Madras High Court · 2025
Case Details
Acts & Sections
Cited in this judgment
the Family Courts Act praying this Court to set aside the order and decretal order made in H.M.O.P.Nos.86 of 2014 and 35 of 2015, dated 16.09.2021, on the file of Family Court, Tiruvallur. For Appellant: Mr.K.J.Parthasarathy in both appeals For Respondent : Mrs.M.Udaya Banu in both appealsCOMMON JUDGMENT(Judgment of the Court was made by R.KALAMATHI.,J) CM.A.No.3566 of 2021 has been preferred against the Order, dated 16.09.2021 made in H.M.O.P.No.86 of 2014 filed by the wife under Section 13(1)(i-a) of the Hindu Marriage Act,1955 for an order of divorce on the ground of cruelty. Whereas H.M.O.P.No.35 of 2015 has been preferred by the husband for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955.2.For easy reference, the wife is referred to as the Petitioner and the 2/21 https://www.mhc.tn.gov.in/judis husband is referred to as the respondent in the judgment.3.The facts set out in Petition in H.M.O.P.No.86 of 2014 and counter in H.M.O.P.No.35 of 2015 are given in brief:The marriage between the Petitioner and respondent was solemnized on 19.05.1999 at Sri Lakshmi Thirumana Maligai, Iyyappanthangal, Chennai-56 as per Hindu Rites and Customs. Out of the lawful wedlock, a boy baby by name Ajay Kumar was born on 03.05.2000 and a girl baby by name Iswarya was born on 18.10.2004. Right from the date of marriage, the respondent-husband had been incompatible with her and misunderstanding developed day-by-day. The Petitioner is living at her parents house. The respondent used to consume alcohol. He sold the gold ornaments of the Petitioner and he would spend money for his vicious habits. When it was questioned by her, he brutally assaulted her in front of their children. The respondent instigated the Petitioner to extract further dowry from her parents. The Petitioner’s parents also gave some financial 3/21 https://www.mhc.tn.gov.in/judis support. He bet her with leather belt and poured kerosene on the Petitioner and tried to obtain signature in a blank paper. The respondent husband compelled her to transfer the immovable property in his name. In fact, the properties are owned by her father. If she humbly expressed her inability, she was threatened with knife by her husband in the presence of their children. On 23.12.2012, the respondent and his mother Vasantha chased and brutally attacked her, without any reason. 4.The details of the counter in C.M.A.No.86 of 2014 and the averments made in the Petition in H.M.O.P.No.35 of 2015 are given in brief:Marriage and the birth of the children are admitted. After the birth of the children, the Petitioner wife lost her interest in the matrimonial life and moved towards religious based life with the help of her mentor. She gave all her sreedhana jewels and other articles to the religious organization at the instigation of her mentor. On 23.12.2012, the Petitioner wife with an intention to break away from the family life went to her parents house. The respondent/husband requested 4/21 https://www.mhc.tn.gov.in/judis the Petitioner to join with him, but she would pick up quarrel unnecessarily. The respondent denies the allegations to the effect that he used to consume alcohol and bet the Petitioner habitually. The gold ornaments were weighing 150 sovereigns are kept in Iyyppanthanal Co-operative Society. The gold ornaments were clandestinely given to the religious mentor by the Petitioner including the jewels purchased for the Petitioner’s daughter. The Petitioner threatened him to commit suicide if the matter is taken up to the Police. In the last week of December 2012, on a fine morning, the Petitioner wife left the matrimonial home with ornaments which was kept in the locker, pattu sarees and other valuables along with her medical prescriptions and school certificates. After that, she never returned to the matrimonial home. Due to the same, the respondent/husband lodged complaint before the Commissioner of Police on 07.03.2014. The Petitioner/wife came forward to replace the jewels by giving vacant plots of Tiruvallur in the name of the respondent. On 31.03.2013, before the Police the respondent condoned the acts of the Petitioner for loss of Rs.50 lakhs worth jewellery in a magnanimous manner and called the Petitioner to the matrimonial home. Due to her brother’s death, she mentally suffers a lot. The Petitioner wife 5/21 https://www.mhc.tn.gov.in/judis has been neglecting the respondent without any reason. 5.In the counter filed in H.M.O.P.No.35 of 2015, it has been averred that the facts narrated as to the police enquiry is incorrect. No such undertaking was given before the Police. 