CMA.Nos.2463 and 2464 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGEMENT RESERVED ON : 08.03.2022
JUDGEMENT PRONOUNCED ON : 30.03.2022
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
C.M.A.Nos.2463 and 2464 of 2016
and C.M.P.No.17373 of 2016
Major Frank Ralston Samuel Raj .. Appellant
in both Appeals
vs.
Kezia Padmini Swarna Pandian …Respondent
in both Appeals
Common Prayer: Civil Miscellaneous Appeals filed under Section 28 of the Hindu Marriage Act, to set aside the judgment and decree dated 20.09.2016 in O.P.Nos.648 of 2009 and 3497 of 2015 on the file of the II Additional Family Court, Chennai.
For Appellant in both Appeals : Mr.Sanjay Ramasamy
For Respondent in both Appeals : Mr.V.J.Narendiran
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COMMON J U D G M E N T
V.SIVAGNANAM, J.
The Appellant Major Frank Ralston Samuel Raj who is the
husband of the respondent filed O.P.No.648 of 2009 for dissolution of marriage, whereas the respondent Kezia Padmini Swarna Pandian who is the wife of the appellant filed O.P.No.3497 of 2015 before the II Additional Family Court, for restitution of conjugal rights.
2. After hearing both parties, the trial Court, by its common order
dated 20.09.2016 had dismissed the petition filed by the husband/appellant herein and allowed the petition filed by the wife/respondent herein.
3. Challenging the common order passed by the learned II
Additional Family Court, Chennai, the appellant has filed the Civil Miscellaneous Appeals to set aside the order of the Family Court
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rejecting the petition filed for dissolution of marriage and to set aside the order allowing the petition filed for the restitution of conjugal rights.
4. The learned counsel for the appellant submitted that the
marriage of the appellant and the respondent was solemnized on 26.10.2007 at CSI St.George Cathedral Church, Chennai. The appellant is working as a Major in Indian Army and the respondent is a house wife. The appellant and respondent had the first night programmed at Hotel GRT Grand, Chennai. But, unfortunately, the respondent avoided the sexual act/coitus. On the next day, the appellant and the respondent went to the respondent’s house, that night also she refused the coitus under the guise of tiredness and the next day they went to the appellant’s house at Anna Nagar. But, that night also she refused on the same reason.
5. He further added that on 29.10.2007 the appellant took his wife
to Andaman and Nicobar Island for honeymoon and stayed there for seven days. In all those days, the respondent refused to share the bed and
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avoided coitus with the appellant. The appellant and the respondent returned to Chennai on 04.07.2007 here also the respondent refused coitus with the appellant. It is further contended that from the date of marriage the respondent was not inclined to have conjugal relationship with the appellant and postponing their coitus for one reason or the other. It continued for about five months and then, the appellant advised the respondent to go for a medical check up, for which the respondent refused. Thereafter, the respondent intentionally avoided the appellant and stayed in her brother’s place. Thereafter, the respondent refused to join matrimonial home. The appellant lastly approached the Family Court for divorce on the ground of willful refusal to consummate the marriage and cruelty. The respondent after appearance in the proceedings filed application seeking maintenance till the disposal of the petition and also filed O.P.No. 3497 of 2015. The respondent sent letters to Army Wives Welfare Association and other senior Army Officer to degrade the reputation of the appellant. The activities of the respondent had created severe hardship and mental agony to the appellant.
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6. According to the learned counsel, the acts would clearly amount
to cruelty. The marital life of the appellant has been totally spoiled and the marriage has been irretrievably broken down between the appellant and the respondent. There is absolutely no emotional bond between the appellant and the respondent and no scope for reconciliation. But, the family Court failed to appreciate the evidence and the fact properly. He reiterated other grounds raised in the grounds of appeal and pleaded to set aside the order passed by the family Court for restitution of conjugal rights in O.P.No.3497 of 2015 and grant decree of divorce. By allowing both the appeals. The learned counsel for the appellant in support of his argument placed reliance on the following decisions reported in Naveen Kohli v. Neelu Kohli [(2006) 4 SCC 558] and Beena M.S. V.Shino G.Babu, [2022 SCC online Ker 778].
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7. The learned counsel for the respondent supported the order of
the trial court. It is his submission that the respondent is willing to live with her husband. The appellant and the respondent tried to consummate the marriage, but could not do so due to premature ejaculation of her husband. The appellant, was unable to consummate the marriage There is no fault on the respondent. The respondent co-operated with her husband and consulted gynecologist available at the Army. The appellant intentionally deserted the respondent and left her in her brother’s house. The respondent tried to contact him but she failed. Thereafter, she approached the Army Wives Welfare Association seeking their assistants for reunion. The appellant cannot be allowed to take advantage of his own wrong and it is not the case that the marriage is irretrievably broken down. The appellant alone without any reason separated from her and lived. Thus, he prayed to uphold the order of the Family Court. In support of his argument he placed reliance upon the judgement of the Hon’ble Supreme Court in the case of Chetan Dass Vs. Kamla Devi [2001 4 SCC 250].
