M. Venugopal, J.
1. This Civil Miscellaneous Appeal is directed against the order dated 28.09.2007 passed by the Family Court, Madurai in H.M.O.P. No. 352 of 2006 resultantly allowing the petition filed by the respondent/petitioner.
2. Dissatisfied with the order passed by the Family Court, Madurai dated 28.09.2007 in H.M.O.P. No. 352 of 2006, the appellant/respondent (wife) has projected this appeal before this Court.
3. The essential facts of the case that are necessary for disposal of the appeal are as below:
The respondent/petitioner and the appellant/respondent are Hindus and their marriage took place on 07.09.2001 in accordance with Hindu Vedic Rites and Customs at Thiru Subbaraya Kalyana Mahal, 105, Railway Feeder Road, Tenkasi. The marriage was an arranged one. The marriage expenses were shared by both parties. The respondent/petitioner hails from a cultured, highly educated broad minded family and neither himself nor his parents demanded any dowry in cash or kind either prior or subsequent to the marriage. The respondent/petitioner and his people out of love and affection presented 11 sovereigns of Mangal Sutra, Rings, and other costly silk sarees to the appellant/respondent and family. The appellant/respondent's side people were also presented with costly gifts.
The respondent/petitioner's entire marital life turned out to be an unhappy episode. After the marriage the nuptial was fixed on the same night and that the respondent/petitioner was totally shaken by the attitude and behaviour of the appellant/respondent. Suddenly at 1.00 A.M., the appellant/respondent removed her mangal sutra and the ring and even pulled out all the flower strings and started uttering mantras as though preached to her by one Ambaji. The appellant/respondent started saying in high pitch of voice and later fell down on the floor and slept nicely. The respondent/petitioner was a silent spectator. The spouses continued to live on subsequent day at Tenkasi and the appellant/respondent continued with her same attitude and abnormal behaviour towards the respondent/petitioner.
On 09.09.2001 the spouses along with their respective parents left for Chennai and all of them stayed at respondent/petitioner's parents house at Adambakkam, Chennai. On 11.09.2001, the marriage was registered before the Hindu Marriage Registrar (Sub-Registrar) of Alandur and after that when the respondent/petitioner as well as his parents in-laws went out for some work, the appellant/respondent suddenly wanted to go to Kalpakkam on her own and on that score, she even threatened her in-laws and with literal begging by her in-laws, the appellant/respondent agreed to stay at home. Subsequently, from 12.09.2001 to 14.09.2001 the appellant/respondent was with her parents. On 14.09.2001 the appellant/respondent removed all the sarees from the Wardrobe attached to the bedroom and she was sitting inside the Wardrobe. When this was informed to the appellant/respondent's parents, they simply said that she used to behave as a child and in due course she change her attitude and that they have even advised her to that extent. On 14.09.2001 a reception was arranged at Chennai after the celebration of marriage. The respondent/petitioner noticed that the appellant/respondent was consuming some tablets. On enquiry her parents informed that such tablets are taken for postponing monthly periods. The respondent/petitioner and his parents bonafidely trusted the same. In due course of time they were shocked that the appellant/respondent has been consuming tablets regularly for her mental illness. The appellant/respondent's parents left for their native place on 15.09.2001. The spouses along with the respondent/petitioner's parents left for Mumbai wherein the respondent/petitioner was living. During the short stay from 10.09.2001 to 15.09.2001 at Chennai the appellant/respondent never did any domestic work nor was cordial to any of her in-laws. Even after reaching Mumbai, the appellant/respondent behaved in the same manner and was consuming tablets. On 18.09.2001 there were sudden rains. The appellant/respondent started dancing in the hall where there were visitors and ran and changed her dress and threw all her jewels here and there. The appellant/respondent refused to take food and at 12 midnight she started saying that Ambaji was calling her she should go out immediately. With great difficulty the appellant/respondent could be pacified. The respondent/petitioner and his parents were put to great mental shock. On the same day, the couple went for a movie. The appellant/respondent after taking all the eatables, cake, popcorn, ice cream etc. started crying as though the respondent/petitioner did not purchase any eatable for her. The respondent/petitioner was humiliated in public place and left with no option, returned home with heavy heart.
On 20.09.2001 some relatives visited the couple. During breakfast, the appellant/respondent took rice-cake from a relative's plate and there was an embarrassment for every one. The neibhours were put into discomfort, by the abnormal behaviour and attitude of the appellant/respondent. On 21.09.2001 a family friend visited the couple. On their giving sweets, the appellant/respondent threw them on their face and on 22.09.2001 the appellant/respondent's behaviour was very aggressive like a mental patient. The appellant/respondent took a vessel pouring water and chanted Ambaji's name and after having together started shouting that Ambaji was calling etc. The appellant/respondent threw all her jewels and ran out of the house. The appellant/respondent also informed that she was going to jump from 6th floor flat and that Ambaji would save her life. This was the scenario from 17.09.2001 to 23.09.2001 during which period the couples and the elders lived in Mumbai.
