Victoria Shanmugapriya vs Francis Selvin @ Selvakumar on 18 November, 2020

[Cites 6, Cited by 0]

Madras High Court

Victoria Shanmugapriya vs Francis Selvin @ Selvakumar on 18 November, 2020

This Civil Miscellaneous Appeal has been filed by the appellant (the wife) against the Judgment and Decree dated 28.07.2016 passed by the Additional Family Court, Coimbatore in I.D.O.P.No.1192 of 2011. The Additional Family Court, Coimbatore had rendered a Common Judgment in I.D.O.P.No.1192 of 2011 and M.C.No.53 of 2012.

2. In the said Common Judgment, the Family Court has given its reasons for dissolving the marriage solemnized between the appellant and the respondent (the husband) on 27.11.2006 in I.D.O.P.No.1192 of 2011 and awarded a sum of Rs.6,000/- per month as monthly maintenance payable to their minor son in M.C.No.53 of 2012. In this appeal, we are concerned only with the legality of the Decree passed in I.D.O.P.No.1192 of 2011.

3. The family Court has found the appellant guilty of cruelty on three counts namely:-

____________ https://www.mhc.tn.gov.in/judis Page No 2 of 53 C.M.A.No.134 of 2017 i. the appellant denied sex to the respondent; ii. the appellant threatened to commit suicide; and iii. the appellant filed criminal complaint against the respondent and his family.

4. Before proceeding further with the merits of the case, we would like to place on record the willingness expressed by the parties to settle the dispute amicably. The respondent had also filed an affidavit dated 16.03.2020 through his counsel Mr.Kothandaraman to settle a property in favour of the minor son of the appellant and the respondent before the lockdown was imposed. The appellant was initially satisfied with the aforesaid undertaking. Copy of the said undertaking is reproduced below:-

I state that I have got divorce in I.D.O.P.No.1192 of 2011 through Hon’ble Additional Family Court at Coimbatore. I am working and earning a sum of Rs.10,000/- as monthly salary in private company, Coimbatore. As per order passed in D.V.C.No.30 of 2014, I am very regular in paying maintenance amount of Rs.4,000/- every month without fail to my minor son S.Akash.

I state that he undertakes to execute my half share in Document No.2524/2007 as settlement ____________ https://www.mhc.tn.gov.in/judis Page No 3 of 53 C.M.A.No.134 of 2017 deed in my son favour namely minor S.Akash.

Hence I prays that this Hon’ble Court may be pleased to close this Appeal by issuing an order of visiting rights of his minor son S.Akash every Sunday in St.Paul’s Church, Sampath Street, Rathinapuri, Coimbatore – 641 027, by considering the bonafide grounds and thus render justice

5. The case was therefore adjourned to 16.04.2020 and time was given for the respondent to comply with the aforesaid solemn undertaking given in the above affidavit before this Court. Meanwhile, lock down was imposed due to outbreak of the Novel Covid virus pandemic. After the court resumed hearing of cases through video conference, the case was listed on 16.07.2020. Further time was also given for the respondent to comply with the aforesaid solemn undertaking. The case was thereafter listed again on 22.07.2020 to ascertain whether the respondent had complied with the undertaking given in the affidavit.

6. However, there was no representation on behalf of the respondent. The learned counsel for the appellant informed us that the respondent had not executed any document pursuant to the aforesaid undertaking given in the affidavit and had already married another person ____________ https://www.mhc.tn.gov.in/judis Page No 4 of 53 C.M.A.No.134 of 2017 during the pendency of the present proceeding. The learned counsel was however unable to confirm the same with any other documentary proof.

7. We therefore directed the learned counsel for the appellant to inform the learned counsel for respondent to appear before us through video conferencing. The case was thereafter listed on 11.09.2020. There was however no representation on behalf of the respondent.

8. This case was thereafter again listed for hearing on 21.09.2020.

This time, we posted the case in the open Court. Mr.Kothandaraman the learned counsel for the respondent appeared before us on the said date. He submitted that his client was willing to settle another property in lieu of the property offered earlier vide affidavit dated 16.03.2020.

9. However, the said offer was not accepted by the appellant as the value of the alternate property offered was stated to be of much lower value. The appellant therefore wanted monetary compensation. We therefore passed-over the case and allowed the counsels to discuss with their respective clients to arrive at an amicable settlement and report the ____________ https://www.mhc.tn.gov.in/judis Page No 5 of 53 C.M.A.No.134 of 2017 outcome. However, they were unable to arrive at any amicable settlement.

10. Under these circumstances, we asked the learned counsels to address their arguments on merits as no amicable settlement was reached between the parties. The case was argued in part and adjourned to 21.09.2020. However, Mr.Kothandaraman, the learned counsel for the respondent failed to appear on 21.09.2020. We therefore adjourned the case again to 29.09.2020 to facilitate both the counsels make their submissions through video conferencing.

11. However, again on 29.09.2020 the counsel for the respondent failed to appear before us. Having waited and having heard the learned counsel for the appellant Mr.R.Abdul Mubeen, we reserved the case for passing judgments.

12. We have perused the records and the evidence on record. We have considered the arguments advanced on behalf of the appellant and the learned counsel for the respondent and the written submission filed by the learned counsel for the appellant.

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13. For a proper disposal of the present appeal, we shall briefly narrate the facts, evidence on record, rival contentions of the parties and the impugned judgment and decree dissolving the marriage solemnized between the appellant and the respondent.

14.I.D.O.P.No.1192 of 2011 was filed by the respondent (husband) under Section 10(1)(vii) and 10(x) of The Indian Divorce Act, 1869, to dissolve the marriage solemnized between the appellant (wife) and the respondent on 27.11.2006. In the said proceeding, the appellant had also filed M.C.No.53 of 2012 for interim maintenance for herself and their son born to them which came to be disposed vide the impugned Common Judgment. Later, the appellant had also filed D.V.A.C.No.30 of 2014 before the Judicial Magistrate Court No.2, Coimbatore with which we are not concerned here. We were informed that a sum of Rs.4000/- was ordered to be paid as monthly maintenance to the son of the appellant and respondent in C.M.P.No.6278 of 2015 in D.V.A.C.No.30 of 2014.

