Madras High Court
S. Murugan vs Vaikunda Lakshmi on 24 December, 1997
Author: K Govindarajan
K. Govindarajan, J.
1. The husband filed O.P.No. 80 of 1990 under Section 13 of the Hindu Marriage Act on the file of the Sub-Court, Padmanabhapuram praying for a decree for divorce by dissolving the marriage solemnised between the petitioner and the respondent on 24.1.1988. It was re-numbered after it was transferred to the Sub Court, Kuzhithurai, as O.P.No. 28 of 1994. The wife filed O.P.No. 53 of 1991 under Section 9 of the Hindu Marriage Act praying for a decree for restitution of conjugal rights and for costs. The said petition also was transferred to the Sub Court, Kuzhithurai and re-numbered as O.P.No. 27 of 1994. pending the said O.P. the husband filed I.A.No. 260 of 1991 seeking an order of injunction restraining the wife from making complaints to the dowry prohibition cell and filing criminal cases. The husband and wife contested the respective petitions filed by each other, by filing counters in the respective petitions. The learned Sub Judge in his order dated 28.9.1994, allowed the O.P.No. 28 of 1994 and dismissed the O.P.No. 27 of 1994. Aggrieved against the same, the wife filed appeal in A.S.No. 13 of 1995 against the order in O.P.No. 27 of 1994, and A.S.No. 10 of 1995 against the order passed in O.P.No. 28 of 1994. In the common order dated 21.11.1995, the learned District Judge modified the decree as one into judicial separation instead of decree for divorce granted by the learned Sub Judge. Aggrieved against the same, the husband has filed C.M.S.A.No. 17 of 1996, the wife has filed C.M.S.A.Nos. 27 and 28 of 1996.
2. The parties were married on 24.1.1988. Even on the date of the marriage, in view of the fact that while tying the thali, the sacred portion of the thali fell upside down the wife felt it to be a bad symptom and she cried in the kalyana mandapam itself. According to the husband, she expressed her disappointment with respect to his complexion and she felt that she was duped by her parents in getting her consent for the marriage. On the first day itself she went to the extent of cursing herself for becoming the wife of a man who is black in colour. It is stated in the petition that the wife started to attribute bad character to the mother of the petitioner and other family members. The next day she blamed the sister of the petitioner as if she had stolen her jewels. But the same was found only underneath the almirah. Subsequently the wife had admitted that she had placed the same safely in order to avoid committing theft by other ladies. He has to sleep outside the room, as the wife locked the room from inside. But the wife told the petitioner that he might have slept with his sister. According to the husband, the wife also used to threaten him that she would commit suicide by hanging in the ceiling fan. These are all the incidents that caused mental cruelty and agony to the husband due to the conduct of the wife. On the tenth day of the marriage, the wife left the matrimonial home without his consent and knowledge and without even informing to anybody in the house. In spite of his mother went twice to take her back, the wife refused. But, on the other hand the wife informed that she would not return to the house in which immoral ladies are living. Thereafter under compulsion she came and stayed for a few days with the petitioner. But on 7.5.1988 she again left the matrimonial home with all her belongings with the help of her brother without informing the petitioner, with the intention to bring cohabitation with the husband to an end permanently. She has not even informed the birth of a female child for she informed the petitioner that she was pregnant. According to the husband though she was writing letters, they are only false. In each of those letters, she used to say that the husband’s mother and sister are of immoral character. In the letter dated 25.2.1989 she alleged that the petitioner is a murderer. In support of his submission regarding cruelty, the husband has also relied on Exs.A-4 and A-5 the complaints given to the High Court against the husband by the wife, which are ultimately found not proved.
3. The wife filed counter denying the averments mentioned in the petition. It is stated in the counter that the petitioner wanted money and some jewels. She has also stated that the mother-in-law did not permit her to go with her husband. She has also stated that the family members of the husband were acting very cruely towards her. It is also her case that her husband and mother-in-law were insisting on her that she should get 15 sovereigns of ornaments from her father; otherwise she would be murdered. She has also stated that she never deserted her husband, and, only with his consent, she left to her parents’ house. On the advice of one Mr. K. Rathanasami, Advocate, she went to the house of her husband in the month of June, 1988. When she entered the house, the mother and sister of the husband scolded her and they also stated that she should not live with the petitioner. Since they insisted her to go away to her parent’s house, finally on 13.7.1988 the wife went to the house of her parents for delivery. As per the custom and practice, the parents and other close relatives came to the house of the husband on 13.7.1993, and took the wife to her parents’ house, after conduction necessary ceremonies. So, it cannot be said, according to the wife, that she deserted the husband. Even with respect to the letters as alleged by the husband, according to the wife, she has not sent any such letter. In spite of several advice by several persons, the husband did not take the wife to his conjugal home. According to her, the sole object of the husband is to marry again and get huge amount as dowry. Under these circumstances, according to her, she wrote a letter on 22.5.1989, and some other letters, explaining the facts. She has also stated that she had always been ready and willing and still ready and willing to join the petitioner and lead the family life. But, only her husband has deserted her According to her, only her husband has deserted her and caused cruelty towards her, and he cannot take advantage of his own wrong and file the petition for divorce. With the above pleadings she has prayed for dismissal of the petition filed by her husband. Even in the other O.P. she averred the same things and so they need not be repeated again.
