K.T. Kannan vs K.K. Nagananthini

G. Rajasuria, J.—This appeal is focussed as against the order passed in H.M.C.M.A. No. 17 of 2000 dated 11.09.2002 on the file of the

District Judge, Ramanathapuram, confirming the order passed in H.M.O.P. No. 12 of 1999 dated 20.09.2000 on the file of the Subordinate

Judge, Ramanathapuram.

For convenience sake, the parties are referred to hereunder as husband and wife.

The nutshell facts which are absolutely necessary and germane for the disposal of this Civil Miscellaneous Second Appeal would run thus:

Broadly but briefly, the case of the husband who filed H.M.O.P. No. 59 of 1998 for divorce as against the wife, could be narrated thus:

(i) The Hindu marriage between the petitioner/husband and the respondent/wife took place on 31.01.1994 in Madurai as per Hindu Rites and

Customs. Thereupon, they lived together at Chromepettai, Chennai. The petitioner at the time of marriage was working as Project Scientist at

Chennai and the respondent/wife was a student of B.Sc., and she completed the course after the marriage. The wife had inferiority complex as she

had bad smell emanating from her mouth because of her decayed teeth. Virtually, she did not have any teeth. A sum of Rs. 12,000/- (Rupees

Twelve Thousand only) was spent for replacement of her entire teeth and the said amount was spent on the husband''s side. However, she of her

own accord got that amount returned to the husband by her father who is the resident of Paramakudi.

(ii) She because of her own conduct did not move with the petitioner or his relatives with cordiality. She preferred to travel along with the

petitioner''s father and mother to various places and thereby shunned the company of the husband. She was shy of speaking with her husband even

after eight months of marriage. Because of her inferiority complex about her physical appearance, she wanted to pave the way for the petitioner to

marry a wise and pleasant looking girl by the respondent by committing suicide. While celebrating ""Thalai Deepavali"", there were some differences

of opinion between the families of the petitioner and the respondent. The wife''s father behaved rudely. The wife''s mother passed derogative

remarks as against the petitioner''s parents. The wife neglected to perform the household work and cooking. She shouted in front of her relatives

that the petitioner was not providing any presents to her. The wife started behaving cruelly towards the husband. The owner of the house in which

the couple stayed, provided food at times, because of the negligent attitude of the wife. The wife used to go alone to shops, Railway Station and

temples which caused mental agony to the husband.

(iii) The husband and the wife lived upto February 1996. Only after the marriage, the wife completed her Graduation. As such, ever since June

1994 till February 1996, the couple lived together, but she was cruel towards the husband and thereafter she deserted the matrimonial home and

went to her parents'' house. On 13.04.1996, the petitioner went to the wife''s parents house for Chithirai Vizha where there was ill-treatment

meted out to him and false allegations were made as against him and his family membeRs. Attempts were made to reunite the couple ended in vain

due to the non co-opeative attitude of the wife in resuming cohabitation. On 16.08.1997, the wife''s father took away the utensils, jewels and

sarees etc., belonging to the respondent from Madurai. The petitioner went to U.S.A for working in California. No issues were born to the couple.

The wife''s father filed the complaint with the police as though there was a demand for Rs. 12,000/- by the petitioner. Since the wife threatened

that she would commit suicide, he was afraid of taking her to Bangalore earlier, when he was at Bangalore. Accordingly, he prayed for divorce.

Per contra, denying and disputing, challenging and impugning the allegations/averments, the wife filed the counter which could be pithily and

precisely set out thus:

(i) The husband ever since the marriage neglected the wife and the wife did not intend to commit suicide so as to enable the petitioner to marry for

the second time. In fact, the wife came to understand subsequently that the petitioner and his father wanted to do ""mercy killing"" of the wife, so that

the petitioner could marry for the second time. When the wife''s father approached the petitioner to take him for ""Thalai Deepavali"", there was

unjustifiable objection on the side of the petitioner and his father. The petitioner preferr4ed to celebrate ""Thalai Deepavali"" along with the members

of his former landlady in whose house he stayed while he was studying and only after two days, ""Thalai Deepavali"" was celebrated in the wife''s

parents house by the couple.

