I. Subramanian vs C. Kuppammal

K. Mohan Ram, J.—The Appellant in the above appeals is the husband of the Respondent. The marriage between the Appellant and the

Respondent took place on 18.04.1975 as per Hindu Rites and Customs. On 29.03.1976 a son was born to them. Both of them are employed. On

10.07.1999 their son died.

It is the case of the Appellant that from August 2005 onwards the Respondent started living with her brother in order to give all her retirement

benefits to his family, as she was to retire from service on super-annuation on 31.12.2005. Since the Respondent refused to come to the

matrimonial home, the Appellant filed HMOP No. 529 of 2006 against the Respondent on 02.03.2006 seeking Restitution of Conjugal Rights. As

the Respondent expressed her unwillingness to live with the Appellant, the Appellant withdrew the OP and the same was dismissed on

18.12.2007. On the same day, the Appellant filed OP No. 3836 of 2007 seeking a decree of divorce on the ground of cruelty and desertion. It is

the further case of the Appellant that the Respondent never cooked meals regularly and the Respondent would leave to her brothers'' and sisters''

house very often and the Respondent would make untrue allegations about the character of the Appellant to relatives and family friends as an

excuse to leave home often and thus the Respondent made the life of the Appellant miserable and because of such conduct of the Respondent, the

health of the Appellant was affected. She used to abuse the Appellant in vulgar and filthy language in the presence of others. The Respondent

behaved in a rude and uncaring manner towards the son also. On 19.08.2005, the Respondent with an intention to give all the retirement benefits

to her brothers and sisters, without the consent of the Appellant, deserted the Appellant without any reasonable cause. The Respondent retired

from Government Service on 31.12.2005 and the Respondent had given all her retirement benefits and the monthly pension to her brothers and

sisters. All the efforts taken by the Appellant with the help of the family members and friends to bring the Respondent back to the matrimonial

home proved futile. She lodged a police complaint against the Appellant with G-5 All Women Police Station, Ayanavaram. In O.P. No. 529 of

2006 filed by the Appellant seeking Restitution of Conjugal Rights, the Respondent filed a counter statement making untrue allegations regarding

the character of the Appellant and alleged that the Appellant had brought one servant maid, by name, Devi, with whom he had illicit intimacy. It

was further alleged in the counter statement by the Respondent herein that the Appellant sometimes used to live at the residence of the servant

maid, Devi, and that was the reason why the Respondent had to leave the matrimonial home. During counselling, the Respondent firmly stated that

she has no intention to reunite with the Appellant and she openly challenged the Appellant in the court premises that she would not allow the

Appellant to live peacefully. The reckless and untrue allegations made by the Respondent and her uncaring attitude has caused inexplicable mental

agony due to which the Appellant''s health got deteriorated and he was mentally disturbed. The Respondent had deserted the Appellant without

any reasonable cause and has caused great mental cruelty by her acts. On the aforesaid grounds, the Appellant sought for divorce.

In the counter statement filed by the Respondent, the Respondent herein denied the allegation that she did not care for the Appellant and their

son. She had stated that as a dutiful wife she did all the household work and never let the Appellant and their son starve for food. The Respondent

would never leave the house or make wild and reckless allegations against the Appellant. It is specifically stated in the counter statement that the

Appellant had illegal relationship with a servant maid, named Devi, who was residing very next to the ICF quarters and because of that lady only,

the Respondent left the matrimonial house and before leaving the house, she had given a police complaint at All Women Police Station (W-6),

Ayanavaram. The police authorities advised the Appellant to mend his ways, but he did not change his behaviour and because of that reason only,

the Respondent left the matrimonial home. The Appellant filed OP No. 529 of 2006 seeking Restitution of Conjugal Rights, but when the

Respondent expressed her willingness to live with the Appellant, the Appellant changed his attitude and withdrew the OP and immediately had filed

the divorce petition. During the time when the Respondent was living with the Appellant, she had tolerated all the ill-treatment meted out to her with

the hope of leading a happy marriage life with the Appellant and now, at the age of 61, she does not need a divorce.

