Madras High Court
P.Sakthivel vs S.Dhanalakshmi on 27 January, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
C.M.A(MD)No.429 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.01.2025
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
CMA(MD)No.429 of 2023
P.Sakthivel ... Appellant/ Petitioner
Vs.
S.Dhanalakshmi ...Respondent / Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 19(1) of the
Family Court Act, 1984, to set aside the fair and decreetal order dated
31.10.2022 made in HMOP No.24 of 2022 on the file of the Family
Court, Karur and allow this Civil Miscellaneous Appeal.
For Appellant : Mr.K.Chengiz Khan
For Respondent : Mr.M.Jothiramalingam
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JUDGMENT
(Judgment of this Court was delivered by R.POORNIMA, J.)
The appellant/petitioner/husband has filed this Civil
Miscellaneous Appeal against the fair order and decreetal order dated
31.10.2022 passed in HMOP No.24 of 2022 by the Family Court, Karur
2.Brief case of the petition before the lower Court is as
follows:
(a) The petitioner submits that the respondent is the legally
wedded wife of the petitioner. The marriage between the petitioner and
the respondent was solemnized on 08.07.2001 in Konar Thirumana
Mandabam, Thanthonimalai in Karur District, as per the customs
prevailing in the Hindu Community and the marriage is still subsisting.
(b) The petitioner further stated that the marriage expenses
have been equally borne by both the petitioner and respondent family. At
the time of marriage, the petitioner provided 2 sovereigns gold for
Mangalsutra and some gold jewels to the respondent. The respondent
family provided some household articles and few gold ornaments to the
petitioner, as per custom rituals for the marriage as seervarisai and the
same is in the custody of the respondent.
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(c) The petitioner further stated that after marriage, both
were living in the matrimonial house for two years, after which they
shifted to Rayanoor to a rented house from 2003 to 2004. Again, they
shifted their house to Anna Nagar in Karur Town till 2013, till date both
are residing in the same place.
(d) The petitioner further stated that from the date of
marriage, the respondent was suspicious about the character of the
petitioner. Due to the above, she developed hatred feeling against the
petitioner and used to quarrel with him without any valid reason. The
petitioner consoled her, with the hope that one day or another the
respondent will realise and life will become harmonious. Whenever the
respondent picked up quarrels, she used filthy language against the
petitioner and threatened that she will go to any extent, blackmailed the
petitioner and treated him cruely.
(e) The petitioner further stated that due to their lawful
wedlock, two male children were born, namely, S.Sri Jith Kumar on
30.07.2002 at Iyerpadi Hospital at Valparai, Coimbatore District and
S.Deva Darshan on 16.04.2006 at V.C Hospital, Karur. The petitioner
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spent the basic necessities, education fees, etc., for their children. The
elder son is studying 8th standard in Oxford Matriculation School,
Udumalpet, and the second child is studying 4th standard in Shri Sankara
Vidyalaya Matriculation School, Karur.
(f) The petitioner further stated that now he is working in a
textile viz., Master Linen Inca Private Concern, the respondent entered
into the working place, caused inconvenience, and act adverse against the
petitioner. The respondent keep quiet for few days and thereafter picking
up quarrel for unnecessary reason and abused him with filthy language
due to her suspicious character. The respondent had completed her Post
Graduate course and working as a Development Manager in HDFC Bank
earning a sum of Rs.20,000/- as monthly salary, she is also doing money
laundering business and earning Rs.50,000/- per month towards interest.
She is not giving respect to the petitioner and tortured him. Whenever the
petitioner tried to convince her, she did not hear his words.
(g)The petitioner further stated that the respondent with the
evil advice from her family picked up quarrel, uttered unwanted words
and started giving complaint against the petitioner before the Police. The
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petitioner tried to convince the respondent, the Police Officials also
advised the respondent to lead a happy life. The petitioner keeping in
mind, the future life of the children tolerated the atrocities meted out to
him by the respondent with the hope that she would change her character
one day or other and live with him peacefully.
(h)All the efforts taken by him was in vein. The family
members of the respondent also supported her, whenever a complaint
was made by the respondent. The family members entered into the house
of the petitioner with third parties and assaulted the petitioner and caused
injuries to him and threatened him that they will file criminal case against
him. The attempts made by the petitioner to change the attitude of the
respondent ends unsuccessful.