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8. We have considered the rival submissions made by the learned
counsel for the parties and perused the available materials on record.
9. The fact that the marriage of the appellant and the respondent
was solemnized on 26.10.2007 at CSI St.George Cathedral Church, Chennai is admitted. The parties celebrated their first night function at Hotel GRT Grand Chennai. Thereafter, on 29.10.2007, the appellant and respondent went to Andaman Nicobar Island for honeymoon. Thereafter, they stayed at the respondent’s house for some period.
10. According to the appellant, the respondent willfully refused to
cooperate with him and the marriage has not therefore been consummated and thereby, the respondent caused mental cruelty to the appellant. After the marriage, lived together for some days and thereafter they are living separately. The respondent wrote a letter to Army Wife’s
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Welfare Association and other Army Officers with false and defamatory allegations. It also caused mental cruelty to the appellant.
11. Before the Family Court, the appellant examined himself as
P.W.1 and marked 8 documents. The respondent examined herself as R.W.1 and produced 12 documents. The medical reports of the appellant and the respondent were marked as Ex.C.1 and C.2.
12. We have gone through the oral and documentary evidence.
From a perusal of the same, the fact discloses that this substantial allegation by the appellant against the respondent is non consummation of marriage owing to the non co-operation to the respondent and her letter to the Army Officers and Army Wife Welfare Association defaming his reputation both these activities caused mental cruelty to the appellant.
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13. The appellant deposed by filing affidavit in para Nos.7, 8 and
10, allegations of the appellant runs as follows:
”7. I state that the first night ceremony was
organized by my parents at G.R.T.Grands Days,
Chennai, and was so eagerly waiting for the happy
moment of my life and to my anguish the marriage
was not Consummated on the marriage day and on
the 28.10.2009 also the respondent avoided saying
that she is very tired and they have to catch the flight
for Honey Moon to Andaman Nicobar Islands early
in the morning.
8. I state with heavy heart that during Honey
moon at Andaman Islands for seven days the
respondent never showed any interest in matrimonial
life and no cohabitation.
10. As my leave came to an end I took the
respondent to Ahmed Nagar on 22.11.2001 the work
place of mine and there also same excuse for sexual
intercourse married for 26 days and the marriage
was consummated so I, requested the respondent to
get a medical check about her physical condition the
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respondent’s reply was we will ADOPT A CHILD and
that gave a great shock as I dreamed to have children
of our own.
The appellant had reiterated the allegations in the petition by way of evidence.
14. The respondent denied the allegation of the appellant. The
respondent gave evidence through proof affidavit. She deposed that the appellant tried to consummate the marriage but he could not successfully penetrate her though she was co-operative and further, she admitted that there was no communication between the appellant and the respondent since mid of December 2008 and she did not deny the coitus to the appellant and hence he cannot blame her. The evidence runs as follows:
”22. I state that the respondent did try to
consummate the marriage but the respondent could not
successfully penetrate her, though she was co-operative
and she had asked him that they should consult a
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gynecologist or doctors as many are available in the
army, but the respondent, for the reasons best known to
him choose to keep the issue private or wantonly
resisted from getting medical advise.
23. I state that there was no communication
between the petitioner and the respondent since mid of
December 2008 and she did not deny sexual
intercourse to the respondent and he cannot blame or
accused her for his reluctance.”
15. From the above said evidence of the respondent, both the
parties leveled reciprocal accusation for non consummation of the marriage.
16. We have gone through the Medical Evidence and Medical
Report. Medical Report have filed as Ex.C1 and C.2. In the Medical Report of the C1 Doctor opined that the appellant has no abnormality of his potency state as per the clinical examination and investigation his
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potency appears to be normal. However, selective impotence cannot be ruled out. It runs as follows:
”138,. He has no abnormality of his potency state.
As per clinical examination and investigation his potency
appears to be normal. However, selective impotence
cannot be ruled out.”
17. On perusal of Ex.C.2 Medical Report of the respondent, the
report says she is fit for marital life and further stated her vulvo normal, hymen does not appear to be torn. The report runs as follows:
”EXTERNAL GENITALIA – vulvo Normal, Hymen does not
appear to be torn.”
18. On Perusal of the above said Medical Reports, the fact of non
consummation of marriage between the parties is corroborated and supported.
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19. From the above said oral and documentary evidence, it is clear
that from the date of marriage viz., on 26.10.2007 till the filing of the petition for divorce in the year 2009, the marriage was not consummated. It is established through medical evidence of the respondent that she is still virgin. This conclusive fact would establish that the marriage of the appellant and respondent had not been consummated.
