Madras High Court
Siva Kumar vs Jayanthi on 8 December, 2021
C.M.A.No.255 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.12.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
AND
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
C.M.A.No.255 of 2018
Siva Kumar
S/o Mohan .. Appellant
-vs-
Jayanthi
W/o Sivakumar .. Respondent
Memorandum of Grounds of Civil Miscellaneous Appeal filed under
Section 19 of the Family Courts Act, 1984, against the fair and decretal
order dated 18.04.2017 made in F.C.H.M.O.P.No.107 of 2016 on the file of
the learned Judge, Family Court, Dharmapuri.
For Appellant :: Mr.G.Charles Muthu Shanthan
For Respondent :: Ms.G.Sumitra
JUDGMENT
(Judgment of the Court was made by T.RAJA, J.)
This civil miscellaneous appeal has been directed against the
impugned fair and decretal order dated 18.4.2017 passed by the learned
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Judge, Family Court, Dharmapuri in F.C.H.M.O.P.No.107 of 2016, refusing
the appellant's prayer for divorce under Section 13(1)(i-a) of the Hindu
Marriage Act, 1955.
2. Learned counsel appearing for the appellant submitted that when
the marriage was solemnized between the appellant and the respondent on
17.4.2011 at Salem, as per the Hindu rites and customs, in the presence of
the well-wishers of both families, from the day of marriage, the behaviour
and conduct of the respondent/wife were not only rude and insulting, but
also quarrelsome, because she was all the time insisting for a separate
residential home. However, when the matrimonial life was going on, they
were blessed with a daughter on 5.1.2012. Thereafter, the respondent came
back to the matrimonial home during April, 2012. Again she created an
unhealthy atmosphere in the family and finding fault with the mother of the
appellant for silly reason, again started quarreling. Taking justification from
the bickering, the respondent again left the matrimonial home during May,
2012 under the guise of preparing for the TET exam. Moreover, the
appellant's family members were also put to mental agony. Learned counsel
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appearing for the appellant also submitted that precisely, to talk about the
conduct and behaviour of the respondent, the two attempts made by the
respondent in criminally prosecuting the appellant and his family members,
would amply demonstrate how she had ill-treated and misbehaved with the
appellant/husband and also with the father-in-law, mother-in-law and the
unmarried sister-in-law. At one point of time, when a criminal case was
registered in Crime No.172 of 2013 based on the complaint preferred by the
sister of the appellant against the respondent and her brothers, a counter
case was registered in Crime No.173 of 2013. Based on the said false
complaint, the mother and the unmarried sister of the appellant were
arrested and remanded to judicial custody for 6 days and the said case is still
pending in the FIR stage on the file of Karimangalam Police Station,
Dharmapuri with the submission of the report by the Inspector of Police,
Karimangalam Police Station to the learned Judicial Magistrate, Palacode
requesting to close the case. Again in another criminal case registered in
Crime No.1 of 2014 by the respondent's family, the poor mother, aged about
62 years and the unmarried sister of the appellant were again remanded to
judicial custody for 7 days. Finally, when the said case was taken up for
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trial by the learned Judicial Magistrate, Palacode in C.C.No.116 of 2014,
finding that the prosecution failed to prove the case against all the accused,
acquitted the appellant and his family members, by a judgment dated
7.11.2020. Similarly, the case filed by the appellant's sister against the
respondent's family in Crime No.172 of 2013 also ended in acquittal by the
judgment dated 7.5.2014 passed in C.C.No.163 of 2014 by the learned
Judicial Magistrate, Palacode. When it is a well settled legal position laid
down by this Court as well as the Apex Court in umpteen cases holding that
if either of the spouse to the marriage lodges a false criminal case, as a
result the family members concerned were taken to the police station and
put behind the bars, it is good enough to hold against the one who has
initiated the false criminal case as guilty of causing cruelty, both mentally
and physically. In the present case, when the respondent has miserably and
consecutively failed to establish her case that the appellant caused any
cruelty from his side, it goes without saying that their matrimonial life has
come to an end. Even in spite of the above mentioned two orders passed by
the learned Judicial Magistrate, Palacode dismissing the cases filed by both
parties, if this Court shows any hesitation in granting the decree for
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dissolution of marriage held on 17.4.2011, both the husband and wife in this
case will not be able to live happily. This crucial aspect has been completely
omitted by the learned Judge, Family Court, Dharmapuri. Therefore, the fair
and decretal order is liable to be set aside. Concluding his arguments,
learned counsel appearing for the appellant also submitted that when the
respondent has chosen to live separately from the matrimonial home from
May, 2013 till now and when she has also not moved any application under
Section 9 of the Hindu Marriage Act for restitution of conjugal rights, that
also clearly goes to show that she is not ready for restitution of conjugal
rights. Therefore, the findings and conclusions reached by the learned
Judge, Family Court, Dharmapuri are liable to be interfered with, he
pleaded.
