Madras High Court
K.Chandrasekar vs S.Rama
Author: V.M.Velumani
Bench: V.M.Velumani
C.M.A.Nos.4486 & 4487 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON JUDGMENT PRONOUNCED ON
01.08.2022 .08.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.Nos.4486 & 4487 of 2019
and C.M.P.Nos.25374 & 25375 of 2019
and C.M.P.Nos.1897 & 1902 of 2021
K.Chandrasekar ... Appellant in both appeals
Vs.
S.Rama ... Respondent in both appeals
Common Prayer: These Civil Miscellaneous Appeals are filed under Section
19(1) of the Family Courts Act, 1984, against the common judgment and
decree dated 19.08.2019 made in O.P.Nos.1982 & 1757 of 2014 on the file of
the III Additional Family Court, Chennai.
(In both the appeals)
For Appellant : Mr.S.Parthasarathy, Senior Counsel
for M/s.K.S.Navin Balaji
For Respondent : Mr.T.R.Rajagopal, Senior Counsel
for M/s.S.Mahendran
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https://www.mhc.tn.gov.in/judis
C.M.A.Nos.4486 & 4487 of 2019
COMMON JUDGMENT
[Judgment of the Court was delivered by V.M.VELUMANI,J.] Both the appeals are filed by the husband challenging the common order dated 19.08.2019, dismissing the H.M.O.P.No.1982 of 2014 filed by him for dissolution of marriage and allowing H.M.O.P.No.1757 of 2014 filed by the wife for restitution of conjugal rights. In the same common order, the learned Judge dismissed G.W.O.P.No.4514 of 2014 filed by the respondent/wife to declare her as guardian of minor daughters viz., C.Harini Shreya and C.Ananya, under Section 26 of the Hindu Marriage Act, 1955 and also for permanent custody of minor daughters.
2.No appeal is filed by wife challenging the dismissal of G.W.O.P.No.4514 of 2014 and it is not an issue before us. Case of the appellant -
3(a).The appellant filed H.M.O.P.No.1982 of 2014 under Section 13 (1) (i-a) of the Hindu Marriage Act, 1955, for dissolution of marriage 2/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019 against the respondent on the ground of cruelty alleged to have been meted out by the respondent. According to the appellant, the marriage between the appellant and respondent was conducted on 26.01.1998 as per Hindu Rites and Customs. The appellant is working in M/s.Henkel Adhesive Technologies, Chennai. The respondent is working in Customs Department. According to the appellant, from the beginning of marriage, the respondent was aloof, indifferent and used to give entire salary to her mother. After leaving house in the morning for work, she may or may not come home. Without any intimation to the appellant, she would go to her mother's house from Office and stay for days/weeks together. If the appellant questions the same, she would react violently and say that it was her unquestionable right and appellant has no business to question her whereabouts or movements. She used to insult the appellant in the presence of the children, family members, parents, neighbours, etc. She was in the habit of answering the appellant in monosyllables and insulted the appellant with short repartees. Two girl children viz., C.Harini Shreya and C.Ananya, were born to them on 18.08.1999 and 11.09.2004 respectively. She treated the children also cruelly. Even after birth of the children, the respondent has never involved herself 3/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019 with the family. She did not care about bringing up of the children. She never spent time for the children. Due to the frequent desertion of respondent, the children were attached to the appellant and his parents. This infuriated the respondent and she used to beat the children. The children were afraid of her.
3(b).The respondent left the matrimonial home in the year 2007 and went to the School of the children. She informed the children that the appellant is going to die, there is no one to take care of them, they have to listen only to the respondent and she took the children from the School to her mother's house, while the 1st daughter's annual exam was in progress. The children suffered a lot in travelling from Vyasarpadi to Saidapet to attend the School.
3(c).After his constant effort and pressure from the children, the respondent returned matrimonial home in June, 2008. Even after coming to the matrimonial home, she continued her cruelty to the appellant, his parents and children. The appellant was suffering form pituitary macro adenoma. He was admitted in the Apollo Hospital and a major surgery was conducted. 4/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019 Even after surgery, he had to undergo 27 sittings of radiation in Rai Memorial Medical Centre. During the treatment period and subsequently, the respondent did not take care of the appellant. This indifferent and non- cooperative attitude of the respondent caused lot of mental strain and cruelties on the appellant.
