Madras High Court
G.Vijayakumar vs G.Amudha on 17 March, 2021
Author: G.Chandrasekharan
Bench: T.Raja, G.Chandrasekharan
CMA Nos.1676 and 1677 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 17.03.2021
CORAM:
THE HONOURABLE MR. JUSTICE T.RAJA
and
THE HONOURABLE MR. JUSTICE G.CHANDRASEKHARAN
CMA Nos.1676 and 1677 of 2017
and
CMP No.8998 of 2017
G.Vijayakumar ... Appellant in both CMAs.
..vs..
G.Amudha ... Respondent in both CMAs.
These Civil Miscellaneous Appeals are filed under Section 19 of
Family Courts Act, against the common order and decreetal orders dated
30.11.2015 made in HMOP Nos.785 of 2008 and 898 of 2008 on the file
of Principal Judge, Family Court, Coimbatore.
For Appellant in both CMAs. : Mr.Prabhakaran
for
Mr.G.Rajan
For Respondent in both CMAs. : Mr.L.Mouli
1/16
CMA Nos.1676 and 1677 of 2017
COMMON JUDGMENT
(Judgment of the Court was delivered by G.CHANDRASEKHARAN, J.,) Appellant and respondent are the husband and wife. Appellant filed a petition under Section 13(1)(i)(a) of Hindu Marriage Act seeking dissolution of marriage solemnised with the respondent on 22.08.2005 in HMOP No.785 of 2008. Respondent filed HMOP No.898 of 2008 under section 9 of Hindu Marriage Act for restitution of conjugal rights. Both the petitions were tried jointly before the Principal Family Court, Coimbatore. Learned Family Court Judge dismissed the petition filed for divorce and allowed the petition for restitution of conjugal rights. Against the order dismissing divorce petition and the order allowing the petition for restitution of conjugal rights, the husband filed both these appeals.
2. The case of appellant, from the petition filed for divorce and the counter filed in the petition for restitution of conjugal rights, in brief, is as follows:-
The marriage between the appellant and respondent was 2/16 CMA Nos.1676 and 1677 of 2017 solemnised on 22.08.2005 at Coimbatore. After the marriage, they started living at the residence of the appellant at Sornambika Lay out, Ram Nagar. Some months after the marriage, respondent started to pick up quarrel with the appellant without any rhyme or reason. Respondent studied M.Com. Proud of her educational qualification, she used to tell the appellant that she possessed two degrees, she is beautiful and accepted to marry him only because of his family owning a house. During December 2005, the respondent became pregnant. Even during that period, she quarrelled and fought with appellant without any reason. One day, after fighting with appellant, she started to her mother's house. Appellant followed her and advised her not to go. Without heeding to his advice, she jumped out of the bus and the fetus got aborted. She always used to fight with appellant insisting on separate residence. One day in March 2006, when the appellant was sleeping deeply, the respondent with an intention to kill him, strangulated him and scolded him in filthy language. She removed her thali and threw it on the appellant and told him to tie the thali to his mother. After a week, she left to her mother's house. On 16.03.2006, she gave a false complaint against the appellant 3/16 CMA Nos.1676 and 1677 of 2017 and his parents at Gandhipuram All Women Police Station. The respondent gave complaint against the appellant in Priccol Company Management against him and insulted him by shouting in front of the main gate, which caused great mental agony and tension and torture to the appellant. Valaikappu function was celebrated during 7th month of pregnancy. A male child was born on 24.10.2006. Only for the sake of information, appellant was informed through phone. Five months after the birth of their son, tonsuring naming ceremony was held at Maruthamalai, but no invitation was extended to appellant and his family members. During March 2007, respondent gave a letter admitting her mistakes and expressing her willingness to live with appellant. When the marriage of respondent's brother was celebrated, no invitation was extended to the appellant and his parents. On 11.06.2007, appellant gave notice to the respondent with an intention to restore the marital life. He also filed HMOP No.570 of 2007 for restitution of conjugal rights. When this case was pending, respondent gave false complaints against appellant and his family members to various authorities and also defamed them among family circle. Therefore, appellant withdrew HMOP No.570 4/16 CMA Nos.1676 and 1677 of 2017 of 2007 and filed this petition. Respondent has failed to do the marital obligations. She wanted to lead luxurious life. Inspite of taking steps for living with her, she always neglected the appellant and stayed at her parents house. Therefore, the petition for divorce.