15. In this appeal we are also not concerned with that part of the ____________ https://www.mhc.tn.gov.in/judis Page No 7 of 53 C.M.A.No.134 of 2017 impugned Judgment and Decree passed in M.C.No.53 of 2012 ordering payment of monthly maintenance of Rs.6,000/- to the son of the appellant and the respondent. Therefore, we shall refer to only those averments, documents and evidence which were filed in support and against of I.D.O.P.No.1192 of 2011.

16. The allegation of the respondent before the Family Court was that the mother of the appellant was a former employee of the respondent’s father and had mastermind and got the appellant married to the respondent on 27.11.2006 by taking advantage of her equation and proximity with the respondent’s father with a view to corner the wealth of the respondent’s father even though the appellant was not interested in marrying the respondent. The marriage was consummated and a son was born to them on 22.08.2007.

17. It was further alleged that the father of the respondent had bought land measuring 2114 sq.ft. in Chinnavedampatti Sakthinagar Extension on 22.06.2005 and gifted it to the appellant’s mother though no document was marked to substantiate it.

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18. The respondent further alleged that the appellant’s father and mother had separated from each other and family of the appellant was dependent on the income from the appellant’s mother under the employment of the respondent’s father. It was further alleged that at time of the marriage, the family of the appellant did not give any jewelry. Instead, the father of the respondent gifted about 25 ½ sovereign of gold ornaments to the appellant and thereafter, again 16 sovereigns after the marriage to the appellant.

19. It was further alleged that on the very first day of the marriage, the appellant insulted the respondent and stated that the appellant was repulsive and bought a sense of “abomination” (mUtUg;ghf) in her and was incompatible in every aspect and that she should have actually married somebody else.

20. It was further alleged that within three months after the ____________ https://www.mhc.tn.gov.in/judis Page No 9 of 53 C.M.A.No.134 of 2017 marriage, the appellant deserted the respondent and started living with her mother where their son was born on 22.08.2007.

21. It was further alleged that even during the short period of stay, the appellant persisted with her unreasonable demand that the respondent should transfer the business and assets of the respondent’s father to her and her mother’s name or she would commit suicide holding them responsible for her death.

22. The respondent further alleged that the appellant had demanded that her brother Ganaprakash be employed in the company of respondent's father and since the respondent’s father could not accommodate him, the appellant denied sex and threatened to walk out of the matrimonial life. The respondent further alleged that the appellant’s brother was later appointed but had to be dismissed due to his incompetency and ineptness.

23. A reference was made to Ex.R.14 dated 30.03.2007, wherein the respondent’s father sold 2 Cents and 178 sq.ft out of total extent of ____________ https://www.mhc.tn.gov.in/judis Page No 10 of 53 C.M.A.No.134 of 2017 land of 5 Cents 222 sq.ft., vide Document No: 2524/2007 in name of the appellant and the respondent on which the appellant’s father had built six houses for the appellant and the respondent by taking loan from Repco Bank and was servicing the said loan. It is this property which the respondent had initially offered to settle in favour of their son and filed an affidavit before this Court but later resiled from it.

24. It was further alleged that after the appellant had left the matrimonial home the respondent was compelled to live with the appellant in appellant’s mothers house for a month and thereafter brought her back to the matrimonial home and started living together. According to the respondent, the appellant denied sex to him and therefore, he was forced to lead a life of a bachelor.

25. It was further alleged that the appellant failed to show any affection or have any sexual intimacy with the respondent and continued to insult the respondent and his father using filthy words.

26. That apart, when the parents of the respondent went to visit the ____________ https://www.mhc.tn.gov.in/judis Page No 11 of 53 C.M.A.No.134 of 2017 minor son born to them in the appellant’s mother home, the appellant abused them with filthy words “Get out “ntspaNghlh fUkhz;b ehNa” in front of the friends.

27. It was further alleged that the appellant was cruel to the respondent when they were living in house of appellant’s mother and later in respondent's fathers house and did not allow the respondent's father interact with his grandson. The further allegation of the respondent was that the appellant took away 42 sovereign of jewelry, Original RC book of the car and a mortgaged deed dated 18.11.1998 allegedly executed by the appellant’s father on 07.09.2011 and left the matrimonial home without any intimation and provocation and since the respondent confronted the appellant over phone for the same, the appellant along with her mother and brother came to the respondent’s house and abused him in front of the neighbours using filthy words viz., “Buffalo (vUikkhL)”, Mad dog (mwpTnfl;l eha;) and Shamless family (NfLnfl;l FLk;gk;).

28. Subsequently, the respondent lodged a complaint on ____________ https://www.mhc.tn.gov.in/judis Page No 12 of 53 C.M.A.No.134 of 2017 10.09.2011 before the B-15, Rathinapuri Police Station against them for abusing the respondent which was acknowledged as C.S.R.No.361/2011. However, the said document was neither filed nor marked as an exhibit before the Family Court. Under these circumstances, the appellant gave Ex.P9 letter dated 11.09.2011 to the same police station giving her reasons for leaving the matrimonial house on 07.09.2011.

29. It was further stated that a Domestic Violence Complaint was later filed by the appellant against the respondent as a revenge but was compromised on 24.10.2011 in the same police station. However, copy of the alleged compromise arrived between the appellant and respondent was also not filed as an exhibit before the Family Court.

30. It was further contented that the appellant continuously persisted with her demand with the respondent by asking his father to transfer all the property and company of the respondent’s father to her name and her mother, failing which, she would give a Dowry Company and/or commit suicide after writing a letter naming the respondent and his parents as persons responsible for her death. ____________ https://www.mhc.tn.gov.in/judis Page No 13 of 53 C.M.A.No.134 of 2017

31. Under these circumstances, the respondent prayed for dissolution of the marriage solemnized between them on the ground of cruelty and non consummation of the marriage.

32. The appellant in her counter affidavit denied the allegations regarding the alleged proximity between the appellant’s mother and the respondent’s father and therefore reserved her right to file a defamation case before the appropriate Court against the appellant. She denied that the respondent’s father had gifted any property to the appellant’s mother.

