P SELVARAJ Vs. P VISALAKSHI

JUDGEMENT

(1.) THIS Civil Miscellaneous Second Appeal is filed against the judgment and decree dated 12. 11. 2002 made in C. M. A. No. 2 of 2002 on the file of the learned Prl. District Judge, Thiruvannamalai, reversing the order in hmop. No. 18 of 1999, dated 28. 9. 2001, made by the learned Subordinate Judge, cheyyar.

(2.) THE brief facts of the case are as follows:- (a) THE petitioner and the respondent married as per hindu Rites in Cheyyar on 2. 5. 1997. It is the case of the petitioner that from the date of marriage the respondent was not interested in leading family life with the petitioner and also neglecting the parents of the petitioner/husband. She often used to leave for her mother's house. THE respondent also demanded the salary of the petitioner for which the petitioner was not amenable. She also often stated that she married him only on the compulsion of her parents. She often threatened that she will commit suicide. THEre was no cohabitation between the petitioner and the respondent. During Deepavali in the year 1997 the respondent without informing the petitioner left for her mother's house with all her belongings. When the petitioner went there and enquired, she told that she is not going to live with him. Even after intervention by the elders and friends she did not return back to live with the petitioner. On the above allegations, the petitioner filed the petition under Section 13 (1) (ia) of the hindu Marriage Act on the ground that the respondent/wife is guilty of mental cruelty. (b) THE respondent resisted the said petition stating that she lived with the petitioner happily for a short period only and thereafter the petitioner started ill-treating her. It is incorrect to state that she neglected the parents of the petitioner. She used to assist her mother in law and was cooking for all the members. She has been cooperation with the petitioner in the marital life. During Deepavali 1997, she gave her salary amount to the petitioner and they purchased cloths and things and the petitioner himself sent her to her mother's house. It is only the petitioner and others locked the house and went away neglecting the respondent. THE respondent was forced to give police complaint when the petitioner and her mother said that the petitioner would marry his sister's daughter. THE respondent is always willing to live with the petitioner. (c.) Before the learned Subordinate Judge, Cheyyar, on behalf of the petitioner/husband P. Ws 1 to 4 were examined and the respondent was examined as R. W. 1. During the course of their examination, Ex. P. 1 to P. 6 and Ex. R. 1 were marked. On a careful examination of the oral testimonies of both sides and also on a perusal of the records, the learned Subordinate Judge, cheyyar, allowed the divorce petition. Aggrieved of the same, the respondent/wife preferred appeal in CMA. No:2 of 2002 before the learned prl. District Judge, Tiruvannamalai, who allowed the appeal. Challenging the same, the petitioner/husband has preferred this Civil Miscellaneous Second appeal, on the following two substantial questions of law:- (i) Whether the first appellate court is correct in having set aside, the decree of divorce, granted by the Trial Courts, on the allegation that Section 23 of the Hindu Marriage Act, has not been followed? (ii) Whether the false complaints given by the respondent/wife to the police, and false statement given before court, regarding those complaint amounts to cruelty or not, to justify the decree of divorce?"

(3.) MENTAL cruelty is a state of mind and feeling and inference has to be drawn on the facts and circumstances of the case cumulatively. But in this case when there is no ground of cruelty that the marriage between the petitioner and the respondent has not been consummated, and when there is nothing to prove the alleged non cooperation and non adjustment of the respondent with the petitioner in his day-to-day duties, it cannot be held that the treatment meted out to the petitioner by the respondent is sufficient within the meaning of cruel treatment as defined under Section 13 (1) (ia) of the Hindu Marriage Act. The petitioner is not certain either in his petition or in his oral evidence as to when the respondent has left the matrimonial home without his consent.