6.At trial, wife/ Kamatchi has examined herself as P.W.1 and through her nine documents were marked. Ex.P5 is the police complaint given by the Petitioner/wife against her husband with CSR Copy and the explanation given by the respondent-husband. On the side of the respondent/husband, two witnesses have been examined and eight documents have been marked. 7.Upon consideration, the Family Court, Tiruvallur held that the acts of cruelty have been proved and henceforth, the H.M.O.P: filed by the wife was allowed by granting dissolution of marriage solemnized between the Petitioner and respondent on 19.05.1999 and the Petition for restitution of conjugal rights 6/21 https://www.mhc.tn.gov.in/judis filed by the husband was dismissed.8.P.W.1 Kamalatchi has filed her proof affidavit in line with the details of her petition. It has come on record through her cross-examination that her husband used to beat her without any reason from the date of marriage. She would further assert that her husband did not happily run the family. On the other hand, she would state that she has not lodged any complaint against her husband nor she told her parents. It is her further evidence that whenever her husband was unwell glucose will be given through trips. She would also state that because of the cruelty that were committed in the presence of children, the children are mentally affected by the same. It is her further evidence that her husband demanded her to get property from her parents. But no police complaint was lodged against her husband. As the respondent bet her, her parents came to the matrimonial home and took her to their residence. Since 2012, she has been residing along with her parents. When she was posed a question that before got separated, they went to Singapore along with children and for that, she answered that because of the compulsion of the children, they went to Singapore. When 7/21 https://www.mhc.tn.gov.in/judis she was posed a question that her husband has filed a petition for restitution of conjugal rights, she has answered that she is scarred to live along with him. When after so-many questions are posed and answers were got from her, again the same question was posed on her to the effect that her husband is interested in living with her, again she has reiterated the same answer that she is so scarred to live with him. 9.Per contra, R.W.1 RaviKumar, husband of the Petitioner would state in his cross-examination that the Petitioner wife lost her interest in the matrimonial life after her brother’s death. He has also averred in his proof affidavit that after the birth of her children, she does not have any interest in the matrimonial life. She lost her interest in the matrimonial life. As regards the consumption of alcohol, he would state that on some occasion, he used to consume alcohol. When he was posed a suggestion that because of this drinking habit, he had problem with her wife, he has answered in negative He would further state that she left the matrimonial home in the year 2012 and thereafter, she did not return to his residence. 8/21 https://www.mhc.tn.gov.in/judis
10.The Petitioner/wife has completed her bachelor degree and the respondent husband has completed B.Sc degree and MBA degree. She is a house wife and the respondent is working as a Collection Agent in a nationalized bank. From the entire evidence of both sides, it appears that the respondent hails from a very affluent family and he is living in a joint family consisting of mother, elder brother, younger brother and they are living in a separate house in a compound along with their respective family members.11.Ex.P5 is the copy of the complaint lodged by the Petitioner/wife and along with complaint CSR is enclosed herein. The complaint is dated 17.01.2013 It reads that her husband Ravikumar daily consumes alcohol and used to beat her and her children and thereby committed the act of cruelty. It further reads that she has come out of the matrimonial home and she has come to her parents house at Kadampathur. The respondent cane to her parents residence under intoxication and abused her in filthy language and tried to assault her.. 9/21 https://www.mhc.tn.gov.in/judis