The respondent/petitioner came to Chennai on 25.09.2001 with his parents because of the abnormal attitude and behaviour of the appellant/respondent. The respondent/petitioner was living with his parents and the appellant/respondent started living at No. 9, New No. 8, 9th Street, Parthasarathy Nagar, Adambakkam, Chennai. The respondent/petitioner and his parents informed the parents of the appellant/respondent on 26.09.2001 about the behaviour of the appellant. Dr.Sathianathen gave treatment to the appellant/respondent on 28.09.2001. On 28.09.2001 the appellant/respondent's parents took all the gold jewels and silver jewels and gave a receipt. Stainless steel and other items were kept in two boxes on their own. The appellant/respondent's parents took the appellant with them informing that they would give further treatment and the appellant/respondent's parents in due course of time suggested for mutual divorce. A legal notice dated 15.05.2002 was issued on behalf of the appellant/respondent addressed to the respondent/petitioner alleging cruelty, dowry demand, etc. The respondent/petitioner gave a reply dated 10.06.2002 denying the allegations and averments in the notice which was received by the appellant/respondent's counsel. The appellant/respondent filed H.M.O.P. No. 56 of 2002 before the Sub Court, Tenkasi for divorce on the ground of cruelty, dowry demand etc. The said proceedings were pending from October 2002 to 03.11.2004 and because of the appellant/respondent's absence, the said H.M.O.P. No. 52 of 2002 was dismissed for default on 03.11.2004. The appellant/respondent deserted the respondent/petitioner from September 2001. The parties were living separately for the past 3 1/2 years. Hence, the respondent/petitioner prays for passing a decree of divorce in dissolving the marriage between the parties that took place on 07.09.2001 at Thiru Subbaraya Kalyana Mahal, Tenkasi, etc.
4. The stand of the appellant/respondent is as follows:
The marriage took place on 07.09.2001 at Tenkasi Subbaraya Marriage Hall. The respondent/petitioner after receiving 60 sovereigns of jewels, Rs. 50,000/- worth articles and a cash of Rs. 41,000/-, married the appellant/respondent and these things were demanded by the respondent/petitioner's family and also they insisted that the appellant/respondent's side should incur the marriage expenses. The appellant/respondent's father incurred an expense of Rs. 3,00,000/- towards marriage expenses and it was false to state that the marriage expenses were borne by both the parties. It was false to state that on the side of respondent/petitioner, they put 11 sovereigns of mangal sutra and chain and silk sarees to the appellant/respondent and their family. Instead on the side of appellant/respondent for the respondent/petitioner they put 2 sovereigns of gold chain, diamond and other rings and one sovereign of hand-chain.
The averments mentioned in para 7 of the petition were totally false. Except the registration of marriage on 11.09.2001 at the Alandur Sub Registrar Office between the parties, other averments mentioned in para 8 of the petition were totally false. The averments in para 9 of the petition were totally false. The averments mentioned in para 10 of the petition were totally false.
Further, it was false to state that on 20.09.2001 when the relatives visited the couples and while taking morning breakfast with them at that time the appellant/respondent grabbed the rice-cake from the plate of relatives etc. Equally, it was false to state that on 21.09.2001 when the family friend came along with his wife at that time when they gave sweets to the appellant/respondent, the appellant/respondent threw the same at their face. It was false to state that the appellant/respondent's mental state was like affected patient and it was aggressive. Moreover, it was false to state that the appellant/respondent took water in a vessel by calling the name of Ambaji and that she informed that she would go with him as he was calling and that the appellant/respondent threw her jewels and ran outside the house etc.
The averments mentioned in para 11 to 18 of the petition were denied as false. On 11.09.2001 the appellant/respondent was taken to Alandur Sub Registrar's Office and the marriage was registered and this was not informed to the appellant/respondent and her parents. The appellant/respondent was beaten and her signature was taken in white paper and she was taken to the Sub Registrar's Office on the pretext of obtaining visa. Moreover, the appellant/respondent was forced to wash clothes by not in spite of the fact that there was washing machine in the respondent/petitioner's house and that the appellant/respondent was not allowed to wash the clothes with the help of said washing machine. Thereafter, on 13.09.2001 the appellant/respondent was taken to the advocate Saraswathi's house by the respondent/petitioner where the appellant/respondent was asked to consuming the milk and after consuming the milk, the appellant/respondent reached a stage of unconscious and thereafter, the appellant/respondent was taken to a psychiatrist doctor and was forced to take tablets and on the next day when the appellant/respondent wake up she was able to realise that she was in the house of respondent/petitioner and like this, the appellant/respondent was treated a cruel by the respondent/petitioner, their family members and friends.
Further, on 27.09.2001 the appellant/respondent was called as lunatic and she was shown to the psychiatrist doctor Sathiyanathan, who after examining the appellant/respondent informed that the appellant/respondent was all right and inspite of this, the respondent/petitioner did not heed the same and asked the parents of the appellant/respondent to get a certificate from the doctor that appellant/respondent was not affected mentally and only then he would live with her and asked the parents of the appellant to sign in the white paper and informed them otherwise the life of the appellant/respondent would be affected and obtained the signature of the appellant/respondent's parents and sent the appellant/respondent with her parents.
