Gujarat High Court

Jolina D/O Anilbhai Patel @ Devanshee ... vs Pratik Dhiraj Champaneri on 9 May, 2025

                                                                                                                       NEUTRAL CITATION




                            C/SA/482/2024                                           CAV ORDER DATED: 09/05/2025

                                                                                                                       undefined




                                                                                 Reserved On   : -06.05.2025
                                                                                  Pronounced On : 09/05/2025

                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                              R/SECOND APPEAL NO. 482 of 2024


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                      ==========================================================

Approved for Reporting Yes No

========================================================== JOLINA D/O ANILBHAI PATEL @ DEVANSHEE W/O PRATIK CHAMPANERI Versus PRATIK DHIRAJ CHAMPANERI ========================================================== Appearance:

MR YH MOTIRAMANI(3720) for the Appellant(s) No. 1 MR.DIVYESH G NIMAVAT(3757) for the Appellant(s) No. 1 MR. VISHVESH R. ACHARYA(14664) for the Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

CAV ORDER

1. The present Second Appeal has been filed under Section 100 of the

Code of Civil Procedure, 1908 (for short "CPC") being aggrieved

by the Judgment and Decree dated 09.08.2024 passed in Regular

Civil Appeal No. 39 of 2023 whereby, the Judgment and Decree

dated 16.09.2023 passed in Hindu Marriage Petition No. 44 of

2017 by 3rd Additional Senior Civil Judge Valsad under Section 9

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

of the Hindu Marriage Act, 1955, has been confirmed.

2. For the sake of brevity and convenience, the parties are referred to

as Petitioners and Respondents.

3. The brief facts arising in the present Second Appeal are that the

Petitioner filed a Petition under Section 9 of the Hindu marriage

Act, 1955 ("HMA") for Restitution of Conjugal rights. It is the

case of the Petitioner that the Petitioner and Respondent got

engaged on 29.05.2016 and they got married on 13.02.2017 and

after marriage, the Petitioner went to stay with the Respondent.

4. It is the Petitioner's case that after sometime, the Respondent's

family had adopted a very unreasonable approach towards the

Petitioner and therefore, on request of the Respondent the

Petitioner went to stay at the address mentioned in the cause title of

the Hindu Marriage Petition. It has been averred that time and

again the Petitioner requested the Respondent to live with her and

the Respondent did not adhere to the said request and ultimately,

the Petitioner lodged a complaint before Valsad Mahila Police

Station on 13.07.2017, when the Petitioner was not permitted to get

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

inside her matrimonial house in order to fulfill her conjugal rights.

5. It is the case of the Petitioner that the Respondent had without any

reasonable excuse withdrawn himself from the society of the

Petitioner and therefore, the Petitioner filed Petition under Section

9 of the Hindu Marriage Act, 1955. The Respondent appeared in

the said Petition and filed written statement vide exhibit 31. The

main grievance of the Respondent was that no marriage was

solemnized between the parties and that false complaint had been

filed by the Petitioner in Valsad Mahila Police Station.

6. The Trial Court framed issues vide exhibit 42 as under:

(i) Whether the applicant proves that she is the legal wife of opponent?

(ii) Whether the applicant proves that opponent has without reasonable excuse, withdrawn himself from the society of herself?

(iii) Whether the applicant proves that she is entitles to get the decree of restitution of conjugal rights?

(iv) What order and decree?"

7. The Petitioner examined herself vide exhibit 50 and the witnesses

of the Petitioner were examined vide exhibits 58 and 70

respectively. Whereas, the Opponent examined a witness at exhibit

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

75 and after going through the oral evidence of the parties and

giving finding on all the issues, the Trial Court dismissed the

Petition. aggrieved by the said order, the Petitioner filed Regular

Civil Appeal No. 39 of 2023. After re-appreciating the evidence,

the First Appellate Court dismissed the said Appeal and confirmed

the judgment and decree passed in Hindu Marriage Petition No. 44

of 2017, hence the present Second Appeal.

CASE OF THE APPELLANT/ PETITIONER

8. Learned Advocate for the Petitioner has drawn attention of this

Court to the fact that the Trial Court has taken into consideration

the fact of separation of more than six years but the fact remains

that the marriage was solemnized on 13.02.2017 and the Hindu

Marriage Petition has been filed in the year 2017, therefore the

Petition for restitution of conjugal rights is filed only after 1 year of

marriage and therefore the period in which the Petition was

pending for adjudication can not be considered by the Trial Court

and the Appellate Court while considering the period of separation

between the Petitioner and Respondent.

