Tmt. Bhuvaneswari @ Sharmila v. M. Prabakaran

common order has been passed by the trial Court. The trial Court hasresultantly dismissed O.P.No.1915 of 2004 filed by the Appellant/Wifeon the ground of cruelty and desertion and permanent alimony.However, she was given the permanent custody of the minor child,Moniessh.5. In regard to F.C.O.P.No.1099 of 2005 filed by the Respondent/Husband praying for restitution of conjugal rights as per Section 9of the Hindu Marriage Act, the trial Court has partly allowed thepetition and directed the Appellant/Wife to restore to theRespondent/Husband all the comforts and bliss of married lifeimmediately. As regards the permanent custody of the minor child, itwas given to the Appellant/Wife. However, the Respondent/ Husband wasgranted the visitation rights once in a month on the second Sunday ofevery month near the Fire Station situated in the High Court Campusand the Appellant/Wife was directed to produce the child at 10.30a.m. and taken back the child at 4.00 p.m.6. Being dissatisfied with the dismissal of the O.P.No.1915 of2004, the Appellant/Wife has filed C.M.A.No.3994 of 2008 and asregards O.P.No.1099 of 2005 filed by the Respondent/Husband, sincethe trial Court has partly allowed the said original petition, theAppellant/Wife has preferred C.M.A.No.3993 of 2008.7. The points that arise for determination in C.M.A. No.3994of 2008 are:"(i) Whether the Appellant/Wife is entitledto claim the relief of Dissolution of Marriagedated 25.05.2001 on the ground of Cruelty andDesertion? (ii) Also whether the Appellant/Wife isentitled to claim the monthly permanent alimonyof Rs.10,000/- from the Respondent/Husband?The Point that arises for consideration in C.M.A.No.3993 of 2008 is:"Whether the Respondent/Husband inF.C.O.P.No.1099 of 2005 is entitled to claim therelief of Restitution of Conjugal Rights?” 8. It is the contention of the learned counsel for theAppellant/Wife that the Family Court has treated the characterassassination, doubting the fidelity, surveillance in thematrimonial house etc. as normal happenings in a house and hasconcluded that these are not cruelty by the respondent or his familymembers.9. According to the learned counsel for the Appellant/Wife, thetrial Court has failed to discuss the evidence of the Appellant/ https://hcservices.ecourts.gov.in/hcservices/ Wife, instead has rejected the same as normal happenings in everyhouse.10. It is the case of the Appellant/Wife that in spite ofnumerous endeavours, the Respondent/Husband refused to take back theAppellant/Wife and therefore, it is a clear case of desertion, whichhas not been taken note of by the trial Court in a proper and realperspective.11. Advancing his arguments, the learned counsel for theAppellant/Wife submitted that when there has been no evidence asregards the payment and maintenance by the Respondent/Husband, thetrial Court has erroneously assumed as if the Respondent/ Husband hasbeen paying maintenance and concluded that the Respondent/Husband hasnot deserted the Appellant/Wife and their son.12. Expatiating the submission, it is the contention of thelearned counsel for the Appellant/Wife that the trial Court hasfailed to take into account that the fact of cruelty of theRespondent/Husband in the family as far as torturing his wife byindulging in her character assassination has been proved beyond doubt.13. The learned counsel for the Appellant/Wife invites theattention of this Court as far as the desertion of the Appellant/Wifeis concerned, the marriage between the parties took place on25.05.2001 and that the Respondent/Husband took the Appellant/ Wifeto her parents house on 10.11.2001 under the guise of 'ThalaiDeepavali' and thereafter, the Respondent/Husband had not cared evento speak to the Appellant/Wife, leave alone visiting her till thefiling of the petition on 20.08.2004. Also when the Appellant/ Wifewas pregnant, she was thrown out of her matrimonial home anddelivered the child on 17.06.2002. Notwithstanding the fact, theRespondent/Husband was informed of the delivery of the child, heneglected to maintain the Appellant/Wife and also the child. Thesefacts were not repudiated or contradicted by the Respondent/Husband,according to the learned counsel for the Appellant/Wife. Therefore,it is a clear case of desertion. However, these aspects of thematter have not been adverted to by the trial Court.14. The learned counsel for the Appellant/Wife submits that theAppellant/Wife was asked to do all the household chores without theassistance of any other family members and servant maids and in fact,there were two servant maids before the marriage that took placebetween the parties, but as soon as the Appellant/Wife entered thematrimonial home, the servant maids were stopped from service and theAppellant/Wife was asked to do all the household chores and at times,even odd jobs like lifting the filled gas cylinder.15. The learned counsel for the Appellant/Wife contends thatwhen the Appellant/Wife was three months pregnant, theRespondent/Husband deserted her and he had not taken any care or https://hcservices.ecourts.gov.in/hcservices/ shown interest on the child till the child was 4 ½ years old. Onlyafter the Appellant/Wife filing O.P.No.1915 of 2004, seeking therelief of divorce and child custody, the Respondent/Husband showedinterest on the child. Another important fact that the trial Courthad ignored to take into consideration is the fact that theRespondent/Husband had filed a petition in F.C.O.P.No.1099 of 2005for restitution of conjugal rights only to thwart the Appellant/ Wifeobtaining an order of divorce. 