Jayashree vs S. Suresh

C. Nagappan, J.—This appeal is preferred against the order and decree dated 21.5.2010 made in F.C.O.P. No. 78 of 2005 on the file of

the Family Court, Salem. The respondent in the Original Petition is the appellant. For the sake of convenience, in this judgment, the parties are

referred to as arrayed in the Original Petition.

The respondent/petitioner filed Original Petition u/s 13(1)(i-a) of the Hindu Marriage Act, 1955, seeking for a decree of divorce dissolving the

marriage between him and the appellant/respondent which was held on 22.8.1993 at Seshadri Mahal, Tatabad, Coimbatore 12.

The case of the petitioner is that the marriage took place on 22.8.1993 and they along with the parents of the petitioner lived as a joint family

and the respondent used to pick up quarrels with the petitioner and his parents even for flimsy and trivial matters and the petitioner is the only son

for his parents and his sister was married and well placed. It is further stated by the petitioner that the respondent used to create some

unpleasantness in the house and leave the matrimonial home either to her parents'' place or to her grandmother''s place at Coimbatore very

frequently and the petitioner used to bring her back to the matrimonial fold and the respondent used to come back with reluctance.

According to the petitioner, the respondent never used to give respects to elders in the family or to the petitioner and used to address them in

singular language and because of the same, the petitioner went away with the respondent to live separately on the hope that a separate residence

will bring some peace and there are two children born out of the marriage. It is further stated by the petitioner that the respondent never corrected

herself and hence the petitioner came back to his parental home and was living there with the respondent and the petitioner used to advise the

respondent to help his aged mother and share the work burden; but, the respondent used to shout at the petitioner by saying that she would do all

these things only after the death of the petitioner''s mother and on hearing this, the mother of the petitioner felt hurt.

It is further alleged in the petition, that whenever the petitioner gets up in the morning and asks for coffee, the respondent used to tell him that he

could have a cup of coffee in a Hotel by paying Rs. 2/- and the indifferent attitude of the respondent hurt the petitioner and his parents. According

to the petitioner, on account of lack of peace in the house, he could not concentrate in the business and became depressed and consumed sleeping

tablets and was admitted in the hospital for about a week.

It is further stated by the petitioner that on some occasions, when both the petitioner and the respondent went out for function or otherwise, the

respondent used to pick up quarrel and shout at the petitioner and create an ugly scene in the presence of public and relatives and the respondent

had indifferent attitude towards the family of the petitioner. It is further averred by the petitioner that on 18.5.2004, the respondent went away from

the matrimonial home without informing the petitioner and has not returned till the filing of the petition.

According to the petitioner, his sister Geetha has stopped visiting his house fearing for the indifferent attitude of the respondent. It is also stated

by the petitioner that he never took drastic steps of initiating proceedings to dissolve the marriage because he was interested in the welfare of the

children and at the time of filing of the petition, the stage has reached that there is no point in putting up with the behaviour of the respondent and

hence he has filed the petition.

The respondent filed a counter statement admitting the marriage with the petitioner and the birth of two children out of the wedlock. According

to the respondent, the petitioner is quarrelsome, characterless and a drunkard and he was not having any standard avocation and besides, he also

demanded dowry and drove the respondent from matrimonial home for getting money. It is further alleged by the respondent that she always

respected elders in the family and never quarrelled with the parents of the petitioner and the petitioner''s parents were living separately from the

inception of their marriage and hence there is no occasion to quarrel with them and she lived with the petitioner as a dutiful wife till 18.5.2004 on

which date, the petitioner drove her out.

According to the respondent, she is educating the children by housing them at her grandparents'' house at Coimbatore and she is taking care of

the children by visiting Coimbatore often and she is always ready and willing to live with the petitioner and she has specifically denied all the

allegations made against her in the petition.

During the trial, the petitioner examined himself as P.W.1 and examined his father as P.W.2 and marked Exs.A1 to A7. The respondent

examined herself as R.W.1 and marked Ex.B1 and B2 on her side. The Family Court on a consideration of oral and documentary evidence, held

that the petitioner is entitled to a decree of divorce on the ground of cruelty and allowed the petition as prayed for. Challenging the same, the

respondent-wife has preferred the present appeal.

The point for consideration in the appeal is as to whether the respondent treated the petitioner with cruelty as alleged in the petition.

