honeymoon for developing theirbetter understanding of each other. Till today wenever went anywhere you had decided to stay at homethe whole of your 20 days of leave (granted by youroffice). the local Valluvar Kottam, beach, and a Cinemawere only outings I had with you and where we couldhardly understand each other.
" https://hcservices.ecourts.gov.in/hcservices/ "During the course of conversation yourmother spoke badly at which my father raised a logicpoint that, while your mother has been so fond ofher father who visits your house almost every day. Why you restrict us even talking over phone ? Ialso feel the same. ""Did you not repeatedly utter the word"divorce" in the Cinema Theatre even during theshow was running? A wedded wife is not a use andthrow property . Do you want to justify all youractions of your family members including you andblame my parents for the simple reason of questioningyou all, out of sudden disappointment on yourindifferent attitude?"Apart from this my parents were shockedwhen your parents wanted and demanded 3 Lakhs(Rupees Three Lakhs Only) as they have a plan tobuy your adjacent flat in which your are living forrent. "" Your mother insisted to pay atleast 2Lakhs within a month and the balance after some time.
She also made an indirect threat the happiness oftheir daughter (myself) depends on the response totheir demand. Now I understand that the threat ofdivorce has come directly from you on the inducementof your parents. "58. But the aforesaid averments in the letter dated26.11.2001 have neither been referred to nor denied in the petitionor in the evidence of P.W.1. The respondent in her crossexamination has stated as follows:-ehd; rhJthd bgz;/ kpft[k; mikjpahd bgz;/ bgw; nwhh; fis rhh;e;J ,Ug;ngd;/vdf;F FHe;ij kdJ/59/ In her chief examination also she has stated that withfull mind and heart consented to the marriage and there was noquestion of the marriage being performed against her will. Shehas deposed in her chief examination that at the time of engagementshe was asked to sing songs and she sang some songs. She has alsodeposed that the appellant had come to her house to see the weddingdresses and on that occasion, the appellant interacted with her, butthe same had not been rebutted in the cross examination.
In hercross examination, she has deposed as follows:- https://hcservices.ecourts.gov.in/hcservices/ "v';fSf;Fs; jhk; gj; jpa cwt[ elf; ftpy; iy/ ehd; jhd; Kjyput[ ntz; lhk; vd;W brhy; yptpl; nld;/ ,jw;F vdf;F Tr;r Rghtk; ,Uf;fpwJ/60/ A perusal of the cross examination of R.W.1 showsthat none of the allegations made by P.W.1 in the petition as wellin his evidence as to what had happened during the first night havebeen suggested to R.W.1. It has not even been suggested to R.W.1that the appellant's mother did not demand Rs.3.00 lakhs as dowryfor purchasing a flat. It has also not been suggested to R.W.1that she is suffering from such mental disorder and to such anextent that the appellant cannot reasonably be expected tolive with the respondent. It has not been suggested to her that shetold the appellant that she was not willing for the marriage withthe appellant and she did not like the appellant etc.
61. It is also pertinent to point out that in his chiefexamination itself, the appellant/husband has stated as follows:-vd; id gythwhf Jd;g[Wj;jpajhYk; vjph; kDjhuh; fy; ahzj; jpw;F Vw;wth; myy vd; gjhYk;. giHa epr; rajhk; gyk; ele; jijbrhy; yhjjhYk; mtiug; gw; wp tptu';fs; kiwj; Jtpl; ljhYk;bfhLikgLj;jpajhYk; ehd; tpthfuj;J nfl;L kD jhf; fy; bra; Js;nsd;/ 62. But he has not stated that because of thealleged mental disorder, the respondent wife behaved with him orhis family members in an aggressive manner or indulging in anyviolent act. He has also not even deposed or suggested to R.W.1that because of the mental disorder or mental illness of therespondent/wife it will not be possible for him to live with therespondent/wife any longer. P.W.2 also in his chief examinationhas not mentioned about any abnormal behaviour of therespondent/wife. He has not deposed about the mental status of therespondent/wife and has not stated that at any point of time shebehaved violently and it would not be possible for his son tolive with the respondent because of her mental condition.