4. The learned Counsel appearing for the husband has submitted that apart from the cruelty alleged in the petition, pending the proceedings, the wife started to give a complaint to the High Court under Exs.A-4 and A-5. Even though the same was enquired through the concerned officials, subsequently it was dropped as the same was found false. It is admitted by the wife in her evidence that she wrote Exs.A-2 and A-3 letters. In those letters, she has criticised the characters of the mother and sister of the husband. So, on the basis of the evidence, the lower court found that the husband suffered mental cruelty due to the acts of the wife. The appellate court though found that the wife has written such letters with false averments, but those letters were written in an emotional mood, and only due to the husband’s negligence towards the wife in the initial stage. The learned District Judge has further found that both the husband and wife suffered cruelty at the hands of each other. Ultimately the learned District Judge modified the order into one of judicial separation with the hope that they would change their attitude in future. From the factual findings of the courts below it is seen that the wife has written letters against the husband making serious allegations with respect to the characters of the family members of the husband and also against the husband. Moreover, the wife has filed documents Exs.R-1 to R-5 to sustain her contention as mentioned in the letters.
5. The incidents and quarrels between the spouses must be weighed from the point of view of the impact of personality and conduct of one spouse on the other. Cruelty need not be physical. Even for the conduct of spouses, inference can legitimately and reasonably be drawn that the treatment of spouses is such that it causes apprehension in the mind of the other spouse about the mental welfare, then such conduct amounts to cruelty within the meaning of the section. While considering the serious averments made against the parents of the husband, the learned Judge of the Jammu and Kashmir in the decision Kamala Devi v. Balbir Singh A.I.R. 1979 J. & K. 4, it has held as follows:
In the instant case, it is established from the evidence on the record adduced by the husband that the wife has been using foul and abusive language to the husband and to his parents. She also often picked up quarrels with him and disturbed his mental peace. This conduct of the wife, undoubtedly, amounts to cruelty. To disprove the allegations made against her, she has not even come in the witness box and has not cleared her position. In that view of the matter, there are no compelling reasons for me to depart from the view taken by the trial court both on question of fact and on question of law.
6. The Apex Court in Dr. N.G. Dastane v. Mrs. S. Dastane , has held that, injury to reputations is the
important consideration in question. Wife’s abuse shall cause injury to the husband and his relations constituted cruelty.
7. The Apex Court in Shobha Rani v. Madhukar Reddi , while dealing with the scope of Section 13(1)(ia) of the Hindu Marriage Act has held as follows:
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 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 more made.
8. While dealing with the assertions made in the written statement and in the cross-examination, the Apex Court, in V. Bhagat v. D. Bhagat , has held as follows:
Even so, allegations of ‘paranoid disorder’, mental patient, needs psychological treatment to make him act a normal person’ etc. are there coupled with the statement that the petitioner and all the members of his family are lunatics and that a streak of insantity runs though his entire family. These assertions cannot but constitute mental cruelty of such a nature that the petitioner, situated as he is and in the context of the several relevant circumstances, cannot reasonably be asked to live with the wife in view of the said allegations.
9. The Division Bench of the Kerala High Court in the decision in P.K. Vijayappan Nair v. J. Amminiamma , while dealing with similar issue, has held as follows:
All these go to show that the respondent with intent to harass him had filed false civil and criminal cases one after another. The court below held, that for an act to amount to cruelty, there must be such treatment by the parties which causes suffering in body or mind which is harmful or injurious to life.
