Madras High Court
R.Govindarajan vs K.M.Komagal
Author: S.Ramathilagam
Bench: S.Ramathilagam
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 25.07.2018
Delivered on : 21.12.2018
CORAM
THE HONOURABLE TMT.JUSTICE S.RAMATHILAGAM
C.M.S.A.No.18 of 2012
R.Govindarajan ...Appellant
Vs.
K.M.Komagal ...Respondent
PRAYER: Civil Miscellaneous Second Appeal filed under Section 28 of the
Hindu Marriage Act 1955, r/w Section 100 of CPC against the judgment and
decree dated 26.08.2011 made in C.M.A. No. 16 of 2010 on the file of the I
Additional District Court,Salem, reversing the judgment and decree dated
08.02.2010 made in HMOP. No. 118 of 2007 on the file of Sub Court, Mettur.
For Appellant : M/s.Zeenath Begam
For Mr.V.Rajesh
For Respondent : Mr.Doraisami, Senior Counsel
for M/s. Muthumani Doraisami
JUDGMENT
This Civil Miscellenous Second Appeal has been preferred against the judgment and decree made in CMA.No. 16 of 2010 by the learned I Additional District Judge, Salem, reversing the judgment and decree dated 08.02.2010 made in HMOP.No. 118 of 2007 passed by the learned Sub Judge, Mettur.
http://www.judis.nic.in 2 The brief facts leading to the HMOP filed by the respondent wife is as follows;
2. The marriage between the respondent /wife and the appellant/ husband was solemnized on 27.11.1997 and within a few months after the marriage both lived separately. It is the submission made in the petition that the respondent oftenly spending his time in out station in a irresponsible way. When the respondent wife questions the same, the appellant husband ignores the same and threatened the respondent and beaten her and scolded with filthy language and harassed. It is also stated that whenever the respondent's mother and her brother intervened and question about the ill- treatment caused to the respondent wife, the appellant husband scolded them also with filthy language and used to quarrelled with them. If anybody questioned about his official work, the appellant suspects the fidelity and modesty of the respondent wife. The respondent wife patiently waited for tne (10) years but the appellant has not corrected his attitude. In the meantime, during February'2005, the respondent wife delivered a baby, event at that time also, the appellant husband critized his wife and scolded her with filthy language. It is also stated that during the year 2007, without any reason the appellant husband used to pick up quarrel with the respondent wife and sent her out from the matrimonial house in the midnight without allowing the respondent to take her cloths and jewells and documents. On three occasions, the appellant husband forcibly dragged her from her office and http://www.judis.nic.in 3 kept her in the custody of his house and tortured her and only by intervention of her brother and mother, she was relieved. On one occasion, the respondent wife had preferred a complaint against the appellant before the police. Even after preparing said complaint, the appellant husband threatened her, hence no other option is left to the respondent except to approach the Court, as there is no possibility for reunion between the appellant husband and the respondent wife.
3. On the other hand, the appellant husband has stated in the counter statement that for only 9 ½ years both the appellant and the respondent were lived happy married life and there is no misunderstandings between them except on few occasions, that too they solved immediately. The appellant husband denied all the facts stated by the respondent wife.
4. It is stated in the counter statement that the appellant husband had not dragged his wife from the matrimonial house and only for the purpose of counciling during November 2007 that too, at the request of his wife, she was taken to her parents house by stating that she will be staying there for two days. On 24.11.2007 for the purpose of celebrating 'Karthigai Deepam' festival, he took his wife from her office, that was mistaken by his wife's brother and mother as he was forcibly dragged her to the matrimonial house, which instigated the respondent wife to make complaints against the appellant before the police station. To escape from the false case lodged by http://www.judis.nic.in 4 the respondent wife, the appellant husband had preferred FCOP. No. 360 of 2007 before the Family Court, Salem to dissolve the marriage between the appellant husband and the respondent wife, but still the appellant husband wants to live with the respondent wife and hence the said FCOP No. 360 of 2007 filed by him was withdrawn by him. Hence, the appellant husband sought for only re-union and dismissal of the petition filed by the respondent wife in FCOP No. 131 of 2008 against the appellant husband for restitution of conjugal rights.
