Madras High Court
C.Sampath vs Revathy on 15 July, 2022
Author: P.T.Asha
Bench: P.T.Asha
C.M.S.A.No.8 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.07.2022
CORAM
THE HONOURABLE MS. JUSTICE P.T.ASHA
C.M.S.A. No.8 of 2014
C.Sampath
. ...Appellant/ Appellant/ Petitioner
Vs
Revathy ... Respondent/ Respondent/ Respondent
PRAYER: Appeal filed under Section 100 read with Section28 of Hindu
Marriage Act, against the judgement and decree dated 19.03.2012 in
CMA.No.28 of 2008 on the file of the Principal District Judge, Chengalpattu
confirming the Judgement and Decree dated 30.08.2007 in HMOP.No.1 of
2000, on the file of the Principal Subordinate Judge, Chengalpattu.
For Petitioner : Mr.C.Jagadish
For Respondent : Mr.V.Raghupathi
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C.M.S.A.No.8 of 2014
JUDGEMENT
The appellant/petitioner had filed HMOP No.1 of 2000 on the file of the Principal Sub Judge Chengalpattu seeking dissolution of the marriage dated 13.03.1995 between him and the respondent herein on the ground of cruelty and that the respondent is suffering from an incurable mental ailment. The brief facts as set out in his petition are as follows:-
2. The marriage between the two was solemnized on 13.03.1995 after which they set up their matrimonial home at Chengalpattu. They were blessed with two sons. It is the case of the petitioner that post the marriage they had led a peaceful marital life for a short time thereafter the appellant felt a change in the character and behavior of the respondent. She became restless and would not do the regular household work. At times, the respondent would turn hysterical and act in a very abnormal manner. The appellant thereupon made a discrete inquiry and to his shock, he came to know that the respondent’s father and elder sister were suffering from a mental illness which was the cause of the divorce of the elder sister. After much compulsion, the respondent agreed to a check-up at the Kilpauk Mental Hospital. The respondent was prescribed medication and asked to come for a 2/11 https://www.mhc.tn.gov.in/judis C.M.S.A.No.8 of 2014 review, however, she refused to go to the Hospital. Thereafter, by reason of her ailment, she started abusing the petitioner and would not offer food or affection. She was also not attending to the two sons. The appellant/petitioner was therefore forced to send his 2nd son to his mother- in-law's house so that she would take care of the 1st son. In the year 1999 the respondent attempted to immolate herself and was saved at the nick of the moment by the appellant.
3.The appellant would submit that he was living in constant fear. He, therefore, sent a lawyer’s notice to his mother-in-law on 29.05.1999 calling upon her to take the respondent for treatment. After the receipt of the notice the respondent’s mother had taken her for a medical check up on 07.06.1999 and they had returned on 10.06.1999. However, the petitioner was not informed about the developments. Thereafter, he issued yet another notice on 15.06.1999 on account of the further deterioration of the respondent’s condition. There was no reply to the same however even before issuing the two notices, he had filed a petition for divorce on the ground of cruelty and ill-treatment in HMOP No.45 of 1996 against the respondent. The appellant was constrained to withdraw the said petition on technical grounds. It is the 3/11 https://www.mhc.tn.gov.in/judis C.M.S.A.No.8 of 2014 further case of the petitioner that he was unable to lead a peaceful life and he was being treated with cruelty therefore he had come forward with the petition in question.
4. The respondent on entering appearance in the above matter had filed a counter denying the various allegations contained in the petition for divorce.
The respondent would submit that when the two of them got married, the petitioner did not have sufficient funds to take care of the family. However, after a short duration of his marrying the respondent, the petitioner started doing extremely well in the business and his turn over reached a five-figure mark. Once he saw the inflow of money the behavior of the petitioner had undergone a total change. He started spending more time outside rather than with his family. In fact the petitioner did not bother to check on the children. The change in attitude also resulted in the family not being maintained properly. The respondent on many occasions had requested the petitioner to come and live with her but he would reside only in the market. The respondent on account of the change in attitude of the petitioner had developed illness and it was her neighbours who had taken her to the Hospital. Taking advantage of her treatment in the hospital the petitioner 4/11 https://www.mhc.tn.gov.in/judis C.M.S.A.No.8 of 2014 would attempt to portray her as a mentally challenged woman with the sole intent of getting a divorce and marrying for the second time. The allegations to the contrary are false.