P.W.3has also not stated in his evidence about the mental condition ofthe respondent/wife. Though P.Ws.1 to 4 have stated that on20.9.2001, the respondent/wife removed her Thali and thrown on thefloor, the same has not been mentioned in Ex.R.3 letter written bythe appellant to the respondent. In Ex.R3 what he has statedis as follows:-"Just before leaving, you attempted to remove your thalitwice"but there is absolutely no mention about the removal of Thali as spoken by P.Ws.1 to 4 and as stated in the petition. If https://hcservices.ecourts.gov.in/hcservices/ really, the respondent had removed her Thali twice as alleged bythe appellant and the witnesses, the same would have beendefinitely mentioned in Ex.R3. Even in the complaint, dated24.11.2001 lodged by the mother of the appellant, which forms part ofEx.P.4, the alleged removal of Thali by the respondent/wife hasnot been referred to. For Ex.R.3 letter written by the appellant, the respondent/wife sent a detailed reply Ex.P.4, for that no replyhas been received.
It has also not been referred to in the petition. Thus the whole story regarding removal of Thali by the respondentappears to be only an invented reason to make out a case forobtaining a decree for divorce. 63. So, we are of the considered view that if, asalleged by the appellant and other witnesses examined on hisside, the respondent and her family members had indulged in anunruly behavior as alleged and the same had been witnessed by theneighbours at least anyone of the neighbours could have beenexamined, but none have been examined and therefore, in the absenceof any corroboration by any independent witness, we are unable tobelieve the evidence of P.Ws.1 to 4 regarding the alleged incidentthat took place on 20.9.2001. Therefore, the said alleged incidenthas not been proved by adducing acceptable evidence. For theaforesaid reasons, we are unable to accept the evidence of P.Ws.1 to4. 64. In her complaint, dated 25.11.2001 before the SubInspector of Police, Magalir Kaval Nilayam, Adayar, she has mentionedabout the demand made by her mother-in-law for Rs.3.00 lakhs andabout her inability to pay the said amount.
She had referred tothe efforts taken for reconciliation and the refusal to take herback to the matrimonial home. She has also referred to the phonecalls made by her to the appellant. She has also referred to theinvitation extended to the appellant and his family members by theparents of the respondent for Deepavali. She has also mentionedthat she had not done anything or spoken any words to woundtheir feelings and her parents have gone out of their way tosatisfy their un-satiable demand. She has finally only requestedfor the intervention of the Sub Inspector of Police and speak to herin-laws so that rapprochement could be effected and nowhere shehad sought for any criminal action to be taken against herhusband or her in-laws. In fact, as rightly contended by thelearned counsel for the respondent that no case was registeredagainst the appellant and his parents and only counseling wasconducted and as the counseling failed both the parties were advisedto seek appropriate remedy before the civil court.
When therespondent wife had ventilated her grievances in her complaintto the police for which she is legally entitled to, it cannot be saidthat the same will amount to causing mental cruelty to theappellant. Therefore, the finding of the Family Court that thelodging of false complaint as if the appellant and his familymembers had demanded Rs.3.00 lakhs as dowry has caused mental https://hcservices.ecourts.gov.in/hcservices/ cruelty to the appellant is erroneous. In fact, as discussedabove, in the course of cross examination of R.W.1, it has noteven been suggested to her that no demand for Rs.3.00 lakhs asdowry had been made by appellant's mother as spoken to by her inher chief examination. Thus, the said allegation of demand fordowry goes un-rebutted. Therefore, it cannot be said that thefalse allegations have been made by the respondent/wife regardingdemand for dowry. Therefore, in our considered view the allegedacts of cruelty against the appellant have not been proved andtherefore, the Family Court is not right in granting a decreefor divorce on the ground of mental cruelty.
65. As far as the allegation regarding non consummationof marriage is concerned, we are of the considered view that the Court below has not considered the said issue in the properperspective and has not properly considered the evidence of R.W.1and the facts and circumstances of the case. As pointed out above,R.W.1 in her evidence has stated that she is innocent, peaceloving girl, solely depending on her parents and her mind isthat of a child (FHe;ij kdJ). She has also stated in her Ex.P.3letter that the appellant had to understand that she entereda new atmosphere of his house and how can a just married girl bewithout shyness, fear and anxiety on her first night. She was thedarling of her house and it takes sometime either for her or herparents to adjust to each one's absence. 66. She has also pointed out that the appellant availed20 days leave at the time of marriage but he had not taken her forhoneymoon as planned.
