Madras High Court
Vivek Thambuswamy vs Maria @ Sijo Paul on 30 November, 2017
Author: R. Subbiah
Bench: R. Subbiah
C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 09-09-2020
Judgment Delivered on : 09-10-2020
CORAM:
THE HONOURABLE MR. JUSTICE R. SUBBIAH
and
THE HONOURABLE MR. JUSTICE C. SARAVANAN
Civil Miscellaneous Appeal No. 620 of 2018
and
Criminal Revision Case No. 254 of 2019
---
C.M.A. No. 620 of 2018
Vivek Thambuswamy .. Appellant
Versus
Maria @ Sijo Paul .. Respondent
Crl.R.C. No. 254 of 2019
Sijo Paul .. Petitioner
Versus
Vivek Thambusamy .. Respondent
C.M.A. No. 620 of 2018:- Appeal filed under Section 19 of The
Family Courts Act, 1984 against the Order dated 30.11.2017 passed in OP
No. 4382 of 2012 on the file of the III Additional Judge, Family Court,
Chennai
Crl.R.C. No. 254 of 2019:- Criminal Revision Case filed under
Sections 397 and 401 of the Code of Criminal Procedure against the Order
Page No.1/50
http://www.judis.nic.in
C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019
dated 21.06.2018 passed in Criminal Appeal No. 16 of 2014 on the file of V
Additional Sessions Judge, Chennai setting aside the order dated
29.11.2013 in C.C. No. 298 of 2013 on the file of Metropolitan Magistrate
No.II, Egmore.
C.M.A. No. 620 of 2018
For Appellant : Mrs. Sheila Jeyaprakash
For Respondent : Mrs. M.G. Rajeswari
Crl.R.C. No. 254 of 2019
For Petitioner : Mrs. M.G.Rajeswari
For Respondent : Mr. L. Rajasekar
COMMON JUDGMENT
R. Subbiah, J The aforesaid Civil Miscellaneous Appeal as well as Criminal Revision Case were heard by us through Video-conferencing.
2. C.M.A.No.620 of 2018 has been filed by the appellant/husband, against the order dated 30.11.2017 passed by the learned III Additional Judge, Family Court, Chennai, dismissing the O.P.No.4382 of 2012 filed by him under Section 10(1)(x) of the Divorce Act (as amended) to dissolve the marriage solemnised between him and the respondent herein on 06.02.2012.
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3. The respondent/wife in C.M.A.No.620 of 2018 had earlier filed C.C.No.298 of 2013 on the file of Metropolitan Magistrate No.II, Egmore, Chennai, under Section 12(1) of The Protection of Women from Domestic Violence Act, 2005, as against the appellant and his parents. In the said C.C.No.298 of 2013, by order dated 29.11.2013, the appellant-husband was directed to pay a sum of Rs.30,000/- to the respondent-wife, as maintenance under Section 20 of the Protection of Women from Domestic Violence Act, 2005, from the date of filing of complaint, on or before 10th of every English calendar month. Aggrieved by the said order dated 29.11.2013, the husband had filed Crl.A. No. 16 of 2014 on the file of the V Additional Sessions Court, Chennai, which was allowed by judgment dated 21.06.2018, setting aside the said order dated 29.11.2013. Hence, the respondent-wife had filed Crl.R.C.No.254 of 2019 before this Court.
4. Originally, the Civil Miscellaneous Appeal alone was listed for hearing before the Division Bench of this Court. Subsequently, as per the Administrative Order, dated 14.11.2019 of the Honourable Chief Justice, both the Civil Miscellaneous Appeal as well as the Criminal Revision Case were directed to be listed together for hearing. Accordingly, the Civil Page No.3/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 Miscellaneous Appeal as well as the Criminal Revision Case are listed together for hearing before this Court.
5. The issue that arises for consideration in the Civil Miscellaneous Appeal as well as the Criminal Revision Case, is inter-linked with each other. The parties to the Civil Miscellaneous Appeal as well as the Criminal Revision Case are one and the same. Therefore, both the Civil Miscellaneous Appeal as well as the Criminal Revision Case are taken up together and disposed of by this common judgment.
6. For easy reference, the parties are referred to as per their litigative status in the Civil Miscellaneous Appeal, i.e. husband as appellant and wife as respondent.
7. The appellant-husband has filed O.P.No.4382 of 2012 under Section 10(1)(x) of The Divorce Act (as amended) for dissolution of the marriage solemnised between him and the respondent on 06.02.2012. As per the averments in the Original Petition, the marriage between the appellant and the respondent was solemnised on 06.02.2012 as per the Christian rites and customs at The Votive Shrine, Kilpauk, Chennai. The marriage was an arranged marriage, having been arranged by the elders of Page No.4/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 both sides. It was stated that at the time of marriage, the appellant-husband was working in Chennai, while the respondent-wife was working in Dubai with a Travel Agent, by name, Air Links International. It was further stated that, after the marriage, the appellant-husband and the respondent-wife stayed in the house of the appellant-husband for two weeks. Thereafter, they went to Andaman Islands for honey-moon. On their return from the Andaman Islands to Chennai, the respondent (wife) alone went to Dubai. Subsequently, during April and June 2012, the appellant-husband went to Dubai and spent few days with her. While that being so, the respondent-wife resigned her employment at Dubai, and on coming to know of the same, the appellant-husband proceeded to Dubai on 5th August, 2012 and assisted her in packing her belongings to bring her back to Chennai. On 12.08.2012, the appellant-husband and the respondent-wife came to Chennai and stayed in the house of the appellant-husband, along with the parents of the appellant. According to the appellant-husband, he never asked the respondent to resign her job, but she, on her own, resigned her employment in Dubai, owing to misunderstanding with her employer. It was also stated that the respondent- wife used to lose her temper quickly for no reasons, but the appellant- Page No.5/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 husband adjusted such behaviour of her from the beginning of the marriage. It was further stated that one day in August 2012, after dinner, the respondent-wife abused and physically assaulted the appellant/husband for no reason. On the next day, when the appellant and the respondent went for a dinner to the house of the sister of the respondent-wife, she refused to eat and exhibited a strange behaviour. When the appellant-husband disclosed the behaviour of the respondent-wife on the previous day to the respondent's sister, the respondent left her house without having dinner. On many occasions, the respondent-wife threatened the appellant-husband that she would commit suicide by flaunting a knife, scissor or sharp objects, thereby subjected the appellant-husband to cruel treatment. At the time of marriage, the appellant-husband or his parents never demanded any money, however, the parents of the respondent-wife paid Rs.10 lakhs to the respondent herself and the respondent-wife purchased jewels from a shop of her relative worth Rs.10 lakhs on her own. During September 2012, in a depressed mood, the respondent-wife hit the appellant-husband in his ear while he was driving a car. At that time, the car was proceeding near the Church, where their marriage took place, and the appellant/husband drove the car into the Page No.6/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 Church campus and parked the car and went inside the Church. Since there was no congregation at that time in the Church, none were present in the Church. The respondent-wife who followed the appellant-husband inside the Church, called him by uttering the word "bastard" and further said that, "I will teach you a lesson" and "you are not fit to be my husband". Similar words were also uttered by the respondent-wife on many occasions in front of the members of his family. On 08.09.2012, the appellant-husband and the respondent-wife went to the house of the appellant-husband's sister at Bangalore, where, after dinner, the respondent-wife picked up quarrel with the appellant-husband and in the peak of the quarrel, the respondent-wife pulled the appellant-husband by his hair and assaulted him on his right ear. She also removed the sacred "thali" chain from her neck and threw it on the floor. The respondent-wife also challenged the appellant-husband to assault her so that she can prefer a complaint to the Police. Even when the respondent-wife accompanied the appellant-husband to his friend's house, she exhibited a strange and unusual behaviour and asked the appellant- husband to leave the house quickly. On 23.09.2012, when the appellant- husband went to his friend's house along with the respondent-wife, she Page No.7/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 picked up a quarrel and hurled a glass on him, which grazed his face and broke into pieces and scattered in the dining area.
