Madras High Court
S.Thiruveragan vs Shakila on 12 August, 2022
Author: V.M.Velumani
Bench: V.M.Velumani
C.M.A.No.1713 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON :29.07.2022
PRONOUNCED ON : 12.08.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.No.1713 of 2018
S.Thiruveragan .. Appellant
Vs.
Shakila .. Respondent
Prayer: This Civil Miscellaneous Appeal is filed under Section 19 of the
Family Courts Act 1984, to set aside the judgment and decretal order dated
06.02.2018 in O.P.No.4181 of 2011 on the file of the VII Additional
Principal Judge, Family Court, Chennai.
For Appellant : M/s.A.K.Sriram
For Respondent : No Appearance
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C.M.A.No.1713 of 2018
JUDGMENT
(Judgment of the Court was delivered by S.SOUNTHAR, J.) The unsuccessful petitioner/husband in a petition for divorce on the ground of cruelty has come up with this appeal. According to the appellant/husband his marriage with the respondent had taken place on 23.11.2009. They set up a matrimonial home at Chennai. The appellant claimed that right from the inception of marriage the respondent ill-treated him and kept picking up frequent quarrels. The respondent and her mother had shown disrespect to the appellant by citing his financial position. The appellant also claimed that respondent had the habit of suspecting his fidelity with all of his colleagues. It was also claimed that the respondent used to call him at office hours very often and picked up quarrel with him. The respondent also blackmailed him under the threat of committing suicide. The appellant claimed that the respondent voluntarily withdrew from the matrimonial home during November 2011. On these pleadings, he sought for dissolution of marriage on the ground of cruelty.
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2. The respondent filed a counter wherein she denied the allegations found in the divorce petition filed by the appellant and claimed that it was appellant who used to pick up frequent quarrel with her. The respondent also claimed that she suffered at the hands of the appellant and also expressed her readiness to live with the appellant. On these pleadings, she sought for dismissal of the divorce petition.
3. Before the Family Court, the husband was examined as P.W.1 and Ex.P.1 and Ex.P.2 were marked on his side and on the side of respondent, she was examined as R.W.1. After consideration of the oral and documentary evidence, the Family Court has came to the conclusion that appellant/husband failed to prove the act of cruelty pleaded by him and consequently dismissed the divorce application. Aggrieved by the said order, the husband has come up with this Civil Miscellaneous Appeal.
4. Heard the arguments of Mr.A.K.Sriram, the learned counsel for the appellant. The Court notice sent to the respondent was refused by her. Though the private notice sent to the respondent was served on her and her name appears in the cause list, there is no representation for the respondent. 3/14 https://www.mhc.tn.gov.in/judis C.M.A.No.1713 of 2018
5. The learned counsel for the appellant submitted that the respondent by suspecting the fidelity of the appellant caused serious mental cruelty and agony to him. The learned counsel had taken us to the cross examination of P.W.1 wherein specific suggestion was put to appellant/husband as if, he had extra marital affair. The learned counsel elaborated that the specific averment of appellant in the divorce petition that respondent/wife suspected the fidelity of the husband was not specifically denied by the respondent in her pleadings. At the time of trial, the appellant/husband entered witness box as P.W.1 and he was extensively cross examined by respondent counsel as if, appellant/husband had extra marital affair. The learned counsel also had taken us to the proof affidavit of respondent wherein she averred that appellant had illicit relationship with many women. The respondent also averred in her proof affidavit that appellant/husband used to behave like a psycho. The learned counsel for the appellant relied on following decision in support of his contention that making false allegations against other spouse as if, he is having extra marital affair is a serious act of mental cruelty entitling the other spouse to get divorce.
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1. (1994) 1 Supreme Court Cases 337, (V.Bhagat versus D.Bhagat)
2. (2016) 9 Supreme Court Cases 455, (Narendra versus K.Meena)
3.Unreported judgment of this Court passed in C.M.A.No.3249 of 2017.
6. The learned counsel for the appellant further submitted that the averment contained in the appellant's petition for divorce that respondent blackmailed him by threat of suicide was not at all denied by the respondent in her counter and there was no cross examination of P.W.1 in this regard by the respondent counsel. Therefore, the learned counsel for the appellant prayed for allowing of the appeal and grant of divorce as prayed for by appellant/husband.
7. On consideration of the pleadings of the parties and also contentions of the learned counsel for the appellant, the following points arising for consideration in this appeal:
1.Whether the appellant proved the mental cruelty meted out to him by respondent as claimed in the Original Petition?