The appellant/respondent gave a police complaint on 12.08.2002 against the respondent/petitioner side before the Tirunelveli Women Police Station but no action was taken. Thereafter, on 16.06.2003 the appellant/respondent gave a complaint before the Neelankarai Women Police Station for taking action against the respondent/petitioner side but no action was taken. Subsequently, the appellant/respondent's mother Sumathi gave complaint to the Tirunelveli District Superintendent of Police and on that basis, FIR was registered against the respondent/petitioner side on 02.11.2006 and the same was pending. The petition filed by the respondent/petitioner was not maintainable both in law and on fairness.
5. Before the Family Court, Madurai on the side of respondent/petitioner witnesses P.W.1 to P.W.3 were examined and Exs.P.1 to P.8 were marked and on the side of appellant/respondent witnesses R.W.1 to R.W.3 were examined and Exs.R.1 to R.18 were marked. After contest, on an appreciation of oral and documentary evidence, the Family Court, Madurai has allowed the petition filed by the respondent/petitioner and granted the relief of divorce without costs.
6. We have heard the learned Counsel appearing for the parties and noticed their respective contentions.
7. According to the learned Counsel for the appellant/respondent, the trial Court has wrongly interpreted Ex.R.8-Medical Certificate dated 24.11.2001 without adhering to the evidence of R.W.1 and other facts and circumstances of the case and that the trial Court has not taken into consideration of the fact that the non examination of the doctor, who issued Ex.R.8 certificate has not affected the case of the appellant/respondent in any manner and the finding that the evidence of P.W.1 and P.W.2 established the events that took place during first night and the events that took place at Chennai was in correct in as much as the evidence of P.W.1 and P.W.2 were mutual contradictory to each other and the finding that the evidence of P.W.1 to P.W.3 would prove that the appellant/respondent's side on 28.09.2001 pointed out the mental illness of the appellant/respondent to her father and at that time after getting back the jewels by means of receipt under Ex.R.3, the appellant/respondent's parents took her etc. and thereafter, the appellant was given the treatment under Ex.R.8-Medical Certificate was not only false but also contrary to the evidence available in the case and further the trial Court has given a wrong finding that the Exs.P.2 to P.6 police complaints did not speak about Ex.R.8-medical certificate and that the appellant has not prayed for restitution of conjugal rights and the finding that the appellant/respondent had no intention to live with the respondent/petitioner because of the fact that in Ex.P.4-notice dated 15.05.2002 she sought for the relief of divorce on mutual consent and the resultant filing of the petition H.M.O.P. No. 56 of 2002 seeking relief of divorce would show her intention not to live was wrong and against the evidence on record and that the trial Court has not taken into account of the fact that H.M.O.P. No. 56 of 2002 was not prosecuted because of the assurance given by the respondent/petitioner's relative for reuniting the couple and that the trial Court has failed to take note of the fact that the appellant/respondent never had any intention to put an end to the marital tie because she issued notice under Ex.P.4 seeking mutual separation and in any event the trial Court has not taken into account of the fact that the parties lived only for a short period from 07.09.2001 to 28.09.2001 and there was possibility of reviving the marital life if conciliatory measures were taken and therefore, prays for allowing the appeal in the interest of justice.
8. Per contra, the learned Counsel for the respondent/petitioner contends that the order passed by the trial Court in allowing the petition for divorce filed by the respondent/petitioner was correct and that the trial Court has assigned cogent and convincing reasons while allowing the petition.
9. The respondent/petitioner has filed the petition under Section 13-(1)(ia)(ib) of The Hindu Marriage Act, 1955 praying for the relief of divorce in dissolving the marriage that took place on 07.09.2001 between the parties on the ground of cruelty and desertion.
10. The pith and substance of the plea of the respondent/petitioner is that the appellant/respondent has inflicted various types of cruelties on him and that the appellant/respondent has deserted the respondent/petitioner from 29.09.2001 and that the respondent/petitioner has not committed the acts of cruelty and desertion of the appellant/respondent and after filing of H.M.O.P. No. 56 of 2002 before the Sub Court, Tenkasi, the appellant/respondent had no intention to join with the respondent/petitioner.
11. It is the case of the appellant/respondent inter alia that the respondent/petitioner has beat her and ill treated her and also demanded dowry additionally and also that the respondent/petitioner's side spoke maliciously about the appellant/respondent and her family and also the respondent/petitioner has filed the petition with false details and therefore, prays for dismissal of the petition.
12. The respondent/petitioner has examined himself as P.W.1 and has tendered his evidence in chief examination by means of filing of proof affidavit. In his proof affidavit the respondent/petitioner as P.W.1 has reiterated the averments made by him in the petition. It is to be pointed out that P.W.1-Rajasubramanian in his cross examination has stated that before his marriage his parents saw the appellant/respondent and thereafter, he also saw the appellant/respondent and spoke for 30 minutes or 45 minutes approximately and during his talk with the appellant/respondent, she was in normal state and there was no difference found and prior to his marriage also he spoke to the appellant/respondent several times through phone and during that time also no difference was found with the appellant/respondent.