16. Before the trial Court, on the side of the Appellant/Wife,witnesses, P.Ws.1 and 2 were examined and Exs.P-1 to P-8 were marked.On the side of the Respondent/Husband, witnesses, R.Ws.1 to 3 wereexamined and Exs.R-1 to R-36 were marked.17. It is not in dispute that the marriage between the partiestook place on 25.05.2001. It is the case of the Appellant/Wife thatwhenever she went to the temple, she was followed by her mother-in-law and suddenly she was kept under surveillance by theRespondent/Husband's side and it amounted to cruelty. Also theRespondent/Husband, in his evidence, had clearly admitted that he hadobtained the salary certificate of the Appellant/Wife through aDetective Agency and this also would go to show that theAppellant/Wife was given the treatment of cruelty by theRespondent/Husband.18. At this juncture, the learned counsel for the Appellant/Wife cites the decision of the Hon'ble Supreme Court reported inSamar Ghosh -vs- Jaya Ghosh [(2007) 4 Supreme Court Cases 511],wherein it has been observed at Page Nos.511 and 512 that “there hasbeen a long period of continuous separation, it may fairly beconcluded that the matrimonial bond is beyond repair.” Further it isalso observed that “by refusing to sever the marriage tie, the lawinn such cases does not serve the sanctity of marriage. On thecontrary, it shows scant regard for the feelings and emotions of theparties. In such like situations, it may lead to mental crueltyetc. and the irresistible conclusion would be that the matrimonialbond had been ruptured beyond repair because of the mental crueltycaused by the respondent and this was a clear case of irretrievablebreakdown of marriage.” Moreover, the Hon'ble Supreme Court opinedthat “they can never be any straightjacket formula or fixedparameters for determining mental cruelty in matrimonial matters.19. The Hon'ble Supreme Court in the aforesaid decision at pageNos.529 to 536 has observed as follows:-"39. The Shorter Oxford Dictionary defines 'cruelty'as 'the quality of being cruel; disposition of inflictingsuffering; delight in or indifference to another's pain;mercilessness; hard-heartedness'. https://hcservices.ecourts.gov.in/hcservices/

40.The term "mental cruelty" has been defined in theBlack's Law Dictionary [8th Edition, 2004] as under: "Mental Cruelty - As a ground for divorce,one spouse's course of conduct (not involvingactual violence) that creates such anguish thatit endangers the life, physical health, ormental health of the other spouse."41. The concept of cruelty has been summarized inHalsbury's Laws of England [Vol.13, 4th Edition Para 1269]as under:"The general rule in all cases of cruelty isthat the entire matrimonial relationship must beconsidered, and that rule is of special valuewhen the cruelty consists not of violent acts butof injurious reproaches, complaints, accusationsor taunts. In cases where no violence is averred,it is undesirable to consider judicialpronouncements with a view to creating certaincategories of acts or conduct as having orlacking the nature or quality which renders themcapable or incapable in all circumstances ofamounting to cruelty; for it is the effect of theconduct rather than its nature which is ofparamount importance in assessing a complaint ofcruelty. Whether one spouse has been guilty ofcruelty to the other is essentially a question offact and previously decided cases have little, ifany, value. The court should bear in mind thephysical and mental condition of the parties aswell as their social status, and should considerthe impact of the personality and conduct of onespouse on the mind of the other, weighing allincidents and quarrels between the spouses fromthat point of view; further, the conduct allegedmust be examined in the light of thecomplainant's capacity for endurance and theextent to which that capacity is known to theother spouse. Malevolent intention is notessential to cruelty but it is an importantelement where it exits." 42. In 24 American Jurisprudence 2d, the term "mentalcruelty" has been defined as under:"Mental Cruelty as a course of unprovokedconduct toward one's spouse which causesembarrassment, humiliation, and anguish so as to https://hcservices.ecourts.gov.in/hcservices/ render the spouse's life miserable andunendurable. The plaintiff must show a course ofconduct on the part of the defendant which soendangers the physical or mental health of theplaintiff as to render continued cohabitationunsafe or improper, although the plaintiff neednot establish actual instances of physical abuse."43. In the instant case, our main endeavour would beto define broad parameters of the concept of 'mentalcruelty'. Thereafter, we would strive to determine whetherthe instances of mental cruelty enumerated in this case bythe appellant would cumulatively be adequate to grant adecree of divorce on the ground of mental crueltyaccording to the settled legal position as crystallized bya number of cases of this Court and other Courts.44. This Court has had an occasion to examine indetail the position of mental cruelty in N.G. Dastane v.S. Dastane reported in (1975) 2 SCC 326 at page 337, para30 observed as under :-"The enquiry therefore has to be whether theconduct charges as cruelty is of such a characteras to cause in the mind of the petitioner areasonable apprehension that it will be harmfulor injurious for him to live with therespondent." 45. In the case of Sirajmohmedkhan Janmohamadkhan v.Haizunnisa Yasinkhan & Anr. reported in (1981) 4 SCC250:1981 SCC (Cri) 829, this Court stated that the conceptof legal cruelty changes according to the changes andadvancement of social concept and standards of living. Withthe advancement of our social conceptions, this feature hasobtained legislative recognition, that a second marriage isa sufficient ground for separate residence and maintenance.Moreover, to establish legal cruelty, it is not necessarythat physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, studiedneglect, indifference on the part of the husband, and anassertion on the part of the husband that the wife isunchaste are all factors which lead to mental or legalcruelty. 