(i)The petitioner further stated that on 03.11.2014 after
finishing his work, he came to his residence during night hours and the
respondent created quarrel around 1.30 p.m., and tried to hang herself,
the petitioner was shocked and feared after seeing the activities of the
respondent, later in the early morning, the respondent called her parents
and they came with their associates and started to attack the petitioner
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with deadly weapons and caused serious injuries to him. A criminal
complaint was lodged against the respondent and her family members, by
the Police Officials in crime No.755 of 2014 and counter case has also
been filed against the petitioner, he was much humiliated and was in
serious threat and apprehend danger, now residing away.
(j)The respondent threatened the petitioner even now and
then negotiating for money. She is very adamant in nature and could go
for any limit. Her family members has strong political background, they
could cause danger to the petitioner. The petitioner as a dutiful husband
discharged his duties to the respondent with love and affection, but she
failed to act as dutiful wife.
(k)The petitioner further stated that both the petitioner and
the respondent were living separately in view of the adamant nature of
the respondent and she will not change her attitude. The marriage
between the petitioner and the respondent has broken down irretrievably
and there is no meaning in living with the respondent and there is no
possibility of reunion in future and no possibility of resumption of
cohabitation. Hence, this petition is filed for divorce as against the
respondent on the ground of cruelty.
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3.Brief averment contained in the counter filed by the
respondent are as follows:
(a)The respondent denied the entire allegations contained in
the petition. She admitted the marriage. At the time of marriage, the
petitioner gave ½ sovereign mangalsutra, ¼ Sovereign gold ring to the
respondent. The respondent was provided with 23 sovereign gold jewel
and for the petitioner, 2 sovereign gold chain and 1 sovereign ring was
provided by the responded family. Apart from that 2 sovereign, each was
given to the grandchildren by her mother, totally 30 sovereign was given
to her. All the jewels were mortgaged by the petitioner for a sum of Rs.10
lakhs to construct house where the petitioner and respondent were living,
now he is not in a position to pay the interest. She is not possessed any
jewels with her.
(b)The respondent further stated that after their marriage, the
respondent was living with the petitioner, his parents, his sisters
Rajalakshmi, Geeta, and the children of his sister in the same house. She
was ill-treated by the parents of the petitioner and his sisters, they are in
the habit of chase her to her parental home and also abused her. Sisters of
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other option, but a separate house was set up in Royanoor. Both the
petitioner and respondent were living in that house happily upto the year
2005. Again, they have shifted to Anna Nagar in Karur District during
2005 to 2011 and return to his parents house at Thanthondrimalai. There
was no problem between the petitioner and respondent when they were
living separately. The respondent did not abuse the petitioner, rather the
petitioner alone abused her and assaulted her.
(c)The respondent admitted the birth of two children but
stated that the petitioner has not spent any money for the past 4 years, but
he spent the income derived by him to several women with whom he had
illegal contact, this respondent alone meted out the education
expenditure of her children.
(d)The respondent further states that she employed in HDFC
Bank but due to compulsion of the petitioner, she resigned her job. Since
the petitioner has not maintained the family and his whereabouts are not
known, she is working and earning meagre income and from out of that
income she maintains the family.
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(e) She denied the allegation that she is a money lender. She
was living as dutiful wife but the petitioner alone lead wayward life,
consume alcohol come to the house lately.
(f) The respondent further stated that the petitioner has not
lodged any complaint against the respondent, but due to his atrocities,
she has lodged a complaint against the petitioner and the police advised
the petitioner to lead proper life. Though she was living in the joint
family, tolerating the cruelty meted out to her, the petitioner after hearing
the ill-advice of his sisters and mother treated her cruelly.
(g) The respondent admitted that a case was filed against
herself and other in FIR no.755 of 2014, the petitioner alone assaulted
her family members and a criminal case has been registered against the
petitioner and his family members. Since the father of the petitioner is a
retired police Inspector who influenced his Department to file a false
case against the respondent.
(h) The respondent further stated that both the petitioner and
respondent were living happily in separate house, few years back
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returned to her matrimonial house. The petitioner’s mother wanted to
constructed house and made her daughter to stay in that hose, after
hearing the ill-advice of her son-in-law, planned to remarry the petitioner
a girl in their relative in order to enjoy the property by her daughter,
chased the respondent from her matrimonial home.
