(Prayer: Civil Miscellaneous Appeal filed under Section 19 of Family Courts Act, 1984, set aside the Judgment and decree dated 24.06.2015 passed in H.M.O.P.No.636 of 2011, on the file of the learned Judge, Family Court, Madurai.)
M.D. Sumathi, J.
1. This Civil Miscellaneous Appeal has been preferred by the appellant/husband challenging the Judgment and Decree dated 24.06.2015 passed in H.M.O.P.No.636 of 2011 by the Family Court, Madurai, whereby his petition under Sections 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act, 1955, seeking dissolution of marriage on the grounds of cruelty and desertion, was dismissed.
2. For the sake of convenience, the parties are referred to as the appellant/husband and respondent/wife.
3. We have heard the learned counsel appearing for the appellant/husband and the learned counsel appearing for the respondent/wife and perused the materials available on record.
4. The marriage between the parties was solemnized on 14.02.2000 at Arulmigu Mariamman Thirukovil Marriage Hall, Police Reserve Line, Madurai. They are closely related, the respondent being the daughter of the elder sister of the appellant’s father. On the same day, the appellant’s sister Lalitha Subhanam married the respondent’s brother Annamalai and thus two marriages took place between the families. The marriage was arranged by the respective families and the appellant expected a peaceful matrimonial life. He states that his family substantially bore the marriage expenses.
5. According to the appellant/husband, matrimonial discord commenced immediately after marriage. On 15.02.2000, the respondent/wife allegedly questioned his sexual capacity, called him impotent and unfit for matrimonial life, and repeatedly made such allegations openly, causing him humiliation and mental agony. He further alleged that, when he visited the respondent’s parental house at Karaikudi, her family members compelled him to take tablets allegedly intended to stimulate sexual activity. He objected and returned to Madurai, but later visited again with his sister, when the respondent/wife and her family allegedly repeated the allegations regarding his potency and her brothers attacked him and his sister during a quarrel.
6. The elders thereafter intervened and attempted reconciliation. According to the appellant, the respondent/wife and her family admitted their mistake and sought forgiveness. As allegations regarding his physical capacity had been made, he underwent medical examination and was declared physically normal. Thereafter, the parties resumed matrimonial life. A male child was born on 29.03.2001. The respondent/wife expressed her desire to pursue B.Ed., degree0 at Alagappa University, Karaikudi, and the appellant/husband consented to her staying at her parental home for the course, stating that he regularly visited her.
7. The appellant/husband alleged that during this period the respondent/wife instigated her brother Annamalai against his sister, resulting in matrimonial difficulties between them. He also referred to the naming ceremony of the child and alleged disrespectful conduct by the respondent/wife and her family towards him and his family, which he tolerated in the hope of preserving the marriage. He relied upon a letter allegedly written by Annamalai to his elder brother, which according to him disclosed the strained relationship between Annamalai and his sister and also reflected upon the respondent’s conduct.
8. After the death of his mother on 10.11.2002, family elders again attempted reconciliation. The appellant/husband alleged that the respondent/wife refused to apologise and stated that she would rather live separately. He further alleged that the respondent/wife and her family came to his office and created a scene by accusing him of neglecting her and being impotent. The appellant/husband also alleged that she made similar allegations to a television channel, whose representative thereafter approached him.
9. The respondent/wife and her family allegedly lodged a complaint before the All-Women Police Station, Tallakulam, Madurai, in November 2003. According to the appellant/husband, the allegations were found false during enquiry and the respondent/wife was advised accordingly. He further alleged that thereafter the respondent/wife and her brother quarrelled with and assaulted him.
10. Despite these incidents, the appellant/husband states that he continued efforts for reunion. He issued a legal notice dated 30.06.2004 calling upon the respondent to resume matrimonial life. She sent a reply containing allegations against him and his family. Another notice dated 15.06.2005 followed, to which she sent a lengthy reply, and the appellant/husband issued a rejoinder dated 11.12.2005.
11. As the respondent/wife did not return, the appellant/husband earlier instituted H.M.O.P.No.118 of 2006 seeking dissolution of marriage. During the proceedings, counselling was conducted and the Court and elders advised the parties to resume matrimonial life. Pursuant thereto, the respondent/wife returned to the matrimonial home in May 2008. The appellant/husband admits that the parties thereafter lived together and that their matrimonial life was harmonious for some period, during which a female child was born.
