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Thursday, October 16, 2014

Hindu Marriage Act - Mental curelty - Apex court held that Undoubtedly, not allowing a spouse for a long time, to have sexual intercourse by his or her partner, without sufficient reason, itself amounts mental cruelty to such spouse. = CIVIL APPEAL NO. 9036 OF 2014 (Arising out of S.L.P.(c) No.25056 of 2012) VIDHYA VISWANATHAN ... APPELLANT VERSUS KARTIK BALAKRISHNAN … RESPONDENT = 2014 - Sept.Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41950

     Hindu Marriage Act - Mental curelty - Apex court held that  Undoubtedly, not allowing a spouse for a long  time,  to  have  sexual intercourse by  his  or  her  partner,  without  sufficient  reason,  itself amounts mental cruelty to such spouse. =

 “ 44.  It has to be further pointed out that  while  P.W.1  was  cross
examined by the respondent, it has not  been  suggested  to  P.W.1  that  he
suggested to the respondent that they should have a  child  only  after  two
years. Thus it appears that this  explanation  of  the  respondent  for  non
consummation of the marriage is only an afterthought. Even  assuming  for  a
moment that the appellant wanted to have a child only after two  years  that
does not mean that the appellant and the respondent cannot  and  should  not
have sexual intercourse. Admittedly, both of  them  are  well  educated  and
there are so many contraceptives available and they  could  have  used  such
contraceptives and avoided pregnancy if they had wanted.   Xx  xx.”


12.   Undoubtedly, not allowing a spouse for a long  time,  to  have  sexual
intercourse by  his  or  her  partner,  without  sufficient  reason,  itself
amounts mental cruelty to such spouse. A  Bench  of  Three  Judges  of  this
Court in Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 has enumerated some  of
the illustrations of mental cruelty. Paragraph  101  of  the  said  case  is
being reproduced below:
A  Bench  of  Three  Judges  of  this
Court in Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 has enumerated some  of
the illustrations of mental cruelty. Paragraph  101  of  the  said  case  is
being reproduced below:

“101. No uniform standard can ever be laid down for guidance,  yet  we  deem
it appropriate to enumerate some instances of human behaviour 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.

(iii) Mere coldness or lack of affection cannot amount to cruelty,  frequent
rudeness of language, petulance of  manner,  indifference  and  neglect  may
reach such a degree that it makes the married  life  for  the  other  spouse
absolutely intolerable.

(iv) Mental cruelty is a  state  of  mind.  The  feeling  of  deep  anguish,
disappointment, frustration in one spouse caused by  the  conduct  of  other
for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating  treatment  calculated  to
torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of  one  spouse  actually
affecting physical and mental health of  the  other  spouse.  The  treatment
complained of and the resultant danger or apprehension must be  very  grave,
substantial and weighty.

(vii) Sustained reprehensible  conduct,  studied  neglect,  indifference  or
total departure from  the  normal  standard  of  conjugal  kindness  causing
injury to mental health or deriving sadistic pleasure  can  also  amount  to
mental cruelty.

(viii)  The  conduct  must  be  much  more   than   jealousy,   selfishness,
possessiveness, which causes unhappiness and dissatisfaction  and  emotional
upset may not be a ground for grant of  divorce  on  the  ground  of  mental
cruelty.

(ix) Mere trivial  irritations,  quarrels,  normal  wear  and  tear  of  the
married life which happens in day-to-day life  would  not  be  adequate  for
grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed  as  a  whole  and  a  few  isolated
instances over a period of  years  will  not  amount  to  cruelty.  The  ill
[pic]conduct must be persistent for  a  fairly  lengthy  period,  where  the
relationship has deteriorated to an extent that  because  of  the  acts  and
behaviour of a spouse, the wronged party finds  it  extremely  difficult  to
live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilisation  without
medical reasons and without  the  consent  or  knowledge  of  his  wife  and
similarly, if the wife  undergoes  vasectomy  or  abortion  without  medical
reason or without the consent or knowledge of her husband, such  an  act  of
the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have  intercourse  for  considerable
period without there being any  physical  incapacity  or  valid  reason  may
amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage  not  to
have child from the marriage may amount to cruelty.


xx          xx         xx         xx



The above mentioned illustrations, No.  (viii)  and  (xii)  given  in  Samar
Ghosh case (supra), support the view taken by  the  High  Court  in  holding
that in the present case the  wife  has  treated  her  husband  with  mental
cruelty.

