(Prayer: Civil Miscellaneous Appeal filed under Section 55 of Indian Divorce Act, 1869, to call for the records and set aside the Fair and Executable order in I.D.O.P.No.32 of 2015 dated 13.09.2019 passed by the learned Family Court Judge, Madurai.)

L. Victoria Gowri, J.

1. This Civil Miscellaneous Appeal is directed against the judgment and decree passed by the learned Judge, Family Court, Madurai, in I.D.O.P. No.32 of 2015 dated 13.09.2019 , whereby the petition filed by the appellant / husband under Section 10(1)(x) of the Indian Divorce Act, 1869, seeking dissolution of marriage on the ground of cruelty and non-consummation, was dismissed.

2. For the sake of convenience, the parties are referred to as “husband” and “wife” in this judgment.

Facts in Brief:

3. The marriage between the husband and the wife was solemnised on 02.10.2014 as per Christian rites and customs at the Church of the Divine Patience, Railway Colony, Madurai - 16. The marital home was in the joint family house of the husband’s parents.

4. According to the husband, the “first night” took place in the residence of the wife. It is his case that, on the very first night, he came to know that the wife was allegedly suffering from multiple diseases, namely, severe tooth decay causing foul smell, and certain skin ailments. He would allege that, due to these ailments and because the wife was not interested in sexual life, he was unable to commence or consummate the marital relationship.

5. The husband would further contend that he subsequently came to know that the wife was around 41 years of age, while he was only 39 years old at the time of marriage, and that such age disparity and the alleged ailments were concealed from him prior to the marriage. He claimed that he took the wife to a dentist and to doctors for treatment, but the ailments were allegedly incurable. He asserts that, despite his desire to cure her and start a normal marital life, she was non-cooperative, remained disinterested in conjugal life, and insisted that they should live separately from his aged parents.

6. It is the further case of the husband that he was employed as a teacher in a private school with only a meagre income, and was thus unable or unwilling to set up a separate residence, particularly when his aged parents were around 70 years and suffering from sickness. He alleged that the wife was unwilling to do household work, did not know to cook and frequently quarrelled with him on petty matters, disturbed his school work by throwing away note books given for correction and behaved like a psychiatric patient.

7. According to him, by the end of November 2014, the wife left the matrimonial home and went to her parental house. Efforts at conciliation were allegedly undertaken by elders and the Church pastors. On 12.01.2015, pursuant to a compromise mediated by Church Pastors, the husband agreed to take the wife back and she re entered the matrimonial home on 31.01.2015.

8. The husband would allege that, even thereafter, the wife continued her cruel behaviour by not allowing him to take food peacefully, damaging his school note books and torturing his parents. He also alleges that the wife’s mother and brother came to the matrimonial home and shouted at him and his parents based on false allegations. In March 2015, the wife is said to have taken all her belongings and left the matrimonial home on her own accord and went back to her parental house.

9. The husband thereafter received a call from the All Women Police Station (AWPS), Madurai Town, informing him that a complaint had been lodged by the wife, and he was directed to appear for enquiry. According to him, having no other option, he filed the petition in I.D.O.P. No.32 of 2015, seeking dissolution of marriage on the ground of cruelty and non-consummation.

Case of the Wife before the learned Family Court:

10. The wife, in her counter, denied all allegations of disease, disinterest in sexual life, and cruelty. She admitted the factum of marriage, but asserted that it was her parents who incurred substantial marriage expenses of about Rs.6,00,000/- for the marriage and another Rs.3,00,000/- towards household articles, in addition to 30 sovereigns of gold jewels for her and 4 sovereigns for the husband.

11. According to the wife, the petitioner’s side demanded a wooden cot worth Rs.70,000/-, which was agreed to by her parents. Subsequently, they allegedly changed the demand and sought four additional sovereigns of gold, which were also given. It is her case that, four days prior to marriage, the husband’s family demanded a two wheeler and threatened to stop the marriage if the demand was not complied with. Her parents allegedly paid Rs.30,000/- as part payment for the two-wheeler.

12. The wife contended that, immediately after marriage, for two days they lived peacefully. Thereafter, since the full balance amount towards the two-wheeler and other Stridhana demands were not promptly met, her in-laws started ill-treating her and refused to send the husband to live with her in the room. Her mother-in-law allegedly insisted that all demands must be satisfied if the husband and wife were to live together. In order to justify their conduct and escape from their liability, the husband and his family, according to the wife, started falsely alleging that she was suffering from various diseases.

13. On the insistence of the in-laws, the wife states that she was compelled to obtain medical certificates from a dentist and a skin specialist and that her parents spent money for such treatment. Even after she produced the doctor’s certificates, the husband’s family remained dissatisfied and continued to treat her as a household servant without wages, making her work for long hours without proper food and water. She asserts that, despite enduring such torture, she did not initially inform her parents to avoid burdening them.