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

9. Learned advocate for the Petitioner has also drawn attention of this

Court to the provisions of Section 9 of the Hindu Marriage Act,

1955, and has argued that under the explanation to section 9 of the

Hindu Marriage Act, 1955, the burden of proving the reasonable

excuse shall be on the person, who has withdrawn from the society

and in the present case, the burden was on the Respondent of

proving reasonable excuse and the Respondent has not proved the

said fact.

10. It has been argued that the Respondent has not even entered the

witness box and therefore adverse inference has to be drawn on the

Respondent and therefore the Trial Court and the Appellate Court

could not have dismissed the suit of restitution of the conjugal

rights that has been filed against the Respondent.

11. Learned advocate for the Petitioner has also drawn attention of the

Court that a Criminal Complaint that was filed by the Petitioner

was under the provisions of Protection of Women From Domestic

Violence Act, 2005 ("Domestic Violence Act"). Moreover, in the

said Petition as also the said complaint has been allowed and

compensation is also given to the Petitioner with respect to the

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

domestic violence.

12. Learned advocate for the Petitioner has also argued that the issues

that have been framed, more particularly issue no. 2 is also

contrary to the explanation to Section 9 of the Hindu Marriage Act,

1955 as the burden was on the Respondent to prove reasonable

excuse of withdrawing from the society and therefore, it has been

argued that there are substantial questions of law involved in the

present Second Appeal which have been suggested in the

memorandum of appeal and therefore the Second Appeal is

required to be admitted.

13. Learned advocate for the appellant has relied on the judgment in

case of Maria Margarida Sequeira Fernandes And Others Vs.

Erasmo Jack De Sequeira reported in (2012) 5 SCC 370, Ravi

Kumar Vs. Julmidevi reported in (2010) 4 SCC 476, Sonprabha

Manwani Vs. Govind Manwani reported in 2024 SCC Online

Chh 1514.

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

CASE OF THE RESPONDENT

14. Per Contra, learned advocate for the Respondent has argued that in

the Written Statement at Exhibit 31, the present Respondent has

specifically taken a stance that the Petitioner has tried to commit

suicide and has tried to defame the Respondent. Further, the

Respondent has specifically stated that in February 2017, the

Petitioner has tried to commit suicide and has also tried to defame

the Petitioner since then and therefore the Respondent has stated

that the Respondent has reasonable excuse to withdraw from the

society of the Petitioner. It has also been argued that though

Respondent has not entered witness box but the fact is that the

Petitioner herself has admitted the fact that she has tried to commit

suicide and has pasted posters that the Respondent is missing.

Further, the Petitioner has averred that Respondent is a drunkard

and does not remember things. Such type of posters have been

printed by the Petitioner and therefore because of all these reasons,

the Respondent has proved reasonable excuse of withdrawing from

the society of the Petitioner and therefore as there are concurrent

finding of the Trial Court and the Appellate Court on the factual

aspects, the present Second Appeal is required to be dismissed.

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

ANALYSIS AND FINDINGS

15. Having heard the respective learned Advocates for the parties and

having considered the judgment and decree passed by the Trial

Court and the Appellate Court, it is required to be kept in mind that

a restitution of conjugal rights does not entirely depend upon right

of the party. While deciding a Petition under the said provision, the

court shall have to consider whether it would make it inequitable

for it to compel the husband to live with his wife.

16. Upon an examination of the record, the following facts are

undisputed:

i. The Petitioner-Wife has attempted suicide and distributed

posters of the Respondent alleging that he was missing.

ii. The Petitioner has also raised several disputes and alleged

cruelty against the Respondent husband.

17. Though it is true that burden of proof regarding lawful and justified

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

withdrawal is on the party withdrawing itself. However, it also well

settled law that while granting a decree under Section 9 of the

HMA, the prejudice likely to be caused to the party suffering the

decree must be also considered.

18. Therefore, the Court will have to look at the surrounding

circumstances depending on each case. Moreover, while granting a

restitution of conjugal rights the Court will also have to take into

consideration the conduct of the spouse and the grounds for

refusing the restitution of the conjugal rights has to be taken into

consideration while deciding the same. In the present case, the

Appellant has admitted that she tried to commit suicide. This

naturally amounts to an extreme and coercive behavior with an

intention to emotionally manipulate and mentally distress the

Respondent.

