Raju @ Arokia Jesuraj vs Mrs.V.Victoria on 1 March, 2012

[Cites 4, Cited by 0]

Madras High Court

Raju @ Arokia Jesuraj vs Mrs.V.Victoria on 1 March, 2012

Equivalent citations: AIR 2012 (NOC) 336 (MAD.)

The petition for divorce filed by the husband under Section 10(1) (x) of Indian Divorce Act, was dismissed by the Family Court, Coimbatore, in I.D.O.P.No.4 of 2002. Aggrieved over the dismissal of the petition, present appeal has been filed by the appellant/husband.

2. The case of Appellant/Petitioner are as follows:-

The marriage between the appellant and the respondent took place on 12.6.2000, according to Christian Customs. After the marriage, they lived as husband and wife at R.S.Puram, Coimbatore, i.e., at the residence of the appellant. The respondent wanted postponement of birth of the child on the ground that she wanted to give her salary to her parents. The husband also agreed for the request. Later, the respondent wanted to live with her parents with the plan in mind that income of both the appellant and the respondent would go to her parents. The appellant was not agreeable to her suggestion. The respondent was reluctant to do any house hold activity. She did not inform about her pregnancy to the appellant and her family. Therefore, the appellant was put to shock and mental agony. The appellant felt deeply hurt by her conduct. The appellant advised the respondent not to go for the job as she was weak, but the wife wanted to continue the job in order to provide financial support to her parents.

3. On 11.10.2000, the respondent wanted the appellant to give six signed blank cheques to her father. When they went to the respondent's father's house, as the respondent's father was found in a drunken stage, the appellant enquired about the financial position. The parents of the respondent felt offended because of the enquiry and abused the petitioner. On the next day, when the appellant went to respondent's house to take her back, she refused to come. The respondent's parents were trying through the authorities functioning in the church and relatives of the petitioner to make the appellant to live in their house. But, the appellant was not ready for that proposal.

4. The respondent preferred complaint before All Women Police Station, R.S.Puram, on the allegation of dowry harassment. The respondent demanded return of her certificates, jewels and other articles. It was accordingly returned. Again, on 29.12.2000, the petitioner was arrested by All Women Police and the news regarding arrest was also published in newspapers. The respondent falsely implicated the whole family of the appellant.

5. The respondent's father gave a false complaint alleging that the appellant, his brother and his father made an attempt to kill him. The police registered the case and found the complaint to be false. The respondent demanded only money, when the mediators wanted her to come and live with the appellant. The respondent always threatened that she would prefer police complaint. There is no possibility of re-union. There is constant harassment and it amounts to mental cruelty. The marriage has broken down irretrievably. Hence, the marriage must be dissolved.

6. Case of the respondent:-

The respondent never wanted to postpone the birth of the child, as alleged by the appellant. There was no necessity to render financial support to her parents. The father of the respondent is a Government Servant, earning a good salary. After the marriage, respondent gave the salary only to the husband. The appellant deserted the respondent without any valid reason. It is the husband, who took the respondent to Doctor-Seeniammal and the Doctor after check-up informed the pregnancy to both the appellant and the respondent. It is only the appellant, who left the respondent in her parents' house. The respondent demanded a sum of Rs.2,00,000/- by way of dowry, in order to help her sister-kala to construct a house in Tuticorin. The respondent made repeated request, to return the dress and other articles. The behaviour of the appellant was not like that of a cultured person and he firmly told that he will not return the articles unless Rs.2,00,000/- is given by way of dowry. Only when the efforts for settlement failed, finally, she had to approach the police for assistance. The police advised the appellant to live with the respondent and only as a last resort, the police registered the case. There was no financial hurdle to the father of the respondent and therefore, there is no need for the respondent to request the appellant to sign in six blank cheques. The appellant did not make any efforts to get her back much less through one Jayanthi. The respondent never requested the appellant to come and live with her parents. Hence, the petition must be dismissed.

7. Before the lower Court, PW1 to PW3 have been examined and Ex.P1 to Ex.P7 have been marked. On side of the respondent, respondent alone has been examined.

8. On the consideration of oral and documentary evidence, the lower Court came to the conclusion that the allegation of cruelty alleged by the appellant against the respondent has not been proved and therefore, the relief of divorce has been negatived. As against the fair and decretal order, the present appeal has been filed.

9. The appeal has been filed on the grounds raised are as follows:

(i) The act of the respondent in preferring the false police complaint against the appellant and allowing the husband to suffer imprisonment for one week amounts to mental cruelty;

(ii) In spite efforts taken by the appellant and his parents, it is only to the respondent, who refused to live with the appellant. The act of the respondent in not informing the news regarding her pregnancy amounts to causing mental cruelty to the appellant;

(iii) The lower court is not correct in dismissing the petition.