12. The appellant/husband nevertheless alleged that after reunion the respondent/wife again changed her attitude, quarrelled with him and his family and repeatedly threatened suicide whenever her demands were not accepted. He alleged that she threatened to consume tablets, hang herself and open the gas cylinder and set herself on fire, and on certain occasions actually consumed tablets and attempted suicide, requiring his intervention. He further alleged that she used filthy and unparliamentary language, quarrelled over petty matters, created scenes in the presence of neighbours, damaged his reputation and kept him under constant fear.
13. With regard to the housewarming ceremony of the respondent’s brother at Karaikudi on 31.08.2011, the appellant/husband alleged that a dispute arose, the respondent/wife quarrelled and thereafter left the matrimonial home. According to him, she started living separately from September 2011. He therefore relied upon the earlier separation from July 2001 to May 2008 as well as the subsequent separation from September 2011.
14. The respondent/wife admitted the marriage, relationship between the parties and simultaneous marriage between the two families, but denied cruelty and desertion. According to her, the appellant/husband and his family were aware of the matrimonial difficulties from the beginning and the appellant/husband himself had a physical problem at the initial stage of marriage, voluntarily agreed to consult a doctor, and thereafter suppressed the true facts and made false allegations against her.
15. She denied treating the appellant/husband with cruelty and alleged that the appellant/husband and his family subjected her to harassment, particularly through the interference of his father and sister. She alleged that the appellant’s father insisted upon an apology from her and her family and that the appellant/husband and his family continued to rely upon the earlier matrimonial incidents even after reunion.
16. The respondent/wife specifically relied upon H.M.O.P.No. 118 of 2006, stating that the parties were counselled and advised to forget the past and resume matrimonial life and accordingly reunited in 2008. She alleged that even after reunion the appellant’s father and sister interfered in her matrimonial life and treated her cruelly, while the appellant acted under their influence. She further alleged that the appellant/husband compelled her to surrender her salary and subjected her to unnecessary quarrels. She was working as a teacher and the appellant, while employed at Karur, used to visit the matrimonial home periodically.
17. The respondent/wife further alleged that the appellant’s conduct caused difficulties during her pregnancy, that one pregnancy was terminated and that subsequently a female child was born through caesarean delivery.
18. Regarding the housewarming ceremony dated 31.08.2011, she gave a different version, stating that the appellant’s sister left the function without informing her husband and did not attend the ceremony. She alleged that the appellant/husband brought her to the function but subsequently left her there and returned to Madurai with his sister. According to her, she thereafter returned to the matrimonial residence, but the appellant/husband left during the night at the instance of his father and sister. She therefore contended that the appellant/husband and his family were responsible for the deterioration of the relationship.
19. She further stated that the complaint lodged before the All Women Police Station was necessitated by the conduct of the appellant’s family and was made in the matrimonial context, not with an intention to cause cruelty. She disputed reliance on Annamalai’s letter and contended that it was being used by the appellant/husband and his family as a weapon against her. Ultimately, she asserted that she had repeatedly attempted to preserve the marriage and was willing to resume matrimonial life for the welfare of the children and sought dismissal of the divorce petition.
20. Before the Family Court, the appellant/husband examined himself as P.W.1, his father as P.W.2 and an independent witness as P.W. 3 and marked Exs.P1 to P9. The respondent/wife examined herself as R.W.1 and marked Ex.R1.
21. After considering the oral and documentary evidence, the Family Court found that there was matrimonial discord, but held that the appellant had not established cruelty under Section 13(1)(i-a). It attached significance to the earlier H.M.O.P.No.118 of 2006, the counselling and the admitted reunion in May 2008, followed by subsequent cohabitation and birth of a female child. It held that the appellant/husband, having consciously resumed matrimonial life after the earlier disputes, could not rely upon the same incidents as a continuing course of cruelty without establishing fresh acts after reunion. The alleged threats of suicide and other post-reunion acts were not proved by sufficient and convincing evidence.
22. The Family Court found that P.W.3 was not a direct witness to the material matrimonial incidents. P.W.2, being the appellant’s father and having been involved in the disputes between the families, was considered with reference to his relationship and personal involvement. The letter relied upon by the appellant/husband was not addressed to him or his father and did not by itself establish the specific acts of cruelty. The matrimonial difficulties between the appellant’s sister and respondent’s brother could not themselves establish cruelty by the respondent/wife. Likewise, mere lodging of the police complaint was not treated as cruelty, particularly when the respondent had explained the circumstances in which it was lodged.
