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K.Sekar vs D.Vasuki on 23 October, 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated: 23.10.2018

RESERVED ON : 25.07.2018

DELIVERED ON: 23.10.2018

CORAM

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

C.M.S.A.(MD)No.3 of 2011

K.Sekar .. Appellant

vs

D.Vasuki .. Respondent

Prayer: Civil Miscellaneous Second Appeal filed under Section 28 of the Hindu
Marriage Act and Section 100 of the Civil Procedure Code as against the order
passed in C.M.A.No.7 of 2010 on the file of the I Additional District and
Sessions Judge (PCR), Thanjavur, dated 2.9.2010 filed against the order
passed in H.M.O.P.No.126 of 2004 on the file of the Additional Subordinate
Judge, Thanjavur, dated 27.8.2009.

!For appellant : Mr.G.Vanjinathan

^For Respondent : Mr.M.P.Senthil

:ORDER

This Civil Miscellaneous Second Appeal is filed as against the order
passed in C.M.A.No.7 of 2010 on the file of the learned First Additional
Sessions Judge (Protection of Civil Rights), Thanjavur, dated 2.9.2010,
confirming the order passed in H.M.O.P.No.126 of 2004 on the file of the
learned Additional Subordinate Judge, Thanjavur, dated 27.8.2009.

2. Succinctly put, the facts are as under: The appellant is the husband
and the respondent is the wife. The marriage between the appellant and the
respondent took place on 23.2.1994. Both of them are employed and by virtue
of the same, they work in different places. The appellant and the
respondent lived together in the appellant’s house at Postal Colony,
Nanjikottai Road and after the marriage till 1997, the respondent used to
attend office from Thanjavur. It is alleged by the appellant that the
respondent despite being transferred to Trichy used to come home late and
refused to give proper reason for the delay and would constantly pick quarrel
with the appellant.

3. It is the allegation of the appellant that even though the
respondent was in the family way during 1995 and was advised by the Doctor to
be in normal mood and not to travel extensively, she refused to pay heed to
such advise and by reason of such behaviour, a stillborn child was born. It
is also alleged that the respondent failed to give respect to appellant’s
mother and used to quarrel with her using filthy language and in view of such
behaviour, the appellants parents started living separately.

4. It is further stated that from January, 2001 the respondent wife
started to live with her mother and sister at Trichy without informing the
appellant and despite several attempts made by the appellant to bring her
back to the matrimonial home, she neglected such requests and used to
besmirch his reputation before others. As she deserted the appellant for
almost three years, on 22.7.2004, the appellant issued a lawyer notice to the
respondent and in response to the same, she issued a reply through her
counsel and gave a complaint before All Women Police Station Vallam, as if
the appellant had committed adultery and a case was registered in Crime No.1
of 2004.

5. In such premise, the appellant filed a petition seeking divorce on
the ground of cruelty under Section 13(1)(1a) and 1(b) of the Hindu Marriage
Act, 1955.

6. The respondent wife filed a counter affidavit refuting all the
allegations levelled by the appellant husband before the trial Court and
specifically alleged that the appellant developed illicit intimacy with one
Kowsalya and he was deserting the company of the respondent. She further
alleged that the appellant started to live with Kowsalya ignoring the
respondent and taking advantage that she is working at Trichy and she the
whereabouts of the appellant was not known, she was compelled to contact the
appellant’s friend to find out him and she never suspected him. She further
alleged that the appellant attempted to dispossess the respondent from the
house at Postal Colony and, therefore, she was compelled to file a suit for
partition and for injunction in O.S.No.236 of 2004 on the file of the
Principal District Court, Thanjavur.

7. The trial Court, by order dated 27.8.2009, after considering the
rival contentions and the evidence adduced on either side, dismissed the
petition filed by the appellant.

8. Assailing the said order, the appellant husband filed an appeal
before the learned I Additional Sessions Judge (PCR), Thanjavur, who by order
dated 2.9.2010. dismissed the appeal holding that the order of the trial
court does not suffer from any illegality or material irregularity warranting
interference.

9. Calling in question the above said orders, the present civil
miscellaneous second appeal is filed by the appellant husband for the relief
stated supra.

10. The learned counsel for the appellant husband while reiterating all
the contentions raised before the Courts below, specifically contended that
the respondent had filed a criminal complaint as against the appellant
husband and he was forced to face criminal prosecution, which ended in
acquittal and this sole factor proves that the allegations levelled against
the appellant husband are baseless and the attitude of the respondent husband
in subjecting the appellant to undertake the ordeal of criminal prosecution.

11. He further contended that the relationship between the appellant
husband and the respondent wife had been irretrievably broken as the
respondent had also filed a suit for partition in respect of the house owned
by the appellant and the same was also dismissed by the Fast Track Court I,
Thanjavur. He added that the wild allegations made by the respondent in the
civil and criminal proceedings regarding the character of the appellant
indicates the infliction of mental cruelty to the appellant and these aspects
have not been properly appreciated by the Courts below.

12. Per contra, the learned counsel appearing on behalf of the
respondent wife reiterated the reasons that weighed with the Courts below and
prayed for dismissal of this appeal.

13. I heard Mr.G.Vanjinathan, learned counsel for the petitioner and
Mr.M.P.Senthil, learned counsel for the respondent and perused the documents
available on record.

