Madras High Court
Mrs.G.P.Mahalakshmi vs R.Senthil Kumar
Author: P.T.Asha
Bench: P.T.Asha
C.M.S.A.No.37 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON: 21.07.2022
PRONOUNCED ON: 01.09.2022
CORAM
THE HON'BLE Ms.JUSTICE P.T.ASHA
C.M.S.A.No.37 of 2014
and
M.P.Nos.1 & 2 of 2014
Mrs.G.P.Mahalakshmi
... Appellant/ Appellant/Respondent
Vs
R.Senthil Kumar
... Respondent/Respondent/Petitioner
PRAYER : This Civil Miscellaneous Second Appeal is filed under
Section 100 of the Code of Civil Procedure, against the Fair order and
Decreetal order dated 12.08.2014 made in HM.CMA.No.14 of 2012 on
the file the I Additional District and Session Judge at Vellore, confirming
the Fair Order and Decreetal Order dated 15.06.2011 in HMOP No.212
of 2009 on the file of the Subordinate Judge, Vellore.
For Appellant : Mr.R.Narendran
For Respondent : Mr.V.Sekar
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C.M.S.A.No.37 of 2014
JUDGMENT
The unsuccessful wife before the Court below has filed the above CMSA. The Second Appeal has been admitted on the following Substantial Questions of law:-
" a) Whether the lower appellate Court is right in grntig the relief u/s 13(1) of the Hindu Marriage Act on the ground of irretrievable break down of marriage? As against the originally relirf sught u/s 13(1)(ia) by the respondent.
b) Whether the subsequent handing over and admission of the respondent that he only had the gold jewels of the appellant under his custody will not amount to suppression and misrepresentation before the Court that the appellant has taken the same while leaving the house in the pleadings and in the evidence and the decree obtained by the said is valid or liable to be set aside for playing fraud on the Courts below?"
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2. The facts in brief is hereinbelow narrated in order to answer the Substantial Questions of law that have been framed. The parties are referred to in the same rank as before the learned Sub Judge, Vellore.
3. The petitioner had filed H.M.O.P. No.212 of 2009 on the file of the Sub Judge, Vellore seeking divorce on the ground of cruelty. It is his case that the marriage between him and the respondent had taken place on 05.03.2007 as per the customs and practice of their community at Vellore. The two of them had set up their matrimonial home along with his parents and brother. However right from the beginning, the respondent was very adamant and had an arrogant disposition. The respondent used to pick up quarrels at the drop of the hat and that apart, she did not show any respect to the petitioner or his parents.
4. The petitioner was a practicing advocate and would travel to Omalur and Salem every day. The parents of the petitioner were not keeping good health and the behavior of the respondent caused a great deal of stress upon them. The respondent used to stay in a neighbour’s 3/17 https://www.mhc.tn.gov.in/judis C.M.S.A.No.37 of 2014 house while at Salem. When the first Pongal was celebrated after their marriage at the respondent’s parents house, the respondent assaulted the petitioner and threatened to kill him and commit suicide. The petitioner was unable to handle the anger of the respondent and therefore he had decided to leave for Salem and therefore rushed to the Katpadi Railway station. The respondent followed him to the Railway station and created a ruckus at the station and went to the extent of grabbing the tickets from the hands of the Ticket Collector when it was shown for verification and tore it apart. This had humiliated the petitioner and had caused immense mental agony to him. The petitioner would submit that when he would prepare for a case, the respondent would come and throw away the case bundles and insist upon the petitioner watching television along with her. The respondent had on 06.01.2008 torn off some of his law books and case bundles. She used to also harass him during the Court hours by frequently calling him despite his request that he may not be disturbed during the Court hours. The petitioner would submit that another bone of contention between the two was the fact that he would return home past 7 O’ clock as he had to travel to Omalur and the respondent would insist 4/17 https://www.mhc.tn.gov.in/judis C.M.S.A.No.37 of 2014 that he returns home by 4 p.m.