5. The trial Court after analysing evidence and documents placed before it, has discussed in detail and dismissed the petition by observing that the petitioner has not proved that she was threatened in a cruel manner by the the respondent husband and the relief available only is obtaining divorce.
6. Aggrieved against the dismissal of the petition, the wife preferred a CMA. No. 16 of 2010 before the I Additional District Judge, Salem. The appellate court has discussed the facts in detail and given finding that the petitioner wife has filed FCOPNo. 131 of 2008 only on the ground of cruelty, the said Court has also observed that the frequent quarrels between them, which forced them to prefer police complaints and even after preferring the said complaint, the appellant husband used to threaten his wife, for his lodging of complaint. The said court also discussed the said facts and has arrived finding that the appellant husband has not taken any positive steps to http://www.judis.nic.in 5 get back his wife to the matrimonial home to lead a happy married life by reunion. Hence the said Court has given finding that the husband treated his wife with cruelty and the respondent wife is entitled for relief of dissolution of under Section 13(1) (ia) of Hindu Marriage Act 1995 and allowed the Civil Miscellaneous Appeal by setting aside the order and decree passed by the trial Court in HMOP No. 118 of 2007 dated 08.02.2010.
7. Aggrieved against the said order, the appellant husband has preferred this Civil Miscellaneous Second Appeal.
8. In the grounds of Appeal, the appellant has stated that the lower appellate court ought to have dismissed the appeal when there is no case made out for granting decree for divorce as contemplated under Section 13(1) (ia) of Hindu Marriage Act.
9. It is also stated that the lower appellate court has also failed to notice that both the petitioner and respondent were lived together till 2007 and within a short span of 3 months, a petition has been filed by the respondent wife alleging cruelty from date of her marriage with the appellant. The other reason stated in the appeal is that the dispute raised by the respondent wife were all trivial in nature and the same was also withdrawn by her. There is no evidence placed by the respondent before the Court regarding the cruelty either physically or mentally. The reasons stated by the http://www.judis.nic.in 6 first appellant Court for granting relief is that the marriage had irretrievably broken down is not fair, when the appellant is ready to live with the respondent, the Court should consider the same and pass order accordingly and there is also no reason stated by the first appellate Court for setting aside the judgment of the trial Court. Hence, the appellant husband prays for setting aside the order of the first appellate Court.
10. The substantial questions of law raised in this CMASA are as follows;
(i) whether the judgment of teh Lower Appellate Court is vitiated on the ground, that is has set aside the findings of the trial Court without assigning any reasons?
and
(ii) When there is no evidence to prove physical abuse or mental cruelty, whether a decree for divorce can be be granted under Section 13(1) (ia) of the Hindu Marriage Act.?
11. Heard both sides and perused the documents available on records.
12. It is argued by the appellant/ husband that after the marriage held in the year 1997 both the appellant and the respondent were living together and the petition for divorce was filed by the wife only in the year 2007, alleging cruelty by the appellant husband both physically and mentally. It is http://www.judis.nic.in 7 further argued by the learned counsel for the appellant that only for the simple misunderstanding which can get solved immediately and there is no valid reason for filing a petition for ending the matrimonial life. It is seen from the petition that the reason for seeking relief of divorce was not for a grave or serious, it was only for a petty quarrel, which happens in all the families and for which, the advice can be a better solution.
13. The averments in the petition reveals the fact that both the appellant and the respondent are placed in a responsible position. It is submitted by the learned counsel for the respondent that within a few months after the marriage, the appellant husband started acting cruelly and when the respondent questions about the late return of the respondent to home from office, she was even beaten and scolded with abusive words. The respondent is being employed in the Tamil Nadu Electricity Board and the appellant is also working as an officer in the Agricultural Department, both are expected to live a decent life with understanding. This grievance was made by the respondent wife that whenever she questions appellant about his late arrival from his office, she will not get any proper answer, but she was beaten and scolded by him with abusive words. The reason for preferring the petition for divorce in the year 2007 was properly explained that she has experienced the insult and cruelty with a hope that one day the appellant husband will correct himself. But all these years, there is no change in the attitude of the appellant husband and the matter has become grevious in the http://www.judis.nic.in 8 year 2007, when she was thrown away from the matrimonial house from her husband, therefore, she had to say with her parents. The respondent husband also preferred a complaint before the police station and subsequently he withdrew the said complaint for the reason for preferring proceedings before the family Court. Hence, it is argued by the appellant husband that, if there is any cruelty, which forced her to file a petition for divorce, she would not withdraw the complaint before the police station.