3(d).Again the respondent left the matrimonial home on 16.11.2013 on her own, shouting that she is being driven out by the appellant and his mother and tarnished the image of the appellant. The appellant was not aware of whereabouts of the respondent. But the respondent often came to the house in the evenings, she bullied the children and informed them that she is enjoying her life in Air Conditioned room in a hostel. She used to abuse the children in the presence of other children in the apartment complex. The children are emotionally and psychologically disturbed. They have been beaten by the respondent often for no fault of theirs and they were humiliated by the respondent. It is a nightmare for the children to face the respondent due to her aggressive and inhuman behaviour. The respondent shouted at the children saying that 'appellant is less educated and drawing less salary than that of the 5/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019 respondent and more over, he is going to die soon due to cancer'. This caused immense fear in the minds of the children. The children have started requesting the appellant to put a stop to the respondent's atrocities on them. The appellant has been driven to the sense of fear of safety of the children due to the respondent's arrogant, unpredictable, nonchalant behaviour. Due to cruelty and torture by the respondent to the appellant, the appellant filed H.M.O.P.No.1982 of 2014 for dissolution of marriage. The respondent filed H.M.O.P.No.1757 of 2014 for restitution of conjugal rights.
3(e).The appellant filed counter statement in the H.M.O.P.No.1757 of 2014 filed by the respondent making the very same averments. In addition to these, he denied the entire allegations made against the appellant by the respondent in H.M.O.P.No.1757 of 2014 filed by her. The appellant also stated that being the only son of his parents, he is duty bound to maintain them together with his wife and children. It is the respondent who used to abuse the children and parents of the appellant. The respondent only picked up quarrel often with the appellant. Due to the attitude of the respondent and humiliating words, father of the appellant left the house and started living 6/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019 with the sister of the appellant. The respondent never involved herself in the family and do household work. Only appellant's mother does all the household work. The respondent abused the appellant's mother in filthy language. Her behaviour was intolerable for the appellant and children. The respondent never cared for the appellant and children. She was living with her mother without the appellant and children. The respondent has no love or affection for the appellant and the children. The respondent has never been a dutiful wife. The respondent has never took care of the children when they were living together. She is living her life according to her whims and fancies. Unable to suffer cruelties and humiliation of the respondent, the appellant has filed H.M.O.P.No.1982 of 2014, seeking divorce and stated that averments made in the petition filed by wife for restitution of conjugal rights are false. Having left the matrimonial home voluntarily without any reason, the respondent/wife is not entitled for the relief of conjugal rights and prayed for allowing H.M.O.P.No.1982 of 2014 and dismissing H.M.O.P.No.1757 of 2014, filed by the respondent and allow both the appeals. 7/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019 Case of the respondent -
4(a).According to the respondent, from the date of marriage, the appellant and his mother used to pick up quarrel frequently and abuse the respondent. The appellant's mother did not offer food to the respondent and she was prevented by mother of the appellant from using the basic facilities like fan, refrigerator, etc. She was not allowed to have free talk with the appellant and children. At the instigation of the appellant's mother, the appellant beats the respondent brutally.
4(b).The appellant is working as Deputy Manager at M/s.Henkel Adhesive Technologies, Chennai. The respondent was not aware of the income of the appellant. The appellant forces her to hand over entire salary to his mother. The appellant and his mother treated the respondent as unlucky person saying that all the bad things happened to them are only due to the respondent. In the year 2007, the respondent was driven out of the matrimonial home along with the daughters. She came to the matrimonial home after one year due to the efforts taken by her mother. Even after coming to the matrimonial home, the respondent was made to sit in a room and not 8/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019 allowed to cohabitate with the appellant. The appellant was suffering from some ailments, but the same was not revealed to the respondent. His habit of scolding and assaulting the respondent continued. She tolerated all the act of the appellant and his mother with a view to continue the matrimonial life. On 15.11.2013, she was thrown out again from the matrimonial home by appellant's mother. The efforts taken by the respondent's mother ended in vain. The respondent was not allowed to meet her two children. The respondent wants to live a peaceful life with the appellant and children and hence, she filed petition for restitution of conjugal rights.
4(c).The respondent filed counter statement in the H.M.O.P.No.1982 of 2014 filed by the husband and denied all the allegations of the appellant. According to the respondent, she was not allowed to visit her mother without getting prior permission from appellant's mother. She was not allowed to take the children during such a visit. The appellant always listens to his mother and never listens to the respondent. The appellant purchased a Flat in his name without informing the respondent. The respondent was under the impression that the Flat where they were residing is a rented house. Only 9/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019 from the H.M.O.P. filed by the appellant, she came to know about the purchase of Flat. The respondent has further stated that the appellant is a chain smoker and used to consume alcohol during every weekends along with his friends. Because of the same, he developed some ailments, which was not even shared openly by the appellant with the respondent. During treatment period, the respondent was allowed to see the appellant only during visitor's time. Inspite of these act of the appellant, the respondent, with a bonafide intention to live with the appellant and children, without whom her life is vacant, filed petition for restitution of conjugal rights and prayed for dismissal of H.M.O.P.No.1982 of 2014 filed by the husband and allowing H.M.O.P.No.1757 of 2014 filed by her.