5. On 10.01.2008, the respondent left the matrimonial home. Thereafter on 05.02.2008 her cousin by name Baskaran had requested the petitioner to take her back. On 02.07.2008, the respondent’s parents also requested the petitioner to take back the respondent, however, the petitioner expressed his inability to live with the respondent. Thereupon in the evening, the respondent along with 25 rowdy elements forcibly entered his house and attempted to leave behind the respondent. The petitioner and his parents walked out of the house to avoid the unpleasant scene and thereafter the respondent’s parents came and took her away at the instance of the mediators. The petitioner therefore came forward with the petition for divorce on the ground of cruelty commited by the respondent.
6. The respondent had filed a counter inter alia denying the statement made in the petition. It is her contention that her mother-in-law and sister-in-law did not take a liking for her and was constantly 5/17 https://www.mhc.tn.gov.in/judis C.M.S.A.No.37 of 2014 disturbing the interaction between the respondent and her husband namely the petitioner. In the month of July 2007, her brother-in-law instigated the petitioner to kill the respondent by pouring kerosene oil on her. She would further state that except for her father-in-aw and brother- in-law, Venkatarajan none in the family of the petitioner liked her and they never mingled with her and went to the extent of not allowing the petitioner and the respondent to be together. Their sole aim was to isolate her from her husband. The petitioner’s dark complexion was a source of constant ridicule by the members of the petitioner’s family.
7. The respondent would admit that she had followed the petitioner to the Katpadi Railway Station but however, it is her contention that on the day of Kaanum Pongal there was a quarrel between the petitioner and the respondent as he had not taken his breakfast even after 11.00 a.m. The petitioner attempted to then stab the respondent with a glass piece and on the advice of his brother, mother and sister had left for the station to leave for Salem. Since her husband was in an angry mood the respondent had followed him to the station to try to pacify him. It was he 6/17 https://www.mhc.tn.gov.in/judis C.M.S.A.No.37 of 2014 who had created the scene at the railway station and without heeding the request of the respondent, the petitioner had left for Salem. The respondent had come to her parental home only for participating in the Pongal celebration as it was the first one after the wedding. The respondent would submit that her relatives had attempted to bring about a rapprochement between herself and the respondent but their attempts went in vain since the petitioner was adamant that he would not take back the respondent. The respondent would submit that it was the petitioner who had behaved in a cruel manner with her and not vice- versa.
8. An additional counter was filed by the respondent wherein she would submit that she has been portrayed as being hysterical. She would submit that it is natural for a wife to expect love and affection from her husband, this has been twisted out of context by the petitioner. It is the petitioner who had caused immense mental agony and torture to the respondent. The respondent would further contend that in the first week of the Tamil Month of Adi 2008, the petitioner had sent his friends to 7/17 https://www.mhc.tn.gov.in/judis C.M.S.A.No.37 of 2014 request the respondent to stay back at her mother’s place for another 10 days as the petitioner was to go on a pilgrimage to Sabarimala. However, the assurance was not kept up and on the contrary, she was shocked to receive the notice from the Court.
9. In order to prove his case the petitioner had examined himself as P.W.1 and marked Ex.P.1 to Ex.P.5. On the side of the respondent, 3 witnesses were examined however no documents were marked.
10. The learned Sub Judge, Vellore after considering the evidence on record held that the petitioner was treated cruelly by the respondent and thereby granted the divorce.
11. Aggrieved by the said order of the learned Sub Judge, Vellore, the respondent had filed HMCMA.No.14 of 2012 on the file of the I Additional District and Sessions Judge, Vellore. The learned Judge on considering the pleadings, the oral and documentary evidence held that 8/17 https://www.mhc.tn.gov.in/judis C.M.S.A.No.37 of 2014 the petitioner had proved his case of cruelty. That apart, the learned Judge had taken note of the fact that the conduct of both the petitioner and the defendant would clearly show that the conjugal bliss has disappeared in the marriage and there was no possibility of reunion between the two, considering the fact that they have been living apart for few years. Challenging the said judgment and decree the respondent/appellant herein had filed this appeal which was admitted on the Substantial Question of law stated (supra).
