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N.Dayalan @ Kanagaraj vs Gowri on 2 March, 2018

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 02.03.2018

CORAM:

THE HONOURABLE MR.JUSTICE A.SELVAM
and
THE HONOURABLE MR.JUSTICE P.KALAIYARASAN

C.M.A.No.1464 of 2015

N.Dayalan @ Kanagaraj … Appellant / Petitioner
Vs.

Gowri … Respondent / Respondent
Prayer : Civil Miscellaneous Appeal filed under Section 19 (1) of Family Courts Act, 1984, to set aside the Order, dated 09.02.2015 in H.M.O.P.No.390 of 2009 on the file of the Additional Principal Family Court, Coimbatore.
For Appellant : Mr.C.R.Prasanan

For Respondent : Mr.R.Sathishkumar for
Mr.B.Nedunchezhiyan

JUDGMENT

(Judgement of the Court was delivered by P.KALAIYARASAN, J)

This Civil Miscellaneous Appeal has been filed by the husband against the dismissal of the H.M.O.P.No.390 of 2009 by the Additional Principal Family Court, Coimbatore in its order, dated 09.02.2015, which was filed for divorce under Section 13 (1) (ia) and 13(1) (ib) of Hindu Marriage Act.

2. It is averred by the husband in the petition that marriage between the petitioner and respondent was solemnized on 13.09.2009 as per Hindu Rites and Customs at Coimbatore and they were blessed with three sons. From the very beginning of the marriage, the respondent has not acted as a dutiful wife and gave scant respect to him. She used to quarrel with family members for each and everything and caused mental cruelty. She also lodged a police complaint against the petitioner and his mother resulting their incarceration for about 15 days and thereby they sustained mental and physical cruelties. On the basis of the complaint, charge sheet was laid and the petitioner and his mother faced sessions case. During the pendency of the sessions case, compromise was arrived at between the parties, whereby the petitioner executed release deed settling his properties. Both the parties agreed to file mutual consent divorce petition after six months from the date of dismissal of the above said sessions case. The respondent had separated from matrimonial home on 04.05.2005. The effort for reunion went in vein. Therefore the appellant / petitioner has come forward with the petition for divorce.

3. The respondent in her counter admits the marriage and birth of the children. Lodging the complaint with all women police against the petitioner and his mother is also admitted. Considering the future of the children, a compromise was entered into whereby the husband relinquished his rights in the property purchased in the joint name. Only on the basis of the sworn affidavit filed by the respondent, S.C.No.216 of 2006 was quashed by the High Court. Both the spouses agreed to forget and forgive the earlier misunderstandings and live happily with mutual understanding. It is false to say that the respondent deserted the petitioner. The petition has been filed with malafide intention and the same is liable to be dismissed.

4. The trial Court after analysing both oral and documentary evidence dismissed the petition. Aggrieved by the same, the petitioner / husband has preferred this Civil Miscellaneous Appeal.

5. The learned counsel appearing for the appellant argued that the respondent / wife caused mental cruelty to the appellant / petitioner from the very beginning of the marriage by quarreling with family members for each and everything. She also lodged complaint with the police leading not only incarceration of the appellant / petitioner and his mother for 15 days but also had to face the Sessions case. Even though the respondent agreed to file divorce petition by mutual consent after six months from the date of disposal of the Sessions case, she has not come forward. It is also further argued that the respondent deserted the petitioner on 04.10.2005 and therefore the appellant / petitioner is entitled to get divorce.

6. The learned counsel appearing for the respondent inter alia argued that the cruelty as alleged by the appellant / petitioner has not been established and the complaint lodged with the All women police station by the respondent was taken up for investigation and after thorough investigation, charge sheet was laid against the appellant / petitioner and his mother which culminated in S.C.No.216 of 2006 and therefore the alleged cruelty due to the complaint and incarceration does not arise. It is further argued that only because of the cruelty met out by the respondent in the hands of the petitioner and her mother, she had to leave the matrimonial home and therefore question of desertion also does not arise. The trial Court after carefully analysing the evidence has rightly dismissed the petition and the same does not require any interference.