When the Respondent was to be examined as a witness in the OP, she filed OP No. 2737 of 2009 seeking Restitution of Conjugal Rights. In

that OP also, similar allegations, which are made in the counter statement in OP No. 3836 of 2007, have been repeated. Denying all the allegations

contained in the OP, a counter statement was filed by the Appellant. Both the O Ps were tried together.

Before the Court below, the Appellant was examined as P.W.1 and Exs.P-1 to 4 have been marked on his side. On the side of the

Respondent, the Respondent was examined examined as R.W.1 and Exs.R-1 to R-5 have been marked. On a consideration of the evidence on

record, the Court below came to the conclusion that the Appellant had not established cruelty and desertion on the part of the Respondent and

accordingly dismissed the petition for divorce and consequently allowed the petition filed by the Respondent for Restitution of Conjugal Rights.

Being aggrieved by the dismissal of OP No. 3836 of 2007, CMA No. 3602 of 2010 has been filed. Being aggrieved by the order passed in OP

No. 2737 of 2009 ordering Restitution of Conjugal Rights, the Appellant has filed CMA No. 3603 of 2010.

Heard the Appellant, who is appearing in-person. As the Respondent had been served and her name shown in the cause list, she is neither

appearing in-person, nor through counsel, Mr. N. Manoharan, learned Counsel, was appointed as Amicus Curiae to assist this Court and he was

heard.

The Appellant submitted that from August 2005, the Respondent had deserted him without any reasonable cause and she left the matrimonial

home and started living with her brother. The Appellant submitted that in OP No. 529 of 2006 filed by him seeking Restitution of Conjugal Rights,

the Respondent filed a counter statement containing the following allegations:

... Actually the Petitioner had illegal relationship with the servant named Devi who was residing very next to the ICF quarter''s and because that

lady only the Respondent left the matrimonial house and before leaving the house she had given a police complaint at All Women Police Station

(W-6) at Ayanavaram, were enquiry was conducted and adduced the Petitioner to mend his ways. But after that incident the Petitioner had never

stopped his mis behaviour and only for that reason the Respondent left the matrimonial home.

It is further stated in the counter statement as follows:

...the Respondent left the house only due to the mis behaviour of the Petitioner with the servant...on 23.8.2005 the Respondent gave the Police

complaint after knowing the illegal relationship of the Petitioner.

The Appellant further submitted that it was suggested to the Appellant/P.W.1 during the cross-examination that in his house the servant maid by

name Devi was employed, but the said suggestion was denied by the Appellant. The Appellant further submitted that in OP No. 2737 of 2009

filed by the Respondent seeking Restitution of Conjugal Rights the Respondent had stated as follows:

...Moreover the Respondent developed illegal relationship with one of the servant maid and this came to the knowledge of the Petitioner. When

the Petitioner questioned about the same to the Respondent, he started beating the Petitioner due to which she was forced to give a Police

complaint in G-5, All Women Police Station. After that the Respondent developed vengeance against the Petitioner and did not allow the

Petitioner to live in the matrimonial house.

The Appellant submitted that the aforesaid very same allegations have been repeated in the proof affidavit filed by the Respondent. During her

cross-examination it was suggested to R.W.1/the Respondent herein that on the basis of the complaint lodged by her against the Appellant before

Ayanavaram Police Station the servant maid Devi was not enquired the suggestion has been admitted, but the suggestion put to her that there is no

relationship between the Appellant and the servant maid Devi had been denied; a further suggestion was put to R.W.1 that because of the

complaint lodged with the police and the allegations made before the relatives, the reputation of the Appellant was spoiled, but the said suggestion

has been denied; she has further denied the suggestion that because of the false allegations made by her against her husband, he was put to great

mental cruelty; it has been further suggested to R.W.1 that there is absolutely no proof for the allegation that the Appellant had illicit intimacy with

Devi, but the same has been denied. According to the Appellant, the aforesaid unfounded and serious allegation maligning the character of the

Appellant made in the police complaint, made before the relatives and friends and made in the counter statements filed in OP No. 529 of 2006 and

in OP No. 3836 of 2007 and in the counter statement filed in OP No. 3836 of 2007 and in her evidence has caused great mental agony and strain

and the same will amount to cruelty; having made such serious allegations against the Appellant and without any justifiable cause, the Respondent

had deserted the Appellant from 19.08.2005, but these aspects have not at all been considered by the Court below.

