Full Judgment Text
CMA No. 1155 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24-04-2026
CORAM
THE HON'BLE MR JUSTICE C.V. KARTHIKEYAN
AND
THE HON'BLE MR.JUSTICE K.RAJASEKAR
CMA Nos. 1155 & 1156 of 2024
AND
CMP No. 10460 of 2024
G. Sridhar
..Appellant(s) in both
Appeals
Vs
S. Komala Kumari
..Respondent(s) in both
Appeals
CMA No. 1155 of 2024
PRAYER: Civil Miscellaneous Appeal filed under Section 19 (1) of the Family
Courts Act to allow the above CMA by setting aside the common fair and
decreetal order dated 19.12.2023 made in IA No.1 of 2020 in HMOP No.2289
of 2017 by III Additional Family Court, Chennai with costs.
CMA No. 1156 of 2024
PRAYER: Civil Miscellaneous Appeal filed under Section 19 (1) of the Family
Courts Act to allow the above CMA by setting aside the common fair and
decreetal order dated 19.12.2023 made in HMOP No.2289 of 2017 by III
Additional Family Court, Chennai with costs.
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In both appeals:
For Appellant(s): Mr.N.Mariappan
For Respondent(s): Mr.D.Nellaiappan
COMMON JUDGMENT
(Judgment of the Court was delivered by C.V.Karthikeyan J.)
The petitioner/husband in HMOP No.2289 of 2017 on the file of the III
Additional Family Court, Chennai, aggrieved by the judgment dated 19.12.2023
dismissing the said petition has filed CMA No.1156 of 2024. The respondent in
the said HMOP No.2289 of 2017/wife had filed IA No.1 of 2020 along with
counter affidavit seeking restitution of conjugal rights. The learned III
Additional Family Court Judge, Chennai, while dismissing HMOP No.2289 of
2017 had allowed IA No.1 of 2020 granting restitution of conjugal rights and
consequently, the respondent in the said IA No.1 of 2020/husband has filed
CMA No.1155 of 2024.
2.Since arguments have been advanced in common in both appeals and
also since both the appeals arise from a common judgment and decree, a
common judgment is passed.
3.It is the case of the petitioner in HMOP No.2289 of 2017/appellant
herein that the marriage between him and the respondent was solemnized on
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17.04.1997 at Punganur, Chithoor District, Andhra Pradesh. It was an arranged
marriage. Two children were born. The first was a daughter G.S.Harshitha and
the second child was a son G.S.Jathin. After marriage, the appellant and the
respondent were living at Tondiarpet, Chennai. It is contended that in the year
2016, he purchased a new house. It had been contended that on and from the
date of marriage the respondent was demanding various facilities and was
always concentrating on his income and wealth. It is to be noted that the
appellant was employed as an Assistant Engineer in Greater Chennai
Corporation. It had been contended that the respondent insulted him and often
criticised him in front of others. She also did not share matrimonial relationship
with him. It had been further stated that on 19.06.2017, she left the matrimonial
home along with her daughter and returned a week later and when questioned,
informed him that the daughter had married her brother at Bangalore. This
incident was a triggering point for serious differences between the appellant and
the respondent. The appellant contended that the daughter has just completed
18 years of age. The brother of the respondent was a divorcee and had actually
earlier married the niece of the appellant and owing to troubles in that marriage,
a complaint being lodged was taken into custody by the jurisdictional police.
There was also a child born out of the said marriage. Contending that the
manner in which the marriage of his daughter was conducted surreptitiously
without informing him was an act of cruelty, the appellant had filed petition
seeking divorce under Section 13 1 (i-a) of the Hindu Marriage Act, 1955.
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4.The respondent in her counter had denied and disputed all these claims.
She stated that she performed her matrimonial obligations and denied that she
had abused the appellant herein or had spoken disparagingly about him to
others. With respect to the marriage of the daughter, she stated that the
daughter had developed relationship with her brother and in the interest of both
parties, she had conducted the marriage. She stated that when she came back
from Bangalore, she was prevented from entering into the matrimonial home
necessitating lodging of the complaint before the jurisdictional police. She
further contended that when she was finally able to enter the house, she found
her certificates and all her personal belongings had been removed. She then
filed a petition seeking a direction to register an FIR. It was also contended that
she had given all her jewels and also obtained money from her parents on the
demand of the appellant herein. It was further contended that the appellant had
stalled payment of the housing loan. It was contended that the appellant had not
bothered to find out the whereabouts of the daughter. She stated that she
wanted to reside with the appellant and it was under such circumstances, apart
from the counter statement, she also filed an interlocutory application in IA
No.1 of 2020 seeking the relief of restitution of conjugal rights.
