Madras High Court
E.Vedi vs Jothi @ Naduthai on 26 April, 2021
C.M.S.A.No.25 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 04.12.2020
DATE OF DECISION : 26.04.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
C.M.S.A.No.25 of 2016
E.Vedi .. Appellant
-vs-
Jothi @ Naduthai
W/o E.Vedi .. Respondent
Memorandum of Grounds of Civil Miscellaneous Second Appeal filed under
Section 28 of the Hindu Marriage Act, 1955 read with Section 100 of the Code of Civil
Procedure, against the judgment and decree dated 18.12.2015 passed in H.C.M.A.No.4
of 2013 on the file of the learned III Additional District Judge, Vellore at Tiruppatur,
reversing the judgment and decree dated 08.07.2013 passed in H.M.O.P.No.11 of 2006
on the file of the learned Subordinate Judge, Tiruppatur, Vellore District.
For Appellant :: Mr.R.Subramanian
Senior Counsel for Mr.B.Ravi
For Respondent :: Mr.S.Subbiah
Senior Counsel for Mr.P.Raja
JUDGMENT
Heard learned counsel for the parties through video conferencing due to the
Covid-19 pandemic.
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C.M.S.A.No.25 of 2016
2. Mr.E.Vedi, the appellant herein has brought this civil miscellaneous second
appeal against the impugned judgment and decree passed by the learned III Additional
District Judge, Vellore, reversing the judgment and decree of divorce granted by the
learned Subordinate Judge,Tirupattur.
3. The appellant/husband filed the H.M.O.P.No.11 of 2006 before the learned
Subordinate Judge, Vellore under Section 13(1) of the Hindu Marriage Act alleging
various grounds that after 23 years from the date of marriage and giving birth to two
daughters, namely, Saritha and Sasikala in the year 1985 & 1989 respectively, the
attitude and conduct of the respondent/wife underwent a complete change and she also
failed to discharge her duties as a dutiful Hindu wife towards the appellant. Besides, on
many occasions, she started behaving in an indifferent manner and also left the appellant
without informing him and the elder members in the family to lead a wayward life by
going to Tirupattur, Vaniyambadi and Ambur. Later on, the appellant came to know that
the respondent has been leading an immoral life. Moreover, she was also addicted to
alcohol and she behaved in a recalcitrant manner towards the appellant. When several
steps were taken by the appellant to correct her, keeping the welfare of daughters and
the family as a whole, his efforts ended in vain and the respondent has not even paid any
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C.M.S.A.No.25 of 2016
heed to the advise given by the appellant. This apart, the respondent also had gone to
the extent of disposing all the jewels including that of the daughters for her extravagant
life. In view of this, there was no cohabitation between the appellant and the respondent
for the last 15 years. Alleging illicit intimacy with one Malayan, S/o Periya Malayan of
Athanavoor, who is permanently residing at Chinna Vattanur of Pungampatti Nadu in
Javadhu Hills, the appellant charged the respondent for leading an adulterous life. It was
further pleaded that the said Malayan was running a grocery shop as a tenant in a
portion of the building owned by the appellant in Punganur Village, Yelagiri Hills. The
respondent joining hands with the said Malayan, a Paramour, filed a false complaint
against the appellant at Yelagiri Hills Police Station and after enquiry, a panchayat was
convened and in the said panchayat, the appellant was asked to pay a sum of
Rs.44,000/- to the said Malayan to leave the rented shop. The appellant's first daughter
Saritha, conniving with the said Malayan, has been supporting their illegal adventures.
After getting the amount, the respondent got emboldened and openly supporting the said
Malayan started going to various places to lead an adulterous life. When the matter
stands as above, the respondent has not only given a false complaint against the
appellant, but also filed a case seeking monthly maintenance and in addition thereto, the
respondent also filed a civil suit seeking partition along with her daughters. Therefore,
when the police complaint and maintenance case have been filed and a suit for partition
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C.M.S.A.No.25 of 2016
also has been filed, the conducive matrimonial atmosphere in the house had vanished.
