Additional documents in appeal under order 41 rule 27 of CPC.

The scope of Order 41 Rule 27 CPC is very clear to the effect that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, unless they have shown that in spite of due diligence, they could not produce such documents and such documents are required to enable the court to pronounce proper judgment.

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IN THE HIGH COURT OF JUDICATURE AT MADRAS 

DATED : 04.07.2011

CORAM

The Honourable Mr. Justice ELIPE DHARMA RAO
and
The Honourable Mr. Justice M. VENUGOPAL

C.M.A.No.764 of 2009


Nalini Muthu     ..  Appellant 

      vs.

Muthu       ..  Respondent 

      
PRAYER: Appeal filed under Section 19 of the Family Courts Act, 1984 praying for the relief stated therein.

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  For appellant : Mr.J.Bijai Sundar
  For respondent  : Mr.Sureshkumar for 
      M/s.Kanna Associates.
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J U D G M E N T
(Judgment of the Court was delivered by M. VENUGOPAL,J.) The Appellant/Respondent [Wife] has filed the present civil miscellaneous appeal as against the order dated 28.1.2009 in O.P.No.1601 of 2004 passed by the I Additional Principal Judge, Family Court, Chennai.
2.The Respondent/Petitioner [Husband] has filed O.P.No.1601 of 2004 before the trial Court under Section 13(1)(ia) and Section 25 of the Hindu Marriage Act, 1955 praying for the dissolution of marriage between him and the Appellant/Wife solemnized on 20.4.1989 at Tirupur. According to the Respondent/Husband, his marriage with the Appellant/Wife took place on 20.4.1989 at Tirupur, according to the Hindu Rites and Customs. Thereafter, they lived as Husband and Wife at New No.84, Old No.87, 5th Street, Padmanabha Nagar, Adyar, Chennai, till April 2003. As a result of the wedlock, two daughters, viz., Mookambika and Sridevi, were born on 25.1.1990 and 4.6.1993 respectively.
3.It is the case of the Respondent/Husband that the Appellant/Wife was behaving very indifferently right from the first day of their marriage and had refused even to attend the daily chores, viz., cooking and cleaning the house, etc.
4.It is the plea of the Respondent/Husband that even after the birth of two children, the Appellant/Wife behaved irresponsibly by leaving to her father’s house without any information to him and refused to return to the matrimonial home for many months. Also, the Appellant/Wife often demanded money and jewels from the Respondent/Husband and had also compelled him to give exorbitant amounts to her father, without any rhyme or reason. Furthermore, the Respondent/Husband, from the date of their marriage, on many occasions, was forced to take his food outside for months together, since the Appellant/Wife refused to cook for him, which had put the Respondent/Husband to ill-health.
5.The further stand of the Respondent/Husband is that he is the Managing Director of his Company, where both male and female staff are employed. As a Managing Director, he used to interact with his staff, including female staff and the Appellant/Wife started suspecting him imagining that he would have had illicit relationship with his female staff and this attitude of the Appellant/wife in suspecting him started from the first day of the marriage. The Appellant/Wife always called upon his office and enquired with his staff about him. That apart, the Appellant/Wife had gone to the extent of suspecting her own sister, whenever she talked to the Respondent/Husband, which showed the psychic attitude of her. She also engaged detective agents to spy and monitor his day-to-day activities, which caused mental agony and distress to him and his privacy was unnecessarily disturbed due to her cheap attitude which resulted in filing of the H.M.O.P.No.1601 of 2004.
6.Conversely, the Appellant/Wife had denied the allegations made against her by the Respondent/Husband, in her counter. She had specifically stated that soon after their marriage, they shifted to Chennai and their first matrimonial home was a rented premises at Nandanam. While so, she was called for an interview for the selection of posting in S.B.I. and she was very eager to seek some employment to share the burden in view of the the then prevailing family circumstances of the matrimonial home. But the Respondent/Husband thwarted the same by stating that he would not allow his wife to work anywhere. Later, the matrimonial home was shifted to another rented house at Seethammal Colony, Teynampet. During their matrimonial homes at Nandanam and Seethammal Colony, there was a gradual improvement in their economic status by the work of the Respondent/Husband, but coupled with the participation of the Appellant/Wife, by pledging her jewels, etc.
