D. Nagappan vs T. Virgin Rani

Prabha Sridevan, J.—Both these appeals have been filed by the husband. The Family Court dismissed F.C.O.P. No. 674 of 1997 filed by

the husband for divorce and allowed F.C.O.P. No. 623 of 1995 filed by the wife, the respondent herein, for restitution of conjugal rights. The

parties will be referred to as appellant and respondent, which is how they are arrayed in these appeals, so that there may be consistency in

reference. F.C.O.P. No. 623 of 1995 was filed first and therefore, we will look at the pleadings therein.

The couple got married in a Roman Catholic Church in Kanyakumari on 16.1.1989. According to the respondent, since she was the only daughter

of her parents, her parents performed the marriage lavishly and bore the entire expenses. She is a Physics Graduate and had completed her P.G.

Diploma Course in Computer Science. The appellant gave her to understand that he was qualified as an Engineer working in the Railways. To her

shock, she found that he was only a Head Draftsman. Her parents questioned him as to why he uttered falsehood, but since the marriage

preparations were at an advanced stage, they did not cancel the marriage. After the marriage, they resided together as husband and wife in

Perambur. The appellant allegedly behaved in a rude and crude manner and used to ill-treat the respondent to appease his mother. It is stated that

the appellant''s mother was a cruel lady. But in spite of all this cruel treatment, the respondent was carrying on as a dutiful wife. The respondent

became pregnant. The delivery was complicated and the female child died. The appellant never eared to take her back to Chennai and after

repeated requests, he reluctantly took her back to Chennai. The appellant was very friendly with one Viswanathan. The respondent did not like this

and when she pointed this out to him, he abused her in unprintable language saying she should not question his relationship with Viswanathan and if

she was unhappy, she could go back to her parents house. Then, she conceived her second baby. A female child was born on 31.7.1991, but that

child also died. Due to prolonged medical treatment, the respondent suffered mental and physical agony. The appellant''s attitude towards her was

very bad and he did not pay her any care or attention and it was only the respondent''s parents and brothers who gave her necessary support.

When it was time to return to Chennai, she informed the appellant over telephone, when her parents took her to Chennai to her matrimonial home,

they found the house locked. He had vacated the house on the previous midnight only with the motive of putting her to hardship. Therefore, the

respondent stayed with her elder brother at Chennai. Since her efforts to find out his place of residence were unsuccessful, her brother went to his

office, but on seeing her brother, the appellant left the office. After repeated efforts, they found out his address at Periyar Nagar and after much

persuasion, he agreed to live with the respondent. The appellant''s attitude towards the respondent became worse and worse and he also ill-treated

her by demanding additional dowry for starting a rubber business with Viswanathan. Her pleas that he should not insist on further dowry fell on

deaf ears and he also said that unless and until she brought the additional dowry, there would not be a peaceful marital life. Then he took to the old

habit of spending time with his friends in clubs and other places. The respondent again conceived for the third time. This time, the appellant

suggested that she should go to her parents'' house at Nagercoil to have her parents'' support, to which the respondent agreed. This time a male

child was born. The entire medical expenses were born only by her parents. Even thereafter, he did not agree to take her back. The appellant was

not agreeable to her joining him because she was complaining that his mother was treating her cruelly. Every time she requested him to take her

back, he would avoid it on some pretext or the other. And again, she found that he would be satisfied only if the additional dowry was paid. The

respondent once again came over to Chennai to join him, but again, the appellant had vacated the house at Periyar Nagar and she had to live with

her brother. He told her that if she wanted to join him, she should go and reside with his parents and conduct herself as a servant and only then she

could have conjugal rights. When she went to the Southern Railway Office to request for reunion, he physically dragged her to the Reception Desk

to register her name, then took her to the police station to give a complaint. The Inspector of Police heard them and advised them to lead a happy

married life. On 29.3.1995, when she went back to his office, the appellant took her in an auto-rickshaw pretending to take her to his home and

then dropped her somewhere near his sister''s house and ran away. On 31.3.1995, the respondent and her brothers sent to well wishers, Dorairaj

and Sampath to do mediation between the couple, but they were informed that he was not willing because she did not pay the additional dowry

and that she should live with his mother at Kulasekaram and that she should not come to Chennai. He had also given a false complaint that her

brother had threatened her. So, she lodged a complaint in the All Women Police Station. In these circumstances, she filed the petition for restitution

of conjugal rights.