46. In the case of Shobha Rani v. Madhukar Reddireported in (1988) 1 SCC 105: 1988 SCC (Cri) 60, this Courthad an occasion to examine the concept of cruelty. The word'cruelty' has not been defined in the Hindu Marriage Act.It has been used in Section 13(1)(i)(a) of the Act in the https://hcservices.ecourts.gov.in/hcservices/ context of human conduct or behaviour in relation to or inrespect of matrimonial duties or obligations. It is acourse of conduct of one which is adversely affecting theother. The cruelty may be mental or physical, intentionalor unintentional. If it is physical, it is a question offact and degree. If it is mental, the enquiry must begin asto the nature of the cruel treatment and then as to theimpact of such treatment on the mind of the spouse. Whetherit caused reasonable apprehension that it would be harmfulor injurious to live with the other, ultimately, is amatter of inference to be drawn by taking into account thenature of the conduct and its effect on the complainingspouse. There may, however, be cases where the conductcomplained of itself is bad enough and per se unlawful orillegal. Then the impact or the injurious effect on theother spouse need not be enquired into or considered. Insuch cases, the cruelty will be established if the conductitself is proved or admitted. The absence of intentionshould not make any difference in the case, if by ordinarysense in human affairs, the act complained of couldotherwise be regarded as cruelty. Intention is not anecessary element in cruelty. The relief to the partycannot be denied on the ground that there has been nodeliberate or wilful ill-treatment.47.In Rajani v. Subramonian AIR 1990 Ker. 1, the Courtaptly observed that the concept of cruelty depends upon thetype of life the parties are accustomed to or theireconomic and social conditions, their culture and humanvalues to which they attach importance, judged by standardof modern civilization in the background of the culturalheritage and traditions of our society. 48. Again, this Court had an occasion to examine ingreat detail the concept of mental cruelty. In the case ofV. Bhagat v. D. Bhagat (Mrs.) reported in (1994) 1 SCC 337,the Court observed, in para 16 at page 347, as under:"16. Mental cruelty in Section 13(1) (i-a) canbroadly be defined as that conduct which inflictsupon the other party such mental pain andsuffering as would make it not possible for thatparty to live with the other. In other words,mental cruelty must be of such a nature that theparties cannot reasonably be expected to livetogether. The situation must be such that thewronged party cannot reasonably be asked to putup with such conduct and continue to live withthe other party. It is not necessary to provethat the mental cruelty is such as to causeinjury to the health of the petitioner. While https://hcservices.ecourts.gov.in/hcservices/ arriving at such conclusion, regard must be hadto the social status, educational level of theparties, the society they move in, thepossibility or otherwise of the parties everliving together in case they are already livingapart and all other relevant facts andcircumstances which it is neither possible nordesirable to set out exhaustively. What iscruelty in one case may not amount to cruelty inanother case. It is a matter to be determined ineach case having regard to the facts andcircumstances of that case. If it is a case ofaccusations and allegations, regard must also behad to the context in which they were made."49. This Court aptly observed in Chetan Dass v. KamlaDevi reported in (2001) 4 SCC 250, para 14 at pp.258-259,as under:"Matrimonial matters are matters of delicatehuman and emotional relationship. It demandsmutual trust, regard, respect, love and affectionwith sufficient play for reasonable adjustmentswith the spouse. The relationship has to conformto the social norms as well. The matrimonialconduct has now come to be governed by statuteframed, keeping in view such norms and changedsocial order. It is sought to be controlled inthe interest of the individuals as well as inbroader perspective, for regulating matrimonialnorms for making of a well-knit, healthy and nota disturbed and porous society. The institutionof marriage occupies an important place and roleto play in the society, in general. Therefore, itwould not be appropriate to apply any submissionof "irretrievably broken marriage" as astraitjacket formula for grant of relief ofdivorce. This aspect has to be considered in thebackground of the other facts and circumstancesof the case."50. In Savitri Pandey v. Prem Chandra Pandey reportedin (2002) 2 SCC 73, the Court stated as under: "Mental cruelty is the conduct of otherspouse which causes mental suffering or fear tothe matrimonial life of the other. "Cruelty",therefore, postulates a treatment of thepetitioner with such cruelty as to cause areasonable apprehension in his or her mind that https://hcservices.ecourts.gov.in/hcservices/ it would be harmful or injurious for thepetitioner to live with the other party. Cruelty,however, has to be distinguished from theordinary wear and tear of family life. It cannotbe decided on the basis of the sensitivity of thepetitioner and has to be adjudged on the basis ofthe course of conduct which would, in general, bedangerous for a spouse to live with the other." 51.This Court in the case of Gananath Pattnaik v. Stateof Orissa reported in (2002) 2 SCC 619: 2002 SCC (Cri) 461,observed as under:"The concept of cruelty and its effect variesfrom individual to individual, also depending uponthe social and economic status to which suchperson belongs. "Cruelty" for the purposes ofconstituting the offence under the aforesaidsection need not be physical. Even mental tortureor abnormal behaviour may amount to cruelty andharassment in a given case." 52. The mental cruelty has also been examined by thisCourt in Parveen Mehta v. Inderjit Mehta reported in (2002)5 SCC 706 at pp.716-17 [para 21] which reads as under:"21. Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by onespouse towards the other, which causes reasonableapprehension in the mind of the latter that it isnot safe for him or her to continue thematrimonial relationship with the other. Mentalcruelty is a state of mind and feeling with oneof the spouses due to the behaviour orbehavioural pattern by the other. Unlike the caseof physical cruelty, mental cruelty is difficultto establish by direct evidence. It isnecessarily a matter of inference to be drawnfrom the facts and circumstances of the case. Afeeling of anguish, disappointment andfrustration in one spouse caused by the conductof the other can only be appreciated on assessingthe attending facts and circumstances in whichthe two partners of matrimonial life have beenliving. The inference has to be drawn from theattending facts and circumstances takencumulatively. In case of mental cruelty it willnot be a correct approach to take an instance ofmisbehaviour in isolation and then pose thequestion whether such behaviour is sufficient by https://hcservices.ecourts.gov.in/hcservices/ itself to cause mental cruelty. The approachshould be to take the cumulative effect of thefacts and circumstances emerging from theevidence on record and then draw a fair inferencewhether the petitioner in the divorce petitionhas been subjected to mental cruelty due toconduct of the other."53. In this case the Court also stated that so manyyears have elapsed since the spouses parted company. Inthese circumstances it can be reasonably inferred that themarriage between the parties has broken down irretrievably.54. In A. Jayachandra v. Aneel Kaur reported in (2005)2 SCC 22, the Court observed as under:(Paras.10, 12 & 13) "10.The expression "cruelty" has not beendefined in the Act. Cruelty can be physical ormental. Cruelty which is a ground for dissolutionof marriage may be defined as wilful andunjustifiable conduct of such character as tocause danger to life, limb or health, bodily ormental, or as to give rise to a reasonableapprehension of such a danger. The question ofmental cruelty has to be considered in the lightof the norms of marital ties of the particularsociety to which the parties belong, their socialvalues, status, environment in which they live.Cruelty, as noted above, includes mental cruelty,which falls within the purview of a matrimonialwrong. Cruelty need not be physical. If from theconduct of the spouse, same is established and/oran inference can be legitimately drawn that thetreatment of the spouse is such that it causes anapprehension in the mind of the other spouse,about his or her mental welfare then this conductamounts to cruelty. In a delicate humanrelationship like matrimony, one has to see theprobabilities of the case. The concept proofbeyond the shadow of doubt, is to be applied tocriminal trials and not to civil matters andcertainly not to matters of such delicate personalrelationship as those of husband and wife.Therefore, one has to see what are theprobabilities in a case and legal cruelty has tobe found out, not merely as a matter of fact, butas the effect on the mind of the complainantspouse because of the acts or omissions of theother. Cruelty may be physical or corporeal or maybe mental. In physical cruelty, there can betangible and direct evidence, but in the case of https://hcservices.ecourts.gov.in/hcservices/ mental cruelty there may not at the same time bedirect evidence. In cases where there is no directevidence, Courts are required to probe into themental process and mental effect of incidents thatare brought out in evidence. It is in this viewthat one has to consider the evidence inmatrimonial disputes.12.To constitute cruelty, the conductcomplained of should be "grave and weighty" so asto come to the conclusion that the petitionerspouse cannot be reasonably expected to live withthe other spouse. It must be something moreserious than "ordinary wear and tear of marriedlife". The conduct taking into consideration thecircumstances and background has to be examined toreach the conclusion whether the conductcomplained of amounts to cruelty in thematrimonial law. Conduct has to be considered, asnoted above, in the background of several factorssuch as social status of parties, their education,physical and mental conditions, customs andtraditions. It is difficult to lay down a precisedefinition or to give exhaustive description ofthe circumstances, which would constitute cruelty.It must be of the type as to satisfy theconscience of the Court that the relationshipbetween the parties had deteriorated to suchextent due to the conduct of the other spouse thatit would be impossible for them to live togetherwithout mental agony, torture or distress, toentitle the complaining spouse to secure divorce.Physical violence is not absolutely essential toconstitute cruelty and a consistent course ofconduct inflicting immeasurable mental agony andtorture may well constitute cruelty within themeaning of Section 10 of the Act. Mental crueltymay consist of verbal abuses and insults by usingfilthy and abusive language leading to constantdisturbance of mental peace of the other party.13. The Court dealing with the petition fordivorce on the ground of cruelty has to bear inmind that the problems before it are those ofhuman beings and the psychological changes in aspouse's conduct have to be borne in mind beforedisposing of the petition for divorce. However,insignificant or trifling, such conduct may causepain in the mind of another. But before theconduct can be called cruelty, it must touch acertain pitch of severity. It is for the Court to https://hcservices.ecourts.gov.in/hcservices/ weigh the gravity. It has to be seen whether theconduct was such that no reasonable person wouldtolerate it. It has to be considered whether thecomplainant should be called upon to endure as apart of normal human life. Every matrimonialconduct, which may cause annoyance to the other,may not amount to cruelty. Mere trivialirritations, quarrels between spouses, whichhappen in day-to-day married life, may also notamount to cruelty. Cruelty in matrimonial lifemay be of unfounded variety, which can be subtleor brutal. It may be words, gestures or by meresilence, violent or non-violent."55. This Court in Vinita Saxena v. Pankaj Panditreported in (2006) 3 SCC 778) aptly observed as under:(paras 37-38) "37.As to what constitutes the requiredmental cruelty for the purposes of the saidprovision, will not depend upon the numericalcount of such incidents or only on the continuouscourse of such conduct but really go by theintensity, gravity and stigmatic impact of itwhen meted out even once and