4(d).The respondent also filed G.W.O.P.No.4514 of 2014 under Section 26 of the Hindu Marriage Act, 1955 to declare her as guardian of two daughter's viz., C.Harini Shreya and C.Ananya, aged 10 years and 15 years respectively and also for permanent custody of minor daughters. All the three O.Ps. were heard together and evidence was recorded in H.M.O.P.No.1982 of 2014.
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5.Before the learned Judge, the appellant examined himself as P.W.1 and marked 3 documents as Exs.P1 to P3. The respondent examined herself as R.W.1 and marked 5 documents as Exs.R1 to R5.
6.The learned Judge after considering the pleadings, oral and documentary evidence by common order dated 19.08.2019, dismissed H.M.O.P.No.1982 of 2014 filed by the husband and allowed H.M.O.P.No.1757 of 2014 filed by the wife granting a decree of restitution of conjugal rights by directing the appellant to join with the respondent. By the time O.Ps. were taken up for hearing and orders were passed, the 1 st daughter became major and in view of ordering H.M.O.P.No.1757 of 2014 for restitution of conjugal rights, the learned Judge dismissed G.W.O.P.No.4514 of 2014 filed by the respondent.
7.The appellant filed the present two appeals, challenging the common order dated 19.08.2019, dismissing H.M.O.P.No.1982 of 2014 filed by the appellant and allowing H.M.O.P.No.1757 of 2014 filed by the respondent. 11/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019
8.The learned Senior Counsel appearing for the appellant contended that:
(i) The learned Judge ought to have allowed the petition filed by the appellant for divorce as appellant proved the cruelty meted out by the respondent as alleged in the petition.
(ii) The two female children are with the appellant till date. The respondent having left the adolescent girl children, had committed cruelty and hence, appellant is entitled to decree of divorce.
(iii) The respondent at no point of time was affectionate towards the children or their well being.
(iv) The respondent used to torture, humiliate and embarrass the children by shouting and abusing them in the presence of the neighbours and friends in the apartment complex.
(v) When the appellant was seriously ill and underwent surgery, the respondent did not take care and look after him. The respondent also did not help the appellant when he was taking treatment after surgery. The respondent in a cruel manner, informed the children that the appellant is going to die 12/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019 soon and the respondent only has to take care of them.
(vi) The children were not willing to join the respondent inspite of her several unwarranted visits.
(vii) The respondent has falsely stated that after cooking work at night, she used to spend time at 8.00 p.m with the children by teaching them.
(viii) The learned Judge after examining the elder daughter who was major at that time and recording her statement, failed to consider the various cruelties of the respondent narrated by the elder daughter.
(ix) The respondent was not spending single pie for the maintenance of the family and minor children. The respondent falsely stated that she had handed over her entire salary to her mother-in-law and met her expenses out of the amount received from the over time work done by her.
(x) The appellant is only son to his parents and is bound to maintain them. The learned Judge erred in holding that asking the respondent to live in joint family amounts to cruelty to the respondent.
(xi) The respondent used to behave inhumanely and would shout in the presence of neighbours, insulting the appellant and his family members.
(xii) The respondent voluntarily left the matrimonial home without any 13/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019 reason.
(xiii) The respondent, after consulting her mother and siblings, left the matrimonial home without knowledge of the appellant.
(xiv) The respondent in the year 2007, left the matrimonial home with the minor children. The respondent, without the knowledge and consent of the appellant, got the Transfer Certificate of the children from their School and transferred the children to another School, despite the annual exam of the elder daughter.
(xv) The respondent has not produced any evidence to show that she was forcibly driven out of the matrimonial home.
(xvi) The respondent never cared for the children. The learned Judge erred in holding that the respondent was caring for the children by paying LIC premium for elder daughter and PLI premium for younger daughter. On the other hand, the respondent tortured the children both verbally and physically. The respondent made various allegations against the appellant and inspite of said allegations, the learned Judge erroneously allowed the petition filed by the respondent for restitution of conjugal rights. 14/39
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9.The learned counsel for the appellant filed dates and events along with the written arguments. The learned Senior Counsel appearing for the appellant referred to the contentions in the pleadings and evidence of the appellant and respondent. The learned Senior Counsel referring to the pleadings set and evidence book, contended that according to the respondent she came to know about the illness of the appellant only from the divorce petition filed by the appellant. But a suggestion was put to the appellant in cross-examination that she took 10 days leave and was taking due care of the appellant. The respondent claims that she was not allowed to have free talk with the appellant and children and she was doing the entire cooking and after cooking, she used to teach the children in the night. Contrary to the same, a suggestion was put to the appellant in the cross-examination that respondent was not allowed to cook. Both the children were examined in the Court by consent of both the appellant and respondent and statement of elder daughter was recorded. In the vacate stay petition, she falsely stated that there was no examination of children. During arguments it was submitted that they were present, but not allowed inside the chambers of the learned Judge when the statement was recorded. The respondent has not approached the Court 15/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019 with clean hands and hence, prayed for setting aside the judgment of the learned Judge dated 19.08.2019, dismissing the H.M.O.P.No.1982 of 2014 filed by him for dissolution of marriage and allowing H.M.O.P.No.1757 of 2014 filed by the respondent for restitution of conjugal rights.