12.As per the Petition and proof affidavit of P.W.1/wife the respondent is a chronic drunkard. He used to beat her in the presence of children. Her gold ornaments were sold out by the respondent for his vicious habits. If the Petitioner questioned her husband, he would brutally assault his wife which persisted the Petitioner to get along from the Petitioner’s parents. The respondent used to call the Petitioner as a servant-maid. On 23.12.2012, the respondent and his mother Vasantha chased her and brutally assaulted her for no reasons. The acts of cruelty averred by the petitioner have been invariably denied by the respondents. It is his contention that after the birth of the children and especially, after the death of her brother, the Petitioner/wife has lost her interest in the matrimonial life. It is the further contention of the respondent husband that the Petitioner has joined in a religious institution and at the instance of her religious mentor, she does not show any interest in the matrimonial life. 13.In the matrimonial cases, burden of proof rest on the Petitioner as regards the decree of probability and it is not beyond reasonable doubt. It is only based on preponderance of probabilities. 10/21 https://www.mhc.tn.gov.in/judis
14.The relevant portion of the order made in C.M.A.No.17/2023 by the Principal Bench of this Court is extracted hereunder:“15. As regards the word 'Cruelty', the Court has got a wider spectrum for consideration so as to apply it contextually. It depends upon the educational, social and financial background of spouse, culture,conduct of husband and wife, physical and mental weakness of the spouse, etc. The reasons are enumerative and exhaustive. It differs in each household and each person. Even deliberate and willful intention may not matter at times.16. With the passage of time, due to the impact of, especially electronic media, the concept of cruelty is bound to change from time to time. There cannot be any fixed parameters for determining the issue of cruelty in matrimonial matters. Therefore, it is prudent to adjudicate on a case to case basis, by evaluating in a given situation. Acts of cruelty would differ from person to person and man to a woman and a broad approach is the need of the hour in matrimonial matters. In the modern era, issues have to be dealt with some latitudinarianism.17. Useful reference may be made as to the observations of the Apex Court 11/21 https://www.mhc.tn.gov.in/judis in the matters of granting of divorce on the ground of cruelty in Dr.N.G.Dastane Vs. Mrs.S.Dastane reported in 1975 (2) SCC326, the Hon'ble Supreme court has held that:“27. The misconception regarding the standard of proof in matrimonial cases arises perhaps from a loose description of the respondent's conduct in such cases as constituting a“matrimonial offence”. Acts of a spouse which are calculated to impair the integrity of a marital union have a social significance. To marry or not to marry and if so whom, may well be a private affair but the freedom to break a matrimonial tie is not. The society has a stake in the institution of marriage and therefore the erring spouse is treated not as a mere defaulter but as an offender. But this social philosophy, though it may have a bearing on the need to have the clearest proof of an allegation before it is accepted as a ground for the dissolution of a marriage, has no bearing on the standard of proof in matrimonial cases.”18. It is relevant to refer the observations made by the Hon'ble Supreme Court in V.Bhagat Vs. D.Bhagat reported in (1994) 1 SCC 337:“16. Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such 12/21 https://www.mhc.tn.gov.in/judis conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together incase they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”19.In Samar Ghosh vs Jaya Ghosh reported in (2007) 4 SCC 511, the Hon'ble Supreme Court has held that:“101. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behavior of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.”20. In the case of Roopa Soni Vs. Kamalnarayan Soni reported in 2023 SCC Online SC 1127 has observed that “...the court as the interpreter of law is supposed to supply omissions, correct uncertainties, and harmonize results with justice through a method of free decision — libre recherché scientifique i.e. “free scientific research”..13/21 https://www.mhc.tn.gov.in/judis
15. It is seen from both sides pleadings and evidence that the Petitioner and respondent along with their children had been living initially together with the respondents brother’s family and thereafter, they started to live in a separate house in the same compound. The Petitioner is a home-maker and she has completed her bachelor decree. The respondent is working as a Collection Agent in a nationalized bank. He has completed bachelor degree in science and MBA degree. 