7. Furthermore, the case of the Appellant/Wife is that during 1997, the Respondent/Husband had an extra marital relationship with a girl, who was working in his workplace and he continued the said relationship even after that girl’s marriage. The Respondent/Husband showed his anger by giving all sorts of mental agony and assaulted the Appellant/Wife. At one point of time, the Respondent/Husband drove away his parents for questioning his attitude. When the same became unbearable, the Appellant/Wife filed a complaint with All Women Police Station, Adyar and the Respondent/Husband was called for an enquiry. Thereafter, the Respondent/Husband turned again a family person by showing all his love and affection, which resulted in withdrawal of the police complaint. Subsequently, the Respondent/Husband helped the Appellant/Wife in starting a Beauty Parlour in the name and style of ‘Rapid Beauty Parlour’ by investing few thousands of rupees in the first floor of their house. But, at the instance of the Respondent/Husband, the said Parlour was closed after a year.
8. As per version of the Appellant/Wife that except for few months, no Cook was employed since their marriage and it is only she, who was Cooking for all along. The Respondent/Husband was taking his food in the house even few months before filing the petition. But, there was a change in his attitude and he, on his own, was refraining from taking food in the house.
9. The Respondent/Husband was indulging in another extra marital affair since 2003, which fact was known to everybody in his office and same resulted in his change of behaviour and attitude. This was one of the prime reasons for him in refusing to take food in the house. The Respondent/Husband was interacting with his daughters every day without any hindrance from her and therefore, the allegation that she prevented him from meeting the daughters was a false one.
10. The Respondent/Husband was continuing his illicit intimacy with another office staff. As the other Directors of the Company objected strongly and informed the Respondent/Husband that his illicit intimacy would spoil the reputation of the Company, he just created uncongenial atmosphere in the Office during January 2004 and other Directors dismissed the said staff from the job. The Respondent/Husband’s father came to know about this affair and he advised his son to sever connection with that woman and he directly informed the girl’s parents that the girl should not indulge in such activities. But, the Appellant/Wife, with an intention not to further precipitate the matter, after receipt of her husband’s lawyer’s notice dated 12.5.2004, sent a letter dated 22.5.2004 to the Respondent/Husband praying to live together at least in the interest and welfare of their daughters. Since there was no reply for the same, she sent a reply dated 16.6.2004 rejecting the demand of mutual divorce.
11. During trial, the Respondent/Husband examined himself as P.W.1, and Ex.P.1 Marriage Invitation was marked on his behalf. On the other hand, the Appellant/Wife examined herself as R.W.1 and Ex.R.1 was marked on her side. In M.P.No.3 of 2009 filed in the above Civil Miscellaneous Appeal, this Court, by order dated 11.11.2010, permitted the Appellant/Wife to file additional documents, which are marked as Exs.R.2 and R.3.
12. The trial court, on appreciation of the oral and documentary evidence let in by the parties, and after scrutinising the entire oral and documentary evidence on record, had come to a resultant conclusion that the parties were living separately from the year 2003 and that the Respondent/Husband had stated that he was put to mental cruelty in the hands of the Appellant/Wife and therefore, it was not possible for them to live together and held that the Respondent/Husband had proved that the Appellant/Wife had caused him mental and physical cruelty by her arrogant attitude and also by suspecting him and refused to provide him even food in the house. Also, the trial Court had come to the conclusion that though the parties were living in the same house, the Appellant/Wife refused the Respondent/Husband his conjugal rights and also prevented him from seeing his own daughters and thereby caused him mental cruelty.
13. In short, the trial Court had opined that there was no substantial evidence on the side of the Appellant/Wife to prove the allegations made against the Respondent/Husband and accordingly granted the relief of Decree of Divorce as prayed for by the Respondent/Husband.
14. The learned counsel for the Appellant/Wife urges before this Court that the trial Court had committed an error in shifting the burden of proof on the Appellant/Wife to prove her case. However, it is the submission of the learned counsel for the Appellant/Wife that the person, who wants a relief from a Court of law, had to prove his case to the hilt, but, this was not taken into consideration by the trial Court.
15. According to the learned counsel for the Appellant/Wife, the trial Court relied upon the evidence of the Respondent/Husband as P.W.1 and except the ipsi dixit of evidence, there was no other evidence to corroborate his version of the case.
16. It is the case of the Appellant/Wife that there was no misunderstanding between them, but the learned Judge held that there was misunderstanding from the very date of marriage, which is not correct on the basis of available materials on record.
17. The Learned counsel for the Appellant/Wife by pointing out to the effect that the Respondent/Husband had sworn to the effect that his monthly income is only Rs.2,500/- and in evidence, he had admitted before the trial Court that even before his marriage, his income was Rs.2,500/- and later on also his income exceeded more than Rs.2,500/- per month and in view of the evidence tendered by the Respondent/Husband, he had committed perjury of Court, and therefore, his evidence could not be relied upon by this Court.