5. The respondent/wife would further state that it was only on the compulsion of the petitioner/husband that she had visited the Kilpauk Mental Hospital and after checking her, the doctor had opined that she was perfectly alright and there was no necessity for taking any treatment. This statement has been suppressed and the facts have been twisted out of context. The petitioner would submit that the earlier petition in HMGOP No.45 of 1996 was withdrawn not on technical grounds but on account of the advice given by the Presiding Officer of the Court. The respondent would submit that the petitioner’s sole intent is to re marry a lady who is also in the market where the appellant carries on his business. The respondent would submit that this lady had directed the appellant to first get a divorce and thereafter re marry her. She would therefore submit that there is no cause of action for dissolving the marriage and consequently sought for a dismissal of HMOP No.1 of 2000.
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6. The Principal Sub. Judge Chengalpattu after perusing the pleadings had framed the following points for consideration.
1.Whether the petition filed without showing anybody representing the respondent as guardian is maintainable?
2. Is the respondent suffering from mental disorder?
3. Is the respondent guilty of cruelty as alleged?
4. To what relief the petitioner is entitled?
The petitioner had examined himself as P.W.1 and his cousin as P.W.2 and 5 documents were marked on his side. On the side of the respondent, respondent examined herself as R.W.1 and her mother as R.W.2 and marked 3 documents in support of her contention.
7. The learned Judge on perusing the evidence both oral as well as documentary held that the petitioner who had come to Court with an allegation that the respondent was suffering from a mental ailment had failed to follow the procedures contemplated under Order 32 Rule 15 of CPC. The learned Judge has held that in view of the non-compliance of this statutory provision the petition is not maintainable. That apart, the learned Judge held 6/11 https://www.mhc.tn.gov.in/judis C.M.S.A.No.8 of 2014 that the petitioner has not been able to prove that the respondent was mentally unsound. The learned Judge also observed that invoking the provisions of Section 13(1)(ia) read with Section 13(i)(iii) of the Hindu Marriage Act was mutually destructive and considering the fact that the appellant has not been able to prove any of his contentions the learned Judge had dismissed the petition. Challenging the same the petitioner had filed an appeal before the Principal District Judge in CMA.No.28/2008. The learned Judge also concurred with the findings of the Trial Court and dismissed the appeal. Challenging the concurrent judgement and decree the appellant is before this Court.
8. Heard both the counsels.
9. The petitioner has filed a petition for divorce on the ground of cruelty and mental unsoundness. A perusal of the petition would indicate that the petitioner’s primary argument is that the respondent is incapable of leading a marital life on account of her mental ailment by reason of which she would go into bouts of depression and hysteria. The petitioner had also stated that it was only for a short time that they had led a happy married life. It is 7/11 https://www.mhc.tn.gov.in/judis C.M.S.A.No.8 of 2014 this unsound state of mind and the hysterical behavior which is causing mental agony to the petitioner and which he terms as mental cruelty. However, a perusal of the evidence let in by the petitioner would show that he has not proved any of the allegations made by him in his petition for divorce. No documents have been filed to show that the respondent is suffering from a mental ailment and that on account of the mental ailment, the petitioner is unable to lead a happy marital life. The evidence of P.W.2 has been rightly rejected by the Courts below, since P.W.2 is a close relative of the petitioner and therefore an interested witness.
10. Considering the fact that the petitioner has not been able to prove the allegations contained in the petition and the lack of evidence to prove the same, the Court below were right in rejecting the petition for divorce. The petitioner/appellant has not been able to show the judgment and decree of the Courts below are perverse and therefore requires reconsideration.
11. The learned counsel for the appellant has relied upon the judgement reported in (2006) 4 SCC 588 - Naveen Kohli Vs. Neelu Kohli to convince 8/11 https://www.mhc.tn.gov.in/judis C.M.S.A.No.8 of 2014 this Court into granting the decree for divorce taking into account the number of years that the appellant and the respondent have been living apart and to treat the same as an irretrievable breakdown of a marriage. It is needless to state that the Hon’ble Supreme Court has in various judgements held that the High Court cannot grant a decree for divorce on the ground of irretrievable breakdown of a marriage since such a provision is not provided for in the Hindu Marriage Act. It is only the Supreme Court while exercising power under Article 142 of the Constitution of India that can grant the said relief. Therefore, the judgement relied upon is not applicable to the facts of the case. In fine, the Judgement and Decree of the Courts below are very much in order and consequently, the Civil Miscellaneous Second Appeal stands dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed.
15.07.2022 Index : Yes/No Speaking / Non-Speaking shr To
1. The Principal District Judge, Chengalpattu.
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2. The Principal Subordinate Judge, Chengalpattu.
3.The Section Officer, V.R.Section, High Court, Madras.
P.T. ASHA, J, shr 10/11 https://www.mhc.tn.gov.in/judis C.M.S.A.No.8 of 2014 C.M.S.A. No.8 of 2014 15.07.2022 11/11 https://www.mhc.tn.gov.in/judis