Mr.S.V.Jayaraman, learned Senior Counsel appearing for the appellant/respondent, submits that the petitioner and the respondent married in

the year 1993 and lived together for 11 years and have begotten two children and the parents of the petitioner lived separately in the downstairs

portion and the allegation that the respondent was hostile towards them and the petitioner is false and there are material contradictions in the

testimonies of P.Ws.1 and 2 belying their versions and the trial Court has failed to appreciate the same and in any event, the petitioner is not

entitled to get a decree in his favour in view of Section 23(1)(b) of the Hindu Marriage Act, 1955 and hence the impugned order is liable to be set

aside.

In support of his submission, learned Senior Counsel relied on the following decisions of the Supreme Court:

(i) A. Jayachandra Vs. Aneel Kaur, and

(ii) Naveen Kohli Vs. Neelu Kohli,

Per contra, Mr.S.Makesh, learned Counsel appearing for the respondent/petitioner, submits that the trial Court on over all consideration of all

relevant circumstances, has concluded that the petitioner has proved the mental cruelty as against the respondent and the conclusion is sustainable

on facts and in law. In support of his submission, he relied on the following decisions of the Supreme Court:

(i) G.V.N. Kameswara Rao Vs. G. Jabilli, and

(ii) Vinita Saxena Vs. Pankaj Pandit,

We considered the rival submissions and perused the material records.

The specific case of the respondent/petitioner is that the appellant/respondent treated him with cruelty and has sought for decree of divorce u/s

13(1)(i-a) of the Hindu Marriage Act. The cruelty alleged in the petition, is mental cruelty and the burden is on the petitioner to prove the same. It

is well settled in law that the mental cruelty in Section 13(1)(i-a) must be of such nature that the parties cannot reasonably be expected to live

together and it is a matter to be determined having regard to the facts and circumstances of the case. The question to be considered is as to

whether the accusations alleged in the petition by the petitioner, constitute mental cruelty for sustaining the claim for divorce.

In paragraph No. 4 of the petition, it is alleged that ever since the date of marriage, the respondent-wife was in a belligerent mood and used to

pick up quarrels with the petitioner and his parents even for flimsy and trivial matters. There are no particulars mentioned with regard to the date

and time of such conduct of the respondent-wife and the allegation is vague only.

In paragraph No. 5 of the petition, it is alleged that the respondent-wife used to leave the matrimonial home either to her parents'' place or to

her grandmother''s place at Coimbatore frequently and the petitioner used to bring her back to the matrimonial home and the respondent would

return with reluctance. Nothing turns out in this allegation except the attempted desertion by the wife and here also, none of the particulars are

found mentioned.

In paragraph No. 6 of the petition, it is averred that the respondent-wife did not give any respect to the petitioner or his parents and used to

address them in singular words and that necessitated the petitioner to go for a separate residence along with the respondent-wife and two children

were born and even then, the conduct of the respondent remained the same and hence he came back to the parental home. It is relevant to point

out that in this paragraph also, there are no particulars mentioned as to when the petitioner opted for separate residence and when he returned

back to the parental home. In this context, the oral evidence has to be looked upon. P.W.1, the petitioner, has testified that even after one month

of their marriage, there was difference of opinion between him and the respondent and hence he set up a separate residence at Goundampalayam

where they lived for 4 = years and thereafter, he returned to the house of his parents and started living separately in the first floor, whereas his

parents were residing in the ground floor. If that is so, the petitioner and the respondent lived with the parents of the petitioner only for a period of

one month after their marriage and thereafter, there was no joint living till the date of filing of the petition.

In paragraph No. 7 of the petition, it is alleged that the petitioner''s mother used to get up early in the morning and after cleaning the front-yard

of the house, would put kolam and when the petitioner advised the respondent to help his aged mother, the respondent used to shout at him by

saying that she would do all these things, only after the death of the petitioner''s mother and on hearing the same, the petitioner''s mother felt hurt

and the respondent never used to help the petitioner''s parents in any way. The said allegation cannot be termed as an act of cruelty. Moreover, as

already seen, even according to the petitioner, they lived as a joint family only for a month after their marriage. Hence there is little chance for the

respondent to have uttered the words alleged by the petitioner. Further, the petitioner has failed to examine his mother to substantiate the said

allegation.

It is alleged in paragraph No. 8 of the petition, that whenever the petitioner asked for morning coffee, the respondent used to tell him that he

could have a cup of coffee in a Hotel by paying for the same. This allegation is insignificant and trifling and the conduct even if it is true, can never

be termed as cruelty.