8. The appellant-husband further stated that, on 10.10.2012, he and his family members shifted to a new house, where the respondent-wife openly expressed her disinclination to live with the appellant-husband. According to the appellant-husband, she nagged him to give her divorce so that she can peacefully stay with her parents. When the appellant-husband attempted to pacify her, she threatened that she would commit suicide and throw the blame on him. On 27.10.2012, when the appellant-husband was sitting along with his parents, the respondent-wife sent a text message through Mobile while sitting in the bed-room stating that she would commit suicide. When the appellant-husband rushed towards the bed-room, she started assaulting him, which resulted in injury on his left forearm. The respondent-wife also repeatedly stated that she would give a complaint to the Police for dowry harassment. The respondent-wife also started spreading rumours as if the appellant-husband used to consume alcohol excessively and under the influence of alcohol, abuse her. According to the appellant- husband, the violent behaviour of the respondent-wife increased day-by- Page No.8/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 day. When the appellant-husband contacted the sister of the respondent-wife and informed her about the behaviour pattern of the respondent-wife, she suggested for a counselling with Dr.Anmole, but the respondent-wife refused to get examined by the Doctor. Notwithstanding the above, during first week of November 2012, at the request of the respondent, the appellant-husband and the respondent-wife went to Thailand for a holiday trip between 11.11.2012 to 15.11.2012. During their stay at Thailand, the respondent-wife made it clear that it will be their last holiday trip. On 22.11.2012, the respondent-wife left for Kerala to attend a family wedding by taking most of her jewels and belongings and thereafter, she did not return. The respondent-wife also, through phone, threatened the appellant that she is going to give a Police complaint against him and his family. In such circumstances, the appellant has filed the Original Petition for dissolution of marriage solemnised between him and the respondent.
9. Repudiating the averments in the Original Petition, the respondent- wife filed a counter statement. According to her, before their marriage, the appellant-husband agreed to come and stay with her in Dubai by leaving his job at Chennai. However, he retracted his promise and insisted the Page No.9/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 respondent-wife to come to Chennai by resigning her employment at Dubai. Therefore, after marriage, the respondent had submitted a letter of resignation with a request to relieve her from the employment from 31.07.2012. Hence, the resignation of the employment is not voluntary, but she was forced to resign her job. According to the respondent, the appellant had swindled her savings amount to the tune of Rs.15 lakhs. After draining her entire savings amount, the appellant-husband demanded the respondent- wife to claim her share in the property of her parents. It is in this context, the respondent-wife went to Kerala on 21.11.2012. However, after the respondent left Chennai, the appellant had issued notice, dated 29.11.2012, seeking dissolution of the marriage. The respondent-wife denied the allegations relating to physical assault or abusing the appellant-husband with dirty words. The respondent-wife hails from a decent family and she is having faith in God. At no point of time, the respondent-wife either disrespected the elders in the family or assaulted the appellant-husband, as alleged. At the same time, the respondent contended that the appellant's intention is only to cheat the respondent, swindle her money and thereafter leave her in lurch by stating that she is not a good match for him. The life of Page No.10/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 the respondent had been ruined by none other than the appellant-husband, who had swindled her entire savings money, as also the jewels presented to her by her parents. It was also stated that the jewels presented by her parents were sold by the appellant and the amount was used for putting up construction of the house. The idea of the appellant and his family members is to drain the entire wealth of the respondent and thereafter, throw her away from the matrimonial home. The appellant and his family members are also in the process of performing the marriage to the appellant for the second time to a wealthy bride, when his marriage with the respondent-wife is subsisting. According to the respondent-wife, the appellant-husband and his family members used to sit together and consume alcoholic drink daily in the matrimonial house from 7 pm and it stretches even till 2.00 am the next day. The appellant-husband used to host party for his friends and at that time, insisted the respondent-wife also to stay with him till midnight and to have alcoholic drinks with his friends. This was objected to by the respondent-wife as intolerable, besides that, no wife will tolerate such kind of attitude of her husband and family members. According to the respondent-wife, she would not mind it, if it had occurred rarely once or Page No.11/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 twice, but she could not tolerate it when the appellant and his family members were taking alcoholic drinks on daily basis. Therefore, it is her contention that it was the appellant-husband, who subjected her to cruel treatment and therefore, the Original Petition has to be dismissed on that ground.
10. The respondent further contended that the appellant had left her in lurch and she was made penniless, and therefore, she was constrained to file C.C.No.298 of 2013 before the II Metropolitan Magistrate, Egmore, Chennai for maintenance, in which, a direction was also issued to the appellant-husband to pay Rs.30,000/- per month. However, the appellant- husband has not paid even a single pie to the respondent-wife and grossly disobeyed the order of the Court. According to the respondent-wife, the matrimonial life between her and the appellant survived only for 9 months and out of such short period, the appellant and the respondent resided together only for three months. The respondent-wife was compelled to leave the matrimonial home to satisfy the demands of the appellant-husband to bring more money from her parents and her desertion is not voluntary. Shortly after the respondent-wife left to Kerala, the appellant-husband had Page No.12/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 sent the notice for dissolution of marriage and it speaks volumes about the conduct of the appellant-husband. The respondent-wife therefore prayed for dismissal of the Original Petition.
