Madras High Court
Samitha vs V.R.Thirumal on 16 November, 2023
Author: R.Subramanian
Bench: R.Subramanian
C.M.A.Nos.1602 & 1603 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.11.2023
Coram
THE HONOURABLE MR. JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MR. JUSTICE N.SENTHILKUMAR
C.M.A.Nos.1602 & 1603 of 2018
Samitha
W/o.Thirumal ... Appellant in both appeals
Vs.
V.R.Thirumal
S/o.V.N.Ranganathan ... Respondent in both appeals
Civil Miscellaneous Appeals filed u/s.19 of the Family Court Act
against the judgment and decree dated 01.08.2017 passed in FCOP No.228
of 2015 and FCOP No.28 of 2016 by the Family Court, Chengalpattu.
For Appellant : Mr.M.Kempraj
[in both appeals]
For Respondent : Mr.M.Govindaraju
[in both appeals]
*****
COMMON JUDGMENT
[Delivered by R.SUBRAMANIAN, J] Both these appeals are by the wife. Challenge is to the grant of divorce at the behest of the husband on the ground of cruelty u/s.13(1)(i-a) 1/12 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1602 & 1603 of 2018 of the Hindu Marriage Act,1955 and rejection of the claim of the wife for restitution of conjugal rights.
2. The husband filed a petition for divorce before the Sub Court, Chengalpet, in H.M.O.P.No.9 of 2012. The same was transferred to the Family Court upon its consitution and renumbered as FCOP No.228 of 2015 on the file of Family Court, Chengalpet. The husband sought for divorce contending that the marriage took place on 20.08.2010 at Chengalpet and the marriage expenses were shared between the families. It was also contended that the husband did not make any demand for dowry. It was further averred that the husband was a type-1 diabetic and insulin dependant. This fact was informed to the wife and her family and they agreed for the marriage only after ensuring with the doctor that the condition suffered by the husband would not in any manner affect the marital life. The husband would further plead that the wife was not in favour of pregnancy and therefore, she did not allow normal matrimonial life. She was avoiding cohabitation even when they were on a honeymoon at Kodaikannal. According to the husband, after some time, the wife started disrespecting and quarrelling with her in-laws even for small and trivial 2/12 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1602 & 1603 of 2018 matters and started abusing the husband claiming that he is impotent. It was also claimed that the wife had, in a marriage of the husband's cousin Nandhini, complained to the relatives about the husband and his parents. She also proclaimed that the husband was impotent thereby causing severe embrassment to the husband and his family. It was also claimed that the brother of the wife Gurunathan had slapped the parents of the husband when he was told about the happenings. Claiming that the conduct of the wife amounted to severe mental cruelty, the husband sought for divorce.
3. The wife filed a counter denying the averments made in the petition and contended that she was always living as a dutiful wife and it was the husband, who had created material to project her as a demon. She would also claim that the proceedings before the Sub Court, Chengalpet, were initiated when they were living together in the very same house. It was claimed that the notice was sent to her parents house and the same was received by her sister's daughter. It was the further contention of the wife that the husband and his counsel entered the house at about 09.50 p.m. on 11.03.2013 and attempted to remove the belongings which was thwarted by the wife. When this was brought to the notice of the police, the police 3/12 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1602 & 1603 of 2018 officer had directed her to go to her mother's house and since a case was already pending, she could work out her rights in the Court where the divorce proceedings were pending. She would also deny the claim that she had ill-treated the husband and the claim that the husband shared 40% of the marriage expenses. She would also claim that one lawyer, by name Bose, claiming to be the friend of the husband, had threatened her to agree for divorce. The sum and substance of the counter statement filed before the Family Court was to the effect that the wife is still ready and willing to live with the husband despite the fact that he is a diabetic.
4. Pending FCOP No.228 of 2015, the wife filed FCOP No.28 of 2016 u/s.9 of the Hindu Marriage Act seeking restitution of conjugal rights. The same was resisted by the husband stating that the said petition was filed four years after filing of the divorce petition and it was an afterthought. It was also contended that in view of the cruel attitude of the wife, restitution is impossible. Both the petitions were tried jointly.
5. At trial, the husband was examined as PW-1 and Exs.P1 to P7 were marked. The wife was examined as RW-1 and Exs.R1 to R6 were marked. 4/12 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1602 & 1603 of 2018 The Family Court, upon consideration of the evidence on record, particularly, the manner in which the husband was cross-examined by the counsel for the wife concluded that the husband has suffered mental cruelty. On the said conclusion, the Family Court granted divorce and dismissed the petition for restitution of conjugal rights. Hence, these appeals.
6. We have heard Mr.M.Kempraj, learned counsel appearing for appellant and Mr.M.Govindaraju, learned counsel appearing for respondent.
