R. Raghunadhan vs Revathi (10.05.2012)

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CDJ 2012 MHC 2241

Court : High Court of Judicature at Madras

Case No : C.M.A.No.1106 of 2007 & Connected M.Ps.

Judges:THE HONOURABLE MR. JUSTICE K. MOHAN RAM & THE HONOURABLE MR. JUSTICE M. DURAISWAMY

Parties : R. Raghunandhan Versus M. Revathi

Appearing Advocates : For the Appellant: T. Murugesan, Senior Counsel for M/s. Vasudevan & Sudha, Advocate. For the Respondent: M/s. S.M.

Loganathan, Advocate.

Date of Judgment : 10-05-2012

Head Note :-

Subject

Judgment :-

(Prayer: Civil Miscellaneous Appeal filed under Section 19 of the Family Courts Act against the order and decretal dated 21.8.2006 passed in

O.P.No.494 of 2002 on the file of the II Additional Family Court, Chennai.)

(K. MOHAN RAM, J.)

1. The appellant in the above appeal is the petitioner in O.P.No.494 of 2002 on the file of the Second Additional Family Court, Chennai.

2. The marriage between the appellant and the respondent was solemnized as per Hindu rites and customs at Chennai on 11.9.2000. After

marriage, the appellant and the respondent stayed together at the respondent's parents house. Thereafter, the respondent was taken by the

appellant to his house at Adayar.

3. It is the case of the appellant that within four days after coming to Adayar, the respondent demanded from the appellant to change the

house property standing in his mother's name to her name. When the appellant refused to accede to the respondent's demand, she refused

to have intimate relationship with him. On 4.10.2000 when the appellant was taking the respondent in his scooter, on nearing her parent's

house, instead of slowly getting down, she deliberately fell down and got injuries on her leg with a view to create a scene. The respondent

was not continuously staying with the appellant in the matrimonial home. The respondent never showed any interest towards him let alone

attending to his day to day requirements and other household duties. When the appellant's sister asked the respondent to attend his daily

needs, she simply refused to do so by saying that she is not a servant maid. The respondent made it a routine affair to go to her parents'

house and making an occasional guest appearance in the matrimonial home. During her stay in the matrimonial home, the respondent would

frequently pick up quarrel with the appellant over the property issue and used to abuse him. The respondent's parents instead of advising her,

they encouraged her by giving ill advise.

4. According to the appellant, the respondent would have stayed with him for 20 days in all. It is the further case of the appellant that the health

of the appellant's mother worsened due to high blood pressure and sugar level. But the respondent instead of taking care of her, she abused

her in a filthy language. The respondent was brought to the matrimonial home after her stay for a month in her parents' house, on 5.11.2002.

On 8.11.2002, the respondent was taken to her parents' house for conducting the ceremony of changing the Mangalsutra to be held on

10.11.2002.

5. It is alleged that even at that time, the demand was made by the mother of the respondent to transfer the Adayar property to the

respondent's name, otherwise, she told that she would not send the respondent to the matrimonial home. Thereafter, the appellant's friendswent to the respondent's house for reconciliation but all their efforts became futile. A month later, the respondent came back on 5.2.2002 to

the matrimonial home and on 6.2.2002 she acted violently by abusing each and every one of the family members and on 7.2.2002 she threw

the Mangalsutra and left for her parents' house taking most of her belongings with her and because of that the appellant's mother suffered

heart attack and she was hospitalised for nearly a month. While so, the respondent gave birth to a female child and the appellant paid the

hospital charges.

6. On 15.9.2001 the respondent went to the working place of the appellant and created a scene by shouting and abusing him and his family

members. Thereafter, the respondent's parents approached Mr.Saidai Duraisamy, who is one of the leaders of the AIADMK political party and

a panchayat was held and when the true facts were brought to his notice, the respondent was advised to rejoin with the appellant.