33. The appellant further stated that at the time of the marriage, the family of the appellant had given 40 sovereign jewelry as gift and spent about Rs.4,00,000/- for marriage ceremony. She further stated that their marriage was a love marriage and was blessed by the elders. However, after she shifted to the matrimonial home with the respondent in 2009, she continuously faced sexual harassment in the hands of the respondent’s father and therefore she was forced to leave on 07.09.2011.

34. The appellant further denied the allegation that she denied ____________ https://www.mhc.tn.gov.in/judis Page No 14 of 53 C.M.A.No.134 of 2017 sexual intimacy to the respondent. The fact that a child was also born to them was a standing testimony of their sexual intimacy and therefore, ground for dissolution of marriage under Section 10(vii) of the Indian Divorce Act, 1869 was not made out.

35. In her counter, the appellant alleged that the respondent’s father had made predatory sexual advances on her and since she failed to reciprocate the same, the respondent’s father poisoned the mind of the respondent against the appellant and threatened to break the marriage between the appellant and the respondent by getting the respondent married to one of his friend’s daughter.

36. She further alleged that the respondent remained a mute spectator and neither took any steps to confront his father as the respondent was dependent on him financially nor arranged for a separate independent house. The appellant therefore stated that feeling a sense of hopelessness and helplessness, she was forced to leave the matrimonial home on 07.09.2011 with some of her belongings as the respondent failed to protect her from his father. She further alleged that the respondent ____________ https://www.mhc.tn.gov.in/judis Page No 15 of 53 C.M.A.No.134 of 2017 failed to take up his responsibility to their son after their separation.

37. The appellant further alleged that the land, i.e., 2 Cents 178 sq.ft., was transferred by the respondent’s father in the names of the appellant and the respondent only after receiving a total sale consideration for sum of Rs.15,00,000/- from the family of the appellant and therefore, it was not true that the respondent’s father had gifted any property either to her or to her mother.

38. It was submitted that a false complaint dated 10.09.2011 was filed by the respondent before the B-15 police station, Rathinapuri against appellant, her mother and her brother and was rightly closed as a false complaint. In Ex.P9 dated 11.09.2011, the appellant has informed the Rathnapuri police station that she left the matrimonial home as she wanted the respondent to setup an independent matrimonial home and that the respondent also agreed to setup an independent matrimonial home within one month. She has also informed the said police station that she had carried one document and jewels (two bungles only) with her. ____________ https://www.mhc.tn.gov.in/judis Page No 16 of 53 C.M.A.No.134 of 2017

39. The appellant further stated that the respondent and his father were cruel to her to a point by driving her to commit suicide as she avoided predatory sexual advances of the respondent’s father during the respondent’s absence and was thus forced to leave the matrimonial home on 07.09.2011.

40. However, in M.C.No.53 of 2012, the appellant alleged that since the respondent’s father resorted to sexual advances taking advantage of the absence of the respondent as the respondent was traveling in connection with work and since she did not succumb to such sexual advances, the appellant and the minor son Akash were driven out of the matrimonial home in the middle of the midnight on 07.09.2011 as she declined to sign the documents for divorce by mutual consent. However, both the appellant and the respondent admit that the appellant left the matrimonial home on 07.09.2011.

41. The appellant also admitted having given a criminal complaint on 24.10.2011 against the respondent because of cruelty on her by the respondent and his family members, before the All Women Gandhi Nager Police Station.

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42. The respondent marked Exhibits P1 to 19 which included the Marriage Certificate, Wedding Invitation, Photographs of the marriage, his salary certificate, some of the documents of the property and etc. The appellant marked Exhibits P1 to 23 documents which included School receipts for the fees for the minor son in the school, Bank Pass Book. Similarly, the witness marked Exhibits W1 to 5 in M.C No.53 of 2012. Details of Exhibits marked before the Family Court are detailed as under:-

Respondent (Petitioner) side Exhibits Ex.P1 14.09.2011 Marriage Registration Certificate (Original) Ex.P2 27.11.2006 Marriage Reception Invitation Ex.P3 - Marriage Photo Ex.P4 March 2013 Salary list of respondent (appellant) Ex.P5 - Copy of D.V.A.No.30/14 Ex.P6 - Receipt of salary of Velusamy in January 2008.

Ex.P7 07.03.2011 Cash receipt issued by the Super Plastic Company Ex.P8 22.07.2015 Copy of baptism registration of Joyal Aakash Ex.P9 11.09.2011 Copy of letter given by the respondent (appellant) to the Sub Inspector of Police, Rathinapuri Police Station Ex.P10 - Copy of D.V.A.No.30/14 ____________ https://www.mhc.tn.gov.in/judis Page No 18 of 53 C.M.A.No.134 of 2017 Respondent (Petitioner) side Exhibits Ex.P11 12.05.2010 Certificates issued by Tahsildar, Kovai (North), to get appointment on the basis of compassionate.

                             Ex.P12       -        Photo
                             Ex.P13       -        Photo

Ex.P14 14.06.2012 Invitation of Puberty Ceremony of Namitha Shanu Ex.P15 20.05.011 Receipt of Aravind Eye Hospital for the treatment given to Aakash.

Ex.P16 16.09.2009 Xerox copy of sale deed given by A.Sivasami, the power agent of M.Palanisamy and three others to the respondent (appellant) Ex.P17 - Copy of Mortgage Deed given by the PW.6, PW.1 and R.W 1 to the Repco Bank.

Ex.P18 20.05.2014 Certificate of loan outstanding issued by the Repco Bank Ex.P19 04.02.2016 Certificate of loan outstanding issued by the Repco Bank Appellant (respondent) side Exhibits Ex.R1 - Marriage Invitation Ex.R2 - Marriage Photo Ex.R3 - I.D.O.P.1192/11 Ex.R4 22.08.2007 Birth Certificate of Aakash Ex.R5 - Receipt of Education Fees of Aakash issued by the Kesar International School.