the deleteriouseffect of it on the mental attitude, necessaryfor maintaining a conducive matrimonial home. 38. If the taunts, complaints and reproachesare of ordinary nature only, the court perhapsneed consider the further question as to whethertheir continuance or persistence over a period oftime render, what normally would, otherwise, notbe so serious an act to be so injurious andpainful as to make the spouse charged with themgenuinely and reasonably conclude that themaintenance of matrimonial home is not possibleany longer."56. In Shobha Rani -vs- Madukar Reddi (1988) 1 SCC 105: 1988 SCC (Cri) 60 (supra) at pp.108-09, para 5, the Courtobserved as under:"5. Each case may be different. We deal withthe conduct of human beings who are no generallysimilar. Among the human beings there is no limitto the kind of conduct which may constitutecruelty. New type of cruelty may crop up in anycase depending upon the human behaviour, capacityor incapability to tolerate the conduct https://hcservices.ecourts.gov.in/hcservices/ complained of. Such is the wonderful (sic) realmof cruelty."57.In this case, the Court cautioned the lawyers andjudges not to import their own notions of life in dealingwith matrimonial problems. The judges should not evaluatethe case from their own standards. There may be ageneration gap between the judges and the parties. It isalways prudent if the judges keep aside their customs andmanners in deciding matrimonial cases in particular. 58. In a recent decision of this Court in the case ofRishikesh Sharma v. Saroj Sharma reported in (2007) 2 SCC263 : 2006 (12) Scale 282, this Court observed that therespondent wife was living separately from the year 1981and the marriage has broken down irretrievably with nopossibility of the parties living together again. The Courtfurther observed that it will not be possible for theparties to live together and therefore there was no purposein compelling both the parties to live together. Thereforethe best course was to dissolve the marriage by passing adecree of divorce so that the parties who were litigatingsince 1981 and had lost valuable part of life could livepeacefully in remaining part of their life. The Courtfurther observed that her desire to live with her husbandat that stage and at that distance of time was notgenuine.”20. Also, in the aforesaid Judgment at Page 546 and 547 inParagraph 101, the Hon'ble Supreme Court has enumerated someinstances of human behaviour, which may be relevant in dealing withthe cases 'mental cruelty' etc. and the same runs as follows:-“i) On consideration of complete matrimoniallife of the parties, acute mental pain, agony andsuffering as would not make possible for theparties to live with each other could come withinthe broad parameters of mental cruelty.(ii) On comprehensive appraisal of the entirematrimonial life of the parties, it becomesabundantly clear that situation is such that thewronged party cannot reasonably be asked to put upwith such conduct and continue to live with otherparty. (iii) Mere coldness or lack of affectioncannot amount to cruelty, frequent rudeness oflanguage, petulance of manner, indifference andneglect may reach such a degree that it makes the https://hcservices.ecourts.gov.in/hcservices/ married life for the other spouse absolutelyintolerable. (iv) Mental cruelty is a state of mind. Thefeeling of deep anguish, disappointment,frustration in one spouse caused by the conduct ofother for a long time may lead to mental cruelty.(v) A sustained course of abusive andhumiliating treatment calculated to torture,discommode or render miserable life of the spouse.(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 very grave,substantial and weighty.(vii) Sustained reprehensible conduct,studied neglect, indifference or total departurefrom the normal standard of conjugal kindnesscausing injury to mental health or derivingsadistic pleasure can also amount to mentalcruelty.(viii) The conduct must be much more thanjealousy, selfishness, possessiveness, whichcauses unhappiness and dissatisfaction andemotional upset may not be a ground for grant ofdivorce on the ground of mental cruelty.(ix) Mere trivial irritations, quarrels,normal wear and tear of the married life whichhappens in day to day life would not be adequatefor grant of divorce on the ground of mentalcruelty. (x) The married life should be reviewed as awhole and a few isolated instances over a periodof years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthyperiod, where the relationship has deteriorated toan extent that because of the acts and behaviourof a spouse, the wronged party finds it extremelydifficult to live with the other party any longer,may amount to mental cruelty.(xi) If a husband submits himself for anoperation of sterilization without medical reasons https://hcservices.ecourts.gov.in/hcservices/ and without the consent or knowledge of his wifeand similarly if the wife undergoes vasectomy orabortion without medical reason or without theconsent or knowledge of her husband, such an actof the spouse may lead to mental cruelty.(xii) Unilateral decision of refusal to haveintercourse for considerable period without therebeing any physical incapacity or valid reason mayamount to mental cruelty.(xiii) Unilateral decision of either husbandor wife 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 be concludedthat the matrimonial bond is beyond repair. Themarriage becomes a fiction though supported by alegal tie. By refusing to sever that tie, the lawin such cases, does not serve the sanctity ofmarriage; on the contrary, it shows scant regardfor the feelings and emotions of the parties. Insuch like situations, it may lead to mentalcruelty.” 21. We deem it appropriate to make a mention that Wilde, J.O.in Power v. Power (1865) 4 SW & Tr. 173 : 12 LT 824, as observed thatcruelty lies in the cumulative ill conduct which the history ofmarriage discloses. 