Madras High Court
Senthamizhan vs Selvi
Author: R.Vijayakumar
Bench: R.Vijayakumar
C.M.S.A.(MD).No.4 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 12.07.2024
DELIVERED ON: 24.07.2024
CORAM
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.M.S.A.(MD).No.4 of 2018
Senthamizhan ...Appellant/Respondent/Petitioner
Vs
Selvi ...Respondent/Appellant/Respondent
PRAYER: The Civil Miscellaneous Second Appeal has been filed under
Section 28 of Hindu Marriage Act, against the judgment and decree dated
09.01.2018 made in H.M.C.M.A.No.07 of 2016 on the file of the Principal
District Judge, Theni reversing the well considered judgment and decree
dated 19.09.2016 made in HMOP.No.71 of 2015 on the file of the
Subordinate Judge, Theni.
For Appellant :Mr.R.Suriyanarayanan
For Respondent : Mr.R.Govindaraj
1/13
https://www.mhc.tn.gov.in/judis
C.M.S.A.(MD).No.4 of 2018
JUDGEMENT
The instant second appeal has been filed by the husband challenging the dismissal of his divorce petition by the First Appellate Court reversing the order passed by the trial Court granting divorce.
2.The husband had filed HMOP.No.71 of 2015 before thee Subordinate Court, Theni for the relief of divorce on the ground of mental cruelty.
(A)Summary of pleadings of the husband:
3.The petitioner got married to the respondent on 13.02.2013 as per Hindu Customary Practice. The husband was working as a teacher in Solaimalaipatti, Theni District and the wife was working as a teacher in Sellambalayam near Dharapuram, Tirupur District at the time of marriage.
4.After delivery of the child, the wife had refused to come back to the matrimonial home and she continued to give away her entire salary to her parents. She used to pick-up unnecessary quarrel and abused the petitioner.
5.The wife was not acting as a dutiful wife and she had not treated the husband respectfully. She used to visit the matrimonial home only once in 3 or 4 months. She never permitted the parents of the husband 2/13 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD).No.4 of 2018 to play with the child. The wife used to travel with unknown persons in a two-wheeler and she refused to heed the advise of the husband.
6.On 05.01.2015. she lodged a police complaint as against the husband before All Women Police Station, Theni. However, the police officials had advised her to be a dutiful wife, but she had not properly responded to the same.
7.On 14.04.2015 suddenly the wife came to the husband's house. When the parents of the husband attempted to lift the child, she picked up quarrel and left the matrimonial home.
8.At the request of the petitioner, three elderly family members had approached the wife and her father for a compromise. They were not willing for a compromise and they have openly declared that they would like to get divorce.
9.On 21.05.2015, the husband had issued a legal notice seeking divorce and there was no response from the wife.
10.In view of the above said incidents, the husband wants to retain the child with him and seek divorce from the wife.
(B)Summary of pleadings of the wife are as follows:
11.They had lived a happy married life till six months after the 3/13 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD).No.4 of 2018 child was borne. After maternity leave was over, a dispute arose whether to leave the child in the custody of the husband's parents or in the custody of the wife's parents. The husband has not responded properly and therefore, the wife had to leave, the six months old child in the custody of her parents.
12.Whenever the wife attempted to make a call to the husband, he did not respond properly. When she visited the matrimonial home, they were not permitted to enter into the home and therefore, she was constrained to lodge a police complaint. Whenever, she visited the matrimonial home, she was ill-treated by the husband.
13.Since the husband has not come forward to take care of the child and she could not get a transfer order, she is constrained to live with her parents.
14.Though the husband was informed about the birth of the child, he has not visited the child.
15. When she was on the family way and after birth of the child, to meet paediatrician, she had to travel in a two-wheeler which was driven by her own brother. Therefore, the said allegation is not correct. 4/13 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD).No.4 of 2018
16.Even now, the wife is willing to live with the husband along with her child. The wife has also denied all the allegations made in the divorce application.
(C)Proceedings before the trial Court.
17.The husband had examined himself as PW1 and another witness as PW2. On the side of the husband, Exhibits P1 to P5 documents have been marked. On the side of the wife, she had examined herself as RW1 and she has not marked any document.
18.The trial Court found that often there was a quarrel between the husband and wife and therefore, they are living separately. The trial Court further found that even during cohabitation, they were not living happily and there are no chances for them to lead a normal happy married life in future.
19.On the basis of the above said findings, the trial Court has granted divorce.
20.The First Appellate Court found that due to employment, the petitioner and the husband are residing separately in a two different places and there is no difference of opinion to a larger extent so as to grant them divorce. Neither the husband nor the wife have sent any notice seeking any 5/13 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD).No.4 of 2018 re-union.
21.The First Appellate Court had further found that the husband has not established the fact that the wife used to pick-up quarrel with him or she was in the habit of going as a pillion rider with unknown persons. The First Appellate Court further found that the evidence of PW2 is only hearsay and therefore, it cannot be believed. It further found that the wife used to hand over her salary to her parents and she is residing away from her husband due to her employment. These two reasons seems to be a main reason for them to live separately. However, there are no legally acceptable ground to grant an order of divorce.
22.Based on the above said findings, the First Appellate Court had reversed the findings of the trial Court and had dismissed the divorce petition. Challenging the same, the present second appeal has been filed by the husband.