Mr. N. Manoharan, learned Amicus Curiae, appointed by this Court submitted that the allegations regarding the character of the Appellant had

been made by the Respondent in her counter statement and in her OP No. 2737 of 2009 only by way of defence and the same will not amount to

mental cruelty. He further submitted that there is no acceptable evidence to show that the Respondent is living away from the Appellant for over

two years and therefore, even if the Respondent was living away from the Appellant, he is not entitled to seek divorce on the ground of desertion;

only because of the ill-treatment and harassment meted out to the Respondent and because of the unbearable behaviour of the Appellant the

Respondent had to leave the matrimonial home. He further submitted that the Appellant has not examined any other witness to corroborate his

evidence and therefore the finding recorded by the Court below does not call for any interference; simply because the Respondent had lodged the

complaint against the Appellant that will not amount to causing mental cruelty. He further submitted that admittedly the Respondent is aged about

62 years and the Appellant is 60 years of age and at this fag end of their life a decree for divorce may not be granted and the Respondent may be

allowed to spend the rest of her life as wife of the Appellant; these aspects have been rightly taken into consideration by the Court below and has

rightly rejected the petition for divorce filed by the Appellant and rightly granted the decree for Restitution of Conjugal Rights in favour of the

Respondent.

We have carefully considered the aforesaid submissions made by the Appellant, who appeared as party-in-person, as well as the learned

Amicus Curiae and perused the materials available on record.

The Court below has observed that P.W.1 has not stated any specific incident of cruelty, but R.W.1 has deposed that she was driven out from

matrimonial home by the Petitioner on 23.08.2007; Ex.P-4 will show that the Petitioner''s health deteriorated because of the Respondent; there is

no proof to show that the Respondent is responsible for the death of their son; there is no proof to show that the Respondent treated the Petitioner

cruelly; there is no proof that the Respondent used filthy language against the Petitioner; there is no proof for any harassment by the Respondent;

the allegations stated by the Petitioner are general and vague and the allegations stated by the Petitioner are only wear and tear of the family life.

The Court below has further observed that there is no evidence that the Petitioner has taken steps to live together; the withdrawal of the petition for

Restitution of Conjugal Rights by the Appellant is not bona fide and it will clearly show that his intention is to get divorce only; the general

allegations made by the Petitioner have not been proved. The Court below has further observed that the Appellant had not produced any material

evidence in support of his allegations of cruelty and the Appellant has not proved cruelty and desertion; the Appellant had relied upon the decision

reported in 2009 (3) CTC 15 (D. Nagappan v. T. Virgin Rani) in support of his contention that making false allegations of living in adultery against

the Appellant will amount to cruelty, but the Court below, without considering the allegations made by the Respondent against the Appellant, has

simply stated that in the present case, there is no proof for continuing accusation against the husband. The Court below has observed that the

Appellant has not taken any steps for reunion, whereas the Respondent wants reunion. On the aforesaid observations, the Court below has

dismissed the petition for divorce and ordered the petition for Restitution of Conjugal Rights.

A perusal of the order of the Court below shows that it has not at all referred and considered the serious allegations made by the Respondent

against the Appellant. As pointed out above, the Respondent has in her counter statement filed in OP No. 529 of 2006, in the counter statement

filed in OP No. 3836 of 2007 and in the petition in OP No. 2737 of 2009 and in her proof affidavits filed in the above petitions, have repeatedly

made an allegation that the Appellant had illicit intimacy with the servant maid, by name, Devi, and he started living with her in her house. She had

also alleged that only because of the illicit intimacy of the Appellant with the servant maid Devi, she had to leave the matrimonial home. The Court

below ought to have considered as to whether the aforesaid serious allegations levelled by the Respondent against the Appellant had been

established by her by acceptable evidence or not. The Court below should have further considered the effect of such allegations made against the

Appellant. But unfortunately the Court below has not considered these aspects in the light of the decision reported in 2009 (3) CTC 15 (referred

to supra) which was relied upon by the Appellant. It has to be further pointed out that the Court below ought to have independently considered the

OP for Restitution of Conjugal rights on the basis of the evidence on record. Simply because the Court had dismissed the OP for divorce, it ought

not to have granted an order for Restitution of Conjugal Rights. The Court below ought to have independently considered as to whether the

Respondent/wife is entitled to get an order for Restitution of Conjugal Rights, but the Court below has granted the relief of Restitution of Conjugal

Rights as a consequential relief on the dismissal of the petition for divorce. The said procedure adopted by the Court below is not in accordance

with law.