18. The Learned counsel for the Appellant/Wife brings to the notice of this Court that Ex.R.2 reply issued by her to the legal notice issued by the Respondent/Husband shows that the wife was interested only to live with her Husband and in the said reply, she had only prayed for the past acts to be condoned in the interest of the children’s welfare. The Learned counsel for the Appellant/Wife placed reliance on a decision of the Supreme Court in Dr.N.G.Dastane vs. Mrs.S.Dastane reported in AIR 1975 SC 1534 wherein it is held as follows:-
“Doubtless, the burden must lie on the petitioner to establish his or her case for, ordinarily, the burden lies on the party which affirms a fact, not on the party which denies it. This principle accords with commonsense as it is so much easier to prove a positive than a negative. The petitioner must therefore prove that the respondent has treated him with cruelty within the meaning of Section 10(1) (b) of the Act.”
19. The next decision relied upon by the learned Counsel is one in 95 CWN 806 [Annapurna Ganguly v. Dipak Kumar Ganguly], wherein in paragraph No.7, among other things, it is inter alia observed as under:-
“… It is her evidence that “I also saw that after coming from office petitioner would go to Mandira with packets of sweets and stay there up to 2 night.” Annapurna suspected that Mandira’s husband Hemanta would allow Dipak to stay in his room because they could avail the railway passes obtained by Dipak. This suspicion by the wife about the character of the husband would undoubtedly amount to cruelty provided it is shown that the said conduct is likely to harm or injure the health, reputation, working career or the like of the other spouse. The threat by the wife to her husband that she will put an end to her own life or that she will set the house on fire, the threat that she will make him lose his job and have the matter published in newspapers and the persistent abuses and insults hurled at the husband and his parents are all of so grave an order as to imperil the husband’s sense of personal safety, mental happiness, job satisfaction and reputation are important considerations in determining whether the conduct of the respondent amounts to cruelty {see Dastane v. Dastane (supra)] In Krishna Sarbadhikari’s case (supra) similar observations were made by Their Lordships. We have so far discussed the circumstances which amount to “cruelty’ and those which do not and now we proceed to scrutinise the evidence adduced by the parties at the trial and to see how far and to what extent the petitioner Dipak, on whom lies the burden of proof, has been successful in making out the case of cruelty as one of the grounds justifying the decree of divorce.”
Further, in paragraph 10 of the said judgment, it is held as under:-
“…In the present case taking an overall picture of the conduct of the appellant wife and in the absence of any evidence that the suspicious conduct of the wife was such as to cause extreme mental distress to the husband or it was so grave an order as to imperial the husband’s sense of personal safety, mental happiness, job satisfaction and reputation”, we hold that the said conduct of the respondent did not amount to legal cruelty so as to justify a decree of divorce.”
In paragraph 14 of the said judgment, it is laid down as follows:-
“14.Divorce is not accure for the matrimonial unhappiness and may result in loneliness, despair and hardship more to the child who is 14 years of age. Dipak’s parents are dead. His two other brothers have already been married. Mandira, who incurred the displeasure of the wife, has shifted to her newly-built house. The size of the joint family has thus been reduced considerably. Dipak is 54 and Annapurna 52. It is not possible for them to start a new life at this age. Is the reconciliation still an impossibility? The marriage does not deserve dissolution and the petition of divorce is liable to be dismissed.”
20. The Learned counsel for the Appellant/Wife seeks in aid of the decision of the Hon’ble Supreme Court in S.Hanumantha Rao v. S.Ramani reported in [1999] 3 SCC 620, wherein it is held that hypersensitivity and panic reaction of complainant-spouse cannot be used to cast blame and make out a case of mental cruelty and further that wife’s parents seeking help of Women’s Protection Cell in bringing about reconciliation between estranged spouses and when there is no evidence of harassment by the Cell, the representation made by the wife’s parents to Women’s Protection Cell did not amount to mental cruelty.
21. The Learned counsel for the Appellant/Wife invites the attention of this Court to the decision in Shyam Lata vs. Suresh Kumar reported in AIR 1986 Punjab and Haryana 383, wherein it is held that on wife’s complaint, proceedings under Sections 107 and 151 initiated against the husband and his relatives and the proceedings dropped subsequently for want of prosecution, the institution of the said proceedings does not amount to cruelty justifying grant of divorce.
22. The learned counsel for the Appellant/Wife relies on the decision in Smt.Archana Mahajan vs. Vinod Mahajan reported in AIR 1998 Madhya Pradesh 220, wherein in paragraph No.21, 31, 32, 34 and 35, it is observed as follows:-
“21.In his evidence, he stated that once on account of the complaint made by Archana, he was transferred thrice in a year. He also stated that Archana had made allegations against him in Exs.P.4 and P.5 that he had illicit relations with Kirti Saxena, and had alleged that he wanted to marry that Kirti Saxena.