12. During the course of the argument, it was also brought to the notice of this Court that as late as in the year 2018 nearly 4 years after the dismissal of the appeal filed by the respondent, the respondent has taken out an application seeking maintenance before the Judicial Magistrate Court No.2, Vellore in M.C.No.2 of 2018. The learned Judge observed that the respondent has not been able to prove the income earned by the petitioner and therefore it would not be in the interest of justice to order maintenance consequently the maintenance case was dismissed. The same was challenged before the Principal Sessions Judge, Vellore in 9/17 https://www.mhc.tn.gov.in/judis C.M.S.A.No.37 of 2014 Criminal Revision Petition No.16 of 2019. The learned Judge after considering the arguments and the documentary evidence had dismissed the Criminal Petition. No further appeal has been preferred by the respondent.
13. Mr.R.Narenderan, learned counsel appearing on behalf of the appellant would submit that the learned Subordinate Judge Vellore, after observing that both parties were guilty of adding to the ill feeling of each other has proceeded to grant the divorce on the ground that no useful purpose would be served on both of them to live together. He would submit that this amounts to granting divorce on the ground of irretrievable break down of marriage which is not a ground for divorce under the Hindu Marriage Act. Further although R.W.2 had retracted his statement that there were quarrels between the petitioner and the respondent even before the wedding, the learned Judge had relied on the earlier deposition.
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14. The learned counsel would also submit that the petitioner has deliberately suppressed the fact that the respondent’s jewellery continued to be held by the petitioner and the same has not been handed over to date. He would therefore submit that the petition filed by the petitioner for divorce has to be rejected since there has been a suppression of the fact that the jewels continued to remain with the petitioner which fact has not been denied. The learned counsel would submit that this is a fraud on Court, therefore he would rely upon the Judgement reported in (1994) 1 SSC 1 - S.P.Chengalvaraya Naidu (Dead) by LRs Vs. Jagannath (Dead) by LRs and Anothers wherein the Hon’ble Supreme Court has held that fraud is an act of deliberate deception with an intent to secure something by taking unfair advantage of another. In the instant case, the petitioner by suppressing the fact that the jewels of the respondent continues to remain with him has committed a fraud on Court. He also relied upon the judgement of the Hon’ble Supreme Court reported in (2020) 3 SCC 786 - Mangayakarasi Vs. M.Yuvaraj in support of his contention, in which the Hon’ble Supreme Court had held that dissolution of the marriage on the ground that the parties have been litigating and living separately is not 11/17 https://www.mhc.tn.gov.in/judis C.M.S.A.No.37 of 2014 justified. He would submit that the Courts below have granted the divorce on the ground that the petitioner and the respondent have been living apart for a considerable period of time and further they have been litigating for considerable period of time. He would argue that the facts of the case cited supra would apply to the facts of the instant case.