16. From both sides evidence, it is discernible that both hail from affluent family. Their marriage was solemnized on 19.05.1999 and in the next year, a boy baby was born to her and in the year 2004, a girl baby was born to her through respondent are all admitted facts. H.M.O.P.NO. 86 of 2014 was filed in the year 2014 by the Petitioner/wife for dissolution of marriage and the respondent husband filed H.M.O.P.No.35 of 2015 for restitution of conjugal rights in the next year 2015. Therefore almost 15 years they lived together and her main allegations are that he is an alcohol consumer and he used to beat her irrationally and that too, in the presence of the children and they are also mentally affected 14/21 https://www.mhc.tn.gov.in/judis by the said act. Ex.P5 is the copy of the complaint enclosed with CSR reads that in the year 2012, because of the acts of cruelties, she came to her parents house. But in her petition as well as in the proof affidavit she would state that her husband along with mother-in-law chased her and assaulted her and sent her out of the matrimonial home. On the other hand, the respondent husband has assigned reasons that his wife has joined in a religious institution and after the death of her brother, she lost her interest in the matrimonial life and stoutly denied the acts of cruelty expressed by the wife. 17.It is relevant to note that from the year 2012, the Petitioner-wife leaving her son and daughter along with the respondent, went to her parents residence and since then, she has been residing at her parents residence for more than a decade. To constitute the acts as cruelty, the conduct which complained of should be grave and it is something more serious than ordinary wear and tear of marital life. 18.Furthermore, it is the consistent evidence of the Petitioner/wife that it 15/21 https://www.mhc.tn.gov.in/judis is the habit of the husband that he would often beat her in the presence of the children for some lame reason. No mother would leave her children and go to her parents house easily. It is also relevant to note that the respondent-husband had also gone to the residence of the Petitioner’s parents and took some steps to bring his wife back to the matrimonial home. But all went in vein. Therefore, the Petitioner thereby indicates that she has reached the saturated level as to the acts of cruel acts of her husband. Therefore, the acts of cruelty complained of by the Petitioner have to be considered as serious one from the point of view of the Petitioner. 19.We are conscious of the fact that petty quibbles, trivial differences between the husband and wife should not be exaggerated and magnified in order to destroy the marriage, which is sacrosanct and which is made in heaven as per Hindu customs. The acts of cruelty have to be seen from the perspective of the Petitioner. We are also conscious of the fact that hyper sensitive approach would the fateful to the institution of marriage. Therefore, as regards the Petitioner, the acts of cruelty alleged/complained of by her are taken to have been seriously and 16/21 https://www.mhc.tn.gov.in/judis she is at her parents residence since 2012, leaving her two children along with her husband. No doubt, it will be painful for the mother and children when they are in separation. But the Petitioner during her cross examination also candidly answered that she is so scarred of, to come to the matrimonial home. Twice the same question was posed during the cross examination and she has given the same answer which would show the irresistible conclusion that she wants to discard her matrimonial tie and she has discarded the same since 2012. Therefore, except the marriage tie, relationship between the spouses is clearly broken down. At this juncture, let us take note of the real situation. Emotions and feelings of the Petitioner has to be given due regard compared to the respondent. In the given circumstances, refusing to discard marital tie will not serve any purpose and due to the persistent acts of cruelties, the Petitioner has been living along with her parents since 2012. We also find no good reason to reverse the findings of the Family Court. 20.Based on the aforesaid discussions, it is better for the parties to the proceedings to discard their marital life once for all. In order to have an effective 17/21 https://www.mhc.tn.gov.in/judis justice, this Court is of the view that both the appeals deserves no merit acceptance. Accordingly, both the Civil Miscellaneous Appeals are dismissed. There is no order as to costs. Consequently, connected Miscellaneous Petition is closed. (J.N.B.,J) (R.K.M.,J) 03.01.2025NCS : Yes/NoIndex : Yes / NoInternet : Yes / Novsn ToThe Judge,Family Court,Tiruvallur.Copy toThe Section Officer,V.R.Section,Madras High Court,Madurai.18/21 https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis J.NISHA BANU.,JANDR.KALAIMATHI.,J.vsnCOMMON JUDGMENT MADE INC.M.A.Nos.3566 and 3567 of 2021andC.M.P.No.20777 of 202103.01.202520/21 https://www.mhc.tn.gov.in/judis