23. As regards desertion, the Family Court found that the earlier separation had ended with the reunion in May 2008. The parties thereafter lived together and a female child was born. The earlier period therefore could not be combined with the subsequent separation. Since, according to the appellant/husband, the respondent/wife left only in September 2011 and H.M.O.P.No.636 of 2011 was presented in 2011, the subsequent separation had not completed the mandatory period of two years immediately preceding presentation of the petition. Accordingly, the petition under Sections 13(1)(i-a) and 13(1)(i-b) was dismissed.
24. Aggrieved by the said Judgment and Decree, the appellant/husband has preferred the present appeal, principally contending that the Family Court failed to properly appreciate the oral and documentary evidence adduced by him.
25. In the present appeal, the appellant/husband contends that the Family Court failed to properly appreciate the oral and documentary evidence, particularly, the allegations regarding questioning of his potency, humiliation, suicide threats, abusive language and scenes before neighbours. He contends that greater weight ought to have been given to the evidence of P.Ws.1 and 2, the documents, the alleged apology and Annamalai’s letter, and that the reunion in May 2008 ought not to have been treated as completely wiping out the earlier acts of cruelty. He further contends that the post-reunion acts constituted fresh and independent cruelty and their cumulative effect was not appreciated. Regarding desertion, he contends that the respondent lived separately for substantial periods and her conduct demonstrated an intention to bring the matrimonial relationship to an end.
26. The following points arise for consideration:
(i) Whether the appellant/husband established cruelty under Section 13(1)(i-a) of the Hindu Marriage Act?
(ii) Whether the appellant/husband established the statutory ingredients of desertion under Section 13(1)(i-b)?
(iii) Whether the Judgment and Decree dated 24.06.2015 in H.M.O.P.No.636 of 2011 is sustainable?
27. Cruelty under Section 13(1)(i-a) is not defined in the Hindu Marriage Act. In Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, the Supreme Court held that there can be no straitjacket formula for mental cruelty and that the entire matrimonial relationship, nature of the relationship, general behaviour and peculiar facts and circumstances must be considered, including the cumulative effect of the conduct. Mere disputes, quarrels or allegations and counter-allegations do not automatically establish legal cruelty.
28. In the present case, the appellant/husband relies upon several incidents occurring immediately after marriage. However, the admitted subsequent event of considerable significance is the reunion in May 2008. The appellant/husband himself instituted H.M.O.P.No.118 of 2006, participated in counselling, agreed to resume matrimonial life and thereafter lived with the respondent/wife. The parties did not merely cohabit for a few days; they lived together after May 2008 and a female child was born during the subsequent cohabitation.
29. The principle of condonation is therefore relevant. Condonation does not necessarily erase every past incident irrespective of subsequent conduct, but where parties knowingly resume matrimonial life after alleged acts and continue cohabitation, the Court may examine whether the earlier acts stood condoned and whether fresh misconduct was subsequently established. Thus, the present case must substantially rest upon the alleged acts after reunion.
30. In Dr.N.G. Dastane v. Mrs.S. Dastane, (1975) 2 SCC 326, the Supreme Court explained that condonation involves forgiveness and restoration. It further held that normal matrimonial cohabitation after acts of cruelty may establish condonation, while subsequent conduct must be examined to determine whether the cruelty has revived. The Hon'ble Apex Court also observed that condonation is conditional forgiveness and that subsequent conduct of the parties must be considered.
“56. Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things : forgiveness and restoration. The Law and Practice of Divorce and Matrimonial Causes by D. Tolstoy Sixth Ed., p. 75. The evidence of condonation in this case is, in our opinion, as strong and satisfactory as the evidence of cruelty. But that evidence does not D consist in the mere fact that the spouses continued to share a common home during or for some time after the spell of cruelty. Cruelty, generally, does not consist of a single, isolated act but consists in most cases of a series of acts spread over a period of time. Law does not require that at the first appearance of accrual act, the other spouse must leave the matrimonial home lest the continued co-habitation be construed as condonation. Such a construction will hinder reconciliation and there- E by frustrate the benign purpose of marriage laws.