7. It is the further case of the appellant that on 4.1.2002, one Jaipal, Manokaran and two other persons came to the appellant and assured him

that they would send the respondent back to the matrimonial home, but thereafter, there was no response from them or the respondent's

side. On 10.3.2002 the respondent accompanied by her mother and one relative came to the matrimonial home with a bag for taking her


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belongings. At that time, the respondent and her mother created a big galata in the Adayar locality by abusing the appellant and his family

members and created a scene by sitting in the middle of the road in front of his house. The respondent's mother brought goondas to the

scene after a while. The appellant immediately rang up and complained to the police, who in turn rang up to the All Women Police Station and

the respondent was taken to the police station and the appellant gave a complaint and the respondent also gave a complaint. On 14.3.2002,

they were called for an enquiry and during the enquiry, the respondent refused to live with the appellant by clearly stating that if the house

property is changed to her name, she will think about her joining with him. The respondent had deserted him and abusing the law to ruin his

life. The various acts committed by the respondent has caused great mental agony and it amounts to mental cruelty and therefore, sought for

the dissolution of marriage on the ground of mental cruelty by filing O.P.No.494 of 2002 before the Second Additional Family Court, Chennai.

8. The respondent contested the petition by filing a counter interalia contending as follows:-

a. The petition filed under Section 13(1)(ia) of the Hindu Marriage Act is not maintainable. The appellant and his parents demanded Rs.50000/-

besides demanding silver articles around one kilogram and 30 sovereigns of gold and also a chain weighing five sovereigns to the appellant

herein as dowry. The respondent's parents spent Rs.1,00,000/- for conducting betrothal ceremony. Though the demands of the appellant

have been met and Rs.7500/- was given for dress materials, the respondent's parents could not pay Rs.50000/- as demanded by the

appellant. The appellants parents also demanded steel bureau, cot and kitchen articles and the same were complied with. The respondent

had denied the allegation that within four days of leading the marital life at Adayar she urged the appellant to change the house property to her

name. The respondent was not even aware that the house property stands in the appellant's mother's name. The allegation that she was

blackmailing the appellant by refusing to have intimate relationship with him since the appellant refused to accede to her demand is false. The

allegation that she deliberately injured her leg is false. The allegation that she was staying as a guest in the matrimonial house has been

denied. The respondent was ill-treated by the appellant, his mother and unmarried sister, who is a lawyer and she was forced to undergo

mental agony. It is denied that the respondent lived with the appellant only for 20 days. But on the other hand, she was living with the appellant

from the date of marriage till she was driven out by the appellant and her in-laws. The appellant was harassing and torturing the respondent at

the ill advise of her in-laws. They directed the respondent to get Rs.50000/- from her parents, otherwise, they would not allow her to live with

the appellant.

b. According to the respondent, while she was residing with the appellant, on 8.1.2001 she was taken to her parents house for the ceremony

of changing the Mangalsutra to be held on 10.1.2001. The respondent's mother never made any demand for transferring the Adayar house

property to her name and she never ill advised the respondent. As per the demand made by the appellant's mother and sister, her parents

gave five sovereigns of gold for Thali Kodi. On 13.11.2000, the respondent returned back to her matrimonial home, but she was ill treated

again by her in-laws for not bringing Rs.50000/- as demanded by them. On 7.2.2001, the in-laws of the respondent beaten her severely and

she was driven out of the matrimonial home, though she was pregnant. The appellant never came to her house and hence, there was no

occasion for her mother to make the demand for transferring the Adayar house property to the respondent's name. Though she was

pregnant, the appellant never visited her. The allegation that she threw away the Mangalsutra and left for her parents house is false. Since no

steps were taken by the appellant and his parents to take back her to the matrimonial home, she went to the appellant's office and made a

request to him and came back and she never misbehaved and abused the appellant at his office. Even though the appellant and his mother

promised before the Panchayatadars to take her back within a week, they never took her back but they were adamant in their attitude. In spiteof several requests made to the appellant, she was not taken back to the matrimonial home.

c. It was further contended that on 10.3.2002, left with no other option, the respondent on her own returned to the matrimonial home along

with her mother and baby and even though the appellant was willing to take her back, on seeing his mother, the appellant behaved in a

different manner and not only abused her but also doubted her character. The appellant and her in-laws beaten her and she was dragging by

them to the road and because of that she sustained multiple injuries and was treated at E.S.I. Government Hospital, Ashok Nagar. In that

regard, she gave a complaint to All Women Police Station, Chennai-20 on 10.3.2002. The police called her and the appellant for an enquiry on

14.3.2002. But during the enquiry, the appellant refused to live with her. The contra averments made in para 13 of the petition are denied as

false and misleading. To escape from the police complaint, the very next day i.e. on 15.3.2002, the appellant filed the divorce petition. The

allegation that the respondent deserted the appellant is false. The respondent does not have any intention of deserting the appellant. The

respondent is always ready and willing to live with the appellant. On the aforesaid contentions, the divorce petition was sought to be

dismissed.