19. Hon'ble Apex Court has held in Narendra vs. K. Meena,

MANU/SC/1180/2016 as follows:

"With regard to the allegations of cruelty levelled by the Appellant, we are in agreement

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

with the findings of the trial Court. First of all, let us look at the incident with regard to an attempt to commit suicide by the Respondent. Upon perusal of the evidence of the witnesses, the findings arrived at by the trial Court to the effect that the Respondent wife had locked herself in the bathroom and had poured kerosene on herself so as to commit suicide, are not in dispute. Fortunately for the Appellant, because of the noise and disturbance, even the neighbours of the Appellant rushed to help and the door of the bathroom was broken open and the Respondent was saved. Had she been successful in her attempt to commit suicide, then one can foresee the consequences and the plight of the Appellant because in that event the Appellant would have been put to immense difficulties because of the legal provisions. We feel that there was no fault on the part of the Appellant nor was there any reason for the Respondent wife to make an attempt to commit suicide. No husband would ever be comfortable with or tolerate such an act by his wife and if the wife succeeds in committing suicide, then one can imagine how a poor husband would get entangled into the clutches of law, which would virtually ruin his sanity, peace of mind, career and probably his entire life. The mere idea with regard to facing legal consequences would put a husband under tremendous stress. The thought itself is distressing. Such a mental cruelty could not have been taken lightly by the High Court. In our opinion, only this one event was sufficient for the Appellant husband to get a decree of

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

divorce on the ground of cruelty. It is needless to add that such threats or acts constitute cruelty. Our aforesaid view is fortified by a decision of this Court in the case of Pankaj Mahajan v. Dimple @ Kajal MANU/SC/1145/2011 : (2011) 12 SCC 1, wherein it has been held that giving repeated threats to commit suicide amounts to cruelty."

20. In a marriage both the individuals are expected to nurture the bond

with compassion and patience and even when there is disagreement

like the present case, the Petitioner resorts to self harm by

attempting to commit suicide, the same is an act of desperation

which often exert physiological control over the Respondent. The

effect of such behaviour leaves a lasting scar on the mental health

and emotional stability of the aggrieved spouse coupled with public

humiliation as seen in the present case of printing posters of the

husband and such acts cannot be brushed aside as such threats

become tools of coercion and forcing the Respondent to remain

trapped in the stated of perpetual anxiety and emotional paralysis,

as such conduct crosses the boundaries of personal conflict and

touches upon the very core of harassment which makes it

impossible for husband in the present to continue leading a

peaceful and dignified marital life. The attempt to commit suicide

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

itself shows the charge situation in which the parties were residing.

21. Hon'ble Supreme Court in the case of Pankaj Mahajan v. Dimple

Alias Kajal, (2011) 12 SCC 1, while dealing with the case of

divorce and mental creulty, the hospital held as follows:

"It is well settled that giving repeated threats to commit suicide amounts to cruelty. When such a thing is repeated in the form of sign or gesture, no spouse can live peacefully. In the case on hand, the appellant husband has placed adequate materials to show that the respondent wife used to give repeated threats to commit suicide and once even tried to commit suicide by jumping from the terrace. Cruelty postulates a treatment of a spouse with such cruelty as to create reasonable apprehension in his mind that it would be harmful or injurious for him to live with the other party. The acts of the respondent wife are of such quality or magnitude and consequence as to cause pain, agony and suffering to the appellant husband which amounted to cruelty in matrimonial law."

22. Therefore, it is reiterated that any principle of law of cannot be

applied in abstract divorced from the factual context. Therefore,

Duty of the court in such a circumstance is to assess the proposed

inequity, which may arise if a party is ordered to restitute the

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

conjugal rights.

23. As regards the burden of proof of the Respondent, in the present

case, there is a clear admission by the Petitioner of attempt to

suicide than the same has to be considered and the same would

amount to mental cruelty caused to the Respondent by the

Petitioner and therefore no longer can the Respondent carry on

such suffering. The attempt on the part of the Petitioner to commit

suicide is a harsh circumstance, which naturally becomes a

reasonable excuse for the Respondent to withdraw from the society

of the Petitioner.