14. The wife further alleged that the husband was earning Rs. 20,000/- from his school job and an additional Rs.10,000/- from tuitions and that he owned properties worth about Rs.2 crores. She would state that she was well-versed in using computer and assisted the husband in correcting papers, which, according to her, was inconsistent with the allegation that she behaved like a psychiatric patient.

15. The wife specifically contended that, on 03.12.2014, her mother-in-law obtained her signatures in about 15 blank papers and thereafter forcibly drove her out of the matrimonial home. Thereafter she had to take shelter in her parental home.

16. The wife further contended that, though the husband took her back pursuant to the compromise mediated by Church Pastors on 12.01.2015, the in-laws once again instigated the husband and she was subjected to further cruelty, including physical manhandling. She also stated that, despite the Church Pastor suggesting that the couple should live separately, the mother-in-law refused and insisted that the husband must act only in accordance with her wishes.

17. According to the wife, from the date of marriage, her mother in-law repeatedly declared that no one from the wife’s family should visit the matrimonial home; and if at all they came, they should leave any items brought for the wife at the veranda and go away. She asserts that, on 19.03.2015, when she expressed her parents’ inability to pay the remaining amount for the two-wheeler, her mother-in-law snatched her thali chain, caught hold of her hair and drove her out of the house.

18. She would further state that all attempts by her parents and others to contact the husband and his family for reconciliation ended in vain. On 27.04.2015, her mother-in-law allegedly told her that she was searching for another fair-complexioned bride for the husband. In order to protect herself and her matrimonial status, she lodged a complaint before the AWPS, Madurai Town, stating that the in-laws were the root cause for all problems and that the husband was blindly acting at the instance of his mother. She asserted that she was always willing to live with the husband and, therefore, prayed for dismissal of the divorce petition.

19. Before the learned Family Court, the husband examined himself as P.W.1 and one Sam Devaram as P.W.2, and marked Exs.P1 to P5. On the side of the wife, she examined herself as R.W.1 and examined one Jeevanathan as R.W.2 and one K. Thenrajan as R.W.3. No documents were marked on the side of the wife.

20. The learned Family Court, on appreciation of the pleadings and oral evidence, framed two points for consideration:

                   (i) Whether the husband was entitled to a decree of divorce as prayed for? And

                   (ii) To what other relief he was entitled?

Findings of the learned Family Court:

21. The learned Family Court took note of the admitted position that the marriage was performed on 02.10.2014 as per Christian rites and customs at the Church of the Divine Patience, Railway Colony, Madurai.

22. As regards the allegation that the wife was suffering from incurable tooth and skin diseases, the learned Family Court carefully examined the husband’s cross-examination. It is seen therefrom that the husband admitted that, after marriage, they lived in a joint family in his father’s house and that they lived happily in the initial period of their married life. He further admitted that, though he alleges foul smell from the wife’s mouth and skin diseases, he had not produced any medical records to substantiate the same. He also admitted that, though he had taken her to a dentist, he did not file the prescription or examine the doctor, and that the certificate allegedly did not state that the disease was incurable.

23. The learned Family Court therefore held that the husband had failed to prove, by any acceptable oral or documentary evidence, that the wife was suffering from incurable diseases or that such alleged ailments made it impossible to commence or continue marital life.

24. As regards the allegation that the wife’s age was 41 years and that this was discovered only after marriage, the learned Family Court adverted to the husband’s own admission that, in Christian marriages solemnised in the Church, a certificate is issued containing names, ages and dates of birth of the parties and that the marriage would be performed only after verification of such particulars. The husband had expressly admitted in evidence that such a certificate was issued in respect of their marriage and that the ages were known. The learned Family Court, therefore, rejected the contention that the husband came to know of the wife being older than him only after the marriage.

25. On the allegation that the wife was unwilling to do house-hold work and that the entire burden of cooking fell on his aged mother, the learned Family Court found that the husband did not choose to examine his mother, who was the most material witness to speak about the domestic arrangements and alleged non-cooperation of the wife. Hence, the learned Family Court held that the said allegation also remained unsubstantiated.

26. Similarly, with respect to the allegation that the wife damaged school note books and answer scripts, the learned Family Court noted that the husband did not produce any corroborative evidence, nor did he disclose any action taken by the school authorities if, in fact, answer books entrusted to him had been damaged.

27. Regarding the allegation that the wife behaved like a psychiatric patient, the learned Family Court observed that such a serious allegation was wholly unsupported by any medical evidence. On the other hand, the wife had deposed that she was assisting the husband in computer work and paper correction, which, according to the learned Family Court, was inconsistent with the claim of psychiatric illness.