10. The learned Judge of the Delhi High Court, in Ashok v. Santosh A.I.R. 1972 Del. 63, has held as follows:
False defamatory, baseless, scandalous and malicious allegations in the written statement can be taken into account for the purpose for granting relief in matrimonial matters is based upon the principles on which subsequent events like allegations in the written statement can be taken into account in certain circumstances when (1) litigation between the parties ought to be shortened; and (2) to do complete justice between the parties. This was so laid down by the Supreme Court in Upper Ganes Valley Electricity Supply Co. Ltd v. U.P. Electricity Board . This Court (M.L. Jain, J.) has held in Pushpa Rani v. Krishnan Lal 1982 Hindu L.R. 238 : A.I.R. 1982 Del. 107, that the allegations in the written statement can form the basis of granting relief in matrimonial matters M.L. Jain, J., in Pushpa Rani’s case had followed his earlier judgment in Parihar v. Parihar .
11. The Division Bench of the Bombay High Court in Rajan Vasant Revankar v. Shobha Rajan Revankar , has held as
What is worse and what disturbs us most is the wife’s letter dated 14th February, 1992 at Ex.96 where she has made wild, reckless and baseless allegations not only against Prakash Raikar but particularly against the mother of the husband and his two married sisters. She has abused them in the filthiest words attributing all sorts of illicit relations to them; compared them with prostitutes and as women who are capable of pocketing any number of men by showing them their white skin and flesh. The wife did not stop at making these wild and scandalous allegations which are totally baseless. She has reiterated them in her letter dated 17th July, 1992 and has said that every word of the letter at Ex.96 was a bitter truth. She has, however, not led any evidence whatsoever to justify or to prove the allegations made by her. Thus, the wife has resorted to making wild, reckless and scandalous allegations against the husband’s mother and his two married sisters apart from condemning Prakash Raikar. It is difficult to expect the husband to cohabit with such a woman and in our view, no reasonable man can be expected to live with such a wife. As stated earlier, the wife did not even spare the husband and questioned him as to whether he had got another woman for his bed. This is clear from the letter at Ex.73, dated 29th March, 1992 written by the wife to the husband. All these actions “and her conduct after 30.7.1987 clearly amount to cruelty in matrimonial law.
12. The Division Bench of Punjab and Haryana High Court in Kiran Mandal v. Mohini Mandal , has held as follows:
From the documentary evidence, it transpires that it is the respondent who is in the habit of making very wild allegations against the husband and her parents for which she and her relations subsequently repented. She made false allegations against her husband that he had illicit relations with his brother’s wife. These false allegations did have an injuries effect on the husband.
13. Even the Division Bench of the Calcutta High Court has taken the similar view in Harendra Nath v. Suprova , wherein it has been held as follows:
In this case, such allegation was admittedly made by the wife prior to this proceeding in her application under Section 125 of the Code of Criminal Procedure; But even if there was no such allegation made prior to the initiation of this proceeding, such allegations made in the written statement itself and in the deposition can and should be taken note of in matrimonial proceedings without driving the petitioner to another proceedings on the ground of such cruelty. While ordinarily a lis is to be determined on the cause of action accruing on the date of the initiation of the lis, it is nevertheless well-settled that it is open to a court, including a Court of Appeal, to take notice of events which have happened after the institution of the suit and afford relief to the parties where it is necessary to do in order to shorten litigation or to do complete justice between the parties. If any authority is needed in support of this proposition, reference may be made to the decision of the Supreme Court in Shikharchand v. Digambar Jain , where the leading decision of this Court on the
point of Sir Ashuthosh in Rai Charan v. Biswanath A.I.R. 1915 Cal. 103 has been referred to with approval. It should be so done all the more in matrimonial proceedings where multiplicity of proceedings should always be discouraged and the dispute should be disposed of as early as possible in the interest of the parties as well as in the interest of the society at large.
14. From the above settled law, it is very clear that if the husband is able to prove cruelty on the basis of the counter, evidence along with other documents, decree of divorce can be granted on the ground of cruelty.
15. The Apex Court in Dastane v. Dastane . it has been held that harm or injury to health, reputation, the working-career or the like, would be an important consideration in determining whether the conduct of the respondent amounts to cruelty.
16. Cruelty within the meaning of Section 13 of the Hindu Marriage Act is not confined to physical violence but includes mental torture caused by one spouse towards the other. Any man with reasonable self respect and power of endurance will find it difficult to live with a taunting wife, when such tenants are in fact insult and indignities. Human nature being what it is, a reasonable man’s reaction to the conduct of the offending spouse is the test and unending accusations and imputations can cause more pain and misery then physical beating.
17. No hard and fast rule can be laid down as to what acts or conduct will amount to cruelty in any given cases. In deciding whether or not a particular state of affairs amounts to legal cruelty, the court has to consider the social status, the environment, the education, the mental and physical conditions and the susceptibilities of the innocent spouse as also the custom and manners of the parties. It may be that various acts or conduct complained of, by itself and in isolation to each other, do not amount to cruelty, but in their over-all effect they may amount to cruelty.