20. In this case, both the parties have made reciprocal accusations
against each other. According to the appellant, non consummation of marriage was due to willful refusal of his wife. According to wife, it was owing to the incapacity of the appellant to penetrate. Under these circumstances, it is clear that these spouses are unable to consummate the marriage due to practical impossibility to perform sexual act in a complete and perfect manner. Thus, there is absolutely no emotional bond between the appellant and the respondent. As per Section 10 of Indian Divorce Act 1869, marriage can be dissolved by decree of divorce on a petition presented either by the husband or the wife on the ground
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that the other party as after the solemnization of the marriage not co operated to consummate the marriage and the marriage has not therefore been consummate is entitled for divorce.
21. The Hon’ble Supreme Court in the case of Naveen Kohli Vs.
Neelu Kolhi [(2006) 4 SCC 558], has held as follows:-
“83. Even at this stage, the respondent does not want
divorce by mutual consent. From the analysis and
evaluation of the entire evidence, it is clear that the
respondent has resolved to live in agony only to make life a
miserable hell for the appellant as well. This type of
adamant and callous attitude, in the context of the facts of
this case, leaves no manner of doubt in our minds that the
respondent is bent upon treating the appellant with mental
cruelty. It is abundantly clear that the marriage between the
parties had broken down irretrievably and there is no
chance of their coming together, or living together again.
84. The High Court ought to have appreciated that
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there is no acceptable way in which the parties can be
compelled to resume life with the consort, nothing is gained
by trying to keep the parties tied forever to a marriage that
in fact has ceased to exist.
85. 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. The course which
has been adopted by the High Court would encourage
continuous bickering, perpetual bitterness and may lead to
immorality.
86. In view of the fact that the parties have been
living separately for more than 10 years and a very large
number of aforementioned criminal and civil proceedings
have been initiated by the respondent against the appellant
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and some proceedings have been initiated by the appellant
against the respondent, the matrimonial bond between the
parties is beyond repair. A marriage between the parties is
only in name. The marriage has been wrecked beyond the
hope of salvage, public interest and interest of all concerned
lies in the recognition of the fact and to declare defunct de
jure what is already defunct de facto. To keep the sham is
obviously conducive to immorality and potentially more
prejudicial to the public interest than a dissolution of the
marriage bond.
87. The High Court ought to have visualised that
preservation of such a marriage is totally unworkable which
has ceased to be effective and would be greater source of
misery for the parties.
88. The High Court ought to have considered that a
human problem can be properly resolved by adopting a
human approach. In the instant case, 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
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passage of time (after obtaining a decree of divorce) the
parties may psychologically and emotionally settle down
and start a new chapter in life. “
22. The Division Bench of Kerala High Court in the case of Beena
Vs. Shino G.Babu [2022 SCC online Ker 778], following the decisions of the Hon’ble Apex Court in the case of Naveen Kohli Vs. Neelu Kolhi (supra) and in the case of Samar Ghosh Vs. Jaya Ghosh [(2007) 4 SCC 511], has held as follows:-
5. …….. The Apex Court in Naveen Kohli v. Neelu
Kohli [(2006) 4 SCC 558], opined that if the parties cannot
live together on account of obvious differences, one of the
parties is adamant and callous in attitude for having
divorce on mutual consent, such attitude can be treated as
the cause of mental cruelty to other spouses. The Apex
Court in Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511]
also considered such act as cruelty in the following words:
“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
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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.”
6. The law on divorce recognises both fault and
consent as a cause for separation. When both the parties
are unable to lead a meaningful matrimonial life due to
inherent differences of opinion and one party is willing for
separation and the other party is withholding consent for
mutual separation, that itself would cause mental agony and
cruelty to the spouse who demands separation. The purpose
of marriage is to hold matrimonial ties lifelong, respecting
mutual obligations and rights. The companionship of
spouses creates oneness of the mind to walk together. It is
through mutual respect and courtship, the companionship is
built and fortified. The modern jurisprudence of
irretrievable break down to allow divorce is premised on the
fact that the spouses can never remain together on account
of their differences. If the court is able to form an opinion
that due to incompatibility, the marriage failed and one of
the spouses was withholding consent for mutual separation,
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the court can very well treat that conduct itself as cruelty. If
one of the spouses is refusing to accord divorce on mutual
consent after having convinced of the fact that the marriage
failed, it is nothing but cruelty to spite the other spouse. No
one can force another to continue in a legal tie and
relationship if the relationship deteriorated beyond repair.
The portrayal of such conduct through manifest behaviour
of the spouse in a manner understood by a prudent as
‘cruelty’ is the language of the lawyer for a cause before the
court. This case is also not different. The behavioural
disorder pointed out against the appellant in the petition for
divorce was essentially reflection of incompatibility that
existed between the parties. The husband wants to get out of
the struggled relationship, on the projected cause of cruelty
with reference to the incidents of misbehaviour.