5.A reply statement was filed by the appellant again reiterating the
statements made earlier. He stated that he had purchased a flat by pledging his
mother jewels and out of the retirement benefits of the father and by taking
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loan. He again reiterated that the respondent had arranged the marriage of her
daughter without informing him. He further stated that he had never prevented
the respondent from meeting his son. He had also stated that she had also
issued notices to the place of his birth and thereby compounded the acts of
cruelty. He therefore reiterated that divorce should be granted on the ground of
cruelty.
6.During the course of Trial, the appellant had examined himself as PW1
and marked Exs.P1 to P11. Ex.P5 was the copy of the home loan sanction
letter. Ex.P6 were the copy of the booking form and payment receipts. Ex.P7
were also copies of payment receipts. Ex.P8 was the copy of handing over of
flat letter. Ex.P9 was the copy of the demand drafts to show payment of sale
consideration. The respondent examined herself as RW1 and she marked
Exs.R1 to R5. Ex.R1 was the copy of the complaint given by her against the
appellant. Ex.R2 was the copy of cheques issued by her relating to home loan.
Ex.R3 was the receipt for payment to the Flat Owners Association. Ex.R4 was
the notice issued by the banker for non payment of EMIs.
7.On the basis of the evidence adduced and the pleadings, the learned
Trial Judge had observed that the primary ground on which cruelty was alleged
was the surreptitious manner in which the marriage of the daughter of both
parties and the own brother of the respondent who was a divorcee at Bangalore
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was conducted. It was also noted that after the respondent returned from
Bangalore, she was not allowed inside the matrimonial home necessitating
lodging of complaint. It had been further observed that the appellant herein had
not lodged any police complaint till 21.06.2017 with respect to the earlier
relationship of the daughter with the brother of the respondent. It was also
pointed out that no documentary evidence had been produced to show that the
brother of the respondent was a divorcee. With respect to the allegations that
she had co-operated with the matrimonial relationship, it had been stated that
these allegations were only stated and had not been established during the
course of trial. It was also noted that the daughter had completed the age of 18
years and had every right to choose her partner and therefore, the lamentations
of the appellant were rejected. It was also noted that the flat which the appellant
had complained about, had been purchased in the name of the respondent. Both
parties had lodged complaint against each other relating to the possession of the
flat. It was also noted that the respondent had sent a complaint to the superior
officer of the appellant. At the same time, it was also noted that she had also
lodged a complaint with the Deputy Commissioner of Police requesting
protection of her interest from her husband. In view of all these reasons, the
petition seeking divorce was dismissed and on the other hand, the interlocutory
application seeking restitution of conjugal rights was allowed.
8.Challenging the said impugned orders, these two appeals have been
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filed.
9.Heard arguments advanced on either side.
10.It is the contention of the learned counsel for the appellant that the
appellant and the respondent married on 17.04.1997, and were blessed with a
daughter and a son. It was contended that immediately after the daughter had
attained the age of 18 years, the respondent had taken her to Bangalore to marry
her own brother who is a divorcee. It is contended by the learned counsel that
this act had deeply affected the appellant and by this act, the respondent had
committed mental cruelty to the appellant. The learned counsel further pointed
out that the appellant had purchased a flat in the name of the respondent and he
himself was prevented from entering his flat. It was contended that complaints
were lodged against each other. Further, the respondent had also lodged a
complaint before the superior officers of the appellant. The learned counsel
contended that all these acts when cumulatively viewed would indicate that the
respondent had continuously committed the acts of mental cruelty on the
appellant herein. The learned counsel therefore contended that this Court
should set aside the order of the Trial Court and grant the relief sought by the
appellant.
11.In this connection, the learned counsel placed reliance on the
following judgments:
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(i)Samar Ghosh Vs.Jaya Ghosh reported in (2007) 4 SCC 511
(ii) Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal reported in (2012) 7
SCC 288
(iii) Sapna Vs. B.Pradeep Kumar reported in 2012-2-LW.623.