8. The perusal of the pleadings of the parties make it clear that husband 5/14 https://www.mhc.tn.gov.in/judis C.M.A.No.1713 of 2018 pleaded following acts of cruelty by respondent/wife:
(1) Wife suspecting the fidelity of the husband and making allegations of extra marital affair.
(2) Wife causing mental agony to the husband by blackmailing him under threat of suicide.
These allegations of the acts of cruelty pleaded by appellant/husband was not at all denied by respondent /wife in her pleadings. Though, she made general and superficial denial. In order to prove the acts of cruelty pleaded by husband, he examined himself as P.W.1. The averments of the husband in his divorce petition were fortified by cross examination of P.W.1 by respondent. The appellant as P.W.1 was cross examined extensively regarding alleged extra marital affair by the respondent. He was also cross examined as if he contracted veneral disease due to his contact with various ladies and consequently he was not willing to live with respondent. These suggestions were denied by appellant and he withstood cross examination. The close scrutiny of the suggestions made to the appellant when he was examined as P.W.1 make it very clear that respondent suspected the fidelity of the husband and caused mental cruelty. Further, the plea of appellant was strengthened by 6/14 https://www.mhc.tn.gov.in/judis C.M.A.No.1713 of 2018 the proof affidavit filed by respondent as R.W.1. In her proof affidavit, the respondent reiterated in more than one place that appellant was living in adultry and having illicit relationship with many women. She had gone to the extent of branding appellant/husband as psycho and womanizer. The proof affidavit filed by the respondent is more than sufficient to prove the acts of cruelty pleaded by husband. There is no independent evidence available on the side of the respondent to substantiate the extra marital affair alleged by her (in her proof affidavit and suggestion to P.W.1). It is settled law making unsubstantiated and unfounded allegations affecting character of the other spouse would cause serious mental cruelty. It would be useful to refer to the observations made by the Hon'ble Apex Court reported in (1994) 1 Supreme Court Cases 337, (V.Bhagat versus D.Bhagat) "20. In the light of the principles enunciated hereiabove, we may now examine whether the allegations made by the wife in her written statement and the questions put by her counsel to the petitioner in cross-examination amount to mental cruelty within the meaning of the said sub-clause? The relevant portions of the written statement have already been set out by us hereinbefore. We have also set out in the said paragraph the explanatory statement made by the respondent's 7/14 https://www.mhc.tn.gov.in/judis C.M.A.No.1713 of 2018 counsel in court in justification of the questions put by him to the petitioner in his cross-examination. It is true that the said averments must be read in the context in which they were made. At the same time, it must be remembered that the wife was merely defending herself against what are, according to her, totally unfounded allegations and aspersions on her character. It was not necessary for her to go beyond that and allege that the petitioner is a mental patient, that he is not a normal person, that he requires psychological treatment to restore his mental health, that he is suffering from paranoid disorder and mental hallucination - and to crown it all, to allege that he and all the members of his family are a bunch of lunatics. It is not as if these words were uttered in a fit of anger or under an emotional stress. They were made in a formal pleading filed in the Court and the questions to that effect were put by her counsel, at her instructions, in the cross- examination. Even in her additional written statement she has asserted her right "to make correct statement of facts to defend herself against the wanton, imaginary and irresponsible allegations". These area not the mere protestations of an injured wife; they are positive assertions of mental imbalance and streak of insanity in the mental build-up of the husband, The husband is an Advocate practicing in this Court as well as in Delhi High Court, The divorce petition is being tried in the 8/14 https://www.mhc.tn.gov.in/judis C.M.A.No.1713 of 2018 Delhi High Court itself. Making such allegations in the pleadings and putting such questions to the husband while he is in the witness-box, is bound to cause him intense mental pain and anguish besides affecting his career and professional prospects."
