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D.Sundarajan vs Chithra on 17 September, 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated: 17.09.2018

CORAM

THE HON’BLE MR. JUSTICE M.V.MURALIDARAN

C.M.S.A.(MD) No.16 of 2016

D.Sundarajan … Appellant

vs

Chithra .. Respondent

Prayer: Appeal filed under Section 28 of the Hindu Marriage Act, 1985,
against the Decree and Judgment dated 12.02.2016 made in CMA.No.5 of 2013 on
the file of the Principal District Court, Pudukottai, confirming the Judgment
and Decree dated 15.03.2013 made in HMOP.No.57 of 2012 on the file of the
Sub-Court, Pudukottai.

!For Appellant:Mr.M.Karunanithi
for Mr.D.Ramesh Kumar

^For Respondent:Mr.A.V.Rajasekaran

:ORDER

This Civil Miscellaneous Second Appeal arises out of the Judgment and
Decree dated 12.02.2016 made in H.M.C.M.A.No.5 of 2013, passed by the learned
Principal District Judge, Pudukottai, confirming the Judgment and Decree
dated 15.03.2013 made in H.M.O.P.No.57 of 2012 passed by the learned
Subordinate Judge, Pudukottai.

2.The appeal was heard on the following substantial questions of law:-
?i) Whether the Lower Appellate Court being the last Court on facts has erred
in dismissing the appeal without taking into consideration of the entire
pleadings and the evidence available on record?

ii) Whether the Courts below have erred in non suiting the Appellant on the
ground of cruelty especially when the relief of divorce cannot be denied that
there has been no deliberate or wilful illtreatment?

iii) Whether the Appellant is entitled to the relief of divorce based on the
subsequent event as held by apex Court in the reported case in Dr. Mr.
Malathi Rai MD Vs Dr B.V. Ram MD 2015(1) LW 775(SC)?

iv) Whether the Courts below have erred in dismissing the divorce petition on
the ground the mental cruelty under section 13(1)(ia) irrespective of the
filing false criminal complaint by the Respondent which would constitute
mental cruelty entitling the other spouse to claim a divorce as held by
Supreme Court in 2015(4) LW671?

v) Whether the Courts below have erred in dismissing the divorce petition
especially when the appellant had pleaded the instances of the mental cruelty
as contemplated under order 6 Rule 3 of CPC and proved in a manner known to
law?

vi) Whether the Appellant is entitled to the relief of divorce on the ground
of Cruelty and desertion taking into subsequent events and the concept of
irretrievable break down of the marriage as held in 2014(3)LW 577?

vii) Whether the conduct of the wife in filing false case against the husband
would amount to mental cruelty and whether the finding of the lower appellate
Court that the dismissal of the criminal complaint under Domestic Violence
Act for non appearance of the complainant under section 256 of Criminal
Procedure code is valid in law?

viii) Whether the Lower appellate Court is correct in non considering the
judgment dismissing the criminal complaint under section 256 of Criminal
procedure code especially when law is well settled that acquittal of accused
on the complainant?s non appearance is valid?

