Madras High Court
A.R.Indira vs N.Kadappan
Author: P.T.Asha
Bench: P.T.Asha
C.M.S.A.(MD) No.61 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
JUDGMENT RESERVED : 14.10.2019
JUDGMENT PRONOUNCED : 24.10.2019
CORAM :
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.M.S.A.(MD) No.61 of 2011
and
M.P.(MD) Nos.1 and 2 of 2010
A.R.Indira ... Appellant
vs.
N.Kadappan ... Respondent
Prayer:- This Appeal is filed under Section 28 of the Hindu Marriage Act r/w
Section 100 of the Code of Civil Procedure, to set aside the order dated
12.04.2011 made in HMCMA.No.5 of 2008 on the file of the District Court,
Sivagangai, confirming the fair and decreetal order dated 24.10.2007 made
in HMOP.No.72 of 2006 on the file of the Sub Court, Devakottai.
For Appellant : Mr.R.Vijayakumar
For Respondent : Mr.A.Arumugam for
Mr.H.Thayumanaswamy
JUDGMENT
The respondent/wife in a petition in HMOP.No.72 of 2006 filed by the petitioner/husband seeking for divorce is the appellant before this Court.
2.The brief facts which are necessary for morefully understanding the dispute on hand are herein below narrated.
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3.The marriage between the appellant/wife and the respondent/husband was solemnized as per the Hindu Rites and Customs on 31.10.1988 and after the marriage, the appellant had moved into her matrimonial home with her husband, mother-in-law and sister-in law at Aathangudi Muthupattinam Village.
4.The respondent/husband in his petition for divorce has contended that within a few months of the marriage, the appellant/wife frequently picked up quarrels and ultimately, had left her matrimonial home on 28.02.1989. He would further contend that in the first week of January 1990, the respondent had attempted a reconciliation through Panchayathars and the appellant, who had appeared before the mediators had categorically informed them that she had no intention to rejoin her husband.
5.The respondent/husband would further contend that on 13.01.1990, the appellant/wife had written a letter to the respondent's employers, which had caused great deal mental agony to the respondent and the appellant/wife had caused immense mental cruelty to the respondent/husband. He would contend that after leaving her matrimonial home on 28.02.1989, the appellant had not returned and therefore, the respondent had sent a legal notice dated 08.07.2006 to the appellant directing her to rejoin him. The said notice was not received by the appellant. Thereafter, on 25.09.2006, the respondent has filed HMOP.No.72 http://www.judis.nic.in 2/14 C.M.S.A.(MD) No.61 of 2011 of 2006 on the file of the Sub Court, Devakottai on the ground of cruelty and desertion.
6.The appellant/wife, who entered appearance, had filed a detailed counter, wherein, she had denied the various allegations raised in the petition for divorce and countered the said allegations by contending that she had been subjected to a great deal of mental harassment and cruelty by her mother-in-law and her unmarried sister-in-laws and that the husband had never taken steps to protect her from the cruel taunts of her mother-in- law and sister-in-law. She would further contend that despite all these cruelty meted out to her, she continued to live in her matrimonial home in the fond hope that her husband would change his attitude.
7.The appellant/wife would further contend that during the elections to the Tamilnadu Legislative Assembly that was held in the year 1989, she had been assigned to attend the training class for poll duty and during one such occasion, she had returned home late and the respondent/husband had physically assaulted her for coming late and she had sustained injuries on head. She was admitted to the hospital and thereafter, he took her to a parental home and left her there promising to take her back in three months. However, the respondent did not come forward to take her back as promised. She would contend that she had not deserted her husband at any http://www.judis.nic.in 3/14 C.M.S.A.(MD) No.61 of 2011 point of time and her jewels till continue to remain in her matrimonial home under the custody of the respondent.
8.The appellant/wife further denied the allegations that she had not responded to the legal notice dated 08.07.2006. In fact she had sent a reply dated 24.07.2006, which the counsel for the respondent/husband had refused to receive. She further contended that she had never deserted the respondent and had also not treated him cruelly and she is always ready and willing to rejoin her husband.
9.The learned Subordinate Judge, Devakottai, had analyzed the evidence on record both oral as well as documentary and had come to the conclusion that the appellant/wife had treated her husband cruelly and she is also guilty of desertion since the statement that she was always ready and willing to rejoin the matrimonial home was only a lip service and that it was never translated in action.
10.Aggrieved by the said judgment and decree, the appellant/wife had preferred HMCMA.No.5 of 2008 on the file of the learned District Munsif, Sivagangai.