Even when they went for a movie, in the cinematheater he had repeatedly uttered the word divorce. Even in ashort period of 12 days, the appellant had threatened to divorcethe respondent and as such, the same would have caused great mentalstress and agony to the respondent. Even during the 12 daysperiod as admitted by the appellant they have lived together onlyfor 6 or 8 days . Had the appellant and his family memberstreated the respondent with love and affection without makingany demand for further dowry and without insisting her parents totake her to a psychiatrist alleging that she is having mentalillness and given an opportunity for her to settle down in thenew environment of the matrimonial home, she would have adapted tothe new environment and the marriage itself would have beenconsummated. Even assuming that the marriage had not beenconsummated, considering the fact that both of them have livedtogether only for 6 or 8 days, the said period cannot be consideredto be a long period for holding that the marriage had not beenconsummated and therefore, it has caused mental cruelty to theappellant as claimed by him.
67. In the decision reported in 2007 (3) CTC 464 (SamarGhosh vs. Jaya Ghosh), the Apex Court culled out illustrations of https://hcservices.ecourts.gov.in/hcservices/ 'Mental Cruelty' in paragraph 102, and laid down as follows:-"(x) The married life should be reviewedas a whole and a few isolated instances over aperiod of years will not amount to cruelty. Theill-conduct must be persistent for a fairly lengthyperiod, where the relationship has deteriorated toan extent that because of the acts and behavior ofa spouse, the wronged party finds it difficult tolive with the other party any longer, may amount tomental cruelty. "(xii) Unilateral decision of refusal tohave intercourse for considerable period withoutthere being any physical incapacity or valid reasonmay amount to mental cruelty. "68. The facts and circumstances of this case and theevidence available on record has to be considered in the light ofthe legal principles laid down by the Apex Court.
As per theabove legal principles, the married life should be reviewed as awhole and a few isolated instances over a period of years willnot amount to "mental cruelty". The ill conduct must bepersistent for a lengthy period. 69. In this case, admittedly, both of them have livedtogether only for a period of 12 days and even during this shortperiod, no act or omission on the part of the respondent which hascaused mental cruelty to the appellant has been established. Itis too short a period to consider that any act on the part of therespondent had caused mental cruelty to the appellant. Similarly, unilateral decision of refusal to have intercourse forconsiderable period without there being any physical incapacity orvalid reason may amount to mental cruelty. Therefore, the refusalto have intercourse should be for a considerable period and thenonly it will amount to mental cruelty. As stated above, within 12 days, both of them lived together only for 6 or 8 daysand during that time even if there was no sexual relationshipbetween them and therefore, the 12 days period cannot be consideredto be a long period and the non consummation of the marriagebetween the appellant and the respondent during this short periodwill not amount to mental cruelty as contended by the learnedcounsel for the appellant/husband.
Therefore, we are unable tosustain the finding of the Family Court on this aspect and hence, the same is set aside. 70. The respondent being a newly married girl andhaving been sent to the matrimonial home from her parental house, she has been totally uprooted from her parents house. She would bein the position of a sapling which has been plucked from the https://hcservices.ecourts.gov.in/hcservices/ nursery and transplanted in some other place. Unless the newlytransplanted sapling is watered and taken proper care of by thegardener or care taker, the newly transplanted sapling will notgrow but it will wither away. Like that a newly married young girlin her matrimonial home will find it difficult to adapt to thenew environment, atmosphere and circumstances and it will take sometime for her to get adapted to the same and for that the love andaffection of the members of the matrimonial home is a must.
Butfrom the evidence adduced in this case, it could be seen thatneither the appellant nor his family members have treated therespondent with love and affection but have started finding faultwith her and have gone to the extent of saying that she ismentally ill and have started demanding dowry from her parentsand insisted her to take treatment for mental disorder with apsychiatrist. The appellant had threatened to divorce herwithin 12 days and he had not taken her for honeymoon though he hadavailed 20 days leave. Thus it is clear that she had not beentreated with love and affection and as admitted by her she is atimid girl and as such it would not be possible for her to adaptto the new atmosphere and environment in the absence of love andaffection from her husband and in-laws and unless she adapts to thenew environment and atmosphere it would not be possible for her tohave sexual intercourse with the appellant.
Therefore, the nonconsummation of the marriage during the short period of 12 days, cannot be a ground for holding that it will amount to causingmental cruelty to the appellant. 71. As has been laid down by a Full Bench of the Apex Courtin the decision reported in AIR 2006 SUPREME COURT 1675 (Naveen Kohliv. Neelu Kohli), to constitute cruelty, the conduct complained ofshould be 'grave and weighty' so as to come to the conclusion thatthe petitioner spouse cannot be reasonably expected to live with theother spouse. It must be something more serious than 'ordinary wearand tear of married life'. The conduct taking into consideration thecircumstances and background has to be examined to reach theconclusion whether the conduct complained of amounts to cruelty inthe matrimonial law. Conduct has to be considered, in the backgroundof several factors such as social status of parties, their education, physical and mental conditions, customs and traditions.