(ii) The husband in fact, showed affection towards the said landlady and her daughters and he moved closely with them in an objectionable way

and he used to dine with them neglecting the wife. While the wife was staying in her in-law''s house and that too in the absence of the husband, the

husband''s father misbehaved with her and he wanted sexual favour from her. She never caused mental or physical torture to the husband, who

without informing her left India. The wife was not at fault. Accordingly, she prayed for the dismissal of the petition.

During enquiry, on the side of the petitioner, he examined himself as P.W. 1 and no document was marked and on the side of the respondent,

the wife was examined as R.W. 1 and Ex. R.1 was marked. Ex. P.1 was marked on the side of the petitioner as additional document before the

first appellate Court.

Ultimately, the trial Court dismissed the petition.

As against which the appeal was filed which was also dismissed confirming the findings of the trial Court.

Being aggrieved by and dissatisfied with, the judgment and decree of both the Courts below, this second appeal has been filed on the following

main grounds among others:

Both the Courts below failed to appreciate the evidence in a proper perspective. Despite Ex. P.1 demonstrated clearly the inferiority complex of

the wife, both the Courts below had not taken it into account. It was the wife who avoided the company of the husband even while she was living

with him. She herself detailed in writing that the petitioner''s parents were good and the attitude of the wife towards husband was cruel, but

subsequently she passed allegations baselessly. Both the Courts below failed to consider all these aspects. The non-examination of Panchayatars

was not fatal to the case. Both the Courts below failed to consider that the wife in her deposition indulged in embellishment of her case which she

never put forth in her counter. There is irretrievable break down of marriage between the petitioner and the respondent. Accordingly, he prayed for

setting aside the judgment and decree of both the Courts below and prayed for granting divorce.

Heard both sides.

At the time of admitting this second appeal, the following substantial questions of law were framed:

(a) Whether the judgments of the Court i.e., lower appellate Court is vitiated by its failure to consider the entire evidence on record and correct

principles of law.

(b) Whether there was a proper casting of burden of proof by the lower appellate court.

(c) Whether the judgment of the court below is vitiated especially in view of the fact that the lower appellate Court having allowed the petition for

marking of documents Ex. P1 and the respondent herself has admitted she was lucky to have the petitioner has husband and lucky to have very

good in-laws, the findings of the court below that the father-in-law is the villian is totally against the admission made by the respondent.

(d) Whether the judgment of the court below is vitiated in view of the fact that the Courts below have not taken into consideration that the

respondent has deserted the petitioner for more than the statutory period mentioned u/s 13(1)(b) of the Hindu Marriage Act.

(e) Whether the judgment of the Court below is vitiated as the case squarely applies to the reported decision of this Honourable Court in 2002

CTC 504.

Trite, the proposition of law is that the term ''cruelty'' has not been defined in the Hindu Marriage Act. The Honourable Apex Court highlighting

the said Act for the purpose of guiding the Courts below detailed and delineated in the following decisions various criteria to understand as to what

would constitute cruelty:

(i) Savitri Pandey Vs. Prem Chandra Pandey, . An excerpt from it, would run thus:

Treating the petitioner with cruelty is a ground for divorce u/s 13(1)(i-a) of the Act. Cruelty has not been defined under the Act but in relation to

matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists

of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and

manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering

or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to

the matrimonial life of the other. ""Cruelty"", therefore, pos tulates a treatment of the petitioner with such cruelty as to cause a reasonable

apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be

distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be

adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case both

the trial court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent.

Concurrent findings of fact arrived at by the courts cannot be disturbed by this Court in exercise of powers under Article 136 of the Constitution of

India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly show that the allegations, even if held to

have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more

than ordinary wear and tear of the family life.