31.”Jealousy thy name is woman”. It may be a normal phenomenon in the married life of any persons. Does it amount to making the allegations against the husband charging him of unchastity? Does it amount to making the allegation against him of unchastity? No, unless it is baseless, malignant and disgusting. While assessing the evidence in respect of such averments, the Court has to be cautions about it because by such allegations and loose statements, some other person is likely to be maligned so far as his or her character is concerned. In the present case much has been said about Kirti Saxena without giving her opportunity of putting her say. Such allegations would be damaging her in her character, reputation and mind also. It was totally improper for the learned Judge to grant divorce in favour of respondent Vinod Mahajan and against the appellant on such documents Ex.P.4 and P.5 without making Kirti Saxena a party to proceedings. That may amount to a stigma to said Kirti Saxena who had no opportunity of defending herself from such allegations. When such allegations are made in the matrimonial petition such person must be impleaded as party and has to be awarded opportunity of putting his or her case. Reckless statements made against such person without impleading him or her in the matrimonial petition cannot be said to be proper and legal.
32. “Cruelty” is a relative tem. It varies from person to person, and case to case. The allegations and conduct does not amount to cruelty in every case. It depends on the status of spouses, atmosphere in which they live. That has to be understood by seeing neatly the back ground behind it and effect which is likely to be caused by such allegations and conduct.
34.The appellant and respondent are having two children a daughter and a son. Learned trial Judge should have also considered that. On such flimsy ground a decree of divorce cannot be granted putting future of such children to jeopardy. By such decree of divorce their future would be maligned and that would also be a stigma in their entire future life. That would shatter their minds also.
35.Thus, I have no hesitation in coming to the conclusion that decree of divorce dissolving marriage between the appellant and respondent is not correct, proper and legal; that has to be set aside.”
23. Yet another decision relied on by the learned counsel for the Appellant/Wife is in Devram Bilve vs. Indumati reported in [2000] 10 SCC 540, wherein the Hon’ble Supreme Court has held as follows:-
“The letters on the basis of which cruelty was sought to be established have not even been referred to by the Division Bench nor do they seem to have been analysed by the Single Judge. Both the courts did not appear to have gone into this aspect in great detail because they decided the appeal in favour of the respondent on the ground that the parties had lived together at Sagar Hotel at Indore and that amounted to an act of condonation. We have some doubt, on the basis of the evidence on record or the lack of it, whether this conclusion is correct and, therefore, it was important for the Single Judge as well as the Division Bench to have examined the evidence on record in order to determine whether the appellant herein had been able to prove that the respondent had committed such acts of cruelty which would entitle the appellant to get a decree of divorce.
24. The other decision relied on the by the learned Counsel is Premendra Gupta vs. Sunita Gupta reported in {2001} 2 MLJ 397, wherein it is observed as follows:-
A perusal of the evidence establishing that the conduct of the respondent never inflicted upon the appellant any such mental pain and suffering as would make it not possible for the appellant to live with the respondent. The respondent appears to have never uttered any such words so as to injure the feelings of the appellant and the activities of the respondent were also not of such nature that the appellant cannot reasonably be expected to live with the respondent.”
25. Apart from the above, it is the contention of the learned counsel for the Appellant/Wife that the Respondent/Husband even after getting the Decree of Divorce from the trial Court, had shown the name of his wife in the Medical Claim Policy taken by him and this shows that the Respondent/Husband is only interested in her and not seeking the relief of divorce.
26. Repelling the submission of the learned counsel for the Appellant/Wife, the learned counsel for the Respondent/Husband submits that from the year 1999, the Appellant/Wife and the Respondent/Husband were separated and they are living apart and the policy taken in the name of the Appellant/Wife is renewed periodically and it is only a continuing policy and therefore, the mere mention of the name of the Appellant/wife in the Medical Claim Policy taken by the Respondent/Husband will not in any way improve the case of the Appellant/Wife, when he had levelled the allegation of cruelty by the Appellant/Wife that he was having extra marital affair with a lady in his office, etc.
27. The Learned counsel for the Respondent/Husband contends that the Respondent/Husband is the Managing Director of a Company wherein 300 persons are employed and even when the Respondent/Husband had interacted with his staff muchless female staff, the Appellant/Wife used to suspect the Respondent/Husband and also enquired about him by giving phone call to the Office and also keeping him under surveillance. These acts unerringly point out that they come within the ambit and purview of the term ‘cruelty’ and because of the false allegations made against the Respondent/Husband by the Appellant/Wife, the Respondent/Husband was perforced to spend many sleepless nights and days.
28. It is to be noted that the concept of cruelty has been described in Halsbury’s Laws of England {Vol. 13, 4th Edition, para 1269} as under:-
The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant’s capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exists.