It must beof the type as to satisfy the conscience of the Court that therelationship between the parties had deteriorated to such an extentdue to the conduct of the other spouse that it would be impossiblefor them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. The Courtdealing with the petition for divorce on the ground of cruelty has tobear in mind that the problems before it are those of human beingsand the psychological changes in a spouse's conduct have to be bornein mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind ofanother. But before the conduct can be called cruelty, it must touch https://hcservices.ecourts.gov.in/hcservices/ a certain pitch of severity. It is for the Court to weigh thegravity. It has to be seen whether the conduct was such that noreasonable person would tolerate it.
It has to be considered whetherthe complainant should be called upon to endure as a part of normalhuman life. Every matrimonial conduct, which may cause annoyance tothe other, may not amount to cruelty. The foundation of a soundmarriage is tolerance, adjustment and respecting one another. Tolerance to each other's fault to a certain bearable extent has tobe inherent in every marriage. Petty quibbles, trifling differencesshould not be exaggerated and magnified to destroy what is said tohave been made in heaven. All quarrels must be weighed from thatpoint of view in determining what constitutes cruelty in eachparticular case and as noted above, always keeping in view thephysical and mental conditions of the parties, their character andsocial status. A too technical and hypersensitive approach would becounter productive to the institution of marriage. The Courts do nothave to deal with ideal husbands and ideal wives.
It has to be dealwith particular man and woman before it.72. But unfortunately the Court below has not applied theaforesaid legal principles to the facts of this case whileconsidering the allegation of mental cruelty. We are of theconsidered view that the Family Court has taken a too technical andhypersensitive approach without realising that it would be counterproductive to the institution of marriage. The acts alleged againstthe respondent cannot be said to be such that no reasonable personwould tolerate it. Therefore, we are of the considered view that the Court below is not right in granting a decree of divorce on theground of mental cruelty.73. As far as the alleged suppression of the real reasonfor the cancellation of the earlier marriage after the engagementof the respondent with one Ramachandran is concerned, it has tobe pointed out that in his cross examination, P.W.1 has statedas follows:-"vdJ jpUkzj; jpw;F Kd;g[ vjph; kDjhuUf;F ntW egUld; epr; rak; Md tptuk;. mjhtJ me;j khg; gps; is mbkhpf; fhbry; ytpUe;jjhy; vjph; kDjhuh; mbkhpf; fht[f;F bry;y tpUg;gk; ,y;yhjjhy; me;j jpUkzk; epd; Wtpl;l tptuj; ij v';fs; tPl;lhhplk; vjph; kDjhuh; jug; gpy; TwpaJ vdf; Fj; bjhpa[k;/74/ Thus it is seen that the reason for cancellation ofthe marriage of the respondent earlier fixed with one Ramachandranis that the said Ramachandran after engagement got a job inU.S.A., but the respondent did not like to go to America and thesame had been informed to the parents of the appellant and it wasalso known to P.W.1.
Thus, the very allegation in the petition https://hcservices.ecourts.gov.in/hcservices/ and in the evidence of P.Ws.1 to 3 on this aspect is totallyfalse. Therefore, there is absolutely no suppression of anymaterial fact attracting Section 12(1)(c) of the Hindu MarriageAct for annulling the marriage between the appellant and therespondent. 75. As far as the allegations that the respondent issuffering from mental disorder is concerned, we are of theconsidered view that the said allegation has not been proved andmade out. In this aspect, the submission made by Mr.K.P.Gopalakrishnan, learned counsel for the appellant/husband basingreliance on the report Ex.C1 of C.W.1 cannot be countenanced. 76. What C.W.1 has stated is that it is difficult forsuch a person to lead a normal married life and they will requiremore training to lead normal married life; by giving proper trainingit may be possible for her to work on the relationship; undersocialised persons can lead a normal life if they are givenproper training.
