Madras High Court
Geetha vs Seeralan on 2 August, 2019
Author: T.Raja
Bench: T.Raja
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.08.2019
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
C.M.S.A.No.21 of 2008
and M.P.No.1 of 2008
Geetha ... Petitioner
-vs-
Seeralan .... Respondent
Civil Miscellaneous Second Appeal filed under Section 28 of the
Hindu Marriage Act read with Section 100 of Code of Civil Procedure
Code to set aside the judgment and decree dated 26.09.2006 passed
in CMA No.52 of 2004 on the file of Principal District Judge, Villupuram
reversing the judgment and decree order dated 24.09.2004 passed in
HMOP No.75 of 1999 on the file of Subordinate Judge, Tindivanam
For Petitioner :: Mr.S. Sairaman
For Respondent :: Mr.R. Agilesh for
Mr.S. Raghu
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ORDER
Ms. Geetha, W/o Mr.Seeralan, the respondent herein, has filed the present Appeal, challenging the correctness of the impugned judgment dated 26.09.2006 passed by the learned Principal District Judge, Villupuram in C.M.A.No.52 of 2004, reversing the fair and decreetal order passed by the learned Additional Subordinate Judge in H.M.O.P.No.75 of 1999 dated 24.09.2004, refusing to grant divorce.
2. The learned Subordinate Judge, Tindivanam dismissed the petition in H.M.O.P.No.75 of 1999, filed by the respondent/husband under Sec.13 of Hindu Marriage Act for divorce on the ground of cruelty and desertion. The first appellate court, on going through the several letters, written by the appellant /wife to respondent/husband, insulting not once or twice, but on innumerable occasions, causing mental cruelty, using unparliamentary words, has come forward to grant divorce on the ground that the appeal filed by the respondent/husband was well founded and hence deserves to be allowed.
3. Learned counsel for the appellant/wife pleaded that http://www.judis.nic.in 3 the marriage between the appellant and the respondent was solemnized on 02.051996 at Thathur in Madurai District as per Hindu Rites. After marriage, they lived at Madras. The respondent was working as Sub Inspector of Police and at the time of marriage, the respondent was under training at Madras and later, he was transferred to Tindivanam. In the year 1998, the appellant/wife went to her parents house for delivery and after delivery, the respondent/husband brought the appellant to Tindivanam and lived in a separate house. The appellant's father was also working as Head Constable.
4. Since the respondent/husband was coming late night from his Office, the appellant suspected the respondent and used to pick up quarrel frequently and abuse him with filthy language. Unable to bear the torture, the respondent/husband made an attempt to commit suicide and he was rescued and admitted in the hospital and thereafter, he was taken to JIPMER Hospital, Pondicherry. As the appellant/wife had thought it fit to keep away from the respondent/husband, as he was taking treatment in the hospital, the trial Court has wrongly presumed that the appellant/wife had deserted the respondent/husband. He further added that the appellant/wife had http://www.judis.nic.in 4 written letters to the respondent/husband, using certain harsh words. The lower appellate Court after perusing the words in the letters written by the appellant/wife to the respondent/husband came to conclusion that the letters written by wife to husband have gone beyond the limitation and some of them were having unparliamentary words, although the trial Court dismissed all these letters, marked as Exs.A.4 to A.7.
5. The first appellate court, taking strong exception to the letters written by the appellant/wife to her husband, gave finding that writing frequent letters using harsh words would also amount to mental cruelty. On this basis, the lower appellate court, citing the reason that the appellant had left the respondent/husband while taking treatment at JIPMER Hospital at Pondicherry amounts to desertion and also writing frequent letters to her husband using unparliamentary words would also amount to mental cruelty, granted divorce. Moreover, writing letters to the office of the respondent/husband, who is serving as Sub Inspector of Police, can be construed as mental cruelty to the respondent/husband. Both the husband and wife were blessed with a girl child, now aged about more than 21 years. The http://www.judis.nic.in 5 impugned judgment and decreetal order dissolving the marriage would cause a public stigma among both the families. Therefore, the impugned judgment and decreetal order, dissolving the marriage are liable to be set aside, by allowing the appeal.
6. The learned counsel for the respondent/husband would submit that the marriage between the respondent and appellant was solemnized on 22.05.1996 at Thethur, Madurai District as per Hindu Rites. Both the appellant and the respondent were living for three days in the matrimonial home and subsequently, they left the matrimonial home and started living separately. After the delivery of the girl child, the appellant/wife was brought to a separate house. When the appellant's father was already serving as Head Constable, the appellant/wife must be well aware of the fact that the duty of the policemen is not time bound and the respondent has to work continuously for many hours. Sometimes the respondent has to work day and night and there is no fixed time and more over, during emergency, he may not be able to see his family days together. The appellant/wife has unnecessarily picked up quarrel when the respondent came home from duty late night and inspite of reasonable http://www.judis.nic.in 6 justification given by the respondent/husband, the appellant suspected the respondent that caused mental cruelty which finally drove the respondent to commit suicide. Then, he was rushed to Government Hospital, Tindivanam and from there, he was taken to JIPMER Hospital, Puducherry, but the appellant, instead of showing care and affection towards the respondent/husband, deserted him and went to her parents' home on 24.05.1998. It is also admitted by her as R.W.1 stating that after the respondent/husband was admitted in the hospital, she started living with her parents only. Therefore, the lower appellate court has rightly come to the conclusion that the appellant/wife has deserted her husband/respondent at the crucial time more particularly, when he was taking treatment at Puducherry after surviving a suicide attempt and thereafter, she never turned up to take care of her husband. The finding given by the first appellate court that there was desertion on the part of the appellant/wife cannot be found fault with.