29. We deem it appropriate to recall the term “mental cruelty” from 24 American Jurisprudence 2d, wherein it is mentioned as below:-
Mental cruelty as a course of unprovoked conduct toward one’s spouse which causes embarrassment, humiliation, and anguish so as to render the spouse’s life miserable and unendurable. The plaintiff must show a course of conduct on the part of the defendant which so endangers the physical or mental health of the plaintiff as to render continued cohabitation unsafe or improper, although the plaintiff need not establish actual instances of physical abuse.
30. We aptly point out the Supreme Court decision in Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan reported in {1981} 4 SCC 250 wherein it is held as under:-
“… The concept of legal cruelty changes according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions, this feature has obtained legislative recognition, that a second marriage is a sufficient ground for separate residence and maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which lead to mental or legal cruelty.”
31. To constitute cruelty, the conduct of complaint must be a “grave and weighty one” so as to come to the conclusion that once spouse cannot reasonably be expected to live with the other spouse. The term ‘cruelty’ to be something more than serious than an ordinary wear and tear of marital life. The mental cruelty may consider all verbal abuses and insults by using filthy and abusive language in leading to persistent disturbance of mental peace of the other individual. Admittedly, “mental cruelty” is a problem of human behaviour.
32. In Simpson v. Simpson reported in 1951 P 320, the Court has opined as follows:-
When the legal conception of cruelty is described as being conduct of such a character as to cause danger to life, limb or health, bodily or mental, or to give rise to a reasonable apprehension of such danger, it is vital to bear in mind that it comprises two distinct elements: first, the ill-treatment complained of, and, secondly, the resultant danger or the apprehension thereof. Thus, it is inaccurate, and liable to lead to confusion, if the word cruelty is used as descriptive only of the conduct complained of, apart from its effect on the victim.”
33. In cases of cruelty or mental cruelty, it is not necessary that there should be any physical violence or physical injury being caused to a person by another person. Even a mental or moral cruelty is recognized by the courts of law. Numerous acts of purported cruelty, physical or mental cruelty must not be taken separately. Several acts considered separately in isolation may be small and not hurtful, but when considered in a cumulative fashion, they might come well within the purview of cruelty. Interestingly, in an American case in Jem v. Jem 33 reported in [1937] 34 Haw 312, the Honourable Supreme Court of Hawii aptly mentioned that cruel treatment not amounting to physical cruelty is mental cruelty.
34. In Rosenbaum v. Rosenbaum reported in [1976] 38 111 App 3d 1, the Appellate Court of Illinois held as under:-
To prove a case entitling a spouse to divorce on the ground of mental cruelty, the evidence must show that the conduct of the offending spouse is unprovoked and constitutes a course of abusive and humiliating treatment that actually affects the physical or mental health of the other spouse, making the life of the complaining spouse miserable, or endangering his or her life, person or health.
35. The concept of mental cruelty cannot remain static. There can never be any fixed parameter for mental cruelty in matrimonial cases. However, the Honb’ble Supreme Court in the decision inSamar Ghosh v. Jaya Ghosh reported in [2007] 4 SCC 511, at paragraph No.101, has enumerated certain instances of human behaviour, which may be relevant in dealing with the case of mental cruelty. The relevant paragraph is extracted as under:-
“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, 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.
(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.
(xiv) 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 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.”
36. In Manisha Tyagi v. Deepak Kumar reported in I [2010] DMC 451 (SC), the Honourable Supreme Court, in paragraph Nos.24 and 25, has held as under:-
“24. This is no longer the required standard. Now it would be sufficient to show that the conduct of one of the spouses is so abnormal and below the accepted norm that the other spouse could not reasonably be expected to put up with it. The conduct is no longer required to be so atrociously abominable which would cause a reasonable apprehension that it would be harmful or injurious to continue the cohabitation with the other spouse. Therefore to establish cruelty it is not necessary that physical violence should be used. However, continued ill-treatment, cessation of marital intercourse, studied neglect, indifference of one spouse to the other may lead to an inference of cruelty. However, in this case even with aforesaid standard both the trial court and the appellate court had accepted that the conduct of the wife did not amount to cruelty of such a nature to enable the husband to obtain a decree of divorce.”
“25. We may notice here the observations made by this Court in Shobha Rani v. Madhukar Reddi, I (1988) DMC 12 (SC) = (1988) 1 SCC 105 wherein the concept of cruelty has been stated as under:
The word cruelty has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i-a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment.
37.The mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. While ariving at a conclusion as regards ‘cruelty’ the social status, educational level of the parties, society thy move in, the possibility or otherwise of parties ever living together in case they are living separately are to be taken into account by the Court concerned.