9. In (2016) 9 Supreme Court Cases 455, (Narendra versus K.Meena) the Hon'ble Apex Court had held that levelling false allegations of extra marital affair would amount to mental cruelty. The observations of the Hon'ble Apex Court in this regard is as follows:
"16. We have carefully gone through the evidence but we could not find any reliable evidence to show that the appellant had an extra-marital affair with someone. Except for the baseless and reckless allegations, there is not even the slightest evidence that would suggest that there was something like an affair of the appellant with the maid named by the respondent. We consider levelling of absolutely false allegations and that too, with regard to an extra-martial life to be quite serious and that can surely be a cause for mental cruelty "
10. The learned counsel for the appellant also relied on our unreported judgment dated 05.07.2022 made in C.M.A.No.3249 of 2017, wherein while 9/14 https://www.mhc.tn.gov.in/judis C.M.A.No.1713 of 2018 considering the scope of mental cruelty under Section 13 (i) (ia) of Hindu Marriage Act, by following decision reported in A.Jayachandra versus Annel kaur, reported in (2005) 2 Supreme Court Cases 22, we observed as follows:
"10. In the light of above observations of the Apex Court it is clear that cruelty includes mental cruelty and it need not be physical. In some cases even the very conduct complained of itself is sufficient to infer mental cruelty and the impact of injury caused by said offending act of the other spouse need not be enquired into or considered"
11. In the case on hand, suggestion were put to husband when he was examined as P.W.1 so as to assassinate his character, as if, he was having extra marital affair. Apart from suggestion to P.W.1, the respondent who examined herself as R.W.1, in her proof affidavit made serious allegations of extra marital affair with number of women. She also averred in her proof affidavit that husband contracted veneral disease by virtue of his illicit relationship with number of women. She had also called her husband as a psycho and womanizer in her affidavit. These allegations are not at all substantiated by any acceptable evidence. Therefore, the very conduct of the 10/14 https://www.mhc.tn.gov.in/judis C.M.A.No.1713 of 2018 respondent in making sweeping allegations aimed at character of the husband is sufficient to hold she caused serious mental cruelty to husband entitling him to seek divorce on the ground of cruelty.
12. The appellant in his divorce petition clearly averred that the respondent blackmailed him under threat of suicide. The said allegation of the appellant has not been denied by the respondent in her counter specifically. When there is no specific denial of serious allegation made by the appellant/husband, the same can be taken as an admission on the part of the respondent/wife.
13. In (2016) 9 Supreme Court Cases 455, (Narendra versus K.Meena) cited supra, the Hon'ble Apex Court has observed that no husband would ever be comfortable with a wife who give threats of suicide. Such a mental cruelty should not have been taken lightly and in the opinion of the Hon'ble Apex Court, such an act is sufficient for other spouse to get a decree for divorce. Therefore, we hold that in the case on hand, the appellant/husband has proved both the acts of cruelty pleaded by him namely unsubstantiated allegations of extra marital affair and threat of suicide. 11/14 https://www.mhc.tn.gov.in/judis C.M.A.No.1713 of 2018
14. The Family Court committed an error in not taking into consideration the proof affidavit filed by respondent/wife, on the ground she failed to appear for cross examination. In our view, the Family Court has committed an error of law. In the case on hand, the respondent/wife has filed a proof affidavit but failed to appear for cross examination. If the respondent wants to rely on her proof affidavit as against the appellant/husband, she is not entitled to do so without subjecting herself for cross examination. On the contrary, if the appellant/husband wants to rely on the admissions made by the respondent in her own proof affidavit, he is entitled to do so even without cross examining the respondent/wife. The respondent is not entitled to wriggle out of her admissions in chief examination by refusing to subject herself for cross examination. Therefore, we hold that the averments made by the respondent in her proof affidavit can very well be pressed into service against her.
15. In view of our discussions made above, we hold that the appellant/husband has proved the acts of cruelty pleaded by him and hence he is entitled to decree for divorce. Therefore, this Civil Miscellaneous Appeal is 12/14 https://www.mhc.tn.gov.in/judis C.M.A.No.1713 of 2018 allowed by setting aside the fair and decretal order dated 06.02.2018 passed in O.P.No.4181 of 2011 on the file of the learned VII Additional Principal Judge, Family Court, Chennai. In the facts and circumstances of the case there is no order as to costs.
16. In nut shell,
1. The Civil Miscellaneous Appeal is allowed by setting aside the fair and decreetal order dated 06.02.2018 passed in O.P.No.4181 of 2011 on the file of the learned VII Additional Principal Judge, Family Court, Chennai.
(ii) There shall be no order as to costs.
(V.M.V., J) (S.S., J)
12.08.2022
Index : Yes / No
Internet : Yes/ No
Speaking/Non-speaking Order
jai
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C.M.A.No.1713 of 2018
V.M.VELUMANI, J.
and
S.SOUNTHAR, J.
jai
To
1. The VII Additional Principal Judge,
Family Court,
Chennai.
2. The Section Officer,
VR Section,
High Court, Madras.
C.M.A.No.1713 of 2018
12.08.2022
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