7. Mr.M.Kempraj, learned counsel appearing for appellant, would vehemently contend that the evidence available does not justify the claim of cruelty made by the husband. He would point out that it is the husband, who had thrown out the wife from the matrimonial home and thereby, deceitfully, created a cause of action. Learned counsel would also contend that even when they were living together, the husband had launched proceedings showing her to be living in her mother's house. Learned counsel would also submit that the evidence of the husband alone without any corroborative material cannot form the basis for grant of divorce particularly u/s.13(1)(ia) of the Hindu Marriage Act,1955. Learned counsel would also point out the 5/12 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1602 & 1603 of 2018 evidence of wife as RW-1 wherein she has reiterated her willingness to live with the husband despite the fact that he is a chronic diabetic.
8. We have considered the rival submissions.
9. The only question that would arise for determination is whether the husband had established cruelty pleaded by him so as to justify the grant of divorce by the Family Court. We have been taken through the evidence on record. As far as the documentary evidence is concerned, the same is not very helpful as what has been produced are only certain police complaints, resignation of the husband and medical records of the father and the husband himself. May be those documents by themselves cannot establish cruelty, but, at the same time, we find that the tenor and the manner in which the husband (PW-1) has been cross-examined by learned counsel for the wife would by itself justify the conclusion of the Family Court. We find that the cross-examination has been thoroughly indecent and vulgar throughout. The suggestions made and the answers elicited are shocking to say the least. We feel it appropriate to reproduce the same in vernacular itself to ensure that it does not loose its effectiveness in our attempt to translate it. We, 6/12 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1602 & 1603 of 2018 therefore, reproduce the relevant portion of the cross-examination:
@nkYk; vd;Dila jpUkzj;jpd; nghJ ehd;
jpUkzk; bra;J bfhz;l gpd;g[ vd; kidtpia
jhk;gj;a cwtpy; KG jpUg;jp mspf;f Toa
kdepiy bfhz;Ls;sjhf ehd; kdepiwt[
mile;jpUe;njd;/ vdf;F v';fSila Kjy; ,ut[ vjph;kDjhuUila bgw;nwhh; tPl;oy;jhd;
eilbgw;wJ/ mg;nghJjhd; vdf;F vd;Dila
kidtpa[ld; ePz;l neuk; jhk;gj;a cwtpy;
<Lgltpy;iy vd;W md;Wjhd; czh;e;njd;/
md;iwa jpdk; v';fSila jhk;gj;a cwtpd;nghJ vd;Dila MQqWg;gpy; tpiwg;g[j;jd;ik ,y;iy vd;Wk; mjd; fhuzkhf vjph;kDjhuhplk; ehd; KGikahd jhk;gj;a cwtpy; (bgdpl;nuc&d;) <Lgl ,y;iy mjd; K:yk; vjph;kDjhuiu Kjy; ,ut[ md;W vd;dhy; jpUg;jpgLj;j ,aytpy;iy vd;W brhd;dhy; rhpay;y/ nkYk; tahfuh vd;w khj;jpiuia ehd; cl;bfhz;l gpd;g[k; vdf;F vd;dhy; vjph;kDjhuUld; jhk;gj;a cwtpy; <Lgl;L jpUg;jpgLj;j Koatpy;iy vd;W brhd;dhy; ehd;
Kjy; ,ut[ md;W tahfuh khj;jpiuia
cl;bfhs;stpy;iy/ Mdhy; vjph;kDjhuUld;
md;iwa jpdk; jhk;gj;a cwt[ bfhz;l rkaj;jpy;
vd;dhy; ePz;l neuk; clYwt[ bfhs;s
,aytpy;iy/ vdf;F 40 taJ Mfptpl;lgoahy;
me;j rkaj;jpy; vdf;F cs; K:r;R th';fptpl;lJ/ Kjy; ,ut[ eilbgw;w gpd;g[ gpd;dpl;l ehl;fspy; njdpytpw;fhf ntz;o bfhilf;fhdy;
brd;nwhk; vd;why; rhpjhd;/ mt;thW bfhilfhdYf;F ngUe;jpy; ,UtUk; mUfUnf cl;fhh;e;J brd;nwhk; vd;W brhd;dhy; rhpjhd;/ mt;thW gazk; bra;j nghJ vjph;kDjhuUila m';f';fs; VJk; vd; kPJ glhj mstpw;F ghh;j;Jf;bfhz;L gazk; bra;njd; vd;W brhd;dhy; rhpay;y/ nkYk; bfhilf;fhdy; brd;w gpd;dh;
ncwhl;lypy; jdp U:k; vLj;J ehDk;
vjph;kDjhuUk; xd;whf j';fpa nghJk; m';F 7/12 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1602 & 1603 of 2018 itj;Jk; v';fs; ,UtUf;Fk; ,ilna ve;jtpjkhd jhk;gj;a cwt[k; Vw;gltpy;iy vd;why; rhpjhd;/ vd;Dila Kjy; tprhuizapy; 2k; gj;jpapy;
