N. Kannan vs P. Sudha
2021 Latest Caselaw 15565 Mad

                                                       1                      Crl O.P. No.4555 of 2017


                             IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 03.08.2021

                                                      CORAM:

                          THE HON'BLE MRS. JUSTICE V.BHAVANI SUBBAROYAN

                                              Crl.O.P. No.4555 of 2017
                                                         and
                                              Crl. M.P. No.3418 of 2017

                      1. N. Kannan

                      2. R. Usha                                                     ...Petitioners

                                                        Vs.

                      P. Sudha                                                  ... Respondent

                      PRAYER: Criminal Original Petition is filed under Section 482 Cr.P.C.,
                      to set aside the order passed in C. A. No.195 f 2014 dated 22.02.2016 on
                      the file of the learned XVI Additional Sessions Judge, Chennai confirming
                      the order passed in C.C. No.3096 of 2010 dated 21.05.2012 on the file of
                      the learned X Metropolitan Magistrate, Egmore, Chennai.


                                   For Petitioners            : Mr. K. Shivakumar

                                   For Respondent             : Mr. A. Tamilarasan

                                                           ****


                                                     ORDER

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This Criminal Original petition has been filed under Section 482

Cr.P.C. seeking for to set aside the order passed in C. A. No.195 f 2014

dated 22.02.2016 on the file of the learned XVI Additional Sessions

Judge, Chennai confirming the order passed in C.C. No.3096 of 2010

dated 21.05.2012 on the file of the learned X Metropolitan Magistrate,

Egmore, Chennai.

2. The learned counsel for the petitioner would submit that the

1st petitioner got married the respondent herein on 12.06.2005 and they

were living at Chennai. There was no issue out of the wedlock. Right

from the marriage, the conduct of the respondent was not conducive. She

was having illicit affair with one Prabakaran and hence there was

incompatibility between the 1st respondent and the respondent herein.

As a result of illicit relationship, the respondent is at present living

separately with the aforesaid person by name Prabakaran. While being

so, the respondent has filed a complaint before the Protection Officer and

the same was referred to the learned X Metropolitan Magistrate, Egmore,

Chennai which was numbered as C.C. No.3096 of 2010. The learned

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Magistrate, after hearing both sides, passed an order dated 21.05.2012

allowing the petition filed by the respondent and directed the 1st

petitioner herein to provide alternative accommodation to the respondent

herein and that the petitioners should not give torture either physically or

mentally and further directed the petitioners to pay a sum of

Rs.5,00,000/- towards compensation to the respondent herein for the

marriage expenditure and the amount given for the house loan of the

petitioners.

3. It has been further submitted that when the aforesaid case

was pending before the X Metropolitan Magistrate, Egmore, the

respondent has filed a divorce petition in O.P. No.2310 of 2011 before the

II Additional Principal Judge, Family Court, Chennai and got an

ex-parte decree of divorce on 15.10.2012. Even before filing of the

aforesaid compliant under the Domestic Violence Act, the respondent has

filed the above O.P.No.2310 of 2011 before the Family Court, Chennai

and obtained ex-parte decree of divorce by order dated 15.10.2012.

Before having obtained divorce order, the respondent has got married to

one Prabakaran during the subsistence of the marriage between the 1st

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petitioner and the respondent herein.

4. The learned counsel for the petitioner would further submit

that being aggrieved by the order of the learned Magistrate passed in C.C.

No.3096 of 2011, the petitioners have preferred an appeal C.A. No.195 of

2014 before the learned XVI Additional Sessions Judge, Chennai. thereby

the learned Sessions Judge confirmed the order of the trial Court by

Judgment dated 22.03.2016.

5. It has been further submitted that on the date of passing the

aforesaid order, the respondent got re-married one Prabakaran and she

was living with him. The said fact was also brought to the knowledge of

the lower Appellate Court. At that time, the respondent was very much

available before the Court below wherein she was enquired by the learned

Judge about the remarried and she also admitted of having got remarried

with one Prabakaran. It was also brought to the notice of the Court

below that the respondent has already obtained an exparte decree of

divorce in F.C.O.P No.2310 of 2011 and subsequently got re-married

with one Prabakaran. The illicit affairs of the respondent with one

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Prabakaran, was caused the incompatibility between the 1st petitioner

and the respondent. Hence, both of them have voluntarily decided to

part ways and accordingly the terms have been reduced into writing by

them whereby it was agreed that the party interested can approach the

Court concerned for divorce. After having ex-parte order of divorce, the

respondent got married to Prabakaran with whom she had illicit affair

during the subsistence of the marriage between the 1st petitioner and the

respondent. The lower appellate Court without considering the aforesaid

vital factors which will have bearing on the case was pleased to confirm

the order of the Trial Court Court by order dated 22.03.2016.

