S. Lakshmi vs R. Sekar

M. Venugopal, J.—The Appellant / Wife has filed these Civil Miscellaneous Appeals as against the common order dated 8.4.2010 in

FCOP. Nos.2283 of 2004 and 646 of 2009, on the file of the Principal Family Court, Chennai.

The parties are referred to as they are arrayed in C.M.A. No. 1347 of 2010 for convenience.

The Respondent / Husband has filed the HMOP. No. 92 of 2004, on the file of the Subordinate Judge, Kumbakonam, and later the same was

transferred to the Principal Family Court, Chennai as HMOP. No. 646 of 2009, praying for the relief of divorce from the Appellant / Wife on the

ground of cruelty as per Section 13(1)(i-a) of the Hindu Marriage Act, 1955.

The Appellant / Wife has filed HMOP. No. 2283 of 2004, on the file of the Principal Family Court, Chennai, praying for the relief of restitution

of conjugal rights as per Section 9 of the Hindu Marriage Act, 1955.

It is not in dispute that the marriage between the Appellant/Wife and the Respondent/Husband took place on 24.8.2003 at Arulmigu Vadapalani

Andavar Koil in accordance with Hindu customs and rites. After the marriage, the parties lived at Ammapettai, Puthur in Tanjore, with the

Respondent/Husband''s aged parents. The Respondent / Husband was employed as a lecturer in a self-financing college at Thiruvarur on a monthly

salary of Rs. 2,500/-. It is to be pointed out that both the parties are divorcees and for them the marriage took place on 24.8.2003 is their second

marriage.

The case of the Respondent / Husband is that after a month of marriage life, the Appellant / Wife started teasing him stating that he had not

earned enough to meet her needs. The Appellant / Wife also started disrespecting the parents of the Respondent/Husband. The Appellant/Wife

conceived and the pregnancy was confirmed after test by Dr. Senthamaraiselvi, However, the Doctor advised the Appellant/Wife not to travel at

least for two months in view of the pregnancy.

The stand of the Respondent/Husband is that the Appellant/Wife was very recalcitrant to go to her parent''s house at Chennai and her brother

Venkataraman came from Chennai to Ammapet and, at her request, he took her to Chennai. As a matter of fact, the Respondent/Husband''s

request and his parents'' request not to travel by the Appellant/Wife was not heeded and she went to her parents house at Chennai with her brother

on 26.11.2003. Later, she had not returned to Ammapet at Tanjore (to the place of the Respondent/Husband).

Only on 29.12.2003, the Appellant/Wife''s mother informed the Respondent/Husband''s mother over phone that there was abortion to the

Appellant/Wife. The Respondent/Husband and his parents felt sorry for this and asked the Appellant/Wife to come to Ammapettai after taking

rest. They were under the impression that the operation was spontaneous. But, on the next day the Appellant/Wife informed the

Respondent/Husband that the abortion was not natural and she caused it artificially, since she was not ready to continue the married life. This

shocked the Respondent/Husband and further the Appellant/Wife informed him that she would not live with anymore. The Appellant/Wife also

informed the Respondent/Husband that she would not seek divorce for herself and he should move for divorce and pay Rs. 3 lakhs as permanent

settlement of maintenance.

The Respondent/Husband caused a lawyer notice dated 27.1.004 to the Appellant/Wife asking her to come back to him. However, the

Appellant/Wife sent a reply to the Respondent/Husband''s counsel on 2.2.2004 stating that she is willing to come back but, the

Respondent/Husband should come to Chennai and take her. Moreover, the Appellant/Wife called the Respondent/Husband over phone in

February, 2004, some days after her reply, and told him that the reply was only to mislead others and that she will not come back and that she

should be paid Rs. 3 lakhs for obtaining divorce from her. The Appellant/Wife also threatened that she would initiate criminal action against the

Respondent/Husband and his parents, if the amount is not paid. She also threatened the Respondent / Husband''s parents that they would be

imprisoned by police and put to public shame, if she was not paid the amount. Therefore, for these acts the Respondent/Husband could not

continue his marital life with the Appellant/Wife and this had caused cruelty, mental agony and pain to him. Because of the mental agony, pain and

suffering, the Respondent/Husband was not able to teach in the college, to read or to attend to any work. The Respondent/Husband had presented

the petition for divorce within a period of one year because of the extra-ordinary cruelty committed by the Appellant/Wife on him.