9. Before the Family Court, the appellant was examined as P.W.1 and one Nithyakumari, Sub Inspector of Police and Rajalakshmi, Inspector

of Police were examined as P.Ws.2 and 3 on the side of the appellant and Marriage Invitation was marked as Ex.P.1. On the side of the

respondent, she was examined as R.W.1 and a police receipt was marked as Ex.R1. Exs.X1 and X2 were marked as Court documents.

10. The Court below on a consideration of the oral and documentary evidence adduced dismissed the petition and being aggrieved by that the

husband has filed the above appeal.

11. Heard both.

12. Mr.T. Murugesan, learned Senior Counsel appearing on behalf of M/s. Vasudevan & Sudha, learned counsel for the appellant made the

following submissions:-

a. Within four days of coming to the matrimonial home, the respondent started demanding the transfer of house property standing in the

name of the appellant's mother to her name and since the demand was not acceded to she even refused to have intimate relationship with


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the appellant and the appellant and the respondent had lived as husband and wife only for 20 days.

b. The respondent never attended to the personal needs of the appellant. She never cared to attend on the sick mother of the appellant; the

respondent often left for her parents house and she was visiting the matrimonial home as a guest; finally the respondent left the matrimonial

home on 7.2.2001 and thereafter, the appellant and the respondent had not lived together and thus they are living separately for the past 11

years and there is absolutely no chance of any reunion. Though the respondent in her counter statement and evidence stated that she was

always ready and willing to live with the appellant, she had not filed any petition seeking restitution of conjugal rights.

13. The learned Senior Counsel further submitted that in the counter statement as well as in her evidence she has made false allegations as

if the appellant and her parents demanded gold jewellery and Rs.50000/- etc. The respondent had lodged a false complaint which will amount

to mental cruelty. The learned Senior Counsel submitted that P.W.1's evidence has not been properly considered by the Court below. The

learned Senior Counsel submitted that though the appellant had reiterated the averments contained in the petition relating to the various acts

of mental cruelty and had deposed that no demand for dowry was made, no suggestion whatsoever has been put to him suggesting that the

appellant and his parents demanded gold jewellery and Rs.50000/-.

14. The learned Senior Counsel submitted that the respondent had not put forth her case to P.W.1 during his cross examination. The learned

Senior Counsel submitted that the Court below has not properly considered the evidence on record relating to the removal of Mangalsutra by

the respondent. The observation of the Court below that since the Thali had not been marked as an exhibit, the removal of Thali by the

respondent is of no significance is fallacious. The removal of Thali by the respondent would cause mental cruelty to the husband and this

itself is sufficient to grant divorce.

15. According to the learned Senior Counsel, the Court below has not considered the various admissions made by the respondent as R.W.1.

The learned Senior Counsel submitted that when the respondent herself had admitted the enquiry conducted by the police, the Court below

has held that since the copy of the complaint has not been filed, the contention of the appellant cannot be accepted.

16. The learned Senior Counsel submitted in March 2002, divorce petition was filed and the petition was dismissed by order dated 21.8.2006

and on 24.11.2006, the above C.M.A. was filed. On 16.11.2006 the respondent lodged a criminal complaint against the appellant and his

family members for the alleged offences under Sections 498 A I.P.C. and Section 4 of the Dowry Prohibition Act. Apprehending the arrest and

harassment by the police, the appellant and his family members filed Crl.O.P.No.28946 of 2006 seeking anticipatory bail and by order, dated

22.11.2006 anticipatory bail was granted to them. As the appellant was being continuously harassed, he lodged a complaint on 10.1.2007 and

since no action was taken, the petition under Section 482 Cr.P.C was filed seeking for a direction.

17. Once again, since the respondent lodged a false complaint against the appellant and his family members, they had to file Crl.O.P.No.6384

of 2007 seeking anticipatory bail and the same was granted by order, dated 9.3.2007. In August 2009, once again, as the respondent filed a

police complaint, they had to file Crl.O.P.No.17792 of 2009 seeking anticipatory bail and the same was granted by this Court by order dated

25.8.2009.

