J. Balasubramaniam vs S. Pitchammal

P.P.S. Janarthana Raja, J.—The civil miscellaneous appeals are filed by the appellant against the judgment and decretal orders dated

30.06.2000 in H.M.O.P.Nos. 175 of 1996 and 130 of 1997 on the file of the Court of the Family Judge, Madurai. Both the appeals are taken up

together and dispose of by a common order.

The brief facts arising out of the above are as under:

The appellant is the husband in both the appeals. The respondent is the wife. The appellant and the respondent got married on 29.08.1993 as per

the rites and customs of the Hindu religion. They lived together for a period of three months. Later there was allegation and counter allegation made

by both the parties. The husband filed a petition for divorce on the ground of cruelty u/s 13(1) (a) of the Hindu Marriage Act. The wife also filed a

petition for restitution of conjugal right u/s 9 of the Hindu Marriage Act. Both the petitions were taken up and heard together by the lower Court.

The lower Court framed the following issues:

a) Whether the wife has caused such cruelty enabling the husband to get divorce?

b) Whether the respondent wife is entitled for restitution of conjugal right?

c) To what relief both the husband and the wife are entitled to?

After considering the material and evidence on record, the lower Court held that the husband has not made out any case for divorce and hence

rejected the divorce petition and the petition filed by the wife for restitution of conjugal rights was allowed. Aggrieved by the order, the

appellant/the husband filed the present appeals.

Learned Counsel appearing for the appellant has contended that the lower court has failed to appreciate that the respondent wife not only

abused and ill-treated the appellant but also his parents and other family members. Further, it was stated that there was letters written by the wife

to the appellant''s employer and also his friends regarding his alleged illegal relationship with another women which thereby brought disgrace in the

eyes of the employers, which is nothing but mental cruelty. Further, it was alleged that the appellant tried to marry one Elisabeth and further it was

submitted that the wife in her evidence has admitted regarding lodging of police complaint against the appellant and also enquiry conducted by the

police. These evidences were clearly amount to nothing but cruelty and further they were not living together for the past ten years and hence, the

marriage was irretrievably broken down. It is therefore submitted that the lower court is wrong in dismissing the divorce petition and relying on the

following judgments to support his contention:

a) Naveen Kohli Vs. Neelu Kohli,

b) G.V.N. Kameswara Rao Vs. G. Jabilli,

c) Vinita Saxena Vs. Pankaj Pandit,

d) 2007 (1) CTC 266,Sujata Uday Patil v. Uday Madhukar Patil

e) Rishikesh Sharma Vs. Saroj Sharma,

Learned Counsel appearing for the respondent/the wife submitted that the wife wants to live with the husband and there is no irretrievable

broken down of the marriage as alleged by the appellant and the order passed by the lower court is in confirmity with law and relied on New Delhi

High Court judgment reported in (2007) DMC 211 in the case of Pran Nath v. Puspha Devi to support her contention.

Now let us considered the merits of rival contentions. We have perused the Exs.P.1 to P.9 as well as the evidence of P.Ws.1 to 4 and also

Exs.R.1 and R.2 as well as the evidence of R.W.1. The appellant husband admittedly belongs to Sengutha Mudaliar caste and the respondent wife

belongs to Saivapillai caste. The appellant is the friend of the respondent''s father Subramaniyan. The appellant and the respondent become lovers.

They married on 29.08.1993 as per the rites and customs of Hindu Religion. The appellant and the respondent lived in the appellant''s house along

with his parents and family members at Anna Nagar, Madurai. The trouble started when the respondent wife demanded to have a separate house.

The appellant after taking into account of his old age parents and other circumstances refused to oblige his wife''s request. The wife later started

suspected the husband and check his belongings and abused his family members. The appellant who was examined as P.W.1 deposed in his chief

examination that he and his wife lived about 3 or 5 months happily and later she demanded to leave the joint family and live either in her parents

house or set up a separate house. Being aggrieved by the refusal, she used to check his shirt and pant pockets and caused a suspicious look upon

him always. But through Ranganathan, who is P.W.2 and he was examined to prove his contention. He had deposed that the respondent''s family

lived in his house as tenants and that he has introduced the respondent to the appellant family. Later the appellant and the respondent married and

lived together for a period of four months. The appellant and the respondent made frequent quarrels even for petty matters. P.W.3 is one

Mr.Sundaresan and he has given evidence that the appellant and the respondent lived together happily for about four months and the appellant

informed him one day that his wife developed a tendency to suspect him. All these evidence were totally denied on the side of the respondent wife.