The Appellant / Wife in her counter had stated that the Respondent/Husband is a lecturer in the college and earning more than Rs. 20,000/-

per month and, on coming to know the fact that she was conceived, she summoned her brother to take her to Chennai on 26.11.2003. She made

so many requests to the Respondent/Husband to take her to the matrimonial home, but he never turned up to take her. Therefore, she was forced

to file O.P. No. 2283 of 2004 before the trial court for the relief of restitution of conjugal rights. In her counter to the petition filed for divorce by

the Respondent/Husband, the Appellant/Wife had denied that she never demanded any money from the Respondent/Husband. According to her,

she was willing to lead the life with the Respondent/Husband and denied the statements made by the Respondent/Husband. It is only the

Respondent/Husband who is avoiding the Appellant/Wife in taking back her to the matrimonial home. The Appellant/Wife is receiving a meagre

maintenance of Rs. 2,500/- every month from the Respondent/Husband.

Before the trial court, on the side of the Appellant/Wife, P.W.1 has been examined and Exs.P-1 to P-3 were marked and, on the side of the

Respondent/Husband, be was examined as R.W.1 and Exs. R-1 and R-2 were marked.

In the trial court, FCOP. No. 646 of 2009 filed by the Respondent/Husband and FCOP. No. 2283 of 2004 filed by the Appellant/Wife were

tried together and a common order was passed on 8.4.2010.

The trial court, on appreciation of the oral and documentary evidence available on record and after scrutinising the entire gamete of the matter,

has come to a resultant conclusion that the Respondent/Husband has proved the allegation of cruelty committed by the Appellant Wife and,

accordingly, granted a decree for dissolution of marriage on the ground of cruelty. With regard to FCOP. No. 2283 of 2004 filed by the

Appellant/Wife, the same was dismissed by the trial court.

Though the marriage took place between the parties on 24.8.2003, both of them lived only for three months together. Within three months, the

Appellant/Wife became conceived and, on 26.11.2003, she went to her place in Chennai along with her brother, who came to Chennai and took

her back from the Respondent/Husband''s house at Tanjore. From 29.12.2003, both the parties are living separately. The main grievance of the

Respondent/Husband is that the Appellant/Wife went to Chennai on 26.11.2003 along with her Brother-in-law, but without informing him and she

underwent abortion and even the factum of abortion was not informed by her either to his parents or to him and this caused mental cruelty to him.

It is also the plea of the Respondent/Husband that the Appellant/Wife had informed him that he should pay Rs. 3 lakhs as compensation and, If

that amount is not paid to her, then, she would be forced to prefer police complaint against him and his parents.

At this stage, the learned counsel for the Appellant/Wife submitted that abortion done by the, Appellant/Wife was based on natural

circumstances only and in India the abortion done is only a lawful one Moreover, even assuming for a moment that the Appellant/Wife had not

informed the Respondent/Husband about the abortion performed on her, then, it is not a reprehensible conduct and the same can be condoned by

the Respondent/Husband and certainly the omission of not informing the factum of abortion to the Husband is only an excusable only and,

therefore, much hue and cry cannot be raised by the Respondent/Husband.

In cases of cruelty, entire matrimonial relations must be considered. Cruelty may be concerned with complaints, accusations, taunts, etc. The

mental cruelty is a state of mind and feeling with one of the spouses because of the behaviour of the other. It is difficult to prove mental cruelty by

direct evidence as per decision Victor Sebastain v. Thorulatha 2006 (4) RCR 579 Kar (DB).

What conduct will amount to cruelty is a matter of fact and it is to be decided on various considerations of each particular case as per decision

Smt. Bhagwanti Vs. Laxmandas Panjwani,

Cruelty as a reason for dissolution of marriage as per Section 13(1)(i-a) of the Hindu Marriage Act, 1955 is a conduct of such type that the

husband cannot reasonably be expected to live with wife.

As a matter of fact, in matrimonial matters standard of proof under the Indian Evidence Act, 1872 is not essential. It is enough if the Judge

trying the case is satisfied that a matrimonial offence had been committed as per decision Popuri Sunita Lakshmi v. Popouri Srinivas (2004) II

DMC 283 at page 287 (AP).

A Feeling of disappointment, frustration and anguish caused by the conduct of the other can only be appreciated on taking note of the

surrounding facts and circumstances in which the two partners of the matrimonial life were living.

In the decision of the Hon''ble Supreme Court Sujata Uday Patil v. Uday Madhukar Patil 2007 (3) SCJ 454 at page 459 it is held that ''neither

actual nor presumed intention to hurt the other spouse is a necessary element in cruelty''.

