IMPORTANT POINT
Non-consummation of marriage due to one spouse's non-cooperation can constitute mental cruelty, justifying divorce.

JUDGMENT :

J. NISHA BANU, J.

Prayer: Civil Miscellaneous Appeal is filed under Section 19 of the Family Court Act praying to set aside the judgment and decree dated 10.08.2022 in F.C.O.P. No. 62 of 2020 passed by the learned Judge, Family Court, Chengalpet District.

1. The aggrieved wife/respondent before the Court below has preferred the present Civil Miscellaneous Appeal against the fair and decreetal order passed in F.C.O.P. No. 62 of 2020 on the file of Family Court, Chengalpet dated 10.08.2022, granting the decree of divorce on the grounds of cruelty and desertion, thereby dissolving the marriage between the appellant/wife and the respondent/husband.

2. This Court heard both the learned counsel appearing for the appellant as well as the respondent and perused all the materials available on record.

3. Before the trial Court, on the side of the appellant/respondent, two witnesses RW1 and RW2 were examined and 16 documents Ex.R.1 to Ex.R.16 were marked as exhibits. On the side of the respondent/ petitioner, the respondent himself was examined as PW1 and three evidences Ex.P.1 to Ex.P.3 were marked as exhibits. The Trial Court, after considering the evidence adduced on both sides, allowed the petition and granted divorce by dissolving the marriage between the appellant and the respondent. Aggrieved by the said order of divorce, the appellant/wife has preferred the present civil miscellaneous appeal.

4. The marriage between the appellant and the respondent was performed on 15.09.2016 and there is no dispute that the appellant and the respondent lived only for a short period of three months and the appellant has left the matrimonial home by herself. Though the respondent's allegation is that the appellant did not attain puberty, the appellant has proved through photographs that the said allegation was not true but it is equally true that the marriage was non-consummated, as the said fact was not denied by the appellant.

5. The appellant and the respondent are separated for the past eight years and the allegation is very serious in nature that there is no useful purpose in keeping the marriage alive and therefore, this Court is of the opinion that non-consummation of marriage amounts to mental cruelty. The term “cruelty: is well explained by the Hon'ble Apex Court in the judgment reported in A. Jayachandra Vs. Aneel Kaur, (2005) 2 SCC 22 and the relevant paragraphs are extracted as follows:

10. The expression “cruelty” has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cru