11. During the pendency of the Original Petition filed by the appellant, apart from filing counter thereof, the respondent has filed C.C.No.298 of 2013 before the learned II Metropolitan Magistrate, Egmore, Chennai under Section 12 (1) of the Protection of Women from Domestic Violence Act and prayed to punish the appellant and his parents. As per the averments in the Petition filed under the Protection of Domestic Violence Act, it was stated by the respondent-wife that after marriage, the respondents therein have treated her with cruelty and demanded dowry to be brought from her parents. The appellant, as a husband, did not shower any love and affection towards the respondent and he had acted as per the wishes of his parents. The appellant did not spend any amount keeping her welfare in mind, rather, he extracted all her savings. The appellant and his parents threatened her to go for a job, teased her and did not permit her to talk to her parents and relatives. During the month of December 2012, the appellant-husband and his parents had driven her away from the Page No.13/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 matrimonial home demanding more dowry from her father. Therefore, the respondent-wife went to Kerala to her parents' house and it cannot be said to be a desertion from the matrimonial home. When the respondent was in Kerala, the notice for dissolution of marriage was sent by the appellant. The appellant-husband and his parents also called upon the respondent-wife to come and take back her belongings kept in the Portico of their house and they did not permit her even to enter into the matrimonial home. In such circumstances, the respondent-wife had filed the Criminal Miscellaneous Petition under Section 12 of The Protection of Women from Domestic Violence Act.
12. Opposing the averments made in the Criminal Miscellaneous Petition, the appellant herein, on his own behalf and on behalf of his parents/respondents therein, has filed a reply statement contending that he has already filed O.P.No.4382 of 2012 before the III Additional Family Court, Chennai against the respondent/wife for dissolution of marriage and as a counter-blast, the present Criminal Miscellaneous Petition has been filed invoking the provisions of the Protection of Women from Domestic Violence Act. At the time of marriage, the parents of the respondent-wife Page No.14/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 voluntarily committed that they would offer 10 Sovereigns of Gold jewels to the respondent-wife, but they did not do so. Rather, one Mr.Sujith Cherian, who is a partner in Kerala Fashion Jewellery and who happened to be a relative of the respondent-wife, came to the marriage venue a day before and the jewelleries brought by him, were adorned to the respondent-wife at the time of marriage. Soon after the marriage reception, the respondent returned back the jewellery to Sujith Cherian on the date of marriage itself. Therefore, the averment that the appellant-husband and his family members exploited the wealth of the respondent-wife, is far from truth. The respondent-wife resigned her employment in Dubai on her own and it was not as per the demands made by the appellant-husband and his family members, as alleged. After the marriage, the appellant-husband and the respondent-wife went to Andaman Islands for honey-moon, and thereafter, the respondent-wife went to Dubai for her employment. While staying in Dubai, the respondent-wife sent a rude e-mail message to the appellant and sought for divorce. In the month of August 2012, the appellant-husband went to Dubai, helped the respondent-wife to pack her belongings and came to Chennai. During the stay of the respondent-wife in Chennai, she Page No.15/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 physically assaulted the appellant for trivial or no reason but it was not disclosed by the appellant-husband to his parents. The respondent also kept herself aloof and did not mingle with the appellant-husband and his parents. The respondent-wife also refused to accompany the appellant to his friends and relatives house, on invitation. Though the appellant-husband spent money for the comfort of the respondent, she was not satisfied with the same. During November 2012, at the request of the respondent-wife, the appellant-husband arranged for a tour to Thailand. After returning from Thailand, the respondent-wife returned to Kerala on her own wish. All the efforts taken by the appellant-husband to bring back the respondent to the matrimonial home, failed, and therefore, he had filed the Original Petition for dissolution of marriage. The activities of the respondent-wife had, in fact, caused acute mental agony and inconvenience to the appellant and his family members. The parents of the appellant-husband were unnecessarily roped in as accused persons in the criminal proceedings. The respondent- wife was not subjected to any matrimonial cruelty by the appellant-husband or his parents, as has been alleged in the Criminal Miscellaneous Petition and therefore, the appellant-husband prayed for dismissal of the Criminal Page No.16/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 Miscellaneous Petition.
13. Before the Family Court, the appellant-husband examined himself as PW1 and marked Exs.P-1 to P-18. The respondent-wife also examined herself as RW1 and Exs.R-1 to R-3 were filed. The Family Court refused to accept the plea of the appellant-husband that he was subjected to matrimonial cruelty by the respondent-wife. The Family Court rendered a specific finding that the appellant-husband and his family members, as a matter of routine, consumed alcoholic drinks, either with the friends of the appellant-husband or with the family members and such activities had stretched until the mid-night of the day. The appellant-husband, under the influence of alcohol, had quarrelled with the respondent and teased her. The Family Court therefore concluded that the instances cited and the averments alleged by the appellant-husband have not been proved, besides that, they will not constitute matrimonial cruelty warranting dissolution of the marriage solemnised between the appellant and the respondent. It was also concluded that the appellant, who has come forward with the petition alleging cruelty against the respondent, has miserably failed to establish it by legally acceptable evidence. Therefore, the Family Court dismissed the Page No.17/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 Original Petition filed by the appellant. Aggrieved by the same, the appellant has filed the present Civil Miscellaneous Appeal to set aside the order passed by the Family Court refusing to grant a decree of divorce.
14. As regards the criminal proceedings initiated by the respondent- wife, the proof affidavit filed by the respondent-wife was treated as her deposition and Exs.P-1 to P-15 were marked in support thereof. Similarly, the proof affidavit of the appellant-husband was taken on file and one Dinesh Thomas, Manager of ICICI Bank, Thodupuzha Branch, Kerala was examined on the side of the appellant-husband in support of the defence and Exs.R-1 to R-121 were marked . The learned Magistrate, on appreciation of the oral and documentary evidence, concluded that the respondent-wife did not prove the case with sufficient material evidence that the appellant/husband subjected her to domestic violence. Though the Magistrate Court has come to the conclusion that the respondent-wife has failed to prove that there is a domestic violence towards her, the learned Magistrate has chosen to award a sum of Rs.30,000/- as monthly maintenance to the wife on a finding that the Bank Account of the wife shows that there was only a sum of Rs.46,000/- in her account and was not Page No.18/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 operated after 2012. Hence, she is entitled for maintenance. Further, the learned Magistrate had also rejected the case of the respondent-wife that her entire savings money had been siphoned-off by the appellant-husband's family members. The learned Magistrate also rendered a finding that the appellant-husband was working as a Director--Procurement and Logistic in Shiloh Industries Private Limited and earning a sum of Rs.89,000/- per month. The respondent-wife is the legally wedded wife of the appellant- husband, and he is bound to maintain the respondent-wife, notwithstanding the fact that she is working in Dubai during the pendency of the criminal proceedings. Thus, the learned Magistrate had awarded a sum of Rs.30,000/- as monthly maintenance and directed the appellant/husband to pay the same to the respondent-wife under Section 20 of the Protection of Women from Domestic Violence Act.
