Madras High Court
P.Lakshmi vs N.Nagarajan (Died) on 2 December, 2021
C.M.A.(MD) No.910 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
and
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
C.M.A(MD)No.910 of 2021
and
C.M.P(MD)No.8563 of 2021
P.Lakshmi ... Appellant/Respondent
Vs.
N.Nagarajan (Died)
Minor Sanjana
D/o.Late.Nagarajan
Rep. by Sudha,
(2nd respondent is brought on record as
LR of the deceased sole respondent vide
Court Order, dated 13.08.2021 made
in CMP(MD)Nos.1393 & 1394 of 2018) ... Respondent/Petitioner
PRAYER: Civil Miscellaneous Appeal filed under Section 19 of Family Court
Act, to allow this appeal and call for the records relating to the impugned
fair and decreetal order passed by the learned Family Judge, Madurai in
H.M.O.P.No.553 of 2009, dated 27.01.2016 and set aside the same.
For Appellant : Mr.K.Mahendran
For Respondent : Mr.R.Suriyanarayanan
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C.M.A.(MD) No.910 of 2021
JUDGMENT
S.VAIDYANATHAN,J.
and
DR.G.JAYACHANDRAN,J.
This Court, on 19.11.2021, passed a final order in C.M.A(MD)No.910
of 2021 recording the absence of the appellant. Mr.K.Mahendran, learned
counsel for the appellant has brought to the notice of this Court that the
Registry has failed to record his appearance on behalf of the appellant and
the vakalat filed by him. Therefore, since his name was not shown in the
cause list, he was not able to attend the Court on that day.
2.This Court called for the Registry records and found that the
contention of the counsel for the appellant is correct. Therefore, this Court
recalled the said unsigned order, dated 19.11.2021. Heard the counsel for
the appellant and the respondent at length.
3. The brief facts of the case which is leading to filing of the appeal is
below:-
(i) One Nagarajan working as Medical Assistant in Government
Department married one Lakshmi after divorcing his first wife through
whom he has begotten a female child by name, Sanjana. The second
marriage took place on 17.06.2005 with one Lakshmi the appellant herein.
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It is the second marriage for Lakshmi. After the marriage, they lived
together at Tirupur and there is no issues born to them.
(ii) The case of Nagarajan (Petitioner in H.M.O.P.No.553 of 2009) who
succeeding in the divorce petition is that, his wife Lakshmi used to ill-treat
him and abused him in front of his relatives. Being a politician, she has
spent huge money to contest the General Election on behalf of a recognised
party and lost. The attitude of his wife, after her unsuccessful contest in
the General Election, changed and on one occasion, she incited her family
members to attack the petitioner/husband and also his motor-bike was
taken away. Unable to sustain the harassment and torture, the
petitioner/husband got voluntary transfer to Katcharapalayam, Villupuram
District. The request of the petitioner/husband to the respondent/wife to
join him was conceded by the respondent/wife and she came and stayed
with the petitioner/husband for few days. Further, those days were
horrible and the respondent/wife continuing to torture him causing mental
agony and illtreat him in the presence of his officials and family members
and left the matrimonial home without his consent.
(iii) After exchange of notice through counsels, there was again an
attempt by the respondent/wife to abduct and seduce the
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C.M.A.(MD) No.910 of 2021
petitioner/husband administering the drug and caused harm to him. Since
he was abducted by the respondent/wife and her brother on 13.12.2009
near Anna Bus Stand, Madurai, a complaint was given by the petitioner's
sister to the Police regarding the incident. However, the police being
influenced by the respondent/wife, did not take any action. The
petitioner/husband was admitted in Apollo Hospitals and recovered from
the illness.
(iv) There was some attempt made for reconciling their different, but
the respondent/wife refused to live with the petitioner. In spite of issuing
notice to her to join him and restore the conjugal relationship.
(v) The petition for divorce under Section 13(1)(i-a) of Hindu
Marriage Act, 1955 was initiated alleging that the respondent/wife gave
false complaint against the petitioner/husband and his family members
thereby, caused cruelty both physically and mentally, besides she left the
matrimonial home voluntarily without any reason. It reveals that she is not
interested to live with him and he has arrived at a conclusion that there is
no possibility for reunion.
