D. Nagappan v. T. Virgin Rani

her joining him because she was complaining that his mother wastreating her cruelly. Every time she requested him to take her back,he would avoid it on some pretext or the other. And again, she foundthat he would be satisfied only if the additional dowry was paid.The respondent once again came over to Chennai to join him, butagain, the appellant had vacated the house at Periyar Nagar and shehad to live with her brother. He told her that if she wanted to joinhim, she should go and reside with his parents and conduct herself asa servant and only then she could have conjugal rights. When shewent to the Southern Railway Office to request for reunion, hephysically dragged her to the Reception Desk to register her name,then took her to the police station to give a complaint. TheInspector of Police heard them and advised them to lead a happymarried life. On 29.3.1995, when she went back to his office, theappellant took her in an auto-rickshaw pretending to take her to hishome and then dropped her somewhere near his sister's house and ranaway. On 31.3.1995, the respondent and her brothers sent to wellwishers, Dorairaj and Sampath to do mediation between the couple, butthey were informed that he was not willing because she did not paythe additional dowry and that she should live with his mother atKulasekaram and that she should not come to Chennai. He had alsogiven a false complaint that her brother had threatened her. So, shelodged a complaint in the All Women Police Station. In thesecircumstances, she filed the petition for restitution of conjugalrights.3. The appellant filed his counter in July, 1995 wherein hedenied all the averments that lavish expenditure was made for themarriage. He denied the allegation that he had informed her fatherthat he was a qualified Engineer. He denied that the marriage wasperformed only because the preparations were at an advanced stage,inspite of his misrepresentation regarding his educationalqualification. According to him, he could not complete his part-timeB.E. because of her mental cruelty. He denied the allegations madeagainst his mother. He said that she was a very nice person and thatin all the years since the marriage, the respondent had stayed onlyfor one week in the house along with his mother and therefore, thequestion of cruelty does not arise. The death of the first femalebaby was accepted, but the appellant would state that he took backthe wife after she had taken the required rest at her parents' place.The innuendo regarding his association with Viswanathan was deniedand according to him, the friendship with Viswanathan is true and agenuine one and it was only because the respondent had a suspiciousmind that she made all the allegations. The appellant would statethat because of some complications, the second baby also died. Theaverment that the respondent came on her own accord to Chennai andfound that his address was changed was denied. According to him,these allegations are made only to cover up the long period ofdesertion. The demand for additional dowry was denied and it wasstated that it was a product of a fertile imagination. All other https://hcservices.ecourts.gov.in/hcservices/ allegations regarding his character were denied. As regards thethird pregnancy, according to the appellant, he paid sufficientamount and the respondent's parents voluntarily shared the expensesbecause the appellant was in a financial problem. According to him,he suggested that she should go to his parents' house at Kulasekarambecause the third baby was a precious one, especially because the twoearlier babies had died and since her health would be taken care ofif she was in his parents' house as he might not be able to give herthat care in the busy city life. He denied the allegation of dowryharassment and demand for additional dowry. According to him, thecomplaint given against her brother was truthful and the crueltytowards him was so grave. She indulged in character assassinationand gave false complaints to various authorities taking advantage ofthe fact that her close relative was a Section Officer in the StateSecretariat and therefore, a false complaint was made to the ChiefMinister's Cell and the appellant was summoned. According to him, itwas only because of her cruelty and suspicious character that was thecause of all the problems. 4. Thereafter, the appellant filed F.C.O.P. No.674 of 1997 fordivorce under Section 22 of the Indian Divorce Act. In thispetition, he had admitted that originally they were happy, butbecause of some bad influence, she changed drastically. Many of theaverments in this petition are akin to what is stated in his counterto the petition filed by the respondent for restitution of conjugalrights. According to the appellant, he had sent letters to her, towhich she had not responded and therefore, a clear case of desertionhad been made out. The final blow to the conjugal bliss came whenshe lodged a complaint against the appellant for dowry harassment inthe year 1995. The appellant was grilled by police personnel. Goondashad been hired, who came to his place of employment and physicallyassaulted him. According to him, his life has become meaningless andhe had suffered the repeated acts of cruelty at the hands of therespondent. According to him, she had deserted the matrimonial homein December, 1993 and therefore, he was entitled to divorce on thatground. The respondent filed her counter in this O.P. in which shehas repeated all the allegations made in her petition for restitutionof conjugal rights. In this counter, she had stated that theappellant's illicit intimacy with the wife of Viswanathan is thecause for all these problems. According to her, the petition fordivorce was a counter blast to her petition for restitution ofconjugal rights. In the year 2001, the appellant filed an amendmentpetition, adding the ground of cruelty for seeking the prayer fordivorce. To this, an additional counter was also filed. 