One Ramasubramaniyan who is none other than the paternal uncle was also examined as P.W.4 and he had stated that he knew the factum of the

marriage between the appellant and the respondent and that they lived happily only for about 4 or 5 months. It is further alleged by the appellant

that the respondent wife returned from the school in late hours with company of strange male members by bikes. The activity of the respondent

wife affected not only the appellant but also his family members. These evidences are not accepted by the lower authority. Further it is also alleged

that the respondent wife used to write letters to his friends and relatives with all sorts of accustation and the letter was also produced at the time of

cross examining the respondent marked as Ex.P.9 and the allegation made by the respondent wife that the appellant wants to marry one Elisabeth

and for the purpose of getting second marriage, the appellant used to compel the respondent wife consent for the same. As a result of these

development, the respondent wife left the matrimonial home on 27.05.1995. Further it is also stated by the husband that the respondent wife is not

interested in matrimonial relationship with him and she has taken a religious training in a Mutt at Tirunelveli. It is also seen from the record that the

wife made a police complaint on 11.04.1996 to All India women Police Station and also written letters to the employer. It was admitted by the

evidence of the respondent who is R.W.1. Because of the allegations and counter allegations made by the appellant as well as the respondent, both

of them live separately and apart for the past more than ten years. The court below rejected the divorce petition on the ground that the appellant

has not produced enough material evidence and the court ordered the wife''s petition for restitution of conjugal rights. Both the parties refused to

live together and the chance of living together is also very remote. We are informed by the counsel that the earlier bench advised both the parties to

forget the past and live together but both of them refused to do so. After lower court ordered for allowing the petition for restitution of conjugal

rights the respondent wife also has not taken any steps to join the husband. Both the parties have no interest to live together. Both the parties lived

separately and apart for more than 10 years. So, we have necessary to see that the present case comes within the new ""Irretrievable Broken

down"" concept or not.

In the case of Naveen Kohli Vs. Neelu Kohli, the Supreme Court considered the Hindu Marriage Act and the scope of Section 13 of the Act

and enumerated certain principles in the following paragraph Nos. 47, 49, 76, 77, 78 and 89 which are as under:

47.The 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. Each case has to be decided on its own merits.

The court went on to observe as under:

It will be necessary to bear in mind that there has been marked changed 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 complaint 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 stigmatized 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.

Lord Denning said in Sheldon v. Sheldon 1966 (2) All ER 257 (CA) ''the categories of cruelty are not closed''. Each case may be different. We

deal with the conduct of human beings who are no 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 behavior, capacity or incapability to tolerate the

conduct complained of. Such is the wonderful (sic) realm of cruelty.

The word ''cruelty'' has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could

be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not

make any difference in the case. There may be instances of cruelty by unintentional but inexcusable conduct of any party. The cruel treatment may

also result from the cultural conflict between the parties. Mental cruelty can be caused by a party when the other spouse levels an allegation that the

petitioner is a mental patient, or that he requires expert psychological treatment to restore his mental health, that he is suffering from paranoid

disorder and mental hallucinations, and to crown it all, to allege that he and all the members of his family are a bunch of lunatics. The allegation that

members of the petitioner''s family are lunatics and that a streak of insanity runs though his entire family is also an act of mental cruelty.

We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for

the law not to take notice of the fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long

period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though

supported by a legal tie. By refusing to sever that tie the law in such cases do not serve the sanctity of marriage; on the contrary, it shows scant

regard for the feelings and emotions of the parties.

Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained,

but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.

Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the

parties tied for ever to a marriage that in fact has ceased to exist.

In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and

civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the

respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been

wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure

what is already defunct de facto. To keep the sham is obviously conductive to immorality and potentially more prejudicial to the public interest than

a dissolution of the marriage bond.

In the case of Vinita Saxena Vs. Pankaj Pandit, the Supreme Court formulated certain guidelines which are in paragraph Nos. 30, 31 and 32

and the same are as under:

Humane aspects which this Court should consider.

The appellant was 24 years of age when she got married? The marriage lasted for four to five months only when she was compelled to leave the

matrimonial home?

The marriage between the parties was not consummated as the respondent was not in a position to fulfill the matrimonial obligation?