Ex.R6 - Copy of Ration Card of R.W.2 Ex.R7 13.04.2013 Receipt of Education Fees of Aakash Ex.R8 19.09.2013 Receipt of Education Fees of Aakash Ex.R9 29.01.2014 Receipt of Education Fees of Aakash Ex.R10 08.04.2014 Receipt of Education Fees of Aakash ____________ https://www.mhc.tn.gov.in/judis Page No 19 of 53 C.M.A.No.134 of 2017 Appellant (respondent) side Exhibits Ex.R11 10.09.2014 Receipt of Education Fees of Aakash Ex.R12 10.03.2015 Advocate Notice of PW.1’s Counsel Ex.R13 09.01.2015 Receipt of Education Fees of Aakash Ex.R14 30.03.2007 Copy of sale deed given by the PW.6 to the PW.1 and RW.1.

Ex.R15 - Photo Ex.R16 16.09.2009 Xerox copy of sale deed given by A.Sivasami, the power agent of M.Palanisamy and three others to the respondent (appellant) Ex.R17 16.09.2009 Xerox copy of sale deed given by A.Sivasami, the power agent of M.Palanisamy and three others to the petitioner (respondent) Ex.R18 - Copy of I.D.O.B Saving Bank Account Book of RW.2.

Ex.R19 28.02.2008 Order of dismissal of job of RW.1 Ex.R20 10.09.2015 Receipt of Education Fees of Aakash Ex.R21 06.01.2016 Receipt of Education Fees of Aakash Ex.R22 15.07.2015 Copy of Judgment of Criminal Appeal Ex.R23 - Copy of Account Statement in the name of Veni Plastic in Karur Vysa Bank from 01.01.2016 to 31.0.2016.

Witness side Exhibits Ex.W1 - Account Statement of the RW1 in Axis Bank from 31.08.2012 to 10.12.2014.

Ex.W2 - Copy of Axis Bank Identify Card of PW.2 Ex.W3 - Amar Prakash Company Identify Card of PW.3 Ex.W4 08.09.2012 Appointment Letter issued by the Amar ____________ https://www.mhc.tn.gov.in/judis Page No 20 of 53 C.M.A.No.134 of 2017 Witness side Exhibits Prakash Company to the RW.1 Ex.W5 - Copy of salary list given to the RW.1 from April 2014 to September 2014.

43. Following witness were examined on behalf of the appellant and the respondent:-

On the side of the respondent On the side of the appellant (petitioner) (respondent) P.W.1 Francis Selvin @ Selva R.W.1 Victoria Shanmugapriya Kumar ( respondent) P.W.2 Dhanasekar R.W.2 Krishnaveni (appellant's mother) P.W.3 Rajasekar -

                              P.W.4 Duraisamy                                     -
                              P.W.5 Dhanapaul                                     -
                              P.W.6 Ashok               Kumar                     -
                                    (respondent's father)

44. The Family Court framed the following question for consideration in I.D.O.P. and M.C:-

i. Whether the petitioner (respondent) was entitled to get divorce as prayed in I.D.O.P.No.1192 of 2011? ____________ https://www.mhc.tn.gov.in/judis Page No 21 of 53 C.M.A.No.134 of 2017 ii. Whether the petitioners (appellant and their son) were entitled to get maintenance? If possible, how much?

45. The Family Court has answered the first point in favour of the respondent and second point partly in favour of the son of the appellant and the respondent.

46. The Family Court after recording a lengthy evidence on issues which did not fall for its consideration has finally found the appellant guilty of cruelty on the grounds that the appellant had denied sex to the respondent and thereby inferred cruelty by the appellant on the respondent. The Family Court has also found the appellant guilty of cruelty on account of the fact that the appellant had filed Domestic Violence Complaint for domestic harassment against the respondent and his father on 24.10.2010 and that the appellant had threatened to commit suicide blaming the appellant and his parents for her death.

47. Though the Family Court has concluded that the appellant was guilty on these three counts, there are no evidences to substantiate the ____________ https://www.mhc.tn.gov.in/judis Page No 22 of 53 C.M.A.No.134 of 2017 same. The appellant had also denied the allegation in the counter filed by her. Though the appellant alleged that the respondent’s father had made to predatory sexual advances on her and it was impossible for the appellant to stay at the matrimonial home under the same roof with the respondent’s father and therefore left the matrimonial home on 07.09.2011, the Family Court has concluded that the appellant voluntarily left the matrimonial home without any reasons merely becuase the appellant had not filed any complaint against the respondent's father earlier.

48. The Family Court has concluded that the allegation of predatory sexual advances by the respondent’s father was an afterthought manufactured by the appellant for the purpose of defending herself in the divorce proceedings as no prior complaint had been filed by the appellant on this aspect before the institution of the divorce proceeding in I.D.O.PNo.1192 of 2011 by the respondent. The Family Court has thus disbelieved the defence of the appellant.

49. We are however not convinced with the conclusion arrived by ____________ https://www.mhc.tn.gov.in/judis Page No 23 of 53 C.M.A.No.134 of 2017 the Family Court. In our view, it was quite possible for the appellant to have left the respondent as the respondent has no independent income to take care of himself and the appellant and the child born to them. The truth in the allegation of the appellant regarding sexual harassment is to be finally determined in the pending DVA proceeding. Therefore, the defence of the appellant cannot be brushed aside considering overall facts and circumstances of the case. We shal l be giving our reasons in the course of this order.

50. The Family Court has gone at great length to discuss about the alleged purchase of property in the name of the appellant’s mother by the respondent’s father prior to the marriage between the appellant and the respondent. In our view, the Family Court ought not have allowed the respondent to let in evidence on issues which were totally irrelevant and alien for determining the dispute before it. The Family Court appears to have allowed the parties to have a free run during examination and cross examination of the witnesses and allowed itself to be confused itself.

51. The only point that fell for consideration before the Family ____________ https://www.mhc.tn.gov.in/judis Page No 24 of 53 C.M.A.No.134 of 2017 Court was whether the appellant was cruel to the respondent and whether such cruelty caused a reasonable apprehension in the mind of the respondent that it would harmful or injurious for him to live with the appellant for the Family Court to dissolve marriage under Section 10(1)(x) of the Indian Divorce Act, 1869.

52. In our view, the Family Court has meandered and given its finding on several irrelevant issues which did not arise for its consideration even though it had correctly framed the point for determination i.e. whether the respondent had proved cruelty to warrant a dissolution of the marriage solemnized between the appellant and respondent on 26.11.2006.