5. Three witnesses were examined on the side of the respondentand one witness was examined by the appellant, which was himself.Thirteen documents were marked by the respondent and five by him.The learned Principal Judge, Family Court, found that the appellanthad not proved his case that the respondent was residing with one https://hcservices.ecourts.gov.in/hcservices/ Dorairaj. The Family Court had observed that the couple had livedseparately without having any intentions of separating from eachother and that none of the documents support the case of theappellant. We will have to examine whether the judgment of theFamily Court is sustainable.6. Learned counsel appearing for the appellant submitted thatall the allegations made by the respondent were not proved and on theother hand, the appellant's case of cruelty was supported byevidence. In fact, one should only look at the counter affidavitfiled by the respondent which itself would prove the acts of crueltyalleged by the appellant. The learned counsel made impassionedsubmissions regarding the ordeal suffered by litigants seekingreliefs under the Family Courts Act. He submitted that it is not asif litigants in India rush to the Family Courts without any excuse.Conciliation and mediation takes place at every level within thefamily, amongst the friends, within the community and only wheneverything fails that the litigants approach the Family Court andthereafter, there is very little scope for reconciliation. In thiscase, the appellant had been harassed by the respondent in the officeand she had made wild allegations without any justification. She hadmade allegations regarding adultery, which was not proved, whichitself is an act of cruelty and therefore, the Family Court had erredin accepting the case of the respondent. Learned counsel referred toseveral decisions in support of his submissions.7. Learned counsel appearing for the respondent submitted thatthe appellant cannot cite letters written by him requiring his wifeto come to his parents house at Kulasekaram as a bona fide requestfor reunion. His mother was a cruel lady and to ask his wife to goto his mother's house at Kulasekaram was not bona fide. He submittedthat a husband who vacates the house a day prior to the day when thewife was coming to rejoin him is the person who has committed thewrong and he cannot take advantage of the same.8. We made an effort to see if the parties could rejoin at leastfor the sake of their son. But the appellant appeared very disturbedat the very thought of reunion. Therefore, we proceeded to decidethe matter on merits.9. Since the petition filed by the respondent was the earlier inpoint of time, she was examined as P.W.1. Whatever she had stated inher petition was stated in her chief-examination. During her cross-examination, she had admitted that since she did not likeViswanathan's attitude, she had asked the appellant not to have anyconnection with him. She had admitted that she had given notice toher husband alleging illicit intimacy with Viswanathan's wife. Herstatement is that even though he treats her cruelly, she wants tolive with him. According to her, right from the beginning she hadbeen making these allegations regarding illicit intimacy. She had https://hcservices.ecourts.gov.in/hcservices/ admitted that since he continues to go to Viswanathan's house, shehas the right to continue to make the same allegation again :"vjph;kDjhuh; bjhlh;e;J tpRtehjd; vd;gth; tPl;ow;F ,g;nghJk;ngha;f;bfhz;oUg;gjhy; ehd; mth; nghpy; fhl;oa Fw;wr;rhl;ilbjhlh;e;J brhy;y vdf;Fhpik cz;L/"She had admitted that there is no evidence to show that her parentsgave Rs.25,000/- as dowry. According to her, she and her mother-in-law stayed together for one week in 1991 and that they did not have acordial relationship. She had admitted that she had not written anyletters to the appellant describing the acts of cruelty by hermother-in-law. She had stated that she went and told Viswanathanthat his wife behaves improperly, but that Viswanathan denied thatthere was any extramarital relationship between his wife and theappellant. She has admitted that there is no evidence regarding theillicit intimacy between her husband and Viswanathan's wife. She hasadmitted that she has not written to her relatives about the physicalcruelty meted out to her by the appellant. According to her, she hadmade several attempts through the appellant's sister's husband forreunion, but she does not have any proof for that. According to her,she is aware of her husband's sister's address, but not her husband'saddress. 10. One Thangamani, who is said to be a Section Officer in theSecretariat, was examined as P.W.2. In his chief-examination, he hasstated that the respondent had written several letters to theappellant to take her back, but there was no response and that he wasinformed by the respondent that when she went to her husband's house,the door was locked and thereafter, they left the respondent with theappellant. When she became pregnant for the third time, theappellant left the respondent in her parents' house. Even this time,he did not take her back. He, Dorairaj and Sampath went andrequested him in his office, but it was of no avail. In cross-examination, he had admitted that he is the appellant's sister'shusband. He has admitted that he has no specific knowledge about thehusband and wife relationship between the parties and that he knowsonly what has been told by the respondent. A suggestion was put tothis witness that since there is friction in his relationship withhis wife, who is none other than the appellant's sister, he hasfalsely given evidence to punish him. One Christopher, who is thebrother of the respondent, was examined as P.W.3. The cross-examination is restricted to whether he knew the address of theappellant.11. The appellant, in his chief-examination, has reiterated thecontents of his affidavit. He has stated in his evidence thatwhenever he went to Palliyadi to bring the respondent back, herparents would state that she is staying with Dorairaj in Chennai.According to him, P.W.2 would not give evidence to support him https://hcservices.ecourts.gov.in/hcservices/ because there is some family friction between them. According tohim, the first child was buried even before he went to see her. Hehas denied that it is only after the allegation of illicit intimacywas made that the third child was born.12. Ex.P.3 is a letter written by the respondent. It is aneight page typed letter sent by a wife to her husband. In this, shehas stated that she had given some letters which were written withanger and after that, her brother and her parents left her at hishome and that the appellant was happy with her:"mg;g[wk; buhk;g ehs; fHpj;J eP';fs; brd;id bghpahh; efhpy;jpU/ u';fhuhk; mth;fis nghap ghh;j;J vd;Dila tpc&a';fs;midj;Jk; ngrp ehd; Mj;jpuj;jpy; c';fSf;F vGjpa fojj;jpd;b$uhf;!; fhgpa[k; mtUf;F bfhLj;J bghpahh; efh; eP';fs; ,Uf;Fk;tPl;L Kfthpa[k; (rp/474. 