13. P.W.1-Rajasubramanian in his further evidence has stated that after marriage from 07.09.2001 to 25.09.2001 he and the appellant/respondent lived unitedly and during the above period for four days they stayed in Chennai and afterwards for one week they were in Mumbai and during this period there was no difference of opinion between him and the appellant/respondent and during the period from 07.09.2001 to 25.09.2001 there was no relationship of husband and wife between him and the appellant/respondent and that the appellant/respondent did not cooperate with the respondent/petitioner in consummating the marriage and on 07.09.2001 after marriage he stayed for two days at the house of appellant/respondent and during these two days also the appellant/respondent has not given her consent in consummating the marriage and that he had not informed this fact to his parents and he informed his parents that his marriage was not consummating during the period when he lived with his wife and through his parents the appellant/respondent was taken to the Dr. Seshatri and was given the treatment and that the appellant/respondent was given the medical prescription and that he purchased all the tablets prescribed by the doctor and he did not ascertain from the doctor as to the exact suffering of the appellant/respondent because he thought that it would be a personal problem of the appellant and therefore, he did not ascertain the same.
14. It is the evidence of P.W.1-Rajasubramanian that on the advise of an advocate Saraswathi he took the appellant/respondent to the doctor but he did not get the appointment and he decided to meet the doctor along with the parents of the appellant/respondent who were coming on the next day and in Mumbai he informed the parents of appellant/respondent that appellant/respondent was behaving like a small child and he took the appellant/respondent to the cinema theatre in the evening in Mumbai and during the period from they left from Chennai to Mumbai and got down at Mumbai through rail till they went to cinema the activity of appellant/respondent was different and when they travelled in train from Chennai to Mumbai during day time the activity of appellant/respondent was different.
15. Added further, P.W.1-Rajasubramanian in his evidence has deposed that they took the appellant/respondent to the Government Hospital, Chennai on 26.09.2001 and he took the appellant/respondent to the Dr. Sathianathen generally and the said Dr. Sathianathen asked him to admit the appellant/respondent in the hospital on the same day but they took the appellant/respondent to their house and on the next day the appellant/respondent's parents informed that they would give treatment to her and they took the appellant on 28.09.2001 and the appellant/respondent's conduct/activity was like her mental state being affected and on 28.09.2001 when the appellant/respondent was taken by her parents, she had the mental state problem and after 28.09.2001 when the parents of the appellant/respondent took the appellant, within one or two months if the mental state of the appellant was all right then he would have taken and lived with her and that during the period from 28.09.2001 to 15.02.2002 he had not issued notice to the appellant/respondent asking her to live with him and that the appellant/respondent's parents had not admitted the appellant/respondent in the hospital as directed by the Dr. Sathianathen.
16. P.W.2-Kumar in his evidence has deposed that P.W.1-Rajasubramanian is his son and that the advocate Saraswathi, their family friend was known to him and on 18.09.2001 evening at about 3.00 p.m. after seeing the rain the appellant/respondent had removed the jewels owned by her and she was dancing in the hall and during the stay of the appellant/respondent at Chennai from 11.09.2001 till 15.09.2001 he came to know that her conduct was different and 14.09.2001 the appellant/respondent took some tablets, about which he knew directly and while they were in Bombay the appellant/respondent was not taken to the doctor and during the period from 28.09.2001 till 15.05.2002 he sent his relative to enquire about the health of the appellant/respondent with her parents and that he sent his relative Velupillai and his wife Rani but they were humiliated by the appellant/respondent's parents and further the appellant/respondent's parents gave a police complaint and again he sent one Dhiraviyam Pillai and the appellant/respondent's parents did not give proper reply to him and once he spokes to appellant/respondent's parents over phone but they gave a reply like slapping on the face and when his relative Kurusamy Pillai met the appellant/respondent and had talks with her, thereafter, the appellant's parents informed that they require a mutual divorce petition and when they got down at Chennai on 25.09.2001 till the appellant/respondent's parents came to Chennai all of them had thought the appellant/respondent required treatment. The further evidence of P.W.2-Kumar is to the effect that from 23.09.2001 when they brought the appellant/respondent with them to Chennai till 28.09.2001 when the appellant/respondent was with them there was no strange activity of the appellant/respondent and that on the side of appellant/respondent one Venkatesan and another in Mumbai had talks with him in regard to the uniting of the couples.
17. P.W.3-Muthaiya Pillai in his evidence has deposed that he was aware of the factum of marriage between the appellant and the respondent and that the respondent/petitioner's house side had not demanded dowry and that in the appellant/respondent's house they did not say that they will put this much of jewels and at the time of marriage engagement there was no talk of dowry and that the appellant/respondent was brought to Chennai from Bombay to the house of respondent/petitioner after 10 or 15 days on the footing that the appellant/respondent was not keeping good health and that the appellant/respondent was given the treatment at the Government Hospital, Chennai and that he had signed in Ex.P.3 receipt as witness.