7. Continuing his argument, the learned counsel for the respondent/husband would submit that some extracted portion of certain letters, written by the appellant/wife to the http://www.judis.nic.in 7 respondent/husband would clearly show her mindset and the bad intention with which she has written not once or twice but on several occasions causing immeasurable mental cruelty to the respondent/husband. In this context, it is also relevant to extract some portion of the lower appellate court judgment:-
“ 19. In Ex.P.7, the respondent alleged the family of the appellant is a prostitute family.” It is as follows:
“ ,d;Dkh cdf;F #L nrhuiz ntl;fk;; khdk; Nuhc&k; vy;yhnk ,Ug;gJnghy; “act” jpz;otdj;jpy; fhl;otpl;L ,Uf;flh/ Mz; njt[oah (khkh) g[nuhf;fh;. cd;ndhl gg;g[ bej;Jhh;. ma;ak;gl;oapy; ntfhJ vd;gjhy; eP jpz;otdj;jpy; kdpjh;fsplk; g[uspia cd; bgj;j njt[oah guk;giu khjphp fpsg;gp tpLw/“ The words written in Ex.P7 are so filthy, which is not possible to even read, by anybody.
20. In Ex.P.11, the respondent more or less threatened the appellant with dire consequences. It is as follows:-
“ cd;dhy; gpur;ridf;F jPh;t[ fhz xnu
tHpjhd; ,Uf;F/ Vd;dh eP vy;yh tHpf;Fk;
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nghapl;l Mdh ehd; xj;Jf; bfhs;stpy;iy/ So xnu tHp vd;d eP bfhiy gz;zwJ (or) Ms;
itj;J bfhiy bra;tJ/ ,jw;F ePak [ ; jahh;.
ehDk; jahh;/ Further, she has written so
many conditions to be followed by the
appellant, so that the respondent to come and live with him. She has written as follows:-
“ vdf;F bjhpahk nrh;j;J itj;J
vtUf;fhtJ bra;J ey;y bgah; th';f
epide;J VjhtJ jpy;YKy;Y gz;zpd mg;g[wk;
jpz;otdj;ijtpl cd;d nkhrkhd epiyf;F
bfhz;L te;JtpLntd;. 12 khjj;jpw;F ehd;
brhy;tijj;jhd; eP bra;aDk;. elj;jpf;
fhl;lDk; mj tpl;Ll;L eP brtpl'; fhJ r';F CJtJ nghy ehd; xz;D brhy;y eP xz;D bra;tjhf ,Ue;jhy; giHa FUo fjit jpUod;dh fijjhd;/ ,Jf;bfy;yhk; eP tpj;Jf; bfhz;lhy; ehd; eP Vj;Jf; bfhz;lhy; ehd; eP epidg;gJnghy; cd;ndhl ngrp bgz;lhl;oah ,Ug;ngd;/ eP ,e;j fhuzj;Jf;bfy;yhk; rhpd;D brhy;ypl;L cd; ntiyia eP ghh;f;f jpl;lk;
nghl;oUe;jhy; mJ 2 or 3 khjj;jpy;
bjhpe;JtpLk;/ mg;g[wk; vd;ndhl jpl;lj;ij eP
ghh;f;f ntz;oa fhyk; te;JtpLk;. Further,
she has stated as, “,Jtiuf;Fk; eP bgz;lhl;o
,He;jtdh ,Ue;j eP vg;go ntzhYk;
,Ue;jpUg;g/ ,dpnky; eP vg;goa[k; ,Uf;f
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ehd; tplkhl;nld;/ vy;yh tpc&aj;ija[k;jhd;
ehd; brhy;tJ.
rk;gsk; 6.000
khK:y; 10/000
------------
Total
16,000
------------
,jpy; VjhtJ Fiw";rJ ey;yhapUf;fhJ/
8. A perusal of the above clearly shows that the
aforementioned letters written by the appellant/wife to the
respondent/husband would amount to mental cruelty. I also agree that the above letters written and sent to husband vividly speak that appellant wife has treated her husband with cruelty.
9. Besides, it is well settled legal position that attributing immoral and illegal activities to husband, such as gambling, drinking, womanizing would amount to mental cruelty. In the present case, the letters, marked as Exs.P.11, P.12 and P.13 clearly shows that the appellant has no regard, love, affection or respect for her husband and exceeded all limits while writing letters to her husband.
10. A cursory reading of the above letters clearly shows http://www.judis.nic.in 10 that every letter is carrying filthy and unparliamentary words and also threatening words. Ordinarily, neither the husband nor wife is expected to use such harsh words.