24. It is trite law that admission is the best piece of evidence unless

explained. [See: Thiru John v. The Returning Officer and Ors.,

(1977) 3 SCC 540 and United India Assurance v. Samir Chandra

Chaudhary, (2005) 5 SCC 784]. Therefore, when the Petitioner

has admitted the said fact in cross examination, there is no further

and other proof thereof required by law.

25. Moreover, the Respondent wife has leveled several allegations

against the husband. In such circumstances it is not easy to digest

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

that the Petitioner was desirous of cohabiting with the Respondent.

Confidence and faith between the husband and wife is backbone of

a healthy married life and in the facts and circumstances of the case

as the Petitioner has printed defaming posters of the Respondent

and the fact that the Petitioner has tried to commit suicide, it will

be impossible for the Petitioner and Respondent to stay together

and it cannot be said that the Respondent is not able to prove that

the Respondent has without reasonable excuse withdrawn from the

society of the Petitioner.

26. The judgments relied on by the learned advocate for the Petitioner

in case of Maria Margarida Sequeira Fernandes And Others

(Supra) Wherein learned advocate for the Petitioner has relied on

paragraph nos.53 to 55 which are as under:

"53. Pleadings are the foundation of litigation. In pleadings, only the necessary and relevant material must be included and unnecessary and irrelevant material must be excluded. Pleadings are given utmost importance in similar systems of adjudication, such as, the United Kingdom and the United States of America.

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

54. In the United Kingdom, after the Woolf Report, Civil Procedure Rules, 1998 were enacted. Rule 3.4(2) has some relevance and the same is reproduced as under:

"3.4(2) The Court may strike out a statement of case if it appears to the Court -

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of case is an abuse of the Court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

(c) that there has been a failure to comply with a rule, practice direction or Court order."

55. In so far as denials are concerned, Rule 16.5 provides that:

"16.5 (2) where the defendant denies an allegation,-

(a) he must state his reasons for doing so, and

(b) if he intends to put forward a different version of events from that given by the plaintiff, he must state his own version."

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

27. It has been argued that there are no pleadings given by the

Respondent to prove reasonable excuse from withdrawing from the

society of the Petitioner but the fact remains that while filing

Written Statement vide exhibit 31, the Respondent has specifically

stated that the Petitioner has given threats of committing suicide

and defaming the Respondent and the said fact has been admitted

by the Petitioner in her cross-examination and therefore the said

fact having been admitted, it can not be said that the Respondent

has not proved that there was reasonable excuse from withdrawing

from the society of the Petitioner.

28. With respect to the Judgment in case of Ravi Kumar Vs.

Julmidevi (Supra) learned advocate for the Petitioner has relied

on Para no. 10 as under:

"10. The High Court after considering some decisions came to a finding that by filing a Petition under Section 9 of the Act, the appellant had condoned the earlier alleged acts of cruelty of the Respondent wife. Condonation is basically a question of fact. This Court finds that the reasoning of the High Court on condonation in the facts of this case is correct."

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

29. In the present case, there is no pleading or proof that the

Respondent has condoned the act of cruelty of the wife of trying to

commit suicide and defaming the Respondent by printing the

defamatory posters. Moreover, cruelty in the nature of suicide

attempts is something which cannot be loosely be argued to have

been condoned in any manner. Mental cruelty arising from suicide

attempts cannot fall in the same bag as any other alleged mental

cruelty.

30. In the case of Sonprabha Manwani Vs. Govind Manwani

(Supra) it is held in para no.12 as under:

"12. Now, we shall deal with the evidence of appellant-wife Sonprabha Manwani, who has been examined herself as DW-1. She has stated that her marriage was performed with the Respondent/husband on 21.04.2006 according to Hindu Rites and Rituals and after four-five months of the marriage, the Respondent-husband, who is unemployed, used to quarrel with her under the influence of liquor and he is addicted to gambling. She has further stated that she started living separately in her parental home for the last five years. In her cross-examination, she admitted that she performed love marriage with the Respondent- husband and for this reason, her parents were not happy and

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

despite that they never told her to leave the Respondent-husband and used to give advice to live together. She has also stated that being fed up with the ill-treatment meted out by the Respondent-husband, she filed a complaint against the Respondent-husband who later on pressurized her to withdraw the report. It has also been stated by her that no such complaint was filed before the Court nor any report was lodged against the Respondent-husband by her family members. She has fairly admitted that on every occasion, Respondent-husband used to give a gift to her, but she denied the same. She has also denied the factum of pregnancy twice. She has further denied the facts with respect to second marriage and pressure made by her parents to leave the Respondent- husband."