22.The learned counsel for the Appellant/Wife also relies on thedecision of the Hon'ble Supreme Court reported in Manisha Tyagi -vs-Deepak Kumar (I [2010] DMC 451 {SC}), wherein it is laid down that,"even the continued ill-treatment, cessation of marital intercourse,studied neglect, indifference of one spouse to other may lead toinference of cruelty".23. The learned counsel for the Appellant/Wife cites thedecision of the Hon'ble Supreme Court reported in A. Jayachandra -vs-Aneel Kaur [2005 (1) C.T.C. 215] and at Page 220, in Paragraph Nos.10to 12, it is observed as follows:- "10. The expression 'cruelty' has not beendefined in the Act. Cruelty can be physical or mental.Cruelty which is a ground for dissolution of marriage maybe defined as wilful and unjustifiable conduct of suchcharacter as to cause danger to life, limb or health,bodily or mental, or as to give rise to a reasonableapprehension of such a danger. The question of mentalcruelty has to be considered in the light of the norms of https://hcservices.ecourts.gov.in/hcservices/ marital ties of the particular society to which the partiesbelong, their social values, status, environment in whichthey live. Cruelty, as noted above, includes mentalcruelty, which falls within the purview of a matrimonialwrong. Cruelty need not be physical. If from the conductof his spouse same is established and/or an inference canbe legitimately drawn that the treatment of the spouse issuch that it causes an apprehension in the mind of theother spouse, about his or her mental welfare then thisconduct amounts to cruelty. In delicate human relationshiplike matrimony, one has to see the probabilities of thecase. The concept, a proof beyond the shadow of doubt, isto be applied to criminal trials and not to civil mattersand certainly not to matters of such delicate personalrelationship as those of husband and wife. Therefore, onehas to see what are the probabilities is a case and legalcruelty has to be found out, not merely as a matter offact, but as the effect on the mind of the complainantspouse because of the acts or omissions of the other.Cruelty may be physical or corporeal or may be mental. Inphysical cruelty, there can be tangible and directevidence, but in the case of mental cruelty there may notat the same time be direct evidence. In cases where thereis no direct evidence, Courts are required to probe intothe mental process and mental effect of incidents that arebrought out in evidence. It is in this view that one hasto consider the evidence in matrimonial disputes.11.The expression 'cruelty' has been used in relationto human conduct or human behaviour. It is the conduct inrelation to or in respect of matrimonial duties andobligations. Cruelty is a course or conduct of one, whichis adversely affecting the other. The cruelty may bemental or physical, intentional or unintentional. If it isphysical, the Court will have to no problem in determiningit. It is a question of fact and degree. If it is mental,the problem presents difficulties. First, the enquiry mustbegin as to the nature of cruel treatment, second theimpact of such treatment in the mind of the spouse, whetherit caused reasonable apprehension that it would be harmfulor injurious to live with the other. Ultimately, it is amatter of inference to be drawn by taking into account thenature of the conduct and its effect on the complainingspouse. However, there may be a case where the conductcomplained of itself is bad enough and per se unlawful orillegal. Then the impact or injurious effect on the otherspouse need not be enquired into or considered. In suchcases, the cruelty will be established if the conductitself is proved or admitted (see Sobh Rani v. MadhukarReddi, AIR 1989 SC 121). https://hcservices.ecourts.gov.in/hcservices/

12.To constitute cruelty, the conduct complained ofshould be 'grave and weighty' so as to come to theconclusion that the petitioner spouse cannot be reasonablyexpected to live with the other spouse. It must besomething more serious than 'ordinary wear and tear ofmarried life'. The conduct, taking into consideration thecircumstances and background has to be examined to reachthe conclusion whether the conduct complained of amounts tocruelty in the matrimonial law. Conduct has to beconsidered, as noted above, in the background of severalfactors such as social status of parties, their education,physical and mental conditions, customs and traditions. Itis difficult to lay down a precise definition or to giveexhaustive description of the circumstances, which wouldconstitute cruelty. It must be of the type as to satisfythe conscience of the Court that the relationship betweenthe parties had deteriorated to such an extent due to theconduct of the other spouse that it would be impossible forthem to live together without mental agony, torture ordistress, to entitle the complaining spouse to securedivorce. Physical violence is not absolutely essential toconstitute cruelty and a consistent course of conductinflicting immeasurable mental agony and torture may wellconstitute cruelty within the meaning of Section 10 of theAct. Mental cruelty may consist of verbal abuses andinsults by using filthy and abusive language leading toconstant disturbance of mental peace of the other party."24. Also, in the aforesaid decision at Page No.222, in ParagraphNo.16, it is observed hereunder:-"The matter can be looked at from another angle. Ifacts subsequent to the filing of the divorce petition canbe looked into to infer condonation of the aberrations,acts subsequent to the filing of the petition can be takennote of to show a pattern in the behaviour and conduct. Inthe instant case, after filing of the divorce petition asuit for injunction was filed, and the respondent went tothe extent of seeking detention of the respondent. Shefiled a petition for maintenance which was also dismissed.Several caveat petitions were lodged and as noted above,with wrong address. The respondent in her evidence clearlyaccepted that she intended to proceed with the executionproceedings, and prayer for arrest till the divorce casewas finalized. When the respondent gives priority to herprofession over her husband's freedom it points unerringlyat disharmony, diffusion and disintegration of maritalunity, from