R. Subramanian, J.—The wife''s petition for divorce in H.M.O.P.No.691 of 2001 was dismissed and the husband''s petition for restitution of conjugal rights in H.M.O.P.No.90 of 2002 was allowed by a common order dated 05.08.2004. The parties got married on 06.07.1998 at Coimbatore. There are no issues out of the said marriage. The wife would seek divorce on the ground of cruelty. It is averred in the petition filed for divorce that there was ill-treatment soon after the betrothal ceremony. Apart from demand of dowry of Rs.10,000/-, he demanded articles and jewels. The husband insisted that she should give up her job and be a Home maker. Even prior to marriage, she made it clear that she would continue to work. The respondent-husband used to return home everyday around 2.00 a.m and state that he has spent time with friends. Whenever she questions such conduct, she was beaten up by the respondent-husband, thereby causing physical and mental agony. The mother of the respondent also harassed her. The suspicion entertained by mother also created severe mental stress to the appellant-wife. Even very significant details about the family of the respondent were kept out of her knowledge. All these led her to leave the matrimonial home in November 1998. She started living with her parents and attending office from there. After about six months, she took a room in Masanic Womens Hostel, Race course, Coimbatore and she was residing there upto March, 2001. Since the respondent required her to join him many times, on 08.02.1999, she came to the house of the respondent with her father. But unfortunately, on the very next day, i.e., 09.02.1999, the respondent beat her. She had sustained severe injuries and 10.02.1999, under the guise of going to office, she left the matrimonial home and she has undergone treatment in Sri Sabari Clinic for the injuries sustained by her. Even after she left the house, the respondent did not allow her to live peacefully. The respondent regularly visited her office and made allegations against her to her superiors. He had even accused her of infidelity and claimed that she has deserted him for no reason. During March 2001, the brother-in-law of the respondent gave a complaint to B-4 Police Station, Coimbatore, to re-unite the couple. In the guise of enquiry at the Police Station, the respondent demanded that she should resign her job and join him in Mettur where he was working at that time. On 14.12.2001 at about 7.00 p.m, the respondent had come to her house and beaten her severely stating that she must join him immediately. The mother of the respondent made an attempt to pacify him and she was also assaulted by him. The respondent had given a police complaint on 19.12.2001 stating that he wishes to live with the appellant. Again the police called her for enquiry and the police officials were apprised of the criminal acts committed by the respondent and his family. All these culminated in filing the petition for divorce in December 2001.
2. The respondent-husband resisted the petition denying all the allegations cruelty. He claimed that neither himself nor his mother harassed her in the manner claimed in the petition. He would also deny the claim that they demanded dowry and other articles. He claimed that the appellant stayed in her parents house for long periods. The complaint given by the brother-in-law of the respondent, was only with a view to re-unite the couple and the same cannot be treated as any sort of cruelty. The respondent would claim that the appellant had agreed to live with him before the police authorities. But she did not join him at Mettur. On the above pleadings, the respondent sought for dismissal of the divorce petition.
3. The respondent had filed H.M.O.P.No.90 of 2002 on 27.02.2002, seeking restitution of conjugal rights. He claimed that the wife had deserted him without any just cause. Hence, he is entitled for restitution.
4. The said petition was resisted by the wife by filing counter to the said petition reiterating the allegations made in petition for divorce filed by her.
5. On the above pleadings, the learned Family Judge, Coimbatore framed the following issue in H.M.O.P.No.691 of 2001 :
Whether the petitioner is entitled to divorce on the grounds alleged by her ?
In H.M.O.P.No.90 of 2002, the following issue was framed :
Whether the husband is entitled for restitution of conjugal rights ?