The appellant filed his counter in July, 1995 wherein he denied all the averments that lavish expenditure was made for the marriage. He denied

the allegation that he had informed her father that he was a qualified Engineer. He denied that the marriage was performed only because the

preparations were at an advanced stage, inspite of his misrepresentation regarding his educational qualification. According to him, he could not

complete his part-time B.E. because of her mental cruelty. He denied the allegations made against his mother. He said that she was a very nice

person and that in all the years since the marriage, the respondent had stayed only for one week in the house along with his mother and therefore,

the question of cruelty does not arise. The death of the first female baby was accepted, but the appellant would state that he took back the wife

after she had taken the required rest at her parents'' place. The innuendo regarding his association with Viswanathan was denied and according to

him, the friendship with Viswanathan is true and a genuine one and it was only because the respondent had a suspicious mind that she made all the

allegations. The appellant would state that because of some complications, the second baby also died. The averment that the respondent came on

her own accord to Chennai and found that his address was changed was denied. According to him, these allegations are made only to cover up the

long period of desertion. The demand for additional dowry was denied and it was stated that it was a product of a fertile imagination. All other

allegations regarding his character were denied. As regards the third pregnancy, according to the appellant, he paid sufficient amount and the

respondent''s parents voluntarily shared the expenses because the appellant was in a financial problem. According to him, he suggested that she

should go to his parents'' house at Kulasekaram because the third baby was a precious one, especially because the two earlier babies had died and

since her health would be taken care of if she was in his parents'' house as he might not be able to give her that care in the busy city life. He denied

the allegation of dowry harassment and demand for additional dowry. According to him, the complaint given against her brother was truthful and

the cruelty towards him was so grave. She indulged in character assassination and gave false complaints to various authorities taking advantage of

the fact that her close relative was a Section Officer in the State Secretariat and therefore, a false complaint was made to the Chief Minister''s Cell

and the appellant was summoned. According to him, it was only because of her cruelty and suspicious character that was the cause of all the

problems.

Thereafter, the appellant filed F.C.O.P. No. 674 of 1997 for divorce u/s 22 of the Indian Divorce Act. In this petition, he had admitted that

originally they were happy, but because of some bad influence, she changed drastically. Many of the averments in this petition are akin to what is

stated in his counter to the petition filed by the respondent for restitution of conjugal rights. According to the appellant, he had sent letters to her, to

which she had not responded and therefore, a clear case of desertion had been made out. The final blow to the conjugal bliss came when she

lodged a complaint against the appellant for dowry harassment in the year 1995. The appellant was grilled by police personnel. Goondas had been

hired, who came to his place of employment and physically assaulted him. According to him, his life has become meaningless and he had suffered

the repeated acts of cruelty at the hands of the respondent. According to him, she had deserted the matrimonial home in December, 1993 and

therefore, he was entitled to divorce on that ground. The respondent filed her counter in this O.P. in which she has repeated all the allegations

made in her petition for restitution of conjugal rights. In this counter, she had stated that the appellant''s illicit intimacy with the wife of Viswanathan

is the cause for all these problems. According to her, the petition for divorce was a counter blast to her petition for restitution of conjugal rights. In

the year 2001, the appellant filed an amendment petition, adding the ground of cruelty for seeking the prayer for divorce. To this, an additional

counter was also filed.

Three witnesses were examined on the side of the respondent and 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 appellant had not proved

his case that the respondent was residing with one Dorairaj. The Family Court had observed that the couple had lived separately without having

any intentions of separating from each other and that none of the documents support the case of the appellant. We will have to examine whether

the judgment of the Family Court is sustainable.

Learned Counsel appearing for the appellant submitted that all the allegations made by the respondent were not proved and on the other hand,

the appellant''s case of cruelty was supported by evidence. In fact, one should only look at the counter affidavit filed by the respondent which itself

would prove the acts of cruelty alleged by the appellant. The Learned Counsel made impassioned submissions regarding the ordeal suffered by

litigants seeking reliefs under the Family Courts Act. He submitted that it is not as if litigants in India rush to the Family Courts without any excuse.

Conciliation and mediation takes place at every level within the family, amongst the friends, within the community and only when everything fails

that the litigants approach the Family Court and thereafter, there is very little scope for reconciliation. In this case, the appellant had been harassed

by the respondent in the office and she had made wild allegations without any justification. She had made allegations regarding adultery, which was

not proved, which itself is an act of cruelty and therefore, the Family Court had erred in accepting the case of the respondent. Learned Counsel

referred to several decisions in support of his submissions.

Learned Counsel appearing for the respondent submitted that the appellant cannot cite letters written by him requiring his wife to come to his

parents house at Kulasekaram as a bona fide request for reunion. His mother was a cruel lady and to ask his wife to go to his mother''s house at

Kulasekaram was not bona fide. He submitted that a husband who vacates the house a day prior to the day when the wife was coming to rejoin

him is the person who has committed the wrong and he cannot take advantage of the same.