9?tJ bjU) brhd;djpdhy; jhd; mth;K:ykhf tpgu';fs; bjhpe;J v';fSila mz;zd; mg;gh mk;khMfpnahh; vd;id Tl;o bfhz;L te;J c';fs; tPl;oy; tpl;lhh;fs;/mg;g[wk; eP';fSk; vd;dplk; md;ghf ele;Jf; bfhz;Oh;fs;/"She has stated that when she wanted to set up a matrimonial home inChennai, he had replied that she should stay at least for six monthsat Kulasekaram and only then establishment in Chennai was possibleand thereafter, she has referred to the 'saddist' Viswanathan. Shehas then stated that, therefore, she waited and waited and came tothe Periyar Nagar house in Chennai and they found the door of thehouse locked. She has again referred to a threat letter written bythe appellant to her father and since all the time he was living withthe 'saddist' Viswanathan, unable to come and live in the same housein Chennai, she stayed in her brother's house. She has written thather brother asked her whether the appellant said anything about thedeath of his brother and that she stated that she did not knowanything. She has also said that she was asked how she will go toher husband's house, especially when the world speaks so differentlyabout him. According to her, she was asked whether she would be ableto bear it and whether the circumstances in the house would beconducive for the good upbringing of the child :"cd;dhy; jh';f Koa[kh> vd;W nfl;L FHe;ijia ed;whftsh;g;gjw;F me;j tPl;L FH;epiy rhpahf mikahJ vd jhd;fUJtjhft[k; Twpa[s;shd;" And that every one who knew the appellant's mother told her parentsand her brother that on no account should she be sent to the house ofthose poisonous people :"c';fs; mk;khitg; gw;wp bjhpe;jth;fs; midtUk; vd;Dilamk;kh. mg;gh. mz;zd; vy;nyhiua[k; ghh;j;J vf;fhuzk; Kd;dpl;Lk;me;j tpc& ehrpdpfs;. mjhtJ mth;fs; tPl;L kug[ bghpa igad; https://hcservices.ecourts.gov.in/hcservices/ Vw;fdnt mk;kh JiznahL xU bgz;id nknu$; gz;zp divorcegz;zpdth;. me;j kug[g;go tps';Fk; me;j ekJ tPL vd;w CUf;FmDg;ghjPh;fs;. xU FHe;ij gpwe;nj te;J ghh;f;ftpy;iy vd;dg;ghrnehf;fj;njhL/ c';fs; bgz;iz c';fs; bgz;zpd; fzth; ekJ tPLvd miHf;fpwhnuh vd vr;rhpj;jjd; nghpYk; vdf;F tpUg;gk; ,y;yhj ,lj;Jf;F vd;id vd; mz;zndh. mk;khnth. mg;ghnthmDg;gp itf;f khl;lhh;fs;/"Therefore, since they were warned regarding the motive with which theappellant was inviting her to come to "our house" and that neitherher parents nor her brothers will ever sent her to that house againsther will :"ehDk;. ekJ tPL vd te;jhy; vdf;F me;j fjpjhd;/vd;ida[k; tHf;fj;Jf;F khwhf bfhSj;jp ,unthL ,uthf vhpj;jhy;vd; FHe;ijf;F ahh;> Mfnt eP';fs; ,Uf;Fk; brd;idapy;c';fnshLjhd; ,Ug;ngd;/"Therefore, according to her, the appellant's mother would burn her ifshe goes to Kulasekaram and that she would live with him only inChennai. According to her, if he did not turn up, she would herselfgo over to Chennai. This letter is dated 10.11.1994.13. Ex.P.4, which is the appellant's letter, is to the effectthat the respondent had not returned even after delivery :"ehd; vt;tst[ mwpt[Wj;jpa[k; eP';fs; Fynrfuj;jpy; cs;s ekJtPl;ow;F tutpy;iy/"He has also written that she was on that date not with her parentsand she was somewhere without informing him of her whereabouts. Hehad stated that she should immediately go to his parents house inKulasekaram and as soon as she goes there, she should send a letter.He sent another letter dated 15.12.1994, in which he again addressesher as "Dear Rani" (md;g[s;s uhzp). He has stated that for somemonths, she had not been with her parents and not gone to Kulasekaramand he has asked her why without telling him she had gone and stayedin different places and that she should give up her ego and come tohis house in Kulasekaram. He has asked her whether she can go toKulasekaram or not. He has also stated that to resume matrimoniallife, she should go to Kulasekaram with the child and that she shouldlet him know within one week her decision. Next is the letter,Ex.P.6, which is written by the appellant to the Father of the RomanCatholic Church and this is dated 11.1.1995. In this letter, he hasstated that there had been marital problems and that they are livingseparately. He had stated that he had requested the respondentseveral times to join him, but she had refused to do so. https://hcservices.ecourts.gov.in/hcservices/ "vd; Jiztpahiu vd;ndhL FLk;gk; elj;j gyKiw miHj;jnghJk; vd; Jiztpahh; vd;ndhL FLk;gk; elj;j kdJ ,y;yhky;tpthfuj;J bra;tjhf gyKiw vd;dplk; Twpa[s;shh;/"14. Ex.P.7 is a letter dated 14.12.1993 written by one C.Rajabai to the respondent. In this, there is reference to therespondent's acts of cruelty. Then comes Exs.P.8 and P.9, which is aletter sent by the respondent to the husband by registered post. Inthis, she has stated that the appellant must be mentally disturbed tobehave like this. She has regretted his disinterest in the child.This is written on 11.1.1995. Next is Ex.P.10, which is a copy ofthe petition submitted to the Chief Minister of Tamil Nadu withserious allegations against Viswanathan, an employee of SyndicateBank requesting that Viswanathan should be warned and therefore, theDeouty Secretary to the Chief Minister had addressed a letter to theZonal Manager, Syndicate Bank, giving directions to warn Viswanathan.As a follow up to this, in Ex.P.11, the General Manager, SouthernRailway is addressed to get the address of the respondent. Exs.P.12and P.13 are greeting cards sent by the appellant to his son N.V.Anginio calling himself his loving father. 