31. The same will also not be of any assistance to the Petitioner as in

the present case the Petitioner herself has admitted of trying to

commit suicide and the law is settled that admission is the best

piece of evidence.

32. With respect to the judgments relied on by the Respondent in case

of Anil Yashvant Karande Vs. Mangal Anil Karande, reported

in MANU/MH/3431/2015 para nos.44 to 46, it is held as under:

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

"44. In my opinion, the Respondent having treated the appellant with cruelty and such allegations having been proved, the Respondent at the same time could not maintain her application for restitution of conjugal rights by filing an application under section 9 of the Hindu Marriage Act, 1955. The husband, who had suffered mentally in view of such false criminal case filed by the wife and admittedly in which he and his family members were acquitted, cannot be compelled by the Court by passing an order of restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955 and to co-

habit with the wife. In my view, once the husband has made out a case of divorce and had proved the cruelty committed by the wife under section 13(1) (i-a) of the Hindu Marriage Act, the wife could not maintain her application for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955.

45. In my view, the appellant husband had proved before both the Courts below that he had withdrawn from the society of the Respondent due to the Respondent having committed cruelty upon the appellant and such withdrawal from the society of the Respondent was not without a reasonable excuse. In my view, both the

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

reliefs are counter point to each other. Once the cruelty committed by the wife is proved by the husband, no relief for restitution of conjugal rights can be granted by the Court. Both the reliefs cannot be granted together at the same time. In my view, there is thus no substance in the submission made by the Respondent that even if it was proved that the wife had treated the husband with cruelty, she will be independently entitled to maintain her application for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955.

46. In my view no spouse can be allowed to urge that he or she would treat other with cruelty and at the same time would also sa396-13c force other to co-habit with him or her by filing application under section 9 of the Hindu Marriage Act for restitution of conjugal rights under the same roof. In my view, since the appellant husband had proved the case of cruelty on the part of the wife, the learned trial Judge as well as the lower appellate Court ought to have considered such case as a fit case for divorce and not a fit case for granting a relief under section 9 of the Hindu Marriage Act, 1995 for restitution of conjugal rights in favour of the Respondent. In my view, since the husband was entitled to a decree of

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

divorce under section 13(1)(i-a) of the Hindu Marriage Act, 1955, there was no question of the trial Court as well as the lower appellate Court granting the relief of restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955."

33. In case of K. Srinivas Rao Vs. D.A.Deepa reported in 2023 STPL (Web) 152 SC, it is held in para nos.22 to 24 as under:

"22. We need to now see the effect of the above events. In our opinion, the first instance of mental cruelty is seen in the scurrilous, vulgar and defamatory statement made by the Respondent-wife in her complaint dated 4/10/1999 addressed to the Superintendent of Police, Women Protection Cell. The statement that the mother of the appellant-husband asked her to sleep with his father is bound to anger him. It is his case that this humiliation of his parents caused great anguish to him. He and his family were traumatized by the false and indecent statement made in the complaint. His grievance appears to us to be justified. This complaint is a part of the record. It is a part of the pleadings. That this statement is false is evident from the evidence of the mother of the Respondent-wife, which we have already quoted. This statement cannot

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

be explained away by stating that it was made because the Respondent-wife was anxious to go back to the appellant-husband. This is not the way to win the husband back. It is well settled that such statements cause mental cruelty. By sending this complaint the Respondent-wife has caused mental cruelty to the appellant- husband.

23. Pursuant to this complaint, the police registered a case under Section 498-A of the IPC. The appellant- husband and his parents had to apply for anticipatory bail, which was granted to them. Later, the Respondent-wife withdrew the complaint. Pursuant to the withdrawal, the police filed a closure report. Thereafter, the Respondent-wife filed a protest petition. The trial court took cognizance of the case against the appellant-husband and his parents (CC No. 62/2002). What is pertinent to note is that the Respondent-wife filed criminal appeal in the High Court challenging the acquittal of the appellant-husband and his parents of the offences under the Dowry Prohibition Act and also the acquittal of his parents of the offence punishable under Section 498-A of the IPC. She filed criminal revision seeking enhancement of the punishment