15. Aggrieved by the order passed by the Magistrate Court, insofar as it relates to the direction to the appellant to pay Rs.30,000/- per month as maintenance, Criminal Appeal No.16 of 2014 was filed before the learned V Additional Sessions Judge, Chennai. The appellate Court, on a consideration of the oral and documentary evidence, concluded that, when Page No.19/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 once the Magistrate Court comes to a conclusion that the respondent-wife was not subjected to any matrimonial cruelty, as enunciated under Section 3 of the Protection of Women from Domestic Violence Act, the question of directing the appellant-husband to pay monthly maintenance will not arise. The appellate Court also concluded that the Magistrate Court, before granting maintenance, did not take into account the financial status of the respondent-wife, especially when it was established that she is working in Dubai in a Travel Agent Company and earning a good salary. Therefore, the appellate Court set aside the order of the Magistrate court and allowed the appeal filed by the appellant herein/husband on 21.06.2018. Aggrieved by the aforesaid order, the respondent/wife has filed the Criminal Revision Case.
16. Mrs.Sheila Jeyaprakash, learned counsel appearing for the appellant-husband contended that the appellant-husband and the respondent-wife, after marriage, lived together only for a short period of three months and thereafter, the respondent-wife deserted the matrimonial company of the appellant-husband on 22.11.2012. Even during the short period of stay, the respondent-wife's relationship with the appellant-husband Page No.20/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 was not cordial, but confrontational on every count. The respondent-wife was in the habit of physically assaulting the appellant-husband and to prove the same, Ex.P-8, Photographs were marked by the appellant-husband in O.P.No.4382 of 2012. During the first week of September 2012, when the appellant was driving the car to Kilpauk to see the new house that was under construction by his father, the respondent-wife, in a depressed mood, hit the appellant-husband for no reason. Since at that time, the car was nearing the Church where their marriage took place, the appellant-husband drove the car inside the campus and stopped it there. When the appellant and respondent went inside the Church where there was no congregation in the Church, the respondent-wife followed the appellant-husband and shouted, calling him as 'bastard' and 'not fit to be a husband'. She also threatened the appellant that 'she would teach him a lesson'. It is contended by the learned counsel for the appellant-husband that these words were repeatedly uttered by the respondent-wife during her stay in the matrimonial home, thereby she subjected the appellant to mental cruelty. Further, on 08.09.2012, when the appellant-husband and the respondent-wife went to Bangalore for a holiday trip, she pulled the hair of the appellant-husband Page No.21/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 and took off her sacred "thali" chain and threw it on the ground. She also challenged the appellant-husband to assault her so that she can prefer a complaint to the Police. On 23.09.2012, during a visit to the friend's house of the appellant-husband, the respondent-wife threw a glass, which grazed past the appellant-husband and broke into pieces and scattered in the kitchen. On 27.10.2012, the respondent-wife also threatened that she would commit suicide with a knife and when the appellant went to prevent it, she bit his left fore arm. Even during their trip to Thailand from 11.11.2012 to 15.11.2012, the respondent-wife subjected the appellant-husband to various forms of cruelty. Ultimately, on 22.11.2012, the respondent-wife left to Kerala under the guise of attending a family wedding and had taken most of her belongings, including jewels, which is evident from Ex.P-11 being the list of articles taken by the respondent-wife. After the respondent-wife left Kerala under the guise of attending a family wedding, she refused to come back to the matrimonial home, inspite of the demands made by the appellant-husband and his parents. However, in the counter statement filed before the Family Court, the respondent had stated that she was sent to Kerala for getting money and her share in the property of her parents. But, Page No.22/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 in the cross-examination, she admitted that she went to Kerala to attend a family wedding. Further, after she left the matrimonial home, she threatened the appellant-husband that she would lodge a Police complaint. Accordingly, the respondent also preferred a complaint, not only against the appellant-husband, but also against his parents, alleging demand of dowry. On the basis of such complaint, a case was registered for the alleged offences under Sections 402, 406 and 498-A of IPC. In view of such complaint, the appellant-husband and his parents were compelled to obtain an order of anticipatory bail on 04.01.2013 in Crl.M.P.No.44 of 2013, before the Principal Sessions Court, Chennai, which was marked as Ex.P-9. According to the learned counsel for the appellant, the respondent-wife had falsely alleged that the appellant-husband and his parents have demanded dowry. Except giving such complaint, the respondent-wife did not pursue the complaint further.
17. The learned counsel appearing for the appellant-husband further submitted that, notwithstanding the above said complaint alleging demand of dowry, the respondent-wife had also filed a Petition in C.C.No.298 of 2013 under Section 12 of The Protection of Women from Domestic Page No.23/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 Violence Act, against the appellant-husband and his parents. The respondent-wife has not produced a single piece of evidence to show that she was tortured by the appellant-husband demanding dowry. The learned Magistrate had concluded that the allegation that the appellant-husband and his family members demanded Rs.50 lakhs as dowry, is false and there is inconsistency in the statement made by the respondent-wife in that regard. Further, the Magistrate Court, on analysing the evidence, had come to the conclusion that the respondent-wife did not prove her case against the appellant-husband and his parents with sufficient material evidence to show that she was subjected to matrimonial cruelty. The learned Magistrate also pointed out that the allegation that the appellant-husband had siphoned off Rs.15 lakhs by using her debit card, had been proved to be false, as the respondent-wife admitted that there was only Rs.46,560 as on 15.07.2013 in her Bank Account during the relevant point of time, as spoken to by RW2, the Manager of ICICI Bank. Further, R.W.2 has deposed that the Bank Account of the respondent-wife was inoperative since 2012. The Magistrate Court, having come to the conclusion that the respondent-wife was not subjected to any matrimonial cruelty by the appellant-husband and his Page No.24/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 parents, had erroneously directed the appellant-husband to pay Rs.30,000/- as monthly maintenance to the respondent-wife. The respondent has not challenged the order dated 29.11.2013 in C.C.No.298 of 2013, insofar as it relates to the finding that she was not subjected to any matrimonial cruelty or harassment. On the other hand, the appellant-husband had filed Crl.A.No.16 of 2014 before the learned V Additional Sessions Judge, Chennai and it was allowed on 21.06.2018 by setting aside the direction issued by the learned Magistrate to pay Rs.30,000/- as monthly maintenance. Thus, it was proved that the criminal proceedings initiated by the respondent-wife are false and vexatious. By reason of such criminal proceedings, the appellant-husband and his parents were subjected to harassment and they were made to stand as accused persons in the criminal proceedings.