15. Ex.R.1 Series are the ackowledgment cards for money orderssent by the appellant. Ex.R.2 is the letter written by therespondent's brother Gnanaseelan to the appellant. This is dated19.1.1995. In this letter, it is stated that the appellant had goneon 14.1.1995 to Palliyadi where his wife was residing and on the nextday, the brother of the respondent, Gnanaseelan had gone to Palliyadiand that he got all the details and told them that the respondent andthe child should be first taken to Kulasekaram and from there, theycan go to Chennai. Another request is made where the father of therespondent has stated that the respondent had enlisted in a ComputerTraining Course and the Course would be over by February and that hewould send her back after February when the Course concludes and bythat time, he should fix the house in Perambur as stated by theappellant. Then he has stated that whatever may be the mistakes, heshould forgive :"vt;tst[ Fw;wk; Fiwfs; ,Ue;jhYk; mij bghWj;J. kd;dpj;J,dpnky; xw;Wikahf ek; ,U FLk;gKk; thH vd; thH;j;Jf;fs;/"He has also stated that he is so happy that the appellant went to hishouse and spent time with his children. Ex.R.3 is another letterdated 7.3.1995 written by Gnanaseelan, in which he has stated that hehad gone and told his father about it and he had stated that theywould send the respondent after Easter. Ex.R.4 is the notice fromthe police. These then are the documents filed by the parties beforethe Family Court.16. The following decisions have been relied on by the counselfor the appellant : https://hcservices.ecourts.gov.in/hcservices/ 1995 (2) L.W. 42 [Romesh Chander vs. Smt. Savitri]2002 (5) L.W. 250 [P. Natarajan vs. Thamizhmani]2003 (4) L.W. 609 : 2003 (2) C.T.C. 375 [Vijaykumar RamachandraBhate vs. Neela V. Bhate](2005) 2 S.C.C. 22 [A. Jayachandra vs. Aneel Kaur]2005 (4) C.T.C. 287 : 2006 (1) L.W. 512 [Durga PrasannaTripathy vs. Arundhati Tripathy]2007 (2) L.W. 340 [Manjula vs. K.R. Mahesh]2007 (2) L.W. 902 [A. Viswanathan vs. G. Lakshmi @ Seetha]17. 1995 (2) L.W. 42 is a case where the Supreme Court, inexercise of its powers under Article 142, dissolved the marriagesince the marriage was dead. 2002 (2) L.W. 250 is a judgment ofK.P. Sivasubramaniam, J. sitting singly. Some of the observationsmade by the learned Judge throw light on such matrimonial problemsand therefore, we will refer to them :"17. I have considered the submissions of both sideswith seriousness which a matrimonial proceeding deserves.It is true that the Court should generally as far aspossible avoid taking a decision which would result in thedisruption of the matrimonial home. At the same time, thisCourt has also to consider as to whether the decisionrendered by the Courts below and the reasonings statedthereon are consistent with the evidence. On an overallconsideration I am inclined to hold that the manner inwhich the Appellate Court had recorded its. findings andconclusions are found to be unsatisfactory in comparisonwith the detailed analysis of the evidence by the TrialCourt. Not only the Appellate Court had refused to lookinto the pleadings and the evidence, but also gone to theextent of justifying the conduct of the wife without anyproper reasons. It may be that the Appellate Court wasinterested in keeping the matrimonial tie intact. But inmatrimonial proceedings, it is also important to see thatparties come to Court only when the continued relationshipbecomes unworkable. Blind refusal to recognise the same, bygiving over importance to sentimental views wouldultimately render the provisions entitling divorceineffective and meaningless. In this case, a reading of thepleadings and evidence disclose the conduct on the part ofthe wife which appears to be very inflexible and with anattitude of financial superiority of her own family,refusal to adjust with the conditions of life in the https://hcservices.ecourts.gov.in/hcservices/ husband's place, heaping insults on the husband and lastbut not the least, allegations of theft and frequentaccusations of adultery against the husband. If thesefeatures do not justify the husband seeking divorce on theground of mental cruelty, there will no justification forretaining the ground of mental cruelty as one of thegrounds for divorce. ...18. In her evidence, she very frankly admits that shefound it impossible to eat the equality of the rice whichwas used in her husband's place and, therefore, she used toget food from her parents house in Thiruvannamalai. Shealso says that even now (after the filing of the petitionfor divorce), she was not prepared to live at Vettavalam(husband's place). Even these admitted pleadings and theevidence on the side of the wife herself have been ignoredby the Appellate Court. There cannot be any better materialthan her own admissions as above, to prove that by herconduct, she had been deliberately insulting and hurtingher husband and his family with a show of financialsuperiority of her own family. Leave alone the traditionalobligations of woman/wife in a Hindu society; even in awestern family, such a behaviour is bound to be treated asclear instance of a wife torturing her husband."The learned Judge differed from the views expressed in 1995 (2) L.W.42 that an allegation that a man is living in illicit intimacy withanother woman will not amount to cruelty and observed as follows :"24. With due respect I am unable to agree with thesaid view. In my opinion, it is not proper to mix upsociological notions and reactions while considering thesacred and personal relationship between a husband and awife. Husband and wife constitute a family and the house istheir fort. What happens within four walls of a house hasits severe impact on the mind of the respective spouse. Onespouse accusing another spouse of adultery, irrespective ofsex, is the worst form of mental cruelty. The relationshipof a husband and wife is built upon on mutual trust,devotion and confidence with each other. An accusation ofadultery either by the husband or wife is bound to haveserious adverse influence on such mutual trust, confidenceand mental peace. If the said element of confidence andtrust is lost, there can be absolutely no peace of mind andno rapport between the