11.The appellate Court had also agreed with the finding of the trial Court both on the ground of cruelty as well as desertion. The appellate http://www.judis.nic.in 4/14 C.M.S.A.(MD) No.61 of 2011 Court had held that the complaint which was given by the appellant/wife to the higher officials of the bank where the respondent/husband was working was amounted to a cruelty relying upon Ex.B4. The appellate Court had also held that the wife has been away from the husband in the year 1989 without any valid reasons. Therefore, the husband's attempts to bring back the wife to the matrimonial home had been futile. Challenging the said concurrent judgment and decree, the appellant/wife is before this Court.
12.Mr.R.Vijayakumar, learned counsel appearing for the appellant/wife would submit that the petition in HMOP.No.72 of 2006 filed by the respondent/husband seeking for divorce ought to have been dismissed on the ground of inordinate delay. He would rely upon Section 23 (1) (d) of the Hindu Marriage Act, 1955 and would submit that even the cause of action in the petition for divorce on the ground of desertion arose on 28.02.1989, but the petition for divorce has been filed only in the year 2006. In support of his contention, the learned counsel would also rely upon the judgments of this Court in the case of Alagarswami Chettiar Vs. Lakshmi Ammal reported in 1972 (1) MLJ 187 and in the case of Rajee Vs. Baburao reported in 1995 (2) MLJ 492 and the judgment of Hon'ble Division Bench of Punjab and Haryana High Court in the case of Krishnan Vs. Anita reported in 2016 (1) HLR 337 (DB).
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13.As regards the issue of cruelty, the learned counsel would submit that the only allegation of cruelty is that the appellant/wife had made a complaint against the respondent/husband to his higher authorities and that constituted cruelty. With reference to the cause of action for cruelty apart from this stray incident, there is no other acts of cruelty that have been put forward by the respondent/husband and both the Courts below have relied heavily upon Ex.B4 without looking into the contents thereof. However, after the said incident, the respondent/husband was ready to live with his wife and this would clearly show that he had condoned the cruelty and therefore, both the Courts below have erred in granting divorce on the ground of cruelty.
14.As regards the issue of desertion, the learned counsel would submit that even in the complaint that was given by the appellant/wife before the higher authorities of her husband, she had only contended that she wanted to live with him. The husband has however not taken any steps whatsoever to recall the wife except for issuing a notice just before filing of the petition for divorce. He would further submit that the respondent/husband has not proved the factum of desertion and also that the appellant/wife has without sufficient cause left away from him.
15.Per contra, Mr.A.Arumugam appearing for Mr.H.Thayumanaswamy, learned counsel for the respondent would submit that the plea of delay has http://www.judis.nic.in 6/14 C.M.S.A.(MD) No.61 of 2011 been raised for the first time only in this appeal and the respondent/husband cannot be permitted to make his submission on this ground. He would further submit that had this plea been raised at the inception, the respondent/husband would have been in a position to deal with it. Therefore, the appellant/wife cannot be allowed to raise this plea in this appeal. In support of his argument, the learned counsel would rely upon the judgment of this Court in the case of B.Sivanandy Vs. P.Bhagavathyamma reported in 1964 (2) MLJ 334 and the judgment of the Hon'ble Full Bench of Kerala High Court in the case of Thekkittil Gopalankutty Nair Vs. Melepurath Snakunni Ezhuthaseah reported in AIR 1971 KERALA 280 (V 58 C 64) Full Bench.
16.The learned counsel would further submit that the respondent/husband has clearly proved the cruelty meted out by the appellant/wife on him and the ignominy which the respondent/husband had suffered in his work place on account of the complaint that was given by the wife against him. He would further submit that the appellant/wife has not taken any steps to rejoin the husband though she had left her matrimonial home. In support of his contention that the wife has deserted the husband, the learned counsel would rely the judgments of Hon'ble Supreme Court in the case of Rishikesh Sharma Vs. Saroj Sharma reported in 2006 (5) CTC 703 and in the case of Samar Shosh Vs. Jaya Ghosh reported in 2007 (3) CTC 464 and in the case of Bipinchandra Jaishinghbai Vs. Prabhavati http://www.judis.nic.in 7/14 C.M.S.A.(MD) No.61 of 2011 reported in AIR 1957 SC 176 (Y44 C 23 Mar). Therefore, the learned counsel would argue that the appellant/wife has not made out any reasons to set aside the concurrent judgment and decree of both the Courts below.
17.Heard the learned counsel on either side and perused the papers.