(ii) Vijaykumar Ramchandra Bhate Vs. Neela Vijaykumar Bhate, . An excerpt from it, would run thus:

In V. Bhagat v. D. Bhagat 2 it was observed that mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon

the other party such mental pain and suffering as would make it not possible for that party to live with the other and the parties cannot reasonably

also be expected to live together or that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the

other party. It was also considered to be not necessary to prove that the mental cruelty is such as to cause injury to the health of the wronged

party. That was a case wherein the husband filed a petition against the wife for divorce on the ground of adultery. In the written statement filed by

the wife in the said proceedings, she alleged that the husband was ""suffering from mental hallucination"", that his was a ""morbid mind...for which he

needs expert psychiatric treatment"", and that he was ""suffering from paranoid disorder"" etc. and that during cross-examination several questions

were put to him suggesting that the petitioner and several members of his family including his grandfather were lunatics and that the streak of

insanity was running in the entire family. It is in the said context this Court though he ld the allegations levelled against the wife were not proved, the

counter-allegations made by the wife against the husband certainly constituted mental cruelty of such a nature that the husband cannot reasonably

be asked to live with the wife thereafter. The husband, it was also held, would be justified to say that it is not possible for him to live with the wife.

In rejecting the stand of the wife that she wants to live with her husband, this Court observed that she was deliberately feigning a posture, wholly

unnatural and beyond comprehension of a reasonable person and held that in such circumstances the obvious conclusion has to be that she has

resolved to live in agony only to make life a miserable hell for the husband, as well....

11...To satisfy the requirement of Clause (i-a ) of Sub-section (1) of Section 13 of the Act, it is not as though the cruel treatment for any particular

duration or period has been statutorily stipulated to be necessary. As to what constitutes the required mental cruelty for purposes of the said

provision, in our view, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct, but really go

by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for

maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the courts perhaps need consider

the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious

an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of

matrimonial home is not possible any longer....

(iii) Praveen Mehta Vs. Inderjit Mehta, . An excerpt from it, would run thus:

This Court, construing the question of mental cruelty u/s 13(1)(i-a ) of the Act, in the case of G.V.N. Kameswara Rao Vs. G. Jabilli,

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 i mpossible, 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.

Cruelty for the purpose of Section 13(1)( i-a ) is to be taken as a behaviour by one spouse towards the other, which causes reasonable

apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a

state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty,

mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the

case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing

the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the

attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour

in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the

cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the

divorce petition has been subjected to mental cruelty due to conduct of the other.

(iv) A.Jayachandra v. Aneel Kaur reported in 2005 2 L.W. 149. An excerpt from it, would run thus:

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

given 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. If from the conduct of his spouse same is

established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the

other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see

the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and

certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a

case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the

acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. 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.

I am of the considered opinion that the aforesaid excerpts from the decisions of the Honourable Apex Court would be more than sufficient to

have a clear understanding as to what type of conduct of a spouse would constitute cruelty as against the other spouse.

As such, the perusal of the aforesaid decisions would clearly indicate that mere wear and tear in the marital life, should not be taken as

sufficient ground constituting cruelty for granting divorce.

The learned Counsel for the appellant/husband would make a supine submission to the effect that the husband in view of his refined manners

which he gained from his parents and also from the family of the owner of the house in whose house he stayed namely Gomathinayaki, while he

was studying, refrained from making detailed allegations as against the wife in his petition as well in his deposition as P.W. 1. I am at a loss to

understand as to how such an argument could be countenanced in a matrimonial case. If really the wife behaved cruelly towards the husband and

consequently, deserted him, certainly the husband is expected to detail and delineate the facts constituting such cruelty as well as the desertion,

because the burden of proof is on the person who seeks divorce.

Be that as it may, this Court proceeds to consider from the available evidence whether cruelty and desertion were found established before the

trial Court, inasmuch as there are allegations that the trial Court and the first appellate Court had failed to appreciate the evidence available on

record. I am fully aware that in the second appeal only, the substantial questions of law should be considered.

Hence, in such a case, I would like to look into the evidenciary aspects of the case so as to find out whether the Courts below correctly

appreciated the facts and figures placed before them.

The learned Counsel for the husband would rely on the deposition of D.W. 1, the wife and he drew my attention to various portions of

deposition of D.W. 1 and argued unconvincingly that the wife after committing cruelty as against the the husband, deserted the matrimonial home.