18. R.W.1-Sridevi (appellant/respondent) in her evidence has deposed that her marriage took place on 07.09.2001 and that from 07.09.2001 till 25.09.2001 she lived as a wife and that on the day of marriage on 07.09.2001 first night took place and that on 08.09.2001 also she had marital relationship and from 17.09.2001 till 21.09.2001 there was marital relationship between them and that the respondent/petitioner after consuming liquor had started scolding the appellant/respondent she was afraid of the same and that in 2002 she lodged a complaint before Tirunelveli All Women Police Station and again in 2003 she gave the second complaint at Neelankarai, Chennai and that she was taken to the Dr. Sathianathen by the respondent/petitioner after informing to see the friend and that the respondent/petitioner (husband) forced her to take tablets which would make her unconscious state and that she was taken to the house of advocate Saraswathi and the respondent/petitioner (husband) asked her to drink the milk which contained the said tablet and that unable to bear the cruelty meeted out to her by the respondent/petitioner (husband), she filed a petition for divorce H.M.O.P. No. 56 of 2002 Ex.P.6 before the Sub Court, Tenkasi and that she had not prosecuted the said case because the respondent/petitioner's side informed that they could compromise the matter etc. and the said case after 30 hearings was dismissed since she had not appeared and when the H.M.O.P. No. 56 of 2002 was pending she gave complaint before the Neelankarai Police Station and she gave complaint in the year 2003 out of uneasy calm owing of the fact that there was an attempt to conduct another marriage to the respondent/petitioner and further since she was asked to live the respondent/petitioner after receiving money and there was no written proof to establish the aforesaid details and that her mother in order to make her to live gave complaint though she informed that no action was required out of frustration and that she had not filed any case seeking relief of restitution of conjugal rights and it was correct to state that her husband's sister's husband Murugesan was also shown as accused in the complaint given by her mother before the Tirunelveli Police Station.
19. R.W.2-Swaminathan in his evidence has stated that the signatures of himself, his wife and his wife's sister-Lakshmi were obtained on 28.09.2001 and that his daughter no occasion to know about Ex.P.3 receipt and that it was a fact that his daughter was taken to the doctor Sathiyanathan has informed by his son-in-law and that his daughter was kept in observation by the Dr. Sathianathen in his hospital for three weeks and that the said doctor's hospital was at Anna Nagar, Chennai near Iyyappan Temple and that he could not remember the name of the hospital presently.
20. As a matter of fact, the evidence of R.W.3-Chitra in chief examination is to the effect that the appellant/respondent's father gave Rs. 40,000/- to her and this sum represented dowry to be given to the respondent/petitioner side and when betrothal took place the said sum of Rs. 40,000/- which was kept in the yellow clothe was taken by the appellant/respondent's father from her and the same was kept in the Thambulam plate and given to the respondent/petitioner's parents.
21. R.W.3-Chitra in her evidence in cross examination has stated that she is related to the appellant/respondent and that the appellant/respondent's father gave Rs. 40,000/- to her and asked her to bring that sum to the marriage hall and accordingly she kept the said sum in yellow clothe when she came to the marriage hall and that she gave the said Rs. 40,000/-.
22. It cannot be gainsaid that the plea of the respondent/petitioner (husband) is that the appellant/respondent (wife) has committed acts of cruelty and desertion. In fact, the term 'cruelty' is used in an ordinary sense and it has no artificial meaning. The word 'cruelty' refers to a state of conduct which is painful and distressing to another individual. Admittedly, the legal conception of cruelty is based on facts and circumstances of a particular case, where the totality conduct of a person was such to come to a conclusion from a prudent person's view point that it is not possible for one individual on account of the conduct of the other to continue the marriage tie and the acts of such a nature committed by the other person causing mental injury or otherwise etc. Therefore, it can safely be said that cruelty in matrimonial relationship is a conduct of an individual which is affecting the other person adversely. In deciding the issue of cruelty in each and every case, the facts are to be carefully looked into. The term of cruelty includes both physical and mental cruelty. In the aspect of cruelty physical temperament, culture of the spouses and standard of living and all other relevant circumstances are to be taken note of. In regard to cruelty, the nature of cruel treatment and the impact of such treatment on spouse mind are to be taken note of. Further, cruelty represents deliberate infliction of bodily or mental pain. But one has to take note of the conduct as such, whether it is likely to result in injury to health or whether it is meant to make the performance of marital duties practically an impossible one. However, the Court of law has to make an overall assessment of human nature by surveying the domestic life of the parties as a whole before forming an opinion of the possible future relationships. Moreover, in regard to the issue of cruelty in matrimonial matters has to be seen in regard to the relationship of the parties namely, husband and wife by taking note of and bearing in mind the relevant circumstances like acquisitions and complaints etc.
23. In regard to an issue of 'Desertion' it must be seen that there exits (i) a factum of separation (ii) animus deserendi, viz., an intention on the part of the offending spouse of forsaking the affected spouse and these two elements should subsist during the entire statutory period. Apart from the above two ingredients, the other ingredient is that the absence of his or her consent and the absence of his or her conduct providing reasonable cause to the deserting party to live the matrimonial house.
24. Generally speaking the proof of establishing withdrawal from society without reasonable and genuine excuse falls on the petitioner. However, the said burden changes to the other party pleading justification or genuine and reasonable cause for such withdrawal. The determination of desertion is a matter to be inferred from the facts and circumstances of each and every case or by expression of intention or conduct both anterior and subsequent to the factum of separation. Undoubtedly, desertion is a continuing act and it cannot be accounted for by aggregating from different installments of desertion.
25. The learned Counsel for the appellant/respondent urges that a court of law should not grant the relief of divorce on the basis that the marriage has irretrievably broken down and in the instant case on hand, the lower Court on a wrong principle acceded to the request of the respondent/petitioner (husband) and in support of his contention he places reliance on the decision Shyam Sunder Kohli v. Sushma Kohli alias Satya Devi : AIR2004SC5111 wherein the Honourable Supreme Court has observed as follows:
13. 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, under Section 494 IPC 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.
