IMPORTANT POINT
Cruelty in marriage can be established through its impact on the spouse, not solely through direct evidence of misconduct.

JUDGMENT :

J. NISHA BANU, J.

Prayer: Civil Miscellaneous Appeal filed under Sec 19 of Family Courts Act, 1955 r/w Section 28(4) of Hindu Marriage Act,1955, against the order and decree dated 20.05.2024 made in O.P. No. 4734 of 2018 passed by the learned V Additional Family Court at Chennai.

1. The appellant/wife has preferred the present Civil Miscellaneous Appeal as against the decree passed by the V Additional Family Court, Chennai, whereby, the petition filed by her seeking divorce under Section 13(1)(ia) of the Hindu Marriage Act (in short, 'the Act'), on the ground of cruelty, was dismissed on 20.05.2024.

2. Before the Trial Court, on the side of appellant, the appellant herself was examined as PW-1 and 6 documents were marked as Ex.P1 to Ex.P6 as exhibits. On the side of the respondent, the respondent/husband was examined as RW-1 and no exhibits were marked. The Trial Court, after analysing the pleadings, counter and evidence adduced on both sides, dismissed the petition filed by the wife on a finding that the petitioner/wife has not proved mental and physical cruelty and adultery alleged against the respondent/husband by preponderance of probabilities and by cogent oral and documentary evidence. Aggrieved by the said order of dismissal, the appellant/wife has preferred the present civil miscellaneous appeal.

3. The marriage between the appellant and the respondent took place on 06.07.1997 at Puthusurangadi Marriage Hall, Royapuram, Chennai as per Hindu rights and Customs. After marriage, twin daughters were born to them. The case of the appellant is that subsequent to the marriage, the appellant endured prolonged periods of cruelty at the hands of the respondent and his family members. Moreover, the respondent has misappropriated funds from the appellant for the purpose of gambling.

4. A perusal of the order passed by the court below would go to show that other than OP case for divorce between the parties, both parties lodged complaint against each other. FIR was registered by the husband against the wife, GWOP filed by the wife for visitation rights. The court below after going through entire pleadings and evidence found that the petitioner/wife has not proved the allegations by filing any documents and thereby dismissed the petition for divorce.

5. We have heard the learned counsel appearing for the appellant as well as the respondent and perused all the materials available on record.

6. Cruelty may be physical or corporeal or may be mental. In cases where there is no direct evidence, courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes. The Hon'ble Supreme Court has given new angle to the concept of mental cruelty in matrimonial matters. The following two cases need to be looked into:

1. In the case of Smt. Chanderkala Trivedi v. Dr. S.P. Trivedi, JT 1993 (4) SC 644

2. In the case of V. Bhagat v. D. Bhagat, AIR 1994 SC 710

In the above cases, mere allegations and counter allegations, without proof thereof, have been held to have constituted cruelty, as it was found that the marriage, after such allegations could not in any circumstance be continued any further.

7. In Chanderkala's case, in a petition filed by the husband for divorce on the ground of cruelty, when the wife filed a written statement alleging intimacy of the husband with another lady doctor, the husband came out with a case of undesirable association of the wife with young boys. When the divorce petition was tried by the lower court and was dismissed, whereas the High Court granted divorce on the ground of cruelty. The wife filed the appeal. The Hon'ble Supreme Court maintained the decree for divorce on certain conditions that the husband would provide a flat and Rs. 2 lakhs for the welfare of the wife and the findings of fact recorded by the lower courts were deleted. Justice A.M. Sahai, has observed that “Whether the al