6. It has been further submitted that when the respondent

already obtained ex-parte decree or divorce and got married to another

man by name Prabhakaran, there is no question of providing alternative

accommodation to the respondent arise. Without considering the

aforesaid vital factors, the lower appellate Court was pleased to direct the

petitioners to provide alternative accommodation to the respondent

herein. Further, the dispute between the spouses arises on account of the

illicit affair of the respondent with one Prabakaran, there is no question of

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awarding any compensation arise. Without considering the

aforementioned aspect, the Lower Appellate Court was pleased to confirm

the order of the Trial Court in C.A. No.195 of 2014 dated 22.03.2016 and

the said order is bad in law and is not sustainable either in facts or in law.

The same is liable to be set aside.

7. The learned counsel for the respondent would submit that

the learned X Metropolitan Magistrate has passed the order dated

21.05.2012 after perusing the entire oral and documentary evidence let in

by both parties allowing the petition in C.C. No.3096 of 2010 filed by the

respondent herein. Thereafter the petitioners have preferred an appeal in

C.A. No.195 o f 2014 before the XVI Additional City Civil Court,

wherein the aforesaid order dated 21.05.2012 has been confirmed by

order dated 22.03.2016 after considering the facts and circumstances of

the case and perusing the oral and documentary evidence placed by both

parties. Hence, this Court may not interfere with the aforesaid orders

passed by the Courts below.

8. Heard, the learned counsel appearing for the petitioners and

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the learned counsel appearing for the respondent as well as perused the

materials available on record.

9. On a perusal of the record, it has been reported in the

averments of the respondent herein before the Court below that the

petitioner husband is a habitual drinker and he was harassing and

torturing the respondent for the past several years. The petitioners are

root cause of all miseries, loss of peace of mind, mental agony. Sine the

attitude of the petitioner/husband has caused lot of mental and physical

torture and cruelty to the respondent herein, she has filed a Divorce

petition in O.P. No.2310 of 2011 before the IIIrd Additional Family

Court. On the other hand, the petitioner husband has stated in this

petition that the respondent wife had illegal relationship with one

Prabakaran and she had married him. The same was accepted by her

before the Lower Appellate Court. Under these circumstances, the

respondent wife is not liable to the effect of the order passed by the

Courts below.

10. Despite the averment made by the learned counsel for the

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petitioners with regard to re-marriage of the respondent wife with one

Prabakaran, no substantial evidence has been placed before this Court as

well as Courts below to prove the same. In the absence of substantial

material in regard to the re-marriage of the respondent wife with one

Prabakaran, this Court is not inclined to consider the submissions made

by the learned counsel for the petitioners. Further, the Lower Appellate

Court held that despite the divorce was ordered in favour of the

respondent on 15.10.2012, the complaint made by the respondent well

before the order of the Divorce ie. on 06.01.2011. Therefore, on the date

of the complaint, the marriage was in subsistence. Hence, the relief

sought by the respondent was granted by the Lower Appellate Court.

11. In view of the aforesaid discussions, this Court is not

inclined to interfere with the orders passed by the Courts below as the

contentions put forward by the learned counsel appearing on behalf of the

petitioners are not proved by placing oral and documentary evidence

before this Court and the same is purely factual in nature.

12. In the result, this Criminal Original Petition stands

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dismissed and the Orders of the Courts below are confirmed.

Consequently, connected miscellaneous petition is closed.

03.08.2021

Lbm Index : Yes / No Speaking order/Non-speaking order

V.BHAVANI SUBBAROYAN.,J

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To:

The Additional Public Prosecutor, High Court of Madras, Chennai.

Crl.O.P. No.4555 of 2017 and Crl. M.P. No.3418 of 2017

03.08.2021

http://www.judis.nic.in