26. He also cites the decision A. Jayachandra v. Aneel Kaur : AIR2005SC534 wherein the Honourable Supreme Court has held as follows:
12. To constitute cruelty, the conduct complained of should be 'grave and weighty' so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than 'ordinary wear and tear of married life'. The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.
13. The court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.
27. The learned Counsel for the appellant/respondent submits that in the instant case, the respondent/petitioner (husband) is at wrong and therefore, he cannot be given relief of divorce on the ground of desertion on appellant/respondent (wife) part and in support of his contention cites the decision Chetan Dass v. Kamala Devi : [2001]3SCR20 wherein the Honourable Supreme Court has laid down thus:
Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, 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.
28. The learned Counsel for the appellant/respondent presses into service the decision of this Court reported in L. Hemalatha v. N.P. Jayakumar 2008 1 L.W. 822 whereby it is held para 21.6 and para 23 as under:
Primary duty of a court is to see that truth is arrived at. But, the trial Court has simply accepted the case of the petitioner husband without insisting on an application under Order 32 Rule 15 of the Code of Civil Procedure. The failure on the part of the petitioner husband and the lapse on the trial Court to discharge the mandatory obligation as contemplated under Order 32 Rule 15 of the Code of Civil Procedure read with Section 10 of the Family Courts Act would render the order as a whole nullity in the eye of law. Para 21.6
The court dealing with the petition for divorce or dissolution of marriage has to bear in mind that the problems before it are those of human beings and the court should weigh the gravity of the allegations made by the parties against each other. The court must bear in mind that every matrimonial conduct which may cause annoyance to the other may amount to a ground for divorce. Equally, the mere trivial irritation quarrels between spouses which happen in day-to-day married life, may also not amount to a ground for divorce. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other's fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. Too technical and hypersensitive approach would be counterproductive to the institution of marriage.
29. Per contra, the learned Counsel for the respondent/petitioner submits that in the case on hand between the parties the marriage tie has broken down beyond repair and to lend support of his contention he cites the decision Naveen Kohli v. Neelu Kohli : AIR2006SC1675 whereby the Honourable Supreme Court has inter alia held that 'the type of cruelty must satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce.' Moreover, cruelty in matrimonial life may be by gestures, or by words or by violation or non-violation means or even by silence. In this connection, it is apt to point out that in the decision Naveen Kohli v. Neelu Kohli : AIR2006SC1675 the Honourable Supreme Court has observed as follows:
76. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised 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.
77. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.
78. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist.
30. Another decision in Samar Ghosh v. Jaya Ghosh : (2007)4SCC511 is relied on the side of respondent/petitioner wherein the Honourable Supreme Court among other things has held that there cannot be any comprehensive definition of 'mental cruelty' within which all kinds of cases of mental cruelty can be covered and that there can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters and that the prudent and appropriate way to adjudicate the case on prevailing facts and circumstances while taking into consideration the various factors.
31. The learned Counsel for the respondent/petitioner relies on the decision R. Mallika v. R. Rajagopal : (2007)6MLJ1337 wherein this Court has inter alia held that 'considering long separation and persistent differences between parties, lower Court rightly granted relief to respondent and that the parties marriage has broken down irretrievably.' She also cites the decision A. Jayachandra v. Aneel Kaur (cited supra) wherein the Honourable Supreme Court has inter alia opined that 'irretrievably breaking of marriage though not a ground for dissolution of marriage, however, with a view to do complete justice and shorten agony of parties directed dissolution of marriage.'
32. It is an axiomatic fact that the matrimonial reliefs being a civil remedy the concerned facts are required to be proved by means of 'preponderance of probabilities' and 'proof beyond reasonable doubt' are not required in these matters as that of criminal cases.
33. Of course the burden rests on a person to prove his or her case since the burden lies on the person which affirms a fact, and not on the other who denies it. However, the legal burden falls on the respondent/petitioner and onus of proof shifts and is a continuous process. At this stage, it is relevant to point out that in Halsbury's Laws of England (3rd Edn.), Vol.12, in para 453 and 454 at page 241 to 243 a legal position of desertion has been stated thus:
In its essence desertion means the intentional permanent forsaking and abondonment of one spouse by the other without that other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases.
Desertion is not the withdrawal from a place but from the state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, 'the home'. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated.
The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.
The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of atleast three years immediately preceding the presentation of the petition or where the offence appears as a cross-charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence.
34. Furthermore, 'Rayden on Divorce' (6th Edn.) at page 128 has stated that 'Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party.'
35. This Court points out in the decision Kamal Kumar Basu v. Kalyani Basu : AIR1988Cal111 wherein it is held as follows:
In order to constitute desertion within the meaning of the Explanation to Section 13(1) while there must be two elements present on the side of the deserting spouse, namely, the factum of his or her withdrawal and the accompanying animus deserendi i.e. intention to bring cohabitation permanently to an end, there must also be two elements present on the side of the spouse claiming to be deserted, namely, absence of his or her consent and the absence of conduct on his or her part giving the deserting spouse reasonable cause to form the animus deserendi.
