Madras High Court
T.Shanmuganantham vs D.Nirmala on 6 December, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.12.2021
CORAM :
THE HONOURABLE MRS.JUSTICE S.ANANTHI
C.M.S.A(MD)No.20 of 2012
T.Shanmuganantham ... Appellant/Respondent/Petitioner
Vs.
D.Nirmala ... Respondent/Appellant/Respondent
PRAYER :Appeal filed under Section 28 of Hindu Marriage Act r/w Section
100 of Civil Procedure Code, to set aside the fair and decreetal order, dated
27.02.2012 passed in C.M.A.1 of 2011 on the file of the learned District
Judge, Karur, in reversing the fair and decreetal order, dated 25.08.2010
passed in H.M.O.P.No.120 of 2007 on the file of the learned Subordinate
Judge, Karur and allow the appeal.
For Appellant : Mr.K.Suresh
For Respondent : No appearance
JUDGMENT
This appeal has been filed to set aside the fair and decreetal order,
dated 27.02.2012 in C.M.A.1 of 2011 passed by learned District Judge,
Karur, in reversing the fair and decreetal order, dated 25.08.2010 in
H.M.O.P.No.120 of 2007 passed by the learned Subordinate Judge, Karur.
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2.The respondent/appellant has filed an appeal in C.M.A.No.1 of 2011
on the file of the District Court, Karur, against the order, dated 25.08.2010 in
H.M.O.P.No.120 of 2007 passed by the learned Subordinate Judge, Karur and
the same was allowed on 27.02.2012 with Costs. Aggrieved by the same, the
concurrent findings, this appellant/petitioner is before this Court.
3.Heard on either side. Perused the material documents available on
record.
4.The appellant/husband has filed this second appeal to set aside the
order, dated 27.02.2012 in C.M.A.No.1 of 2011 passed by learned District
Judge, Karur. The appellant/husband has filed a petition in H.M.O.P.No.120
of 2007 for divorce on ground of desertion and cruelty and the same was
allowed. Against the said order, the respondent herein/wife has filed an
appeal in C.M.A.No.1 of 2011 and the same was allowed.
5.The issue to be decided in the appeal is that whether desertion and
mental cruelty contended by the appellant/husband is proved?.
6.Admittedly both the parties are husband and wife and they lived
separately from the year 2003. The respondent herein/wife has preferred two
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criminal complaints against the appellant/husband in Crime Nos.1 & 77 of
2004 for demand of dowry. Based on the complaints, enquiry was made by
All Women Police Station, Karur. Both the parties were consented for
re-union. Immediately, after the consent, wife sent a legal notice on
26.07.2004, seeking divorce and also she has filed a petition in H.M.O.P.
No.86 of 2004 for divorce on the ground of cruelty. After enquiry, the trial
Court has dismissed the said H.M.O.P.No.86 of 2004 as cruelty made by the
husband was not proved. If any cruelty was made by the husband the wife
has not ready to live with him. After the order passed in H.M.O.P.No.86 of
2004 no action was taken by the wife to prefer an appeal.
7.Admittedly, from the year 2003, both the parties were lived
separately. In the year 2004, H.M.O.P. was filed by the wife and admitted
that from the year 2003, they lived separately. Hence, she seeks divorce.
Even dismissal of the H.M.O.P.No.86 of 2004 she has not taken any steps to
live with her husband and also she gave two criminal complaints against her
husband. But, consented for re-union. After three years husband has filed
H.M.O.P.No.120 of 2007 on the ground of desertion and mental cruelty.
Both the parties have not taken any steps for re-union.
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8.The Court below finds that giving false complaint also one of the
ground for mental cruelty as per Judgment reported in AIR 2009(NOC)811
(cal) – Page 235 and 2013(5)SCC, Page 226, making unfounded defamatory
allegations against spouse or his/her relatives in pleadings, filing repeated
false complaints or cases in Court, issuing notices or news items which may
have adverse impact on business prospects or job of spouse, etc., held, are all
illustrative cases of mental cruelty which would warrant grant of divorce.
9.As per Judgment reported in 2014 (2) MWN Civil 393, institution of
continuous Criminal proceedings by wife against husband and in-laws,
whether amounts to cruelty?. Held, mental cruelty is state of mind and
feeling suffered by spouse due to behavioral pattern inflicted by one against
other it cannot be proved by direct evidence but can be inferred from facts
and circumstances of the case.
10.In the case on hand, wife had given two criminal complaints against
her husband for dowry harassment. Further, she consented to re-union with
the husband. If really husband treated her with cruelty she would not
consented for re-union. From the year 2003, both of them lived separately
and no one take any steps to live together, even, H.M.O.P.No.86 of 2004 was
dismissed. There is no appeal has been preferred by the wife against the
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dismissal order. She has not filed counter in the present HMOP for the
allegations found in the H.M.O.P.No.86 of 2004.
11.Considering all these aspects, both the parties are not willing to live
together. Therefore, the learned Subordinate Judge, Karur has rightly allow
the H.M.O.P.No120 of 2007 but the Appellate Court reversing the order on
the ground that the husband has not made out any valid ground to get divorce
from his wife. Without noticing the fact that already the wife had filed
divorce petition in H.M.O.P.No.86 of 2004. Therefore, there is no chance of
re-union. So, this Court is inclined to allow this CMSA.
12.Accordingly, this Appeal is allowed by setting aside fair and
decreetal order, dated 27.02.2012 in C.M.A.1 of 2011 passed by learned
District Judge, Karur, in reversing the fair and decreetal order, dated
25.08.2010 in H.M.O.P.No.120 of 2007 passed by the learned Subordinate
Judge, Karur. No Costs.
Index :Yes/No 06.12.2021
Internet:Yes/No
ksa
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Note:In view of the present lock down owing to COVID-19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct copy, shall be the
responsibility of the Advocate/litigant concerned.
To
1.The District Court, Karur.
2.The Subordinate Cour, Karur.
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S.ANANTHI, J.
ksa
Order made in
C.M.S.A(MD)No.20 of 2012
06.12.2021
https://www.mhc.tn.gov.in/judis