12.In Samar Ghosh Vs.Jaya Ghosh reported in (2007) 4 SCC 511, the
Hon’ble Supreme Court had examined the concept of mental cruelty as a ground
for divorce and held that there cannot be a comprehensive definition of the term
mental cruelty. It had been further stated that it had to be adjudicated on case to
case basis taking all factors, particularly, the suffering of either party at the
hands of the other.
13.In Vishwanath Agrawal referred supra reported in (2012) 7 SCC 288
Hon’ble Supreme Court had again examined the term cruelty and mental
cruelty. It had been held that cruelty has an inseparable nexus with human
conduct and is always depended on social strata or milieu to which parties
belong. With respect to mental cruelty, it had been stated that any act which
ultimately cause deep mental pain, agony, suffering and frustration can be
termed as mental cruelty.
14.In Sapna Vs. B.Pradeep Kumar reported in 2012-2-LW.623, it had
been held that when the parties were living separately for a considerable period
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of time, the Court should examine whether it would be possible to make them
live together. It must be pointed out that the Division Bench in this case placed
reliance on the irretrievable breakdown of marriage which ground is not
available in statute and cannot be invoked by this Court.
15.The learned counsel for the respondent however pointed out that the
marriage of the daughter conducted by the respondent was only after the
daughter had completed the age of 18 years and when the daughter had attained
age of majority. The learned counsel contented that the daughter had been
married to the own brother of the respondent and the appellant should have
participated in the said event as a father. The learned counsel further stated that
the other issues which had been stated by the appellant as acts of cruelty with
respect to the flat and non grant of permission to enter into the flat and
complaint to the superior officers of the appellant and complaint to the police
were incidents which happened subsequent to the filing of the petition seeking
divorce. The learned counsel pointed out that immediately the petition for
divorce had been filed. The respondent had returned back from Bangalore after
the marriage of the daughter. It was therefore contended that it cannot be stated
that they are living separately for a considerable period of time. With respect to
the allegation of trespassing into the house and other aspects, the learned
counsel pointed out the evidence, wherein, the specific allegations were denied
by the respondent. The learned counsel further sought dismissal of the appeals
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and the other hand contended that this Court should confirm the directions of
the Trial Court for restitution of conjugal rights.
16.We have carefully considered the arguments advanced and perused the
material records.
17.The marriage between the appellant/husband and the respondent/wife
took place on 17.04.1997. It was an arranged marriage. They both were
blessed with a daughter and a son. The appellant had complained that
continuously from the date of marriage, the respondent had acted with much
cruelty and had abused him, spoken disparage about him to the neighbours and
that the respondent did not perform her matrimonial duties. But however, it is
to be noted that they had to continue their matrimonial life and a daughter and
son were also born to them. Till the daughter and son had grown up,
differences could only be scratches in the marital life. The trigger point was the
marriage of the daughter. This happened after she turned 18. It is the case of
the appellant that without his knowledge, the respondent took their daughter to
Bangalore and got her married to the respondent’s own brother. It is the case of
the appellant that this brother of the respondent was a divorcee and as a matter
of fact, had earlier married the niece of the appellant. Police complaints have
been lodged against him owing to his conduct and he had actually been taken
into custody. It is the case of the appellant that to such an individual, knowing
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his background, the respondent had deliberately participated and encouraged
their daughter to marry her own brother. It was also contended that he was
never informed about the marriage. He was not even invited to the marriage
and he only knew that the respondent and his daughter were missing.
Thereafter, the respondent came home and after about a week, she informed him
about the marriage. In his cross examination, PW1 has stated as follows:
“ ////////// 19/06/2017 md;W 18 Koe;J 3 khj ';fns Md vdJ kfs; vd;Dila
tpUg;gkpy;yhky ; Vw;fdnt vdJ mf;fh kfis jpUkzk ; bra;J
mthplkpUe;J tpthfuj;J bgw;w 33 tajhd vdJ ikj;JdUld; Xo
tpl;lhs;/ /////// ”
18.It is to be determined whether this act of marriage of the daughter
without informing the appellant could be considered as an act of mental cruelty.