3.The Brief facts, necessary for disposal of the appeal are as follows:
The Appellant is the husband and the Respondent is the wife. The marriage
between them was solemnized on 13.05.1999 according to Hindu rites and
Customs. 30.06.2002. After the marriage the couple started their matrimonial
life at New Delhi. Due to their wedlock one male child was born on 01.12.2000
and female child was born on 05.07.2004. The appellant has stated that the
respondent right from the date of marriage has shown indifferent attitude
towards him and she never get mingled with her in-laws. Even for trivial
reasons the respondent would raise quarrel with the appellant and she started
suspecting the appellant in every occasion. During the year 2005, the son of
the appellant was diagnosed for a skin disease namely Morphea and both the
appellant and the respondent had taken their son to various hospitals for the
treatment. Though the appellant has put his utmost sincere and care towards
the son during the treatment, the respondent would harass the appellant and
used to fight everyday for no reasons. On several occasions the respondent
was very careless towards her son during the treatment period. During the
month of October 2006 the appellant shifted his job to Bangalore. In the 1st
week of January 2007, the appellant went to United States for his official
duty for two weeks and on his return, the respondent accused the appellant by
saying that he was having illicit relationship with his brother?s wife.
Thereafter the respondent had left the matrimonial home voluntarily in the
month of January, 2007 and had not returned to the matrimonial home till
date. It is the further case of the appellant that during his absence in the
month of May, 2007 the respondent who was having one set of house keys,
entered into the residence at Bangalore and taken several valuables and gold
articles. The appellant later found the same and gave a complaint under Ex.P3
before the Local Police. Even on one occasion the respondent accompanied with
her father, brother and 4 unknown persons, went to the house of the appellant
in his absence and threatened his parents with dire consequences. Thereafter
the respondent instituted a criminal complaint against the appellant and his
parents including his brother and his wife in Cr.M.P.No.2070 of 2010 before
the Learned Judicial Magistrate, Pudukottai and subsequently the same was
dismissed for non prosecution. Subsequently the respondent filed a
maintenance case seeking maintenance for the children. The appellant has been
paying maintenance at the rate of Rs7,000/- for his son and Rs.3,000/- for
his daughter, till date without any fail. Since the respondent has caused
mental cruelty to the appellant and left the matrimonial home voluntarily, he
filed the HMOP seeking divorce on the ground of cruelty and desertion.

4.The respondent/wife resisted the petition by filing counter statement
attributing fault on the part of her husband and in-laws and alleged
harassment at the hands of her in-laws. The appellant/wife in her counter
statement stated that only her husband had deserted her and he had not taken
any steps for reunion. The respondent accused her husband for not giving
proper care and treatment to her son. Despite the harassment and desertion on
the part of the husband, initially she had not chosen to give any criminal
complaint. But due to the conduct of the husband she was constrained to lodge
the complaint under the domestic violence Act. The respondent specifically
denied all the allegations in her counter.

5.In order to prove their respective case, the Appellant/husband was
examined as P.W. 1. The sister of the appellant namely Mrs.Radha was examined
on the side of the appellant as P.W.2 and friend of the Appellant namely
Mr.Ashutosh Joshi was examined on the side of the appellant as P.W.3 and
Exs.P.1 to Ex.P.3 were marked on the side of the appellant. The respondent/
wife examined as R.W 1 and her father was examined as R.W.2 and no exhibits
were marked on the side of the respondent. The Trial Court after evaluation
of entire evidence adduced by both parties dismissed the HMOP petition filed
by the Appellant/husband on the ground that the husband has failed to prove
that the conduct of the respondent/wife had inflicted mental cruelty and
observed that in the interest of the Minor son, the couple should forego
their egos and should rejoin. On appeal, the Lower Appellate Court has given
a finding that the appellant/husband has not proved the case of mental
cruelty and dismissed the Appeal. The lower Appellate Court has also given
the similar observation made by the Trial Court. As against the dismissals
suffered in the Courts below, the appellant/husband has come forward with
this appeal.

6.I heard Mr.M.Karunanithi for Mr.D.Ramesh Kumar, learned counsel
appearing for the appellant and Mr.A.V.Rajasekaran, learned counsel for the
respondent and perused the entire materials available on record.