53. Coming to dispute in this appeal, the basic facts are not in dispute. The marriage between the appellant and the respondent was solemnized on 27.11.2006 at St.Chinnapar Church, Coimbatore as per Christian rituals and a son was born to them on 22.08.2007.

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54. Both the appellant and the respondent come from a different religious background. While the respondent was a Christian and a follower of Christianity, the appellant was a Hindu who converted to Christianity at the time of the marriage with the respondent.

55. The Family Court has given an unnecessary finding that the appellant converted to Christianity on her own volition and there was no forcible conversion to Christianity when indeed this was not an issue which fell for consideration before it.

56. In our view, it can be fairly assumed that the appellant converted to Christianity as she was live with the respondent and his family who appear to follow Christianity. The fact that the respondent’s family was in a better economic and social position in the society also impels us to conclude that while there would have been no forcible conversion, it was practical and prudent for the appellant to convert to Christianity. However, this was not a relevant issue for consideration before the Family Court. Yet the family Court has given its finding on ____________ https://www.mhc.tn.gov.in/judis Page No 26 of 53 C.M.A.No.134 of 2017 the same.

57. Merely because the marriage was solemnized as per the rituals followed in a Church ipso facto does not call for an inference that the appellant and the respondent did not know each other or were strangers with each other before their marriage. Similarly, merely because the appellant failed to mark any photograph with the respondent before the marriage also does not ipso facto mean that they would have not known each other before their marriage.

58. The fact that both the appellant and the respondent come from a different religious back ground and the fact that the respondent was unemployed at the time of the marriage and was wholly dependent on his father for his financial needs, indicates that families decided to celebrate the marriage between the appellant and the respondent after they came to know that they were courting and seeing each other.

59. The conclusion of the Family Court that the appellant was not forced to change her faith since the appellant attended the class conducted ____________ https://www.mhc.tn.gov.in/judis Page No 27 of 53 C.M.A.No.134 of 2017 by the church for baptism was totally an irrelevant issue for determining the dispute as to whether the appellant was cruel to the respondent after their marriage.

60. Further, even as per the allegations of the respondent in I.D.O.P.No.1192 of 2011, the appellant’s mother was earlier working in the respondent father’s company and had allegedly masterminded the marriage between the appellant and the respondent by taking advantage of her proximity with the respondent’s father.

61. Whether the appellant's mother indeed masterminded the marriage or not was not a relevant point for consideration before the Family Court. It however shows that the appellant and the respondent knew each other before their marriage. Deposition of the respondent's father (P.W.6) also indicates that both the families were not strangers.

62. Unsavory allegations of the respondent that respondent’s father and appellant’s mother had illicit relationship earlier and that the former had purchased a property in the past in favour of the latter and that the latter masterminded the marriage between the appellant and the respondent by taking advantage of her proximity with respondent’s father ____________ https://www.mhc.tn.gov.in/judis Page No 28 of 53 C.M.A.No.134 of 2017 with a view to corner the business and the wealth of the respondent’s father were irrelevant factors to determine the issue as to whether the appellant was cruel to the respondent after marriage.

63. It appears to be a fictional theory manufactured by the respondent for the purpose of securing the decree of divorce by not only sullying the image of the appellant's mother but also by insulting and embarrassing the appellant. Though the Family Court had not given any finding on the same, yet it allowed the respondent to let in oral evidence on the same. Precious time of the Family Court was allowed to be frittered away in the process.

64. In our view, the Family Court had unnecessarily allowed the respondent to level reckless allegation to indirectly influence its decision to conclude that the appellant was cruel to the respondent.

65. The Family Court should have noted that since both the appellant and the respondent came from a different faith, there would have been no compelling reasons for the respective families to come together to arrange for their marriage but for the fact that there was a pre-existing underlying relationship in the background between the ____________ https://www.mhc.tn.gov.in/judis Page No 29 of 53 C.M.A.No.134 of 2017 appellant and the respondent before the marriage.

66. Having decided to give a finding regarding conversion to Christianity before the marriage by the appellant, the Family Court should have pondered why would the appellant convert her faith and why would the respondent’s family be eager to get the appellant and the respondent married if there was no other factors common between the appellant and the respondent.

67. The Family Court should have also pondered as to what was the necessity for the parents of the respective parties to arrange for the matrimony between them especially when both the families came from different faith.

68. The Family Court should have also pondered as to what was the common thread that brought the parents to arrange for the marriage between the appellant and the respondent. Instead, the Family Court allowed both the appellant and the respondent to have a free run during trial while recording evidence to give finding on totally irrelevant issues. ____________ https://www.mhc.tn.gov.in/judis Page No 30 of 53 C.M.A.No.134 of 2017

69. Over all admitted facts indicate that not only the appellant and the respondent knew each other well before the marriage but also the appellant's and the respondent's family knew each other before the marriage and therefore arranged for it.

70. Therefore, while we find no error in the conclusion of the Family Court that the marriage between the appellant and the respondent was an arranged marriage, at the same time, it would be incorrect infer that the appellant and the respondent were strangers and did not know each other before their marriage.

71. The allegation that the appellant denied the sexual intimacy to the respondent and that the appellant had attempted to corner the wealth by beseeching the respondent to pressurize his father to transfer the business and the assets to the name of the appellant and her mother appears to be far-fetched.

72. Facts indicate that both the appellant and the respondent are ____________ https://www.mhc.tn.gov.in/judis Page No 31 of 53 C.M.A.No.134 of 2017 well qualified. While the respondent was still pursing M.C.A at the time of marriage on 26.11.2006, the appellant had already completed M.B.A and was employed with Karvy Stock Broking Ltd., Coimbatore as is evident from Exhibit P1 Marriage Invitation.

73. After marriage, the appellant and the respondent lived under the same roof along with the respondent’s parents for about three months. The First night after the marriage was arranged in the appellant’s mother house.

74. The principal allegation of the respondent against the appellant that she had allegedly abused the respondent by calling him unsuitable and repulsive and the very sight of him brought within her a feeling of abomination and that the respondent was incompatible in every aspect on the very first day of the marriage is not only irrelevant but also appears to be highly improbable. The allegation that the on the very first night, the appellant insulted the respondent appears highly improbable. Even if true, the respondent has condoned those insulting utterances and lived with the appellant and consummated the marriage and sired a child. ____________ https://www.mhc.tn.gov.in/judis Page No 32 of 53 C.M.A.No.134 of 2017 Since we are convinced that the appellant and the respondent were courting and seeing each other before the marriage and it is unlikely the appellant would have uttered those words on the very first night together after the marriage.