the Family Courts Act praying this Court to set aside the order and decretal order made in H.M.O.P.Nos.86 of 2014 and 35 of 2015, dated 16.09.2021, on the file of Family Court, Tiruvallur. For Appellant: Mr.K.J.Parthasarathy in both appeals For Respondent : Mrs.M.Udaya Banu in both appealsCOMMON JUDGMENT(Judgment of the Court was made by R.KALAMATHI.,J) CM.A.No.3566 of 2021 has been preferred against the Order, dated 16.09.2021 made in H.M.O.P.No.86 of 2014 filed by the wife under Section 13(1)(i-a) of the Hindu Marriage Act,1955 for an order of divorce on the ground of cruelty. Whereas H.M.O.P.No.35 of 2015 has been preferred by the husband for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955.2.For easy reference, the wife is referred to as the Petitioner and the 2/21 https://www.mhc.tn.gov.in/judis husband is referred to as the respondent in the judgment.3.The facts set out in Petition in H.M.O.P.No.86 of 2014 and counter in H.M.O.P.No.35 of 2015 are given in brief:The marriage between the Petitioner and respondent was solemnized on 19.05.1999 at Sri Lakshmi Thirumana Maligai, Iyyappanthangal, Chennai-56 as per Hindu Rites and Customs. Out of the lawful wedlock, a boy baby by name Ajay Kumar was born on 03.05.2000 and a girl baby by name Iswarya was born on 18.10.2004. Right from the date of marriage, the respondent-husband had been incompatible with her and misunderstanding developed day-by-day. The Petitioner is living at her parents house. The respondent used to consume alcohol. He sold the gold ornaments of the Petitioner and he would spend money for his vicious habits. When it was questioned by her, he brutally assaulted her in front of their children. The respondent instigated the Petitioner to extract further dowry from her parents. The Petitioner’s parents also gave some financial 3/21 https://www.mhc.tn.gov.in/judis support. He bet her with leather belt and poured kerosene on the Petitioner and tried to obtain signature in a blank paper. The respondent husband compelled her to transfer the immovable property in his name. In fact, the properties are owned by her father. If she humbly expressed her inability, she was threatened with knife by her husband in the presence of their children. On 23.12.2012, the respondent and his mother Vasantha chased and brutally attacked her, without any reason. 4.The details of the counter in C.M.A.No.86 of 2014 and the averments made in the Petition in H.M.O.P.No.35 of 2015 are given in brief:Marriage and the birth of the children are admitted. After the birth of the children, the Petitioner wife lost her interest in the matrimonial life and moved towards religious based life with the help of her mentor. She gave all her sreedhana jewels and other articles to the religious organization at the instigation of her mentor. On 23.12.2012, the Petitioner wife with an intention to break away from the family life went to her parents house. The respondent/husband requested 4/21 https://www.mhc.tn.gov.in/judis the Petitioner to join with him, but she would pick up quarrel unnecessarily. The respondent denies the allegations to the effect that he used to consume alcohol and bet the Petitioner habitually. The gold ornaments were weighing 150 sovereigns are kept in Iyyppanthanal Co-operative Society. The gold ornaments were clandestinely given to the religious mentor by the Petitioner including the jewels purchased for the Petitioner’s daughter. The Petitioner threatened him to commit suicide if the matter is taken up to the Police. In the last week of December 2012, on a fine morning, the Petitioner wife left the matrimonial home with ornaments which was kept in the locker, pattu sarees and other valuables along with her medical prescriptions and school certificates. After that, she never returned to the matrimonial home. Due to the same, the respondent/husband lodged complaint before the Commissioner of Police on 07.03.2014. The Petitioner/wife came forward to replace the jewels by giving vacant plots of Tiruvallur in the name of the respondent. On 31.03.2013, before the Police the respondent condoned the acts of the Petitioner for loss of Rs.50 lakhs worth jewellery in a magnanimous manner and called the Petitioner to the matrimonial home. Due to her brother’s death, she mentally suffers a lot. The Petitioner wife 5/21 https://www.mhc.tn.gov.in/judis has been neglecting the respondent without any reason. 5.In the counter filed in H.M.O.P.No.35 of 2015, it has been averred that the facts narrated as to the police enquiry is incorrect. No such undertaking was given before the Police. 