14. On the other hand, the appellant husband has stated that he preferred a complaint before the police station and also a petition before the family Court only to get rid of complaint and proceedings taken by the respondent wife. He has further submitted that still he wants to live with his wife and his intention is only to make her understand that there is no fault on him and he is always ready to live with her and take her back to the matrimonial home.
15. Based on the averments made in the petition and also counter statement by the appellant husband it can be very well presumed that both the petitioner and the husband are holding responsible position and there are some misunderstanding between them, which forced them to prefer complaint and petition before the concerned authorities. The trial Court has also observed that the complaint preferred by the respondent/wife before the Police Station was withdrawn by him. Other grievance placed before the trial http://www.judis.nic.in 9 Court is that even the mother the respondent wife was assaulted by the appellant/husband, but no case was registered alleging the same. The complaint preferred before the Pallipatti Police Station was also withdrawn by the respondent wife and she has also admitted the same before the trial Court. The reasons for withdrawal of the said complaint is that she had to prefer a petition before the Family Court.
16. The arguments advanced by the appellant is that, since there is no cruelty on the part of the appellant/husband and there is also no evidence for the same, the petition was withdrawn by the respondent wife. The arguments advanced by the respondent wife is that she always expected to live a peaceful and decent life from her husband. But her husband always ill treated and beaten her, whenever she questions his mistakes, the said act of the appellant can very well be considered as cruelty. The appellant has also submitted a judgement of the Hon'ble Supreme Court, wherein the Supreme Court has mentioned the definition for cruelty given in the various Dictionaries, which reads as follows;
"The Shorter Oxford Dictionary defines 'cruelty' as 'the quality of being cruel; disposition of inflicting suffering ; delight in or indifference to another's pain; mercilessness; hard-heartedness'.
http://www.judis.nic.in 10 The term "mental cruelty" has been defined in the Black's Law Dictionary (8th Edition, 2004) as under
"Mental Cruelty – As a ground for divorce, one spouse's course of conduct (not involving actual violance) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse,"..
17. From the above, the term mental cruelty is the nature of conduct that is being expected from each other and it depends upon the every person's understanding and the capacity to understand the things in a proper way. In this case, the respondent wife is expecting proper explanation from the appellant husband for his late arrival to home after office hours, but no proper explanation has been given by her husband and also not allow her to question anything in that regard. This conduct also can be considered as mental cruelty.
18. It is observed that the irresponsible reaction of the appellant husband for the expectations of the respondent/wife resulted in hatred and the cordial relationship was also faded between them and resulted in preferring complaint before the police station and preferring petition before the Court for divorce against each other.
19. Based on the averments made in the both petition and the counter statement and also from the arguments made by both sides, it can very well presumed that there exist no cordial relationship between the http://www.judis.nic.in 11 appellant husband and the respondent wife. It is also observed from the evidence of DW1 in the cross examination, which reads as follows;
"v';fSf;Fs; cs;s gpur;rpid gw;wp g";rhaj;jhu;fs; ahUk;
ngrtpy;iy eh';fshf ngrpg; ghu;j;njhk;"
kDjhuUf;Fk; vjpu;kDjhuUf;Fk; ,ilna cs;s gpur;rpid gw;wp jPu;t[ fhz;gjw;fhf ,e;j kDthdJ ,U jug;gdupd; fUj;ij nfl;l gpwF kf;fs; ePjpkd;wj;jpw;F mDg;gg;gl;lJ/ Mdhy; kf;fs; ePjpkd;wj;jpy; ,U jug;gpdUf;Fk; rkhjhd Kot[ Vw;gltpy;iy/ tprhuizapd;nghJ ePjpkdwnk kDjhuiua[k; vjph;kDjhuiua[k; rkhjhdg;gLj;j Kaw;rp nkw;bfhz;lJ/ Mdhy; ,U jug;gpdUk; mtutu; epiyapy; gpothjkhf ,Ue;j fhuzj;jhy; ,U jug;gpdUf;Fk; ,ilna cs;s gpur;rpid jPutpy;iy/"
20. From the above said evidence made by the respondent wife, it is observed that there could not be any amicable settlement made in respect of resolving the matter before the Lok Adalat and also the efforts taken by the trial court are also failed. It is a clear evidence that inspite of steps taken by the trial court, both the appellant husband and the respondent wife were stubborn in their position. Counselling before the trial Court is also best solution to guide the people who seek divorce, where the concerned authorities enquire and advice them for reunion, because the marriage is http://www.judis.nic.in 12 such a sacred one, which cannot be decided by the Court of law, unless the circumstances and situation warrants.