18. The learned counsel for the appellant-husband also invited the attention of this Court to the letter dated 25.02.2016, marked as Ex.P-9, written by the respondent-wife to the Church under the Canon Law stating that "let me free from the appellant and declare the marriage invalid due to his inability to fulfil matrimonial obligations towards his wife". In this Page No.25/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 letter dated 25.02.2016, the respondent-wife had alleged that the appellant- husband is impotent and is not capable of fulfilling the matrimonial obligations. For the first time, the respondent-wife had come forward with such an allegation and it was not mentioned by her in the counter statement filed in O.P.No.4832 of 2012 before the Family Court or in the Criminal Proceedings initiated by her in C.C.No.298 of 2013. Therefore, this itself indicates that the respondent-wife has no interest to lead a matrimonial life with the appellant-husband and her intention was only to get separated from the appellant-husband. According to the learned counsel appearing for the appellant-husband, the respondent-wife and the appellant-husband are residing separately from 22.11.2012 and the matrimonial relationship between them had broken irretrievably beyond repair. It is also contended by the learned counsel for the appellant-husband that the respondent-wife was not driven out of the matrimonial home by the appellant or his family members and the desertion of the respondent-wife is voluntary and without sufficient cause. The respondent-wife was not inclined to come back to the matrimonial home and stayed in her parents' house from 22.11.2012. Even in the counter statement filed before the Family Court, there was no whisper Page No.26/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 expressing her readiness and willingness to rejoin the matrimonial company of the appellant-husband. Therefore, there is no scope for re-union between the couple and they are residing separately for a continued period of atleast 8 years. Thus, the respondent-wife had abandoned the matrimonial home and indirectly declined cohabitation with the appellant-husband and thereby, she subjected the appellant to acute mental cruelty. In this context, the learned counsel for the appellant-husband relied on the oft-quoted decision of the Supreme Court in the case of Savitri Pandey Vs. Prem Chandra Pandey, reported in 2002 (2) SCC 73, wherein, in paragraph No.12, it was held as follows:-
"12. No evidence was led by the appellant to show that she was forced to leave the company of the respondent or that she was thrown away from the matrimonial home or that she was forced to live separately and that the respondent had intended animus deserendi. There is nothing on record to hold that the respondent had ever declared to bring the marriage to an end or refused to have cohabitation with the appellant. As a matter of fact, the appellant is proved to have abandoned the matrimonial home and declined to cohabit with the respondent thus forbearing to perform the matrimonial obligation."
19. By pointing out the above decision of the Supreme Court, the Page No.27/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 learned counsel appearing for the appellant-husband contended that no useful purpose will be achieved by keeping the matrimonial tie in-tact, when the appellant-husband and the respondent-wife have started living separately for 8 years without any contact with each other. Further, when the respondent-wife had falsely given complaint and made the appellant- husband and his parents to undergo the ordeal of criminal trial, there is a genuine apprehension on the part of the appellant-husband to peacefully live with the respondent-wife. In such circumstances, the learned counsel for the appellant-husband prayed for allowing the Civil Miscellaneous Appeal filed by the appellant-husband and to dismiss the Criminal Revision Case filed by the respondent herein.
20. Mr.L.Rajasekar, learned counsel appearing for the respondent adopted the arguments advanced by the learned counsel for the appellant in C.M.A. No. 620 of 2018. He contended that the Magistrate Court held that the respondent-wife was not subjected to any matrimonial cruelty and such findings reached a finality, inasmuch as the respondent did not prefer any appeal against such finding. However, the Magistrate Court, without taking note of the financial resourcefulness of the respondent had erroneously Page No.28/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 directed the appellant to pay Rs.30,000/- per month as maintenance to the respondent/wife. On appeal by the appellant, the Appellate Court rightly set aside the direction for payment of maintenance amount by observing that the respondent wife is already employed and she is in a position to maintain herself. Such a finding rendered by the Appellate Court is proper and it does not call for any interference by this Court. The learned counsel for the respondent/husband in Criminal Revision Case therefore prayed for dismissal of the Criminal Revision Case.
21. Per contra, Mrs. M.G. Rajeswari, learned counsel appearing for the respondent-wife contended that even at the time of marriage, as demanded by the parents of the appellant-husband, the parents of the respondent-wife paid Rs.10 lakhs in cash, apart from Gold jewels worth Rs.15 lakhs. At the time of marriage, the respondent-wife was having a Bank balance of Rs.10 lakhs, which she saved through her employment. The learned counsel further submitted that prior to the marriage, the appellant- husband agreed to get employed in Dubai, where the respondent-wife was employed. However, after marriage, the appellant-husband insisted the respondent-wife to resign her employment and therefore, the respondent- Page No.29/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 wife resigned her job on 31.03.2012 and she was relieved by her employer on 31.07.2012. When the respondent-wife came back from Dubai to Chennai and stayed in the matrimonial home, she was shocked to notice that the appellant-husband and his parents, on a daily basis, consume alcoholic drinks. Such consumption starts from 7.00 pm and it prolongs until 2.00 am in the midnight. As a newly wedded wife, the respondent was shocked to see such a habit and culture cultivated by the family members of the appellant-husband. Further, the appellant-husband, under the influence of alcohol, physically assaulted the respondent-wife mercilessly and demanded her to bring more money. Above all, on one occasion, the respondent-wife complained about the misbehaviour of the appellant's friends, by name Mr.Sailesh and Mr.Raphel, who came to the house of the appellant-husband for consuming alcoholic drinks. The appellant-husband, instead of reprimanding them, had asked the respondent-wife to accompany his friends. Such an act on the part of the appellant is not pardonable and no prudent wife will tolerate it. These averments made by the respondent-wife in the counter statement before the Family Court, were not denied by the appellant-husband by filing a rejoinder or through any other acceptable Page No.30/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 evidence.