6.At trial, wife/ Kamatchi has examined herself as P.W.1 and through her nine documents were marked. Ex.P5 is the police complaint given by the Petitioner/wife against her husband with CSR Copy and the explanation given by the respondent-husband. On the side of the respondent/husband, two witnesses have been examined and eight documents have been marked. 7.Upon consideration, the Family Court, Tiruvallur held that the acts of cruelty have been proved and henceforth, the H.M.O.P: filed by the wife was allowed by granting dissolution of marriage solemnized between the Petitioner and respondent on 19.05.1999 and the Petition for restitution of conjugal rights 6/21 https://www.mhc.tn.gov.in/judis filed by the husband was dismissed.8.P.W.1 Kamalatchi has filed her proof affidavit in line with the details of her petition. It has come on record through her cross-examination that her husband used to beat her without any reason from the date of marriage. She would further assert that her husband did not happily run the family. On the other hand, she would state that she has not lodged any complaint against her husband nor she told her parents. It is her further evidence that whenever her husband was unwell glucose will be given through trips. She would also state that because of the cruelty that were committed in the presence of children, the children are mentally affected by the same. It is her further evidence that her husband demanded her to get property from her parents. But no police complaint was lodged against her husband. As the respondent bet her, her parents came to the matrimonial home and took her to their residence. Since 2012, she has been residing along with her parents. When she was posed a question that before got separated, they went to Singapore along with children and for that, she answered that because of the compulsion of the children, they went to Singapore. When 7/21 https://www.mhc.tn.gov.in/judis she was posed a question that her husband has filed a petition for restitution of conjugal rights, she has answered that she is scarred to live along with him. When after so-many questions are posed and answers were got from her, again the same question was posed on her to the effect that her husband is interested in living with her, again she has reiterated the same answer that she is so scarred to live with him. 9.Per contra, R.W.1 RaviKumar, husband of the Petitioner would state in his cross-examination that the Petitioner wife lost her interest in the matrimonial life after her brother’s death. He has also averred in his proof affidavit that after the birth of her children, she does not have any interest in the matrimonial life. She lost her interest in the matrimonial life. As regards the consumption of alcohol, he would state that on some occasion, he used to consume alcohol. When he was posed a suggestion that because of this drinking habit, he had problem with her wife, he has answered in negative He would further state that she left the matrimonial home in the year 2012 and thereafter, she did not return to his residence. 8/21 https://www.mhc.tn.gov.in/judis
10.The Petitioner/wife has completed her bachelor degree and the respondent husband has completed B.Sc degree and MBA degree. She is a house wife and the respondent is working as a Collection Agent in a nationalized bank. From the entire evidence of both sides, it appears that the respondent hails from a very affluent family and he is living in a joint family consisting of mother, elder brother, younger brother and they are living in a separate house in a compound along with their respective family members.11.Ex.P5 is the copy of the complaint lodged by the Petitioner/wife and along with complaint CSR is enclosed herein. The complaint is dated 17.01.2013 It reads that her husband Ravikumar daily consumes alcohol and used to beat her and her children and thereby committed the act of cruelty. It further reads that she has come out of the matrimonial home and she has come to her parents house at Kadampathur. The respondent cane to her parents residence under intoxication and abused her in filthy language and tried to assault her.. 9/21 https://www.mhc.tn.gov.in/judis