18. The learned Senior Counsel submitted that in the bail order, dated 22.11.2006, the appellant and his family members were directed to

surrender before the concerned Court within 15 days from the date of the order and accordingly, they surrendered before the IX Metropolitan

Magistrate, Saidapet. When the appellant and his family members were granted anticipatory bail for the second time on 9.3.2007, the learned

Judge directed them to appear before the Inspector of Police of All Women Police Station, Adayar, Chennai daily at 10.00 a.m. for one week

and thereafter as and when required by the respondent police through summons. Again, when the respondent filed a complaint in 2009, the

appellant filed Crl.O.P.No. 17792 of 2009 and during the hearing, the learned Government Advocate (Crl.side) submitted that the petition

enquiry was pending against the appellant and considering the same, anticipatory bail was granted by order, dated 25.8.2009 with the

condition that the appellant shall report before the respondent police for a period of four weeks and thereafter, shall be available for

interrogation as and when required. The appellant had to surrender and execute the bond to get bail and he had complied with the conditions

imposed by the said order which has caused great mental agony and hardship to the appellant. The aforesaid lodging of police complaints by

the respondent was not once but thrice and that too after the dismissal of the divorce petition and during the pendency of the above appeal,

which will clearly show that the respondent had lodged police complaints just to harass the appellant and his family members with the

intention to cause mental cruelty.

19. According to the learned Senior Counsel, the aforesaid subsequent conduct of the respondent has to be taken into consideration by thisCourt and on that ground divorce has to be granted. Since false complaints had been lodged subsequent to the dismissal of the divorce

petition and during the pendency of the above appeal and during such period, since anticipatory bail orders were obtained, those documents

could not be filed. But according to the learned Senior Counsel, since the anticipatory bail orders passed by this Court are enclosed in the

typed set of papers this Court is entitled to take judicial notice of the same and grant the relief sought for by the appellant.

20. The learned Senior Counsel submitted that admittedly, when the appellant and the respondent are living separately for more than 10 years

and there is absolutely no possibility of reunion between them, no meaningful purpose will be served in keeping the matrimonial tie alive when

the marriage is practically dead. In this regard, the learned Senior Counsel based reliance on the decision of the Apex Court reported in

(2007) 4 SCC 511 (Samar Ghosh vs. Jaya Ghosh).

21. Countering the aforesaid submissions, the learned counsel for the respondent made the following submissions:-


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respondent wanted the house property at Adayar standing in the name of the appellant's mother to be transferred to her name; (2) the

respondent never showed any interest on her husband and his family members and she never cared for the personal needs of the appellant

and never attended to household affairs; (3) the respondent often left the matrimonial home and went to her parents house and the appellant

and the respondent had only lived together as husband and wife for 20 days only; and (4) the respondent filed false complaints against the

appellant and his family members and anticipatory bail orders have been obtained by the appellant on three occasions.

b. The learned counsel submitted that all the aforesaid grounds except the fourth one had been considered in a threadbare manner by the

Court below by referring to the relevant evidence on record and all the alleged acts of cruelty have been found to be not proved. The marriage

took place on 11.9.2000 and she was driven out the matrimonial home on 7.2.2001. All the allegations made in the petitions have been

specifically denied in the counter statement by the respondent.

c. The learned counsel submitted that in the cross examination of P.W.1, he had stated that 20 days after the marriage, the respondent's

mother demanded him to get the property transferred to his name, but the said evidence of P.W.1 falsifies the entire allegation that in the

petition as well as in the evidence of P.W.1 that immediately after four days of the respondent coming to the matrimonial home, she started

demanding the house property for being transferred to her name and therefore, the entire case of the appellant falls to the ground. The Court

below is right in coming to the conclusion that there was absolutely no demand by the respondent to transfer the house property standing in

the name of the appellant's mother to her name.

d. The learned counsel submitted that the Court below on a consideration of the evidence, has recorded a finding that there is no evidence to

prove the allegation that the respondent removed her Thali and threw it away on 7.2.2001. The learned counsel submitted that if really, the

respondent had removed her Mangalsutra and threw it away, the appellant could have examined other family members, but admittedly, the

other family members have not been examined and therefore, the finding of the Court below cannot be assailed.

e. The learned counsel further submitted that the respondent and her family members mediated with the appellant to take her back. The Court

below has pointed out that Mr.Saidai Duraisamy, Jaipal and Manokaran had acted only as mediators and they took steps for the reunion of the

appellant and the respondent and there was no threat to the appellant as alleged. The Court below has also pointed out that if any incident as

alleged by the appellant had taken place on 15.9.2001 in his office, he could have examined his colleagues and as such, the allegation that the

respondent abused the appellant in his office has not been proved.