(i) The petitioner is having illegal relationship with a women
and the same was questioned by the respondent, in order to spoil the
respondents life a false case has been foisted. Now the petitioner is living
separately with a unknown women and spent his earnings lavishly
without maintaining his family.
(j) The respondent alone, educating her children. She is not
in a position to pay interest for the jewels pledged and not able to educate
the children, she wanted to rejoin with the petitioner to lead the life
fruitfully.
(k) Hence, she prayed to dismiss the petition.
4. On the side of the petitioner, the petitioner was examined
as P.W.1, Exs.P1 to Exs.P9 were marked. On the side of the respondent,
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the respondent was examined as R.W.1, Ex.R1 and Ex.R2 were marked.
5. The trial Court after considering the evidence and records
dismissed the petition. Aggrieved by the said order, the present Civil
Miscellaneous Appeal has been filed by the appellant /petitioner/husband
against the dismissal order with the following among other grounds :
(a) That the learned Family Judge, Karur ought to have
granted divorce considering the age of the spouses and both of them were
living separately for the entire 8 years litigation period and even during
the said period there were exchange of criminal complaints.
(b) That the learned Family Judge, Karur failed to consider
the attitude and aggressiveness of the respondent who pick up
unnecessary quarrel even for trivial reasons and strongly believe that the
appellant is having extra marital relationship on her hallucination.
(c) That the learned Family Judge, Karur, is misdirected
itself in passing a erroneous direction overlooking the material evidence
placed by the Petitioner.
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(d) That the learned Family Judge, Karur failed to consider
that the respondent not only abused the Appellant but also visited his
workplace and talk worse about his conduct and character which are
nothing but false caused him severe mental agony.
(e) That the learned Family Judge, Karur failed to consider
that the respondent ill-treated the appellant by comparing his lesser
salary with that of the respondent who earns attractive salary by working
with a private Bank employee.
(f) That the learned Family Judge, Karur ought to have
granted divorce as the appellant suffered cruelty caused by the
respondent by ill-treating, suspecting and by preferring false Police
complaints where the appellant’s parents faced huge inconvenience and
harassments.
(g) That the learned Family Judge, Karur failed to consider
that the appellant even become afraid of his life by the attitude of the
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respondent and her family members when they jointly and brutally
attacked the appellant and his parents and hence, there are no ray of hope
for reunion at any circumstances.
(h) That the judgment and decree of the Trial Court is liable
to be set aside and hence, he prayed to allow the Civil Miscellaneous
Appeal.
6. Heard the learned counsel on either side and perused the
material available on records.
7. In this case, the points for consideration is
(i) Whether the order passed by the trial Court
is proper or liable to be dismissed ?
8. The appellant/petitioner/husband filed the divorce petition
under section 13(1)(ia) of Hindu Marriage Act, 1955, seeking divorce on
the ground of cruelty.
9. Ex.P1 is the marriage invitation printed for their marriage.
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The petitioner and the respondent were married on 08.07.2001. Ex.P2 is
the joint photograph of petitioner and the respondent at the time of
marriage, Ex.P3 is the birth certificate shows that S.Srijith Kumar, son of
petitioner and respondent was born on 30.07.2002. Ex.P4 is the birth
certificate of another son of the petitioner and respondent namely,
S.Dheva Darshan which shows that he was born on 16.04.2006. Ex.P5 is
the ration card of the petitioner in which the name of the petitioner,
respondent and the elder son were found a place. Ex.P6 is the FIR filed
by the petitioner registered in Crime No.755/14, before the Pashupati
Palayam Police Station against the respondent and her relative for the
assault made by them on 05.11.2014. Ex.P7 is the copy of order passed
in DVC No. 08 of 2016. by the Judicial Magistrate No.I, Karur. Ex.P8 is
the copy of banner of Pattali Makkal Katchi, Karur District. Ex.P9 is the
identity card of the respondent issued by Bharthi AXA Life Insurance
Company Limited.
10. As per the evidence of the petitioner, it reveals that the
marriage between the petitioner and respondent was solemnized on
08.07.2001 at Thanthondrimalai as per the customs prevailed in the
Hindu religion. The respondent not denied the marriage and birth of the
children.
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11. As per the petitioner that he has not demanded any
dowry from the respondent, rather for the marriage he had provided
mangalsutra, gold chain and a ring, totally eight sovereigns to the
respondent.