The fact that the daughter was married at Bangalore and further fact that the
appellant was not informed had neither been denied nor disputed by the
respondent. The fact that the respondent played a very important role in the
marriage was neither denied nor disputed by the respondent. The fact that the
daughter had been married just a few months after she completed the age of 18
years was again neither denied nor disputed by the respondent. The fact that the
daughter had married her own brother, who was a divorcee was also neither
denied nor disputed by the respondent. When this being the case, the Court will
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have to examine whether this act of the respondent constituted mental cruelty.
It is to be noted that when the respondent had intention to marry the daughter to
her brother, it would only have been appropriate that she had informed the
appellant who as a father would like to be present when the daughter gets
married. There is no reason why the respondent had acted surreptitiously in a
very important event in the life of a daughter and also of a father. The pain of
the appellant as a father could be visualised by us. He had never known that the
respondent and daughter had gone away. Thereafter, after about a week, the
respondent came back home and informed about the marriage. After the
marriage is performed, the appellant can never take any step. It is only natural
that this aspect has agitated him since the husband of the daughter was a
divorcee earlier and that marriage had broken down with much animosity and as
a matter of fact, as against the brother of the respondent, police complaint had
been lodged and he had also been taken into custody. At that particular point of
time when the marriage of the daughter had occurred, as a parent he would have
undergone extreme mental agony, pain and suffering which can never be
compensated.
19.The case of the respondent is that the appellant had sent the respondent
to Bangalore for their daughter’s marriage. But the evidence of the appellant
was that he was never informed about the marriage. Subsequently, for the
conduct of the respondent, when she came back, she was prevented from
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entering into the home which also shows that the appellant had taken serious
umbrage on the conduct of the respondent herein. If he had consented for the
marriage and he had voluntarily sent the respondent to the marriage, then he
would have not prevented her. The minor issue of preventing her from entering
into the house had happened only owing to the mental scar which the appellant
had suffered as the marriage of his own daughter was not informed to him. It is
not an issue of whether the marriage was for the welfare of the daughter or not.
This entire issue to be viewed purely from the eyes of the appellant herein and
as a father, the agony he suffered that his daughter who has just completed 18
years was given in marriage to a person who was aged about 32 years, who was
already divorced and against whom police complaint was lodged by his former
wife. It is also in evidence that the respondent had further justified the marriage
by stating that the daughter had eloped to Bangalore to get married. But
admittedly, in the evidence, it had been stated that on and from 2013, the
brother of the respondent had not visited the house and therefore, there is no
possibility of the daughter knowing him earlier or forging relationship with him
earlier. It is therefore very clear that the respondent had taken an independent
decision to marry their daughter who had just completed 18 years to a person
who had crossed 32 years and who was also a divorcee. It is therefore very
probable that the respondent had arranged the marriage and her role in such an
arrangement of the marriage is very much evident. On an over all view of the
entire issue, it is only because she knew that the appellant might raise
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objections, she deliberately did not inform about the marriage to the appellant
and had surreptitiously married away their daughter. At that point of time, the
future of the daughter would have pained the appellant. He would have been in
agony that his own daughter was married to an elderly person who is also a
divorcee and at that time, the mental agony caused would be irreparable and
assuaged by acts of the respondent. It is also to be noted that during trial, PW2
his son was also examined and he also stated that the respondent and his sister
had departed from the house and after that the respondent alone came back to
the house and his sister had been married in Bangalore without informing any
one. All these evidence point out that the marriage had been actually conducted
deliberately by the respondent without informing the appellant and had caused
serious mental agony to the appellant herein.
20.The second aspect is about preventing of entering the home by both
parties. It is seen that respondent had locked the house and subsequently, the
monthly loan had also not been paid. It is also to be noted that the respondent
had broke open the home when the appellant was away and removed all the
personal belongings and also gave police complaint as against the appellant.
This had damaged his reputation in his office and she had also given complaint
to the superior officers of the appellant. This act of lodging complaint to the
police, to the higher officials of the appellant would also have caused serious
mental cruelty to the appellant herein.