10.The learned counsel appearing for the respondent filed synopsis in the final arguments. The learned Senior Counsel appearing for the respondent referred to relief sought for in H.M.O.P.No.1757 of 2014 filed by the respondent seeking restitution of conjugal rights, H.M.O.P.No.1982 of 2014 filed by the appellant for dissolution of marriage conducted between them on 26.01.1998 and for permanent custody of minor children and in G.W.O.P.No.4514 of 2014, filed by the respondent for permanent custody of two female minor children.
11.The learned Senior Counsel listed out the allegation of cruelty alleged to have been caused by the respondent to the appellant and contended that the appellant failed to prove these allegations. The learned Senior Counsel referred to portions of depositions of appellant as P.W.1. The learned 16/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019 counsel appearing for the respondent has extracted the portions of evidence of appellant relied on by the respondent. The learned Senior Counsel referred to the same and contended that the learned Judge considering the evidence referred to above and gave the finding that the appellant failed to prove the allegations of cruelty.
12.The respondent was very much interested in married life. The respondent took care of the appellant and minor children. The respondent handed over the entire salary to the mother of the appellant. For her expenses, she used to work over time. She used to do over time work and from the money received, she maintained herself. The respondent was not allowed to mingle with the appellant and children. She was not allowed to cohabit with the appellant. The mother of the appellant refused the respondent to enjoy the basic facilities like fan, fridge, etc.
13.The respondent used to take care of welfare of the minor children, she used to teach the children after cooking at 8.00 p.m, she has paid LIC premium for her elder daughter and PLI premium for younger daughter. 17/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019
14.The respondent did not leave and desert from the matrimonial home voluntarily. On the first occasion, in the year 2007, she was driven out of the matrimonial home along with the minor children. After the effort taken by widowed mother of the respondent and children who wanted to be with their father/the appellant, she was permitted to join in the matrimonial home. Again in the year 2013, she was forcibly driven out from the matrimonial home by the appellant and his mother.
15.The appellant is very secretive, never used to openly talk to the respondent, did not inform the respondent about the purchase of Flat where the appellant, respondent and their children are residing. The appellant did not inform the respondent about his illness and the treatment taken by him. When the appellant was admitted in the Hospital and underwent surgery, the appellant's mother did not allow the respondent to stay in the Hospital and take care of the appellant. The respondent was permitted to visit the appellant with children only during visiting hours.
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16.The appellant, at the instigation of his mother, used to abuse the respondent and assault her. The respondent did not voluntarily leave the matrimonial home and desert the appellant and minor children. On both the occasions, the appellant and his mother drove the respondent out of the matrimonial home. On the first occasion, the respondent was driven out of the matrimonial home along with the minor children. The respondent is interested in the matrimonial life, to live and take care of the appellant and minor female children. The respondent has filed H.M.O.P.No.1757 of 2014 so as to have happy and peaceful life along with the appellant and children.
17.The learned Senior Counsel further submitted that trial was conducted and concluded in the month of June, 2008 itself before the IV Additional Judge, Family Court, Chennai. The respondent was not aware that the Principal Judge, Family Court suo-motu transferred the case to III Additional Judge, Family Court, Chennai. The respondent was not informed about the said transfer and was not informed about the examination of elder daughter. The elder daughter was examined in violation of procedure in the absence of respondent who came to know only from the copy of the statement 19/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019 filed in the typed set of papers. The respondent did not have an opportunity to cross-examine her elder daughter. The learned Judge has not placed the said statement in the fair order dated 19.08.2019.
18.The appellant failed to prove the alleged cruelty meted out by the respondent. The appellant has not furnished any details as to when such cruelty was meted out to him. Similarly, except stating that the respondent tortured the children, beaten them, insulted and humiliated the children in the presence of neighbours, the appellant failed to prove the same by furnishing the details.