23.The second appeal has been admitted on the following substantial questions of law:
(i)Whether the 1st appellate Court is correct in allowing the appeal on the ground that there was no cruelty by the respondent on the petitioner, when there is false and unproved serious allegation against him by the respondent, 6/13 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD).No.4 of 2018 which also amount to a mental cruelty as per the dictum declared by our Supreme Court in 2007 (1) MLJ 698?
(ii)Whether non co-operation of the respondent with the petitioner, for the sexual pleasure, for about two years amounts to mental cruelty?
(iii)Whether the making of false and nasty allegations against the petitioner, non co-operation for sexual pleasure, uttering disrespectful words and acting in suspicious manner by go on with some strangers, amounts to the mental cruelty?
(D)Submission of the counsels:
24.According to the learned counsel appearing for the appellant, the wife had refused to return to the matrimonial home after the child birth and she is in the habit of making false accusations and allegations as against the appellant and his mother. She has not invited her husband and his family members to the function conducted relating to the child. The wife had made a false complaint as against the appellant on 05.01.2015.
25.The learned counsel for the appellant had further contended that whenever the wife visited the matrimonial home, she never permitted her in-laws to lift the child. Often she was declaring that she is not interested to live with him and would like to get divorce. The learned 7/13 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD).No.4 of 2018 counsel had further contended that the Appellate Court has not properly appreciated the evidence of PW2 who was an independent witness and had mediated between the parties. When the wife makes serious allegations as against one of the parties to the marriage, it amounts to cruelty. He relied upon a judgment of the Hon'ble Supreme Court reported in 2007 (1) MLJ 698 in support of his contention.
26.In view of the above said facts, the First Appellate Court ought to have arrived at a finding that the husband has proved the factuam of mental cruelty and should have confirmed the decree for divorce granted by the trial Court.
27.Per contra, the learned counsel appearing for the respondent/wife had contended that the husband has not established the allegation of mental cruelty either through oral or documentary evidence. The trial Court without considering the evidence let in on the side of the parties, had arrived at an erroneous finding that there is no possibility of re-union between the couple. Such a finding is not legally sustainable. However, the First Appellate Court after considering the deposition of PW1 and PW2, had arrived at a specific finding that the husband has not established the ingredients of mental cruelty and whatever dispute that is 8/13 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD).No.4 of 2018 prevailing between the parties is only due to some misunderstanding and the legal ingredients of mental cruelty had not been established.
28.I have considered the submissions made on either side and perused the material records.
(E) Discussion
29.The husband has filed the petition for divorce on the ground of mental cruelty. In paragraph No.5 of the divorce petition, the husband had contended that the wife is residing away from the husband due to her employment and she is handing over her entire salary to her parents. It could be seen from the records that the wife is working as a teacher in Tirupur District and the husband is working as a teacher in Theni District. The wife is not able to get transfer to Theni. Therefore, she is residing along with her parents to take care of her child.
30.A child was borne to them on 27.01.2014. When the husband or his parents have not taken up the responsibility of taking care of the child, the wife has to necessarily depend upon her parents for taking care of the child. Therefore, she was constrained to live away from her husband. During the cross examination, the husband has categorically admitted that there is only difference of opinion between him and his wife 9/13 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD).No.4 of 2018 and he has not initiated any action for reunion with his wife. Even at the time of marriage, the husband is very well aware that the wife is working as a teacher in Tirupur. Having entered into a marriage with a working woman, the husband cannot cite the staying away of the wife in her work place as mental cruelty. The husband has admitted during his cross examination that he is not having any evidence or record to show that he had taken steps for reunion.
31.On one hand, the husband alleges that the wife is not behaving as a dutiful wife and she is not taking care of him and his parents. She used to pick-up unnecessary quarrel and abused him. On the other hand, he alleges that the wife is not vising the matrimonial home. Both the allegations do not go together. Therefore, it is clear that the husband has not established the allegation of mental cruelty as against the wife. The trial Court has erroneously arrived at a finding that there is no possibility for a reunion. Unless the ingredients of mental cruelty are established, the husband would not be entitled to a decree for divorce on the said ground.
32.In the present case, due to some minor difference of opinion with regard to the place of work, they are living separately and therefore, 10/13 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD).No.4 of 2018 the trial Court was not right in granting a decree for divorce. The First Appellate Court had properly appreciated the oral and documentary evidence let in on the side of the parties and has arrived at a correct finding that the husband has not established the case of mental cruelty.
33.When the husband has not established any one of the allegations as against the wife, he cannot seek a decree for divorce on the mere ground that the wife is living separately in view of her employment. There are no merits in the appeal. All the substantial questions of law are answered as against the appellant. This Civil Miscellaneous Second Appeal stands dismissed. No costs.
24.07.2024 Index : Yes/No Internet : Yes/No NCC : Yes/No msa 11/13 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD).No.4 of 2018 To
1.The Principal District Judge, Theni
2.The Subordinate Judge, Theni.
3.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
12/13 https://www.mhc.tn.gov.in/judis C.M.S.A.(MD).No.4 of 2018 R.VIJAYAKUMAR, J msa Pre-delivery order made in C.M.S.A.(MD).No.4 of 2018 24.07.2024 13/13 https://www.mhc.tn.gov.in/judis