f. The learned counsel submitted that the allegation of the appellant that on 10.3.2002, the respondent accompanied by her mother and one

relative went to the matrimonial home with goondas and took her belongings and created a galata in the locality has not been proved. If really,

any such incident had taken place on 10.3.2002, the appellant could have very well examined the neighbours but he had not examined any

one of the neighbours as pointed out by the Court below and the Court below has rightly found that such allegation has not been proved.

g. The learned counsel submitted that in the absence of the copy of the complaint said to have been lodged by the respondent it cannot be

heard to be contended by the appellant that false allegations have been made against him and his family members. The learned counsel

submitted that the Court below has rightly pointed out that the appellant had not cared for the welfare of the child and the appellant admitted in

his evidence that he had not spent a single pie for the child. The learned counsel submitted that the findings of the Court below are based on

evidence and as such, the same cannot be found fault with.

h. As far as the lodging of the complaints by the respondent against the appellant and his family members during the pendency of the above

appeal is concerned, the learned counsel submitted that in the absence of copy of the complaints before this Court, merely basing reliance on

the anticipatory bail orders obtained by the appellant, this Court cannot come to the conclusion that the lodging of the complaints and the

obtaining of anticipatory bail orders, will amount to mental cruelty.

i. The learned counsel submitted that the respondent alone is taking care of the female child, who is aged about 10 years and in the interest of

the child and when the respondent is willing to live with the appellant, divorce should not be granted.

22. We have considered the aforesaid submissions and perused the materials available on record.

23. As rightly contended by the learned counsel for the respondent, when it is the specific case of the appellant that 4 days after the

respondent came to the matrimonial home , she started demanding transfer of the house property standing in the name of the mother of the

appellant to her name, but to the contrary, he has deposed in his cross examination that 20 days after the marriage, the respondent's mother

asked him to get the house property standing in his mother's name transferred to the Appellant's name. This evidence of P.W.1 falsifies his

case that the respondent was pestering him to get the property transferred to her name and therefore, the finding of the Court below on this

aspect cannot be said to be erroneous.

24. Similarly, the allegation of the appellant that the respondent removed her Mangalsutra and threw it away has not been proved by

acceptable evidence. Regarding the removal of Mangalsutra, except the evidence of P.W.1, there is no other corroborative evidence and if

really, there had been such removal of Mangalsutra by the respondent, the other family members of the appellant would have witnessed it and

their non examination throws a doubt about the veracity of the said allegation and therefore, the Court below is right in coming to the

conclusion that no such incident could have occurred.

25. Similarly, the allegation of the appellant that on 15.9.2001, the respondent came to the company and created a scene by abusing the

a ellant has also not been roved b acce table evidence as ri htl ointed out b the Court below.


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26. Further, the case of the appellant that on 10.3.2002, the respondent accompanied by her mother and one relative came to his house and

the respondent's mother accompanied by goondas came to the matrimonial home and created a big galata and abused the appellant and his

family members has also not been proved by acceptable evidence. If really, the incident had occurred in front of the house of the appellant,

certainly neighbours would have witnessed the same and as such the non examination of any one of the neighbours shows that no such

incident had occurred as alleged by the appellant. No independent witness had been examined to prove the said incident. As rightly pointed

out by the Court below that no such incident had taken place in front of the house of the appellant, which finding is perfectly in order. But,

however, in our considered view, the Court below has not properly considered the case of the appellant that between 11.9.2000, namely the

date of marriage and 7.2.2001, namely, the date on which the respondent is said to have left the matrimonial home; the respondent had

admittedly been leaving the matrimonial home frequently and visiting her parents house on and off. While it is the case of the appellant that

they had lived as husband and wife hardly for 20 days, it is the case of the respondent that they had lived together for nearly two months. Butthe fact remains that after 7.2.2001 till date they had not lived together as husband and wife.

