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
-----------------------
-17-
“ 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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