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4. The respondent/wife has contested the petition on the ground that
the allegations are false and denied. During the time of marriage, the
parents of the respondent/wife gave 3 sovereigns of bracelet and Bajaj
Pulsar two-wheeler to the petitioner/husband, besides household articles
worth about Rs.2,00,000/- and dowry of Rs.1,00,000/-, 34 ½ sovereigns of
gold jewels were also given to the respondent/wife. Despite that the
petitioner/husband was not satisfied and she was frequently tortured her
by demanding more money. The petitioner/husband had contact with ladies
of bad repute. He has stolen her 20 sovereigns of gold jewels and given it
to his sister. The petitioner is a drunkard used to harass her daily. In the
month of September, 2007 suspected her fidelity, he took her to Tiruppur
Noyyel Bridge and try to murder her. Hearing her alarming cry, the
neighbours rescued her.
5. It is also alleged in the counter that the petitioner/husband tried
to hang her to death and kill her by discharging LPG. Further, she has
alleged that he made her to stand nude and tortured her. Once when he
was abusing her in Vulgar language near Tiruppur bus stand in the year
2007, the patrolling police rescued her and arrested the petitioner. Later,
she withdrew the complaint out of love towards her husband. He used to
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C.M.A.(MD) No.910 of 2021
borrow money from the neighbours and spent lavishly and she was forced
to discharge those loan. His family members used to harass her saying
that she has cheated the petitioner suppressing her earlier marriage and
therefore, they are going to kill her if she does not give divorce to him and
ran away.
6. It is also contended by the respondent/wife that she has pledged
her two-wheeler and borrowed Rs.50,000/- to meet out the medical
expenses of the petitioner/husband when he was admitted in the Apollo
hospital on 27.02.2009. After making very serious allegations as stated
above, the respondent/wife has also expressed her willingness to join with
her husband in spite of cruelty being meted out by her in the hands of the
petitioner/husband.
7. With these rival pleadings, the parties went for trial. In support of
the petitioner/husband three witnesses were examined and 9 exhibits were
marked. On behalf of the respondents/wife three witnesses were examined
and 8 exhibits were marked.
8. The trial Court, after appreciating the evidence before him, has
held that the averments of the petitioner/husband regarding cruelty is
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proved, whereas, the averments made by the respondent/wife counter
alleging cruelty not proved. Particularly, considering the allegations of
abduction and administering the drug, the medical records issued by the
Apollo hospital was perused and appreciated by the trial Court and found
that the petitioner was not admitted in the Apollo Hospital for deadiction as
alleged by the respondent/wife and the complaint of the respondent/wife
dated 16.03.2009 is only to counterblast the enquiry initiated by the Social
Welfare Officer leading to issuance of summon Ex.P9, dated 23.03.2009.
9. It is also held by the trial Court that the claim of the
respondent/wife that she pledged her two-wheeler and paid the medical
expenses to the petitioner/husband in the Apollo Hospital also found to be
false. Since she has not produced any document to substantiate that she
raised a loan of Rs.50,000/- by pledging RC book of her two-wheeler. The
discharge summary marked as Ex.R4, dated 11.03.2009 does not indicate
that the petitioner/husband was admitted in the hospital for de-addiction
treatment. By taking note of the false allegations made by the
respondent/wife, the trial Court has came to the conclusion that the
petitioner/husband has sufferred cruelty both physically and mentally at
the hands of his wife and in spite of several efforts for reunion taken by the
petitioner/husband, the respondent/wife has not evinced any interest to
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C.M.A.(MD) No.910 of 2021
join him. Therefore, holding that the marriage has broken down
irretrievably in the light of the proven cruelty caused by the
respondent/wife, decree of divorce dissolving the marriage held on
17.06.2005 was granted.
10. The said judgment and decree, dated 27.01.2016 of the trial
Court is impugned by the respondent/wife in the present appeal.