vjph;kDjhuhpd; rhjhuz czh;r;rpfSf;F Tl
vd;dhy; <LbfhLf;f Koatpy;iy vd;W
Twpa[s;nsd; vd;why; vjph;kDjhuiu ehd;
KGikahd Kiwapy; jhk;gj;a cwtpy; jpUg;jp
gLj;j Koatpy;iy vd;Wk; vjph;KDjhuh; vd;dplk;
TwpajhYk; nkYk; vjph;kDjhuh; vd;dplk;
vd;Dila MQqWg;ig vjph;kDjhuUila
bgz;QqWg;gpy; itj;J itj;J cldoahf
vLj;Jtpl;ljhf Twpajhy; mtiu vd;dhy;
KGikahd jhk;gj;a cwtpy; jpUg;jpgLj;j
Koatpy;iy vd;W vd;Dila Kjy; tprhuizapy;
gf;fk; 2y; Twpa[s;nsd;/
vd;dplk; ,Ue;j jhk;gj;a FiwghL
rk;ke;jkhd gpur;rpid ,Ue;j nghjpYk; mjid bghUl;gLj;jhky; vd;Dld; ey;y Kiwapy; md;g[ brYj;jp vjph;kDjhuh; vd;Dld; thH;e;J te;jhh; vd;whYk; nkYk; vjph;kDjhuh; vdf;F fhgpapy;
mjpfg;goahd rh;;f;fiuia nghlt[k; ,y;iy
vd;id bfhLikgLj;jt[k; ,y;iy vd;W
brhd;dhy; rhpay;y/
vd;Dila Kjy; tprhuizapy; gf;fk; 2y;
"vd;id vjph;kDjhuh; ,ut[ neu';fspy; v';fs;
gLf;ifaiwapy; 4 Rth;fspy; nftykhf bfl;l
thh;j;ijfspy; nfyp bra;J xU bgz;iz
mtUila czh;r;rpia jpUg;jpgLj;j Koahj
epiyapy; cdf;F vjw;F jpUkzk; vd;
thH;f;ifia rPuHpj;Jtpl;lha; vd;W nfyp bra;J vd;id gytpj nfhy';fspy; kdjstpYk; clyhYk;. cs;sj;jhYk; ghjpg;g[ Vw;gLj;jp te;jhh;"
vd;W brhy;ypa[s;sJ cz;ik vd;why; rhpjhd;/ nkYk; vd;id vjph;kDjhuh; "Mz;ik ,y;yhj cdf;F vjw;F jpUkzk;" vd;W gpujp jpdKk; nftyg;gLj;jpdhh; vd;W ehd; vd;Dila Kjy;
8/12
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1602 & 1603 of 2018
tprhuizapy; gf;fk; 2y; Twpa[s;sJ cz;ik
vd;why; rhpjhd;/
vdf;F Mz;ikFiwt[ ,Ue;jnghjpYk;
vjph;kDjhuh; vd;ndhL ey;y md;ghd kidtpahf ,Wjp tiuapy; vd;Dld; nrh;e;J thH jahuhf cs;shh; vd;W brhd;dhy; rhpay;y/@
10. The above cross-examination, in our opinion, justifies the claim of the husband that the wife having married him with the knowledge of his condition (chronic diabetic) had ill-treated him and abused him pointing out to his physical inability which will definitely constitute a ground for divorce u/s.13(1)(i-a) of the Hindu Marriage Act, 1955. Surprisingly, we find that the wife is highly educated and possessed of M.Sc., M.Phil and M.Ed. Degrees. She is shown to be working as a lecturer in Meenakshi Ammal Teacher Training Institute, Uthiramerur, at the time of marriage. Despite having such education her behaviour towards the husband as we could gather from cross-examination of her husband by her counsel is quite appalling and is in very bad taste. What is more intriguing is the fact that the wife had admitted that she had knowledge of the health condition of the husband even before the marriage. Having married a person at 40 years of age with a knowledge that he is a type 1 diabetic, the conduct of the wife, in 9/12 https://www.mhc.tn.gov.in/judis C.M.A.Nos.1602 & 1603 of 2018 our opinion, is not very conducive for continuation of the marital life. The Family Court has also found that the wife had even indulged in manhandling her in-laws resulting in them rushing for medical aid. We find that the Family Court has taken into account the entire scenario as made available to it and the evidence on record and come to a just conclusion to grant divorce. We see no reason to interfere with the findings of the Family Court.
11. The appeals fail and they are, accordingly, dismissed. However, in the circumstances, there shall be no order as to costs.
Mr.M.Kempraj, learned counsel appearing for appellant, would submit that there is an order for payment of maintenance. It will be open to the wife to execute the same in the manner known to law.
[R.S.M., J] [N.S., J]
16.11.2023
Index:No
Speaking Order
Neutral Citation:No
gm
10/12
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1602 & 1603 of 2018
To
The Family Court,
Chengalpattu.
11/12
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1602 & 1603 of 2018
R.SUBRAMANIAN, J
and
N.SENTHILKUMAR, J
gm
C.M.A.Nos.1602 & 1603 of 2018
16.11.2023
12/12
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