3. The case of respondent, as seen from the counter filed in divorce petition and the petition for restitution of conjugal rights, in brief, is as follows:-
The marriage and subsequent living in the appellant's house are admitted. At the time of marriage, respondent was given 20 sovereigns of gold jewels, household utensils as a gift. After that, appellant demanded the respondent to get Rs.50,000/- and 5 sovereigns of gold jewels from her parents and brother to meet the expenses relating to the conduct of partition case pending before the High Court of Madras. Appellant's mother threatened the respondent that if she failed to bring cash and jewels, her son would not live with her. She was abused and physically beaten. The harassment continued even during the pregnancy of respondent. As a result, she suffered abortion in 2005. Her mother 5/16 CMA Nos.1676 and 1677 of 2017 and brother admitted her at Kuppusamy Naidu Hospital and when she was taking treatment in the hospital, neither appellant nor his family members visited her. Respondent voluntarily went to her husband's house for living with him. Again appellant's parents threatened her to bring 5 sovereigns of gold jewels or else they would conduct second marriage to the appellant. On 11.03.2006, appellant's parents cut her thali and drove her out of home. Respondent gave a police complaint. After enquiry, the police Inspector advised the appellant and respondent to start independent living and admonished appellant's parents. However, appellant has not taken any steps for finding a house to start separate living. Respondent's brother found a house at Periyanayakkanpalayam. Appellant's parents threatened the appellant that if he went to live separately with the respondent, they would commit suicide and that drove the appellant to attempt to commit suicide. Respondent and her brother alone saved him. Respondent was doing all the duties of dutiful wife. Though appellant and his parents were properly invited for 'valaikappu' function, they did not attend 'valaikappu' function. They did not even come to see the new born child. When the 6/16 CMA Nos.1676 and 1677 of 2017 respondent went to appellant's house on 17.02.2007, she was not permitted to enter the house and driven away by the appellant and his mother. They prepared agreement and compelled the respondent to sign in that agreement. When respondent refused to sign the agreement, appellant and his friends fought with the respondent. When respondent gave complaint about his harassment, appellant filed petition for restitution of conjugal rights. When respondent expressed her willingness to live with him, he not pressed the petition. Therefore, she filed a petition for restitution of conjugal rights.
4. As already stated, learned Family Court Judge dismissed the petition filed for divorce by the appellant and allowed the petition filed for restitution of conjugal rights by the respondent. During the trial, before Family Court, PWs.1 to 4 had been examined and Exs.P1 to P14 were marked. RWs.1 to 3 had been examined and Exs.R1 to R8 were marked.
5. Learned counsel for the appellant submitted that inspite of 7/16 CMA Nos.1676 and 1677 of 2017 producing sufficient oral and documentary evidence, learned Family Court Judge failed to take note that appellant has proved unbearable conduct and character of respondent and the tendency to pick up quarrel at the drop of the hat and that she made appellant's life miserable. The oral evidence of PWs.1 to 4 and Exs.P1 to P14 clearly proved how the respondent insulted the appellant and his family members, left the matrimonial home without rhyme or reason, attempted to murder the appellant, insulted and defamed the appellant in front of his colleagues, insisted on separate living, not properly intimated the 'valaikappu' function, birth of the child, tonsuring and naming function for the child, celebration of marriage of respondent's brother e.t.c. All these acts amount to physical and mental cruelty committed by the respondent on the appellant and his family members and without considering the same and without appreciating the evidence properly, learned Family Court Judge wrongly dismissed the divorce petition filed by him and allowed the petition for restitution of conjugal rights filed by the wife. So saying, learned counsel for the appellant prayed for setting aside the common order passed by learned Family Court Judge in HMOP Nos.785 of 2008 8/16 CMA Nos.1676 and 1677 of 2017 and 898 of 2008 and prayed for allowing the petition for divorce and dismissal of petition filed for restitution of conjugal rights.
6. Countering the arguments of learned counsel for the appellant, learned counsel for the respondent submitted that the allegations made against the respondent are purely imaginary and invented for the purpose of filing the case for divorce. The real truth is that when respondent was not in a position to pay Rs.50,000/- and 5 sovereigns of gold jewels as demanded by the appellant, appellant and his mother started ill-treating and harassing the respondent. She suffered abortion due to the harassment. Just to show his false bonafide, appellant filed HMOP No.570 of 2007 for restitution of conjugal rights and when respondent expressed her willingness to join with him in marital home, he not pressed the petition and filed this petition for divorce. The oral and documentary evidence produced by the respondent clearly proved that the appellant and his family members committed cruelty on the respondent and not the respondent. Taking note of genuineness of the case of the respondent, learned Family Court Judge dismissed the 9/16 CMA Nos.1676 and 1677 of 2017 petition filed for divorce by the appellant and allowed the petition filed for restitution of conjugal rights. Therefore, learned counsel for the respondent prayed for confirming the common order passed by learned Family Court Judge in HMOP Nos.785 of 2008 and 898 of 2008 and for dismissal of these appeals.