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21.In the written arguments filed on behalf of the respondent, it had been
stated that the appellant had paid Rs.1,00,000/- as booking amount and not large
amounts as claimed in his pleadings. Second, though the property was valued at
Rs.17,75,000/- he had claimed that he had spent Rs.60,00,000/- and third, there
was no documentary proof that he funded the purchase by selling the jewels of
his mother and his father’s retirement benefits. The main points on which the
petition seeking divorce was filed are marrying the daughter surreptitiously,
lodging of the complaint with superior officers of the appellant and lodging of
the complaint with the police officials, breaking open of the door of the flat and
taking away all the material papers to the disadvantage of the appellant and the
son PW2. All these acts independently and cumulatively in our opinion would
have caused serious mental agony and pain to the appellant herein.
22.In Samar Ghosh Vs.Jaya Ghosh reported in (2007) 4 SCC 511, the
concept of mental cruelty had been explained by Hon’ble Supreme Court and
some of the acts which could cause mental agony had been deduced as follows:
“ 101. No uniform standard can ever be laid down for guidance, yet
we deem it appropriate to enumerate some instances of human
behaviour which may be relevant in dealing with the cases of
"mental cruelty". The instances indicated in the succeeding
paragraphs are only illustrative and not exhaustive:
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(i) On consideration of complete matrimonial life of the
parties, acute mental pain, agony and suffering as would not make
possible for the parties to live with each other could come within the
broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life
of the parties, it becomes abundantly clear that situation is such that
the wronged party cannot reasonably be asked to put up with such
conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to
cruelty, frequent rudeness of language, petulance of manner,
indifference and d neglect may reach such a degree that it makes the
married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep
anguish, disappointment, frustration in one spouse caused by the
conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment
calculated to torture, discommode or render miserable life of the
spouse.
(vi) Sustained unjustifiable conduct and behaviour of one
spouse actually affecting physical and mental health of the other
spouse. The treatment complained of and the resultant danger or
apprehension must be very grave, substantial and weighty.
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(vii) Sustained reprehensible conduct, studied neglect,
indifference or total departure from the normal standard of conjugal
kindness causing injury to mental health or deriving sadistic
pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy,
selfishness, possessiveness, which causes unhappiness and
dissatisfaction and emotional upset may not be a ground for grant of
divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of
the married life which happens in day-to-day life would not be
adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few
isolated instances over a period of years will not amount to cruelty.
The ill conduct must be persistent for a fairly lengthy period, where
the relationship has deteriorated to an extent that because of the acts
and behaviour of a spouse, the wronged party finds it extremely
difficult to live with the other party any longer, may amount to
mental cruelty.
(xi) If a husband submits himself for an operation of
sterilisation without medical reasons and without the consent or
knowledge of his wife and similarly, if the wife undergoes vasectomy
or abortion without medical reason or without the consent or
knowledge of her husband, such an act of the spouse may lead to
mental cruelty.
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(xii) Unilateral decision of refusal to have intercourse for
considerable period without there being any physical incapacity or
valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after
marriage not to have child from the marriage may amount to cruelty.
(xiv) 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. ”
23.We hold that the continuous acts causing mental cruelty including
abuse of appellant, speaking disparagingly in public and lodging of complaint to
the police and superior officers had definitely caused mental agony making it
difficult to live with the respondent. It is further to be noted that the complaint
had been lodged with knowledge that he had reasons for raising objections for
the marriage of the daughter. Further, taking away of the personal belongings
by breaking open the door of the flat have created a situation wherein the
appellant cannot lead a normal marital life with the respondent. It is also to be
noted that the flat had actually been brought to sale and sold by the respondent
for a total consideration of Rs.60,00,000/-. A sum of Rs.40,00,000/- was used to
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pay the loan and she had taken away the balance sale consideration of
Rs.20,00,000/-, thereby completely making the matrimonial home not available
as a residence.
24.In view of these reasons, we hold that the learned Trial Judge had
misdirected himself in appreciating the evidence on record and we are
compelled to interfere with the impugned orders. Therefore, the appeals are
allowed and the order passed in IA No.1 of 2020 and in HMOP No.2289 of
2017, by the III Additional Family Court, Chennai are set aside. No costs.
Consequently, connected miscellaneous petition is also closed.
(C.V.K.,J.) (K.R.S.,J.)
24-04-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
sli
To
III Additional Family Court, Chennai.
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CMA No. 1155 of 2024
C.V.KARTHIKEYAN J.
AND
K.RAJASEKAR J.
sli
CMA Nos. 1155 & 1156 of 2024
AND
CMP No. 10460 of 2024
24-04-2026
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