18.From the records, it is seen that the respondent/husband has come forward with the petition in HMOP.No.72 of 2006 seeking for divorce on the ground of cruelty and desertion. As regards the plea of cruelty, the respondent/husband has stated as follows:
4.vjph;kDjhuUk; jpUkzk; Md ehspypUe;Nj kDjhuih kjpf;fhky;
fhuzk; ,y;yhky; mbf;fb rz;ilapl;Lk; jfuhW nra;Jk; fztUf;F nra;aNtz;ba gzptpilfs; nra;ahkYk; i\ahuJ tpUg;gk; Nghy; nray;gl;L te;jhh;. kdjhuUk; FLk;;g ed;ikiaAk; vjpu;fhyj;ijAk; fUj;jpy; nfhz;L vjpu;kDjhuupd; jtwhd nra;iffis ngupJgLj;jhky; vjph;kDjhuUf;F mt;tg;NghJ MNyhridfis $wp md;GlDk; gpupaj;JlDk; elj;jp te;jhh;.
5.kDjhuUk; jpUkz fhyj;jpy; ghq;f; Mg; kJuh fhiuf;Fb fpisapy; vOj;juhf gzpahw;wp te;jhh;. kdjhuUf;F tajhd jhahUk; 6 rNfhjupfSk; cs;shh;fs;. kDjhuh; i\ahupd; FLk;gj;jpw;F xNu kfdhf ,Ug;gjhy; kDjhu; jdJ vOj;jh; gzp %yk; fpilf;Fk; tUkhdj;ijf; nfhz;L tajhd jhahiuAk; rNfhjupfisAk; guhkupj;J te;jNjhL 3 rNfhjupfSf;Fk; kDjhuNu fld; thq;fp jpUkzk; nra;J itj;Js;shh;. ......
9.vjph;kDjhuh; 28.02.1989 NjjpapypUe;J Rkhh; 16 Mz;L fhykhf ve;jtpj njhlh;Gk; ,y;yhky; kDjhuiu gphpe;J tho;fpwhh;. vjph;kDjhuUk; kDjhuh; kPJ mtJ}whd tp\aq;fis $wp kDjhh; gzpGupAk; mYtyfj;jpw;F 13.01.1990 Njjpapy; xU fbjk; vOjpAs;shh;. vjph;kDjhuu; kDjhuiu gytpjj;jpYk; kduPjpahf nfhLikgLj;jpajhYk; mYtyfj;jpy te;J mtkhdgLj;jpajhYk; kDjhh; mbf;fb epk;kjpapoe;J cly; eyptpw;Fk; MshfpAs;shh;.
19.As regards the plea of desertion, the respondent/husband has stated as follows:
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6.vjph;kDjhuUk; kDjhuUk; kDjhuupd; tPl;by; fztd; kidtpahf tho;e;j fhyj;jpy; vjph;kDjhuh; mjpfhiyapNyNa Ntiyf;F nry;tjhf $wp fpsk;gp tpl;L ,utpy; jhd; tPL jpUk;Gthh;. Mjdhy; vjph;kDjhuu;
kdjhuUf;F kidtp vd;w ngahpy; fztUf;F nra;aNtz;ba guhkhpg;Gfis nra;a ,aytpy;iy. kDjhuUk; vjph;kDjhuuplk; mDrupj;J ele;J te;Jk; vjph;kDjhuh; mjid myl;rpag;gLj;jp kDjhuu; cld; tPz; jfuhW nra;J 28.02.1989 Njjpapy; jd;dpr;irahf vt;tpj fhuzKk; ,y;yhky; kDjhuuplk; nrhy;yhky; tPl;iltpl;L vjph;kDjhuupd; jhahh; tPl;bw;F vjph;kDjhuh; nrd;Wtpl;lhh;.
7.mjd;gpwF kDjhuUk; vjph;kDjhuUk; vjph;kDjhuiu Nrh;e;J thoitg;gjw;f;fhf kDjhuupd; jhahh; kDjhuupd; rNfhjupfs; kDjhh; rhh;e;j rKjha nghhpNahh;fs; kw;Wk; kDjhupd; ikj;Jdh;fs; MWKfk; nka;ag;gd; MfpNahUld; Nrh;e;J gQ;rhaj;J nra;jjpy; vjph;kDjhuUk; Nrh;e;J tho kWj;J tpl;lhh;. mjd; gpwFk; kDjhuu; vjph;kDjhuupd; cwtpdh;fs; %yKk; gQ;rhaj;J nrhy;yp vjph;kDjhuiu Nrh;e;J tho mioj;jjpy; vjph;kDjhuu; Nrh;e;J tho kWj;J tpl;lhh;. mjd;gpwF ,Wjpahf kDjhuUk; kDjhuupd; gq;fhspfs; kDjhuupd; ikj;Jdh; kw;Wk; rNfhjupfs; MfpNahh;fSld; 1990 rdthp Kjy; thuj;jpy; Mj;jq;Fbapy; itj;J vjph;kDjhuiu Nrh;j;J tho Ntz;b gQ;rhaj;J nra;jjpy; kDjhuUld; Nrh;e;J tho kWj;J tpl;lhh;. i\ gQ;rhaj;jpy; vjph;kDjhuUk; vjph;kDjhuupd; rNfhjuu;fSk; vjph;kdjhuUf;F Ntz;bath;fSk; fye;J nfhz;lhh;fs;.