75. Therefore, the allegations of the respondent that the appellant would have made those utterances cannot be believed to be true. In any event does not constitute an instance of cruelty.

76. After spending first few days in the appellant's mother's house, the appellant and the respondent came to live with the respondent’s family as a joint family. The said joint family was to consist of the appellant, the respondent and the respondent’s parents as the respondent’s sister was already married and was living with her husband.

77. The appellant thereafter became pregnant within three months of the marriage. The appellant therefore shifted to her mother’s house. The respondent followed the appellant and started living in the house of the appellant’s mothers with her upto March 2009. There, their son was born on 22.08.2007. Thus, they lived as couples in the ____________ https://www.mhc.tn.gov.in/judis Page No 33 of 53 C.M.A.No.134 of 2017 appellant's mother's house for the first three year barring the first three months in the respondent's father's house.

78. Since the marriage was consummated and a son was born, no case was made out by the respondent before the Family Court for dissolving the for non-consummation of marriage under Section 10 (1)(vii) of the Indian Divorce Act,1869. The Family Court has also not found dissolved the marriage under aforesaid provisions.

79. After March, 2009, the appellant, respondent and the son born to them came to live with the respondent’s parents as a joint family. There they have lived for another two years upto 07.09.2011. On 07.09.2011, the couples parted ways which determined the future course of event.

80. A reading of the petition in IDOP No.1192 of 2011 and the counter of the appellant in the said case indicates that on 07.9.2011, the appellant left matrimonial home by herself. Thereafter, the respondent filed a complaint on 10.09.2011 against the appellant and her ____________ https://www.mhc.tn.gov.in/judis Page No 34 of 53 C.M.A.No.134 of 2017 family members before the B-15, Ratnapuri Police Station, Coimbatore.

81. Copy of the Complaint and its content are not part of the record. However, the appellant has also admitted in her counter that the respondent had filed a complaint on the said date. If the copy of the complaint filed by the respondent before the said Police Station was filed, it would have shown what was the state of mind of the respondent and what really triggered the respondent to take such a drastic step. In our view, it was incumbent on the part of respondent to file a copy complaint before the Family Court. If it was filed before the Family Court, it could have speculated and come to a fair conclusion based on over all evidence as to whether the appellant by her conduct was cruel to the respondent or not prior to the said date.

82. According the respondent, the appellant was cruel to the extent of denying sex to him and pestered him to beseech his father to transfer all the assets and business of the latter to the appellant and her mother's name, failing which, she would commit suicide holding the respondent and his family responsible for her death. These allegation of ____________ https://www.mhc.tn.gov.in/judis Page No 35 of 53 C.M.A.No.134 of 2017 the respondent against the appellant appears to be highly improbable. He further alleged that the appellant abused his parent verbally and insulted them in front of their friends. Though there may be some truth in the said allegation. However, it cannot be amount to cruelty as she was allegedly suffering in the respondent's father's house.

83. The appellant in her counter denied the allegation of cruelty and alleged that she was forced to leave the matrimonial home as the respondent’s father was pestering her to have sex with him and since she refused to succumb to his carnal desires and since she was harassed by him and the respondent.

84. According to the appellant, when she escalated the same to the respondent, the respondent is said have advised the appellant to put up with the elders. If this was true certainly, the appellant was justified in leaving the matrimonial home as it would have been highly oppressive and suffocating to live under the glare of a sexual predator and mate husband. As indicated above this aspect would require a thorough investigation in the DVA proceeding.

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85. In her counter, the appellant has affirmed that she left the matrimonial home on 07.09.2011 as she was unable to tolerate the cruelty and harassment meted out by the respondent’s father as the latter attempted to sexually harass her while the respondent remained a mute spectator, though in M.C.No.53 of 2012 filed for interim maintenance, the appellant stated that she was driven out of the matrimonial home along with minor son in the middle of night at 11 p.m. and was dispossessed of all jewelries (except Mangal Suthra) since she refused to consent to divorce the respondent.

86. This allegation in M.C.No.53 of 2012 is in variance with the stand of the appellant in the counter filed in I.D.O.P.No.1192 of 2011. However, in our view, this variation is of not much significance to determine cruelty as the respondent immediately proceeded to file the above case after 07.09.2011 on 08.11.2011.

87. The allegations of the respondent in the I.D.O.P. and deposition recorded during the chief and cross examination of witnesses ought to ____________ https://www.mhc.tn.gov.in/judis Page No 37 of 53 C.M.A.No.134 of 2017 have been viewed from a proper perspective by the Family Court.

88. The parties have lived together only upto 07.09.2011 i.e. for a period of about 5 years and two months since the marriage on 27.11.2006. The Family Court ought to have found as to whether there was no case made out for cruelty by denying sexual intimacy. Allegations that the appellant threatened to commit suicide has not been proved. The respondent has not produced any evidence to substantiate the same. Whether the appellant insulted her in-laws or not also has not been proved. Barring the bald allegation and self serving statements of the witness, there is no other evidence to substantiate the same.

89. In our view, the respondent moved the first coin for loosening marital chord by filing a criminal complaint against the appellant by treating the appellant like a criminal instead of taking assistance of marriage counselors and family therapist to remedy the problem. This failure on the part of the respondent had a cascading effect. It indicates that the respondent was ill-advised or acted in haste to walk to the corridors of the Police Station to humiliate the appellant by filing ____________ https://www.mhc.tn.gov.in/judis Page No 38 of 53 C.M.A.No.134 of 2017 complaint against her mother and her brother.

90. It is further noticed that C.M.P No.6278 of 2014 in D.V.A No. 30 of 2014 filed by the appellant was allowed by learned Judicial Magistrate No:2, Coimbatore. Copy of the said order is not in the file. However, an order passed in C.A.No.15 of 2015 vide Ex.P22 dated 15/07/2015 by the Additional District and Sessions Judge, Coimbatore against order passed in C.M.P.No.627 of 2014 in D.V.A No.30 of 2014 is available. C.A.No.15 of 2015 was dismissed by the Additional District and Sessions Judge, Coimbatore. There also, the Learned District and Session Judge has observed that the parties were in relationship before the marriage.