Incompatibility is a factor that can be reckoned while
considering the ground for cruelty, if one of the spouses
withholds the consent of mutual separation, though
incompatibility is not recognised as ground for divorce.
7. The parties are young. They are living separately
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since 2017. We, in such circumstances, are of the view that
for the reasons stated above, the order of the Family Court
granting divorce has to be sustained.”
23. In the decision cited by the learned counsel appearing for the
respondent in Chetan Dass Vs. Kamala Devi (supra), the husband was found to be living in adulterous life and he sought for dissolution of marriage on the ground of desertion. In such fact situation, the Hon’ble Apex Court has held that where a party seeking divorce is found in the course of judicial proceedings to have committed matrimonial offences (adultery), and he failed to establish the allegations, a decree of divorce on the ground of irretrievable breakdown of marriage cannot be granted. It is further held that erring party cannot be permitted to break the marital bond by taking advantage of his own wrong. So, the decision has no relevance to the facts of this case and it wont advance the case of the respondent.
24. In the instant case, indisputably the parties are living apart
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for more than fifteen years. The endeavour to bring re-conciliation between the parties failed, resultantly, the marriage is dead, both emotionally and practically. Continuance of the relationship for namesake is prolonging the agony and affliction would be a cruelty to both the parties. Therefore, we are of the considered opinion that the marriage between the parties has broken down irretrievably and the parties could no longer live together as husband and wife.
25. It is well settled law that a spouse willfully avoiding the
another spouse to have sexual intercourse without sufficient reason, the act would amount to mental cruelty to such spouse. The principle has been reiterated by the Hon’ble Apex Court in Vidhya Viswanathan Vs. Kartik Balakrishnan [2014 (15) SCC 21], which is extracted infra:-
“12.Undoubtedly, not allowing a spouse for a long
time to have sexual intercourse by his or her partner,
without sufficient reason, itself amounts to mental cruelty to
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such spouse. A Bench of three Judges of this Court in Samar
Ghosh v. Jaya Ghosh [Samar Ghosh v. Jaya Ghosh, (2007)
4 SCC 511] has enumerated some of the illustrations of
mental cruelty. Para 101 of the said case is being
reproduced below: (SCC pp. 546-47)
“101. No uniform standard can ever be laid
down for guidance, yet we deem it appropriate to
enumerate some instances of human behaviour
which may be relevant in dealing with the cases of
‘mental cruelty’. The instances indicated in the
succeeding paragraphs are only illustrative and not
exhaustive:
(i) On consideration of complete matrimonial
life of the parties, acute mental pain, agony and
suffering as would not make possible for the parties
to live with each other could come within the broad
parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire
matrimonial life of the parties, it becomes
abundantly clear that situation is such that the
wronged party cannot reasonably be asked to put up
with such conduct and continue to live with other
party.
(iii) Mere coldness or lack of affection cannot
amount to cruelty, frequent rudeness of language,
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petulance of manner, indifference and neglect may
reach such a degree that it makes the married life
for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The
feeling of deep anguish, disappointment, frustration
in one spouse caused by the conduct of other for a
long time may lead to mental cruelty.
(v) A sustained course of abusive and
humiliating treatment calculated to torture,
discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and
behaviour of one spouse actually affecting physical
and mental health of the other spouse. The treatment
complained of and the resultant danger or
apprehension must be very grave, substantial and
weighty.
(vii) Sustained reprehensible conduct, studied
neglect, indifference or total departure from the
normal standard of conjugal kindness causing
injury to mental health or deriving sadistic pleasure
can also amount to mental cruelty.
(viii) The conduct must be much more than
jealousy, selfishness, possessiveness, which causes
unhappiness and dissatisfaction and emotional
upset may not be a ground for grant of divorce on
the ground of mental cruelty.
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(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.
(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.”
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26. In the light of the decisions referred supra and considering the
facts and circumstances of the case, we are of the opinion that the order of the Family Court could not be countenanced and they are liable to be set aside. Therefore, both the appeals are allowed and the marriage solemnized between the appellant and the respondent on 26.10.2007 is hereby dissolved. No Costs. Consequently, connected miscellaneous petition is closed.
[M.K.K.S.J] [V.S.G.J]
30.03.2022
Index:yes/no
Internet:yes
vsn
To
The II Additional Family Court, Chennai.
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CMA.Nos.2463 and 2464 of 2016
K.KALYANASUNDARAM,J.
and
V.SIVAGNANAM,J.
vsn
C.M.A.Nos.2463 and 2464 of 2016
and C.M.P.No.17373 of 2016
30.03.2022
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