28. The learned Family Court also considered the evidence of P.W. 2 and found that he had no direct knowledge regarding the alleged diseases of the wife or the details of the panchayat said to have been conducted by the Church Pastors. The learned Family Court, therefore, held that the testimony of P.W.2 did not materially advance the husband’s case.

29. The learned Family Court also observed that the husband himself admitted in his evidence that he filed the divorce petition only after the wife had lodged a complaint before the AWPS, Madurai Town, and that the said criminal proceedings were pending. The learned Family Court drew an inference that the divorce petition was filed as a counter-blast to the criminal complaint and that such filing by itself would not establish cruelty.

30. On the above analysis, the learned Family Court concluded that the husband had failed to prove any act of physical or mental cruelty or non-consummation of marriage attributable to the wife and that there was no material to show that it was not safe for him to live with her. Accordingly, the petition for divorce was dismissed, without costs.

Grounds of Appeal:

31. Aggrieved, the husband has preferred this appeal. The grounds of appeal, in substance, are the order of the learned Family Court is against law and the probabilities of the case. The learned Family Court failed to appreciate the evidence in proper perspective and ignored the admitted fact that the wife herself admitted to having diseases affecting her teeth and skin. The learned Family Court failed to see that the wife was disinterested in marital and sexual life, that there was no consensus ad idem between the parties, and that there was disparity between them even from the first night. The Court failed to give due weight to the husband’s attempt to provide treatment and the wife’s alleged reluctance to follow medical advice. The learned Family Court did not consider that the marriage was not consummated and that there is no scope for reunion, as the wife allegedly left the matrimonial home on her own accord and withdrew from cohabitation. The judgment is alleged to be illegal, perverse and unsupported by evidence, and, therefore, liable to be set aside.

Submissions:

32. The learned counsel for the appellant reiterated the grounds of appeal and contended that the learned Family Court adopted a hyper-technical approach. He would submit that the wife’s own conduct in obtaining medical certificates and undergoing treatment would itself show that she had ailments affecting her teeth and skin, and that her age and physical condition, coupled with her alleged disinterest in sexual relationship, constituted cruelty and rendered the marriage a dead letter. It was contended that continued separation since 2015 indicated irretrievable breakdown of marriage and that, in the interest of both parties, the marital tie ought to be severed.

33. Per contra, the learned counsel for the respondent supported the impugned judgment and submitted that the husband had not established any legally recognisable ground for dissolution of marriage. He emphasised that the wife was always ready and willing to resume cohabitation and that it was, in fact, the husband and his family who had subjected her to dowry-related demands and harassment, ultimately compelling her to approach the AWPS. It was further contended that the allegations of disease, psychiatric behaviour and non-consummation were wholly unproved and concocted to avoid matrimonial obligations and to wriggle out of the marriage after the wife resisted the unlawful dowry demands.

Points for Determination:

34. In the above factual matrix, the following points arise for consideration in this appeal:

                   (i) Whether the appellant / husband has established, on the pleadings and evidence, that the respondent / wife treated him with such cruelty or concealed such fundamental facts regarding her health and age as would entitle him to dissolution of marriage under Section 10(1)(x) of the Indian Divorce Act, 1869?

                   (ii) Whether the allegation of non-consummation or impossibility of marital life on account of the wife’s alleged ailments has been proved?

                   (iii) Whether the findings of the learned Family Court suffer from perversity or illegality warranting interference by this Court in appeal?

Analysis:

35. It is settled law that in matrimonial causes, the party who approaches the Court seeking dissolution of marriage carries the burden of establishing the grounds pleaded by clear and cogent evidence. Allegations of cruelty, non-consummation or concealment of material facts such as serious disease cannot be presumed. They must be proved by reliable evidence.

36. In the case on hand, the husband’s principal grievance is that the wife was allegedly suffering from multiple diseases, particularly decayed teeth causing foul smell and certain skin diseases, that she was disinterested in sexual life, that the marriage was not consummated and that there was an age disparity which had been concealed.

37. As rightly noticed by the learned Family Court, the husband has not produced any medical document to substantiate that the wife was suffering from any serious or incurable disease. He admits that he took her to a dental clinic, but does not choose to file the prescriptions or summon the doctor as a witness. There is no explanation as to why such material evidence, if it existed, was withheld. On the contrary, the evidence suggests that even according to P.W.2, he was unaware of any finding by a doctor that the wife suffered from any disease of a serious or incurable nature.

38. Mere bald allegations of “tooth decay”, “bad smell” or “skin disease”, unsupported by medical evidence, cannot form the basis to brand the wife as an unfit spouse or to hold that the marriage was not consummated solely for that reason. It is also of some significance that the husband admitted that they lived happily in the early period after marriage. If, in truth, the wife’s physical condition made any normal cohabitation impossible from day one, such an admission would not ordinarily be forthcoming.