6. The wife was examined as P.W.1 and her maternal uncle one Ramasamy was examined as P.W.2. Exhibits P1 to P29 were marked. The husband examined himself as R.W.1 and three other witnesses were examined on his side as R.Ws.2 to 4. Exhibits R1 to R22 were marked on the side of the respondent. On a consideration of the pleadings and the evidence on record, the learned Family Judge concluded that, with regard to the allegations of cruelty, the evidence of the wife as P.W.1 is not supported by any other reliable evidence. He also found that the evidence of the wife is not natural and reliable. On the above conclusions, the learned trial Judge dismissed the petition for divorce and granted the decree for restitution of conjugal rights in favour of the respondent. Aggrieved by the same, the wife has come forward with the above appeals.
7. Heard Mr. V. Raghavachari, learned counsel for the appellant and Mrs. R. Meenal, learned counsel for the respondent.
8. Mr. V. Raghavachari, learned counsel for the appellant would contend that the Family Court erred in concluding that the allegations of cruelty made by the appellant wife, were not proved. According to him, Ex.A-3 is the letter dated 10.02.1999 addressed by Dr.Tamil Mani to the Government Hospital, Udumalpet, which itself showed that she suffered injuries as a result of severe beating by the respondent. According to the learned counsel for the appellant, the contents of Exhibits-A13, A14, A15, A16 and A18 which were addressed to the Inspector of Police, B4, All Women Police Station, Coimbatore, would show that the husband has been acting cruelly and approaching the Police, even during the pendency of the proceedings for trial. A letter has been sent by the husband to the maternal uncle of the wife seeking his interference in the problems between the parties. According to the learned counsel, though Ex.A-20 appears to be very innocuous, it is filled with sarcasm. The learned counsel would submit that all these documents have been brought about during the pendency of the proceedings just to create evidence for the purpose of the proceedings. Learned counsel would rely upon Ex.A-21 letter written by the mother of the husband to the daughter-in-law, wherein she had admitted the interference by her son-in-law Hari in the marital life. Taking us through the contents of the letter, learned counsel would contend that the mother-in-law has admitted that she asked the appellant to hand over her salary to her. According to the learned counsel, there is an admission of the said fact in the said letter.
9. The learned counsel for the appellant would also invite our attention to Ex.A24 letter, dated 24.11.2000 written by her mother-in-law to her superior in the office seeking her interference. The learned counsel would also draw our attention to Ex.A27, dated 09.05.2002, wherein, the husband has required her to live with him. According to the learned counsel, this letter is again written to dilute the case of the appellant-wife in the divorce proceedings.
10. Referring to the other documents, the learned counsel for the appellant would contend that all these documents have been created after the filing of the proceedings just to confuse the case of the appellant-wife and created impression that the husband has always been ready to live with her.
11. Mrs. R. Meenal, learned counsel for the respondent-husband strenuously contended that there is no cruelty and the appellant-wife has no valid reason to stay away from the matrimonial life. According to the learned counsel, the documents, namely Exhibits A19, A20, A21, A22, A25, A27 and A28 would show that the husband and his family have been always requesting the wife to resume matrimonial life. According to the learned counsel, it is the wife who is guilty of deserting the husband without any reasonable cause. She would further contend that the Family Court, based on oral and documentary evidence, concluded that there is no ground made out for divorce.
12. On the above pleadings, the following point arises for determination on these appeals :
(i) Whether the wife has made out a case of cruelty so as to entitle her for decree for divorce ?
(ii) Whether the husband is entitled to decree for restitution of conjugal rights ?
13. The original proceedings commenced in the year 2001. At that time, the appellant-wife was aged 31 years and the respondent-husband was aged 41 years and almost 16 years had lapsed, and the husband is now aged about 57 years and the wife is aged about 48 years.
14. The learned counsel for the appellant would contend that the marriage has irretrievably broken down and no useful purpose would be served by preserving the said marriage. According to him, the parties have been living apart from the year from 1999, i.e., for a period of 18 years now. The fact that the parties are living apart for 18 years cannot be disputed. Ex.A3, letter written by Dr. M. Tamil Mani to the Duty Medical Officer, Government Hospital, Udumalpet reads as follows :-
"Dear Sir, Herewith referring this patient Mrs. L. Renuga Devi accompanied by her father Mr. V. Lingasamy presented to this Clinic as our patient on 10.02.1999 by 4 p.m. for treatment. She was alleged to have been assaulted by her husband Mr. G. Rajagopal on 09.02.1999 by 10 p.m. at Coimbatore in Podanur Raja Muthiah Nagar Mariamman Temple.(Regional language omitted)
On examination following injuries were found :
1. ....