15. Per contra, Mr.V.Sekar learned counsel appearing on behalf of the petitioner/husband would submit that right from the beginning, the respondent has misbehaved and the instances of cruelty are several. He would also rely upon a compromise which has been entered into between the parties wherein the respondent has admitted that she has received back all her articles which would clearly prove that the contention of fraud put forward by the respondent stands disproved. He would submit that not only were police complaints given against the petitioner but the respondent had also insulted the petitioner at the Railway station in the presence of several persons. The respondent would submit that he is a lawyer of considerable repute and the actions of the respondent is not only cruel but has caused immense mental agony and hardship to the 12/17 https://www.mhc.tn.gov.in/judis C.M.S.A.No.37 of 2014 petitioner and lowered his self-esteem. The learned counsel would submit that the parties have now been living apart for over 15 years. In support of his argument regarding what would constitute mental cruelty he has relied upon the Judgement of this Court reported in CDJ 2018 MHC 3983 - Marikani @ Dhanasekaran Vs. Ramalakhmi @ Kavitha and with reference to the argument that the parties are living apart for several years and no useful purpose would be served by asking them to rejoin, he would rely on the following judgments of this Court reported in :-
i. CDJ 2018 MHC 6913 - K.Gangatharan Vs. Sornasundari. ii. CDJ 2015 MHC 6392 - R.Rajagoplan Vs. T.R.Parimala. iii. CDJ 2017 MHC 6181 - Dr.Manimaran Vs. Dr.Nalini. iv. CDJ 2018 MHC 6907 - T.Ramasamy V.s. S.P.Usha.
16. Heard the counsels and perused the records.
17. The petitioner has in his petition for divorce set out the various instances of cruelty which have been inflicted by the respondent herein and one of the most serious instance that has been set out is the conduct 13/17 https://www.mhc.tn.gov.in/judis C.M.S.A.No.37 of 2014 of the respondent at the Katpadi Railway Station. The respondent herein has generally denied the allegation put forward in the petition but has not specifically denied the various instances particularly with reference to the incident at the Railway Station. On the contrary, the respondent has admitted the fact that she had quarreled with the petitioner on Pongal day since he had come for breakfast only at 11 a.m. As the quarrel had esclated, the petitioner had decided to return home and had therefore left for the Railway Station. The respondent would admit that she followed him to the railway station but it is her contention that she went there to pacify the petitioner. However, if the counter and evidence is considered it can be inferred that it was the respondent who had commenced the quarrel. She has blown out of proportion a trivial incident. It is clear that her action had driven the petitioner away that too on an auspicious day of Pongal. This is but one of the instances that has been set out by the petitioner.
18. The petitioner, in his petition has also referred to the manner in which the respondent had thrown the case bundles as well as the fact that 14/17 https://www.mhc.tn.gov.in/judis C.M.S.A.No.37 of 2014 she had tore off the law books and some of the case bundles. The same has not been denied specifically by the respondent in the counter. The said denial has been made only in an additional counter statement that has been made nearly 6 months after the filing of the original counter and appears to be an afterthought.
19. The Courts below have considered the evidence adduced on both sides and have arrived at the conclusion that the petitioner has proved the ground of cruelty. Added to that the parties are also living apart for several years. The Lower Appellate Court has dealt with the issue of cruelty and also considered that the parties are living apart for several years and that is not the only ground for rejecting he appeal. Therefore, the 1st Substantial question is answered against the appellant/respondent. As regards the 2nd question of law the petition filed by the husband is one for divorce on the ground of cruelty on the part of the respondent for which the petitioner in his petition has set out the grounds and instances of cruelty the non-mention of the jewellery is not fatal to the case of the petitioner and would not also amount to 15/17 https://www.mhc.tn.gov.in/judis C.M.S.A.No.37 of 2014 suppression particularly when the petitioner has admitted possession and stated that he is ready to hand over the same back to the respondent/wife. Therefore the 2nd Substantial question of law is also answered against the respondent.
20. In fine, the Civil Miscellaneous Second Appeal is dismissed however without costs. Consequently, the connected Miscellaneous Petitions are closed.
01.09.2022 Index : Yes / No speaking Order : Yes / No shr To
1.The I Additional District and Session Judge at Vellore.
2. Subordinate Judge, Vellore.
3. The Section Officer, V.R.Section, High Court, Madras -104.
16/17 https://www.mhc.tn.gov.in/judis C.M.S.A.No.37 of 2014 P.T.ASHA, J., shr Pre-delivery Judgment in C.M.A.No.37 of 2014 and M.P.Nos.1 & 2 of 2014 01.09.2022 17/17 https://www.mhc.tn.gov.in/judis