In Ex.C1 report, C.W.1 Doctor has given hisfinal impression as follows:- a. Tmt. J. Anitha does not suffer from anymental disorder as listed in Chapter V of the WorldHealth Organisation's International Classification of Diseases (10th edition 2007 version) or the AmericanPsychiatric Association Diagnostic and StatisticalManual of Mental Disorders (DSM IV -TR). 2. Tmt. J. Anitha manifests BorderlineIntellectual Functioning not amounting to MentalRegradation or Mental Subnormality. 3. Tmt. J. Anitha has deficts in socialskills and abstract thinking that themselves notclinically significant. 4. There is no prima facie evidence thatMs. J. Anitha cannot settle down to satisfactorymarried life if she is provided a conduciveenvironment to do so. 5. Less than two weeks of married lifecannot form basis for a long term decision of anindividual's marriage ability or marital capacity. "77. The aforesaid report shows that the respondent isnot suffering from any mental disorder.
78. In this context, it will be useful to refer to Section 13(1)(iii) of the Hindu Marriage Act, which reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ "13. Divorce (1) xxxxxxxxx(iii) has been incurably of unsound mind, or has been suffering continuously or intermittentlyfrom mental disorder of such a kind and to such anextent that the petitioner cannot reasonably beexpected to live with the respondent. Explanation : - In this Clause - (a) the expression "mental disorder" meansmental illness, arrested or incomplete development ofmind, psychopathic disorder or any other disorder ordisability of mind and includes schizophrenia; (b) the expression "psychopathic disorder"means a persistent disorder or disability of mind(whether or not including sub-normality ofintelligence) which results in abnormally aggressiveor seriously irresponsible conduct on the part ofthe other party, and whether or not it requires oris susceptible to medical treatment; or"79.
The learned counsel for the appellant relied uponthe explanation to Section 13(1)(iii) of the Act, which says thatthe expression "mental disorder" includes incomplete development ofmind and psychopathic disorder. According to the learned counsel asthe medical evidence shows that there is Border Line IntellectualFunctioning IQ 85 which will amount to sub-normality ofintelligence, which would also include 'disability of mind", the Court below is not right in holding that the respondent is notsuffering from any mental disorder, but the said contention cannotbe countenanced for the reason that Explanation 'b' to Section 13(1)(iii) of the Act cannot be read in isolation as sought to be doneby the learned counsel for the appellant but it has to be read as awhole. The expression "psychopathic order" means a persistentdisorder or disability of mind which results in abnormallyaggressive or seriously irresponsible conduct on the part of theother party, and whether or not it requires or is susceptible tomedical treatment.
80. It has to be pointed out that in Ex.R-3-letter written by the appellant to the respondent it has not beenalleged that the respondent / wife is suffering from mental disorder. In Ex.R-3-letter the appellant has stated that noting her behaviouron 12.09.2001 they thought it will be prudent if a psychiatrist isconsulted; on 15.09.2001 she was taken to Dr.Mohan Raj, M.D.,Psychiatrist, at Vantage Plaza, L.B.Road, Adyar, Chennai, by herfather; the Doctor desired to see her with the appellant again inthe same evening; after counseling on the 15th evening at 07.30 pm, the Doctor informed the appellant that she was suffering from overanxiety; he advised the respondent to settle in a new house and https://hcservices.ecourts.gov.in/hcservices/ slowly gain confidence, but it is not stated that the Doctor hadstated that she is suffering from any mental disorder. If really therespondent / wife was suffering from mental disorder and whenadmittedly she had been taken to Dr.Mohan Raj, Psychiatrist, theappellant would have certainly mentioned about the same in Ex.R-3-letter and thus, the non-mentioning of the same shows that theallegation of mental disorder in the petition is only an afterthought and has been invented only as a reason for obtainingdissolution of marriage.
81. In this case we have already pointed out that thereis absolutely no evidence on the side of the appellant that therespondent at any point of time acted in an abnormally aggressiveor seriously irresponsible manner Therefore, the explanation "b"to Section 13(1)(iii) of the Act is not attracted. Further, ithas to be pointed out that admittedly, the respondent is a firstclass B.Com., Graduate and in fact she got admission to M.Com., in Stella Mary's College and she had to discontinue her postgraduation course as her parents wanted to give her in marriage. She has also deposed that she is good at vocal and instrumentalmusic. Further, it has to be pointed out that if she lacks mentaldevelopment or her intelligence is sub-normal or very low, she couldnot have withstood the aggressive cross examination made by theappellant's counsel. A reading of her cross examination shows thatshe had understood all the questions put to her and answeredthem in a normal way.