2. ...
3. Laceration of 1 x � inch ... over the upper lip...."
15. After the above observations, the said Dr. Tamilmani had referred the patient for AR entry and police intimation. This document has not been seriously challenged by the husband. This by itself shows that the husband had in fact assaulted the wife on 09.02.1999 which led to the wife leaving the matrimonial home. On a perusal of Exhibits A13, A14, A15, A17, A18, A19 would show that the parties have been visiting the Police Station on some pretext or the other and even the brother-in-law of the husband had lodged a complaint with the police. These actions, according to the appellant-wife, would amount to cruelty. It is also stated that the husband had even induced Vaidegi, the wife of the brother, to lodge a complaint against her husband. The said Vaidegi under Ex.A29 requested the Inspector of Police, All Women Police Station, Udumalpet to drop further action on the basis of the complaint lodged by her.
16. The respondent has produced Exhibits.B11, B12, B13, B14 which are documents relating to the complaint lodged by Vaidegi against the brother of the appellant-wife and her parents. The copies of the documents were obtained by him from the Judicial Magistrate Court No.I at Tirupur. He also produced the paper cutting wherein the complaint given by the wife was reported. This action of the husband, according to the learned counsel Mr. V. Raghavachari, would show that he is bent upon tarnishing the image of the wife and her relatives. It is this complaint which has been withdrawn by the brother''s wife of the appellant, under Ex.A29. As we have already concluded that the claim of the wife that she was severely beaten on 09.02.1999, the same has been proved by Ex.A3. Though the learned counsel for the respondent-husband would contend that the other documents marked as Exhibits A13 to A15 and A17 to A29 would show the attempts were made by the husband to re-unite, and all of them arose after the proceedings. Ex.A24 has been written by the mother of the husband. On 23.02.1999, the husband has written to the appellant-wife and even in the said letter, he has said that he will solve the problems from the beginning. Thereafter, there is no attempt by the husband to join the wife prior to the institution of the proceedings. Even the application for restitution of conjugal rights, was filed after the initiation of divorce proceedings by the wife. Though the husband had denied the claim of the wife, it can be seen that from the language used in the letters and the various attempts made by him and his family members to make the wife suffer by approaching the police several times, even during the pendency of the proceedings, it would show that the husband is attempting to suppress the facts, which forced the wife to leave the matrimonial life. The fact that the attempts made by the husband on only lip services is clear from the language used by him in the letters. It is evident from Ex.B6, that it is not out of true affection for the wife. In the course of his evidence, the husband has also admitted the fact he demanded money from his father-in-law. The explanation for the demand of money, i.e., the father in law had agreed to share the marriage expenses, is quite unconvincing. The husband would rely upon the fact that he had sent birthday greetings to the wife under Ex.A25. A perusal of the document would show that it was sent only to create the evidence.
17. In view of the above, we are unable to agree with the findings of learned Family Judge that the wife has not made out a case of physical cruelty as well as mental cruelty, which would constitute a ground under Section 13(1)(ia) of the Hindu Marriage Act. The oral and documentary evidence clearly point out the fact that the husband had indeed treated the wife with cruelty inflicting both physical and mental cruelty. Therefore, we find that the appellant-wife is entitled to a decree for divorce on the ground of cruelty and the husband is not entitled to restitution of conjugal rights, since the wife is living away for just and sufficient cause.
18. In fine, both the appeals are allowed and we set aside the judgment and decree of the Family Court, dated 05.08.2004 and the petition for divorce in H.M.O.P. No. 691 of 2001, will stand allowed, dissolving the marriage and H.M.O.P. No. 90 of 2002 filed by the husband for restitution of rights, will stand dismissed. However, there shall be no order as to costs.