7. Apart from usual allegations we see in divorce petitions filed on the ground of cruelty, some specific allegations like, attempt to commit murder by the respondent during March 2006, insulting in front of co-workers, insistence of separate living, non-informing the tonsuring and naming ceremony of child, picking up quarrel without any rhyme or reason and leaving the matrimonial home had been made against the respondent. That apart, one more allegation was that when the respondent left to her parents' house after a quarrel, the appellant tried to convince her and without hearing his advice, she jumped out of the bus, resulting in abortion of fetus. Respondent also admitted that she suffered abortion. But the reason stated for abortion is different from what the appellant had stated. According to respondent, since she was harassed 10/16 CMA Nos.1676 and 1677 of 2017 and ill-treated by mother-in-law, she suffered abortion. If really the respondent jumped out of bus and suffered abortion, it would have become serious incident resulting even in filing of a criminal case. Appellant has not examined any witness to prove his case that the respondent jumped out of a running bus and suffered abortion. Therefore, the case of appellant that the respondent jumped out of the bus and suffered abortion is unbelievable.
8. Why it is unbelievable ? Answer lies in the evidence of appellant. If really the respondent jumped out of the bus and suffered abortion, she would have been admitted in the hospital by the appellant and given treatment. On the other hand, his evidence shows that though he admitted that the respondent was pregnant and she suffered abortion in November 2005 and took treatment for that, he did not know the name of the hospital in which she took treatment. More precisely, when he was asked as to whether he and his family members visited the respondent while she was taking treatment for suffering abortion, he replied that he did not know the name of the hospital in which the respondent took 11/16 CMA Nos.1676 and 1677 of 2017 treatment. This answer belies his case that the respondent suffered abortion when jumping out of the bus. The probable conclusion that can be arrived is that the respondent suffered abortion due to ill-treatment, harassment meted out to her at her matrimonial home.
9. On the allegation that respondent ill-treated and defamed him in front of his co-workers, he examined PW.2 and PW.3. He also examined his mother as PW.4 in support of his case that the respondent committed cruelty on him. Perusal of evidence of PW.2 and PW.3 shows that they are co-workers of the appellant. May be that the respondent and his family members had visited the appellant at his work place to find a possible solution for the marital dispute. There may have been exchange of some heated words during the course of conversation. That cannot be considered as causing insult, annoyance or defamation.
10. Though he filed a petition for restitution of conjugal rights originally, without any acceptable reasons, he not pressed that petition obviously for the reason that the respondent expressed her desire to live 12/16 CMA Nos.1676 and 1677 of 2017 with him and then, filed the present petition for divorce. It shows the scheming nature of the appellant to get divorce. On the other hand, it is seen from the evidence of RW.3 and the documents produced by the respondent that the respondent had given complaint only for exploring the possibilities of living with her husband. Even the Inspector of police advised them to have the separate living. After accepting the proposal, appellant had not taken any steps for setting up a separate living. When the respondent's family arranged for separate living, it appears that he was not ready to live with the respondent.
11. Appellant admitted that the respondent gave complaint against him alleging harassment. He admitted accepting to take steps for separate living. He also admitted that he did not take any steps to set up a separate living. When asked whether the respondent's brother arranged a rented house for separate living, he replied ignorance. It is also seen from his evidence that he attempted to commit suicide, obviously because the objection from his family for separate living with the respondent. He admitted that he did not go to 'valaikappu' function and 13/16 CMA Nos.1676 and 1677 of 2017 for the tonsuring and naming ceremony of the child. He admitted that panchayat was held in March 2007. It is his evidence that he has not taken any steps for seeing his child or seeking his custody. He stated that he did not even know the name of his son and in which class he is studying. His own evidence shows that the respondent had taken genuinesteps to live with him. He was obstinate and avoided the efforts taken by the respondent to live with him.
12. All the allegations against the respondent seems to be routine. Small issues, wear and tear arose in the normal course of marital life between the appellant and respondent had been blown out of proportion by the appellant. The reasons stated for divorce are not satisfactorily proved by the appellant. Therefore, learned Family Court Judge rightly dismissed the petition filed for divorce and allowed the petition filed for restitution of conjugal rights. This Court finds no reason to interfere with the common order passed by the learned Principal Judge, Family Court, Coimbatore in HMOP Nos.785 of 2008 and 898 of 2008 on 30.11.2015 and confirms the order. Consequently, 14/16 CMA Nos.1676 and 1677 of 2017 these appeals are dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
(T.R.J.,) (G.C.S.J.,) mra 17.03.2021 Internet: Yes Index : Yes Speaking order To
1. The Principal Judge, Family Court, Coimbatore. 15/16 CMA Nos.1676 and 1677 of 2017 T.RAJA, J., and G.CHANDRASEKHARAN, J., mra CMA Nos.1676 and 1677 of 2017 17.03.2021 16/16