   2014 - Sept.Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41950
                                   REPORTABLE



                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 9036 OF 2014
                 (Arising out of S.L.P.(c) No.25056 of 2012)



VIDHYA VISWANATHAN                ...   APPELLANT


                 VERSUS

KARTIK BALAKRISHNAN                             …   RESPONDENT





                       J U D G M E N T



PRAFULLA C.PANT,J.


Leave granted.
This appeal is directed against  the  judgment  and  order  dated  13.2.2012
passed in CMA No.2862 of 2011 by the High  Court  of  Judicature  at  Madras
whereby the said Court has allowed the appeal filed  by  the  husband  under
Section 19 of Family Courts Act, 1986, and dissolved  the  marriage  between
the parties.
   Brief facts of the case are that the appellant,  Vidhya  Viswanathan  got
married to the respondent,  Karthik  Balakrishnan  on  6.4.2005  in  Chennai
following the Hindu rites. After the marriage, the  couple  went  to  London
where the respondent (husband) was working, and they lived  there  for  some
eight months. In December, 2005, the appellant and the respondent came  back
to India. However, the appellant went back to England  all  alone,  and  his
wife did not go there though her husband had purchased a return  ticket  for
her. On 13.9.2008, the husband filed a petition under Section  13  (1)  (ia)
of the Hindu Marriage Act, 1955 for dissolution of marriage. It  is  pleaded
by the respondent (husband)  that  while  the  appellant  was  with  him  in
London, she used to insult him. It is alleged by him that at times she  used
to get violent and hysterical. The husband further pleaded that  even  after
his best efforts,  the  appellant  did  not  allow  him  to  consummate  the
marriage.  It is further stated that in  November,  2005  i.e.  about  seven
months after the marriage  the wife ( the present appellant) fell sick,  and
she was taken to a Medical Specialist who diagnosed that she  was  suffering
from tuberculosis. According to the husband, he provided the  best  possible
treatment to his wife. After the couple came  back  to  India  in  December,
2005, the wife stayed back in Chennai and continued  her  treatment.  It  is
alleged by the present respondent (husband) that his wife used to  send  him
e-mails which were derogatory and in bad taste. It is also  alleged  by  the
respondent that his wife refused to join his company  even  after  his  best
efforts.  With the above pleadings, the present respondent filed a  petition
for divorce before the Family Court, Chennai on the ground of cruelty.
The  appellant  contested  the  divorce  petition,  and  filed  her  written
statement. She denied the allegations made against her. She stated that  she
went with her husband to London with great expectations.  She  alleged  that
her husband and his mother did not treat her well.  She  admitted  that  she
came back with her husband to India in December, 2005. She  further  pleaded
that though the respondent purchased  the  return  ticket  for  her  but  he
himself instructed not to return to England without his  permission.  It  is
also stated by her that marriage could not be  consummated  for  the  reason
that her husband  wanted  to  have  children  after  one  or  two  years  of
marriage. She did not deny having sent e-mails  but  stated  that  she  only
responded to the respondent  as  he  wanted  divorce  decree  based  on  her
consent. She admitted that she received legal notice from  her  husband  but
stated that the allegations therein are  false.   She  prayed  for  counter-
claim directing the respondent to restore the conjugal  rights  between  the
parties.
On the basis of the pleadings of the parties, the  trial  court  framed  the
following issues:

“ (1) Whether the petitioner/husband is entitled for divorce on  the  ground
of cruelty ?

  (2) Whether the respondent/  wife  is  entitled  for  conjugal  rights  as
prayed for in the counter claim? ”



The parties led their oral and documentary evidence before the trial  court.
The First Additional Family Court at  Chennai,  after  hearing  the  parties
vide its judgment and order dated  11.8.2011,  dismissed  the  petition  for
divorce, and allowed the  counter-claim  of  the  wife.  Aggrieved  by  said
judgment and order the husband (Karthik Balakrishnan) filed an  appeal  (CMA
No.2862 of 2011 with M.P.No.1 of 2011)  before  the  High  Court.  The  High
Court after hearing the parties  allowed  the  appeal,  and  set  aside  the
judgment and order dated 11.8.2011 passed by  the  trial  court.   The  High
Court allowed the divorce petition, and dissolved the marriage  between  the
parties. Hence, this appeal with special leave petition before this Court.
We have heard learned counsel for the parties, and  perused  the  papers  on
record.
8.    Admittedly, the appellant got married to respondent  on  6.4.2005.  It
is also admitted that there is no issue born out of the wedlock. This  Court
has now  to  examine  whether  the  High  Court  has  rightly  come  to  the
conclusion or not that the husband was treated with cruelty by the wife,  if
so, is he entitled to decree of divorce.
9.    On going through the evidence on record,  we  find  that  the  husband
(petitioner before the  trial  court),  in  his  evidence  has  narrated  in
detail, the incidents of alleged  cruelty  suffered  by  him.  The  relevant
paragraphs from the statement of the husband are being reproduced below:

“ 7)  ……  the marriage was solemnized on April 6th 2005,  as  stated  above.
But quite surprisingly, the respondent was very moody did not speak  at  all
throughout the wedding day.  The respondent was not even interested to  pose
for photographs, along with me.  What more worried  me  was  that  even  for
wedding lunch, the respondent had to be convinced to sit next to me to  have
lunch.  Initially thought that this  was  because  she  was  put  in  a  new
atmosphere.  However, I could  not  realize  that  the  respondent  was  not
interested either in my self or the marriage itself.

xx          xx         xx         xx

8)      …... inspite of the above odd things, I was able to get  a  visa  to
UK for  the  respondent.   I  further  submit  that  I  had  made  extensive
arrangements for the Honey moon to Scotland.   Even  during  the  Honeymoon,
the respondent was very moody, emotionless and abnormally quiet.  I  was  at
loss to understand as to what was hovering around in her mind.   However,  I
was very patiently waiting on the fond hope that things would become  normal
in due course.  However, all my dreams to lead a  very  happy  married  life
with the respondent were shattered  by  the  intolerable  behaviour  of  the
respondent.  I further submit that after returning from Scotland to  London,
I took the respondent to various places so  as  to  make  her  to  become  a
normal woman, but was taken aback by her sarcastic remarks about the  London
city  itself.   The  respondent  was  very  lethargic,   disinterested   and
showering lack of interest in any of the events.  Only thereafter, I  stared
thinking that the respondent was not interested in solemnizing the  marriage
itself.

xx          xx         xx         xx


9)    ……..between April, 2005 to December  2005,  I  could  infer  that  the
respondent was  always  moody,  throwing  tantrums,  showing  faces  openly,
showing anger and hatred insulting me when my self and the  respondent  were
alone and in front others.  The  respondent  reacted  violently  by  getting
aggressive and making sarcast remarks or locking herself  in  the  room  and
stopped talking for days together without any  reason.   When  I  questioned
about the same, the respondent used to get even more  aggressive  and  shout
hysterically and thereafter would  start  crying.    This  behaviour  became
more and more frequent over the time and made it impossible  to  handle  the
respondent  during  such  violent  outbursts  of  anger  and  hatred.    The
respondent was totally unapproachable and this left me with a deep sense  of
anguish and material agony.  The attitude of  the  respondent  was  becoming
worse day by day, resulted in  pulling  of  the  days  with  the  respondent
became a nightmare.


xx          xx         xx         xx


10)…………..the respondent did not show any intention at  all  in  consummating
the marriage.   The  respondent  evinced  no  interest  in  having  physical
contact with me.  A times, I myself had tried to  have  sexual  relationship
with the respondent as a  normal  husband  would  do.   However,  since  the
respondent showed no intention, I convinced myself that she would  mend  her
ways.  However, there was no attitudinal changes in her life.


xx          xx         xx         xx


13)………… the respondent deliberately used to wake me up rudely  sometimes  by
even kicking me when I was asleep and used to ask me to talk to  her  saying
that she was getting bored.  Without  minding  the  respondent’s  abominable
attitude, I would try to encourage the respondent as possible  as  I  could.
Further, the respondent used to bang her  head  against  the  walls  of  the
bedroom for no reason and when I  asked  the  reason  the  respondent  would
deliberately remain silent, having me spending sleepless nights.   This  has
caused great mental agony and torture to me when there was no fault on me.

xx          xx         xx         xx


17)………..during November 2005, the respondent  fell  sick  with  high  fever.
Despite the adamancy, not to take treatment, I  took  the  respondent  to  a
leading  specialist  who  diagnosed  that  the  respondent   suffered   from
Tuberculosis and got-months antibiotic course started in London……..