20.From a reading of the pleadings, it is clearly evident that the only ground on which the respondent/husband is seeking for divorce on the ground of cruelty is the letter addressed by the appellant/wife to his superiors which has been marked as Ex.B4. From a reading of Ex.B4, it is seen that the appellant/wife has made an allegation primarily against her in laws and stated that her husband has very passive which has caused a great deal of pain to her. Further, even after the issuance of said letter, the husband was ready to take back his wife which would clearly indicate that he had condoned the act of cruelty. Once the person has condoned the act of cruelty, then the petition for divorce on the ground of cruelty will automatically fail.
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21.As regards the ground of desertion, it is seen that the respondent/husband has not taken any steps to recall the appellant/wife. From the evidence, it appears that jewelry and other articles belonging to the wife continued to remain in the custody of the husband and the husband has in fact given evidence to the effect that the wife has a key of his house where she could come and take the jewelry. Therefore, it is very clear that the relationship of the husband and wife has not been severed completely and the wife has given the evidence that she has been discharging her matrimonial duties. Of course, it is only the word of the appellant/wife as against the word of the respondent/husband. However, the fact that the wife still has an access to the husband's house coupled with the delay in seeking divorce on the ground of desertion would only go to show that the wife has not completely left her matrimonial home and that the relationship continued between the two.
22.A legal defence has now been taken by the appellant/wife that the petition for divorce is highly belated and the delay is hit by the provisions of Section 23 (1) (d) of the Hindu Marriage Act, 1955. Section 23 (1) (d) of the Hindu Marriage Act, 1955 reads as follows:
23.Decree in proceedings: (1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that- http://www.judis.nic.in 10/14 C.M.S.A.(MD) No.61 of 2011 ......
(d) there has been not been any unnecessary or improper delay in instituting the proceeding
22.There is no explanation whatsoever in the petition for divorce as to why the husband has taken over 17 years to file the petition for divorce. The petition is totally silent in this regard. In the case of Alagarswami Chettiar Vs. Lakshmi Ammal reported in 1972 (1) MLJ 187, this Court has observed as follows:
3.The only question which arises for consideration in the appeal is whether the respondent is disentitled by virtue of the provisions of Section 23 (1) (d) of the Act from asking for a divorce because of any unnecessary or improper delay in instituting the proceeding for divorce. The expression “unnecessary or improper delay” has always been interpreted as culpable delay; and as pointed out by Mulla in his commentary on the Hindu Marriage Act, though the Court under the present Section (Section 23) has not discretion in the matter and is bound to refuse relief where there is unnecessary or improper delay in instituting proceeding and is not empowered to condone the same, it would be seen that the absolute bar would be permitted to operate only in cases of culpable delay.
23.In the said case, the learned Judge of this Court had held that as per the provisions of Section 23 (1) (d) of the Hindu Marriage Act, 1955, the Court has to be satisfied that there is no improper delay in filing the petition http://www.judis.nic.in 11/14 C.M.S.A.(MD) No.61 of 2011 in order to entertain the petition for divorce. In the instant case, as already stated, there is no reason given for the delay. The petition is silent in this regard. In the case of Krishnan Vs. Anita reported in 2016 1 HLR 337; 2015 5 LawHerald 4257; 2016 3 RCR (Civ) 442; 2015 0 Supreme (P&H) 1516; the Hon'ble Division Bench of Punjab and Haryana High Court had dismissed the petition in FAO-M-241 of 2013 for divorce filed by the husband on the ground of desertion by stating that the husband has failed to explain the reasons for the unnecessary and improper delay in instituting the proceedings and in that case, the delay is 8 years. It is therefore clear that the petition for divorce is clearly not maintainable in the light of the provisions of Section 23 (1) (d) of the Hindu Marriage Act, 1955. That apart, the respondent/husband has not proved the desertion and has condoned the only incident of cruelty by wife.
24.In the result, this Civil Miscellaneous Second Appeal is allowed and the judgment and decree in HMCMA.No.5 of 2008 on the file of the District Court, Sivagangai, confirming the fair and decreetal order dated 24.10.2007 made in HMOP.No.72 of 2006 on the file of the Sub Court, Devakottai is hereby set aside. No costs. Consequently, connected miscellaneous petitions are also closed.
Index : Yes / No 24.10.2019
Internet : Yes / No
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C.M.S.A.(MD) No.61 of 2011
To
1.The District Judge,
Sivagangai.
2.The Subordinate Judge,
Devakottai.
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13/14
C.M.S.A.(MD) No.61 of 2011
P.T.ASHA, J.
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judgment made in
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