We made an effort to see if the parties could rejoin at least for the sake of their son. But the appellant appeared very disturbed at the very

thought of reunion. Therefore, we proceeded to decide the matter on merits.

Since the petition filed by the respondent was the earlier in point of time, she was examined as P.W. 1. Whatever she had stated in her petition

was stated in her chief-examination. During her cross-examination, she had admitted that since she did not like Viswanathan''s attitude, she had

asked the appellant not to have any connection with him. She had admitted that she had given notice to her husband alleging illicit intimacy with

Viswanathan''s wife. Her statement is that even though he treats her cruelly, she wants to live with him. According to her, right from the beginning

she had been making these allegations regarding illicit intimacy. She had admitted that since he continues to go to Viswanathan''s house, she has the

right to continue to make the same allegation again:

She had admitted that there is no evidence to show that her parents gave 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 a cordial relationship. She had admitted that she had not written any letters to the

appellant describing the acts of cruelty by her mother-in-law. She had stated that she went and told Viswanathan that his wife behaves improperly,

but that Viswanathan denied that there was any extramarital relationship between his wife and the appellant. She has admitted that there is no

evidence regarding the illicit intimacy between her husband and Viswanathan''s wife. She has admitted that she has not written to her relatives

about the physical cruelty meted out to her by the appellant. According to her, she had made several attempts through the appellant''s sister''s

husband for reunion, 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''s address.

One Thangamani, who is said to be a Section Officer in the Secretariat, was examined as P.W. 2. In his chief-examination, he has stated that the

respondent had written several letters to the appellant to take her back, but there was no response and that he was informed by the respondent

that when she went to her husband''s house, the door was locked and thereafter, they left the respondent with the appellant. When she became

pregnant for the third time, the appellant left the respondent in her parents'' house. Even this time, he did not take her back. He, Dorairaj and

Sampath went and requested him in his office, but it was of no avail. In cross-examination, he had admitted that he is the appellant''s sister''s

husband. He has admitted that he has no specific knowledge about the husband and wife relationship between the parties and that he knows only

what has been told by the respondent. A suggestion was put to this witness that since there is friction in his relationship with his wife, who is none

other than the appellant''s sister, he has falsely given evidence to punish him. One Christopher, who is the brother of the respondent, was examined

as P.W. 3. The cross-examination is restricted to whether he knew the address of the appellant.

The appellant, in his chief-examination, has reiterated the contents of his affidavit. He has stated in his evidence that whenever he went to

Palliyadi to bring the respondent back, her parents would state that she is staying with Dorairaj in Chennai. According to him, P.W. 2 would not

give evidence to Support him because there is some family friction between them. According to him, the first child was buried even before he went

to see her. He has denied that it is only after the allegation of illicit intimacy was made that the third child was born.

Ex. P.3 is a letter written by the respondent. It is an eight page typed letter sent by a wife to her husband. In this, she has stated that she had

given some letters which were written with anger and after that, her brother and her parents left her at his home and that the appellant was happy

with her:

She has stated that when she wanted to set up a matrimonial home in Chennai, he had replied that she should stay at least for six months at

Kulasekaram and only then establishment in Chennai was possible and thereafter, she has referred to the ''saddist'' Viswanathan. She has then

stated that, therefore, she waited and waited and came to the Periyar Nagar house in Chennai and they found the door of the house locked. She

has again referred to a threat letter written by the appellant to her father and since all the time he was living with the ''saddist'' Viswanathan, unable

to come and live in the same house in Chennai, she stayed in her brother''s house. She has written that her brother asked her whether the appellant

said anything about the death of his brother and that she stated that she did not know anything. She has also said that she was asked how she will

go to her husband''s house, especially when the world speaks so differently about him. According to her, she was asked whether she would be

able to bear it and whether the circumstances in the house would be conducive for the good upbringing of the child:

And that every one who knew the appellant''s mother told her parents and her brother that on no account should she be sent to the house of those

poisonous people:

Therefore, since they were warned regarding the motive with which the appellant was inviting her to come to ""our house"" (ekJ tPL) and that neither

her parents nor her brothers will ever sent her to that house against her will:

Therefore, according to her, the appellant''s mother would burn her if she goes to Kulasekaram and that she would live with him only in Chennai.

According to her, if he did not turn up, she would herself go over to Chennai. This letter is dated 10.11. 1994.