27. In the petition it has been specifically pleaded by the appellant that there was no demand for dowry from his side. It has also been

specifically stated in the petition that the respondent never showed any interest in attending the personal needs of the appellant and in

attending the household chores. It has also been stated in the petition that the respondent was asked by the appellant's sister to at least

attend the appellants daily needs but she refused the same by saying that she is not a servant maid. The said averments and allegations

have been reiterated in his chief examination by the appellant as P.W.1. P.W.1 has stated that he had never demanded any dowry. He has

also deposed that when the respondent was in the matrimonial home she never used to attend household chores and she told him that she

does not know cooking. But no suggestion whatsoever has been put to him on this aspect. P.W.1 has specifically stated that he had

requested the respondent to cook food for him so that he can take food. The respondent told him that she does not know cooking. On this

aspect also there is absolutely no cross examination or suggestion. He had also deposed that his personal needs were not attended to by the

respondent and on this aspect also, there is no cross examination.

28. P.W.1 has deposed that the averment in the counter statement to the effect that the respondent was harassed and forced to bring 50

sovereigns as dowry is false but no suggestion has been put to him on this aspect suggesting that the appellant and his mother and sister

harassed her and demanded her to bring Rs.50000/- from her parents. The only suggestion that has been made to P.W.1 is that the appellant

and his mother and sister harassed her and only because of that the respondent left the matrimonial home and this suggestion has been

denied by the appellant.

29. In this context, it is pertinent to point out that it is well established rule of evidence that a party should put to each of his opponent

witnesses so much of his case as concerns that particular witness and if no such questions are put, the Court presume that the witness

account has been accepted. If it is intended to suggest that a witness was not speaking the truth upon a particular point, his attention must

first be directed to the fact by cross examination so that he may have an opportunity of giving an explanation.

30. In the decision reported in 2011 (5) L.W. (Crl.) 347 (S. Hymavathy vs. S. Venkateswara Rao), the aforesaid legal principle has been laid

down in paragraph 48. Thus as pointed out above, the respondent has failed to make necessary suggestions to P.W.1 and his attention had

not been drawn to the allegations made by the respondent and no opportunity had been given to P.W.1 to give an explanation and therefore, it

would amount to accepting the case of the appellant. When the evidence of the appellant that the respondent failed to attend to his personal

needs and household chores and even failed to cook for him stand unrebutted then this Court has to come to the conclusion that as a wife

the respondent had failed to discharge her normal duties as a dutiful wife. Such conduct on the part of the respondent would have definitely

caused mental cruelty to the appellant.

31. It has to be pointed out that when P.W.1 has stated that no demand was made by him for dowry, no suggestion has been put to him

suggesting that he had demanded dowry. But on the other hand, the respondent in her counter statement as well as in her evidence has

stated as if the appellant and his family members demanded gold jewellery and Rs.50000/- Therefore, this part of the case of the respondent

cannot be accepted.

32. Further, it has to be pointed out that in her evidence R.W.1/respondent had deposed that even before the marriage the appellant and his

family members demanded Rs.50000/- in cash and 35 sovereigns of gold jewellery and her parents promised to give Rs.50000/- after the

marriage. At the time of the ceremony of changing the Mangalsutra, the mother of the appellant demanded Rs.50000/-. In her chiefexamination, she had admitted that she urged the appellant to set up a separate house. In the chief examination itself, she has deposed that

her husband is a good person. She has also deposed that the appellant had not come to see the child. But in her cross examination, she has

stated that her husband had come to see the child. She has also stated that every day her husband used to come and see her child and he

had also bought all the necessary things for the child. Thus it is seen that R.W.1's evidence is mutually contradictory. I t is also pertinent to

point out that while she had admitted in her evidence that a complaint was lodged by her against her husband on 10.3.2002, she had deposed

that she does not remember the allegations made against her husband in the complaint. Further, she had stated that she does not remember

whether she had made allegations of dowry demand against her husband in the said complaint. The evidence of R.W.1 shows that she was

evasive. She had not specifically denied in her evidence that she had not made any allegation of dowry demand against her husband in her

complaint dated 10.3.2002. The appellant had summoned P.Ws.2 and 3, who are the Sub Inspector of Police and Inspector of Police

respectively and P.W.2 in her evidence had stated that the respondent had given a complaint on 10.3.2002 and it was registered in the CSR

Register as Serial Number 208. P.W.2 has deposed that the complaint given by the respondent could not be traced. P.W.3 was the Sub

Inspector of Police of All Women Police Station, Adayar, when the respondent lodged a complaint on 10.3.2002. She has also deposed that