19.The learned Senior Counsel referred to various grounds raised by the appellant and submitted that the appellant failed to prove any one of such allegations. The learned Judge considering the evidence of appellant as P.W.1 and respondent as D.W.1, has rightly held that the appellant failed to prove the cruelty alleged by him and respondent is entitled to the relief of restitution of conjugal rights. The learned Senior Counsel also further stated that the appellant has not made out any case for setting aside the well considered 20/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019 impugned fair order of the learned Judge.
20.In support of his contentions, the learned Senior Counsel relied on the following judgments:
(i) 2010 14 SCC 301 [Gurbux Singh vs Harminder Kaur] “12.The married life should be assessed as a whole and a few isolated instances over certain period will not amount to cruelty. The ill-conduct must be precedent for a fairly lengthy period where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, one party finds it extremely difficult to live with the other party no longer may amount to mental cruelty. Making certain statements on the spur of the moment and expressing certain displeasure about the behaviour of elders may not be characterized as cruelty.
Mere trivial irritations, quarrels, normal wear and tear of married life which happens in day to day life in all families would not be adequate for grant of divorce on the ground of cruelty. Sustained unjustifiable and reprehensible conduct affecting physical and mental health of the other spouse may lead to mental cruelty. Both the appellant and respondent being highly qualified persons, the appellant 21/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019 being Principal in ITI College, the respondent working as a Librarian in a Government Institute, an isolated friction on some occasion like festival of Lohri even in the presence of others cannot be a valid ground for dissolving the marriage.
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14. As regards the allegations about beating her child and not feeding him, the High Court, after analyzing the entire materials, disbelieved the same. It is also brought to our notice that the appellant condoned the alleged act of cruelty as he wanted to bring back the respondent to his house. As such, the allegations of cruelty do not appear to be truthful. It is also proved that the appellant is not interested to keep the respondent as his wife and he wants divorce by any means. As observed earlier, except the grounds enumerated in Section 13, a Hindu marriage solemnized under the Act cannot be dissolved on any other grounds.”
(ii) 2020 (3) SCC 786 [Mangayakarasi vs M. Yuvaraj]-
“15.It cannot be in doubt that in an appropriate case the unsubstantiated allegation of dowry demand or such other allegation has been made and the husband and his family members are exposed to criminal litigation and ultimately if it is found that such allegation is unwarranted 22/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019 and without basis and if that act of the wife itself forms the basis for the husband to allege that mental cruelty has been inflicted on him, certainly, in such circumstance if a petition for dissolution of marriage is filed on that ground and evidence is tendered before the original court to allege mental cruelty it could well be appreciated for the purpose of dissolving the marriage on that ground. However, in the present facts as already indicated, the situation is not so. Though a criminal complaint had been lodged by the wife and husband has been acquitted in the said proceedings the basis on which the husband had approached the Trial Court is not of alleging mental cruelty in that regard but with regard to her intemperate behaviour regarding which both the courts below on appreciation of the evidence had arrived at the conclusion that the same was not proved. In that background, if the judgment of the High Court is taken into consideration, we are of the opinion that the High Court was not justified in its conclusion.”
(iii) 2017 (4) SCC 85 [Suman Singh vs Sanjay Singh]-
“12.The seventh ground of cruelty was in relation to one incident which, according to the Respondent, occurred on Diwali day in the year 2000. It was again about the behavior of the Appellant with the family members of the Respondent which, according to the Respondent, was rude 23/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019 (Para 16).
13.The eighth ground of cruelty was in relation to one isolated incident which, according to the Respondent, occurred on 15.04.2001. It was again about the behavior of the Appellant with the friends of the Respondent who had come to the Respondent's house. According to the Respondent, the family members did not like it (Para 17).
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16. The Appellant filed her written statement and denied these allegations. The Appellant also applied for restitution of conjugal rights against the Respondent in the same proceedings by filing petition Under Section 9 of the Act and inter alia alleged in her petition that it was the Respondent who has withdrawn from her company without there being a reasonable cause. She also while denying the case set up by the Respondent justified her case for restitution of conjugal rights.
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24. Their Lordships then broadly enumerated 16 category of cases which are considered relevant while examining the question as to whether the facts alleged and proved constitute “mental cruelty” so as to attract the provisions of Section 13 (1) (ia) of the Act for granting decree of divorce.
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25. Keeping in view the law laid down in Samar Ghosh's case (supra), when we examine the grounds taken by the Respondent in his petition for proving the mental cruelty for grant of divorce against the Appellant, we find that none of the grounds satisfies either individually or collectively the test laid down in Samar Ghos's case (supra) so as to entitle the Respondent to claim a decree of divorce.