Ex. P.4, which is the appellant''s letter, is to the effect that the respondent had not returned even after delivery:

He has also written that she was on that date not with her parents and she was somewhere without informing him of her whereabouts. He had

stated that she should immediately go to his parents house in Kulasekaram and as soon as she goes there, she should send a letter. He sent another

letter dated 15.12.1994, in which he again addresses her as ""Dear Rani"" . He has stated that for some months, she had not been with her parents

and not gone to Kulasekaram and he has asked her why without telling him she had gone and stayed in different places and that she should give up

her ego and come to his house in Kulasekaram. He has asked her whether she can go to Kulasekaram or not. He has also stated that to resume

matrimonial life, she should go to Kulasekaram with the child and that she should let 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 Roman Catholic Church and this is dated 11.1.1995. In this letter, he has stated that

there had been marital problems and that they are living separately. He had stated that he had requested the respondent several times to join him,

but she had refused to do so.

Ex. P.7 is a letter dated 14.12.1993 written by one C. Rajabai to the respondent. In this, there is reference to the respondent''s acts of cruelty.

Then comes Exs.P.8 and P.9, which is a letter sent by the respondent to the husband by registered post. In this, she has stated that the appellant

must be mentally disturbed to behave 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 of the petition submitted to the Chief Minister of Tamil Nadu with serious allegations against Viswanathan, an employee of Syndicate Bank

requesting that Viswanathan should be warned and therefore, the Deputy Secretary to the Chief Minister had addressed a letter to the Zonal

Manager, Syndicate Bank, giving directions to warn Viswanathan. As a follow up to this, in Ex. P.11, the General Manager, Southern Railway is

addressed to get the address of the respondent. Exs.P.12 and P.13 are greeting cards sent by the appellant to his son N.V. Anginio calling himself

his loving father.

Ex. R.1 Series are the acknowledgment cards for money orders sent by the appellant. Ex. R.2 is the letter written by the respondent''s brother

Gnanaseelan to the appellant. This is dated 19.1.1995. In this letter, it is stated that the appellant had gone on 14.1.1995 to Palliyadi where his

wife was residing and on the next day, the brother of the respondent, Gnanaseelan had gone to Palliyadi and that he got all the details and told

them that the respondent and the child should be first taken to Kulasekaram and from there, they can go to Chennai. Another request is made

where the father of the respondent has stated that the respondent had enlisted in a Computer Training Course and the Course would be over by

February and that he would send her back after February when the Course concludes and by that time, he should fix the house in Perambur as

stated by the appellant. Then he has stated that whatever may be the mistakes, he should forgive:

He has also stated that he is so happy that the appellant went to his house and spent time with his children. Ex. R.3 is another letter dated 7.3.1995

written by Gnanaseelan, in which he has stated that he had gone and told his father about it and he had stated that they would send the respondent

after Easter. Ex. R.4 is the notice from the police. These then are the documents filed by the parties before the Family Court.

The following decisions have been relied on by the counsel for the appellant:

Romesh Chander Vs. Smt. Savitri,

2002 (5) L.W. 250 [P. Natarajan vs. Thamizhmani]

Vijaykumar Ramchandra Bhate Vs. Neela Vijaykumar Bhate,

A. Jayachandra Vs. Aneel Kaur,

Durga Prasanna Tripathy Vs. Arundhati Tripathy,

Manjula Vs. K.R. Mahesh,

A. Viswanathan Vs. G. Lakshmi @ Seetha,

1995 (2) L.W. 42 is a case where the Supreme Court, in exercise of its powers under Article 142, dissolved the marriage since the marriage

was dead. P. Natarajan Vs. Thamizhmani, is a judgment of K.P. Sivasubramaniam, J. sitting singly. Some of the observations made by the learned

Judge throw light on such matrimonial problems and therefore, we will refer to them:

I have considered the submissions of both sides with seriousness which a matrimonial proceeding deserves. It is true that the Court should

generally as far as possible avoid taking a decision which would result in the disruption of the matrimonial home. At the same time, this Court has

also to consider as to whether the decision rendered by the Courts below and the reasonings stated thereof are consistent with the evidence. On an

overall consideration I am inclined to hold that the manner in which the Appellate Court had recorded its findings and conclusions are found to be

unsatisfactory in comparison with the detailed analysis of the evidence by the Trial Court. Not only the Appellate Court had refused to look into

the pleadings and the evidence, but also gone to the extent of justifying the conduct of the wife without any proper reasons. It may be that the

Appellate Court was interested in keeping the matrimonial tie intact. But in matrimonial proceedings, it is also important to see that parties come to

Court only when the continued relationship becomes unworkable. Blind refusal to recognise the same, by giving over importance to sentimental

views would ultimately render the provisions entitling divorce ineffective and meaningless. In this case, a reading of the pleadings and evidence

disclose the conduct on the part of the wife which appears to be very inflexible and with an attitude of financial superiority of her own family,

refusal to adjust with the conditions of life in the husband''s place, heaping insults on the husband and last but not the least, allegations of theft and

frequent accusations of adultery against the husband. If these features do not justify the husband seeking divorce on the ground of mental cruelty,

there will no justification for retaining the ground of mental cruelty as one of the grounds for divorce.