18. In this case, as observed earlier, apart from their averments in the counter and the deposition, and the letters Exs.A-2 to A-5 and R-1 to R-5 and the complaints made to the dowry cell and to the police would clearly prove that the wife was in the habit of making scandalous allegations against the husband, his mother and sister. The lower appellate court has not properly appreciated the ease in proper perspective on the basis of the evidence available on record, and granted a decree for judicial separation. The lower court merely on the basis that the husband has not discharged his duty, found that he is not entitled for a decree of divorce. Such an approach cannot be sustained in view of the abovesaid decided cases. In my opinion, from the facts discussed above, I have no doubt that the acts of the wife amount to cruelty against the husband.
19. I have also made attempt to bring about reconciliation between the parties. But I could not succeed, The husband has suffered so much of cruelty at the hands of the wife and so he is not willing to accept the wife in his matrimonial home at any cost, though the wife is willing to live with the husband. In view of the above, the continuance of the marriage would only prolong the agony and afflictions between the parties.
20. In Chandrakala Trivedi v. S.P. Trivedi , it has been held that if a marriage is dead and if there is no chance of reunion, it is better to put an end to it. In the present case, for the reasons, stated above, it can be concluded that the marriage has broke down. In these circumstances, I have no other option except to grant a decree of divorce to the husband, on the ground of cruelty.
21. The learned senior counsel appearing for the respondent in C.M.S.A.No. 17 of 1996 has submitted that the allegations made by the wife against the husband are only about his adulterous way of life and such allegations cannot be construed as cruelty. In support of his submission, he has relied on the decision in Saikumari, S. v. Mohanasundaram, P. (1995)1 L.W. 201, wherein it has been held as follows;
The evidence of P.W.1 regarding all the above incidents are only hearsay and hence inadmissible in evidence. In this connection we may also note that in a decision of this Court, in which one of us (Srinivasan, J.) is a party, in Tamizh Selvi v. Arumugham (1990)2 L.W. 133 : 1990 T.L.N.J. 237, it was held at p. 243:
…In a Hindu society, if an allegation of unchastity is made against woman falsely, it would certainly amount to cruelty on the part of the husband. But, the converse will not be correct. The court can certainly take judicial notice of the fact that even though bigamy is made an offence under the Penal Code and bigamy is prevented by legislation from 1949 onwards, there are numerous instances where men are living with more than one woman in extra-marital relationship. If an allegation is made against a man that he is living with another woman in illicit intimacy, that will not by itself amount to cruelty….
We agree with the said statement of law and hold that the allegation will not amount to cruelty.” But, in this case, the allegations and complaint relied on by the husband is not only against the husband, but also with respect to his mother and sister. The wife had repeatedly sent petitions to the High Court, Dowry Cell and Police, against the husband. So, the abovesaid decision of the Division Bench will not render much help to the case of the wife. In view of the abovesaid discussions, I am not dealing with the other ground, viz., desertion.
22. However, before parting with the judgment, I want to make a provision for the handicapped female child, as a result of the suggestions I got from the husband and also from the learned senior counsel appearing on both sides. Accordingly, the husband is directed to deposit a sum of Rs. 4,00,000 with the State Bank of India, Nagercoil, in the name of the minor child, showing the mother of the child as guardian. The said deposit shall be made in fixed deposit initially for a period of five years or till the date of marriage of the said child whichever is later; nobody should withdraw the said deposit without getting the prior permission from the learned Sub Judge, Padmanabhapuram, the wife is entitled to receive the accrued interest at Rs. 1,000 per month for the welfare of the minor child, for education and marriage of the said child, if the amount is needed, it can be withdrawn after establishing the same before the lower court, from the accrued interest only and not from the deposit amount, namely principal amount, after marriage the child can approach the lower court for withdrawal of the said deposit amount and the lower court taking into consideration the welfare and well-being of the said child, shall pass suitable orders, permitting her to withdraw the said deposit amount; I am emphasising this fact only to avoid any compulsion on the said child to withdraw the said deposit amount prematurely; it is not necessary to observe that, ultimately the said deposit amount is only for the benefit of the said child. The decree passed in favour of the husband shall come into effect only on the date of deposit of the said amount.
23. With the above observations, I.D.O.P.No. 28 of 1994 filed by the husband is allowed, and I.D.O.P.No. 27 of 1994 filed by the wife is dismissed. Consequently, C.M.S.A.No. 17 of 1996 is allowed, and C.M.S.A.Nos. 27 and 28 of 1996 are dismissed. No costs.