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

awarded to the appellant-husband for the offence under Section 498-A of the IPC in the High Court which is still pending. When the criminal appeal filed by the appellant-husband challenging his conviction for the offence under Section 498-A of the IPC was allowed and he was acquitted, the Respondent-wife filed criminal appeal in the High Court challenging the said acquittal. During this period Respondent-wife and members of her family have also filed complaints in the High Court complaining about the appellant-husband so that he would be removed from the job. The conduct of the Respondent- wife in filing a complaint making unfounded, indecent and defamatory allegation against her mother-in-law, in filing revision seeking enhancement of the sentence awarded to the appellant-husband, in filing appeal questioning the acquittal of the appellant-husband and acquittal of his parents indicates that she made all attempts to ensure that he and his parents are put in jail and he is removed from his job. We have no manner of doubt that this conduct has caused mental cruelty to the appellant- husband.

24. In our opinion, the High Court wrongly held that because the appellant-husband and the

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

Respondent-wife did not stay together there is no question of the parties causing cruelty to each other. Staying together under the same roof is not a pre-condition for mental cruelty. Spouse can cause mental cruelty by his or her conduct even while he or she is not staying under the same roof. In a given case, while staying away, a spouse can cause mental cruelty to the other spouse by sending vulgar and defamatory letters or notices or filing complaints containing indecent allegations or by initiating number of judicial proceedings making the other spouse's life miserable. This is what has happened in this case."

34. In case of Suguna Vs. Mathivanan in C.M.A.Nos.2355 and 2356

of 2015 it is held in para nos.53 to 55 as under:

"53. In the given case on hand also the main allegation against the appellant/wife is that she had made repeated threat to commit suicide by pouring kerosene on her by putting blame on her husband (Respondent). This matrimonial offence as alleged by the Respondent/husband has been proved sufficiently through his oral evidence as well as documentary evidences under Exs.P2 to P9. This kind of cruelty postulates a treatment of the appellant with such cruelty as to create reasonable apprehension in the

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

mind of the Respondent/husband that it would be harmful or injurious to him to live with her. Therefore, the acts of the wife (appellant herein) are of such quality or magnitude and consequence as to cause pain, agony and suffering to the Respondent/ husband which amounted to cruelty in matrimonial law.

54. We have carefully perused the materials placed before us including the grounds of appeals. We have also weighed and balanced the submissions made by both the learned counsels with the given fact situation and found that the learned I Additional Family Court has come to a correct conclusion which resulted in granting divorce to the Respondent/husband on the ground of cruelty which according to our considered opinion does not require our interference to exercise our appellate jurisdiction.

55. In the result, both the appeals are dismissed and the impugned common order dated 17.08.2015 and made in H.M.O.P.Nos.2853 of 2007 and 1288 of 2003 respectively, on the file of the I Additional Family Court, Chennai are confirmed. However, considering the nature of the case, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed."

35. In view of the said facts, the Respondent has proved that there is

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

reasonable excuse for the Respondent to withdraw from the society

of the Petitioner on the ground that the Petitioner has tried to

commit suicide and there are defamatory posters printed by the

Petitioner.

36. In view of the fact that there are no substantial question of law

involved in the present second appeal and the fact that the Trial

Court and the Appellate Court have given concurrent finding the

appeal is required to be dismissed. Moreover, in the present case,

the Appellant has not raised any substantial questions of law apart

from presenting the challenge on certain factual aspects.

37. It is required to be noted that in Second Appeal, the scope is very

limited and the Court cannot re-appreciate the evidence. In the case

of Navaneethammal v. Arjuna Chetty reported in 1996 (6) SCC

177, the Hon'ble Apex Court has observed as under:-

"11. This Court, time without number, pointed out that interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

lower courts."

38. In the case of Jaichand (Dead) through Lrs and Other v.

Sahnulal and Another reported in 2024 SCC OnLine SC 3864,

the Hon'ble Apex Court has observed as under:-

"28. It is thus clear that under Section 100 CPC, the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence."

39. Therefore, also the Appellant has miserably failed to show that

there is any substantial question of law involved in the present

appeal and the substantial question of law which has been

formulated in the memo of appeal are also not substantial question

of law and on facts and the said factual aspect has well been

considered by the Trial Court and the First Appellate Court.

40. Under the circumstances, this Second Appeal is devoid of any

substantial question of law. Both the learned Trial Court and first

NEUTRAL CITATION

C/SA/482/2024 CAV ORDER DATED: 09/05/2025

undefined

appellate Court have rightly decided the issue between the parties