12. On the contrary the respondent stated that the petitioner
gave only ½ sovereign mangalsutra, ¼ sovereign ring. But her family
provided her 25 sovereign gold jewels for the marriage and 2 sovereigns
chain and 1 sovereign ring was given to the petitioner, 4 sovereigns
given to the grandchildren ear piercing festival. Totally 30 sovereigns
given to her. She further stated that all the jewels were mortgaged for 10
lakhs by the petitioner for construction of the house for which she alone
paying the interest.
13. However, during cross examination, she had admitted
that in the petition filed by her for interim maintenance, she had stated
that for her marriage, she was provided with five sovereigns gold jewels,
and Rs.50,000 cash. She also admitted that in that petition that the
petitioner gave her eight sovereigns jewels. Though she alleged that all
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the jewels given by her parents was mortgaged by the petitioner, for
construction of house by his family for Rs.10 lakhs,proved as false
because she herself admitted that in the interim application she stated
that only 5 sovereigns was given to her.
14. As per the petitioner, the respondent suspected the
petitioner and create unnecessary quarrel with the petitioner, she was in
the habit of created problem with the neighbours and tortured him. The
respondent in her counter stated that the petitioner was leading adultery
life and spending his salary to several women and further stated that the
petitioner is living with a woman, but she has not given any particulars
for adultery life alleged to be leading by the petitioner, therefore, it is
proved that she suspected him and treated him cruelly.
15. The respondent also raised certain allegations against the
petitioner that she was ill-treated by her husband, his sisters and parents.
She further stated that the petitioner was having illegal affair with an
elderly woman, when the same was questioned by her, she was treated
with cruelty. She further stated that the petitioner was not spent any
money for her children. He used to spend the salary derived by him
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lavishly.
16. The records shows that the respondent filed D.V.C.No.08
of 2016 against the petitioner, her father-in-law, mother-in-law, sisters for
causing mental torture, compensation, interim alimony with the
allegation that the petitioner demanded dowry, threatened her with dire
consequences. The above petition was partly allowed with the direction
to pay a sum of Rs.3,000/- each to the minor children for food, clothing,
educational expenditure and a sum of Rs.50,000/- for the respondent as
compensation. In the above DVC petition, the petitioner filed receipts
Ex.R2 to Ex.R.10 to show that he had incurred the educational
expenditure of his children and the same was observed by the learned
Judicial Magistrate in his judgment dated 14.10.2019. Therefore, the
contention of the respondent that the petitioner has not spend any money
for the education of the children, proved as false.
17. Though the respondent alleged that she was treated
cruelly, but she has not produced any evidence for the same, further she
has not filed any criminal case as issued notice to the petitioner for such
allegation till the year 2015.
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18. On the contrary, the records produced by the petitioner
reveals that the petitioner filed a Criminal complaint against the
respondent and his family member in Crime No.755 of 2014 and the
same was taken on file in C.C.No.30 of 2015 by the Judicial Magistrate
No.I, Karur, he also filed H.M.O.P. No.265 of 2014 for divorce on the
ground of cruelty. Soon after the above petition, the respondent filed
petition under Section 12 of The Protection of Women from Domestic
Violence Act, 2005, in DVC No. 08 of 2016, before that she has not filed
any petition for maintenance or cruelty.
19. During cross-examination, the respondent admitted that
a complaint was lodged against her before the Pasupathi Palayam Police
Station, for the offence of assaulting her parents-in-law. She admitted
that during the same year, another complaint was lodged against the
respondent and her family member for assault of the petitioner and his
family members and the case was taken on file in C.C No.755 of 2014
and the same is pending, apart from that, another complaint in FIR No.15
of 2015 was filed against the respondent for attacked the petitioner and
his mother. The above records proved that both petitioner and the
respondent were in strained relationship.
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20. During cross-examination, the respondent further
admitted that both herself and the petitioner were living separately for
the past seven years. She filed DVC petition against the petitioner only
after the petitioner filed a complaint against the petitioner and her family
members and after the divorce petition was against the respondent. It is
proved that the respondent stated certain allegations viz., cruelty,
adultery and not maintaining the children and mortgaged her jewels to
construct building but all are proved as false.
21. If the petitioner caused cruelty continuously, she would
have filed criminal complaint against the petitioner, but no such
complaint filed till the petitioner filed divorce petition and a criminal
complaint against the respondent for the assault made by the respondent
and her family members to the petitioner and his family members.