The perusal of the deposition of D.W. 1 including Ex. P.1 would reveal that she expressed her longing for her husband''s love and she was

very much mentally upset due to the discourteous attitude towards her. Whereas the learned Counsel for the husband would place reliance on the

writings of the wife in Ex. P.1 as though she admitted her fault when in fact it was not so. The trial Court as well as the first appellate Court

correctly appreciated Ex. P.1. The writings of the wife in Ex. P.1 pours out her grief in the heart of her hearts.

The learned Counsel for the husband would submit that the writings in Ex. P.1 would demonstrate the inferiority complex of the wife that she

was having bad smell emanating from her mouth due to decayed teeth and that she was black and not good-looking etc. This is a peculiar case in

which the husband and his family members tried to make a mountain out of mole hill. May be the wife might be having decayed teeth and there

might have been bad smell from her mouth at the time of marriage, but subsequently as admitted by P.W. 1, she took treatment for which a sum of

Rs. 12,000/- was spent from the husband''s side, whereupon that amount was paid by the wife''s father promptly. If really, the husband never

harboured such a dislike in his heart, based on the bad odour emanating from her mouth, he would have chosen to refrain from setting out in detail

in his petition as well as in his deposition, but he gave a pictorial description of it.

It is a trite proposition of law that a dutiful and responsible husband would not utter out in public whatever be the circumstances, certain

drawbacks in the health condition of his wife. But, here, is the husband who speaks eloquently about it and in the meantime, he would add a rider

as though he never minded it. The Court while dealing with the matrimonial matter should by placing itself in ''parens patria'' position, approach the

problem and not in a wooden manner. In the petition itself, it is found set out by the husband as though all her teeth got decayed and that she had

no teeth at all. Whereas during cross-examination, P.W. 1, the husband would state that in the upper row, two teeth and in the lower row, two

teeth, got decayed and out of that, two teeth were replaced. Whereas it was suggested to P.W. 1 during cross-examination on the wife''s side that

only one tooth got decayed. During cross-examination, the husband relentlessly suggested her as though she had no proper alignment of teeth and

that the husband would assert that bad smell was emanating from her mouth whereas in the petition, in the middle of paragraph No. 4 he stated

thus:

...and they have lived together at Chrompet till September, 1994. The respondent immediately went to Trichy in June, 1994 along with her in-laws

to see her ailing uncle (heart patient) undergoing treatment at Trichy. Right from the beginning, the respondent, did not want to speak with any

relations, including the petitioner. The respondent had an inferiority complex, because due to untolerable bad smell emanate when she open her

mouth to speak of her decayed teeth throughout. In short virtually she did not have any teeth. Sensing this mentality the petitioner along with his

father took the respondent for treatment and replacement of her entire set of teeth to a Dentist at Chinmayanagar, at a total cost of Rs. 12,000/-

including medicine expenses. She was guilty conscious and asked her father to return the sum of Rs. 12,000/- to the petitioner or else she would

not step inside her father''s house at Paramakudi. Therefore on 12.11.1995, the petitioner''s father had received the said sum from the

respondent''s father, in order to improve the cordial relationship with her daughter.

As such, quite antithetical to what he set out in the petition, he gave a different version during cross-examination and his prevaricative stand

clearly demonstrates that he was very much bothered about the wife''s teeth and the alleged bad smell emanating from her mouth. In matrimonial

matters, the Court should take judicial notice of the traditional Indian culture.

The core question arises, can the Court treat the husband''s minding the bad odour emanating from his wife''s mouth as the valid reason on the

part of the husband to shun her. The answer is an emphatic ''No''.

It is crystal clear from the deposition that soon after the marriage, the alleged bad smell emanating from her mouth very much perturbed the

husband and his family members and naturally that would have made the young bride to go down in her own self-estimation and no more

elaboration is required in this regard.

The husband''s attempt to explain and expound away the his conduct in receiving Rs. 12,000/- from the wife''s father towards the cost of the

wife''s treatment fails to carry conviction with this Court. The husband would try to project as though the wife''s guilty conscience made her to ask

her father to return the money. The term ''guilty conscience'' is a serious one.