11. It is to be noted that the appeal though presented in the Section
on 20.12.2016, it was filed with the delay of 274 days and therefore, the
appellant has taken out C.M.P(MD)No.12462 of 2016 to condone the said
delay. This Court on considering the averments made in the affidavit filed
in support of the condone delay petition citing jaundice and Ayur Vedha
treatment, allowed the petition on 13.08.2021. It is also pertinent to note
that on the day when the delay was condoned to file this appeal, the
husband, who is the respondent, was no more. He died on 19.09.2017.
Therefore, the appellant has taken out an application to set aside the
abatement caused due to the death of the respondent Nagarajan on
19.09.2017 and to bring his minor daughter Sanjana as the respondent in
her appeal.
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12. It is further pertinent to note that the said Sanjana is the
daughter born to Nagarajan through his first wife Sudha whom Nagarajan
has divorced prior to marrying the appellant herein. This Court while
condoning the delay of 274 days in filing the present appeal has also
considered the application to set aside the abatement and to bring the
Legal Heirs on record and taking note of the Judgment of the Hon'ble
Supreme Court of India in Yallawwa vs. Shantavva reported in 1997(11)
Supreme Court Cases 159, allowed the impleading petition and thus the
appeal came to be numbered and taken up for consideration by this Court.
13. In the grounds of appeal, the appellant has contended that the
cruelty alleged by her husband was not proved beyond reasonable doubt.
The Court below failed to appreciate that she has not committed any
cruelty or harassment. While the trial Court accepted the photo copies of
the documents filed by the respondent/husband, it did not accept the
documents filed by the appellant/wife which are also photocopies. The
witnesses examined in support of her husband, were his brother and sister,
they are interested witnesses. Therefore, the trial Court ought not to have
given much weightage to their evidence. The trial Court mechanically
dissolved the marriage duly solemnized without appreciating the evidence
properly.
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14. Since there is non-application of mind by the trial Court while
deciding the issue, the judgment and decree passed by the trial Court is
liable to be set aside.
15. Per contra, the learned counsel appearing for the respondent
would submit that it is a clear case of untolerable cruelty committed by the
appellant/wife, who has taken a wayward life and indulged in making false
allegations against her husband by giving false complaint to police and
engage hooligans to assault her husband, since he was not pleased with her
conduct. To substantiate the cruelty meted out by the husband, besides
two witnesses, the documents such as complaint given to the police and
Social Welfare Officer, medical records were also relied. Further, the
documents would indicate that spouse were not living happily and cordially,
there was case and counter case against each other accusing cruelty and
matrimonial offence. While so, on balancing the evidence, the trial Court
has rightly concluded that the marriage reached the stage of irretrievable
break down and no possibility for reunion. The conduct of the
appellant/wife herein clearly proves the cruelty caused by her to the
respondent/husband.
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16. In this case, certain peculiar facts involving question of law need
to be addressed in view of the fact that the husband of the appellant is no
more to defend.
17. The marriage between the spouses which has taken place on
17.06.2005 had not taken off in a right direction. The appellant herein
contested in Assembly General Election held in the year 2006 and lost.
This averments is not denied by the respondent. As far as the cruelty
aspect is concerned, the prime allegation against the appellant/wife herein
is that she used to abuse the respondent/husband, ill-treat him and used to
engage Goondas to attack him. The counter allegation of the appellant is
that the respondent is drunkard, taken de-addiction treatment and she has
meted out his medical expenses.
18. The trial Court, after considering the allegations and counter
allegations of cruelty made against each other, has rightly pointed out the
false case of the appellant herein regarding the medical treatment of the
respondent herein at Apollo Hospital. When she has pleaded that she has
spent money to meet out the medical expenses and the respondent was
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admitted in the Apollo hospital for de-addiction treatment, the medical
records has proved otherwise. Her own document Ex.R4 speaks contrary to
her case, when Ex.R4 is read along with Ex.P7 discharge summary and
medical bills cumulatively. This is one fact that which would clearly lead to
the inference that the appellant is in the habit of making false accusation
and false claim. The episode at Anna Bus Stand, Madurai also goes in
favour of the respondent/husband which indicates that the appellant herein
is in the habit of engaging 3rd party to intimidate the respondent. Even, if
the contention of the appellant herein is taken into account that the photo
copies of the documents relied by her were not considered, is not correct,
factually and if the same is taken into account, it does not improve the case
of the appellant, but only makes it worse.