36. In the decision Smt. Kalpana Srivastava v. Surendra Nath Srivastava : AIR1985All253 among other things observed that ''Cruelty' is not confined to physical cruelty, but includes mental cruelty. The matrimonial alliance is irretrievably broken where one of the spouses persistently causes mental torture, disgrace and harassment. The entire evidence on record and the totality of circumstances have to be considered for judging cruelty.'
37. As far as the present case is concerned, the appellant/respondent was given the treatment by Dr. Sathianathen. Dr. Sathianathen who issued Ex.R.8-certificate dated 24.10.2001 was not examined as witness before the Court below. A perusal of the Ex.R.8 doctor certificate dated 24.10.2001 indicates that Dr. R. Sathianathen had examined the appellant/respondent and he had stated that 'the appellant/respondent was brought with complaints of sleeplessness and irritability and these symptoms started on the day after her marriage and were increasing in magnitude since then and that she was kept under observation for a period of three weeks and during this period she was found to be alert, in touch with surroundings, her sleep and appetite were normal and she had no thought, mood, perceptual or behavioural abnormalities and that it appeared that she was affected by the situational changes that took place after the marriage and had difficulty in coping up with them and she had treated with a small dose of tranquilizers and that she had improved with the treatment.
38. It is to be noted in law that marking of a document is a one thing and proving the contents of the document are another thing. In this connection, it is relevant to point out that in the decision P.C. Purushothama Reddiar v. S. Perumal : [1972]2SCR646 the Honourable Supreme Court has inter alia held that 'once a document is properly admitted the contents of that document are also admitted in evidence though those contents may not be conclusive evidence.'
39. The very fact that the Dr. R. Sathianathen in his certificate Ex.R.8 dated 24.10.2001 had inter alia stated that the appellant/respondent was kept under observation for a period of three weeks and during this period she was found to be alert, in touch with surroundings, her sleep and appetite were normal and she had no thought, mood, perceptual or behavioural abnormalities and that she had improved with the treatment indicates that the appellant/respondent's behaviour was normal and that she had no mental infirmity, in the considered opinion of this Court. Therefore, this Court is of the view that the respondent/petitioner's contention that the appellant/respondent was not all right in her mental state had not been substantiated to the satisfaction of this Court and hence, rejects the same.
40. In the instant case on hand, the appellant/respondent (wife) has been examined as R.W.1 and she has been subjected to cross examination and as such she has protected her interest by herself in the proceedings before the Court below, in the considered opinion of this Court.
41. Even though the respondent/petitioner (husband) in his evidence has stated that the appellant/respondent (RW1-wife) has prevented him from consummating the marriage. This fact has been denied by the appellant/respondent (wife) in her evidence as R.W.1 and further she has deposed that from 07.09.2001 till 25.09.2001 she led the life of a wife and that it was incorrect to state that on 07.09.2001 marital relationship between her and her husband and even on 08.09.2001 the marital relations continued. In this regard, except the evidence of P.W.1 and R.W.1 there is no medical evidence to know whether in fact the marriage between the parties was consummated or not.
42. As regards the evidence of appellant/respondent as R.W.1 to the effect that her husband viz., the respondent/petitioner has given her the tablets which would make her unconscious and compelled her take the same and further that she has been taken to the advocate Saraswathi's house where she has been asked to drink the milk which contained the said tablet and these details are mentioned in the counter, it is to be pointed out that except the Ipsi Dixi of R.W.1's evidence in this regard, there is no satisfactory proof on the side of appellant/respondent to establish the same in the absence of the said advocate Saraswathi not having been examined as a witness before the trial Court. Equally, though the respondent/petitioner as P.W.1 in his evidence has stated that on the day of the first night the appellant/respondent has thrown the decorated flowers and started reciting mantras taught by one Ambaji to her, in this regard also there is only the Ipsi Dixi of P.W.1 and there is no satisfactory proof to substantiate the same on the side of respondent/petitioner.
43. Likewise, the evidence of R.W.1 appellant/respondent to the effect that on 20.09.2001 at 12'o clock in the night she was taken by the respondent/petitioner along with his driver to the graveyard by driving the vehicle speedily by consuming alcohol and she was asked to sit in between the cemetery and pooja was performed is only unilateral one and the same has not been proved to the subjective satisfaction of this Court.
44. Coming to Ex.P.4-advocate's notice dated 15.5.2002 issued on behalf of the appellant/respondent, it is to be pointed out that in the said notice it is inter alia mentioned that the respondent/petitioner shall give his consent in writing for mutual divorce to be filed before Tenkasi Sub Court failing which for the relief of divorce case will be filed against the respondent/petitioner. From the aforesaid contents of Ex.P.4-notice dated 15.5.2002 it is quite evident that the appellant/respondent has sought the mutual consent for seeking the relief of divorce from the respondent/petitioner (husband). It is to be noted that the appellant/respondent has filed H.M.O.P. No. 56 of 2002 on the file of Tenkasi Sub Court seeking relief of divorce and as seen from Ex.P.6-HMOP petition and a perusal of the same clearly indicates that the appellant/respondent has no favourable circumstance to live with the respondent/petitioner unitedly etc. and that the first hearing of the said case has been on 24.10.2002. Ex.P.7 is the order of the Sub Court, Tenkasi dated 03.11.2004 passed in H.M.O.P. No. 56 of 2002 wherein the order has been passed to the effect that 'the petitioner's Counsel has informed that no information has been received from the petitioner etc.' and the Court has dismissed the petition on the ground at the time when the case was called the petitioner has remained absent.