91. The appellant must have found the respondent meek, unresponsive and insensitive as he was unwilling to help her even though she alleged that she was being targeted sexually by the respondent's father. The fact that both the respondent and his father have made several unsavory allegations not only against the appellant but also against her mother before the Family Court makes us believe that there may be some truth in the defence of the appellant. ____________ https://www.mhc.tn.gov.in/judis Page No 39 of 53 C.M.A.No.134 of 2017

92. The fact that the appellant has stated that there was no other problem between the appellant and the respondent except that the respondent did not raise to the occasion and therefore she was compelled to leave the matrimonial home on 07.09.2011 makes us believe that the appellant was not telling any lies. It also indicates that the respondent was not fully truthful before the Family Court.

93. Things appear to have gone out of control on the day when the appellant left the matrimonial home on 07.09.2011. Whether the respondent and his father allegedly demanded the appellant to consent for divorce by mutual consent and in the later hours of the same day and the appellant and minor child were driven out from the matrimonial home since the appellant refused to sign documents or whether the appellant left matrimonial home voluntary unable to bear threat of sexual harassment has to be seen only in the light of the overall facts and circumstances of the case.

94. According to the appellant in M.C.No.53 of 2012, she was ____________ https://www.mhc.tn.gov.in/judis Page No 40 of 53 C.M.A.No.134 of 2017 divested of her jewelery except the marriage chain by the respondent and driven out from the matrimonial home as she failed to sign for divorce by mutual sign.

95. From the pleading, it appears in the complaint, the respondent alleged that the appellant left the matrimonial home with few documents and jewelery without informing the respondent. However, the respondent has treated his wife like criminal.

96. On the following day, the respondent filed Exhibit P9 dated 11.9.2011 with the same police station. She has not made any complaint against the respondent in Exhibit P9. In Exhibit P9 dated 11.9.2011, the appellant has also not made any allegation against the respondent and the respondent’s father.

97. The fact also indicates that the respondent rushed to file I.D.O.P.No.1192 of 2001 on 08.11.2011 in a hurry. Therefore, merely because the appellant had not filed a complaint against her father-in-law on an earlier occasion cannot be to her ____________ https://www.mhc.tn.gov.in/judis Page No 41 of 53 C.M.A.No.134 of 2017 disadvantage. It is further to be understood that sexual harassment is a powerful tool of oppression in the hands of powerful persons. Often they manage to use their domineering position to oppress the victim and victim often suffer silently.

98. In Exhibit P9 dated 11.09.2011, the appellant has also given her explanation as to why she was leaving the matrimonial home. In the said letter, she has informed the Police Station that the respondent had agreed to take her back within 10 days after arranging for a separate house for them to live together. She has not made any complaint against the respondent.

99. The fact that the appellant did not put it on record that she was subjected to sexual harassment by the respondent’s father has to be judged from the content of Exhibit P9 dated 11.9.2011 given by the appellant. She hoped that the respondent will accede to her reasonable demand for a separate matrimonial home. Therefore, merely because the appellant did not level any allegation against the respondent's father until then cannot mean that allegation of sexual harassment was not true. It ____________ https://www.mhc.tn.gov.in/judis Page No 42 of 53 C.M.A.No.134 of 2017 deserves to be independently probed.

100. If the appellant had made those allegations in the complaint, it would have completely destroyed the appellant’s hope to live with the respondent in a separate matrimonial home. If the appellant had disclosed the underlying reasons given in counter in I.D.O.P.No.1192 of 2011 and M.C.No. 53 of 2011 in Exhibit P9 dated 11.9.2011, the question of appellant hoping respondent live with her in an independent house would have been completely ruled out. The appellant would have jeopardized her chances for reconciliation with the respondent. The Family Court should have therefore asked appropriate questions during the course of examination of the appellant and respondent and elicited the truth.

101. However, what transpired between 11.09.2011 and 24.10.2011 is not clearly coming out in evidence. At the same time, there are no evidences to prove that the appellant was cruel to the respondent.

102. In our view, the defence of the appellant that she was harassed by the respondent’s father as latter made predatory sexual advances on ____________ https://www.mhc.tn.gov.in/judis Page No 43 of 53 C.M.A.No.134 of 2017 her during the respondent's absence from the matrimonial home and therefore, the appellant broached the same with the respondent appears to be probable. Instead of empathizing with the appellant, the respondent took sides with his father as the appellant left the matrimonial home on 07.09.2011 and filed a complaint on 10.09.2011. We are therefore satisfied with the defence of the appellant in I.D.O.P.No.1192 of 2011.

103. We find that the defence of the appellant is plausible. It is quite possible that the respondent was dependent on his father and did not wish to antagonize him as he was financially dependent on him as otherwise there was no necessity for him to live with the appellant either in his mother in laws house for the first three years or thereafter in his father’s house with the appellant. The respondent has not cared to rent out a separate house for the appellant and the respondent to live together. In his deposition also, the respondent has stated that he was earning only Rs.6000/- p.m. It indicates that he was not a man of means to support his wife independently and was dependent on his father.

104. In any event, the final outcome of Ex.P5/Ex.R10 D.V.A No:30 ____________ https://www.mhc.tn.gov.in/judis Page No 44 of 53 C.M.A.No.134 of 2017 of 2014 filed against the respondent and the father of the respondent under Section 12 of the Protection of Women from Domestic Violence Act has not been disclosed. Actual truth regarding the allegation of the appellant that the deviant sexual behavior of the respondent's father would be available only in the said proceeding.

105. The respondent appears to have acted as a puppet in the hands of his father. The respondent's father appears to have a dominant says in the life of the respondent as the respondent was financially dependent on him even at the time of the recording of the evidence.

106. Facts indicate that after 11.09.2011, the appellant also appears to have filed a complaint on 24.10.2011 against the respondent under the provisions of the Protection of Women from Domestic Violence Act, 2005 for cruelty. The respondent thereafter filed I.D.O.P.No.1192 of 2011. There she has prayed for a direction for the appellant and the respondent to live together.