21. Their intention is only to get rid of the matrimonial life. This fact is very much observed from the evidence of the appellant husband that only to get away with the proceedings of the police, he has preferred proceedings before the Family Court and no efforts were taken by the appellant husband to bring the respondent to the matrimonial home. If he had inclination to bring his wife to the matrimonial home, he would have taken steps effectively, but he failed in doing the same, due to which, both the appellant and the respondent are living separetly from the year 2007 onwards and they have not come forward to solve the problem between them. The only reason arrived by the trial Court is that an irretrievable breakdown of marriage is very much found in this case and rejected the divorce petition by quoting the lines observed in the judgment of the Hon'ble Supreme Cour "iretrievable breakdown is not a ground for granting divorce". The trial Court has also observed clearly that the Court has taken steps to amicably settle the issue between the parties by way of Lok Adalat and Counselling, due to non- co-operation of the parties, reunion was not taken place.
22. It is also argued on the side of the appellant that there is no reason stated by the petitioner for claiming such relief of divorce and when he is also willing to reunion, the steps taken by the Court as well as Lok http://www.judis.nic.in 13 Adalat, both the parties have not confined their willingness for re-union. It is also argued by the respondent that this matter is pending before the Court for long years and there is no change in the minds of the both parties to consider their re-union. Hence it is quite clear that they are willing to live separately and find no scope for re-union by both parties at any point of time. It is further argued that they are holding responsible job in the society and they are willing to live in their way peacefully.
23. The first appellate court has also observed that if really the appellant/husband is willing to live with is wife, he ought to have proceeded with FCOP. No. 131 of 2008 filed by the respondent under Section 9 of the Restitution of Conjugal Rights, but he has withdrawn the same. So, it is clearly revealed the fact that he is also not interested in living with the petitioner. Without proceeding with the said petition and filing of appeal against the order of the first appellate court, squarely proves that his intention is only to prolong the issue without yielding the situation made by the trial Court for reunion and also advice of the mediation before the Lok Adalat. Hence by observing the arguments of both parties and their life's protection and considering their stubborn attitude all these years, it is very much clear that they are unable to adjust with each other and filing this appeal against the order of first appellate court is only with a view to continue the proceedings and no iota of inclination to bring the respondent/wife to the matrimonial home. He has not filed the petition with real intention of re-union. Both parties are well educated and holding responsible job, they can make http://www.judis.nic.in 14 lives peacefully, if they are separated and this court finds that the respondent/ wife can live peacefully only by living separately from her husband/appellant, hence the relief sought for by her has to be considered.
24. Hence in view of the facts and the evidence placed by both parties and also considering the pending proceedings of all these years and no change in their minds for re-union and the attitude of the appellant/husband filing proceedings for restitution of conjugal rights, which speaks about his mind, this Court comes to the conclusion that the order passed by the Fist Appellate Court is purely based on the facts and reasons and also evidence, which does not requires any interference of this Court.
25. With the above observations, the Civil Miscellaneous Second Appeal is dismissed. No Costs. Connected MPs if any, also closed.
21.12.2018
Index : Yes
Internet : Yes
Speaking order.
ak
To
The I Additional District Court,
Salem,
http://www.judis.nic.in
15
S.RAMATHILAGAM,J.
ak
Pre-delivery judgment in
C.M.S.A.No. 18 of 2012
21.12.2018
http://www.judis.nic.in