3. Ms.G.Sumitra, learned counsel appearing for the respondent, while
assailing the arguments advanced by the learned counsel for the appellant,
pleaded that when the respondent/wife was not able to tolerate the
misbehaviour at the hands of the appellant and also from his family
members, she was constrained to go to the police station, but ultimately the
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trial Court has disbelieved her evidence, for the reason that the prosecution
failed to establish its case beyond reasonable doubt. But curiously, when
there is no iota of doubt in the version of the respondent, her case has been
wrongly disbelieved. Even the dismissal of the two criminal cases preferred
by either side cannot be put against the respondent, because she is always
ready and willing to live with her husband, inasmuch as her daughter, born
on 5.1.2012, is also now aged about 10 years. Secondly, the minor
daughter's education is being taken care of only by the respondent, who is
also eking out her livelihood as a teacher in an aided school with a meagre
income. Thirdly, as a dutiful father, till date, the appellant has not even
come forward to pay the maintenance as ordered by the Family Court and
there is accumulation of arrears. Although the respondent is earning, the
appellant ought to have come forward to pay the reasonable monthly
maintenance to her daughter. That also has not been taken care of. That
shows his conduct. The learned counsel also stated that since both the
parties have prosecuted each other, the evidence on record shows that they
may not be able to live together in future. Therefore, the findings and
conclusions reached by the learned Judge, Family Court, Dharmapuri being
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unassailable, do not call for any interference.
4. But we are unable to find any justification on the contentions of the
respondent's counsel. Moreover, the findings recorded by the learned
Judge, Family Court, Dharmapuri do not appeal to us, for the following
reasons. Firstly, when the marriage was solemnized on 17.4.2011,
thereafter, the parties were not living happily. When the appellant has taken
out a petition under Section 13(1)(i-a) of the Hindu Marriage Act charging
the respondent that she had committed several instances of cruelty, two of
the instances were also brought before us by the appellant. Finally the
judgment dated 7.11.2020 passed in C.C.No.116 of 2014 by the learned
Judicial Magistrate, Palacode clearly shows that the appellant's mother, aged
62 years, was taken to the police station and remanded to judicial custody,
not only once but twice. Again the unmarried sister of the appellant was also
remanded to judicial custody on the basis of the complaint given by the
respondent. But when the veracity of the complaint was looked into,
nowhere the trial Court, while considering the prosecution case, has agreed
and accepted the charge levelled against the appellant, his mother and his
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unmarried sister.
5. Learned counsel appearing for the appellant submitted that with
great difficulty, the appellant and his aged father escaped from the clutches
of the false case. While they were carrying on the agricultural activities in
the field, after knowing the arrival of police and nabbing the old mother and
the unmarried sister, but for their escape, they would have also been put to
unthinkable mental agony, physical cruelty and humiliation in the eyes of
the public. In any event, when the unmarried sister of the appellant was
twice arrested and remanded to judicial custody, with great difficulty, they
were able to find a good alliance and if the respondent comes back, this
would once again endanger her matrimonial life.
6. We also agree with the said argument advanced by the learned
counsel appearing for the appellant. The reason being, it is a well settled
legal position that when either of the spouse to the marriage files a false
criminal case leading to the arrest and remand into judicial custody of the
family members of the other, that would indicate that there has been a
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substantial physical and mental cruelty caused by the one who has set the
law into motion by filing a false case. Useful reference can be had from the
judgment of the Apex Court in K.Srinivas v. K.Sunita, (2014) 16 SCC 34
holding that filing of false criminal complaint by the wife against husband
and his family members constitutes matrimonial cruelty. The relevant
paragraphs of the said judgment are extracted hereunder:-
“ 1. In this appeal, the counsel for the appellant has
sought to draw our attention to all the arguments
that had been addressed before the High Court on
behalf of the appellant-husband in support of his
claim for dissolution of his marriage to the
respondent by a decree of divorce under Section
13(1)(i-a) of the Hindu Marriage Act, 1955. We
have, however, restricted him to the ground of
alleged cruelty on account of the filing of a
criminal complaint by the respondent against the
appellant and several members of his family under
Sections 498-A and 307 of the Penal Code, 1860
(IPC). We did this for the reason that if this ground
is successfully substantiated by the petitioner, we
need not delve any further i.e. whether a marriage
can be dissolved by the trial court or the High
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Court on the premise that the marriage has
irretrievably broken down. This nature of cruelty,
in the wake of filing of a false criminal case by
either of the spouses, has been agitated frequently
before this Court, and has been discussed so
comprehensively and thoroughly that yet another
Judgment on this well-settled question of law,
would be merely a waste of time. A complete
discourse and analysis on this issue is available in
a well- reasoned judgment in K.Srinivas Rao v.