Before the trial court, Ex.R-1 case summary obtained from Dr. K. Priya Dharsini, Consultant Obsterician & Gynaecologist of Saraswathy

Speciality Hospitals had been marked. A perusal of the said Ex.R-1 indicates that the Appellant/Wife had ''Incomplete abortion'' and she was

advised to come after 5 days for the purpose of review. The Doctor who issued Ex.R-1 was not examined before the trial court as a witness on

behalf of the Appellant/Wife. Therefore, even though on the side of the Appellant/Wife a plea was raised before this Court that the abortion was

only a natural one, in the absence of examination of Dr. Priya Darsini, who issued Ex.R-1 case summary, we are not in a position to accept the

same. The reason being that the Appellant/Wife had admitted that when she conceived within three months from the date of marriage, the Doctor

advised the Wife not to travel. Inspite of the fact that she was conceived, she had travelled against the advice. Therefore, we are not in a position

to accept the plea that the abortion done on the Appellant/Wife was only a natural one and it is a usual one. Moreover, it is the duty of a Hindu

Wife to inform the Husband about the abortion done by her. But, in the present case, the Appellant/Wife had not informed the

Respondent/Husband about the factum of abortion that she had undergone and also the treatment she took from the respective DoctoRs. This

omission on the part of the Appellant/Wife cannot be said to be an excusable or condonable one. Moreover, It cannot be said that it is not a

matter to be taken note of seriously, It is to be pointed out that non-omission of the Appellant/Wife in not informing the Respondent/Husband

about the operation she had undergone, is nothing but a fatal one affecting her case, in our considered view.

The Learned counsel for the Appellant/Wife relies on a decision of this Court reported in (2010) 3 MLJ 561 (S. Valli v. N. Rajendran), to the

effect that mere bickerings in marital life cannot be ground for cruelty and in order to make out cruelty intensity and gravity of one''s action have to

be seen, and submits that in the present case the act of not informing the abortion undergone by the Wife cannot be considered to be an act of

cruelty per contra, the same was only a condonable or excusable one.

For the reasons stated above, the decision relied on by the learned counsel for the Appellant/Wife is clearly distinguishable based on the facts

and circumstances of the present case which float on the surface. As such we are unable to accept the submissions made by the learned counsel

for the Appellant in this regard and, accordingly, we reject the arguments projected in this regard.

It is not in dispute that the Respondent/Husband was paying the monthly maintenance of Rs. 2,500/- in view of the order passed in I.A. No.

2476 of 2005, dated 28.8.2006 from the date of the petition filed by her before the trial court for maintenance u/s 24 of the Hindu Marriage Act,

1955. It is not in dispute that till filing of these appeals, the Respondent/Husband had paid the maintenance amount and, only after filing of the

present appeals, the Respondent/Husband had not paid the monthly maintenance ordered by the trial court. Payment of maintenance as ordered by

the trial court in I.A. No. 2476 of 2005 is a continuing affair and this ought to be paid by the Respondent/Husband notwithstanding the fact that the

Appellant/Wife had preferred the present Civil Miscellaneous Appeals before this Court. Now the Respondent/Husband is employed in a different

college as Lecturer and getting a sum of Rs. 25,000/- as monthly salary. The mere fact that the Appellant/Wife had not informed the

Respondent/Husband about the factum of abortion undergone by her and also not informing the Respondent/Husband and his parents, in our

considered view, amounts to an act of cruelty, mental agony and pain committed by the Appellant/Wife on the Respondent/Husband. Admittedly,

the parties are living separately eversince 29.12.2003, though the marriage between them took place on 24.8.2003. Both the parties are

divorcees. In the present case, since the marital tie had broken and since the Appellant/Wife had committed an act of cruelty In not informing the

factum of abortion undergone by her either to the Respondent/Husband or to the parents of the Respondent/Husband clearly go to show that the

Respondent/Husband is entitled to get the relief of divorce as prayed for him in FCOP. No. 646 of 2009, on the file of the trial court. In view of

the fact that this Court has allowed HMOP. No. 646 of 2009 filed by the Respondent/Husband praying for dissolution of marriage from the

Appellant/Wife, consequently, this Court dismisses the HMOP. No. 2283 of 2004 filed by the Appellant/Wife praying for restitution of conjugal

rights. Resultantly both the Civil Miscellaneous Appeals fail.

In the result, both the Civil Miscellaneous Appeals are dismissed. The Respondent/Husband is directed to pay the monthly maintenance of Rs.

2,500/-to the Appellant/Wife from the date of filing of these appeals i.e., 25.5.2010, till the date of disposal of these appeals i.e., 05.07.2011. The

arrears of maintenance should be paid by the Respondent/Husband to the Appellant/Wife within a period of eight weeks from the date of receipt

of a copy of- this order, failing which it is open to the Respondent/Wife to recover the same in accordance with law. The parties shall bear their

own costs. Consequently, the connected Miscellaneous Petition is closed.