which the Court can deduce about irretrievablebreaking of marriage.25. Moreover, in Paragraph No.17, the Hon'ble Supreme Courthas, inter alia, observed as follows:- https://hcservices.ecourts.gov.in/hcservices/ "17. Several decisions, as noted above, cited bylearned counsel for the respondent to contend even ifmarriage has broken down irretrievably decree of divorcecannot be passed. In all these cases it has beencategorically held that in extreme cases the Court candirect dissolution of marriage on the ground that themarriage broken down irretrievably as is clear fromparagraph 9 of Shiv Sunder's case (supra). The factualposition in each of the other cases is alsodistinguishable. It was held that the long absence ofphysical company cannot be a ground for divorce if the samewas on account of husband's conduct. In Shiv Sunder's case(Supra) it was noted that the husband was leadingadulterous life and he cannot take advantage of his wifeshunning his company. Though the High Court held by theimpugned judgment that the said case was similar, itunfortunately failed to notice the relevant factualdifference in the two cases. It is true that irretrievablebreaking of marriage is not one of statutory grounds onwhich Court can direct dissolution of marriage, this Courthas with a view to do complete justice and shorten theagony of the parties engaged in long drawn legal battle,directed in those cases dissolution of marriage. But asnoted in the said cases themselves those were exceptionalcases."26. He also seeks in aid of the decision of Hon'ble SupremeCourt reported in Dr.N.G.Dastane -vs- Mrs.S.Dastane [(1975) 2 SupremeCourt Cases 326], whereby and whereunder it is held as follows:-"(a) Doubtless, the burden must lie on the petitionerto establish his or her case for, ordinarily, the burdenlies on the party which affirms a fact, not on the partywhich denies it. The petitioner must therefore prove thatthe respondent has treated him with cruelty within themeaning of Section 10(1)(b) of the Act.(b) The belief regarding the existence of a fact mustbe founded on a balance of probabilities. As a prudentman, so the Court applies this test for finding whether afact in issue can be said to be proved. The first step inthis process is to fix the probabilities, the second toweigh them, though the two may often intermingle. Theimpossible is weeded out at the first stage, the improbableat the second. Within the wide range of probabilities theCourt has often a difficult choice to make but it is thischoice which ultimately determines where the preponderanceof probabilities lies. Important issues like those whichaffect the status of parties demand a closer scrutiny thanthose like the loan on the promissory note. But whetherthe issue is one of cruelty or of a loan on a pro-note, the https://hcservices.ecourts.gov.in/hcservices/ test to apply is whether on a preponderance ofprobabilities the relevant fact is proved.Neither Section 10 of the Act which enumerates thegrounds on which a petition for judicial separation may bepresented nor Section 23 which governs the jurisdiction ofthe Court to pass a decree in any proceeding under the Actrequires that the petitioner must prove his case beyond areasonable doubt. Section 23 confers on the Court thepower to pass a decree if it is "satisfied" on mattersmentioned in clauses (a) to (e) of the section.Considering that proceedings under the Act are essentiallyof a civil nature, the word "satisfied" must mean"satisfied on a preponderance of probabilities" and not"satisfied beyond a reasonable doubt". Section 23 does notalter the standard of proof in civil cases." 27. It is to be borne in mind that the 'mental cruelty' must beof such a nature that the parties cannot reasonably be expected tolive together. The fact situation must be such that the wrongedparty cannot reasonably to asked to put up with the other party. Itis a well settled fact in the absence of a positive act of cruelty aparty is not entitled to obtain a decree of divorce.28. As per Section 9 of the Hindu Marriage Act, 1955 the onus ofestablishing a case lies on the person who alleges certain facts. Asa matter of fact, the petitioner has to prove two things for a Decreeof Restitution of Conjugal Rights. (i) The Respondent has withdrawnfrom the society of the petitioner. (ii) That such withdrawal hasbeen without reasonable excuse. The petitioner is to succeed on thestrength of his own case and he cannot take advantage of the weaknessof the defence as per decision Sadhu Singh Balwant Singh -vs- Smt.Jagadish Kuar (AIR 1969 Punjab 139). If a plea of ill-treatment israised as a defence to a petition for Restitution of Conjugal Rightsthe burden of proving the same in on the Respondent as per decisionAnna Saheb -vs- Tarabai (AIR 1970 Mathya Predesh 36 (DB). The earlyburden in view of the explanation to Section 9 of the Hindu MarriageAct is on the Petitioner to prove the pleading. 29. At this stage, the learned counsel for the Appellant/Wifealso read the evidence of the father of the Respondent/Husband toshow that in their house, prior to the marriage of theAppellant/Wife, they had two servant maids and after the marriage,the two servant maids were stopped. But there is a discrepancy inthe said evidence, since, as per the evidence of theRespondent/Husband, there was only one servant maid at the time ofthe Appellant's marriage with the Respondent and that the saidservant maid herself had stopped. According to the learned counselfor the Appellant/Wife, the said discrepancy between the evidence ofthe Respondent/Husband and his father affects the case of theRespondent/Husband. Also this particular circumstance is in favourof the Appellant/Wife to show that soon after her entering into the https://hcservices.ecourts.gov.in/hcservices/ house of the Respondent/Husband, the two servant maids were stoppedby his family.30. It is useful to refer to the evidence of P.W.1, R.W.1 andR.W.2 for better and fuller appreciation of the merits of the case. 31.P.W.1 (Wife) has deposed that when she went to temple, theRespondent's (Husband) parents used to follow her secretly withouther knowledge to know whether she is going to the temple orelsewhere. It is also her evidence that when she was sent to herparent's house, neither the Respondent/Husband nor his parentsvisited her and the child.32.P.W.1 (in her cross-examination) has stated that she used tovisit Kanniamman Temple near the house, but her mother-in-law willcome behind her.33.R.W.1 (Respondent/Husband) in his cross-examination hasstated that for doing household work, there was a servant, who usedto assist his mother at the time of cooking and it is incorrect tostate, after marriage, the servant maid was stopped, but she herselfstopped. 