TMI Blog2012 (12) TMI 1004X X X X Extracts X X X X X X X X Extracts X X X X ..... the husband was not entitled to return of jewels or any other item from the wife in the absence of any cogent evidence in that regard. The learned Family Judge, while passing the decree for dissolution of marriage, directed to pay permanent alimony of ₹ 5 lacs each to the wife and her minor son within a month. 3. Being dissatisfied by the common order, the appellant-wife preferred C.M.A. No. 1656 of 2010 and C.M.A. No. 1657 of 2010 in the High Court of Judicature at Madras and the Division Bench concurred with the conclusion as regards the decree of dissolution of marriage as a consequence of which both the appeals had to meet the fate of dismissal. However, the Bench, apart from concurring with the grant of permanent alimony, directed the respondent-husband to pay a sum of maintenance amounting to ₹ 12,500/- to the appellant-wife and her son from the date of order passed by the Chief Metropolitan Magistrate at Hyderabad till the date of the order passed by the High Court. Hence, the present two appeals have been preferred by special leave assailing the common judgment passed by the High Court in both the appeals. 4. The facts requisite to be stated for adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gifts received by him in India and abroad in recognition of his performance in music. Regard being had to the physical safety of the wife and the child, he requested his father to escort them to Hyderabad. While she was at Hyderabad, she spread rumours among the relatives and friends pertaining to his fidelity, character and habits. It was further asserted by the husband that she had filed the petition only to harass him and, in fact, the manner in which he had been treated clearly exhibited mental cruelty and, therefore, the said relief should not be granted. It was averred that in view of the treatment meted out to the husband, dissolution of marriage was the only solution and not restitution of conjugal rights. 6. The respondent, in his petition for divorce, pleaded that after abandoning formal education, he pursued his career in music treating it as a concept of bhakti or devotion. He had to continue his sadhana as a daily routine under the guidance of his father as it was necessary to understand the nuances and the subtleties of music which could only be gathered by experience and acquisition of knowledge at the feet of a guru and also to keep alive the Guru- Sishya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for grant of a decree of divorce. 8. The learned Family Judge framed seven issues and, considering the oral and documentary evidence brought on record, came to hold that the wife had treated the husband with cruelty; that she had not taken any steps for re-union and had deserted him for thirteen years without any valid reason and, hence, the husband was entitled for a decree of divorce and she was not entitled to have a decree for restitution of conjugal rights. The learned Family Judge directed that the custody of the child should remain with the mother and the husband had miserably failed to make out a case for return of jewels and other items. He granted permanent alimony as stated earlier. 9. Being grieved by the aforesaid decision of the learned Family Judge, the wife preferred two appeals. On behalf of the appellant-wife, it was urged before the High court that the judgment and decree passed by the Family Court regarding grant of divorce was passed on assumptions and presumptions; that she had suffered immense humiliation and hardship at the hands of the family members of the husband but the Family Court did not appreciate the said facet in proper perspective; that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll-treated and on the other that there was cordial relationship. As is noticeable, the High Court referred to the xerox copy of the letter Exhibit R-8 dated 18.10.1995 written in her handwriting to her parents and observed that when the said letter was summoned from her father she stated that there was no such letter and on that ground the admissibility was called in question. The High Court opined that when the efforts were made to get the primary evidence and it could not be obtained, the secondary evidence could be adduced and that would be admissible under Section 65 of the Evidence Act. Be it noted, the English translation of the said letter was marked as Exhibit R-9 which indicated that the wife had clearly stated that she had spoken ill of her mother-in-law and others and had expressed her desire to seek divorce as she could not stay any longer in the matrimonial home. It was observed by the Bench that the conduct of the wife clearly established desertion and her behaviourial pattern exhibited mental cruelty meted out to the husband. The High Court also took note of the fact that a stage had reached where it had become well nigh impossible for the couple to live together. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not produced the same, it can be regarded as a proper foundation to lead secondary evidence. In this context, we may usefully refer to the decision in Ashok Dulichand v. Madahavlal Dube[(1975) 4 SCC 664] wherein it has been held that according to clause (a) of Section 65 of the Indian Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it. Thereafter, the Court addressed to the facts of the case and opined thus: - In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on July 4, 1973, before Respondent 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed photostat copy. Prayer was also made by the appellant that in case Respondent 1 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party. 17. Recently, in H. Siddiqui (Dead) by Lrs. v. A. Ramalingam[(2011) 4 SCC 240], while dealing with Section 65 of the Evidence Act, this Court opined though the said provision permits the parties to adduce secondary evidence, yet such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It has been further held that mere admission of a document in evidence does not amount to its proof. Therefore, it is the obligation of the Court to decide the question o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty. 20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial cases can be of infinite variety-it may be subtle or even brutal and may be by gestures and words. 22. Recently, this Court, in Vishwanath Agrawal, s/o Sitaram Agrawal v. Sarla Vishwanath Agrawal[(2012) 7 SCC 288], while dealing with the conception of cruelty, has stated that it has inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationsh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considering the scope of Article 136 as to when this Court is entitled to upset a finding of fact, has observed thus: - 5. At the very outset we may mention that in an appeal under Article 136 of the Constitution this Court does not normally reappraise the evidence by itself and go into the question of credibility of the witnesses and the assessment of the evidence by the High Court is accepted by the Supreme Court as final unless, of course, the appreciation of evidence and finding is vitiated by any error of law of procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the evidence on record. 25. In Bharat Coking Coal Ltd. v. Karam Chand Thapar Bros. Pvt. Ltd.[ (2003) 1 SCC 6], this Court opined that the jurisprudence under Article 136 stands out to be extremely wide but that does not, however, warrant intervention in a situation having concurrent set of facts and an appeal therefrom on the factual issue. The article has been engrafted by the founding fathers of the Constitution for the purposes of avoiding mischief and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated by any error of law of procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the evidence on record. 27. In Dubaria v. Har Prasad and Another[(2009) 9 SCC 346], it has been held that when there is infirmity in the decision because of excluding, ignoring and overlooking the abundant materials and the evidence, if considered in proper perspective, would have led to conclusion contrary to the one taken by both the High Court as well as the fora below, it would be open to this Court to interfere with the concurrent findings of fact. 28. Tested on the touchstone of the aforesaid principles, we have no trace of doubt that the finding returned by the Family Judge which has been given the stamp of approval by the High Court relating to mental cruelty cannot be said to be in ignorance of material evidence or exclusion of pertaining materials or based on perverse reasoning. In our view, the conclusion on that score clearly rests on proper appreciation of facts and, hence, we concur with the same. 29. Presently, we shall advert to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d senior counsel appearing for the respondent to ask his client to arrange for one flat for the petitioner and their so that they can live in the said flat comfortably. On this suggestion, being given by the Court, learned senior counsel appearing for the respondent prayed for time to seek instructions. 32. On 30.4.2012, the following order came to be passed:- As per the Order passed by this Court on 09.04.2012, learned senior counsel appearing for the respondent-husband informed that respondent is ready and willing to buy a flat for the petitioner in Hyderabad, so that she will have a roof over her head for all the times to come. However, the details of the same are required to be worked out. It is, therefore, desirable that both the parties should remain present in this Court on 10.07.2012. Without prejudice, a sum of ₹ 10 lakhs by way of Demand Draft is being paid by the respondent- husband to petitioner- wife. Other ₹ 10 lakhs is in deposit with the Family Court at Chennai. Petitioner will be at liberty to withdraw this amount. 33. We have reproduced the aforesaid orders to highlight that the husband had agreed to buy a flat at Hyderabad. How ..... X X X X Extracts X X X X X X X X Extracts X X X X
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