It is averred in paragraph No. 9 of the petition, that because of lack of peace in the house, the petitioner could not concentrate on his finance

business and he became dejected and deprived and consumed sleeping tablets and admitted in a hospital for a week. Except the testimony of

P.W.1, the petitioner, there is no documentary evidence to substantiate the above allegation. Moreover, the said allegation has been specifically

denied by the respondent. It is further alleged in the said paragraph that on some occasions, when both the petitioner and the respondent went out

for function, the respondent used to pick up quarrel with the petitioner and create an ugly scene in the presence of relatives and public. The

petitioner has not let in any evidence for the said allegation either by examining any of his relatives or any independent witness. It is also pertinent to

point out that no particulars as to when and where the respondent behaved in the said fashion are found mentioned in the said paragraph.

In paragraph Nos.10 and 11 of the petition, it is alleged that the respondent left the matrimonial home on 18.5.2004, without informing the

petitioner or his parents. P.Ws.1 and 2 in their testimonies, have stated that the respondent left the petitioner only on 18.5.2004. The respondent

also in her testimony as R.W.1, has admitted the same. Hence it is clear that only on 18.5.2004, the respondent went away from the petitioner.

In paragraph No. 12 of the petition, it is averred that the sister of the petitioner Geetha stopped visiting the house of the petitioner fearing for

the indifferent attitude of the respondent and the petitioner never took drastic steps of initiating proceedings to dissolve the marriage because he

was interested in the welfare of the children and only at the time of filing of the petition, he thought that the stage has reached to break the marriage

in law. The petitioner has failed to examine his sister Geetha to substantiate the said allegation.

The Supreme Court in the decisions relied on by the appellant/petitioner, has laid down that mere trivial irritations and quarrels between the

spouses which happen in day-to-day marriage life, may not amount to cruelty and petty quibbles and trifling differences should not be exaggerated

and magnified to destroy the marriage and the mental cruelty must be of such nature that the parties cannot reasonably be expected to live together.

In the present case, as already seen, the petitioner has not alleged any specific act of cruelty and has also not substantiated the pleas made by him

in the petition. There is no doubt about the legal propositions laid down by the Supreme Court in the decisions relied on by the learned Counsel for

the respondent/petitioner, and in fact, in one of the decisions, it is held that austerity of temper, rudeness of language and occasional outburst of

anger may not amount to cruelty, though it may amount to misconduct. As already seen, the petitioner has failed to prove the mental cruelty alleged

by him against the respondent.

The other contention raised by the learned Senior Counsel appearing for the appellant, is that the petitioner is not entitled to get a decree in his

favour in view of Section 23(1)(b) of the Hindu Marriage Act, 1955. Section 23(1)(b) of the Hindu Marriage Act stipulates that if the Court is

satisfied that where the ground of divorce petition is cruelty, the petitioner has not in any manner condoned the cruelty, the Court shall decree such

relief accordingly. In the present case, in paragraph No. 12 of the petition, the petitioner has averred that he never took drastic steps of initiating

proceedings to dissolve the marriage because he was interested in the welfare of his children and lived with the respondent for more than 10 years.

It is also averred in paragraph No. 5 of the petition, that the respondent used to leave the matrimonial home often and the petitioner would bring

her back and live with her till she finally left the matrimonial home on 18.5.2004. Even if the allegations of cruelty mentioned in the petition, are

taken as true for the sake of argument, the petitioner has condoned the cruelty by his acts in bringing her back to the matrimonial home and living

with her. In fact, the respondent left the matrimonial home on 18.5.2004, and the petition seeking for divorce, has been filed in the month of July

2004. Hence as rightly contended by the learned Senior Counsel for the appellant, the petitioner is not entitled to get a decree in his favour in view

of Section 23(1)(b) of Hindu Marriage Act.

The trial Court virtually accepted the evidence of P.Ws.1 and 2 without proper appreciation and adopted an erroneous approach by picking

up answers from the evidence of the appellant/R.W.1 and thereby drawing inference in favour of the respondent/petitioner. The finding of the trial

Court is erroneous and misconceived and is liable to be set aside. In the result, this civil miscellaneous appeal is allowed and the order and decree

passed by the Family Court in FCOP No. 78 of 2005, are set aside and the Original Petition in FCOP No. 78 of 2005 on the file of the Family

Court, Salem, is dismissed. However, there shall be no order as to costs. Consequently, connected MP is closed.