22. The learned counsel for the respondent-wife also submitted that even during the honey-moon trip, it was the respondent-wife who was made to spend for the entire trip. Even for the trip to Dubai, the respondent-wife had paid for the flight ticket for the appellant-husband. The appellant- husband and his family members have a common intention to grab the wealth of the respondent-wife and thereafter, to leave her in lurch. This was also specifically stated by the respondent-wife in her counter statement and also deposed before the Family Court. The Family Court, on examining the oral and documentary evidence, rendered a specific finding that the relationship between the appellant-husband and the respondent-wife worsened, in view of the fact that the appellant-husband and his family members demanded more money towards dowry. The Family Court also rendered a finding that on 22.11.2012, the respondent-wife was driven to Kerala to bring money by partitioning the property of her. Therefore, it was held that the appellant-husband had exhibited a blame-worthy conduct and he cannot take advantage of his own wrong. The Family court also rendered a specific finding that trivial misunderstanding or quarrel among the couple, Page No.31/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 cannot be taken into account for grant of a decree of divorce. In effect, it was held that the appellant-husband, who had filed the Original Petition for dissolution of marriage on the ground of cruelty, had failed to prove it by legally acceptable evidence. When the instances alleged by the appellant- husband are not proved by him, the findings recorded by the Family Court, are wholly justifiable and therefore, the learned counsel for the respondent- wife prayed for dismissal of the Civil Miscellaneous Appeal.
23. Turning to the grounds raised in the Criminal Revision Case (Crl.R.C) filed by the respondent-wife before this Court, the learned counsel appearing for the respondent-wife contended that the Appellate Court (Sessions Court) had rendered an erroneous finding that the respondent-wife had chosen to file a petition under Section 12 of the Protection of Women from Domestic Violence Act seeking maintenance, but such a course is not open for the respondent-wife, unless she was subjected to "domestic violence" as defined under Section 3 of the said Act. The appellate Court had set aside the order of the Magistrate Court granting maintenance in favour of the respondent-wife on the ground that the learned Magistrate had not considered the financial position of the respondent-wife. The appellate Page No.32/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 Court also concluded that, as the respondent-wife is employed in Dubai, she is not entitled for monthly maintenance, as ordered by the learned Magistrate. The appellate Court did not consider the fact that the appellant- husband and his parents have siphoned off more than Rs.10 lakhs of the respondent-wife and made her to starve. On the one hand, the appellant- husband made the respondent-wife to resign her job and on the other, made the respondent-wife to depend upon the appellant-husband even for trivial necessities. The appellant-husband also admittedly had taken the amount from the Savings Bank account of the respondent-wife and utilised it for his travel tickets, hotel stay and purchases made at Dubai. Above all, the respondent-wife was also driven away from the matrimonial home demanding more money as dowry. In such circumstances, the Appellate Court ought to have sustained the order passed by the learned Magistrate in directing the appellant husband to pay Rs.30,000/- as maintenance per month and non-consideration of the same, warrants interference by this Court. The learned counsel for the respondent-wife therefore prayed for allowing the Criminal Revision Case.
24. We have heard the learned counsel appearing for both sides and Page No.33/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 perused the materials placed on record. As we have dealt with the factual submissions advanced by the learned counsel for both sides at required length, we refrain ourself from dealing with the same any further in this judgment. However, certain facts which are absolutely germane and necessary are examined and taken note of, for the purpose of disposal of these cases.
CMA No. 620 of 2018
25. The marriage between the appellant-husband and the respondent-wife was solemnised on 06.02.2012. Admittedly, the matrimonial journey did not last longer and it came to an end even on 22.11.2012. It is an admitted fact that the matrimonial relationship between the appellant-husband and the respondent-wife continued only for a period of nine months and even out of this nine months, they lived together only for a short period of three months. According to the appellant-husband, even during this short period of three months, due to the attitude of the respondent-wife in physically assaulting him for trivial or no reason, the matrimonial discord had cropped up. The appellant-husband also cited Page No.34/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 various instances during which the respondent-wife physically assaulted him. According to the appellant-husband, the respondent-wife also uttered the words "bastard", "you are not fit to be a husband" and "I will teach you a lesson", often during the matrimonial life with him, thereby caused mental disturbance to him. Above all, the respondent-wife threatened the appellant- husband that she would commit suicide by flaunting a sharp instrument in her hands and on one occasion, when the appellant-husband attempted to snatch it, she had bitten the ear of the appellant-husband. When the appellant-husband and the respondent-wife went to the sister's house of the appellant-husband at Bangalore, she had not only assaulted him by pulling his hair, but dared and challenged him to assault her so as to facilitate her to give a complaint to the Police. Notwithstanding the same, the appellant- husband made all comforts to the respondent-wife to lead a happy life with him, but the respondent-wife continued her erratic behavioural pattern, as a result of which, peace was lost in the matrimonial life. While so, on 22.11.2012, under the guise of attending a family wedding, the respondent- wife left the matrimonial home by taking with her all her important belongings, including jewels, but thereafter, she did not return to the Page No.35/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 matrimonial home to live with the appellant-husband. These are some of the important averments based on which the appellant-husband filed the Original Petition.
26. The respondent-wife filed a reply statement repudiating the averments made in the Original Petition. According to the respondent-wife, the main reason for the matrimonial rift is the attitude of the appellant- husband and his family members in consuming alcohol on a daily basis from 7.00 pm till 2.00 am. in the midnight and under the influence of alcohol, she was subjected to physical harassment. The respondent-wife had also alleged that the appellant-husband had swindled almost all her earnings and made her penniless. It is also contended by the respondent-wife that the appellant- husband did not spend even a penny for her welfare and well being and he did not discharge his matrimonial obligations as a dutiful husband. On 22.11.2012, she was driven out of the matrimonial home purportedly to bring money from her parents by partitioning the family property. However, after she left the matrimonial home, the appellant-husband had filed the Original Petition for divorce. Therefore, according to the respondent-wife, the appellant-husband is an aggressor, who had exhibited a blame-worthy Page No.36/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 conduct in discharge of his matrimonial obligation, while so, he is not entitled for grant of a decree of divorce.