two. Therefore, there is nojustification in being diverted by the reasons behind whyadultery was not made an offence as against woman under theIndian Penal Code which was drafted more than a centuryago, which appears to have weighed with the learned Judge. https://hcservices.ecourts.gov.in/hcservices/ Social values and ideas have undergone many changes.Further we art only concerned with the impact on personalrelationship, mutual respect and confidence betweenspouses....31. The only other point which was raised by therespondent which has to be dealt with is that the fact thatthe plaintiff had filed an earlier petition for divorcewould mean that the complaining spouse had condoned thepast conduct and, therefore, will not be entitled to raisethe same ground again in a subsequent petition for divorce,I am unable to agree. The mere hopeful retreat by onespouse with the idea that the other spouse would properlybehave at least in future, cannot have the result ofcompletely wiping out the misconduct. The past misconductwould be certainlpast y relevant in assessing thecumulative effect of the conduct of offending spouse on thevictim spouse...."34. Therefore, here is a case in which the respondenthas been indulging in a series of provocative conduct asagainst the husband as mentioned above inclusive ofaccusing him of theft and adultery. She has also beengiving frequent pinpricks, by even visiting his work place,and behaving in a very violent manner in front of othersthereby creating problems to the husband. ... The cumulative effect of the various actions onthe part of the respondent, clearly establishes mentalcruelty. In spite of the aforementioned reasons, the TrialCourt instead of granting divorce, granted only a decreefor judicial separation. In the said background there wasabsolutely no justification for the Appellate Court to haveinterfered with the decree of the Trial Court."In 2003 (4) L.W. 609, the Supreme Court held that aspersionsregarding infidelity is the worst form of insult and cruelty and thata wife is likely to feel deeply hurt and reasonably apprehend that itwill be dangerous to live with a husband who was taunting her likethat. 2005 (4) C.T.C. 287 : 2006 (1) L.W. 512 was a case where theparties had spent a good part of their lives in litigation and theSupreme Court defined the ingredients of desertion where the wife hadinsisted on the husband shifting from the village to the place whereshe was working; did not visit him on the death of her father-in-law,did not attend the wedding of her brother-in-law; and the https://hcservices.ecourts.gov.in/hcservices/ Conciliation Officer's report was that the wife was willing to livewith the husband only if they live separately. In that case also,the Supreme Court, holding that the marriage was as good as dead anddissolved the marriage on the ground of irretrievable breakdown. Onthe same footing is 2007 (2) L.W. 340. In 2007 (2) L.W. 902, it washeld as follows :20. It is unnecessary for a party claiming divorce toprove that the cruel treatment is of such nature as tocause apprehension, a reasonable apprehension that it willbe harmful or injurious for him or her to live with theother party. Cruelty alleged may largely depend upon thetype of life the parties are accustomed to or theireconomic and social conditions and their culture and humanvalues to which they attach importance....24. It can be clearly seen that the acts of crueltyhad become routine day-to-day affairs and not an isolatedaffair since 1995 and were not restricted to isolatedinstances. This has not been rightly assessed by the FamilyCourt. The material facts as to cruelty have been pleadedand the insistence of the Trial Court is for pleadingevidence which is legally impermissible. It is only thatall material factors needed to clothe the cause of actionhave to be pleaded while material particulars need not bepleaded."18. The following decisions have been relied on by the counselfor the respondent :1992 (2) Current Civil Cases (Rajasthan) 104 [Rajendra PrasadPareek vs. Smt. Krishnadevi Pareek]I (2007) D.M.C. 211 [Pran Nath vs. Pushpa Devi]I (2007) D.M.C. 510 [Narinder Singh vs. Rekha @ Pushpa](1989) 1 M.L.J. 21 [Saroja vs. Arumugam]I (2007) D.M.C. 492 [Sukhwinder Kaur vs. Jatinderbir Singh](2001) 1 M.L.J. 224 [Sarada vs. V. Satyamurthi]I (2007) D.M.C. 460 (DB) [Binapani Bhattacharjee vs. PratapBhattacharjee]2009 (3) SCALE 425 [Vishnu Dutt Sharma vs. Manju Sharma] https://hcservices.ecourts.gov.in/hcservices/

19. In 2009 (3) SCALE 425, the Supreme Court held thatirretrievable breakdown is not provided by the legislature forgranting a decree for divorce and Courts cannot add such a ground toSection 13 of the Hindu Marriage Act. In I (2007) D.M.C. 460 (DB),the appellant/wife came to her parents' house for the purpose ofdelivery and she stayed back to appear for her M.A. Examinations.The High Court held that appearance in examination cannot be termedas a circumstance of cruelty and refused to grant divorce. In (2001)1 M.L.J. 224, this Court held that there is no evidence of cruelty bythe wife. In I (2007) D.M.C. 492, a single Judge of the Punjab andHaryana High Court held that there is no evidence on the record tosubstantiate the plea of cruelty, physical or mental, and that mereallegation that the wife used to stay away for two to three days willnot constitute cruelty. (1989) 1 M.L.J. 1 is perhaps relied on bythe counsel for the respondent on the ground that non-mentioning ofdemand of dowry or holding of panchayat will not falsify the case ofthe petitioner. I (2007) D.M.C. 510 was a case where the trial courthad found that it was the appellant/husband who had deserted hiswife. In I (2007) D.M.C. 211, a learned single Judge of the DelhiHigh Court held that no specific acts of cruelty are made out, apartfrom the respondent staying away from matrimonial home and that noinstances of unacceptable behaviour which would amount to cruelty aremade out.20. In the present case, the respondent' seeks divorce on twogrounds, one of cruelty and the other regarding desertion. Theallegation of illicit intimacy is made in the counter to the petitionfor