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on the basis of the said complaint of the respondent both the appellant and the respondent were enquired. She has also deposed that she

does not know that the records relating to CSR No.208 of 2002 have been lost or not. The xerox copy of the petition register has been marked

as Ex.X2. Since the complainant, namely, the respondent did not want to live with the appellant, they got separated and both of them stated

that they could solve the problem before the Family Court and the complaint was withdrawn. Thus the fact remains that the respondent had

lodged a complaint against the appellant and an enquiry was conducted, but yet the respondent in her evidence as stated above, has feigned

ignorance about the contents of the complaint and she has not specifically deposed that she had not made any allegations of dowry demand

against the appellant. Thus, it is clear that the respondent has made the allegations of dowry demand against the appellant and his family

members. The allegations both in the counter statement and in her evidence and in the complaint dated 10.3.2002 lodged by her before the All

Women Police Station, Adayar, stand unsubstantiated. Making false allegations against the appellant and his family members and making the

appellant to go to the police station, definitely will amount to causing mental cruelty to the appellant. But this aspect has not at all been

considered by the Court below.

33. Further, as contended by the learned Senior Counsel for the appellant, the divorce petition was filed in March 2002 and the same was

dismissed by the Family Court on 21.8.2006 and the above appeal was filed on 24.11.2006. After the dismissal of the divorce petition, on

16.11.2006 the respondent had lodged a criminal complaint against the appellant and her mother and sister before the Inspector of Police, J-2

All Women Police Station, Adayar, Chennai. Apprehending arrest, they had filed Crl.O.P.No.28946 of 2006 seeking anticipatory bail and by

order, dated 22.11.2006 anticipatory bail was granted to them. In that anticipatory bail order, the appellant and his family members were

directed to surrender before the concerned Court within 15 days from the date of receipt of a copy of that order and accordingly, they

surrendered before the IX Metropolitan Magistrate, Saidapet, as seen from the intimation, dated 19.12.2006 sent by the court to the Inspector

of Police, J-2 All Women Police Station, which is enclosed in the typed set of papers at page 117.

34. Again, the respondent lodged another complaint before the very same Police Station in 2007 and the appellant, his sister and mother had

filed Crl.O.P.No.6384 of 2007 seeking anticipatory bail and by order, dated 9.3.2007, this Court has granted anticipatory bail to them with the

condition that the appellant shall appear before the respondent police daily at 10.00 a.m. for one week and thereafter, as and when required by

the respondent police through summons and the sister and mother of the appellant were directed to appear before the respondent as and

when required. In the very same order, they were also directed to execute the bond and furnish two surities within two weeks from the date of

receipt of a copy of that order and the said order had also been complied with.

35. Once again, in the year 2009, the respondent had again given a complaint before the very same police station against the appellant for the

alleged offences under Sections 494, 496 and 506(ii) I.P.C. Apprehending the arrest, the appellant had filed Crl.O.P.No.17792 of 2009 before

this Court and anticipatory bail had been granted by order, dated 25.8.2009 with the condition that the appellant shall report before the

respondent police for a period of four weeks and thereafter shall be available for interrogation as and when required.

36. Thus, it is seen that the respondent had been repeatedly lodging the complaints against the appellant and his family members with an

intention to harass them and the appellant and his family members were not allowed to live in peace even after the filing of the divorce petition

and its dismissal and also during the pendency of the above appeal. In the first two complaints lodged in 2006 and 2007 the allegation of

dowry demand has been made as seen from the anticipatory bail orders. It is contended by the learned counsel for the respondent that in the

absence of copy of the complaints lodged by the respondent, and without considering the nature of the allegations made against the appellantand his family members, this Court cannot act on the basis of the three anticipatory bail orders produced in the typed set of papers, but we

are unable to countenance the aforesaid submissions made by the learned counsel for the respondent. It is well settled that even subsequent

events can be taken into consideration for granting relief sought for by the petitioner in the O.P. In this case, as pointed out above, three

complaints have been lodged by the respondent during 2006 and 2007 and that too after the disposal of the above O.P. When admittedly, the

appellant and the respondent are living separately right from March 2001, there would not have been any occasion or chance for the appellant

and his family members to harass the respondent demanding dowry.

37. It is true that the copy of the complaints filed by the respondent are not available before this Court, but it is well settled that this Court can

take judicial notice of the orders passed by this Court. The genuineness of the copy of the order of this Court filed by the appellant in the typed

set of papers is not challenged by the respondent and in fact they cannot even if they want. Since the aforesaid three anticipatory bail orders

had been obtained after the dismissal of the divorce petition, it cannot be expected to be produced before the Family Court.