12.As per the Petition and proof affidavit of P.W.1/wife the respondent is a chronic drunkard. He used to beat her in the presence of children. Her gold ornaments were sold out by the respondent for his vicious habits. If the Petitioner questioned her husband, he would brutally assault his wife which persisted the Petitioner to get along from the Petitioner’s parents. The respondent used to call the Petitioner as a servant-maid. On 23.12.2012, the respondent and his mother Vasantha chased her and brutally assaulted her for no reasons. The acts of cruelty averred by the petitioner have been invariably denied by the respondents. It is his contention that after the birth of the children and especially, after the death of her brother, the Petitioner/wife has lost her interest in the matrimonial life. It is the further contention of the respondent husband that the Petitioner has joined in a religious institution and at the instance of her religious mentor, she does not show any interest in the matrimonial life. 13.In the matrimonial cases, burden of proof rest on the Petitioner as regards the decree of probability and it is not beyond reasonable doubt. It is only based on preponderance of probabilities. 10/21 https://www.mhc.tn.gov.in/judis
14.The relevant portion of the order made in C.M.A.No.17/2023 by the Principal Bench of this Court is extracted hereunder:“15. As regards the word 'Cruelty', the Court has got a wider spectrum for consideration so as to apply it contextually. It depends upon the educational, social and financial background of spouse, culture,conduct of husband and wife, physical and mental weakness of the spouse, etc. The reasons are enumerative and exhaustive. It differs in each household and each person. Even deliberate and willful intention may not matter at times.16. With the passage of time, due to the impact of, especially electronic media, the concept of cruelty is bound to change from time to time. There cannot be any fixed parameters for determining the issue of cruelty in matrimonial matters. Therefore, it is prudent to adjudicate on a case to case basis, by evaluating in a given situation. Acts of cruelty would differ from person to person and man to a woman and a broad approach is the need of the hour in matrimonial matters. In the modern era, issues have to be dealt with some latitudinarianism.17. Useful reference may be made as to the observations of the Apex Court 11/21 https://www.mhc.tn.gov.in/judis in the matters of granting of divorce on the ground of cruelty in Dr.N.G.Dastane Vs. Mrs.S.Dastane reported in 1975 (2) SCC326, the Hon'ble Supreme court has held that:“27. The misconception regarding the standard of proof in matrimonial cases arises perhaps from a loose description of the respondent's conduct in such cases as constituting a“matrimonial offence”. Acts of a spouse which are calculated to impair the integrity of a marital union have a social significance. To marry or not to marry and if so whom, may well be a private affair but the freedom to break a matrimonial tie is not. The society has a stake in the institution of marriage and therefore the erring spouse is treated not as a mere defaulter but as an offender. But this social philosophy, though it may have a bearing on the need to have the clearest proof of an allegation before it is accepted as a ground for the dissolution of a marriage, has no bearing on the standard of proof in matrimonial cases.”18. It is relevant to refer the observations made by the Hon'ble Supreme Court in V.Bhagat Vs. D.Bhagat reported in (1994) 1 SCC 337:“16. Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such 12/21 https://www.mhc.tn.gov.in/judis conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together incase they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”19.In Samar Ghosh vs Jaya Ghosh reported in (2007) 4 SCC 511, the Hon'ble Supreme Court has held that:“101. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behavior of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.”20. In the case of Roopa Soni Vs. Kamalnarayan Soni reported in 2023 SCC Online SC 1127 has observed that “...the court as the interpreter of law is supposed to supply omissions, correct uncertainties, and harmonize results with justice through a method of free decision — libre recherché scientifique i.e. “free scientific research”..13/21 https://www.mhc.tn.gov.in/judis
15. It is seen from both sides pleadings and evidence that the Petitioner and respondent along with their children had been living initially together with the respondents brother’s family and thereafter, they started to live in a separate house in the same compound. The Petitioner is a home-maker and she has completed her bachelor decree. The respondent is working as a Collection Agent in a nationalized bank. He has completed bachelor degree in science and MBA degree. 