The question arises as to why she should have guilty conscience because she had a few decayed teeth in her mouth. No man having head over

shoulder, would venture ever to say that simply because the bride is having a few decayed teeth, she should have disqualified herself as a bride or

that such a bride cheated the bridegroom and married him. The matrimonial bondage under the Hindu law is sacrosanct. The alleged bad smell

emanated from her decayed teeth cannot be taken as a weighty grievance to put forth in his petition for divorce. In fact, the very attempt on the

husband''s side would show that he was not having the mental attitude to lead a normal life with his wife and he tried to bolster up the pretty issue

as a Himalayan one. In family relationship, if small and petty differences are allowed to get snow-balled, then that would pave the way for rift in the

matrimonial relationship. But, on the other hand, tolerance and adjustability would strengthen the marital tie. But, in this case, the husband failed to

accomplish the same.

It is evident that when the husband and the wife were living in husband''s parents'' house in Madurai, he left for Bangalore in connection with his

job. But, he had not chosen to take her along with him. On the other hand, during cross-examination, he would put the blame on the wife as though

she only refused to accompany him and that she left the matrimonial home and started living with her parents in Paramakudi and that too after

slinging mud on the husband''s father as though he attempted to misbehave with her etc. The wife in her deposition would clearly and categorically

state that the husband shunned her company and that he resigned his job in Madras and went to Bangalore neglecting her.

In fact, adding fuel to the fire, the husband from Bangalore left for U.S.A without even informing the wife and to that effect, she clearly

deposed. In matters of this nature, the preponderance of probabilities should be taken into account. It is well known that the witnesses might lie but

the circumstances would not lie. From the fact that the wife''s father approached the police to know the whereabouts of the husband, would speak

volumes as to how he was non communicative and that he shunned the company of his wife.

Ex. P.1, emanated at the time before the arisal of the litigation. She poured her grief into it and a total reading of it, unambiguously

demonstrates that it was the husband who be-littled, slighted, discarded, pooh-poohed, despised and shunned her and that alone made her to write

in such a manner in Ex. P.1 that perhaps the husband might have thought of marrying a beautiful girl and that he might have married the respondent

out of his parents'' compulsion. She also highlighted that the husband sold away his vehicle with an intention to avoid taking her out. The concluding

portion of Ex. p.1 would reveal that the husband was not even talking with her over phone.

Had really been the husband cordial towards the wife, then the latter''s father would not have gone to the extent of approaching the police so

as to find out the whereabouts of the husband. The wife and her father, only with the police help, came to understand that the husband left for

U.S.A. This really shows the cruel attitude of the husband towards the wife and not vice versa. The husband in his deposition would candidly admit

that the police contacted him over phone while he was in U.S.A and that agreed to live with his wife. This would clearly evidence that it was the

wife even though the husband shunned her, wanted to resume cohabitation with him. This cuts at the root of the husband''s plea of cruelty as well

as desertion. There are catena of decisions that to prove desertion there should be animus deserendi. One such decision is Savitri Pandey''s case

already referred to supra. An excerpt from it, would run thus:

Following the decision in Bipinchandra case, this Court again reiterated the legal position in Lachman Utamchand Kirpalani Vs. Meena alias

Mota, by holding that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that

other''s consent, and without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions

must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two

elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause

to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn

from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the

purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.

It is therefore clear that it was the husband who expressed his animus deserendi and deserted her and not the wife. Both the Courts below

adverted to this fact and correctly arrived at the conclusion. Neither the wife nor the wife''s father gave ever any complaint to the police for the

purpose of causing mental agony or physical cruelty to the husband. But, the evidence on record would speak volumes that it was the wife''s father

who made sincere attempts to bring together the husband and the wife to resume cohabitation. There are cases where the wife and the wife''s

relatives are in the habit of giving false complaints so as to detain the husband, whereas it is not the case here. The wife''s father for the first time

approached the police purely for the purpose of tracing out the whereabouts of the husband with the sole intention to reunite the couple and in the

next time also for the purpose of reuniting the couple, he approached the police. There is no iota or shred of doubt that the wife or her father ever

attempted to cause mental or physical cruelty to the husband.