Therefore, we do not find any abnormalityin her answers. R.W.1's evidence shows that she had taken treatmentfor over anxiety with Dr. Nambi Rajan prior to her marriage and shehas also mentioned about the name of the tablet and strength of themedicine. Therefore, the contention of Mr.K.P.Gopalakrishnan, learnedcounsel for the appellant that the respondent does not even know themedicines taken by her is not correct. There is no evidence to showthat the respondent was treated for mental disorder prior to hermarriage and therefore, there is no suppression of any material factconcerning the respondent/wife as alleged. Therefore, we are of theconsidered view that there is absolutely no evidence to hold thatthe respondent/wife is suffering from mental disorder. It ispertinent to point out that what is required to be proved for thepurpose of Section 13 (1) (iii) of the Hindu Marriage Act, 1955, isthat the respondent / wife is not only suffering from mentaldisorder, but also of such a degree and extent that the appellant /husband cannot reasonably be expected to live with her as her spouse.
We are of the considered view that this has not been made home at allfrom the evidence on record. Therefore, the Court below is right inholding that the alleged mental disorder of the respondent/wife hasnot been proved and has rightly rejected the petition for divorceon the ground of mental disorder. 82. Now let us consider the decisions relied upon by theappellant's counsel:- https://hcservices.ecourts.gov.in/hcservices/ a. In the decision reported in (2010) 1 MLJ 889 (T.Narayanasamy vs. N. Kaleeswari), the learned Single Judge of this Court has come to the conclusion that the parties have beencontinuously living separately without sincere attempt or anyintention to have reunion between them and therefore, thecontinuance or allowing the existence of marriage between themwill not serve any purpose and hence, their marital relationshiphas to be put to an end by dissolving their marriage and has alsocome to the further conclusion that the marriage has broken downirretrievably and on that ground a decree for divorce has beengranted.
But in this case, the respondent/wife had taken seriousefforts as could be seen from her letters to her husband and in-laws and her evidence. Moreover, irretrievable break down ofmarriage being not a ground enumerated under section 13 of the Act,a decree for divorce cannot be granted on that ground. b. In N. Shankar vs. S.Saraswathi (2009-5-L.W-781), the Division Bench of this Court has held that the denial of maritalcomforts to each other for a long period of life undoubtedly willlead to mental cruelty. Further, the Division Bench has held thatreckless and serious allegations regarding extra marital affairswill amount to mental cruelty. Therefore, the facts of that case aretotally different from the facts of the case on hand and hence, thesaid decision is not applicable to the case on hand. c. In D. Nagappan vs. T. Virgin Rani (2009-3-L.W.708),the Division Bench has held that a false allegation of illicitintimacy against the husband will amount to mental cruelty.
But inthe case on hand such allegations have not been made by either ofthem. Therefore, the said decision is not applicable to the caseon hand. In the very same decision, it has been further heldthat the Family Court should independently examine the facts ineach case before granting the prayer for divorce as well as therestitution of conjugal rights. The said principle will beconsidered at the time of considering the appeal filed by therespondent/wife against the dismissal of her petition for therestitution of conjugal rights. d. In the decision reported in 2009-2-L.W.192 (SatishSitole vs. Smt. Ganga) by invoking its power under Article 142 of the Constitution of India, the Apex Court dissolved the marriage on theground that the marriage has irretrievably broken down. Therefore, the said decision is not applicable to the facts of the case onhand. e. Since the facts of the case in the decision reported in2009-2-L.W.43 (C. Anantha Jeyakumar vs.
C. Murugapriya) are totallydifferent from the facts of the case on hand, the said decision isnot applicable to the case on hand. https://hcservices.ecourts.gov.in/hcservices/ f. Since in the decision reported in (2008) 4 MLJ 1172 (R.Anand vs. P.Indu), the allegations about the dowry harassment werefound to be false, the learned Single Judge has held that it willamount to mental cruelty. But in the case on hand, theallegations about the dowry demand have not been found to be falseand in fact, the same has been substantiated and therefore, thesaid decision is not applicable to the case on hand. g. On the basis of the facts, the Division Bench of this Court in the decision reported in 2008-3-L.W.864 (Dr.Gopal Ramanathanvs. Jayashree) has come to the conclusion that the marriage hasbroken down irretrievably and the husband and wife were livingseparately for 20 years and on that ground the marriage wasdissolved.
