P. Annadurai vs Geeta Annadurai

The Court:

This appeal is directed against a decree passed by the Judge, Family Court, Andaman and Nicobar Islands in Matrimonial Suit No.152 of 2017. The suit was dismissed ex parte without any costs. The petitioner is the appellant. The petitioner filed a suit for divorce under sections 13(ia) and 13(ib) of the Hindu Marriage Ac, 1955.

In the plaint it is alleged that the relationship between the petitioner and the respondent became deteriorated after the birth of a female child on 03.4.2002. The petitioner alleged that after 2008 the respondent started misbehaving with the petitioner. The respondent even failed to perform the marital obligations and often the petitioner used to get food from the hotels for the entire family as the respondent never used to cook food and to provide basic life which is expected by every married man. The unusual and abnormal behavior of the respondent created a doubt in the mind of the petitioner as to whether the respondent was suffering from any mental disorder. Eventually in 2011 the respondent was clinically examined by a doctor at Chennai. The petitioner alleged that the said doctor confirmed that the respondent has got psychological problem (mental disorder) and the treatment is still going on at Chennai hospital and till date the respondent is under medical treatment.

The petitioner alleged that from time to time the petitioner took the respondent to Chennai for the better treatment of the respondent and as per the advice of the doctor the respondent required regular check-up at Chennai. In view thereof, the petitioner constructed a house in Chennai upon a plot purchased by him in the year 2008 so that the respondent could stay there with her minor daughter and can attend doctors for treatment.

The petitioner is working as Manager of the Shipping Cooperating Society, Port Blair, Andaman and Nicobar Islands. It was not possible for him to visit the respondent on regular basis. The petitioner requested the respondent to shift to Port Blair. The respondent, however, refused to shift to Port Blair and instead asked the petitioner to shift to Chennai. The petitioner alleged that in December, 2015 when the petitioner approached the respondent for the last time to return back to Port Blair, the respondent and the child had refused to come and the respondent threatened the petitioner to falsely implicate him in false cases if he insisted for shifting. The petitioner alleged that the respondent is more interested in the property of the petitioner rather to reside with the petitioner. The respondent started misbehaving with the petitioner and also used to quarrel with the petitioner on trivial issues. The petitioner alleged that during his stay with the respondent the respondent never behaved with the petitioner which is expected from the respondent by the petitioner.

On such grounds, this suit was filed.

Before the Trial Court the petitioner was examined as P.W.1. The medical document and one letter were marked Ext. 1 series and Ext. 2 respectively.

We have gone through the oral and documentary evidence. It appears that the petitioner had failed to prove the cruelty and desertion. The doctor was not examined. The petitioner has to establish the cruelty. The petitioner alleged mental cruelty. However, there is no evidence to show that the respondent is insane and not capable of leading a normal life. It is admitted position that the minor child is with the respondent and the said child did not feel uncomfortable with her mother.

The petition for divorce is not on the ground of section 13(i) (iii) but under section 13(ia) and 13(ib).

Lord Dening in Kaslefsky v. Kaslefsky, (1950) 2 All ER 398 said: Temptation to open the door of cruelty too wide must be resisted lest we may slip into a state of affairs where the institution of marriage itself is imperiled. This view also accepted and relied in Yasoda v. Krishnamoorthy, AIR 1992 Kant 360, Indira Gangele v. Shailendra Kumar Gangele, AIR 1993 Cal 10, Tapan Chakraborthy v. Anjali Chakraborthy, AIR 1993 Cal 10. The fact that the respondent is whimsical, selfish, inconsiderate or irascible would not be sufficient to amount to cruelty. Desertion per se is also not cruelty. Quarrels between the spouses on trivial matter does not amount to cruelty (see Bajrang Gangadhar Revdekar v. Pooja Bajrang Revdekar, AIR 2010 Bom). In a marriage when two strangers decide to stay together it is inherent in such a situation that they must go through a period of adjustment and friction may arise between them. Time is sought to be given by the parties to know each other and settled down. In all human relationship friction and misunderstanding ordinarily arises. As it appears from the plaint the birth of girl child has created a friction between the plaintiff and the respondent which is extremely unfortunate. The wife is living with the minor child for the last several years and she is taking care of her. If she had suffered from mental disorder the child would have refused to stay with her mother. There is no evidence on record that the child has faced any discomfort in staying with her mother. The petitioner has failed to establish that the behavior of the wife is so outrageous that it is not reasonably possible for husband to live with the wife.

Cruelty has not been defined under S. 13 (1) (ia) of the Hindu Marriage 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 others 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 the other spouse which causes mental suffering or fear to the matrimonial life of the others. "Cruelty", therefore, postulates 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. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or willful ill-treatment (see Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73: AIR 2002 SC 591 and Shobha Rani v. Madhukar Reddi, (1988) 1 CSS 105: 1988 Scc (Cri) 60: AIR 1988 SC 121).

In Maya Devi V. Jagdish Prasa, AIR 2007 SC 1426, it is stated that Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give raise 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 need not be physical. If from the conduct of the spouse it is established or an inference can be legitimately drawn that the treatment of the spouse is such that it causes apprehension in the mind of the others spouse, about his or her mental welfare then this conduct amounts to cruelty.

In a suit for dissolution of marriage on the ground of cruelty the burden of proof is on the petitioner. The petitioner must prove all the elements of cruelty. Cruelty may be proved on balance of probabilities. The Court is required to record its satisfaction on preponderance of probabilities as opposed to the rigid test of beyond all reasonable doubts. The Court has to see that the conduct should be grave and weighty though a word of caution must be sounded that the Court should not act in hyper-sensitive way while weighing the gravity of conduct. (see Maya Devi V. Jadish Prashad, AIR 2007 SC 1426 : (2007) 3 SCC 136.

The petitioner at the trial has failed to prove that the behavior and conduct of the respondent are such that it becomes impossible for the spouse to live together. This onus, in our considered opinion has not been discharged. The doctor was not examined. The contents of the medical documents are not proved.

"Desertion" in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are:

the factum of separation;

the intention to bring cohabitation permanently to an end - animus deserendi;

the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period.

(see Adhyatma Bhattar Alwar v. Adhytma Bhattar Sri Devi, (2002) 1 SCC 308: AIR 2002 SC 88: (2002) 1 CHN (Supp) 46.)

"Desertion", for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. (see Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73: AIR 2002 SC 591: (2002) 1 KLJ 193.)

The question of desertion would not arise since the respondent has never refused to stay with the husband petitioner. If the presence of the respondent is required at Chennai for medical treatment, the petitioner has to accommodate her so long the treatment continues. In fact, as rightly pointed out by the learned Judge of the Family Court that the respondent was staying with the plaintiff and thereafter she was shifted to Chennai and has been staying at the house constructed by the petitioner and she was shifted thereat by the petitioner himself. Accordingly, it cannot be held that she has deserted the petitioner.

On the basis of the evidence on record both oral and documentary, we do not find any infirmity in the judgment passed by the learned Judge, Family Court, Andaman and Nicobar Islands.

The appeal stands dismissed. There shall be no order as to costs.