divorce. In her cross-examination, which has been extractedabove, she had admitted that she had made such allegations and righteven from the time the first child was born, she had been makingthese allegations and that she has the right to continue to make suchallegations. There is no iota of proof that the wife of Viswanathanand the appellant had had any intimate relationship. No instanceswhere she had seen them together or apprehended them in compromisingposition is spelt out either in the pleadings or in the evidence.Therefore, apart from her allegation of illicit intimacy, there is noevidence in this behalf. What is more, she has admitted in hercross-examination that she had gone and told Viswanathan that thereis illicit intimacy between his wife and her husband, for which hehas stated that there is nothing of that sort and that she should gowith her husband. She had also made these allegations to the ChiefMinister's Cell, which had resulted in the Deputy Secretary issuing anotice to the Syndicate Bank, the employer of Viswanathan. When sheis unable to prove adultery, the false allegation of adultery becomesan act of cruelty.21. The following decisions can be referred to in the context asto how cruelty can be construed. In (2005) 2 S.C.C. 22 (supra), theSupreme Court considered the various ingredients that constitutecruelty : https://hcservices.ecourts.gov.in/hcservices/ "10. The expression "cruelty" has not been defined inthe Act. Cruelty can be physical or mental. Cruelty whichis a ground for dissolution of marriage may be defined aswillful and unjustifiable conduct of such character as tocause danger to life, limb or health, bodily or mental, oras to give rise to a reasonable apprehension of such adanger. The question of mental cruelty has to be consideredin the light of the norms of marital ties of the particularsociety to which the parties belong, their social values,status, environment in which they live. Cruelty, as notedabove, includes mental cruelty, which falls within thepurview of a matrimonial wrong. Cruelty need not bephysical. ... In physical cruelty, there can be tangible anddirect evidence, but in the case of mental cruelty theremay not at the same time be direct evidence. In cases wherethere is no direct evidence, Courts are required to probeinto the mental process and mental effect of incidents thatare brought out in evidence. It is in this view that onehas to consider the evidence in matrimonial disputes.11. The expression 'cruelty' has been used in relationto human conduct or human behavior. 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 be mentalor physical, intentional or unintentional.... In such cases, the cruelty will be established ifthe conduct itself is proved or admitted [See Sobha Rani v.Madhukar Reddi, (1988) 1 S.C.C. 105]....14. The foundation of a sound marriage is tolerance,adjustment and respecting one another. Tolerance to eachother's fault to a certain bearable extent has to beinherent in every marriage. Petty quibbles, triflingdifferences should not be exaggerated and magnified todestroy what is said to have been made in heaven. Allquarrels must be weighed from that point of view indetermining what constitutes cruelty in each particularcase and as noted above, always keeping in view thephysical and mental conditions of the parties, theircharacter and social status. A too technical and hyper-sensitive approach would be counter-productive to theinstitution of marriage. The Courts do not have to dealwith ideal husbands and ideal wives. It has to deal withparticular man and woman before it. The ideal couple or a https://hcservices.ecourts.gov.in/hcservices/ mere ideal one will probably have no occasion to go toMatrimonial Court. [See Dastane v. Dastane, (1975) 2 S.C.C.326]."In that case, the respondent/wife had used abusive language and madeallegations of adultery of her husband with the nursing staff. InCollins v. Collins, 1963 (II) All. ER 966, (House of Lords) Lord Reidobserved as follows:"A Judge does and must try to read the minds of theparties in order to evaluate their conduct. In matrimonialcases we are concerned with the reasonable man, as we arein cases of negligence. We are dealing with this man andthis woman and the fewer a priori assumptions we make aboutthem the better. In cruelty cases one can hardly ever evenstart with a presumption that the parties are reasonablepeople, because it is hard to imagine any cruelty case everarising if both the spouses think and behave as reasonablepeople"."In Shoba Rani v. Madhukar Reddi, (1988) 1 S.C.C. 105, the SupremeCourt observed that the Court should not import its own notions ofcustoms and society while considering allegation of cruelty :"It will be necessary to bear in mind that there hasbeen marked change in the life around us. In matrimonialduties and responsibilities in particular, we find a sea-change. They are of varying degrees from house-to-house orperson-to-person. Therefore, when a spouse makes complain'about the treatment of cruelty by the partner in life orrelations, the Court should not search for standard inlife. A set of facts stigmatised as cruelty in one case maynot be so in another case. The cruelty alleged may largelydepend upon the type of life the parties are accustomed toor their economic and social conditions. It may also dependupon their culture and human values to which they attachimportance. We, the Judges and lawyers, therefore, shouldnot import our own notions of life. We may not go inparallel with them. There may be a generation gap betweenus and the parties. It would be better if we keep aside ourcustoms and manners. It would be also better if we lessdepend upon precedents. Because as Lord Denning in Sheldonv. Sheldon, 1966 (2) All. ER 257, 259, "the categories ofcruelty are not closed : Each case may be different. Wedeal with the conduct of human beings who are not generallysimilar. Among the human beings there is no limit to thekind of conduct which may constitute cruelty. New type ofcruelty may crop up in any case depending upon the human https://hcservices.ecourts.gov.in/hcservices/ behaviour, capacity or incapability to tolerate theconduct complained of. Such is the wonderful (sic)realm of cruelty"."In 2003 (2) C.T.C. 375, the Supreme Court observed as follows :"A conscious and deliberate statement leveled withpungency and that too placed on record, through the writtenstatement, cannot so lightly be ignored or brushed aside,to be of no consequence merely because it came to beremoved from the record only. The allegations levelled andthe incidents enumerated in the case on hand, apart fromthey being per se cruel in nature, on their own alsoconstitute an admission of the fact that for quite sometime past the husband had been persistently indulging inthem, unrelented and unmindful of its impact. That thehusband in this case has treated the wife with intensecruelty is a fact, which became a fait accompli the daythey were made in the written statement." 