The facts of that case are totally different from thefacts of the case on hand and therefore, the same is not applicable. h. Similarly, in the decision reported in (2007) 5 MLJ1397 (N.Subramani vs. T.Shanta), the decree for dissolution wasgranted on the ground that the marriage has irretrievably brokendown and therefore, the said decision is not applicable to the caseon hand. i. In Smt. Mayadevi vs. Jagdish Prasad (2007-4-L.W.-249), the Apex Court on the facts of that case came to theconclusion that the husband was subjected to physical and mentalcruelty by the wife and on that ground the decree for divorce wasgranted. But in this case, we have already discussed and pointed outthat the alleged acts of mental cruelty have not been establishedand therefore, the said decision is not applicable to the facts ofthe case on hand. j. The decision in A. Viswanathan vs. G. Lakshmi @ Seetha(2007-2-L.W.902) is not applicable to the facts of the case on hand. k.
In the decision reported in 2006-2-L.W.606 (Naveen Kohlivs. Neelu Kohli), the Full Bench of the Apex Court on aconsideration of the facts and evidence of that case came to theconclusion that the mental cruelty as alleged by the husband hadbeen established and further held that the marriage was totally deadand taking into consideration of the extraordinary facts andcircumstances of that case dissolved the marriage between the partiesby directing the appellant to pay Rs.25,00,000/- to the respondenttowards maintenance. In that decision, the Apex Court hadrecommended to the Union of India to seriously consider bringing anamendment in the Hindu Marriage Act, 1955 to incorporateirretrievable breakdown of marriage as a ground for the grant ofdivorce. But the Hon'ble Apex Court has not granted decree ofdivorce on the ground of irretrievable breakdown of marriage andtherefore, the said decision is not applicable. https://hcservices.ecourts.gov.in/hcservices/ l.
In the decision reported in 2006-2-L.W.419 (VinitaSaxena vs. Pankaj Pandit), the Apex Court has considered what ismental disorder and when it will amount to cruelty. In that case, the Apex Court has come to the conclusion that the medical evidencehas proved the mental disorder of the respondent beyond doubt. The Apex Court has pointed out that Schizophrenia is one of the mostdangerous/damaging form of mental disorder and on that ground thedecree for divorce was granted and therefore, the facts of thatcase are totally different from the facts of the case on hand andtherefore, the said decision is not applicable to this case. m. In Durga Prasanna Tripathy vs Arundhati Tripathy (2005(4) CTC 287), on the ground of irretrievable break down of marriage, the decree for divorce by exercising the powers under Article 142 ofthe Constitution of India was granted by the Apex Court andtherefore, the said decision is not applicable to the case on hand. n.
In A. Jayachandra vs. Aneel Kaur ((2005) 2 SCC 22),the Apex Court has laid down that what will constitute mentalcruelty. In that case, the wife used abusive language and madeallegations of adultery against the husband and the Apex Court hasheld that it will amount to causing mental cruelty. Therefore, thesaid decision is not applicable to the facts of this case as thefacts of that case are totally different. o. In the decision reported in 2003-4-L.W.-609 (VijayakumarRamachandra Bhate vs. Neela Vijaykumar Bhate), the Apex Court hasheld that the averments, accusations and character assassination ofwife made by the appellant/husband in the written statement willamount to mental cruelty for sustaining her claim for divorceunder Section 13(1)(i-a) of the Act. In this case, no such groundis available and therefore, the said decision is not applicable tothe facts of this case. p. The facts of the case in P. Natarajan vs.
Thamizmani(2002-2-L.W.250) and the facts of this case are totally differentand therefore, the said decision is not applicable to the case onhand. 83. The issue that remains to be considered is as towhether the Family Court is right in dismissing O.P.No.2268 of 2007filed by the respondent / wife under Section 9 of the Hindu MarriageAct seeking Restitution of Conjugal Rights. 84. The Court below, in its judgment, has observed that therespondent for the past eight years had deserted the appellantwithout any valid reasons and there is no chance for reunion betweenthe appellant and the respondent considering the facts andcircumstances of the case. It has further observed that therespondent / wife has not taken any steps for reunion and therefore https://hcservices.ecourts.gov.in/hcservices/ she is not entitled for the relief of Restitution of Conjugal Rights.85. The aforesaid observation have been made by the Courtbelow without even discussing the oral evidence of R.W.1 and thedocumentary evidence adduced by her.
Ex.P-3 is the letter, dated26.11.2001 written by the respondent / wife to her husband /appellant, as a reply to Ex.R-3-letter written by her husband on08.10.2011, wherein, she has point-by-point replied her husband'sallegations and she has mentioned that her parents' visited the bankand met an official there to initiate efforts for reunion between thefamilies and not to spoil the image of the appellant and she has alsomentioned that her parents have been making all efforts to settle thematter amicably. She has expressed her hope that the appellant willtake her into his hold as she has clearly explained to him all thepoints he had raised. Ex.R-7 is a letter, dated 06.10.2001 writtenby the respondent to her in-laws wherein she has mentioned that shehad been waiting for them to come as they had told of their arrivalto take her back. Ex.R-8 is another letter written by the respondent/ wife to her husband / the appellant herein on 08.02.2002.