In these cases, a perusal of the evidence of P.W.1/Appellant shows that he had stated that the Respondent had repeatedly made a false

allegation that he was having illicit intimacy with Devi and the said allegation has caused mental agony to him and the same has affected his

reputation; she has also lodged a complaint against him on the very same allegations before All Women Police Station, Ayanavaram. In the course

of his cross-examination also, the very same allegations have been suggested to him, which he denied. R.W.1/Respondent in her evidence has

repeated the same allegations and it has been suggested to R.W.1 in her cross-examination that the allegations made against the Appellant by the

Respondent are not true. Except denying the suggestion, no other details have been given by the Respondent. The Respondent has not even

furnished the details regarding Devi, such as her husband''s name, her house address, etc., It has not even been stated in the counter statements

filed by her in the aforesaid O Ps and in the petition filed by her for Restitution of Conjugal Rights or in her evidence that she had ever seen the

Appellant and the said servant maid Devi in a compromising position. Except making a wild allegation, no other details, whatsoever, have been

furnished. Even the said wild allegation has not been proved by the Respondent by acceptable evidence, but the Court below has not considered

the aforesaid aspects and the effect of such allegation on the Appellant.

Now the question is, when the aforesaid allegations made against the Appellant by the Respondent have not been substantiated, that will

amount to causing mental cruelty. To decide the aforesaid question, it will be useful to refer to the following decisions:

(i) In the decision reported in Mrs. Manisha Sandeep Gade Vs. Sandeep Vinayak Gade, a Division Bench of the Bombay High Court, while

considering the question as to whether the unsubstantiated and unproved allegation of adultery levelled against the husband by the wife would

amount to mental cruelty, has held that it will amount to mental cruelty. It was a case where the husband has sought for divorce on the ground of

cruelty and while defending the petition, the wife in her written statement, apart from defending her and refuting the allegations made against her,

had made several allegations against her husband and one such allegation was that he had illicit relationship with one Leena, wife of Vivek and in

fact he wanted to marry her. While considering the legal effect of such an allegation, the Division Bench has held as follows:

What we have to note is that when one party to the petition has sought divorce on some ground and the Respondent to that petition does not

merely defend it to get it defeated, but makes further serious allegations against the Petitioner, it becomes a clear step towards the dissolution of the

marriage. In the present matter, the Petitioner has approached the Court seeking dissolution of his marriage. It is his case that there is a failure of

the marriage and he seeks to point it out by invoking a ground available under the law. At that point of time, if the Respondent makes a counter

allegation in the written statement, that by itself shows a prima facie failure of the marriage....

31.... In a matrimonial matter, one cannot apply the standard of stricter evidence. Nothing prevented her from establishing her allegations. The

Respondent could not have established the negative by leading any further evidence that the allegations made by the wife were false. The Appellant

had made the allegations. The burden was on her. She had failed to prove those allegations. Once she fails to prove those allegations and if those

allegations are not in consonance with matrimonial relationship, and the husband complains that they have caused him agony, the inference that they

constitute cruelty has to follow.

32 In the circumstances we are satisfied that the learned Judge was right in coming to the conclusion that the allegations made by the Appellant

wife were baseless and false and constituted a cruelty. He was, therefore, right in granting the decree of divorce on that ground....

(ii) In Kiran Mandal Vs. Smt. Mohini Mandal, a Division Bench of that Court, has held as follows:

14...She made false allegations against her husband that he had illicit relations with his brother''s wife. These false allegations did have an injurious

effect on the husband.