7.The contention of the learned counsel for the Appellant/husband is
that the Courts below did not consider the allegation of cruelty raised by
the Husband on proper factual matrix and legal perspective. Though the
learned counsel has cited several events for making out a case of cruelty, he
mainly argued on two contentions. Firstly, the learned counsel contended that
the character assassination done by the wife to the husband by making
accusation that the husband was having illicit relationship with his
brother?s wife, so as to destroy not only her matrimonial life but also of
the brother of her husband is amounts to mental cruelty. Apart from this the
husband contended that his wife had gone to the extent of insisting for DNA
test for him and the child born to his brother. It is the further contention
that in the presence of several members of the family the respondent has
defamed him by suspecting his character. The learned counsel would draw the
attention of this Court through the evidence of the P.W.2 and P.W.3. The
P.W.2 in her evidence has deposed that several times the respondent/wife had
abused the appellant by saying that he is having illicit conduct with his
brother?s wife and she insisted for DNA test. Further the learned counsel
would draw the attention of the Court through the evidence of P.W.3. The
P.W.3, who is a friend of the Appellant has deposed that after the marriage
he had invited the couple for dinner at his residence and at that time the
respondent made a query with him as to whether her husband was having illicit
conduct with any other women. Further the P.W.3 has deposed that on several
occasion he had seen respondent talking about the character of the appellant.
The learned counsel contended that this evidence was not properly appreciated
by the Courts below and without any valid reason the Courts below have
ignored the statements of the P.W.2 and P.W.3. Secondly, the learned counsel
would contend that the Courts below have also failed to consider the fact
that the respondent has lodged a criminal complaint under domestic violence
Act against her husband, his parents, brother and his wife. However the
respondent has not prosecute the same and left it for dismissal for non
prosecution. Further the learned counsel of the appellant strenuously
contended that despite proper treatment given to his minor son, due to the
attitude of the respondent the appellant had been put to severe mental agony
and trauma. Therefore he prays for allowing the appeal.

8.The learned counsel for Respondent/wife has contended that both the
Courts below have properly appreciated the oral and documentary evidence and
rightly rejected the claim of the Appellant/husband seeking divorce. The
learned counsel further contended that since there was no cruelty on the part
of the wife, the appellant/ husband was not able to prove the same. Normal
wear and tear situations of married life and trivial irritations cannot be
termed as Mental Cruelty. The learned counsel would further submit that the
husband was not interested in giving better treatment of his son. That is the
reason why there was a frequent quarrel among the couples. Since the
respondent was very much worried about her son, she insisted her husband to
give a proper treatment, but there was no co-operation from her husband.
Though she had left the matrimonial home, subsequently she had went to her
husband home several times and both of them jointly went to the hospitals on
several occasions. Since there is no Animus deserendi, the wife cannot be
charged for desertion. The learned counsel would draw the attention of this
Court through the evidence of the P.W.1. The P.W.1 had deposed that there
were several meetings after the alleged desertion. The learned counsel would
draw the attention of this Court to the order obtained by the respondent
seeking restitution of conjugal rights. However the learned counsel fairly
concedes that the order is under appeal before the lower appellate Court.
Therefore the learned counsel contended that there is no necessity arose for
this Hon?ble Court to interfere with the concurrent findings of the Trial
Court as well as the Lower Appellate Court and he prays dismissal of this
Appeal.

9.The point for determination arises in the appeal is:

?Whether the respondent/husband is entitled for divorce on the ground of
cruelty and desertion under section 13(1)(ia)(ib) of Hindu Marriage Act,
1955??

10.The foremost contention of the appellant/husband is that, the
respondent had been suspecting his character by saying that he was having
illicit intimacy with his brother?s wife. The P.W.2 namely Mrs.Radha has
specifically deposed that the respondent in front of other relatives has
poured allegation of illegal intimacy connecting her brother and the wife of
her other brother. This evidence cannot be disbelieved. No women would come
forward to tarnish the image/reputation of a woman of her own family. This
Court could understand the plight of the husband and the gamut of emotions
faced by the other family members due to the false accusations. Further the
evidence of P.W.3 would also substantiate the fact that the respondent was
having a habit of suspecting the character of her husband. Therefore the
evidence of P.W.2 coupled with the statement of the P.W.3 would fortify that
the respondent was in the habit of suspecting the character of her husband.
Now it has to be seen whether the act of levelling unfounded allegation of
illegal intimacy would constitute cruelty. The character assassination has
been taken as a major ground by the appellant/husband for seeking divorce on
the ground of cruelty. The Hon?ble Supreme Court in plethora of cases has
held that Character assassination by either spouse would constitute mental
cruelty. Therefore the issue is no longer res integra.