The parties have been living separately since 1993. 13 years have passed they have never seen each other?

Both the parties have crossed the point of no return. A workable solution is certainly not possible?

Parties at the stage cannot reconcile themselves and live together forgetting their past as a bad dream?

Parties have been fighting the legal battle from the year 1994?

The situation between the parties would lead to a irrefutable conclusion that the appellant and the respondent can never ever stay as husband and

wife and the wife''s stay with the respondent is injurious to her health?

The appellant has done her Ph.d. The respondent, according to the appellant, is not gainfully employed anywhere?

As a matter of fact, after leaving his deposition incomplete during the trial, the respondent till date has neither appeared before the Trial Court nor

before the High Court?

The facts and circumstances of the case as well as all aspects pertain to humanity and life would give sufficient cogent reasons for us to allow

the appeal and relieve the appellant from shackles and chain of the respondent and let her live her own life, if nothing less but like a human being. In

our view, the orders of the Courts below have resulted in grave miscarriage of justice to the appellant who has been constrained into living with a

dead relationship for over 13 years.

The resultant agony and injustice that has been caused to the appellant, it is a fit case for interference under Article 136 of the Constitution of

India and reversal of findings of the Courts below which have resulted in grave miscarriage of justice. In the result, the Civil Appeal stands allowed.

There will be a decree for divorce in favour of the appellant-wife and against the respondent-husband. The order of the Trial Court as affirmed by

the High Court, stands set aside. There will be no order as to costs.

In the case of G.V.N. Kameswara Rao Vs. G. Jabilli, the Supreme Court enumerated certain principles in paragraph Nos. 12 and 16 which are

as under:

The Court has to come to a conclusion whether the acts committed by the counter-petitioner amount to cruelty, and it is to be assessed having

regard to the status of the parties in social life, their customs, traditions and other similar circumstances. Having regard to the sanctity and

importance of marriages in a community life, the court should consider whether the conduct of the counter-petitioner is such that it has become

intolerable for the petitioner to suffer any longer and to live together is impossible, and then only the court can find that there is cruelty on the part

of the counter-petitioner. This is to be judged not from a solitary incident, but on an overall consideration of all relevant circumstances.

The case of the appellant that he had been subjected to cruelty by the wife is not put as such solely on the basis of one or two incidents. Their

married life started in 1979 with so many ups and downs. Both of them did not live together for a long period as happily married couple. The

appellant has succeeded in proving that the attitude of the respondent was not cordial and cooperative. The respondent also alleged that their

married life was not happy and cheerful. The way in which the appellant was treated by the respondent when he visited her sister''s house at Araku

Valley and the subsequent filing of the criminal complaint whereby the appellant was subjected to severe humiliation would go to show that the

respondent was not prepared to extend any kind of cooperation to the appellant. The respondent''s allegation that she was physically assaulted by

the appellant and his mother is not very convincing. The fact that there was a bleeding injury on her hand was taken note of seriously by the High

Court but the question is, in those circumstances, would an ordinary prudent person rush to the police station and file a complaint to see that her

husband and his mother be kept in police custody for unduly long hours. These incidents throw an insight into her past conduct when she was

staying with the appellant. The mental cruelty faced by the appellant is to be assessed having regard to his status in life, his educational background,

and the environment in which he lived. The appellant could have suffered traumatic experience because of the police complaint and the consequent

loss of reputation and prestige in the society. Married life of the appellant with the respondent had never been happy. The appellant would say that

from 1985 onwards, he has not been having conjugal relationship with the respondent and even prior thereto the respondent was not properly

discharging her marital obligations.

In the case of Sujata Uday Patil v. Uday Madhukar Patil reported in 2007 (1) CTC 266 the Apex Court formulated certain guidelines in

paragraph No. 10 which is as under:

Matrimonial disputes have to be decided by Courts in a pragmatic manner keeping in view the ground realities. For this purpose a host of

factors have to be taken into consideration and the most important being whether the marriage can be saved and the husband and wife can live

together happily and maintain a proper atmosphere at home for the upbringing of their offsprings. This the court has to decide in the fact and

circumstances of each case and it is not possible to lay down any fixed standards or even guidelines.