xx          xx         xx         xx


18)……….. In December 2005, I came down to Chennai with the respondent,  took
her  to  my  family  doctor,  who  referred  the  respondent  to  a  top  TB
specialist.  The doctor at Chennai also opined  the  same  as  that  of  the
doctor in London and advised the respondent to continue with the  antibiotic
prescribed by the doctor in London.


xx          xx         xx         xx


19)……………..I came back to London, after buying a return flight ticket to  the
respondent from Chennai to London for  July  2006,  presuming  that  the  TB
treatment at Chennai for the respondent would be completed by this time.


xx          xx         xx         xx



20)…………even though, I was in London,  I  used  to  get  in  touch  with  the
respondent and used to send emails on the fond hope  that  my  unconditional
love would make the respondent change her mind and behaviour  and  make  her
correct herself.  However, the respondent continued  to  act  irritationally
and showed anger in all the telephone calls by slamming down the receiver”.

P.W.1  Karthik  Balakrishnan  (husband)  who  made  above   statement,   was
subjected to lengthy  cross-examination  but  nothing  has  come  out  which
creates doubt in his testimony.
10.   The appellant Vidhya Viswanathan had also filed  her  evidence  before
the trial court, in the form of affidavit, and she also got  herself  cross-
examined as D.W.1. She denied the allegations made by  her  husband  but  in
cross-examination she admits that the marriage  was  not  consummated.   The
relevant portion from her cross-examination is being reproduced below:

      “   ….   ..   It is wrong to state that normally I  used  to  hit  the
petitioner  by my legs and wake him up and that I used to throw the  objects
on the petitioner and that  through  this  I  had  harassed  the  petitioner
physically and mentally. If it  is  asked  that  whether  the  marriage  was
consummated, no it is not. The petitioner said that we can beget  the  child
after one or two years. I and the petitioner were close. As  the  petitioner
joined  the new job he was under stress  and  tension.  The  petitioner  had
thyroid  infection frequently. The petitioner said that the starting of  the
matrimonial life shall be post-poned. It was not taken as an issue. After  8
months of the marriage, I became ill. Hence, I came to Chennai. It is  wrong
to state that  there is no connection between  thyroid  infection,  and  the
physical relationship and that I am adducing falsely.

xx          xx         xx         xx


My passport is lying with me. It is correct to state that in  the  passport,
a seal is made for visa. If it is asked when my U.K. visa would  expire,  it
is for 5 years.


xx          xx         xx         xx



Before my husband could file this case, I did not  file  any  case  for  the
restitution of conjugal rights. It is wrong  to  state  that  as  I  had  no
intention to live together, I did not file such a case. ”


11.    The High Court while rejecting the explanation given by the  wife  as
to why the marriage was not consummated observed as under:

      “ 44.  It has to be further pointed out that  while  P.W.1  was  cross
examined by the respondent, it has not  been  suggested  to  P.W.1  that  he
suggested to the respondent that they should have a  child  only  after  two
years. Thus it appears that this  explanation  of  the  respondent  for  non
consummation of the marriage is only an afterthought. Even  assuming  for  a
moment that the appellant wanted to have a child only after two  years  that
does not mean that the appellant and the respondent cannot  and  should  not
have sexual intercourse. Admittedly, both of  them  are  well  educated  and
there are so many contraceptives available and they  could  have  used  such
contraceptives and avoided pregnancy if they had wanted.   Xx  xx.”


12.   Undoubtedly, not allowing a spouse for a long  time,  to  have  sexual
intercourse by  his  or  her  partner,  without  sufficient  reason,  itself
amounts mental cruelty to such spouse. A  Bench  of  Three  Judges  of  this
Court in Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 has enumerated some  of
the illustrations of mental cruelty. Paragraph  101  of  the  said  case  is
being reproduced below:

“101. No uniform standard can ever be laid down for guidance,  yet  we  deem
it appropriate to enumerate some instances of human behaviour 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.

(iii) Mere coldness or lack of affection cannot amount to cruelty,  frequent
rudeness of language, petulance of  manner,  indifference  and  neglect  may
reach such a degree that it makes the married  life  for  the  other  spouse
absolutely intolerable.

(iv) Mental cruelty is a  state  of  mind.  The  feeling  of  deep  anguish,
disappointment, frustration in one spouse caused by  the  conduct  of  other
for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating  treatment  calculated  to
torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of  one  spouse  actually
affecting physical and mental health of  the  other  spouse.  The  treatment
complained of and the resultant danger or apprehension must be  very  grave,
substantial and weighty.