22. The respondent had stated that her mother-in-law is a verycruel lady, who had treated her like a servant. According to theappellant, the respondent had stayed only for one week along with hismother, after which the old lady had gone back to Kulasekaram.Therefore, this allegation that her mother-in-law had treated hercruelly and as a servant and that the appellant said that she shouldgo to Kulasekaran and conduct herself as a servant is also baseless. 23. The marriage between the couple took place on 16.1.1989. Inthe same year, she became pregnant and the appellant had taken her toher parents' house and on 18.12.1989, the first child died.According to the respondent, she was an in-patient in the hospitalfor three months. Therefore, even assuming she had left thematrimonial home only in October or November, 1989, she would havestayed with her husband for about nine months. Then she had returnedback to her matrimonial home and went back to her parents' houseafter about a year, i.e., 21.6.1991 for the second delivery. Thesecond child also died on 31.7.1991 and she had come back only afterabout eight months, i.e., some time in the year 1992. The thirdchild was born in the year 1992. The respondent admits in paragraph11 of her petition for restitution that for a period of two yearsafter the birth of the third child, the appellant would come to hernative village Palliyadi, stay with her for two days and return. Andthat on all these days, she requested him to take her and her childback to Chennai, but he refused to do so on some pretext or theother. This statement is clearly false, since we find that in 1995,he had gone to Palliyadi twice, as seen from the letters ofGnanaseelan, the respondent's brother. From these letters, we alsosee that the appellant had requested them to send the respondent withhim and once, her father appears to have said that she had joined a https://hcservices.ecourts.gov.in/hcservices/ Computer Training Course and that she would go and join him inFebruary, after she completed the Course. Then again when he went tobring her back, her father said that he would send her after Easter.The child was born in 1993 and even after two years, the respondentdid not intend to return to the matrimonial home and was giving oneexcuse or the other and we also see from this letter that it is onlythe parents of the respondent who replied to the appellant's requestand as stated in the letters which are marked as exhibits, theappellant was not staying with her parents whenever he went there andin fact, he did not know here whereabouts. It is clear from this,that the appellant had gone to Palliyadi and therefore, it isincorrect to state that he was not interested in taking therespondent back. 24. Learned counsel for the respondent submitted that a commandto go to his parents' house cannot be seen as a genuine intention torejoin. We are unable to read the letter as though it was a commandby the appellant to the respondent to go to his parents' house. Infact, the appellant has stated in his pleadings that because it was atroubled and difficult pregnancy and since he had already lost twochildren, he felt that instead of leaving her and her child alone inthe house in Chennai when he went to work, it will be better for herto spend some time in Kulasekaram where she would have the support ofhis mother. In fact, the letter written by Gnanaseelan, therespondent's brother, indicates that the appellant had told therespondent's father that first she should be taken to Kulasekaran andhe would take her to Chennai thereafter. The custom is not unknown inour part of the country that after delivery, the mother and the childare first taken to the husband's parents' house and thereafter fromthere, to the husband's house, if the husband is not living in ajoint family along with his parents. Therefore, this is notsomething that shocks us and makes us look at the appellant's requestto the respondent to go over to Kulasekaram as a request that is madewith an oblique motive just to harass her. It is clear that theappellant had made several attempts to go to her native place tobring her back. But it was postponed on one pretext or the other.According to the appellant, the statement that he had shifted housesjust to avoid her does not appear to be correct. Now, across theBar, learned counsel for the appellant stated that he could notreceive her in that small room at Perambur because it could notaccommodate the child and that it was explained, but there is noevidence for that. But, however, we see from the letter of therespondent's brother that first of all, he knew where to contact theappellant and also there was an agreement as to the house which hewould identify for taking the respondent and the child. Therefore,the statement that his whereabouts was not known appears to be false;on the other hand, the statements made in the appellant's letter thatthe whereabouts of the respondent were not known appears to be more https://hcservices.ecourts.gov.in/hcservices/ creditworthy. Whenever he had gone to her house, she was not withher parents and she was living somewhere else and he did not knowwhere she was. 25. Learned counsel for the respondent submitted thatallegations were made regarding the respondent's relationship withone Dorairaj, which were not proved. We need not consider this veryseriously because there is no pleading regarding adultery committedby the respondent with Dorairaj or anyone else. Or even if he hadstated so in his own evidence, we will ignore that. However,definitely he has made out a case both of desertion and cruelty. Thedesertion commenced in 1993 when she had not returned to hermatrimonial home inspite of repeated requests and cruelty because ofthe wild allegations of adultery and also the allegations regardingthe demand of additional dowry have been proved to be false. Infact, the respondent's brother had stated in his letter thathe should forgive and they should live together. 