39. With respect to age, the learned Family Court has carefully relied on the husband’s admission that, in Christian marriages solemnised in a Church, a certificate containing names and ages is issued and that such a certificate was indeed issued in the present case. In the light of such categorical admission, the plea that he came to know of the wife’s age only after marriage is rightly rejected as an afterthought. Age difference of two years, even assuming it to be so, by itself does not constitute cruelty or a ground for divorce.

40. On the allegation that the wife did not do household work and that his 70-year-old mother had to manage the entire burden of cooking, the husband did not examine his mother, who alone could speak directly to these allegations. Non-examination of such a crucial witness justifies an adverse inference under the ordinary rules of evidence. The learned Family Court, therefore, rightly held that these allegations remain unproved.

41. Likewise, the allegation that the wife damaged school note books and answer scripts has remained in the realm of assertion. No documentary evidence or testimony from the school authorities has been produced to show that any such incident occurred or that it had any consequence.

42. The characterisation of the wife as a “psychiatric patient” is a serious imputation affecting her dignity. Such an allegation can never be accepted in the absence of medical evidence from a competent psychiatrist. On the other hand, the uncontroverted assertion of the wife that she was assisting the husband in computer work and in correction of papers renders such a claim wholly unbelievable.

43. Coming to the conduct of the parties post-marriage, the evidence indicates that there were serious disputes relating to dowry demands, two-wheeler purchase, jewels and the treatment meted out to the wife by the in-laws. The wife’s case is that she was made to work like an unpaid servant, denied food and water and ultimately driven out of the house after her thali was snatched and her hair pulled. She also alleges that her signatures were obtained on several blank papers. These allegations, though not independently adjudicated in the present proceedings, certainly provide a reasonable explanation for her approaching the AWPS and for the strained marital relationship.

44. The husband has admitted that he filed the divorce petition only after the wife lodged the complaint before the AWPS, Madurai Town. The learned Family Court has drawn an inference that the present divorce petition is a counter-blast to the said criminal complaint. In matrimonial litigation, the mere fact that a wife lodges a complaint or initiates legal proceedings to safeguard her rights cannot, by itself, be branded as cruelty, unless it is shown that such proceedings are malicious, false and intended only to harass the spouse. No such case has been made out here.

45. In the light of the above, this Court finds that the husband has failed to establish, by acceptable evidence, that the wife’s alleged ailments, age or conduct amount to matrimonial cruelty within the meaning of Section 10(1)(x) of the Indian Divorce Act. Nor has he proved that the marriage was not consummated solely due to the fault or wilful refusal of the wife.

46. Matrimonial cruelty is to be assessed in the totality of circumstances, and the test is whether the conduct complained of is such that the wronged spouse cannot reasonably be expected to live with the other. The instances cited by the husband, even if assumed to be partially true, fall within the realm of ordinary wear and tear of married life and mutual adjustment, which cannot, without more, justify dissolution of a marriage of such short duration.

47. It is also pertinent to note that irretrievable breakdown of marriage, though a ground sometimes adverted to by Courts while exercising jurisdiction under Article 142 of the Constitution, is not per se a statutory ground under the Indian Divorce Act, 1869. This Court, acting within the confines of the statute, cannot dissolve a marriage merely on the husband’s subjective perception that there is no chance of reunion, especially when the wife consistently asserts her willingness to continue the marital relationship.

48. The learned Family Court has examined the evidence in detail, has recorded reasoned findings on each of the principal allegations and has rested its conclusion on sound appreciation of facts and law. This Court does not find any perversity, misreading of evidence or non consideration of material facts which would justify interference in appeal.

49. On a cumulative consideration of the pleadings, evidence and the reasoning of the learned Family Court, this Court is of the considered view that:

                   (i) The appellant / husband has failed to discharge the burden of proving cruelty or non-consummation attributable to the respondent / wife;

                   (ii) The allegations regarding concealment of age, incurable diseases, disinterest in sexual life, refusal to do household work and psychiatric behaviour remain unsubstantiated by reliable evidence;

                   (iii) The filing of a complaint by the wife before the AWPS, in the facts of the present case, cannot by itself be construed as cruelty warranting dissolution of marriage; and

                   (iv) The findings of the learned Family Court do not suffer from any illegality or material irregularity.

50. In the result, this Civil Miscellaneous Appeal is dismissed. The judgment and decree dated 13.09.2019 passed in I.D.O.P. No.32 of 2015 on the file of the Family Court, Madurai, are hereby confirmed. There shall be no order as to costs in this appeal.