....

In her evidence, she very frankly admits that she found it impossible to eat the equality of the rice which was used in her husband''s place and,

therefore, she used to get food from her parents house in Thiruvannamalai. She also says that even now (after the filing of the petition for divorce),

she was not prepared to live at Vettavalam (husband''s place). Even these admitted pleadings and the evidence on the side of the wife herself have

been ignored by the Appellate Court. There cannot be any better material than her own admissions as above, to prove that by her conduct, she

had been deliberately insulting and hurting her husband and his family with a show of financial superiority of her own family. Leave alone the

traditional obligations of woman/wife in a Hindu society; even in a western family, such a behaviour is bound to be treated as clear instance of a

wife torturing her husband.

The learned Judge differed from the views expressed in Romesh Chander Vs. Smt. Savitri, that an allegation that a man is living in illicit intimacy

with another woman will not amount to cruelty and observed as follows:

With due respect I am unable to agree with the said view. In my opinion, it is not proper to mix up sociological notions and reactions while

considering the sacred and personal relationship between a husband and a wife. Husband and wife constitute a family and the house is their fort.

What happens within four walls of a house has its severe impact on the mind of the respective spouse. One spouse accusing another spouse of

adultery, irrespective of sex, is the worst form of mental cruelty. The relationship of a husband and wife is built upon on mutual trust, devotion and

confidence with each other. An accusation of adultery either by the husband or wife is bound to have serious adverse influence on such mutual

trust, confidence and mental peace. If the said element of confidence and trust is lost, mere can be absolutely no peace of mind and no rapport

between the two. Therefore, there is no justification in being diverted by the reasons behind why adultery was not made an offence as against

woman under the Indian Penal Code which was drafted more than a century ago, which appears to have weighed with the learned Judge. Social

values and ideas have undergone many changes. Further we art only concerned with the impact on personal relationship, mutual respect and

confidence between spouses.

....

The only other point which was raised by the respondent which has to be dealt with is that the fact that the plaintiff had filed an earlier petition

for divorce would mean that the complaining spouse had condoned the past conduct and, therefore, will not be entitled to raise the same ground

again in a subsequent petition for divorce, I am unable to agree. The mere hopeful retreat by one spouse with the idea that the other spouse would

properly behave at least in future, cannot have the result of completely wiping out the misconduct. The past misconduct would be certainlpast y

relevant in assessing the cumulative effect of the conduct of offending spouse on the victim spouse.

....

Therefore, here is a case in which the respondent has been indulging in a series of provocative conduct as against the husband as mentioned

above inclusive of accusing him of theft and adultery. She has also been giving frequent pinpricks, by even visiting his work place, and behaving in a

very violent manner in front of others thereby creating problems to the husband.

... The cumulative effect of the various actions on the part of the respondent, clearly establishes mental cruelty. In spite of the aforementioned

reasons, the Trial Court instead of granting divorce, granted only a decree for judicial separation. In the said background there was absolutely no

justification for the Appellate Court to have interfered with the decree of the Trial Court.

In 2003 (4) L.W. 609, the Supreme Court held that aspersions regarding infidelity is the worst form of insult and cruelty and that a wife is likely to

feel deeply hurt and reasonably apprehend that it will be dangerous to live with a husband who was taunting her like that, Durga Prasanna Tripathy

Vs. Arundhati Tripathy, was a case where the parties had spent a good part of their lives in litigation and the Supreme Court defined the

ingredients of desertion where the wife had insisted on the husband shifting from the village to the place where she 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 Conciliation Officer''s report was that the wife was

willing to live with the husband only if they live separately. In that case also, the Supreme Court, holding that the marriage was as good as dead and

dissolved the marriage on the ground of irretrievable breakdown. On the same footing is Manjula Vs. K.R. Mahesh, it was held as follows:

It is unnecessary for a party claiming divorce to prove that the cruel treatment is of such nature as to cause apprehension, a reasonable

apprehension that it will be harmful or injurious for him or her to live with the other party. Cruelty alleged may largely depend upon the type of life

the parties are accustomed to or their economic and social conditions and their culture and human values to which they attach importance.

....