19. Be that as it may, the appellant has no case of merit in law when
we looked into the conduct of the appellant herein, who has filed this
appeal after 274 days delay after passing of the judgment on 20.12.2016,
waited sufficiently till the respondent died on 19.09.2017. Thereafter,
taken out an application to set aside the abatement and to bring on his
minor daughter born to the first wife, as respondent.
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20. In order to get the application numbered, the counsel has relied
upon the judgment of the Supreme Court in Yallawwa v. Shantavva
reported in 1997 (11) SCC 159. In fact, in that case, it was an ex parte
order, which was sought to be set aside after the decree holder died. The
Supreme Court taking into consideration the cumulative facts and
circumstances in that case and also the conflicting judgments of the
various High Courts including the judgment of the Madras High Court to
hold as below:-
“ 8.............It must, therefore, be held that after a decree
of divorce is obtained by the petitioning husband against his
wife she has right to file an appeal and such appeal does not
abate on account of the death of the respondent/husband
whether such death takes place prior to the filing of appeal or
pending the appeal. Similarly, if an ex parte decree of divorce
is obtained against the wife and thereafter if the husband dies,
the aggrieved wife can maintain an application under Order IX
Rule 13 COC, even though the husband might have died prior
to the moving of that application or during the pendency of
such application................
10. Now remains the question as to whether the
proceedings for divorce as restored by the High Court by its
impugned order are required to be proceeded further or the
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curtain must be dropped on the said proceedings. As the ex
parte decree is found to be rightly set aside by the High Court,
the marriage petition would automatically stand restored on
the file of the learned trial Judge at the stage prior to that at
which they stood when the proceedings got intercepted by the
ex parte decree. Once that happens it becomes obvious that
the original petitioner seeking decree of divorce against the
wife being no longer available to pursue the proceedings now,
the proceedings will certainly assume the character of a
personal cuase of action for the deceased husband and there
being no decree culminating into any crystallized rights and
obligations of either spouse, the said proceedings would
obviously stand abated on the ground that right to sue would
not survive for the other heirs of the deceased husband to get
any decree of divorce against the wife as the marriage tie has
already stood dissolved by the death of the husband. No
action, therefore, survives for the court to snap such a non-
existing tie, otherwise it would be like trying to slay the slain.
At this stage there remains no marriage to be dissolved by any
decree of divorce. Consequently, now that the ex parte decree
is set aside, no useful purpose will be served by directing the
trial Court to proceed with the Hindu marriage petition by
restoring it to its file.”
21. On facts, the above judgment which has arisen from an ex-parte
decree, the Apex Court on equity, has said that the ex-parte order has to be
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set aside, if set aside, automatically the marriage gets restored and as a
consequence, if there is property right vested with the wife, the same has
to be worked out. Whereas, in this case (a) it is not an ex-parte decree;
(b) the appeal not filed in time but after delay of 274 days; ( c) the
appellant never shown interest to join her husband and live together by
filing petition for restitution; (d) the minor daughter who is brought on
record as respondent is not a competent person to defend the appeal filed
against the contested petition for divorce.
22. In view of the above reasons, the appeal deserve to be dismissed.
No costs. Consequently, connected miscellaneous petition is closed.
[S.V.N.,J.] [G.J.,J.]
02.12.2021
Index : Yes / No
Internet : Yes / No
am
To
The Family Court,
Madurai.
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C.M.A.(MD) No.910 of 2021
S.VAIDYANATHAN, J.
and
DR.G.JAYACHANDRAN, J.
am
JUDGMENT MADE IN
C.M.A(MD)No.910 of 2021
02.12.2021
https://www.mhc.tn.gov.in/judis