22. On careful analysis we satisfied that the respondent
alone caused cruelty towards the petitioner and his family members and
therefore, the petitioner was living separately for several years. During
the appeal the parties were appeared, conciliation made and parties are
not willing for any compromise. Under Section 13(i-a) of the Hindu
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Marriage Act, one of the ground for divorce is that after the
solemnization of marriage treated the petitioner with cruelty, but there is
no explanation for mental cruelty in the section.
23. In this connection, we rely upon the following
judgements in N.G. Dastane vs. S. Dastane reported in AIR 1975 SC
1534 the Hon’ble Apex Court set out definition of cruelty in which
paragraph No.29 reads as follows :
“29……..The High Court then refers to the
decisions of some of the Indian Courts to illustrate
“The march of the Indian Courts with the English
Courts” and cites the following passage from D.
Tolstoy’s “The Law and Practice of Divorce and
Matrimonial Causes” (Sixth Ed., p. 61):
Cruelty which is a ground for dissolution
of marriage may be defined as wilful and
unjustifiable conduct of such a character as to
cause danger to life, limb or health, bodily or
mental, or as to give rise to a reasonable
apprehension of such a danger.”
24. In K. Srinivas Rao vs. D.A. Deepa reported in (2013) 5
SCC 226, in which paragraph Nos.26, 27 & 28 are as follows :
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irretrievably broken down. Irretrievable breakdown of
marriage is not a ground for divorce under the Hindu
Marriage Act, 1955. But, where marriage is beyond
repair on account of bitterness created by the acts of
the husband or the wife or of both, the courts have
always taken irretrievable breakdown of marriage as a
very weighty circumstance amongst others
necessitating severance of marital tie. A marriage
which is dead for all purposes cannot be revived by the
court’s verdict, if the parties are not willing. This is
because marriage involves human sentiments and
emotions and if they are dried-up there is hardly any
chance of their springing back to life on account of
artificial reunion created by the court’s decree.
27. In V. Bhagat vs. D. Bhagat (1994) 1 SCC 337
this Court noted that divorce petition was pending for
eight years and a good part of the lives of both the
parties had been consumed in litigation, yet the end
was not in sight. The facts were such that there was no
question of reunion, the marriage having irretrievably
broken down. While dissolving the marriage on the
ground of mental cruelty this Court observed that
irretrievable breakdown of marriage is not a ground
by itself, but, while scrutinizing the evidence on record
to determine whether the grounds alleged are made out
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Naveen Kohli, where husband and wife had been living
separately for more than 10 years and a large number
of criminal proceedings had been initiated by the wife
against the husband, this Court observed that the
marriage had been wrecked beyond the hope of
salvage and 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. It is important to note that in this case this Court
made a recommendation to the Union of India that the
Hindu Marriage Act, 1955 be amended to incorporate
irretrievable breakdown of marriage as a ground for
the grant of divorce.
28. In the ultimate analysis, we hold that the
Respondent-wife has caused by her conduct mental
cruelty to the Appellant-husband and the marriage has
irretrievably broken down. Dissolution of marriage
will relieve both sides of pain and anguish. In this
Court the Respondent-wife expressed that she wants to
go back to the Appellant-husband, but, that is not
possible now. The Appellant-husband is not willing to
take her back. Even if we refuse decree of divorce to
the Appellant-husband, there are hardly any chances
of the Respondent-wife leading a happy life with the
Appellant-husband because a lot of bitterness is
created by the conduct of the Respondent-wife”.
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25. In Suman Kapur vs. Sudhir Kapur reported in (2009) 1
SCC 422, in which paragraph Nos.23 to 29, 33 and 34 are as follows
23. In Gollins v. Gollins 1964 AC 644 : (1963)2 All ER
966, Lord Reid stated:
No one has ever attempted to give a comprehensive
definition of cruelty and I do not intend to try to do so. Much
must depend on the knowledge and intention of the respondent,
on the nature of his (or her) conduct, and on the character and
physical or mental weakness of the spouses, and probably no
general statement is equally applicable in all cases except the
requirement that the party seeking relief must show actual or
probable injury to life, limb or health.