26. This we hold for more than one reason. First, almost all the grounds taken by the Respondent in his petition were stale or/and isolated and did not subsist to enable the Respondent to seek a decree for dissolution of marriage. In other words, the incidents of cruelty alleged had taken place even, according to the Respondent, immediately after marriage. They were solitary incidents relating to the behavior of the Appellant. Second, assuming that one or more grounds constituted an act of cruelty, yet we find that the acts complained of were condoned by the parties due to their subsequent conduct inasmuch as admittedly both lived together till 2006 and the Appellant gave birth to their second daughter in 2006. Third, most of the incidents of alleged cruelty pertained to the period prior to 2006 and some were alleged to have occurred after 2006. Those pertained to period after 2006 were founded 25/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019 on general allegations with no details pleaded such as when such incident occurred (year, month, date etc.), what was its background, who witnessed, what the Appellant actually said etc.” In view of the above submissions, the learned Senior Counsel appearing for the respondent prayed for dismissal of both the appeals.
21.Heard the learned Senior Counsel appearing for the appellant as well as the learned Senior Counsel appearing for the respondent and perused the entire materials available on record.
22.Based on the pleadings and arguments of the learned Senior Counsel appearing for the appellant and respondent, the following points for consideration have arisen in these appeals:
(1) Whether the appellant proved cruelty alleged against the respondent and entitled to dissolution of marriage.
(2) Whether the respondent is entitled to decree of restitution of conjugal rights.
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23.The appellant has made various instances of cruelty meted out to him and to the minor children by the respondent. It is further case of the appellant that the respondent deserted the appellant and minor children on two occasions in the years 2007 and 2013. According to the appellant, leaving the minor female children without any reason and not caring for them amounts to cruelty not only to the children but also to the appellant.
24.The respondent denied all the allegations of cruelty mentioned by the appellant. It is the case of the respondent that it was the appellant and his mother who tortured the respondent, appellant abused and assaulted the respondent. The respondent did not leave the matrimonial home voluntarily but on both the occasions she was forcibly driven out of matrimonial home. She is interested in matrimonial life to take care of the appellant and the children. The respondent filed H.M.O.P.No.1757 of 2014 for restitution of conjugal rights and also G.W.O.P.No.4514 of 2014, seeking permanent custody of minor children.
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25.The respondent first filed H.M.O.P.No.1757 of 2014 for restitution of conjugal rights. Subsequently, the appellant filed H.M.O.P.No.1982 of 20214 for dissolution of marriage conducted on 26.01.1998 between the appellant and respondent and for permanent custody of minor children. In view of appellant seeking permanent custody of minor children, the respondent filed G.W.O.P.No.4514 of 2014 for declaring her as guardian of minor daughters and for permanent custody of minor daughters. All the 3 petitions were heard together and evidence has been recorded in H.M.O.P.No.1982 of 2014, filed by the appellant for dissolution of marriage conducted on 26.01.1998, between the appellant and respondent.
26.Before the Trial Court, the appellant examined himself as P.W.1 and the respondent examined herself as R.W.1. Both the appellant and respondent did not examine any other witness. The appellant did not examine his parents, similarly the respondent did not examine her mother. 28/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019
27.The learned Judge examined the children in G.W.O.P.No.4514 of 2014. The learned Judge recorded the statement of elder daughter C.Ananya. At the time of recording the said statement, C.Ananya was aged 19 years and was studying II Year Law in a College at Trichy.
28.The appellant had mentioned various instances of alleged cruelty meted out to him and to the children by the respondent. One of the allegations of cruelty is that the respondent did not involve herself in the family and did not take care of the appellant and minor children. The respondent denied the said allegation. The respondent contended that after cooking, she used to teach the children at 8.00 p.m. This is contrary to the stand taken by the respondent that her mother-in-law did not allow her to cook. The respondent further has stated that she was not allowed to basic facilities like fan, fridge, etc. This contention is unbelievable. When the appellant, respondent, children and parents of the appellant were living as a joint family in a Flat, only the respondent cannot be denied those facilities.
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29.The appellant has stated that he was suffering from serious illness, got admitted in Hospital and underwent surgery. According to the appellant, the respondent did not care for him during that period, especially when he was admitted in Hospital, underwent surgery and during post-operative treatment. The respondent denied these allegations. According to the respondent, the appellant was secretive, did not openly talk to her about his illness, her mother-in-law prevented her from staying in Hospital to look after the appellant and she used to visit the appellant along with the children only during visiting hours. This stand of the respondent is not acceptable in view of the further stand taken by the respondent that Hospital authorities did not inform her about the illness of the appellant and she came to know about the nature of appellant's illness only from H.M.O.P.No.1982 of 2014, filed by the appellant for dissolution of marriage. The Hospital authorities definitely would have informed the respondent if she had enquired about the nature of illness of the appellant. The respondent is not a stranger to the appellant, a patient undergoing treatment and diagnosed to undergo major surgery. The respondent being the wife of the appellant/patient, definitely is entitled to know about the same and Hospital authorities would have informed the 30/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019 respondent who is a well educated person holding a responsible post in the Customs Department, had she enquired about nature of illness of the appellant.