Moreover, as they are living separately for more than 25 long years, the question of
reunion and living together does not arise. When the trial Court, after considering these
three vital facts, (i) that the respondent has been leading an immoral life with one
Malayan, as a result, refused to cohabit with the appellant for 15 years; (ii) that a false
complaint has been filed before the Yelagiri Hills Police Station that was also
subsequently settled; (iii) that a case of maintenance has been filed and the respondent
also joining hands with her daughters filed a suit for partition, the appellant and the
respondent cannot live together and consequently, when a decree for divorce was
granted dissolving the marriage between the appellant and the respondent, the lower
appellate Court, on an appeal filed by the respondent/wife in H.C.M.A.No.4 of 2013,
without even considering any of the facts, namely, the filing of the case of maintenance
and the filing of the suit along with her daughters for partition and that there was no
cohabitation for over 15 years, erroneously reversed the said decree, against which the
present civil miscellaneous second appeal has been preferred, raising the following
substantial questions of law:-
(i) Whether the filing of a false complaint before the police station along with the
filing of the maintenance case and also a civil suit seeking partition by the
respondent/wife, would not amount to causing mental cruelty to the
appellant/husband?
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C.M.S.A.No.25 of 2016
(ii)When the trial Court has granted divorce by dissolving the marriage solemnized
23 years ago between the parties, whether the lower appellate Court can simply
reverse the decree of divorce without adverting to the evidence available on
record?
4. Mr.R.Subramanian, learned Senior Counsel appearing for the appellant
submitted that when the trial Court has taken up the issue that the tenant, who was
running a grocery shop in a portion of the building belonging to the appellant, had illicit
intimacy with the respondent leading to the matrimonial dispute between the parties
resulting in convening of a village panchayat, wherein the appellant was asked to pay a
sum of Rs.44,000/- to the said tenant to leave the rented shop, the lower appellate Court
has failed to consider the same. Moreover, when the appellant and the respondent were
not living together for more than 15 years and that the respondent has filed the case for
maintenance and also the suit for partition seeking division of the appellant's property,
the lower appellate Court has wrongly reversed the judgment of the trial Court granting
divorce, that indicates the total non application of mind. When the allegation of adultery
levelled against the respondent with the tenant could not be proved by any oral and
documentary evidence, accepting the legal position in the case of Rajendra Agarwal v.
Sharda Devi, AIR 1993 M.P.142 holding that direct evidence of proof of adultery is very
rare and it is therefore accepted as a rule that it can be proved by circumstantial
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C.M.S.A.No.25 of 2016
evidence, and in the present case, when the tenant was asked to leave the rented shop
belonging to the appellant in view of the alleged illicit intimacy with the appellant's wife
that resulted in the matrimonial dispute between the parties, the lower appellate Court
ought to have accepted the findings and conclusions reached by the trial Court for
granting divorce. But without affirming the decree of divorce, the lower appellate Court,
against the oral and documentary evidence that the respondent has filed multiple
proceedings, namely, false complaint, maintenance case and the suit for partition, simply
reversed the judgment against the weightage of evidence produced by the appellant.
Therefore, the impugned judgment and decree passed by the lower appellate Court are
liable to be set aside and the decree of divorce granted by the trial Court deserves to be
confirmed, he pleaded.
5. Opposing the above prayer, Mr.S.Subbiah, learned Senior Counsel appearing
for the respondent, submitted that a mere allegation made against the respondent that
she was leading an adulterous life with one Malayan without producing any evidence,
has been properly gone into by the lower appellate Court. Moreover, when the appellant
has alleged that the respondent is having venereal disease since she has been leading a
wayward life, no evidence whatsoever either oral or documentary is placed on record.
Therefore, the lower appellate Court has rightly reversed the judgment of the trial Court
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C.M.S.A.No.25 of 2016
granting divorce. Coming to the filing of a false case before the police, learned Senior
Counsel appearing for the respondent submitted that when there was a complaint by the
respondent against the appellant, this has been compromised. Subsequently, when the
appellant has assaulted the respondent and his daughters, she had resorted to legal
remedy for getting monthly maintenance and finally the civil suit in the manner known
to law, which cannot be considered as a ground for causing mental cruelty. Therefore,
the appeal has to be dismissed.