24. Lord Pearce also made similar observations;
It is impossible to give a comprehensive definition of
cruelty, but when reprehensible conduct or departure from
normal standards of conjugal kindness causes injury to health or
an apprehension of it, is, I think, cruelty if a reasonable person,
after taking due account of the temperament and all the other
particular circumstances would considered that the conduct
complained of is such that this spouse should not be called on to
endure it.
[see also Russell v. Russell (1897) AC 395 : (1895-99) All ER
Rep 1].
25. The test of cruelty has been laid down by this court in
the leading case of N.G. Dastane v. S. Dastane [1975] 3 SCR
967 thus
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The enquiry therefore has to be whether the conduct
charges as cruelty is of such a character as to cause in the mind
of the petitioner a reasonable apprehension that it will be
harmful or injurious for him to live with the respondent….
26. In Sirajmohmedkhan Janmohamadkhan v. Haizunnisa
Yasinkhan and Anr [1982] 1 SCR 695 , this Court stated that the
concept of legal cruelty changes according to the changes and
advancement of social concept and standards of living. It was
further stated that to establish legal cruelty, it is not necessary
that physical violence should be used. Continuous cessation of
marital intercourse or total indifference on the part of the
husband towards marital obligations would lead to legal cruelty.
27. In Shobha Rani v. Madhukar Reddi [1988] 1 SCR
1010 , this Court examined the concept of cruelty. It was
observed that the term `cruelty’ has not been defined in the
Hindu Marriage Act. It has been used in Section 13(1)(ia) of the
Act in the context of human conduct and behavior in relation to
or in respect of matrimonial duties or obligations. It is a course
of conduct of one spouse which adversely affects the other
spouse. The cruelty may be mental or physical, intentional or
unintentional. If it is physical, it is a question of degree which is
relevant. If it is mental, the enquiry must begin as to the nature
of the cruel treatment and then as to the impact of such treatment
on the mind of the other spouse. Whether it caused reasonable
apprehension that it would be harmful or injurious to live with
the other, ultimately, is a matter of inference to be drawn by
taking into account the nature of the conduct and its effect on the
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complaining spouse. There may, however, be cases where the
conduct complained of itself is bad enough and per se unlawful
or illegal. Then the impact or the injurious effect on the other
spouse need not be enquired into or considered. In such cases,
the cruelty will be established if the conduct itself is proved or
admitted. 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. Mens
rea 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 wilful ill-treatment.
28. In V. Bhagat v. D. Bhagat AIR 1994 SC 710 , the Court
observed;
Mental Cruelty in Section 13(1)(ia) 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. In other words, mental cruelty must be of
such a nature that the parties cannot reasonably be expected to
live together. The situation must be such that the wronged party
cannot reasonably be asked to put up with such unintentional. If
it is physical, it is a question of fact and degree. If it is mental,
the enquiry must begin as to the nature of the cruel treatment
and then as to the impact of such treatment on the mind of the
spouse. Whether it caused reasonable apprehension that it would
be harmful or injurious to live with the other, ultimately, is a
matter of inference to be drawn by taking into account the nature
of the conduct and its effect on the complaining spouse. There
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may, however, be cases where the conduct complained of itself is
bad enough and per se unlawful or illegal. Then the impact or
the injurious effect on the other spouse need not be enquired into
or considered. In such cases, the cruelty will be established if the
conduct itself is proved or admitted. 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 wilful ill-treatment or
conduct and continue to live with the other party. It is not
necessary to prove that the mental cruelty is such as to cause
injury to the health of the petitioner. While arriving at such
conclusion, regard must be had to the social status, educational
level of the parties, the society they move in, the possibility or
otherwise of the parties ever living together in case they are
already living apart and all other relevant facts and
circumstances which it is neither possible nor desirable to set
out exhaustively. What is cruelty in one case may not amount to
cruelty in another case. It is a matter to be determined in each
case having regard to the facts and circumstances of that case. If
it is a case of accusations and allegations, regard must also be
had to the context in which they were made.
