Madras High Court
Moorthi vs Brindha on 9 February, 2021
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
C.M.S.A.Nos.4 & 5 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.02.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.S.A.Nos.4 & 5 of 2017
Moorthi ..Appellant in both appeals
Vs.
Brindha ..Respondent in both appeals
Common Prayer : Civil Miscellaneous Appeals filed under Section 100
of C.P.C., against the judgment and decree passed in C.M.A.Nos.41 &
47 of 2013 dated 16.04.2015 passed by the III Additional Sessions
Judge, Gobichettipalayam, Erode District confirming the Judgment and
Decree passed in H.M.O.P.Nos.81 & 73 of 2010 dated 26.04.2013
passed by the Subordinate Judge, Sathyamangalam.
In both Appeals
For Appellants : Mr.S.Parthasarathy
For Respondents : Mr.P.R.Balasubramaniam
COMMONJUDGMENT
The judgment and decree dated 16.04.2015 passed in
C.M.A.Nos.41 & 47 of 2013 by the III Additional Sessions Judge,
Gobichettipalayam, Erode District confirming the Judgment and Decree
https://www.mhc.tn.gov.in/judis/
passed in H.M.O.P.Nos.81 & 73 of 2010 dated 26.04.2013 by the
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Subordinate Judge, Sathyamangalam is under challenge in the present
Civil Miscellaneous Second Appeal.
2. The respondent/wife filed a petition for dissolution of marriage
on the ground of cruelty. The appellant/husband filed a petition for
restitution of conjugal rights under the Hindu Marriage Act. The divorce
petition was filed by the respondent in H.M.O.P.No.73 of 2010 and the
appellant filed a petition for restitution of conjugal rights in
H.M.O.P.No.81 of 2010.
3. In H.M.O.P.No.73 of 2010, the respondent/wife raised several
allegations of cruelty against the appellant/husband. The case was
contested by the appellant. The trial Court adjudicated the issues with
reference to the documents and evidence. The trial Court, in its finding,
held as follows:
“This Court considering the above rival contention of
both sides determines that in the present day no prudent man
will transfer his properties to anybody without receiving any
consideration only believing the words of an Astrologer and
even if any Astrologer had told so definitely respondent would
have approached another Astrologer to confirm the same but
respondent not only has told the name of Astrologer stated to
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C.M.S.A.Nos.4 & 5 of 2017
have been told by his father-in-law, but he also has not
approached any other Astrologer and so the contention of the
respondent that believing the words of Astrologer only he
transferred all his properties in favour of petitioner's sister
Poongodi without receiving any consideration is highly
unreliable and not at all acceptable and sustainable and the
admission of respondent in his cross-examination that his
father-in-law has filed the receipts for clearing his debts in
CC.29/2009 itself establishes that respondent was indebted
and only to clear his debts he has sold his properties to
petitioner's sister Poongodi. Further the admission of
respondent in his cross-examination that in his pleadings he
has stated that on several occasions he asked to return back
the properties executed in favour of the petitioner's sister
Poongodi itself confirms the demand of dowry made by the
respondent and consequential threat to the petitioner by the
respondent which itself is a great cruelty and main reason for
separation of both parties and so due to the foregoing reasons
this Court determines that after marriage the respondent by
demanding back the property sold by him to petitioner's sister
Poongodi as dowry has harassed the petitioner and threatened
to kill and caused cruelty tot he petitioner after marriage and
the Ex.R1 Judgment in CC.29/209 also reveals that regarding
the above instances of cruelty no finding was given and this
Court further determines that the baseless allegation of the
respondent without any proof that now petitioner intends to
marry her deceased sisters husband and so due to the
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C.M.S.A.Nos.4 & 5 of 2017
foregoing reasons this Court answers for this point that after
marriage respondent treated petitioner with cruelty.
4. The trial Court, based on the evidence, arrived such a finding
and the appeal filed by the husband challenging the judgment and decree
of the trial Court was also dismissed. The Appellate Court also
elaborately considered the issues with reference to the documents and
evidence. The First Appellate Court considered the ingredients of
cruelty with reference to Section 13(1)(1a) of the Hindu Marriage Act.
Further, the First Appellate Court has stated that “by giving benefit of
doubt the criminal court has acquitted the respondent and his mother
from the charges framed against them. But the dispute regarding the
land is a clear writing on the wall and causing abortion becomes an
admitted fact. Thus, the aquittal of the respondent from the criminal case
alone cannot be a sole ground to reject the case of the petitioner
completely”. In other words, mere acquittal in a criminal case would not
provide complete exoneration from the allegation of cruelty. The First
Appellate Court has further gone into the evidence and made a finding
that “by causing abortion, the appellant/husband prevented his legally
wedded wife from attaining her motherhood. It is against the human
nature. Such cruelties cannot be expressed or described in words. When
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C.M.S.A.Nos.4 & 5 of 2017
this type of cruelties becomes an admitted fact, the contention of the
learned counsel for the respondent cannot create any impact in the mind
of the Court”.