10. Now the point for consideration is whether the order of the lower court refusing the relief of divorce on the ground that the allegation of cruelty is not proved is justifiable or not.

Section 10(x) of Divorce Act, 1869 (4 of 1869) dealing with the grounds for dissolution of marriage reads as follows:-

"Any marriage solemnized whether before or after the commencement of Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife be dissolved on the ground that since the solemnization of the marriage, the respondent;

i to ix. ...........

(x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent".

The legislature has not defined the word 'cruelty'. The idea, the meaning and the concept of cruelty changes from time to time, varies from place to place and differs from individual to individual. It is settled law that what constitutes cruelty depends upon circumstances of each particular case and it has to be judged on the totality of the circumstances. In this case, both the appellant and the respondent mutually allege cruelty against each other.

11. It is the contention of the appellant that the respondent caused mental cruelty to him,

a) by preferring false complaint against him and his family members;

b) by expressing her desire to postpone the pregnancy and also by not informing the pregnancy when she became pregnant; and

c) by compelling him to live along with her parents, so that she can utilise the income of herself and her husband to her parents family.

12. On the other hand, the contention of the wife is that:

a) The desertion and neglect and indifferent attitude exhibited by the husband in not taking her back, amounts to desertion and desertion itself caused mental cruelty to her.

b) The complaint preferred was neither a false complaint nor a motivated complaint. The compelling circumstances created by the appellant had driven her to seek the assistance of police.

c) the appellant never took any steps to take back the respondent.

13. Now it is for this Court to consider whether the conduct on the part of the respondent as alleged by the appellant would amount to mental cruelty.

14. It is the contention of the appellant that as the trial of case relating to dowry harassment ended in acquittal, the complaint of the wife is a false complaint and therefore, the conduct in preferring false complaint amounts to mental cruelty. According to the appellant, the act of the wife in preferring complaint of dowry harassment against the entire family members also amounts to cruelty. No doubt, allegation of false complaint by the wife preferred against the husband, if true, amounts to cruelty. But, mere preferring of the complaint alone cannot be construed to be an act of cruelty. If that interpretation is given, then the very purpose of the law, which provides for protection of the society would become a mockery. If the complaint is found to be false, then naturally, it causes mental cruelty to the sufferer. Whether the complaint is true or not can be ascertained only by consideration of the holistic circumstances of the entire case. The contention of the husband is that the criminal court before which trial was conducted has acquitted the husband and their family members and therefore, the complaint preferred by the wife is false.

15. Now, the question is whether the acquittal of the accused persons in a criminal case would automatically lead to the irresistible conclusion that the complaint is false. By the mere acquittal, one cannot come to a definite conclusion that the complaint must be false. A case registered as per law may meet the fate of acquittal due to several reasons, i.e., procedural lapses (while registering the case, during investigation, incompetent presentation of the case, ineffective arguments etc.) not discharging burden of proof, technical defects and witnesses turning hostile etc. Therefore, only if the copy of the judgment is produced, then, it would be helpful to ascertain whether the complaint is false or not. Mere acquittal of the criminal case will not lead to the automatic conclusion that the accused persons are not guilty or that the complaint is false. But, in this case the appellant has not chosen to file the copy of the judgment, despite a specific question being put to the husband during cross-examination with regard to non-production of judgment. Moreover, the standard of proof required in a civil case is different from a criminal case. Preponderance of probability is the standard expected in the civil case, whereas proof beyond reasonable doubt is the standard expected in the criminal case. Therefore, unless, copy of the judgment is produced, this Court will not be in a position to find out the grounds for acquittal and whether the complaint of the wife is false or not. It is the duty of the appellant to produce the copy of the judgment especially, when he has taken a plea that the complaint is false. The non-production of the Judgment compels the Court to draw adverse inference that if the judgment is produced, it would be against the case of the husband. Therefore, the contention of the husband that the wife preferred false complaint is not proved. Consequently, the contention that the wife treated the petitioner with cruelty is also not proved.

a. It is the case of the respondent that the appellant demanded a sum of Rs.2,00,000/- as dowry. It is the case of the appellant that the respondent lived with her father only to support him financially. As the respondent's father was a teacher, earning sufficiently there is no need for the respondent to support him. In the absence of valid reason, a newly married wife need not remain away from the husband. When the reason alleged by the appellant-husband is proved to be not correct, then the reason alleged by the respondent-wife must be true. Moreover the evidence available on record indicate that only when the appellant went to the extent of returning back to the dress materials, certificates and other articles , the respondent has chosen to prefer the complaint. Therefore, prima facie there are materials and circumstances for the respondent to prefer the police complaint. Therefore, the contention that the respondent preferred the false complaint cannot be accepted.