14. In the case on hand, it is beyond any cavil that the respondent
wife lodged a complaint before All Women Police Station, Vallam in Crime No.1
of 2004 immediately after the appellant husband sent a lawyer’s notice on
22.7.2004. Without going into the merits of the acquittal of the appellant
in the said criminal case and as to whether the appellant was given benefit
of doubt or was given a clean chit, at this juncture, it is apposite to refer
to a decision of the Hon’ble Supreme Court in K.Srinivas v. K.Sunita, (2014)
16 SCC 34, wherein, the Hon’ble Supreme Court emphatically held that filing
of a false criminal complaint, after filing of the divorce petition, and
subsequent non establishing of the allegation raised in the criminal
proceedings, by itself, will amount to be cruelty, entitling a dissolution of
marriage. The relevant paragraph of the said decision is quoted hereunder:
?5. The Respondent-Wife has admitted in her cross-examination that she did
not mention all the incidents on which her Complaint is predicated, in her
statement under Section 161 of the Cr.P.C. It is not her case that she had
actually narrated all these facts to the Investigating Officer, but that he
had neglected to mention them. This, it seems to us, is clearly indicative of
the fact that the criminal complaint was a contrived afterthought. We affirm
the view of the High Court that the criminal complaint was ?ill advised?.
Adding thereto is the factor that the High Court had been informed of the
acquittal of the Appellant-Husband and members of his family. In these
circumstances, the High Court ought to have concluded that the Respondent-
Wife knowingly and intentionally filed a false complaint, calculated to
embarrass and incarcerate the Appellant and seven members of his family and
that such conduct unquestionably constitutes cruelty as postulated in Section
13(1)(i-a) of the Hindu Marriage Act.?

15. In the case on hand, apart from the above said criminal case filed
by the respondent wife, a suit was also filed by her seeking partition. It
is a matter of record that the said suit also was dismissed by the learned
Fast Track Court I, Thanjavur.

16. This Court is unable to understand as to why such cases are advised
to be filed from the side of the wife, after divorce is sought for by the
husband, if not to trouble the husband. Wife should understand that once her
husband, pursuant to the allegations made by her, is taken into custody,
whatever little chance of reconciliation there may be, is totally destroyed.

17. In the case on hand, the respondent wife filed a criminal case
against the appellant husband and thereafter she filed a suit for partition
of the house property. All this only points out to the irresistible
conclusion that the behaviour of the wife amounts to cruelty.

18. In Sandhya Rani v. Kalyanram Narayanan, reported in 1994 Supp (2)
SCC 588, the Hon’ble Supreme Court held:

?Since the parties are living separately for the last more than three years,
we have no doubt in our minds that the marriage between the parties has
irretrievably broken down. There is no chance whatsoever of their coming
together. Therefore, the Court granted the decree of divorce.?

19. In Naveen Kohli v. Neelu Kohli, reported in (2006) 4 SCC 558, the
Hon’ble Supreme Court observed as under:

?85. Undoubtedly, it is the obligation of the court and all concerned that
the marriage status should, as far as possible, as long as possible and
whenever possible, be maintained, but when the marriage is totally dead, in
that event, nothing is gained by trying to keep the parties tied forever to a
marriage which in fact has ceased to exist. In the instant case, there has
been total disappearance of emotional substratum in the marriage. The course
which has been adopted by the High Court would encourage continuous
bickering, perpetual bitterness and may lead to immorality.

86. In view of the fact that the parties have been living separately for more
than 10 years and a very large number of aforementioned criminal and civil
proceedings have been initiated by the appellant against the respondent, the
matrimonial bond between the parties is beyond repair. A marriage between
the parties is only in the name. The marriage has been wrecked beyond the
hope of salvage, public interest and interest of all concerned lies in the
recognition of the fact and to declare defunct de jure what is already
defunct de facto. To keep the sham is obviously conducive to immorality and
potentially more prejudicial to the public interest than a dissolution of the
marriage bond.?

20. Looking at the overall conspectus of the matter, more particularly
the mental cruelty to which the appellant has been subjected to by filing of
criminal case and then a suit for partition of the house property, I am of
the opinion that it will not be possible for the parties to live together and
therefore, there is no purpose in compelling both the parties to live
together. Therefore, the best course is to dissolve the marriage by passing
a decree of divorce. The parties who are litigating since 2004 have lost
valuable part of their life and can live peacefully for remaining part of
their life.

21. In the case on hand, considering avocation of the respondent, there
is no need to order permanent alimony to the respondent. That apart, the
parties do not have any children. However, it is directed that golden
ornaments, silver and other articles, belonging to the respondent, if any
lying with the appellant, shall be returned to her forthwith.

22. In the result, the Civil Miscellaneous Second Appeal is allowed and
the order passed in C.M.A.No.7 of 2010 on the file of the learned First
Additional Sessions Judge (Protection of Civil Rights), Thanjavur, dated
02.09.2010, confirming the order passed in H.M.O.P.No.126 of 2004 on the file
of the learned Additional Subordinate Judge, Thanjavur, dated 27.08.2009 is
set aside. No costs.

To

1. The I Additional Sessions Judge (PCR),
Thanjavur.

2. The Additional Sub Judge,
Thanjavur.

.

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