34. It is the evidence of R.W.2 (Father of Respondent/ Husband)that he had two female servants at his home even when his daughterswere at home, one to wash clothes and to clean vessels and one tosweep the courtyard and the house and those servants continued duringhis daughter-in-law's period and even now. 35.R.W.2 (in his cross-examination) has deposed that in hishouse, he has two servant maids and at the time of marriage andlater, when Appellant/Wife went out of his house, till that time hehad two servant maids.36.Merely sending money by R.W.1 (Respondent/Husband) to theAppellant/Wife as per Exs.R.12 to 15, payment of his son's SchoolFees, Policy taken by him for his son's welfare are all normal,parental routine acts of every Husband in the matrimonial tie or bondbetween the parties and therefore, it cannot be said that the paymentof money or school fees of the son's etc. will be a pointer for hisconcern towards them. 37. Finding on points (i) and (ii) in C.M.A.No.3994 of 2008 andpoint in C.M.A.No. 3993 of 2008:-Though the marriage between the parties had taken place on25.05.2001, the fact remains that the Appellant/Wife is employed andwell placed in life. Equally the Respondent/Husband is also wellemployed. The Respondent/Husband had not met the Appellant/Wife aftershe being taken to her house on 10.11.2001 under the guise of 'ThalaiDeepavali'. Also the Respondent/Husband had not taken any steps orcare to visit the Appellant/Wife. When the Appellant/Wife was https://hcservices.ecourts.gov.in/hcservices/ pregnant, she was driven out of her matrimonial home and she gavebirth to a male child on 17.06.2002. Notwithstanding the fact thatthe Appellant/ Wife's side had informed about the delivery of thechild to the Respondent/Husband, he had neglected to maintain theAppellant/ Wife and also the child. Thus, these facts were not eithercontradicted or repudiated or even considered by the trial Courtwhile dealing with F.C.O.P.Nos.1099 of 2005 and 1915 of 2004. Thefact that the Respondent/Husband had not taken any care to maintainthe Appellant/Wife and the child is a clear case of desertion andfurther, the mother-in-law could not behave the Appellant/Wife whenshe had been to temple and keeping her under constant surveillanceamounts to cruelty. 38. At this juncture, it is to be pointed out that it is notnecessary in a case of cruelty that any injury to health of a personor life of person should be there. Even a mental cruelty by means ofa studied neglect or indifference of one spouse to the other or evena continued ill-treatment of one spouse by the other and also thatthere is a cessation of marital intercourse would amount to the actsof cruelty. To reiterate, at the risk of repetition, we have topoint out that the Respondent/Husband had also admitted in hisevidence that he has obtained the Appellant/Wife's Salary Certificatethrough a Detective Agency. All these acts of theRespondent/Husband, in our view, amount to a clear case of mentalcruelty. A cruelty in matrimonial life between the parties may be ofunfounded variety, which can be subtle or brutal. It may be words,gestures or by mere silence, violent or non-violent. It is true thatpetty quibbles, trifling differences should not be exaggerated andmagnified to destroy what is said to have been made in heaven and allquarrels must be weighed from that point of view in determining whatconstitutes cruelty in each particular case. It also depends upon thesocial status and their character and mental and physical conditionsof the parties.39. On a careful and proper consideration of the availablematerials on record and also taking note of the oral and documentaryevidence let in by the parties before the trial Court, coupled withthe cumulative facts and circumstance of the case in an integralfashion and further in the light of the discussion mentioned supra,we are of the considered view that the Appellant/Wife had made out acase of cruelty and desertion against the Respondent/Husband.Therefore, we are of the considered view that she is entitled to geta Decree of Divorce on that score.40. In the instant case, the Appellant/Wife, though initiallyclaimed a monthly maintenance of Rs.10,000/- per month from theRespondent/Husband, later made an endorsement before the trial Courtthat she had given up her claim. Hence, the Appellant/Wife is notentitled to claim any amount as monthly maintenance from theRespondent/Husband, as opined by this Court. https://hcservices.ecourts.gov.in/hcservices/

41. Inasmuch as the Appellant/Wife has proved the ground ofCruelty and Desertion, she is entitled to claim the relief ofDissolution of Marriage dated 25.05.2001 and consequently theRespondent/Husband is not entitled to claim the relief of Restitutionof Conjugal Rights in F.C.O.P.No.1099 of 2005 and accordingly, pointNos.(i) and (ii) in C.M.A.No.3994 of 2008 and the point inC.M.A.No.3993 of 2008 are so answered.42. In the result, the order passed by the I Additional Judge,Family Court at Chennai, in O.P.Nos.1099 of 2005 and 1915 of 2004dated 30.09.2008 are set aside. Both the Civil Miscellaneous Appealsare allowed. The parties are directed to bear their own costs.Connected M.Ps. are closed. Sd/Asst. Registrar/true copy/Sub Asst.Registrarbs/To1. The II Additional Principal Judge,Family Court, Chennai.2. The Registrar,City Civil Court, Chennai.2 cc To Mr.K.Sakthivel, Advocate, SR.38506 & 38507. C.M.A.Nos.3993&3994 of 2008 SP(CO)RVL 10.08.2011