It can be clearly seen that the acts of cruelty had become routine day-to-day affairs and not an isolated affair since 1995 and were not

restricted to isolated instances. This has not been rightly assessed by the Family Court. The material facts as to cruelty have been pleaded and the

insistence of the Trial Court is for pleading evidence which is legally impermissible. It is only that all material factors needed to clothe the cause of

action have to be pleaded while material particulars need not be pleaded.

The following decisions have been relied on by the counsel for the respondent:

1992 (2) Current Civil Cases (Rajasthan) 104 [Rajendra Prasad Pareek 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]

Saroja Vs. Arumugham,

I (2007) D.M.C. 492 [Sukhwinder Kaur vs. Jatinderbir Singh]

Binapani Bhattacharjee Vs. Pratap Bhattacharjee,

Vishnu Dutt Sharma Vs. Manju Sharma,

In Vishnu Dutt Sharma Vs. Manju Sharma, the Supreme Court held that irretrievable breakdown is not provided by the legislature for granting

a decree for divorce and Courts cannot add such a ground to Section 13 of the Hindu Marriage Act. In Binapani Bhattacharjee Vs. Pratap

Bhattacharjee, , the appellant/wife came to her parents'' house for the purpose of delivery and she stayed back to appear for her M.A.

Examinations. The High Court held that appearance in examination cannot be termed as a circumstance of cruelty and refused to grant divorce. In

Sarada Vs. V. Satyamurthi, this Court held that there is no evidence of cruelty by the wife. In I (2007) D.M.C. 492, a single Judge of the Punjab

and Haryana High Court held that there is no evidence on the record to substantiate the plea of cruelty, physical or mental, and that mere allegation

that the wife used to stay away for two to three days will not constitute cruelty. G.P. Purushothaman Vs. C.O. Arumugam and Others, is perhaps

relied on by the counsel for the respondent on the ground that non-mentioning of demand of dowry or holding of panchayat will not falsify the case

of the petitioner. Narinder Singh Vs. Rekha @ Pushpa, was a case where the trial court had found that it was the appellant/husband who had

deserted his wife. In I (2007) D.M.C. 211, a learned single Judge of the Delhi High Court held that no specific acts of cruelty are made out, apart

from the respondent staying away from matrimonial home and that no instances of unacceptable behaviour which would amount to cruelty are

made out.

In the present case, the respondent'' seeks divorce on two grounds, one of cruelty and the other regarding desertion. The allegation of illicit

intimacy is made in the counter to the petition for divorce. In her cross-examination, which has been extracted above, she had admitted that she

had made such allegations and right even from the time the first child was born, she had been making these allegations and that she has the right to

continue to make such allegations. There is no iota of proof that the wife of Viswanathan and the appellant had had any intimate relationship. No

instances where she had seen them together or apprehended them in compromising position is spelt out either in the pleadings or in the evidence.

Therefore, apart from her allegation of illicit intimacy, there is no evidence in this behalf. What is more, she has admitted in her cross-examination

that she had gone and told Viswanathan that there is illicit intimacy between his wife and her husband, for which he has stated that there is nothing

of that sort and that she should go with her husband. She had also made these allegations to the Chief Minister''s Cell, which had resulted in the

Deputy Secretary issuing a notice to the Syndicate Bank, the employer of Viswanathan. When she is unable to prove adultery, the false allegation

of adultery becomes an act of cruelty.

The following decisions can be referred to in the context as to how cruelty can be construed. In A. Jayachandra Vs. Aneel Kaur, the Supreme

Court considered the various ingredients that constitute cruelty:

The expression ""cruelty"" has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of

marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to

give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties

of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes

mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical.

...In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence.

In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out

in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.

The expression ''cruelty'' has been used in relation to human conduct or human behavior. It is the conduct in relation to or in respect of

matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or

physical, intentional or unintentional.

...In such cases, the cruelty will be established if the conduct itself is proved or admitted [See Shobha Rani Vs. Madhukar Reddi, ..

The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other''s fault to a certain bearable

extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to

have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and

as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and

hyper-sensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal

wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to

Matrimonial Court. [See Dr. N.G. Dastane Vs. Mrs. S. Dastane,

In that case, the respondent/wife had used abusive language and made allegations of adultery of her husband with the nursing staff. In Collins v.

Collins, 1963 (II) All. ER 966, (House of Lords) Lord Reid observed as follows:

A Judge does and must try to read the minds of the parties in order to evaluate their conduct. In matrimonial cases we are concerned with the

reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about

them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to

imagine any cruelty case ever arising if both the spouses think and behave as reasonable people.