30.Another stand taken by the respondent is that she handed over her entire salary to her mother-in-law, did over time work during lunch break and earned money when her higher officials paid in cash for the over time work done by her to meet out her personal expenses. In a Central Government employment, no amount will be paid in cash to an employee towards salary or over time wages. Considering the above unacceptable stand taken by the respondent, the allegation of the appellant that respondent did not contribute towards family and maintenance of minor children, but handed over her salary to her mother and spent according to her whims and fancies is acceptable. It is not in dispute that at the time of marriage, the appellant was living along with his aged parents and the respondent, knowing the same only, married the appellant. It is also not in dispute that the appellant is the only son to his parents. The learned Judge erred in holding that “compelling the respondent/wife to live in a joint family amounts to cruelty meted out to 31/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019 his wife”.
31.The appellant has taken a specific stand that the respondent ill- treated, tortured, beaten the children and abused them in the presence of neighbours. The respondent denied the same and contended that she has love and affection for the children. As already stated above, both the appellant and respondent did not examine any other witnesses, except examining themselves as P.W.1 and R.W.1. In view of the same, the statement given by elder daughter C.Ananya before the learned III Additional Judge, Family Court, Chennai is relevant to decide the issue in both the H.M.O.P's and in the present appeals.
32.The appellant, in his petition in H.M.O.P.No.1982 of 2014, filed for dissolution of marriage, also prayed for permanent custody of minor daughters. In view of such prayer, the respondent filed G.W.O.P.No.4514 of 2014, praying for permanent custody of minor daughters. As per directions of the learned III Additional Judge, Family Court, Chennai, both the children appeared before the Court. The learned Judge examined both the children and 32/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019 on 08.10.2018, recorded the statement of elder daughter viz., C.Ananya. At that time, she was aged 19 years, studying II year Law in a College at Trichy. She has categorically stated that at no point of time, the respondent had shown love and affection for her and her younger sister. The respondent will behave with them as though they were strangers. When they were with the respondent, she did not give them proper food and did not make them study properly. The respondent would abuse the elder daughter connecting her with her father. She had stated that she and younger sister did not want to live with their mother and wants to live only with their father, the appellant herein. The relevant portion in vernacular language is extracted hereunder:
“.......................eh';fs; xd;whf ,Ue;j neuj;jpy; v';fSf;Fs; jha; kfs; vd;w cwt[ beUf;fkhf ,y;yntapy;iy/ vd; jha; v';fsplk;
md;g[. ghrk; fhl;oanj ,y;iy/ v';fsplk;
gpof;fhjth;fsplk; ngRtJnghy; jhd; vg;nghJk;
ngRthh;fs;/ vd; je;ij v';fis tw;g[Wj;jp Tl
ehd; vd; jhaplk; ePjpkd;wj;jpy; ngRtj;wF
tpUk;gtpy;iy////////////////
vd;id vd; mg;ghit ghh;f;fbrd;W
miHj;J bry;y brhy;yp nfl;nld;
mDg;gtpy;iy/ mjpfkhf bjhy;iy bra;j gpd;g[
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jhd; ntW gs;spf;F v';fis khw;wpdhh;fs;/
v';fSf;F cz;lhd fy;tp fl;lzk; vd; mg;gh
jhd; bryt[ bra;jhh;/ xU tUlk; fHpj;J 2008
tUlk; mg;gh tPl;Lf;F te;Jtpl;nlhk;/ eh';fs;
jhaplk; ,Ue;j neuj;jpy; v';fSf;F rhpahd
czt[ mspf;ftpy;iy/ v';fis rhpahf
gof;fitf;ftpy;iy/ v';fs; kPJ md;g[ brYj;jp
ghrkhf elj;jpanj ,y;iy///////////////////////// vd; mg;gh jdpahh; epWtdj;jpy; ntiy bra;jjhy; tPl;Lf;F ,ut[ neuj;jpy; nyl;lhf tUthh;/ me;j neuj;jpy; vd; jha; Kd;djhf Jh';fp tpLthh;fs;/ ehd; vGe;J vd; je;ijf;F rhg;ghL ghpkhhpdhy; jpObud;W vGe;J te;J @mde;ah c';fg;ght[f;F eP jhd;o bghz;lhl;o eP jhd; ,e;j tPl;od; oiro';f; mj;jhhpl;o@ vd;W mof;fo vd;id jpl;Lthh;fs;/////////////////////////// jat[ bra;J v';fis vd; jhapd;
guhkhpg;gpy; ghJfhg;gpYk; mDg;g[tjw;F cj;jut[
gpwg;gpf;f mtrpakpy;iy/ vd; jhapd;
nfhhpf;ifia epuhfhpf;fntz;Lfpnwd; mjpy;
ehDk; vd; j';ifa[k; xd;whf vd; je;ija[ld;
,Uf;f tpUk;g[fpnwhk; mjpy; vd; j';iff;F
ve;j khw;W fUj;J VJk; ,y;iy/ v';fis
,t;thW thf;FK:yk; mspg;gjw;F vd; je;ijnah
my;yJ ntW ahUk; fl;lhag;gLj;jtpy;iy/
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ePjpkd;w cj;jut[g;go eh';fs; ,d;W M$uhndhk;