45. It is seen that Exs.R.2 and R.3-receipts are dated 12.08.2002 and 16.06.2003 and they indicate that the appellant/respondent has given a complaint against the respondent/petitioner. Ex.R.4 is the complaint given by the appellant/respondent (wife) against the respondent/petitioner (husband) before the Inspector All Women Police Station, Nellankarai, Chennai wherein the appellant/respondent has mentioned about the difficulties experienced by her in the husband's residence and has prayed for an enquiry being made against her husband and his parents, relatives etc. Ex.R.5 is the xerox copy of the complaint petition given by the appellant/respondent's mother before the Superintendent of Police, Tirunelveli against the respondent/petitioner and 10 others wherein action has been prayed for against the respondent/petitioner (husband) and their parents etc. for ill-treating the appellant/respondent and also for demanding higher dowry. Ex.R.6 is the receipt dated 23.10.2006 for the petition given by the appellant/respondent's mother alleging that the respondent/petitioner is not living with her daughter, demanding higher dowry and living separately for five years. Ex.R.7 is the xerox copy of the first information report given by the mother of the appellant/respondent as against the respondent/petitioner and 10 others. It is quite evident from Ex.R.7-FIR that a case under Section 498(A), 34 I.P.C. and under Section 4 of the Dowry Prohibition Act has been registered on 02.11.2006 against the respondent/petitioner and 10 others and the date of occurrence relates to the period from 07.09.2001 to 28.09.2001 and the year 2005.
46. Admittedly, in the present case, the appellant/respondent has given complaint against her husband viz., respondent/petitioner and further that the appellant/respondent's mother also has given complaint before the concerned police and resultantly, a FIR has been registered under the provision of the Indian Penal Code and also as per Section 4 of the Dowry Prohibition Act, as seen from Ex.R.7 in particular. In regard to the plea of dowry harassment/ill-treatment except R.W.1's evidence in this regard (appellant/respondent), there is no independent and corroborative evidence in this case and as a matter of fact, R.W.2 and R.W.3 in their evidence have not spoken about the dowry harassment and as such, this Court opines that the plea of dowry harassment has not been proved to the subjective satisfaction of this Court. A significant fact that transpires from Ex.P.6 is that the appellant/respondent has filed a petition H.M.O.P. No. 56 of 2002 against the respondent/petitioner (husband) praying for a decree of divorce by means of dissolution of marriage that took place between the parties on 07.09.2001 and later the same having been dismissed for non-appearance of appellant/respondent on 03.11.2004 before the Sub Court, Tenkasi as per Ex.P.7. As a matter of fact, the appellant/respondent has thought it fit to file H.M.O.P. No. 56 of 2002 praying for a decree of divorce as early as in the year 2002. However, the respondent/petitioner (husband) has filed H.M.O.P. No. 147 of 2005 in April 2005 on the file of Principal Sub Judge, Chengalpet and later taken on file by the Family Court, Madurai as H.M.O.P. No. 352 of 2006 as per order of High Court, Madras in Tr.C.M.P. No. 1849 of 2005 and C.M.P. No. 18460 of 2005 dated 17.08.2006. In as much as the appellant/respondent has given complaints against her husband viz., respondent/petitioner, his parents and others, it is quite clear that the respondent/petitioner has suffered cruelty at the hands of the appellant/respondent. Moreover, the dismissal of H.M.O.P. No. 56 of 2002 filed by the appellant/respondent praying for the relief of decree of divorce against the respondent/petitioner, for non-appearance of the appellant/respondent on 03.11.2004 as evidenced from Ex.P.7 is a clear circumstances which goes against the appellant/respondent (wife), in the considered opinion of this Court.
47. From 29.09.2001 the appellant/respondent and respondent/petitioner are living separately. The very fact that the appellant/respondent has filed H.M.O.P. No. 56 of 2002 praying for a decree of divorce from the respondent/petitioner leads to an inference that the appellant/respondent has the clear-cut intention to bring cohabitation permanently to an end. Moreover, in the present case, the cumulative effect of the circumstances, situations and the evidence noticed enable this Court to come to the conclusion that there has been a long period of continuous separation from 28.09.2001 and it is safely concluded that the matrimonial bond is beyond repair and this Court is very much satisfied that the relationship between the parties had deteriorated and there is total disappearance of emotional substratum in marriage and that the marriage has irretrievably broken down not with standing the fact that allegations and counter allegations were made by respective parties against each other and in that view of the matter, the respondent/petitioner is entitled a decree of divorce.
48. For the foregoing reasons, the Civil Miscellaneous Appeal fails and the same is hereby dismissed in the interest of justice leaving the respective parties to bear their own costs in this appeal. Resultantly, the order of the Family Court, Madurai in H.M.O.P. No. 352 of 2006 dated 28.09.2007 is affirmed for the reasons assigned in this appeal by this Court. Consequently, connected miscellaneous petition is also dismissed.