57. The evidence of condonation consists here in the fact that the spouses led a normal sexual life despite the respondent's -acts of cruelty. This is not a case where the spouses, after separation, indulged in a stray act of sexual intercourse, in which case the necessary intent to forgive and restore may be said to be lacking. Such stray acts may bear more than F one explanation. But if during co-habitation the spouses, uninfluenced by the conduct of the offending spouse, lead a life of intimacy which characterises normal matrimonial relationship, the intent to forgive and restore the offending spouse to the original status may reasonably be inferred. There is then no scope for imagining that the conception of the child could be the result of a single act of sexual intercourse and that such an act could be a stark animal act unaccompanied by the nobler graces of marital life. One might then as well magine that the sexual act was undertaken just in order to kill boredom or even in a spirit of revenge. Such speculation is impermissible. Sex" plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfilment. Therefore, evidence showing that the spouses led a normal sexual life even after a series of acts of cruelty by one spouse is proof that the other spouse condoned that cruelty. Intercourse, of course, is not a necessary ingredient of condonation because there may be evidence otherwise to show that the offending spouse has been forgiven and has been received back into the position previously occupied in the home. But intercourse in circumstances as obtain here would raise a strong inference of condonation with its dual requirement, forgiveness and restoration. That inference stands unconaadicied, the appellant not having explained the circumstances in which he came to lead and live a normal sexual life with the respondent, even after a series of acts of cruelty on her part
73. It is true that the more serious the original offence, the less grave need be the subsequent acts to constitute a revival Cooper v. Cooper (1950) W.N. 200 (H.L.) and in cases of cruelty, "very slight fresh evidence is needed to show a resumption of the cruelty, for cruelty of character is bound to show itself in conduct and behavior, day in and day out, night in and night out". But the conduct of the respondent after condonation cannot be viewed apart from the conduct of the appellant after condonation. Condonation is conditional forgiveness but the grant of such forgiveness does not give to the condoning spouse a charter to malign the other spouse. If this were so, the condoned spouse would be required mutely to submit to the cruelty of the other spouse without relief or remedy. The respondent ought not to have described the appellant's parents as "wicked" but that perhaps is the only allegation in the letter Ex. 318 to which exception may be taken. We find ourselves unable to rely on that solitary circumstance to allow the revival of condoned cruelty.
74. We therefore hold that the respondent was guilty of cruelty but the appellant condoned it and the subsequent conduct of the respondent is not such as to amount to a revival of the original cause of action. Accordingly, we dismiss the appeal and direct the appellant to pay the costs of the respondent”.
31. In the present case, the appellant/husband alleges repeated threats by the respondent/wife to commit suicide by consuming tablets, hanging herself and opening the gas cylinder and setting herself on fire. If deliberate, repeated and proved, such conduct could constitute serious matrimonial cruelty. However, the issue is whether the allegations were established by acceptable evidence. The Family Court found that they were not proved to the requisite degree, and on reappraisal there is no sufficient ground to hold that such finding is perverse.
32. P.W.3 was not a direct witness to the material incidents inside the matrimonial home and therefore her evidence cannot constitute substantive proof of incidents to which he was not a witness. P.W.2’s evidence is relevant to matters within his personal knowledge, but his relationship with the appellant/husband and involvement in the disputes are circumstances relevant to the weight of his evidence. His evidence cannot automatically corroborate every allegation of P.W.1, particularly, when the alleged incidents occurred inside the matrimonial home.
33. The alleged apology letter and Ex.P9 may establish the existence of earlier matrimonial disputes or provide background regarding the strained relationship between the families, but the subsequent reunion remains material. Ex.P9 was not addressed to the appellant and cannot constitute direct evidence of every allegation. Similarly, the dispute between the respondent’s brother and the appellant’s sister concerns another matrimonial relationship and cannot by itself establish cruelty by the respondent against the appellant/husband.
34. The mere lodging of the complaint before the All-Women Police Station cannot itself constitute cruelty. The circumstances and contents of the complaint must be examined. The respondent/wife has explained that it was lodged in the context of the matrimonial dispute, and the appellant/husband has not established by cogent evidence that it was deliberately and falsely made solely to humiliate or harass him.
35. The housewarming incident dated 31.08.2011 also has mutually contradictory versions. In the absence of reliable independent evidence establishing the appellant’s version, divorce cannot be granted merely because his version is pleaded more strongly. The respondent’s counter-allegations also demonstrate the mutual discord and family interference, though the Court need not independently determine every such allegation since the respondent has not sought divorce.
36. In Gurbux Singh v. Harminder Kaur, (2010) 14 SCC 301, the Supreme Court observed that married life must be assessed as a whole and isolated instances, trivial irritations, quarrels and normal wear and tear of married life are not by themselves sufficient to constitute cruelty.
“12) The married life should be assessed as a whole and a few isolated instances over certain period will not amount to cruelty. The ill-conduct must be precedent for a fairly lengthy period where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, one party finds it extremely difficult to live with the other party no longer may amount to mental cruelty.
Making certain statements on the spur of the moment and expressing certain displeasure about the behaviour of elders may not be characterized as cruelty. Mere trivial irritations, quarrels, normal wear and tear of married life which happens in day to day life in all families would not be adequate for grant of divorce on the ground of cruelty”.