11.The second contention of the learned counsel of the appellant is
that lodging of false complaint also amounts to mental cruelty. It is seen
from the records that though the respondent had chosen to lodge a complaint
before the learned Judicial Magistrate, Pudukottai, she had not prosecute the
same and left it dismissed for non prosecution. The respondent has given no
explanation for not prosecuting the criminal complaint. Therefore it has to
be presumed that the respondent has lodged the complaint only to harass her
husband?s family. The Courts below have not even discussed this aspect
elaborately and simply rejected the contention put forth by the husband. The
learned counsel for the appellant would contended that the respondent in her
evidence has admitted that she had left the matrimonial home in the month of
January 2007 and she had met her husband at Ramachandra Hospital, Porur,
Chennai only in the month of May, 2009 for the treatment of their son.
Therefore he argued that the desertion is also clearly established.

12.Further the respondent had categorically given the statement that
she had not taken any steps for reunion. Though petition seeking restitution
of conjugal rights was filed after the dismissal of the divorce petition, the
respondent fairly admitted that no steps for reunion was taken on her side
for several years. Therefore the respondent has voluntarily left the
matrimonial home and had not returned till date. Therefore the respondent has
committed desertion. A perusal of the judgments of the Courts below would go
to show that the Courts below have completely ignored the evidences of P.W.2
and P.W.3. The finding rendered by the Courts below to disbelieve the
statements of P.W.2 and P.W.3 is not well founded. The reasons assigned by
the Courts below in disbelieving the version of the husband without
considering the evidences on records are not sustainable. Therefore
compelling necessity is arisen to interfere with the findings of the Courts
below. Therefore I have no hesitation to hold that the respondent is guilty
of mental cruelty and desertion.

13.It was palpably clear that making allegation of illicit relationship
without any basis or foundation itself was sufficient ground to pass a decree
of divorce. The husband, therefore, established his case of mental cruelty by
sufficient and cogent evidence. On careful examination of the statements and
evidences it could be found that the wife made some statements, which
assassinated the character of the husband and the husband and his family
members were put to extreme humiliation. In the said circumstances, the
husband was entitled to get a decree for divorce on the ground of cruelty and
desertion.

14.The learned counsel of the respondent would strenuously contend that
the minor son has to be given appropriate treatment. For which the support of
the appellant is required. The learned counsel of the appellant/husband would
submit that the husband has been paying the monthly maintenance to his
children, till date without fail and he would continue the payments, apart
from the educational and other expenses. Further the learned counsel for the
appellant/husband would submit that the Appellant/ husband being a dutiful
father would render all monetary support for the medical treatment of his
son, as and when necessary and he further submit that he has mentioned the
same in his written submission also. The said submission is placed on record.

15.It is an admitted fact that both the appellant and the respondent
are living separately for more than 10 years. The Hon?ble Supreme Court in
Samar Ghosh Vs. Jaya Ghosh, reported in 2007 4 SCC 511 has laid down certain
instances wherefrom inference of mental cruelty can be drawn. The case on
hand squarely fell under those instances laid down by the Hon?ble Supreme
Court. The Hon’ble Supreme Court in the said case has held as follows:
?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 time,
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.?

16.In the light of the above ratio and also by considering the oral and
documentary evidences of the parties, this Court has no hesitation to hold
that the Appellant/husband is entitled to decree of divorce on the ground of
cruelty and desertion.

17.In the result, the appeal is allowed. The Judgment and decree in
H.M.C.M.A.No.5 of 2013, dated 12.02.2016 passed by the learned Principal
District Judge, Pudukottai, confirming the Judgment and Decree dated
15.03.2013 in H.M.O.P.No.57 of 2012 is set aside. The judgment and decree
passed in H.M.O.P.No.57 of 2012 dismissing the petition for divorce is set
aside and the petition stands allowed. No costs.

To

1.The Principal District Judge,
Pudukottai.

2.The Subordinate Judge,
Pudukottai.

.

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