27. On examining the above averments made in the Original Petition as well as the counter statement, it is evident that there are allegations and counter-allegations against each other and the appellant-husband and respondent-wife have also spoken about their respective allegations in their evidence. But we are of the opinion that all these allegations and counter- allegations are generic and not specific. In order to substantiate the respective allegations, except the oral testimony of the appellant-husband and the respondent-wife, no other independent witness was examined to corroborate the same. At the same time, we find that during the pendency of the Original Petition filed by the appellant for dissolution of marriage, the respondent-wife had given a criminal complaint not only against the appellant, but also against his parents, before the Inspector of Police, W-4 All Women Police Station, Kilpauk, Chennai, alleging commission of offences punishable under Sections 420, 406 and 498-A of IPC. On coming to know of the complaint given by the respondent-wife, the appellant- husband and his parents have filed an application for Anticipatory Bail Page No.37/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 before the learned Principal Sessions Judge, Chennai. By order dated 04.01.2013 in Crl.M.P.No.44 of 2013, the appellant-husband and his parents were granted anticipatory bail, subject to the condition that they execute a bond for a sum of Rs.5,000/- with two sureties each for the like sum to the satisfaction of the learned II Metropolitan Magistrate, Egmore, Chennai. The order granting anticipatory bail in favour of the appellant-husband and his parents was marked as Ex.P-9 before the Family Court. As stated by the appellant-husband, except by merely filing the complaint against him and his parents, the respondent-wife did not pursue the complaint. Further, there is also no material produced to show the stage of the criminal complaint given by the respondent-wife alleging commission of an offence punishable under Sections 420, 406 and 498-A of IPC. If really the averments in the complaint are true, the respondent-wife would have pursued the same. By lodging a false complaint and dragging the entire family to the Court, she had caused mental cruelty to the appellant-husband. Though it is contended that the said complaint was only subsequent to the filing of the Original Petition filed before the Family Court, in our considered opinion, the same can be taken into consideration, as the said complaint is nothing but a false Page No.38/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 complaint. It is true that a wrong doer cannot take advantage of the complaint given by the other party to dissolve the marriage. When it is a false complaint and the intention of the party (wife) who gives the complaint, is to drag the entire family of the husband, the same needs consideration to decide the case of the divorce. In the instant case, as stated above, had the respondent been subjected to any demand for dowry, she should have pursued the complaint, however, the respondent has not chosen to do so. Even as admitted by the respondent-wife, she left the matrimonial home on 22.11.2012 and thereafter she did not return to the matrimonial home. We also notice that on 29.11.2012, the appellant had filed the Original Petition seeking dissolution of marriage. On notice, the respondent had apparently given the complaint alleging demand of dowry. We also find that in the counter statement filed in the Original Petition, the respondent has not made any whisper about the harassment or cruel treatment meted out to her by the parents of the appellant. While so, implicating the parents of the appellant in the complaint given to the Inspector of Police, W-4, All Women Police Station, Kilpauk, Chennai, is not warranted. The said complaint reveals the cruel mind of the respondent-wife and she is Page No.39/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 interested only in taking revenge on the entire family of the appellant- husband. Therefore, the complaint given by the respondent during the pendency of the Original Petition filed by the appellant can also be considered for deciding the Original Petition filed by the appellant/husband for dissolution of marriage. On consideration of the same, we are of the view that the Original Petition filed by the appellant has to be allowed by granting a decree of divorce.
Crl.R.C. No. 254 of 2019
28. The respondent-wife has filed a Petition under Section 12 of The Domestic Violence Act, in C.C. No. 298 of 2013 against the appellant and his parents. In this petition, the respondent had alleged that the appellant and his parents threatened her to go for a job and thereby caused her mental agony and monetary loss. The appellant-husband did not show any love and affection towards her and he acted as per the wishes of his parents. During December 2012, the appellant-husband and his parents had driven her away from the matrimonial home to bring dowry from her father. It was also contended that the appellant and his parents have retained all her jewellery Page No.40/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 and are refusing to return it. This is the sum and substance of the Petition filed by the respondent under Section 12 of The Protection of Women from Domestic Violence Act, in C.C. No. 298 of 2013.
29. The Criminal Proceedings were defended by the appellant. The Magistrate Court disbelieved the case pleaded by the respondent-wife with respect to the alleged matrimonial cruelty inflicted on her by the appellant and his parents. The Magistrate Court had given a specific finding that the respondent-wife was not subjected to cruelty at all. The Magistrate Court had also rendered a finding that prior to the marriage, one Mr.Sujith Cherian, Director of Kerala Fashion Jewellery attended the marriage and the jewels handed over by him were adorned by the respondent-wife and after marriage, they were returned to him. By pointing out this piece of material evidence, the Magistrate court concluded that the allegation that the jewels presented by the respondent-wife's parents, were retained by the appellant and his family cannot be accepted, but the fact remains that no jewels were given by the parents of the respondent at the time of marriage. With regard to the sum of Rs.10 lakhs alleged to have been siphoned off by the appellant and his parents, the appellant-husband examined R.W.2, Manager of ICICI Page No.41/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 Bank, Thodupuzha Branch, Kerala, who has deposed that a sum of Rs.46,000/- was in the account of the respondent and the account was inoperative after 2012. The statement of account produced by RW2 was also marked before the Magistrate court as Ex.D-121. Even the allegation of the respondent that she was compelled to resign her job at Dubai soon after the marriage, was also not accepted by the Magistrate Court with an observation that the resignation of the employment was voluntary. Thus, all the allegations raised by the respondent-wife with respect to infliction of matrimonial cruelty by the appellant-husband and his parents, were rejected by the Magistrate Court by holding that the respondent-wife was never subjected to mental cruelty at all. However, the Magistrate Court directed the appellant-husband to pay Rs.30,000/- as monthly maintenance to the respondent.
30. The respondent/wife did not challenge the findings rendered by the Magistrate Court that she was not subjected to matrimonial cruelty either by the appellant or his parents. It was the appellant who has filed an appeal as against the direction issued by the Magistrate Court for payment of Rs.30,000/- as maintenance to the respondent/wife. The appellate Court Page No.42/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 has held that the Magistrate Court did not assign any reason for directing the appellant to pay Rs.30,000/- per month to the respondent wife as maintenance, when the respondent was not subjected to any matrimonial cruelty. Further, the Appellate Court found that the Magistrate Court did not take note of the resourcefulness of the respondent to maintain herself through her employment in Dubai.
31. The aforesaid factual aspects only show that it is the respondent- wife, who is making false allegations against the appellant-husband. This had caused mental cruelty not only to the appellant-husband, but also to the parents of the appellant-husband. As mentioned above, the respondent has not preferred any appeal as against the findings of the Magistrate Court that she was not subjected to any matrimonial cruelty or harassment by the appellant and his parents. On the other hand, the appellant alone has filed the Criminal Appeal No.16 of 2014 before the Appellate Court. This also would indicate that the averments made by the respondent in the Criminal Proceedings lacks credence and are not bona-fide.