5. The First Appellate Court made an observation that “the
appellant/husband is very much particular to regain his land from the
transferee. So, he filed a suit before the competent Court. Nor is there
any doubt that it is his right to fight for his properties. But,
unfortunately, the husband made the petitioner to involve in the dispute
and forced her to persuade her relatives to return back his lands and
thereby causing cruelty to the wife”. The wife/P.W.1 in this regard
deposed as under:
“ vdJ mf;fhtpd; bgahpy; cs;s brhj;Jf;fis
tujl;ridahf vd; fzthpd; bgaUf;F fpuak; bra;J bfhLj;j
gpd;g[ jhd; nrh;e;J thH ,aYk; vd;Wk; ,y;iybad;why;
bfhiy bra;J tPLntd; vd kpul;ly; tpLj;j fhuzj;jpdhYk;
So, from the version of P.W.1, it is very clear that
the respondent has gone to the extent of threatening to kill
her if the properties are not returned to him again. So,
during the cross-examination of P.W.1, she deposes as
follows:'-
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jw;nghJ ePjpkd;wk; Kd;dpiyapy; vjphk; Djhuh; thHj; jahh;
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vd;Wk;. ehd; nrh;e;J thHj;jahuhf ,y;iybad;why; rhpjhd;/
me;jst[ bfhLik bra;Js;shh;/
So, it is very clear that the open invitation rendered
on behalf of the respondent was summarily rejected by her
only on the ground of cruelties meted upon her by the
respondent.
6. Considering all these evidences which were established by the
respondent/wife beyond any pale of doubt, both the trial Court as well as
the First Appellate Court arrived at a conclusion that the
respondent/wife is entitled for dissolution of marriage and accordingly,
passed the Judgment and decree.
7. A substantial question of law raised in the present appeal is that
whether the Courts below is right in coming to the conclusion that the
appellant had caused cruelty, when the criminal Court acquitted the
appellant from the charge of causing cruelty.
8. With reference to the above ground, mere acquittal in a
criminal case would not cause complete exoneration from the allegation
of cruelty. In the present case, the allegations of cruelty were established
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through various other incidents also. In respect of property dispute also,
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allegation of cruelty was also raised. All these aspects were well
considered by the trial Court as well as the First Appellate Court. Thus,
the said ground, which is relatable to the facts and circumstances, cannot
be construed as sustainable substantial question of law. The other
question of law is also related to the acquittal by the Criminal Court.
This Court is of the considered opinion that the acquittal, on benefit of
doubt, would not be a ground to reject the dissolution of marriage, if the
allegations are independently established by either of the Courts. The
procedures to be adopted in a criminal case cannot be compared with the
matrimonial proceedings under the Marriage Laws. Therefore, strict
comparison may not be required nor an acquittal alone can be a ground
to decide the case either way. Beyond the judgment of the criminal
Court, the allegation raised and other relatable matrimonial issues are
considered by the Courts for grant of relief or to decline the relief.
Therefore, the question of law raised deserves no merit consideration
and further, all these questions of law are relatable to the factual
situation and even with reference to the acquittal by the criminal court,
the First Appellate Court has categorically held that beyond acquittal,
the respondent/wife had established the cruelties with reference to the
other incidents. This being the factum established, this Court do not find
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any merit in respect of the grounds raised in the present second appeal.
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Consequently, the Judgment and Decree dated 16.04.2015 passed in
C.M.A.No.47 of 2013 confirming the judgment and Decree passed by
the trial Court on 26.04.2013 in H.M.O.P.No.73 of 2010 is confirmed
and consequently, C.M.S.A.No.5 of 2017 stands dismissed.
9. With reference to C.M.A.No.4 of 2017, the said appeal is filed
against the concurrent judgment of the trial Court as well as the First
Appellate Court. In view of the fact that this Court has confirmed the
decree of dissolution of marriage in C.M.S.A.No.5 of 2017, the relief of
restitution of conjugal rights cannot be granted and further, the appellant
has not raised any substantial question of law in C.M.S.A.No.4 of 2017.
Thus, the judgment and decree dated 16.04.2015 passed in C.M.A.No.41
of 2013 confirming the judgment and decree dated 26.04.2013 passed in
H.M.O.P.No.81 of 2010 is confirmed. Consequently, Civil
Miscellaneous Second Appeal in C.M.S.A.No.4 of 2017 stands
dismissed. No costs. Consequently, connected miscellaneous petition is
also closed.
09.02.2021
ssb
Index: Yes/No
Internet:Yes/No
https://www.mhc.tn.gov.in/judis/
Speaking/Non-Speaking order
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S.M.SUBRAMANIAM, J.
ssb To
1. The Judge, III Additional Sessions Judge, Gobichettipalayam, Erode District
2. The Judge, Subordinate Court, Sathyamangalam C.M.S.A.Nos.4 & 5 of 2017 09.02.2021 https://www.mhc.tn.gov.in/judis/ 9/9