In the case of Rishikesh Sharma Vs. Saroj Sharma, , the Supreme Court again considered the theory of irretrievable broken down concept. In

that case, there was marriage between the husband and the wife in the year 1972 according to the Hindu rites and customs. There was

misunderstanding between them the respondent started living separately from her husband from the year 1981 onwards and he is working in the

Social Forestry Department and filed several criminal proceedings against her husband. The husband filed a petition for a decree of dissolution of

marriage on the ground of mental cruelty. The District Court dismissed the petition filed by the husband and on appeal, the High court also

dismissed the appeal. Thereafter the husband filed the appeal before the Supreme Court. After hearing, the Supreme Court held as follows:

We heard Mr. A.K. Chitale, learned Senior counsel and Mr.S.S.Dahiya, learned Counsel for the respondent and perused the judgment passed

by both the Trial Court and also of the High Court. It is not in dispute that the respondent is living separately from the year 1981. Though the

finding has been rendered by the High Court that the wife last resided with her husband up to 25.03.1989, the said finding according to the learned

Counsel for the appellant is correct. In view of the several litigations between the parties it is not possible for her to prosecute criminal case against

the husband and at the same time continue to reside with her husband. In the instant case the marriage is irretrievably broken down with no

possibility of the parties living together again. Both the parties have crossed 49 years and living separately and working independently since 1981.

There being a history of litigation with respondent-wife repeatedly filing criminal cases against the appellant which could not be substantiated as

found by the Courts. This apart, only child born in the wedlock in 1975 has already been given in marriage. Under such circumstances the High

Court was not justified in refusing to exercise its jurisdiction in favour of the appellant. This apart, the wife also has made certain allegations against

her husband that the husband has already remarried and is living with another lady as stated by her in the written statement. The High Court also

has not considered the allegations made by the respondent which have been repeatedly made and repeatedly found baseless by the Courts.

In our opinion it will not be possible for the parties to live together and therefore there is no purpose in compelling both the parties to live

together. Therefore the best course in our opinion is to dissolve the marriage by passing a decree of divorce so that the parties who are litigating

since 1981 and have lost valuable part of life can live peacefully in remaining part of their life.

During the last hearing both the husband and wife were present in Court. Husband was ready and willing to pay lumpsum by way of permanent

alimony to the wife. The wife was not willing to accept the lumpsum but however expressed her willingness to live with her husband. We are of the

opinion that her desire to live with her husband at this stage and at this distance of time is not genuine. Therefore, we are not accepting this

suggestion made by the wife and reject the same.

Applying the above principle as well as the guidelines formulated by the Supreme Court cited above, we have to determine that whether the

present case comes within the concept of irretrievable broken down or not. In the present case, there are certain factor which is necessary for the

purpose of determining that the marriage is broken down or not and they are as follows:

a) Both the parties lived separately for more than ten years. The marriage is lasted for a period of 4 to 5 months only.

b) The marriage between the parties was not consummated. The parties have been living separately since 1995 and they are not seeing eye to eye.

c) Both the parties have crossed the point of no return and there is no workable solution.

d) There is no reconciliation between themselves and refused to re-forget the past and the parties fighting the battle from the year 1996.

e) The age of the husband is 50 years and he is working in Legal Aid Office. The age of the wife is 49 years and she is working as teacher in a

school.

f) The police complaint was given by the wife against the husband.

g) There was allegation and the counter allegation made by the parties and they are very serious one.

So, these factors would certainly show that the appellant and the respondent can never ever stay as husband and the wife. It leaves no doubt in our

mind to take a view that the relationship was broken down beyond the repair. As it has been held by the Supreme Court cited above, co-

habitation is essential for a valid marriage. The marriage took place on 29.08.1993. They lived together only for a period of four months.

Thereafter, the parties are not living together from 1996. There is no hope for the parties living together peacefully. We are very careful and

cautious to embrace the new ""irretrievable break down"" concept. We know that new irretrievable break down concept would be to open ""too

wide a door to divorce"". It is an easy path to tread but the same is not correct method of approach. A true balance must be kept. It is also most

important that the Court should emphasis the sanctity of marriage. We have to take a fairly realistic approach to it. So, the Court attitude should be

essentially pragmatic. We have to give relief from a marriage that had broken down. In this case, both the parties have contributed to the break

down. The marriage has lasted only for a short time. There are no children. We are of the view that the marriage is irretrievable broken down and

hence, we set aside the order of the lower authority and allow the appeals filed by the appellant and on the aforesaid legal and factual ground, the

appellant is entitled to decree of divorce accordingly. No costs.