In Shobha Rani Vs. Madhukar Reddi, the Supreme Court observed that the Court should not import its own notions of customs and society while

considering allegation of cruelty:

It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular,

we find a sea-change. They are of varying degrees from house-to-house or person-to-person. Therefore, when a spouse makes complain'' about

the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatised as cruelty in one

case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic

and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the Judges and lawyers,

therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the

parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents. Because as

Lord Denning in Sheldon v. Sheldon, 1966 (2) All. ER 257, 259, ""the categories of cruelty are not closed: Each case may be different. We deal

with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may

constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the

conduct 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 with pungency and that too placed on record, through the written statement, cannot so lightly be

ignored or brushed aside, to be of no consequence merely because it came to be removed from the record only. The allegations levelled and the

incidents enumerated in the case on hand, apart from they being per se cruel in nature, on their own also constitute an admission of the fact that for

quite some time past the husband had been persistently indulging in them, unrelented and unmindful of its impact. That the husband in this case has

treated the wife with intense cruelty is a fact, which became a fait accompli the day they were made in the written statement.

The respondent had stated that her mother-in-law is a very cruel lady, who had treated her like a servant. According to the appellant, the

respondent had stayed only for one week along with his mother, after which the old lady had gone back to Kulasekaram. Therefore, this allegation

that her mother-in-law had treated her cruelly and as a servant and that the appellant said that she should go to Kulasekaran and conduct herself as

a servant is also baseless.

The marriage between the couple took place on 16.1.1989. In the same year, she became pregnant and the appellant had taken her to her

parents'' house and on 18.12.1989, the first child died. According to the respondent, she was an in-patient in the hospital for three months.

Therefore, even assuming she had left the matrimonial home only in October or November, 1989, she would have stayed with her husband for

about nine months. Then she had returned back to her matrimonial home and went back to her parents'' house after about a year, i.e., 21.6.1991

for the second delivery. The second child also died on 31.7.1991 and she had come back only after about eight months, i.e., some time in the year

1992. The third child was born in the year 1992. The respondent admits in paragraph 11 of her petition for restitution that for a period of two

years after the birth of the third child, the appellant would come to her native village Palliyadi, stay with her for two days and return. And that on all

these days, she requested him to take her and her child back to Chennai, but he refused to do so on some pretext or the other. This statement is

clearly false, since we find that in 1995, he had gone to Palliyadi twice, as seen from the letters of Gnanaseelan, the respondent''s brother. From

these letters, we also see that the appellant had requested them to send the respondent with him and once, her father appears to have said that she

had joined a Computer Training Course and that she would go and join him in February, after she completed the Course. Then again when he

went to bring her back, her father said that he would send her after Easter. The child was born in 1993 and even after two years, the respondent

did not intend to return to the matrimonial home and was giving one excuse or the other and we also see from this letter that it is only the parents of

the respondent who replied to the appellant''s request and as stated in the letters which are marked as exhibits, the appellant was not staying with

her parents whenever he went there and in fact, he did not know here whereabouts. It is clear from this, that the appellant had gone to Palliyadi

and therefore, it is incorrect to state that he was not interested in taking the respondent back.

Learned Counsel for the respondent submitted that a command to go to his parents'' house cannot be seen as a genuine intention to rejoin. We

are unable to read the letter as though it was a command by the appellant to the respondent to go to his parents'' house. In fact, the appellant has

stated in his pleadings that because it was a troubled and difficult pregnancy and since he had already lost two children, he felt that instead of

leaving her and her child alone in the house in Chennai when he went to work, it will be better for her to spend some time in Kulasekaram where

she would have the support of his mother. In fact, the letter written by Gnanaseelan, the respondent''s brother, indicates that the appellant had told

the respondent''s father that first she should be taken to Kulasekaran and he would take her to Chennai thereafter. The custom is not unknown in

our part of the country that after delivery, the mother and the child are first taken to the husband''s parents'' house and thereafter from there, to the

husband''s house, if the husband is not living in a joint family along with his parents. Therefore, this is not something that shocks us and makes us

look at the appellant''s request to the respondent to go over to Kulasekaram as a request that is made with an oblique motive just to harass her. It

is clear that the appellant had made several attempts to go to her native place to bring her back. But it was postponed on one pretext or the other.

According to the appellant, the statement that he had shifted houses just to avoid her does not appear to be correct. Now, across the Bar,

Learned Counsel for the appellant stated that he could not receive her in that small room at Perambur because it could not accommodate the child

and that it was explained, but there is no evidence for that. But, however, we see from the letter of the respondent''s brother that first of all, he

knew where to contact the appellant and also there was an agreement as to the house which he would 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 that the whereabouts of the respondent were not known appears to be more creditworthy. Whenever he had gone to her house, she was not

with her parents and she was living somewhere else and he did not know where she was.