The learned Counsel for the petitioner would argue that in Ex. P.1, the wife would appreciate the conduct of the husband that he had two

mothers ie., one his biological mother and another his former landlady Gomathinayaki. No doubt, the wife would raise her accusative finger as

against the husband as though he had questionable contact with the said Gomathinayaki and her daughter Lakshmi. There is nothing to show that

the wife made such allegations without any basis or actuated by malice or ill-will or spite.

No doubt, she stated that in the absence of the husband, the father of the husband attempted to misbehave with her and that the husband was

too close in a questionable manner with the said Gomathinayaki and her daughter Lakshmi. A gentleman after his marriage is expected to conduct

himself in a manner which would not give any bad impression in the mind of his wife. Even during cross-examination, R.W. 1, the wife in all fairness

would state that she never looked her husband having sexual intercourse with Gomathinayaki. Had really, the wife wanted to accuse falsely and to

maline or defame him, she would have answered during cross-examination as though she had seen such illicit relationship between the said two.

Therefore, it demonstrates her uncruel attitude towards the husband. The husband might have stayed in the house of Gomathinayaki while he

was studying, but that itself does not mean that even after the marriage, he should continue to move in such a close manner giving room for the wife

to suspect his conduct. The perusal of the evidence would clearly show that the wife because of the husband''s conduct, was constrained to think in

that manner and she never for the purpose of causing mental cruelty to him, uttered out such versions in the pleadings or in her deposition.

No doubt, only in her counter, it is found stated as though belatedly she understood that her husband and her father-in-law thought to do

mercy killing"" of her so as to enable the petitioner to marry for the second time. But, she disowned her statement during deposition and she never

asserted it. In fact, such versions in the the original counter shows her apprehension and even that was disowned by her at the time of deposition

before the Court.

The husband''s attitude in finding fault with the wife could readily be understood by his untenable plea as though in order to avoid him, she often

went along with his parents to various places. The wife would correctly and convincingly answer such plea of the husband by explaining that it was

the husband who asked her to accompany his parents. The trial Court clearly understood the relevant piece of evidence in the right prospective

and observed also that unless the husband permitted the wife to accompany the husband''s parents, she would not have gone along with them. The

daughter-in-law accompanying her in-laws, is a normal happening which the husband tries to give a false colour as though she for the purpose of

avoiding him, leeched on them.

Even though, the husband would contend that the wife expressed her unwillingness to resume cohabitation with him at the Panchayat, yet he

had not chosen to examine any of the Panchayatars to prove or fortify or buttress his contention. As such, the trial Court correctly commented

upon such non-examination of PanchayataRs.

Had really, the wife expressed her dislike for reunion with her husband, the wife''s father would not have gone to the extent of approaching the

police for reunion of the couple. The deposition of P.W. 1 would show that when the police contacted him over phone, while he was in U.S.A, he

assured the Commissioner of Police that he would return to India and resume cohabitation with his wife. This piece of evidence would leave no

doubt in the mind of the Court that the theory of desertion as pleaded by the husband is nothing but an utter falsehood. The act of the police

contacting the husband over phone at the instance of the wife''s father would show that the wife wanted to resume cohabitation with the husband

who kept himself in cognito and away from the contact of the wife. He shunned her and avoided her company and on the police contacting him, he

readily agreed to resume cohabitation with her on his return to India.

In such a case, there is no rhyme or reason on the part of the husband to contend that from February 1996 onwards, she deserted him

intentionally. There is no animus deserendi on the part of the wife in living away from the husband and she proved by evidence positively that the

plea of desertion by the husband is false.

Relating to ""Thalai Deepavali"", there were allegations and denials. In fact, P.W. 1 would submit that he was not treated well and it is not known

as to how he was ill-treated by the wife''s family membeRs. Whereas the wife would state that he wanted to have ""Thalai Deepavali"" celebration

with Gomathinayaki''s family and that only two days later, ""Thalai Deepavali"" was celebrated in the wife''s parents'' house.