38.The burden of proving adultery under the Hindu Marriage Act is of a civil nature by means of preponderance of probabilities and not by way of proving it beyond reasonable doubt as per decision of the Honourable Supreme Court Dastane v. Dastane, AIR 1975 SC 1534.
39.The general evidence of ill repute of the husband or of the lewd company that he keeps or even that he knows the addresses of prostitutes and was seen with doubtful women would neither prove nor probabilise adultery as per decision Dan Henderson v. D. Henderson, AIR 1970 Madras 104 (Division Bench).
40. As far as the present case is concerned, the Respondent/Husband is admittedly the Managing Director of his Company where 300 persons are employed in different age groups, including males and females. The Respondent/Husband had stated that the Appellant/Wife whenever he talked with his staff, especially with the female staff, then the Appellant/Wife suspected that he is having extra marital affair with his staff. The Appellant/Wife had specifically stated that the Respondent/Husband had an extra marital relationship during the year 1997 with another girl who was working in his work place and even after that girl’s marriage, he continued the same and therefore, the Respondent/Husband assaulted her. Also, the Appellant/Wife had stated that the Respondent/Husband was indulging in another extra marital affair since September, 2003.
41. In the instant case, the Appellant/Wife had made allegations against the Respondent/Husband that he was having an extra marital relationship with a girl in his office during 1997 and again had another extra marital affair since September, 2003. It is the well accepted principle of law that when a person makes an allegation in respect of a particular averment, then the burden of proving the said allegation lies on him or her. In the case on hand, the Appellant/Wife even though had levelled serious allegations against the Respondent/Husband, that he was having an affair with a girl in his work place during 1997 and later indulged in another extra marital affair since September, 2003 were not proved to the subjective satisfaction of the Court. These allegations when not proved by the person who made the same, naturally, it constitutes cruelty resulting in mental agony and loss of peace of mind to the other spouse. By making these kind of allegations mentioned supra and later not proving the same against the Respondent/Husband by the Appellant/Wife, in our considered view, had caused mental hardship and cruelty to the Respondent/Husband.
42. It cannot be gainsaid that in the cross-examination of P.W.1 {Respondent/Husband}, the Appellant/Wife had suggested that her husband had illicit relationship with a lady by name Misha. Also, the Appellant/Wife though had come out with a stand that her father-in-law and mother-in-law had advised the Respondent/Husband to change his attitude in regard to his extra marital affair, surprisingly, except herself being examined as R.W.1, none had appeared as a witness on her behalf and in short, we are of the considered view that because of the allegations made by the Appellant/Wife against the Respondent/Husband that he was having extra marital affair with his staff, etc., the relationship between them had strained considerably and it has reached the stage of point of no return. In short, the marriage between the Appellant/Wife and the Respondent/Husband had irretrievably broken down and it is beyond repair. A marriage being dead practically and emotionally, the continuance of the same will procastinate the mental agony and affliction and it is cruelty. Therefore, on the basis of available materials on record, and on perusal of the entire oral and documentary evidence, we come to an inevitable conclusion that the Respondent/Husband had established before the trial Court that the Appellant/wife had caused mental cruelty to him and accordingly, he had established the same before the trial Court, which rightly granted the decree of Dissolution of Marriage that took place between the parties on 20.4.1989 at Tiruppur. Suffice it to point out that the said order of the trial court in allowing O.P.No.1602 of 2004 filed by the Respondent/Husband against the Appellant/Wife by means of an order dated 28.1.2009 does not suffer from any serious material irregularity or patent illegality. Consequently, the Civil Miscellaneous Appeal is devoid of merits.
43. In the result, the Civil Miscellaneous Appeal is dismissed leaving the parties to bear their own costs. The order dated 28.1.2009 in O.P.No.1601 of 2004 passed by the I Additional Principal Judge, Family Court, Chennai, is confirmed, for the reasons assigned in the Civil Miscellaneous Appeal. Consequently, M.P.Nos.1 and 2 of 2009 are closed.