It hasbeen written in a friendly manner enquiring about his official visitto Madurai and informing him about the Homam and Abishegam performedin various temples and she has enclosed the prasadam to him and inthe concluding portion of the letter, she has written as follows:-“I pray Almighty to restore happiness in our life. Myrespects to father, mother and grandfather”. Ex.R-9 is another letter, dated 26.02.2002 written by therespondent / wife to her husband / appellant herein wherein she hasmentioned that he had not replied to her earlier letters. She hasrequested the appellant to come to her house to take her with him. She has further stated as follows:-“I still pray for a fine understanding of our familiesand enable us to live in harmony and peace”.86. As rightly submitted by Mr.Rangarajan, learned counselfor the respondent, that R.W.1 in her evidence has categoricallystated that she is very much interested in living with her husbandand has spoken to about the steps taken by her parents to reconcilethe differences between the two families and the efforts taken tobring about reunion.
But unfortunately the Court below has totallyoverlooked all these facts and has not cared even to look at theevidence of R.W.1 and letters written by her to her husband much lessto discuss the same.87. The aforesaid letters written by the respondent / wifeto her husband / appellant and her in-laws make it abundantly clearthat she was always wanting and willing to go back to the matrimonialhome, but there was no response from the appellant's side. Whereas https://hcservices.ecourts.gov.in/hcservices/ there is no evidence on the side of the appellant / husband to showthat the appellant took any efforts to take her back to thematrimonial home. The evidence on record clearly shows that evenduring the twelve days both of them lived together the appellant hadthreatened the respondent that he will divorce her. The demand fordowry of Rs.3 lakhs by the mother of the appellant seems to be themain reason for the separation, but in spite of this, the respondentwants to live with the appellant.
But overlooking all these factsand evidence, the Court below has erroneously come to the conclusionthat the respondent had not taken any steps for reunion. The saidfinding of the Court below and the finding that the respondent haddeserted the appellant without any cause is perverse and not based onany evidence and accordingly the said findings are set-aside.88. We are constrained to observe that only because of theperverse and unsustainable order passed by the Court below, the lifeof two youngsters have been ruined for the past nine years. Had the Family Court considered the entire evidence, in the light of the wellsettled legal principles as stated above, the Court below would nothave dissolved the marriage between the appellant and the respondentand in that event, there would have been a possibility for theirreunion. But even now, it is not too late for the appellant and therespondent to calmly think about it, reunite and lead a peaceful lifesince there are no irreconcilable differences between the appellantand the respondent.
Therefore, we hope and believe that theappellant and the respondent and more particularly the parents of theappellant will take sincere steps for their reunion.89. The respondent / wife had not deserted the appellant /husband as observed by the Court below. Therefore, the respondent /wife is entitled for the relief of Restitution of Conjugal Rights andaccordingly, the order and decretal order of the Family Court, dismissing O.P.No.2268 of 2007, is set-aside. For the aforesaid reasons, CMA Nos.902 and 903 of 2010filed by the respondent / wife stand allowed and CMA No.2407 of 2010filed by the appellant / husband stands dismissed. However, therewill be no order as to costs. Connected M.P. is closed. Sd/ Asst. Registrar //True Copy// Sub. Asst. Registrarsrk https://hcservices.ecourts.gov.in/hcservices/ To1.The Principal Family Court, Chennai. 2. The Section Officer, V.R.Section, High Court, Madras.4 cc to Mr. K.P.Gopalakrishnan, Advocate, Sr.No.132311 cc to Mr.V.Rangarajan , Advocate, Sr.No.13317C.M.A.Nos.902, 903 and 2407 of 2010and M.P.No.2 of 2010nm(co)pmk.5.3.2012
Questions this judgment answers
Which statutory provisions did this judgment involve?
Family Courts Act — s. 19; Hindu Marriages Act, 1955; Hindu Marriages Act — s. 9; Hindu Marriage Act, 1955 — ss. 12(1)(C), 13(1)(iii).
Which court decided this case, and when?
Madras High Court, on 27 Feb 2012. The bench was K MOHAN RAM.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.