The perusal of the entire evidence would clearly demonstrate that absolutely there is no weighty ground at all for holding that the wife caused

mental or physical cruelty to the husband and in fact, the wife clearly proved that the husband was shunning her company and it was he who put

her aside and wanted to desert her. Hence, in such a case, the husband is not entitled to divorce.

Inferiority complex which the husband had put forth as the root cause for the wife''s alleged cruelty and desertion, turned out to be one not

borne by evidence.

The learned Counsel for the appellant/husband cited the following decisions:

(i) In SMT. Parvathi v. Prem Singh reported in I (2001) DMC 501 (DB), the Rajasthan High Court held that making false allegations as against

the husband would amount to cruelty. But, the discussion supra would show that here the case is entirely different as she has not made any such

false complaints, but on the other hand, the husband approached the Court with false allegations.

The learned Counsel for the appellant placing reliance on Durga Prasanna Tripathy Vs. Arundhati Tripathy, and Vinita Saxena Vs. Pankaj

Pandit, would develop his argument that for more than a decade, the husband and the wife are living separately, that there is irretrievable break

down of marriage and that the Honourable Apex Court granted divorce on such ground.

Whereas the learned Counsel for the wife would torpedo correctly the argument put forth on the side of the husband by pointing out that it

cannot be stated that in this case, there is irretrievable break down of marriage and that the irretrievable break down of marriage is not a ground

for divorce also.

At this juncture, I would like to refer to the decision of the Honourable Apex Court in Naveen Kohli Vs. Neelu Kohli, . An excerpt from it,

would run thus:

66.Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances

and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into service, the divorce cannot

be granted. Ultimately, it is for the legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our

considered opinion the legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage

Act, 1955.

The Honourable Apex Court held that it is the duty of the legislature to consider the incorporation of the ground i.e, ''irretrievable break down

of marriage'' as one of the grounds for divorce.

I would like to refer to the decision of the Honourable Apex Court in Shyam Sunder Kohli Vs. Sushma Kohli @ Satya Devi, . An excerpt

from it, would run thus:

On the ground of irretrievable breakdown of marriage, the Court must not lightly dissolve a marriage. It is only in extreme circumstances that

the Court may use this ground for dissolving a marriage. In this case, the respondent, at all stages, and even before us, has been ready to go back

to the appellant. It is the appellant who has refused to take the respondent back. The appellant has made baseless allegations against the

respondent. He even went to the extent of filing a complaint of bigamy, u/s 494 I.P.C against the respondent. That complaint came to be

dismissed. As stated above, the evidence shows that the respondent was forced to leave the matrimonial home. It is the appellant who has been at

fault. It can hardly lie in the mouth of a party who has been at fault and who has not allowed the marriage to work to claim that the marriage should

be dissolved on the ground of irretrievable breakdown. We, thus, see no substance in this contention.

The aforesaid decision is correctly applicable in the facts and circumstances of this case. The husband by committing mistake cannot capitalize

his own fault and try to obtain divorce as though there is irretrievable break down of marriage. The entire scanning of the evidence leaves no doubt

in the mind of the Court that in this case, the wife appears to be a very docile, calm, adjustable and she is having tolerable attitude befitting a house

wife and it is evident from Ex. P.1 and her evidence. In such a case, it would be travesty of justice if it is held that she was cruel and that she

deserted the husband by leaving matrimonial home.

The learned Counsel for the appellant also cited the decisions of this Court thus:

(i) Dr. S.K. Doraisamy v. N. Elangovan reported in 2001 (3) CTC 539.

(ii) J. Balasubramaniam v. S. Pitchammal reported in CDJ 2007 MHC 2038.

Those decisions are on the point that unless there is clinching evidence establishing cruelty on the part of the respondent, the question of

granting divorce would not arise.

Accordingly, the substantial questions of law are answered to the effect that both the Courts below correctly appreciated the evidence and

arrived at the conclusion which warrants no interference.

In the result, this Civil Miscellaneous Second Appeal is dismissed, confirming the judgment and decree of both the Courts below. However, I

am of the firm opinion that this is a fit case in which resumption of cohabitation is very much possible between the couple. Burying the hatchet and

sinking the differences, the husband and the wife are expected to reunite.