44. So far as M.P.No.1 of 2011 seeking to file additional documents, under Order XLI, Rule 27 CPC, which are the LIC, Medical Claim Policies and Hospitalisation of Benefit Policy (9 in numbers) dated 14.10.200, 12,12.2000, 08.01.2001, 28.03.2005, 28.03.2005, 03.04.2009, 03.04.2009, and 30.03.2009respectively and M.P.No.1 of 2011 seeking to permit the Appellant/Wife to examine one T.C.Paramasivam, her father-in-law as R.W.2 as additional witness, under Order XLI, Rule 27(1)(b) CPC, we are of the considered opinion that the Petitioner/Appellant {wife} had not made out a sufficient or good cause enabling this Court to allow these petitions and there are no tangible explanations put forward on the side of the petitioner/Appellant to show as to why these documents were not filed by her earlier during trial in the Original Petition before the trial Court. Only for securing the ends of justice, the petition to receive the additional documents are to be accepted by this Court. The Appellant/Wife cannot claim as a matter of right to produce any document or examine any witness before the Appellate Authority. The discretion to receive any evidence documentary or oral rests with the Appellate Authority as per decision of the Honourable Supreme Court Basayya I. Mathad v. Rudrayya S. Mathad and Others, 2008 (3) SCC 120. However, it is to be borne in mind that the petition to receive additional documents cannot be projected either to fill up the gap in evidence tendered before the trial court by the respective parties or to fill up the weakness of one’s case. It is held in N.Kamalam (Dead) and another v. Ayyasamy and another, (2001) 7 Supreme Court Cases 503 that oral evidence after a long time gap, the High Court must be cautious about allowing applications seeking to adduce of additional evidence particularly in the form of oral evidence after along interval between the decree and the application As a matter of fact, the ingredients of Order 41 Rule 27 of CPC have not been enumerated in Civil Procedure Code so as to patch up the weak points in the case and to fill up the omission in the Court of Appeal. Indeed, the power under Order 41 Rule 27 of CPC are to be exercised sparingly and with care circumspection. Even in regard to the permission being sought for on the side of he Appellant/Wife to examine her father-in-law as R.W.2 in M.P.No.1 of 2011, we are of the considered view that though the Appellant/Wife before the trial Court had stated that her father-in-law had known about the Respondent/Husband’s conduct pertaining to his extra marital affair with ladies, etc. when ample opportunities were available to her in the trial Court why that was not utilised or availed of by her in examining her father-in-law was not satisfactorily explained before this Court.
45. At this stage, we deem it appropriate to recall the decision M.Harinarayana @ Haribabu V. Smt.P.Swaroopa Rani 2008 (6) ALT 378 (D.B.) at page 380 wherein it is held as follows:
Under Order 41, Rule 27 CPC a party is permitted to adduce additional evidence only if he establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against him was passed.
27. In the instant case, as rightly pointed out by the learned counsel appearing for the appellant that the certificate was said to be issued by the District Treasury Office on 16.12.2005, whereas it was well within the knowledge of respondent that the date of execution mentioned in Ex.A-15 was not correct. Such being the situation, the respondent could have adduced the proposed additional evidence in the trial Court itself but failed to do so. There is no proper explanation from the respondent by which cause he was prevented from adducing the said evidence before the trial Court. As such, the respondent failed to establish that notwithstanding the exercise of due diligence, he could not be able to adduce the proposed additional evidence before the trial Court. Under these circumstances, the proposed additional evidence cannot be admitted in this appeal and the A.S.M.P.No.1142 of 2006 filed by the respondent to receive the certificates issued by the District Treasury Office as additional evidence is hereby dismissed.
46. We also aptly point out the decision of the Hon’ble Supreme Court in Hindustan Brown Boverl, Ltd., V. Their Workmen and another 1968 (1) L.L.J. 571 at page 575 & 576 whereby and whereunder, it is, among other things, observed as follows:
Now, the principles on which the appellate Court permits additional evidence are well known. It is quite clear that this is not a case where the company can avail itself of any of these principles. There is no manner of doubt that the company was negligent in not producing the document. This is therefore, not a case where the company could not produce this additional evidence or was prevented from doing so, or that it has now discovered a fresh piece of evidence. In these circumstances, we would not be justified in granting at this late stage leave to produce additional evidence. In the absence of such evidence the company obviously must be held to have failed to establish delegation of power of dismissal to the works manager.
47. Further, in T.Paramasivam V. N.Babu and another (2008) 5 MLJ 68 at page 78 in paragraph 36, this Court has held as follows:
36. It is also clear that, even though the appellant had knowledge of the existence of the said documents, he has chosen not to mark them as documentary evidence before the trial Court as well as the first Appellate Court. Even though this Court has the power, under Order XLI Rule 27 of the Civil Procedure Code, 1908, to permit marking of documents at this stage in the interest of justice, this Court is of the considered view that such a necessity does not arise in the present case. The appellant has not been in a position to give a sufficient reason or an acceptable explanation as to why he could not mark the documents said to be in his favour at an earlier stage. When both the courts below, after carefully analysing the evidence on record, had found that the first defendant had sold the suit property to the plaintiff in the suit for a valid consideration, by executing a sale deed, dated 02.01.1993, marked as Ex.A-4, this Court does not find sufficient grounds to interfere with the said findings of the Courts below. The petition filed by the appellant in C.M.P.No.2225 of 2007 is belated and if the prayer therein is granted it would cause grave prejudice to the respondents. Therefore, the CMP stands dismissed.