32. The appellate Court has also rightly held that the findings of the Magistrate Court that the respondent/wife was not subjected to any Page No.43/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 matrimonial cruelty, has not been assailed by the respondent-wife by filing an appeal. Further, it was held by the appellate Court that the respondent- wife herself has admitted in her cross examination on 06.03.2013 that she is employed in Dubai and earning a sum of Rs.1.50 lakhs as salary. Even in the present Criminal Revision Case before us, it was not the case of the respondent-wife that she was not employed or she is depending on her sister or parents etc. Rather, in the cause title portion of the Criminal Revision Case, the address of the respondent-wife is indicated as Travel Co- ordinator, Airlink International UAE (Dubai), Post Box No.10466, Airlink Building, Airport Road, Algorhoud, Dubai, United Arab Emirates. This only indicates that the respondent-wife is not required to be financially compensated by the appellant when she had the wherewithal to maintain herself during the pendency of the proceedings. In any event, when once the Magistrate Court rendered a specific finding that the respondent-wife had not been harassed by the appellant-husband or his family members, the question of granting monthly maintenance of Rs.30,000/- will not arise. In such view of the matter, the Appellate Court, in our view, has rightly allowed the appeal filed by the appellant on 21.06.2018. Therefore, we do Page No.44/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 not find any reason to interfere with the Judgment dated 21.06.2018 passed by the Appellate Court in Criminal Appeal No. 16 of 2014.
33. In effect, we hold that this is a fit case to grant a decree of divorce in favour of the appellant-husband. It is well settled principle of law that a wrong doer cannot take advantage of his own wrong. However, in the present case, the criminal complaint was given by the respondent/wife during the pendency of the Original Petition. Such a criminal complaint has been given by the respondent with an intention to drag the entire family of the appellant-husband. In the instant case, the respondent-wife lodged the complaint complaining that the appellant and his parents demand dowry. Thereafter, she has not chosen to follow it up or pursued the same after the appellant and his parents obtained anticipatory bail. This only shows that the compliant given by the respondent is with a malicious intention to harass not only the appellant-husband, but also his family members. This only exposes cruel mind of the respondent-wife. In our opinion, the criminal proceedings launched by the respondent against the appellant and his parents is not only false, but intended to harass them for the reasons best known to her. But this aspect was not considered by the Family Court. In Page No.45/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 such circumstances, when the appellant and his parents were subjected to the ordeal of a criminal trial, the matrimonial discord will gets enlarged leaving little or no scope for re-union.
34. Even though the appellant-husband did not prove the averments contained in the Original Petition that he was subjected to matrimonial cruelty by examining independent witness, the subsequent criminal proceedings initiated by the respondent-wife against the appellant-husband and his parents, definitely widens the matrimonial relationship between the parties. As observed above, the respondent, without any justifiable cause or reason, had implicated the parents of the appellant in the criminal proceedings alleging that they have demanded dowry. However, such an averment is conspicuously absent in the counter statement filed in the Original Petition filed before the Family Court. To make it clear, in the counter statement filed by the respondent-wife on 08.01.2014, there is no averment made as against the parents of the appellant-husband. If really the respondent-wife was subjected to any matrimonial cruelty or harassment at the instance of the parents of the appellant-husband, she could have spelt out the same at the time of filing the counter statement. Therefore, we Page No.46/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 conclude that the criminal proceedings initiated by the respondent-wife as against the parents of the appellant-husband, are clearly an after-thought. When such an action has been resorted to by the respondent to prosecute the parents of the appellant, it only enlarges the differences between the couple. In such circumstances, no prudent husband would ever be inclined to live with the wife, when his parents are prosecuted without any justifiable reason. This attitude of the respondent-wife in preferring criminal complaint against the appellant-husband and his parents, definitely amounts to cruelty and on that ground, the appellant-husband is entitled to a decree of divorce. The respondent-wife, by her own conduct, had enlarged the scope of the matrimonial litigation and thereby subjected the appellant-husband to cruel treatment. We also take note of the fact that no where, the respondent had expressed any inclination to live with the appellant, rather, she only repeatedly harped upon the usurp of her wealth by the appellant and his parents. In such view of the matter, we feel that interest of justice will only require grant of a decree of divorce as prayed for by the appellant-husband. In this context, we derive strength from a decision of the Supreme Court in the case of Raj Talreja Vs. Kavita Talreja, reported in 2017 (4) CTC 208, Page No.47/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 wherein, it was held as follows:-
“10. Cruelty can never be defined with exactitude. What is cruelty will depend upon the facts and circumstances of each case. In the present case, from the facts narrated above, it is apparent that the wife made reckless, defamatory and false accusations against her husband, his family members and colleagues, which would definitely have the effect of lowering his reputation in the eyes of his peers. Mere filing of complaints is not cruelty, if there are justifiable reasons to file the complaints. Merely because no action is taken on the complaint or after trial the accused is acquitted may not be a ground to treat such accusations of the wife as cruelty within the meaning of the Hindu Marriage Act (for short “the Act). However, if it is found that the allegations are patently false, then there can be no manner of doubt that the said conduct of a spouse levelling false accusations against the other spouse would be an act of cruelty...
35. In the result:
(i) The Order dated 30.11.2017 passed in O.P.No.4382 of 2012 on the file of the III Additional Judge, Family Court, Chennai, is set aside and consequently Civil Miscellaneous Appeal No.620 of 2018 is allowed by granting a decree of divorce under Section 10(1)(x) of the Divorce Act, thereby dissolving the marriage solemnized between the appellant-husband and the respondent-wife on 06.02.2012. No costs. Consequently, connected miscellaneous petition is closed.
(ii) The Order dated 21.06.2018 passed in Criminal Appeal No. 16 of Page No.48/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 2014 on the file of V Additional Sessions Judge, Chennai, setting aside the order dated 29.11.2013 in C.C. No. 298 of 2013 on the file of Metropolitan Magistrate No.II, Egmore, is confirmed and consequently, Crl.R.C.No.254 of 2019 filed by the respondent-wife is dismissed.
(R.P.S.J.,) (C.S.N.J,) 09-10-2020 rsh/cs Index : Yes Speaking Order: Yes To
1. The III Additional Judge, Family Court, Chennai
2. The V Additional Sessions Judge, Chennai
3. The Metropolitan Magistrate No.II, Egmore, Chennai.
4. The Section Officer, V.R. Section, High Court, Madras.
5. The Section Officer, Criminal Section, High Court, Madras. Page No.49/50 http://www.judis.nic.in C.M.A.No.620 of 2018 & Crl.R.C.No.254/2019 R. SUBBIAH, J and C. SARAVANAN, J cs Pre-delivery Common Judgment in C.M.A No.620 of 2018 and Crl.R.C.No.254 of 2019 09.10.2020 Page No.50/50 http://www.judis.nic.in