29. This Court in Chetan Dass v. Kamla Devi
[2001]3SCR20 , stated;
Matrimonial matters are matters of delicate human and
emotional relationship. It demands mutual trust, regard, respect,
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love and affection with sufficient play for reasonable
adjustments with the spouse. The relationship has to conform to
the social norms as well. The matrimonial conduct has now
come to be governed by statute framed, keeping in view such
norms and changed social order. It is sought to be controlled in
the interest of the individuals as well as in broader perspective,
for regulating matrimonial norms for making of a well-knit,
healthy and not a disturbed and porous society. The institution of
marriage occupies an important place and role to play in the
society, in general. Therefore, it would not be appropriate to
apply any submission of “irretrievably broken marriage” as a
straitjacket formula for grant of relief of divorce. This aspect has
to be considered in the background of the other facts and
circumstances of the case”.
………
33. It was further stated:
Each case depends on its own facts and must be judged on
these facts. The concept of cruelty has varied from time to time,
from place to place and from individual to individual in its
application according to social status of the persons involved
and their economic conditions and other matters. The question
whether the act complained of was a cruel act is to be
determined from the whole facts and the matrimonial relations
between the parties. In this connection, the culture, temperament
and status in life and many other things are the factors which
have to be considered.
The legal concept of cruelty which is not defined by the
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have caused danger to life, limb or health (bodily and mental) or
to give rise to reasonable apprehension of such danger. The
general rule in all questions of cruelty is that the whole
matrimonial relations must be considered, that rule is of a
special value when the cruelty consists not of violent act but of
injurious reproaches, complaints, accusations or taunts. It may
be mental such as indifference and frigidity towards the wife,
denial of a company to her, hatred and abhorrence for wife, or
physical, like acts of violence and abstinence from sexual
intercourse without reasonable cause. It must be proved that one
partner in the marriage however mindless of the consequences
has behaved in a way which the other spouse could not in the
circumstances be called upon to endure, and that misconduct has
caused injury to health or a reasonable apprehension of such
injury. There are two sides to be considered in case of
apprehension of such injury. There are two sides to be
considered in case of cruelty. From the appellants, ought this
appellant to be called on to endure the conduct? From the
respondent’s side, was this conduct excusable? The Court has
then to decide whether the sum total of the reprehensible conduct
was cruel. That depends on whether the cumulative conduct was
sufficiently serious to say that from a reasonable person’s point
of view after a consideration of any excuse which the respondent
might have in the circumstances, the conduct is such that the
petitioner ought not be called upon to endure.
34. Recently, in Samar Ghosh v. Jaya Ghosh (2007)4 SCC
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511 , this Court held;
No uniform standard can ever be laid down for guidance,
yet we deem it appropriate to enumerate some instances of
human behavior which may be relevant in dealing with the cases
of `mental cruelty’. The instances indicated in the succeeding
paragraphs are only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the
parties, acute mental pain, agony and suffering as would not
make possible for the parties to live with each other could come
within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial
life of the parties, it becomes abundantly clear that situation is
such that the wronged party cannot reasonably be asked to put
up with such conduct and continue to live with other party.
……………
(xiv) Where there has been a long period of continuous
separation, it may fairly be concluded 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, does not serve the sanctity of marriage; on the
contrary, it shows scant regard for the feelings and emotions of
the parties. In such like situations, it may lead to mental
cruelty.”
26. The above judgment is squarely applicable to the
presence case. The appellant proved that the respondent cruelly treated
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him and the acts of the respondent clearly proved that she made number
of allegations against him and made his life miserable, and the petitioner
and the respondent were living separately for several years, the
respondent in order to defend the divorce petition made several
allegations against the appellant but proved false, but it is proved that
due to her cruel act a criminal complaint was filed and pending before
the criminal Court. She falsely stated allegations against the petitioner
and treated him cruelly since there is no chance for reunion, the Court
deem fit to allow the Civil Miscellaneous Appeal.
27. In the result, the Civil Miscellaneous Appeal is allowed.
The fair and decreetal order passed in HMOP No.24 of 2022, dated
31.10.2022, by the Family Court, Karur is set aside and the marriage
between the petitioner and the respondent solemnized on 08.07.2001 is
dissolved. No costs. Consequently, connected miscellaneous petition is
closed.
(G.R.S., J.) & (R.P., J.)
27.01.2025
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
RM
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To
1.The Judge,
Family Court,
Karur.
Copy to
1.The Section Officer,
ER/VR Section,
Madurai Bench of Madras High Court, Madurai.
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C.M.A(MD)No.429 of 2023
R.SWAMINATHAN, J.
AND
R.POORNIMA, J.
RM
Judgment in
C.M.A.(MD)No.429 of 2023
27.01.2025
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