6. But this Court finds it difficult to accept the findings and conclusions reached
by the lower appellate Court for reversing the judgment of the trial Court granting
divorce. When the appellant/husband has filed the H.M.O.P.No.11 of 2006 seeking
divorce on the ground of cruelty under Section 13(1)(i) of the Hindu Marriage Act after
23 years from the date of marriage alleging that the respondent has been leading an
immoral life and besides she was leading a wayward life by going to different places,
namely, Tirupattur, Vaniyambadi and Ambur, absenting herself from Yelagiri Hills and
refusing to lead the matrimonial life, he has also placed documentary evidence in Exhibit
P4 dated 4.10.2005 & Exhibit P5 dated 3.11.2005, the rental agreement and the
undertaking respectively. A perusal of the Ex.P5 shows that the rental agreement has
been cancelled due to the difference of opinion developed between the appellant and the
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C.M.S.A.No.25 of 2016
respondent and a sum of Rs.44,000/- has been paid to the tenant to leave the rented
shop. Although the respondent has accepted the payment of Rs.44,000/- by the
appellant to the tenant in her evidence, she has completely denied the existence of the
rental agreement. The denial of the relationship of landlord and tenant against Exhibits
P4 & P5 to escape from giving a reply to the allegation of adultery, is unacceptable. The
denial of the fact that the tenant was running a grocery shop by the respondent itself
clearly shows that she does not want to give any room for the alleged illicit relationship
between her and the tenant. So far as the proof of adultery is concerned, it is well settled
legal position in the case of Rajendra Agarwal v. Sharda Devi, AIR 1993 M.P.142 that
the direct evidence to prove adultery is very rare and therefore it is accepted as a rule
that it can be proved by circumstantial evidence. In the case on hand, when the appellant
has proved by documentary evidence that one Malayan, while staying as tenant in a
portion of his building, had improper conduct with the respondent and finally he has
established that he got rid of the tenant by paying Rs.44,000/- to leave the rented shop,
the respondent has completely denied that he was not even staying as a tenant. This
aspect has been completely overlooked by the lower appellate Court. Accordingly, the
second substantial question of law whether the lower appellate Court can simply reverse
the decree of divorce granted by the trial Court without adverting to the evidence
available on record, is answered against the respondent and in favour of the appellant.
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7. Coming to the first substantial question of law whether the filing of the false
criminal complaint before the Yelagiri Hills Police Station and the filing of the
maintenance case seeking maintenance as well as the filing of the civil suit seeking a
share in the appellant's property by the respondent would cause mental agony to the
appellant is concerned, it cannot be denied that the filing of a false case by the wife
joining hands with the tenant, who is alleged to be a paramour, and getting the issue
settled by getting the payment of Rs.44,000/-, will definitely cause mental cruelty to the
appellant/husband. In addition thereto, the respondent joining hands with her daughter
filed a case seeking monthly maintenance. This apart, she has also filed a civil suit along
with her daughter for partition of the husband's property and it appears that the matter is
pending in Second Appeal No.540 of 2016 before this Court. When the respondent has
initiated legal proceedings, namely, maintenance case seeking monthly maintenance and
also a suit for partition demanding share in the appellant's property, it is not known how
the couple who have been visiting Courts can live together happily. Moreover, when the
appellant and the respondent are living separately for more than 25 years, naturally both
of them are deprived of the matrimonial life. Yet another fact is that the respondent has
not even filed any petition for restitution of conjugal rights. In fact, when the matter was
referred to mediation, the respondent has also refused to participate in the mediation.
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Therefore, when there is no love and affection shown for more than 25 long years,
granting of divorce by the trial Court dissolving the marriage between the couple can
never be found fault with. Accordingly, the first substantial question of law is also
answered against the respondent and in favour of the appellant.
8. In the result, the civil miscellaneous second appeal stands allowed and the
judgment and decree passed by the lower appellate Court are set aside and the judgment
and decree passed by the trial Court granting divorce by dissolving the marriage are
restored. Since this Court has found that the appellant has proved by documentary
evidence that one Malayan, while staying as tenant in a portion of his building, had
improper conduct with the respondent and finally he has established that he got rid of
the tenant by paying Rs.44,000/- to leave the rented shop and that the respondent has
completely denied the said fact, taking on record the memo dated 30.11.2020 filed by
the appellant, the appellant is directed to pay a sum of Rs.5,00,000/- and also the
residential property situate in S.No.45/1B2 in favour of his daughter Sasikala, instead of
in favour of the respondent. However, so far as the partition suit filed by the respondent
along with her daughter claiming a right in the appellant's property is concerned, the
parties shall abide by the outcome of the Second Appeal No.540 of 2016. No costs.
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C.M.S.A.No.25 of 2016
Speaking order 26.04.2021
Index : yes
ss
To
1. The III Additional District Judge
Vellore District
2. The Subordinate Judge
Vellore
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C.M.S.A.No.25 of 2016
T.RAJA, J.
ss
Judgment in
C.M.S.A.No.25 of 2016
26.04.2021
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