v';fs; tpUg;gj;ij ,d;W nehpy; M$uhfp
thf;FK:ykhf mspj;njhk;/”
33.The learned Judge recorded the said statement in G.W.O.P.No.4514 of 2014, filed by the respondent for custody of children. For the reasons best known, the learned Judge failed to consider the said statement while deciding the issues in H.M.O.P.Nos.1757 and 1982 of 2014. The learned Judge failed to see that issues in all the three O.Ps. are interlinked and statement of C.Ananya, the elder daughter is relevant to decide the issue of cruelty and desertion. The said statement clearly proves the cruelty meted out by the respondent to the appellant as well as to the children.
34.The learned Senior Counsel appearing for the respondent contended that the respondent was not aware of the appearance of children before the Court and was aware of the statement recorded by the learned Judge only from the typed set of papers filed by the appellant. The statement was recorded contrary to the procedure. These contentions are contrary to the materials on record. The 1st daughter C.Ananya, in her statement before the 35/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019 learned Judge, has stated that she did not want to talk to her mother, the respondent even in the Court also.
35.When custody of the minor children is an issue in the petition, the learned Judge must ascertain the wish of the children before ordering custody to any one of the parents. The learned Judge has to examine the children in the absence of both the parties, so that the children can freely express their wish to the learned Judge without any fear. The learned Judge has adopted proper procedure while examining the children. The contention of the respondent that her elder daughter has given the statement against her as she was residing with the appellant is not correct as C.Ananya, the elder daughter was studying law in a College at Trichy for the past two years at the time of giving statement to the learned Judge. Further, the children were examined on consent being given by both the appellant and respondent. In view of the issue involving matrimonial matter, we directed the appellant, the respondent and children to appear before us. The second daughter will become major within a few months. The elder daughter C.Ananya has completed her studies and is working in ICICI Bank, Mumbai. Both the children appeared before us 36/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019 in person and they have stated that their father, the appellant herein suffered a lot at the hands of their mother, the respondent herein. The elder daughter also stated that after her father's retirement, she wants to take him to Mumbai and take care of him so that he will have a happy and peaceful life. After observing her and the statement given by her before us, we have no hesitation to hold that the respondent treated the appellant with cruelty and that the appellant is entitled to decree of dissolution of marriage conducted between the appellant and respondent on 26.01.1998.
36.The appellant has made serious allegations of cruelty against the respondent and the same continued for considerable long time. The cruelty alleged by the appellant is not a stray incident and not normal wear and tear of married life. The appellant is seeking dissolution of marriage on the ground of cruelty even though mentioned that the respondent had deserted him and the minor children without any reason. In view of the above, the three judgments relied on by the learned Senior Counsel appearing for the respondent do not advance the case of the respondent to the facts and circumstances of the present case.
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https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019 For the above reason, Point Nos.(1) & (2) are answered in favour of the appellant and against the respondent. In the result, both the Civil Miscellaneous Appeals are allowed and common judgment dated 19.08.2019 made in O.P.Nos.1982 & 1757 of 2014 dismissing H.M.O.P.No.1982 of 2014 and allowing H.M.O.P.No.1757 of 2014 is set aside. Consequently, connected Miscellaneous Petitions are closed. No costs.
(V.M.V., J) (S.S., J) .08.2022 Index : Yes / No gsa To
1.The III Additional Principal Judge, III Additional Family Court, Chennai.
2.The Section Officer, VR Section, High Court, Madras.
38/39 https://www.mhc.tn.gov.in/judis C.M.A.Nos.4486 & 4487 of 2019 V.M.VELUMANI,J.
and S.SOUNTHAR,J.
(gsa) Pre-Delivery judgment in C.M.A.Nos.4486 & 4487 of 2019 .08.2022 39/39 https://www.mhc.tn.gov.in/judis