16. Relying upon Ex.A4, which is the certified copy of R.C.S.(referred charge sheet) No.449 of 2001, wherein the complaint given by Vincent, i.e., the father of the respondent against Shanmugasamy (father of the appellant) and others has been closed as false by Vadavalli police in Crime No.370 of 2000. The learned counsel for the appellant has contended that inasmuch as there is a positive finding that the complaint by the father of the respondent as false, then the Court must give a finding that the respondent is guilty of cruelty. Perusal of Ex.A5, reveals that the said complaint has been given on 20.12.2000. The sum and substance of the complaint is that the accused persons, i.e., the father of the appellant along with some others came to the school where the father of the respondent had been working and threatened and attacked him. While attacking the accused persons are said to have told that only if he (respondent's father) is alive, he will be able to go to police station to give a complaint and therefore, he must be done away with. Pursuant to this complaint, the complainant has been sent to Coimbatore Government Hospital with a memo. In the complaint itself, it is stated that the accused persons so behaved with the respondent's father only because of the earlier complaint, dated 16.11.2000, preferred by the respondent which was under investigation.

16.A. The available materials thus indicate that there is enmity between the family of the appellant and the respondent because of the (a) earlier separation (b) earlier complaint. Under such circumstances, the Court has to be very careful in scrutinizing the evidence. It is not known whether copy of the referred charge sheet has been served on the complainant as per the procedure contemplated in the Criminal Procedure Code. That procedure permits the complainant to challenge the conclusion arrived at by the police. It is not known whether the procedure is adopted. As the decision taken by the police, is not final one cannot come to a definite conclusion, that the decision taken by the police authorities referring the case as false would be the correct decision and it is also the final decision. More over, it is not a complaint preferred by the respondent. She has stated in her evidence that she did not know anything about the complaint preferred by her father. The concerned police officer, who investigated the case ought to have been examined to show, the materials based on which the police authorities referred the case as false. Unless there are clenching evidence to show that the case is false, then, this Court cannot conclude that just because a criminal case has been referred by the police as false, then, automatically it becomes a false case.

17. The other allegations against the respondent are that she wanted to postpone the pregnancy and that even after she became pregnant, she did not inform the appellant. The main allegation is that only in order to financially support the parents family, the respondent did not exhibit any interest in having sexual relationship with the appellant. It is not the case of the husband that despite solvent condition of the wife's family still the wife wanted to give her salary to her family. It is an admitted fact that the father of the respondent is a teacher earning sufficiently. When the appellant was controverted as to the status of the sister of the respondent, (who remained unmarried and also working abroad) the respondent feigned knowledge. The only probable conclusion is that, the respondent with a view to probabilise his contention has feigned knowledge with regard to the status of the sister of the respondent.

18. The contention of the wife is that it is only when the husband took her to Doctor Seeniammal and the doctor after confirming the pregnancy informed both the husband and wife with regard to the pregnancy of the respondent. But, the contention of the husband is that the wife did not even take care to inform him about the pregnancy and that he came to know about the pregnancy only when the parents visited her. The contention of the appellant is unbelievable because the respondent, would have been interested to share this news first only with the appellant as a person who is responsible for the pregnancy. That would be the natural conduct of any wife. There are also circumstances to indicate that the respondent and his father had been requesting the husband to take the wife back. Under such circumstances, the wife would have been anticipating and awaiting to share this news so that the opportunity of joining with the husband gets the required strength.

19. With regard to the allegations regarding postponement of the pregnancy that contention also appears to be improbable, because the following circumstances are strongly against the contention of the husband. Admittedly, the respondent had delivered the child in June, 2001. The appellant and the respondent got married on 12.6.2000. Therefore, it is evident that within one year of the marriage, the wife has delivered the child. The respondent became pregnant within two months of her marriage. Therefore, the contention that the respondent-wife went to the extent of postponing the conjugal relationship for the purpose of extending financial support to her family, especially when her family has been proved to be financially sound does not merit acceptance. Therefore, the allegation of cruelly as levelled by the husband against the wife is not proved. The finding of the trial court that appellant has not proved the cruelty also does not warrant any interference.

20. In the result, the Civil Miscellaneous Appeal is dismissed. No costs.


					(R.B.I.J.)   (S.V.J.)
				                1.03.2012          				           
Index     : Yes/No
Internet  : Yes/No
aes
To
1.The Family Court,Coimbatore.
2.The Section Officer, V.R. Section 
    High Court, Madras

 				                R.BANUMATHI, J.
and
 S.VIMALA,J.
aes











C.M.A.No.614 of 2005



			




.02.2012

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