11. Therefore, I am of the opinion that the finding given by the first appellate court reversing the fair and decreetal order and giving independent finding, is perfect, therefore, the same does not call for any interference.
12. Coming to desertion, the appellant herself has admitted before the trial court, that when the respondent was admitted in JIPMER Hospital she had left her matrimonial home and started living with her parents. Thereafter, she has not turned up. This clearly shows that it is an admitted case of desertion. When the wife has clearly admitted in the cross examination that she had left the matrimonial home when her husband was serious and taking treatment in JIPMER Hospital and thereafter she did not bother to visit her husband, the same cannot be construed anything other than desertion.
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13. In a similar case coming before me in which a question arose whether cruelty is confined only to physical cruelty but also includes mental cruelty, this court in the case of John Vincent vs Nancy D/o P.V. Job reported in 2016 5 L.W 701, has held as follows:
“ 13. Although the aforementioned grounds are available for a spouse to seek for dissolution of marriage on the ground of established cruelty, it is first necessary to find out what is 'cruelty'. 'Cruelty' is not confined to physical cruelty, but includes mental cruelty. The matrimonial alliance is irretrievably broken where one of the spouses persistently causes mental torture, disgrace and harassment. In an interesting case dealt with by the Allahabad High Court in the case of Smt.Kalpana Srivastava v. Surendra Nath Srivastava, AIR 1985 Allahabad 253, since the wife refused to prepare tea for the friends of the husband, it was held that she not only hurts his ego but causes him humiliation before his friends and where she lodges false reports of non-bailable offences, she causes husband deep anguish and brings disgrace and ignominy to the husband and his relations, besides causing harassment and by doing the third kind of act, http://www.judis.nic.in 12 she causes husband mental torture and deprives him of the pleasure and pride of being a father.
Recently the Apex Court, in the case of K.Srinivas v. K.Sunita, (2014) 6 SCC 34, while dealing with the word 'cruelty', has laid down the law that even if a false criminal complaint is preferred by either spouse, it would invariably and indubitably constitute matrimonial cruelty and would entitle the other spouse to claim a divorce. It was further held that if the complaint filed by the wife against the husband under section 498-A of IPC and other related provisions is dismissed on merits and the husband and his family members are acquitted, then it is clear that the complaint filed by the wife against the husband was a false complaint. In this context, it is useful to refer to the relevant paragraphs of the said judgment, as follows:-
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 CrPC. It is not her case that she had actually narrated all these facts to the investigating officer, but that he had http://www.judis.nic.in 13 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.
7. In these circumstances, we find that the appeal is well founded and deserves to be allowed. We unequivocally find that the respondent wife had filed a false criminal complaint, and even one such complaint is sufficient to constitute matrimonial cruelty.
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8. We, accordingly, dissolve the marriage of the parties under Section 13(1)(i-a) of the Hindu Marriage Act. The parties shall bear their respective costs.
14. In addition thereto, I have held that writing letters by wife to husband's office calling upon them to take action against the respondent/husband would amount to mental cruelty. The relevant portion is also reproduced hereunder:
“14. A mere reading of the above observations would clearly show that if a false criminal complaint is preferred by either spouse, it would invariably and indubitably constitute matrimonial cruelty and would entitle the other spouse to claim a divorce. In the present case, as highlighted above, several complaints were filed before the higher authorities, namely, Deputy Inspector General of Police, CRPF, Avadi, Inspector General of Police, CRPF, SS, Hyderabad and to the Director General, CRPF, New Delhi, one criminal complaint before W6 All Women Police Station, Avadi, http://www.judis.nic.in 15 Chennai, besides sending letters to the Hon'ble President of India and the Hon'ble Prime Minister of India in the names of her daughters and pursuant thereto, they were forwarded to the department, as a result the department directed the appellant to submit his explanations. However, after an enquiry, it was found that the complaints were false.
Therefore, the repeated filing of the complaints before the higher authorities in which the husband was working, filing of a criminal complaint before the W6 All Women Police Station, Avadi and also using her minor daughters to write letters to the Hon'ble President of India and the Hon'ble Prime Minister of India would clearly constitute mental cruelty that would entail the husband to claim divorce. The above act of cruelty, in my considered opinion, will not be possible for the parties to live together and therefore there is no purpose in compelling both parties to live together. Hence, in my considered opinion, the best course open is to dissolve the marriage by passing a decree of divorce, so that the parties who are litigating since 2002, having lost their valuable part of life, can live http://www.judis.nic.in 16 peacefully for the remaining part of their life. “
15. For the reasons stated above, the finding given by the lower appellate court by judgment dated 26.09.2006 in CMA No.52 of 2004, granting divorce is perfect and in order and therefore the appeal fails and the same is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
02.08.2019 sr Speaking Order/Non-Speaking Order Index:yes/no Internet:yes/no To
1. Principal District Judge, Villupuram
2. The Subordinate Judge, Tindivanam http://www.judis.nic.in 17 T.RAJA, J.
sr C.M.A.No.21 of 2008 02.08.2019 http://www.judis.nic.in