38. As pointed out above, the appellant and his family members had to abide by the conditions imposed on them while getting anticipatory bail

orders on the aforesaid three occasions and they had to appear before the respondent or the court concerned. Such surrender before the

court and appearance before the respondent and the court concerned would definitely have caused great mental agony and embarrassment

to the appellant and his family members. Therefore, we are of the considered view that the aforesaid act of the respondent in lodging false

complaints with unsubstantiated allegations of dowry demand will amount to mental cruelty.

39. As has been laid down in a catena of decisions of the Apex Court 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


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non violent.

40. 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. All quarrels must be weighed from the point of view in determining what constitutes cruelty in each

particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social

status. A too technical and hypersensitive approach would be counter productive to the institution of marriage.

41. If the facts of this case and the findings recorded by us as above are considered in the backdrop of the aforesaid legal principles, the act

of the respondent in making false allegations against the appellant and his family members, which are unsubstantiated and the act of the

respondent in lodging the complaint after complaint against the appellant and his family members and forcing them to approach this Court

seeking anticipatory bail and as a result they had to comply with the onerous conditions imposed by this Court would definitely amount to

"mental cruelty". If really, the respondent was or is really interested in living with the appellant as claimed by her, she would not have acted as

above and definitely she would not have lodged three complaints even after the dismissal of the divorce petition and during the pendency of

the above appeal. Therefore, the aforesaid acts of the respondent clearly establishes the hollowness of her claim that she wants to live with

the appellant.

42. In this case, admittedly, the appellant and the respondent are living separately from March 2001 upto date, i.e. for nearly 11 years.

Therefore, as has been laid down by the Apex Court in the decision reported in (2006) 4 SCC 558 (Naveen Kohli vs. Neelu Kohli), once the

parties are separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it

can well be presumed that the marriage has broken down. 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 interest of the parties.

43. At this juncture, it has to be pointed out that when the above appeal came up for hearing before the earlier Bench, namely, before K.M.J.,

and G.M.A.J., we made several attempts to bring about a reunion between the appellant and the respondent, but our attempt failed. When theappeal was argued before the present Bench, we wanted to know whether there is any possibility for reunion. But the learned Senior Counsel

for the appellant after getting instructions from his client submitted that there is absolutely no possibility for reunion. But when we enquired the

respondent she stated that she wants to live with the appellant and even expressed her hope that she will join with her husband one day or

the other.

44. Undoubtedly, it is the obligation of the court and all concerned that the marriage status should, as far as possible, as long as possible and

whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied

forever to a marriage which in fact has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the

marriage. Preservation of such a marriage is totally unworkable which has ceased to be effective and would be greater source of misery for

the parties, not to grant a decree of divorce would be disastrous for the parties. Otherwise, there may be a ray of hope for the parties that

after a passage of time (after obtaining a decree for divorce) the parties may psychologically and emotionally settle down and start a new

chapter in life.

45. Further, in the decision of the Apex Court reported in (2207) 4 SCC 511 (Samar Ghosh vs. Jaya Ghosh), the Full Bench of the Apex Court

has enumerated some instances of human behaviour which may be relevant in dealing with the cases of mental cruelty. The following two

instances enumerated therein are very much relevant for deciding the case on hand.

46. It has been laid down that 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 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.

47. Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The

marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of

marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental

cruelty.

48. The aforesaid law laid down in the said decision squarely applies to the facts of this case. Therefore, we are of the considered view that

when the appellant and the respondent are not living together for well over a period of 11 years and the matrimonial bond is beyond repair, the

marriage becomes a fiction though supported by a legal tie and therefore, we are of the considered view that this is a fit case, where the

Court below ought to have granted a decree for divorce and therefore, we are constrained to set aside the order and the decretal order, dated

21.8.2006 passed in O.P.No.494 of 2002 on the file of the II Additional Family Court, Chennai.

49. For the aforesaid reasons, the above appeal is allowed by granting a decree for divorce dissolving the marriage between the appellant and

the respondent that took place on 11.9.2000. However, there will be no order as to costs. Connected M.Ps are closed. CDJLawJournal

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R. Raghunadhan vs Revathi (10.05.2012)