(vii) Sustained reprehensible  conduct,  studied  neglect,  indifference  or
total departure from  the  normal  standard  of  conjugal  kindness  causing
injury to mental health or deriving sadistic pleasure  can  also  amount  to
mental cruelty.

(viii)  The  conduct  must  be  much  more   than   jealousy,   selfishness,
possessiveness, which causes unhappiness and dissatisfaction  and  emotional
upset may not be a ground for grant of  divorce  on  the  ground  of  mental
cruelty.

(ix) Mere trivial  irritations,  quarrels,  normal  wear  and  tear  of  the
married life which happens in day-to-day life  would  not  be  adequate  for
grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed  as  a  whole  and  a  few  isolated
instances over a period of  years  will  not  amount  to  cruelty.  The  ill
[pic]conduct must be persistent for  a  fairly  lengthy  period,  where  the
relationship has deteriorated to an extent that  because  of  the  acts  and
behaviour of a spouse, the wronged party finds  it  extremely  difficult  to
live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilisation  without
medical reasons and without  the  consent  or  knowledge  of  his  wife  and
similarly, if the wife  undergoes  vasectomy  or  abortion  without  medical
reason or without the consent or knowledge of her husband, such  an  act  of
the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have  intercourse  for  considerable
period without there being any  physical  incapacity  or  valid  reason  may
amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage  not  to
have child from the marriage may amount to cruelty.


xx          xx         xx         xx



The above mentioned illustrations, No.  (viii)  and  (xii)  given  in  Samar
Ghosh case (supra), support the view taken by  the  High  Court  in  holding
that in the present case the  wife  has  treated  her  husband  with  mental
cruelty.
13.   In Vinita Saxena vs. Pankaj Pandit (2006) 3 SCC  778  regarding  legal
proposition on aspect of cruelty has made the following observations:

“31. It is settled by a catena of decisions that mental  cruelty  can  cause
even more serious injury than the physical harm and create in  the  mind  of
the injured appellant such apprehension as is contemplated in  the  section.
It is to be determined on whole  facts  of  the  case  and  the  matrimonial
relations between the spouses. To amount to  cruelty,  there  must  be  such
wilful treatment of the party which caused suffering in body or mind  either
as an actual fact or by way of apprehension in such a manner  as  to  render
the continued living together of spouses harmful or injurious having  regard
to the circumstances of the case.

32. The word “cruelty” has  not  been  defined  and  it  has  been  used  in
relation to human conduct or human behaviour. It is the conduct in  relation
to or in respect of matrimonial duties and obligations. It is  a  course  of
conduct and one which is adversely affecting the other. The cruelty  may  be
mental or physical, intentional or unintentional. There may be  cases  where
the conduct complained of itself is  bad  enough  and  per  se  unlawful  or
illegal. Then the [pic]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.”

In view of the above principle of law laid down by this  Court,  and  having
considered the submissions of parties, and the evidence  on  record,  we  do
not find any ground to interfere with the decree of divorce  passed  by  the
High Court on the ground of cruelty. However, we are conscious of  the  fact
that  the appellant, as stated by her, was doing a job before her  marriage,
and she (Vidhya Vishwanathan)  has stated as D.W.1 that at present   she  is
not doing any work. As such we think  it  just  and  proper  to  direct  the
respondent to pay to the appellant  (wife)  one  time  lump  sum  amount  of
alimony. We are of the view that in the facts and circumstances of the  case
keeping in mind the economic status of  the  parties,  a  direction  to  the
respondent to pay Rs.40 lakhs (Rupees forty lakhs only) as one time  alimony
to the appellant, would meet the ends of justice, to which  learned  counsel
for the respondent during the arguments stated that the respondent is  ready
to pay the same.
15.   Accordingly, we  dispose  of  this  appeal  affirming  the  decree  of
divorce granted by the  High  Court  dissolving  the  marriage  between  the
parties namely Karthik Balakrishnan and  Vidhya Vishwanathan,  with  further
direction under Section  25  of  the  Hindu  Marriage  Act,  1955  that  the
respondent shall pay to the appellant Rs.40 lakhs (Rupees forty lakhs  only)
as a lump sum amount of permanent alimony, within a period of  three  months
from the date of this judgment. No order as to costs.


                               ………..……………………………….……J.
                               (SUDHANSU JYOTI MUKHOPADHAYA)


                       …………………………………………..J
                       (PRAFULLA C. PANT)



NEW DELHI,
SEPTEMBER 22, 2014
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