16. From both sides evidence, it is discernible that both hail from affluent family. Their marriage was solemnized on 19.05.1999 and in the next year, a boy baby was born to her and in the year 2004, a girl baby was born to her through respondent are all admitted facts. H.M.O.P.NO. 86 of 2014 was filed in the year 2014 by the Petitioner/wife for dissolution of marriage and the respondent husband filed H.M.O.P.No.35 of 2015 for restitution of conjugal rights in the next year 2015. Therefore almost 15 years they lived together and her main allegations are that he is an alcohol consumer and he used to beat her irrationally and that too, in the presence of the children and they are also mentally affected 14/21 https://www.mhc.tn.gov.in/judis by the said act. Ex.P5 is the copy of the complaint enclosed with CSR reads that in the year 2012, because of the acts of cruelties, she came to her parents house. But in her petition as well as in the proof affidavit she would state that her husband along with mother-in-law chased her and assaulted her and sent her out of the matrimonial home. On the other hand, the respondent husband has assigned reasons that his wife has joined in a religious institution and after the death of her brother, she lost her interest in the matrimonial life and stoutly denied the acts of cruelty expressed by the wife. 17.It is relevant to note that from the year 2012, the Petitioner-wife leaving her son and daughter along with the respondent, went to her parents residence and since then, she has been residing at her parents residence for more than a decade. To constitute the acts as cruelty, the conduct which complained of should be grave and it is something more serious than ordinary wear and tear of marital life. 18.Furthermore, it is the consistent evidence of the Petitioner/wife that it 15/21 https://www.mhc.tn.gov.in/judis is the habit of the husband that he would often beat her in the presence of the children for some lame reason. No mother would leave her children and go to her parents house easily. It is also relevant to note that the respondent-husband had also gone to the residence of the Petitioner’s parents and took some steps to bring his wife back to the matrimonial home. But all went in vein. Therefore, the Petitioner thereby indicates that she has reached the saturated level as to the acts of cruel acts of her husband. Therefore, the acts of cruelty complained of by the Petitioner have to be considered as serious one from the point of view of the Petitioner. 19.We are conscious of the fact that petty quibbles, trivial differences between the husband and wife should not be exaggerated and magnified in order to destroy the marriage, which is sacrosanct and which is made in heaven as per Hindu customs. The acts of cruelty have to be seen from the perspective of the Petitioner. We are also conscious of the fact that hyper sensitive approach would the fateful to the institution of marriage. Therefore, as regards the Petitioner, the acts of cruelty alleged/complained of by her are taken to have been seriously and 16/21 https://www.mhc.tn.gov.in/judis she is at her parents residence since 2012, leaving her two children along with her husband. No doubt, it will be painful for the mother and children when they are in separation. But the Petitioner during her cross examination also candidly answered that she is so scarred of, to come to the matrimonial home. Twice the same question was posed during the cross examination and she has given the same answer which would show the irresistible conclusion that she wants to discard her matrimonial tie and she has discarded the same since 2012. Therefore, except the marriage tie, relationship between the spouses is clearly broken down. At this juncture, let us take note of the real situation. Emotions and feelings of the Petitioner has to be given due regard compared to the respondent. In the given circumstances, refusing to discard marital tie will not serve any purpose and due to the persistent acts of cruelties, the Petitioner has been living along with her parents since 2012. We also find no good reason to reverse the findings of the Family Court. 20.Based on the aforesaid discussions, it is better for the parties to the proceedings to discard their marital life once for all. In order to have an effective 17/21 https://www.mhc.tn.gov.in/judis justice, this Court is of the view that both the appeals deserves no merit acceptance. Accordingly, both the Civil Miscellaneous Appeals are dismissed. There is no order as to costs. Consequently, connected Miscellaneous Petition is closed. (J.N.B.,J) (R.K.M.,J) 03.01.2025NCS : Yes/NoIndex : Yes / NoInternet : Yes / Novsn ToThe Judge,Family Court,Tiruvallur.Copy toThe Section Officer,V.R.Section,Madras High Court,Madurai.18/21 https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis J.NISHA BANU.,JANDR.KALAIMATHI.,J.vsnCOMMON JUDGMENT MADE INC.M.A.Nos.3566 and 3567 of 2021andC.M.P.No.20777 of 202103.01.202520/21 https://www.mhc.tn.gov.in/judis