107. It is to be noted that sexual abuse cannot be proved easily as ____________ https://www.mhc.tn.gov.in/judis Page No 45 of 53 C.M.A.No.134 of 2017 they often take place within the close confines of houses and/or office and often both the victim and their families hide the truth fearing the reprisal in society. Mostly, the oppressors are the person who are the elder of the family on whom the family trust and/ or a person commanding position, wealth and reputation in the society against whom the victim may find it difficult to raise her voice.

108. The victims are either unaware of their rights or are unable to speak out openly. If they tell the truth and bare their apprehension, it would unsettle them in many ways and invite the rebuke from the society. Often they are forced to suffer the humility in silence. In our view, therefore, the appellant cannot be faulted for not having filed a complaint against her father-in-law earlier.

109. Discussions regarding transfer/sales of UDS in lands in the name of the appellant and the respondent vide Ex.R.14, Ex.P16/Ex.R16 and Ex.R17 are of no relevance. The facts that the respondent’s father had taken a loan from Repco Bank for a sum of Rs.12,00,000/- with the appellant and the respondent as co-applicant to construct a super ____________ https://www.mhc.tn.gov.in/judis Page No 46 of 53 C.M.A.No.134 of 2017 structure on Ex.R.14 property and was servicing the said loan, indicate that the respondent’s father exercised a dominant position in the life of the appellant and the respondent. Whether the respondent’s father acted as a benevolent father-in -law or otherwise should not have been considered by the Family Court. It was however an irrelevant factor to consider whether the appellant was cruel to the respondent.

110. The allegation whether the mother of the appellant may have or may not have been worked with the father of the respondent in the past prior to the marriage and that the respondent's father bought some property in favour of the appellant's mother was of no consequence as it was an independent issue totally unconnected with the case for the alleged cruelty by the appellant on the respondent. The Family Court ought to have reined the respondent while recording evidence.

111. The observation that the appellant has not filed any photograph to show that they were relationship before the marriage is no consequence particularly in light of the fact that over all facts indicate that the appellant and the respondent have known each other. ____________ https://www.mhc.tn.gov.in/judis Page No 47 of 53 C.M.A.No.134 of 2017

112. Similarly, the allegation that the appellant's brother was employed in Super Plastic Company of the respondent's father is of no consequence as far as the alleged cruelty between the appellant and the respondent

113. Appellant has categorically stated that she never denied sexual intimacy to the respondent. Denial of sexual intimacy though can amount to cruelty, the evidence in the facts of the case indicates otherwise. There is no basis to conclude that the appellant denied sex to the respondent. The said allegation appears to be far-fetched. In any event, it has not been proved. Denial sexual intimacy to the respondent cannot be assumed based on mere allegation of the respondent. The Family Court should have referred to the parties to Medical Hospital for a proper psychological evaluation of the appellant and the respondent and obtained an opinion before proceeding further.

114. The findings rendered by the Family Court regarding the income of the father of the appellant as Rs.3,352.70/- p.m during 2008 is ____________ https://www.mhc.tn.gov.in/judis Page No 48 of 53 C.M.A.No.134 of 2017 of no consequence. It had no bearing on the allegation regarding the alleged cruelty by the appellant and the respondent for the purpose of Section 10(1)(x) of The Indian Divorce Act. The fact that the parents of the appellant may or may not have separated before the marriage of the appellant and the respondent on 26.11.2006 was also of no consequence.

115. The Family Court had also unnecessarily allowed the appellant also to let in evidence to effect that the appellant's mother was running a Plastic Company under the name and style of Veni Plastics.

116. The defence of the appellant that the properties in Ex.P16/Ex.R16 and Ex.R17 were purchased by the appellant's father for the appellant and the respondent is of no consequence. In our view, the Family Court has unnecessarily deviated from the issues and rendered its findings.

117. The finding rendered by the Family Court that Ex.P16/Ex.R.16 and Ex.R17 properties dated 16.09.2009 were purchased by the respondent's father (PW.6) was also no consequence for ____________ https://www.mhc.tn.gov.in/judis Page No 49 of 53 C.M.A.No.134 of 2017 determining as to whether the respondent was subject to cruelty by the appellant.

118. The finding rendered by the Family Court that the appellant's mother would not have had an independent income and that the respondent's father (PW.6) may have supported the family of the appellant was also of no consequence.

119. The finding rendered by the Family Court that the appellant had not proved the payment of Rs.4,00,000/- towards marriage expenses is of no consequence. These issues did not touch upon the case alleged in the petition filed by the respondent.

120. We are of the view that the Family Court expanded the scope of enquiry on totally irrelevant issues and answered them. Almost 16 pages of the impugned order discusses about other allegations and the counter allegations which do not touch on the issue regarding the alleged cruelty by the appellant on the respondent.

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121. In our view, no case for cruelty was made out before the Family Court by the respondent in I.D.O.P.No.1192 of 2011 though for all practical purpose the marriage between the appellant and the respondent has broken irretrievably. The parties have also been living separately for the last nine years. However, neither the Family Court nor this Court can dissolve a marriage on the ground of irretrievable break down of marriage.

122. Since we do not find any valid reasons to uphold the impugned Judgment and Decree passed by the Family Court, we allow this appeal filed by the appellant.

123. Accordingly, this Civil Miscellaneous Appeal is allowed. No cost. Consequently, connected Miscellaneous Petition is closed.

                                                                   (R.P.S.J.)     (C.S.N.J.)
                                                                           18.11.2020
                     jen

                     ____________
https://www.mhc.tn.gov.in/judis
                     Page No 51 of 53
                                                                         C.M.A.No.134 of 2017

                     Index : Yes / No
                     Internet : Yes / No

Notes:-In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.

To:

The Additional Principal Judge, Family Court, Coimbatore.

R.SUBBIAH, J.

and C.SARAVANAN, J.

jen ____________ https://www.mhc.tn.gov.in/judis Page No 52 of 53 C.M.A.No.134 of 2017 Pre-Delivery Judgment in C.M.A.No.134 of 2017 and C.M.P.No.936 of 2017 18.11.2020 ____________ https://www.mhc.tn.gov.in/judis Page No 53 of 53

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