26. Several decisions had been cited, but ultimately whether itis cruelty or whether it is desertion, the question if theingredients of cruelty or the ingredients of desertion are made outwill depend upon the pleadings and the evidence. Multiplication ofdecisions or citations is not going to improve the case of eitherparty. From the pleadings and evidence, we find that the appellanthad made out a case of cruelty and desertion. The learned PrincipalJudge, Family Court had summarily referred to the allegationregarding Dorairaj and observed that if the respondent's adultery hadcaused him mental agony and cruelty, he should have proved it.Adultery is not the ground on which he had come to Court. In hispetition for divorce, he has stated that the allegation of adulterymade against him by the respondent amounted to cruelty and thatharassment by them in his office and police complaints amounted tocruelty. We feel that the Family Court had digressed in this regardand had not focussed on the real facts in issue. 27. We hold that the appellant has succeeded in provingdesertion and cruelty, because –(a) The respondent left the appellant's house in 1993 and didnot return, though the appellant went and requested her to return(see Exs.R.2 and R.3); she had joined a Computer Training Coursewhile being in her parents' house, which shows her intention not toreturn to the appellant's house. So, both the intention and the factof abandoning the matrimonial house is proved. (b) The respondent's baseless allegation of adultery is an actof cruelty and her evidence that she will continue to accuse himshows her persistence in cruelty. https://hcservices.ecourts.gov.in/hcservices/

28. An attempt was made here to see if the appellant could atleast have some contact with his son, but the appellant seems to bein a state of great distress. Therefore, we felt that if he was notready to patch up or build a relationship with his son, it is not forus to force anything on any part. The appellant was ready to giveany financial help within his capacity. 29. As regards the petition for restitution of conjugal rights,the petition itself does not appear to be bona fide. Throughout inher pleadings, i.e., in her petition for restitution of conjugalrights as well as in her counter to the petition filed by theappellant for divorce, there are constant allegations of cruelty andtorment. The letters which were marked as exhibits also repeat thesame things. She is obsessed with the presence of Viswanathan in herhusband's life and the letters repeatedly talk to the 'saddist'Viswanathan. If she had genuinely wanted to resume her conjugalrelationship with her husband, when the husband went to Palliyadi in1995, she would have gone back with him soon after she completed theComputer Training Course. She did not do so. 30. One more aspect has to be taken note of. If a girl marrieswhile she is pursuing her degree course and soon after the deliveryof the child her examinations commence, then she may justifiablycontinue to stay in her parents' house to appear for her examinationswhile the infant is in her mother's care. But a person who had goneto her parents' house for the third delivery in 1993, takes up aComputer Training Course which she is unable to complete even in1995, then it definitely shows an intention not to return to herhusband's house. And thereafter, to claim that she has a bona fideintention to resume conjugal relationship which is thwarted andfrustrated by the husband does not appear to be genuine. The twoletters written by the respondent's brother Gnanaseelan really closethe case for the respondent and therefore, the Family Court ought nothave automatically granted the decree for restitution of conjugalrights. She has admitted in her evidence that, "mz;zd; "hdrPyd;vGjpa foj';fs;"; so she has admitted both the letters. She has alsoadmitted that her father said that he would sent her later, i.e.,after Easter. Therefore, after all this, to come to the Courtseeking to restore conjugal rights does not appear to be justified. 31. Family Courts should independently examine the facts in eachcase before granting the prayer for divorce as well as forrestitution of conjugal rights. Sometimes, one petition is filed byone spouse, and perhaps in retaliation, the second petition is filedby the other spouse. In this case, the petition for restitution ofconjugal rights was filed first and then the petition for divorce.If a decree for restitution of conjugal rights is granted, thepetition for divorce by the other party may have to be consequentlyrejected. But, if a petition for divorce is dismissed because thegrounds have not been proved, the petition filed by the other spouse https://hcservices.ecourts.gov.in/hcservices/ for restitution of conjugal rights may not necessarily be decreed.The Courts still must examine whether the prayer for restitution ofconjugal rights is bona fide or not.32. For all the reasons aforementioned, the judgment and decreeof the Principal Judge, Family Court, Chennai in F.C.O.P. Nos.674 of1997 and 623 of 1995 are set aside and both these civil miscellaneousappeals are allowed. There shall be no order as to costs. sd/-Asst.Registrar/true copy/Sub Asst.Registrar abTo1. The Principal Judge, Family Court, Chennai.2. The Section Officer, V.R. Section, High Court, Madras.+ 4 c.cs. to Mr. A.M. Krishnamoorthy, Advocate. S.R.No.14098 & 14097. Judgment in C.M.As.2871 & 2872 of 2004GV (CO)GSK 11.05.2009.