Cruelty within the meaning of S. 13 of the Hindu Marriage Act is not confined to physical violence but includes mental torture caused by one

spouse to the other. The wife had made it insufferable for the husband to live with her. Any man with reasonable self respect and power of

endurance will find it difficult to live with a taunting wife, when such taunts are in fact insult and indignities. Human nature being what it is, a

reasonable man''s reaction to the conduct of the offending spouse is the test and unending accusations and imputations can cause more pain and

misery than physical beating....

(iii) In Chanderkala Trivedi (Smt) Vs. Dr. S.P. Trivedi, the husband sued for divorce on the ground of cruelty by wife. The wife filed a written

statement wherein she attributed adultery to the husband. In reply thereto the husband put forward another allegation against the wife that she was

having undesirable association with young boys. Considering the mutual allegations, His Lordship, R.M. Sahai, J., speaking for Division Bench,

observed:

Whether the allegation of the husband that she was in the habit of associating with young boys and the findings recorded by the three Courts are

correct or not but what is certain is that once such allegations are made by the husband and wife as have been made in this case then it is obvious

that the marriage of the two cannot in any circumstance be continued any further. The marriage appears to be practically dead as from cruelty

alleged by the husband it has turned out to be at least intimacy of the husband with a lady doctor and unbecoming conduct of a Hindu wife.

In the light of the law laid down in the aforesaid decisions, if the facts of the present cases are considered, it could be seen that when serious

allegations of adultery is made by the wife against the husband and the same stands unsubstantiated that will definitely amount to mental cruelty as

far as the husband is concerned. The unfounded allegations made by the wife against her husband by itself shows the prima facie failure of the

marriage.

In the decision reported in 2002 (5) LW 250 (P. Natarajan v. Thamizhmani), Mr. Justice K.P. Sivasubramanian, has observed as follows:

24... 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, there 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 are only concerned with the

impact on personal relationship, mutual respect and confidence between spouses.

In Vijaykumar Ramchandra Bhate Vs. Neela Vijaykumar Bhate, 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.

In the decision reported in 2009 (3) CTC 15 (referred to supra), the Division Bench has held as follows:

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.

21... In A. Jayachandra Vs. Aneel Kaur, , the Supreme Court considered the various ingredients that constitute cruelty: ""10. 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 fulfil 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 behaviour. It is the conduct in relation to or in respect of

matrimonial duties and obligations. Cruelty is a course of 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 husband 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.

A conscious and deliberate statement levelled with pungency and that too placed on record, through the counter statement, cannot so lightly be

ignored or brushed aside, to be of no consequence. The allegations levelled against the Appellant, in the cases 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 wife had been persistently indulging in them,

unrelated and unmindful of its impact. In his petition for divorce, the Appellant had stated that the allegations of adultery made against him by the

Respondent amount to cruelty and the complaint lodged by the Respondent against the Appellant before the Police amount to cruelty and the same

has been repeated in his oral evidence, but, as pointed out above, the Court below utterly failed to consider the same and it has not focussed its

attention on the real facts in issue. In our considered view, the Respondent''s baseless allegation of adultery is an act of cruelty.

It has to be pointed out that it is the specific case of the Respondent that both in her petition for Restitution of Conjugal Rights and in the

counter statements filed in the OP by the Appellant for divorce and in her evidence that only because the Appellant had illicit intimacy with servant

maid Devi, she had left the matrimonial home, but the said allegations have not been made out by the Respondent by acceptable evidence. When

such serious allegations have not been made out, then the irresistible conclusion that could be reached is that there was no reasonable cause for the

Respondent to leave the matrimonial home. Admittedly, the Respondent had left the matrimonial home in August 2005 with an intention not to

return back to the matrimonial home and only after the period of two years, the petition for divorce had been filed and therefore when the

Respondent had deserted the Appellant without reasonable cause the Appellant is entitled to get a decree for divorce.

For the aforesaid reasons, the orders of the Court below passed in O.P. Nos. 3636 of 2007 and 2737 of 2009, are set-aside and the Civil

Miscellaneous Appeals are allowed. However there will be no order as to costs. Consequently, the connected MP is closed.