37. On cumulative consideration, the appellant has established matrimonial discord, quarrels, disputes between the families and periods of separation, but has not established that the respondent’s conduct, particularly after the 2008 reunion, was proved with sufficient evidence to constitute cruelty under Section 13(1)(i-a).
38. The appellant/husband also seeks divorce under Section 13(1)(i-b) on desertion. The provision requires desertion for a continuous period of not less than two years immediately preceding presentation of the petition. Physical separation alone is insufficient; the statutory period must be continuous and immediately precede presentation, together with the requisite intention to bring the matrimonial relationship to an end.
39. The appellant/husband relies upon the earlier separation from July 2001 to May 2008. That period ended with the admitted reunion and subsequent cohabitation, during which a female child was born. The earlier separation therefore cannot be artificially combined with the later separation. According to the appellant/husband himself, the respondent/wife left only after the incident dated 31.08.2011 and lived separately from September 2011. Since H.M.O.P.No.636 of 2011 was instituted in 2011, the subsequent separation had not continued for two years immediately preceding presentation of the petition.
40. Further, the respondent/wife contends that she did not voluntarily abandon the matrimonial relationship but was compelled to live separately owing to the conduct of the appellant/husband and his family. The appellant/husband has therefore failed to establish the statutory ingredients of desertion.
41. The Family Court considered the pleadings, oral evidence of P.Ws.1 to 3 and R.W.1 and documentary evidence. It specifically considered the admitted reunion in May 2008, subsequent birth of the female child, earlier incidents and documents, the letter not being addressed to the appellant/husband or his father, the evidence of P.W.3 who was not a direct witness, and the fact that the earlier separation ended with reunion while the subsequent separation from September 2011 had not completed two years.
42. On reappreciation, the findings of the Family Court are based upon the evidence and cannot be characterised as perverse. The appellant/husband has not demonstrated any material misreading of evidence, exclusion of relevant evidence or reliance upon inadmissible material warranting interference.
43. The seriousness of an allegation cannot substitute proof. Though matrimonial proceedings are governed by preponderance of probabilities, the Court must still assess reliability, consistency and surrounding circumstances. A strained matrimonial relationship is not synonymous with legally established cruelty. Likewise, separate periods of separation interrupted by resumed cohabitation cannot satisfy Section 13(1)(i-b).
44. The material facts are that the parties married on 14.02.2000; serious disputes arose initially; H.M.O.P.No.118 of 2006 was instituted; counselling and intervention took place; the parties consciously resumed matrimonial life in May 2008; they thereafter cohabited and a female child was born; the appellant/husband relies upon alleged post-reunion acts of cruelty; those acts were not established by sufficiently cogent evidence; the earlier separation ended by reunion; the subsequent separation commenced only in September 2011; and the present petition was instituted in 2011 before completion of the statutory two-year period.
45. In Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, the Supreme Court reiterated that mental cruelty must be determined from the entire matrimonial relationship and cumulative circumstances rather than by a rigid formula. Applying that principle, the appellant/husband has not established cruelty under Section 13(1)(i-a) or continuous desertion for two years immediately preceding presentation of the petition under Section 13(1)(i-b).
46. The earlier allegations cannot be treated as continuing acts of cruelty in disregard of the admitted reconciliation and resumption of matrimonial life. The subsequent allegations must stand on their own evidentiary foundation, which has not been established sufficiently for granting divorce.
47. In Nidhi Jain v. Ankit Jain, 2023:DHC:5211-DB, it was held that where a new petition is based on the same cause of action, its institution is barred under Order XXIII Rule 1(4) CPC and also on the principles of issue estoppel and cause of action estoppel.
“42. In view of the above, it is evident that the new petition is based on the same cause of action and, therefore, its institution is barred under Order XXIII Rule 1(4) CPC as also on the principles of issue estoppel and cause of action estoppel.”
48. In the instant case, the appellant/husband forgave and restored the respondent/wife to the position she occupied before the alleged matrimonial offences. The parties thereafter led normal matrimonial life and a child was conceived during such cohabitation. It is not the appellant’s case that such conception resulted from forced or nonconsensual intercourse. These circumstances are relevant in determining condonation and whether any subsequent conduct constituted revival of the earlier cruelty. Accordingly, the points for consideration are answered against the appellant/husband.
49. In the result, this Civil Miscellaneous Appeal is dismissed. The Judgment and Decree dated 24.06.2015 passed in H.M.O.P.No.636 of 2011 on the file of the Family Court, Madurai, are hereby confirmed. No Costs. Consequently, connected miscellaneous petition is closed.