Learned Counsel for the respondent submitted that allegations were made regarding the respondent''s relationship with one Dorairaj, which

were not proved. We need not consider this very seriously because there is no pleading regarding adultery committed by the respondent with

Dorairaj or anyone else. Or even if he had stated so in his own evidence, we will ignore that. However, definitely he has made out a case both of

desertion and cruelty. The desertion commenced in 1993 when she had not returned to her matrimonial home inspite of repeated requests and

cruelty because of the wild allegations of adultery and also the allegations regarding the demand of additional dowry have been proved to be false.

In fact, the respondent''s brother had stated in his letter that he should forgive and they should live together.

Several decisions had been cited, but ultimately whether it is cruelty or whether it is desertion, the question if the ingredients of cruelty or the

ingredients of desertion are made out will depend upon the pleadings and the evidence. Multiplication of decisions or citations is not going to

improve the case of either party. From the pleadings and evidence, we find that the appellant had made out a case of cruelty and desertion. The

learned Principal Judge, Family Court had summarily referred to the allegation regarding Dorairaj and observed that if the respondent''s adultery

had caused him mental agony and cruelty, he should have proved it. Adultery is not the ground on which he had come to Court. In his petition for

divorce, he has stated that the allegation of adultery made against him by the respondent amounted to cruelty and that harassment by them in his

office and police complaints amounted to cruelty. We feel that the Family Court had digressed in this regard and had not focussed on the real facts

in issue.

We hold that the appellant has succeeded in proving desertion and cruelty, because-

(a) The respondent left the appellant''s house in 1993 and did not return, though the appellant went and requested her to return (see Exs.R.2 and

R.3); she had joined a Computer Training Course while being in her parents'' house, which shows her intention not to return to the appellant''s

house. So, both the intention and the fact of abandoning the matrimonial house is proved.

(b) The respondent''s baseless allegation of adultery is an act of cruelty and her evidence that she will continue to accuse him shows her persistence

in cruelty.

An attempt was made here to see if the appellant could at least have some contact with his son, but the appellant seems to be in a state of great

distress. Therefore, we felt that if he was not ready to patch up or build a relationship with his son, it is not for us to force anything on any part. The

appellant was ready to give any financial help within his capacity.

As regards the petition for restitution of conjugal rights, the petition itself does not appear to be bona fide. Throughout in her pleadings, i.e., in

her petition for restitution of conjugal rights as well as in her counter to the petition filed by the appellant for divorce, there are constant allegations

of cruelty and torment. The letters which were marked as exhibits also repeat the same things. She is obsessed with the presence of Viswanathan

in her husband''s life and the letters repeatedly talk to the ''saddist'' Viswanathan. If she had genuinely wanted to resume her conjugal relationship

with her husband, when the husband went to Palliyadi in 1995, she would have gone back with him soon after she completed the Computer

Training Course. She did not do so.

One more aspect has to be taken note of. If a girl marries while she is pursuing her degree course and soon after the delivery of the child her

examinations commence, then she may justifiably continue to stay in her parents'' house to appear for her examinations while the infant is in her

mother''s care. But a person who had gone to her parents'' house for the third delivery in 1993, takes up a Computer Training Course which she is

unable to complete even in 1995, then it definitely shows an intention not to return to her husband''s house. And thereafter, to claim that she has a

bona fide intention to resume conjugal relationship which is thwarted and frustrated by the husband does not appear to be genuine. The two letters

written by the respondent''s brother Gnanaseelan really close the case for the respondent and therefore, the Family Court ought not have

automatically granted the decree for restitution of conjugal rights. She has admitted in her evidence that, ; so she has admitted both the letters. She

has also admitted that her father said that he would sent her later, i.e., after Easter. Therefore, after all this, to come to the Court seeking to restore

conjugal rights does not appear to be justified.

Family Courts should independently examine the facts in each case before granting the prayer for divorce as well as for restitution of conjugal

rights. Sometimes, one petition is filed by one spouse, and perhaps in retaliation, the second petition is filed by the other spouse. In this case, the

petition for restitution of conjugal rights was filed first and then the petition for divorce. If a decree for restitution of conjugal rights is granted, the

petition for divorce by the other party may have to be consequently rejected. But, if a petition for divorce is dismissed because the grounds have

not been proved, the petition filed by the other spouse for restitution of conjugal rights may not necessarily be decreed. The Courts still must

examine whether the prayer for restitution of conjugal rights is bona fide or not. For all the reasons aforementioned, the judgment and decree of the

Principal Judge, Family Court, Chennai in F.C.O.P. Nos. 674 of 1997 and 623 of 1995 are set aside and both these civil miscellaneous appeals

are allowed. There shall be no order as to costs.