48. In the decision of the Hon’ble Supreme Court Karnataka Board of Wakf V. Government of India and others (2004) 10 Supreme Court Cases 779 at page 781, the Hon’ble Supreme Court has laid down as follows:
The scope of Order 41 Rule 27 CPC is very clear to the effect that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, unless they have shown that in spite of due diligence, they could not produce such documents and such documents are required to enable the court to pronounce proper judgment.
49. In A.Ravishankar Shetty and Another V. Suresh Chadaga P.S. & Another AIR 2009 (NOC) 2374 (Kar.) it is, inter alia, observed that ‘… However, it is clear from the evidence of tenant that they had submitted the said document for securing loan from Bank to show that they are tenants of suit premises and for declaration of their hotel for business purpose’ and held that ‘it is clear that original lease deed which is now sought to be produced was very much with tenants and for reasons best known to them said document was not produced in the Court below and as such, the tenant cannot be allowed to produce additional documents.’
50. In RM. AR. AR. RM. AR. Ramanathan Chettiar V. VT. RM. K.Ramasami Chettiar (1980) 1 M.L.J. 178, this Court has held hereunder:
The provisions of Order 41, rule 27 Civil Procedure Code are not meant to enable either party to the suit to fill up the gaps in the evidence or to better their case, in the appellate Court when once they find that the evidence which they had chosen to let in the trial Court is found by the Appellate Court to be insufficient to justify their case.
51. In the decision of Hon’ble Supreme Court State of Gujarat and another V. Mahendrakumar Parshottambhai Desai (Dead) by Lrs. (2006) 9 Supreme Court Cases 772 at page 775 wherein at paragraph 10 and 11, it is laid down as follows:
10.We shall first deal with the appeals preferred against the judgment and order of the High Court rejecting Civil Application Nos. 964 and 1150 of 2002 filed by the appellants herein for adducing additional evidence under Order XLI Rule 27 of the Code of Civil Procedure. The documents sought to be produced were contained in Annexure I to the applications. The applications were opposed by the respondents. It was submitted on behalf of the appellants that the applications may be treated as one under Order XLI Rule 27(1)(b) of the Code of Civil Procedure, apparently because the other provisions or the rule did not apply to the facts and circumstances of the case. The High Court noticed that a similar Civil Application being No. 4849 of 2000 had been filed earlier when this appeal had been placed for hearing before another Division Bench of the High Court, but the said application was rejected by order dated June 22, 2000. The High Court further found that Rule 27(1)(b) of Order XLI can be invoked only if the Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. In the instant case it was not as if the additional evidence was required by the Court to enable it to pronounce judgment and, therefore, additional evidence was sought to be adduced for “substantial cause” since serious prejudice would be caused to the appellants if the additional evidence was not permitted to be adduced. Reliance was placed on the judgment of this Court in Municipal Corporation of Greater Bombay vs. Lala Pancham and others : AIR 1965 SC 1008 wherein this Court held that though the appellate Court has the power to allow a document to be produced and a witness to be examined under Order XLI Rule 27 CPC, the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision did not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in the case. It does not entitle the appellate court to let in fresh evidence only for purposes of pronouncement of judgment in a particular way. The High Court referred to the earlier proceedings before various authorities and came to the conclusion that though the appellants had sufficient opportunity to bring the evidence on record,, for reasons best known to it, the State did not produce the entire evidence before the trial court and it was only 8 years after the dismissal of the suit that the applications were filed for adducing additional evidence in the appeal. The High Court, therefore, dismissed the applications for adducing additional evidence.
11.We find no error in the approach of the High Court. We have earlier noticed the long history of litigation which preceded the filing of the suit. The documents sought to be brought on record are not documents which were discovered later or came into existence after the filing of the suit. The documents are part of the Government records and they could have been produced in the suit.
52. It is to be pointed out that as per Order XLI Rule 27 of the Code of Civil Procedure, it is the duty of the Petitioner/Appellant/ Wife to establish to the satisfaction of this Court as to why she had not projected the documents mentioned in M.P.No.1 of 2011 before the trial Court during the time of trial. It is the duty of the Appellant/Petitioner to set out a good case/sufficient cause for not filing the said documents and also to explain the circumstances which prevented her from not filing the aforesaid documents in a diligent fashion before the trial Court. But, in the present case, the Petitioner/Appellant has not made out a case in M.P.No.1 of 2011 to receive additional documents and also in M.P.No.1 of 2011 has not satisfactorily explained as to why she had not made use of the opportunity in examining her father in law as RW2 before the trial Court.
53. In that view of the matter, the Miscellaneous Petitions are dismissed to prevent an aberration of justice.
       (E.D.R.,J.)     (M.V.,J.)
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