7. Admittedly marriage between the appellant / petitioner and the respondent took place on 13.09.1999 and out of the wedlock 3 sons were born on 31.06.2000 and 13.09.2003. Therefore from the date of marriage, i.e., September 1999 till the birth of children, i.e., 2003, the spouses lived happily. The alleged cruelty against the respondent from the inception of the marriage is not acceptable. The allegation as to cruelty due to filing of the case and incarceration is also not acceptable for the reason that on the complaint given by the respondent with All women police station, the police registered the case and after investigation, laid charge sheet. The case was also committed to the Court of Sessions and the case was taken as S.C.No.216 of 2006.

8. The compromise petition filed before the Sessions Court was dismissed and this Court invoking the inherent jurisdiction under Section 482 Cr.P.C quashed S.C.No.216 of 2006 in the Crl.O.P.No.14038 of 2008 filed by the appellant herein and his mother as accused mainly on the basis of the sworn affidavit filed by the respondent / wife as to settlement of the dispute between the spouses. Thus the Sessions case was quashed not on merits but only on the basis of the compromise entered into between the parties. Hence it cannot be said that lodging of a complaint with police caused cruelty to the appellant / petitioner. The affidavit filed by the respondent / wife has been extracted in the order of this Court in Crl.O.P.No.14038 of 2008. Paragraph 5 of the affidavit extracted in the above order reads thus :

“5. I admit that the members of the family of the petitioners / accused 1 and 2 and my family as well as the well-wishers of both the families advised both of us to forget all the past incidents and to lead a happy married life with the three children and accordingly the petitioner-1 and myself agreed to it.”

9. The agreement between the spouses entered into on 21.05.2008 has been marked as Ex.P.13. Paragraph 4 of the agreement is extracted below :

“ek;kpy; ,U ghh;l;oahUf;Fk; ,dpnkw;bfhz;L nrh;e;J thH Koahj R{H;epiy Vw;gl;lhy; mJ Fwpj;J nkw;go brrd;!; tHf;F jPh;g;g[ njjpapy; ,Ue;J 6 khjk; fHpj;J ehk; ,UtUk; nrh;e;J kdk;bkhj;J tpthfuj;J 1tJ ghh;l;oapd; brytpy; bgw;Wf;bfhs;tJ my;yJ ,e;j xg;ge;jj;jpd; mog;gilapy; ek;kpy; ahbuhUtUk; tpthfuj;J gu!;guk; bgw;Wf;bfhs;tJ vd;Wk; ehk; ,Uthpd; eyd; fUjp xg;g[f;bfhs;sg;gLfpwJ/”

10. Citing the above portion of the sworn affidavit and the compromise agreement, the learned counsel appearing for the respondent argued that the intention of the parties at the time of compromise was only reunion and the divorce could be sought for only as per the provisions under Hindu Marriage Act and not otherwise. The learned counsel appearing for the appellant / petitioner vehemently argued that the spouses agreed to the agreement of compromise to get divorce and therefore the appellant is entitled to get the relief of divorce.

11. A cursory perusal of the above said recitals both in sworn statement and the compromise agreement discloses only reunion of the spouses in the interest of the children. As rightly pointed out by the learned counsel appearing for the respondent divorce can be granted only as per the provisions under the Act and divorce cannot be granted on the basis of an agreement between the parties. Even for divorce by mutual consent, consent of the parties is to be ascertained by the Court by giving six months reflection time.

12. With respect to the ground of desertion, the respondent left the matrimonial home only after the incident which made her to lodge complaint with the police, which culminated into a Sessions case against her husband and mother-in-law. Therefore the ground of desertion is also not established.

13. For the aforesaid reasons, the appellant / petitioner is not entitled to get divorce and the trial Court has rightly dismissed the petition.

In the result, this Civil Miscellaneous Appeal is dismissed confirming the order, dated 09.02.2015 made in H.M.O.P.No.390 of 2009 on the file of the Additional Principal Family Court, Coimbatore. No costs.

(A.S., J.) (P.K., J.)
02.03.2018
Index : Yes

tsvn

To

The Additional Principal Family Court,
Coimbatore.

A.SELVAM, J.
AND
P.KALAIYARASAN, J.

tsvn

Judgment
in
C.M.A.No.1464 of 2015

02-03-2018

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