D.A.Deepa, (2013) 5 SCC 226, in which numerous
decisions have been cited and discussed. It is now
beyond cavil that if a false criminal complaint is
preferred by either spouse it would invariably and
indubitably constitute matrimonial cruelty, such as
would entitle the other spouse to claim a divorce.
5.......This, it seems to us, is clearly indicative
of the fact that the criminal complaint was a
contrived afterthought. We affirm the view of the
High Court that the criminal complaint was “ill
advised”. Adding thereto is the factor that the High
Court had been informed of the acquittal of the
appellant-husband and members of his family. In
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these circumstances, the High Court ought to have
concluded that the respondent-wife knowingly and
intentionally filed a false complaint, calculated to
embarrass and incarcerate the appellant and seven
members of his family and that such conduct
unquestionably constitutes cruelty as postulated in
Section 13(1)(i-a) of the Hindu Marriage Act.
7. In these circumstances, we find that the
appeal is well founded and deserves to be allowed.
We unequivocally find that the respondent-wife
had filed a false criminal complaint, and even one
such complaint is sufficient to constitute
matrimonial cruelty.
8. We, accordingly, dissolve the marriage of
the parties under Section 13(1)(i-a) of the Hindu
Marriage Act. The parties shall bear their
respective costs.”
7. Further, a Division Bench of this Court in the case of
Bhunaveswari v. S.K.Jayakumar, 2021 SCC Online Madras 371, in which
one of us (TRJ) is a party, placing reliance on another Division Bench
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judgment in Suguna v. Kubendiran, 2017 (1) CTC 695 holding that if the
acts of the wife are of such quality or magnitude and consequence as to
cause pain, agony and suffering to the husband thereby would amount to
cruelty in matrimonial law, refused to interfere with the reasonings and
conclusions reached by the trial Court for granting the decree of divorce.
8. When the legal position is well settled, we are of the considered
view that the learned Judge, Family Court, Dharmapuri has committed a
serious error in overlooking the judgments passed by the learned Judicial
Magistrate, Palacode. Therefore, when both the parties have prosecuted
each other, we are of the considered view that they will not be able to live
peacefully. In view of the above, the impugned fair and decretal order
passed by the learned Judge, Family Court, Dharmapuri is set aside and
accordingly, the civil miscellaneous appeal stands allowed. Consequently,
the petition filed by the appellant in F.C.H.M.O.P.No.107 of 2016 under
Section 13(1)(i-a) of the Hindu Marriage Act on the file of the Family
Court, Dharmapuri stands allowed and there shall be a decree of divorce as
prayed for.
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9. However, while looking into Section 25 of the Hindu Marriage
Act, when the respondent, employed as a teacher in an aided school, is also
taking care of her daughter aged about 10 years, we asked the learned
counsel appearing for the appellant to spell out as to how much he can pay
as lump sum, in the interest of the daughter's future. In reply, the learned
counsel submitted that in addition to the sum of Rs.4,00,000/- towards
arrears of maintenance, the appellant is willing to pay a further sum of
Rs.10,00,000/- within a reasonable time. Considering the fact that the
respondent is maintaining and taking care of her minor daughter, who is
now aged about 10 years, we hereby direct the appellant to pay a lump sum
of Rs.15,00,000/- inclusive of the arrears of maintenance, directly to the
respondent within a period of three months from the date of receipt of a
copy of this order.
10. The civil miscellaneous appeal stands allowed in the above terms.
However, there is no order as to costs.
Speaking/Non speaking order (T.R.,J.) (D.B.C., J.)
Index : yes/no 08.12.2021
ss
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C.M.A.No.255 of 2018
To
1. The Judge
Family Court
Dharmapuri
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C.M.A.No.255 of 2018
T.RAJA, J.
and
D.BHARATHA CHAKRAVARTHY, J.
ss
C.M.A.No.255 of 2018
08.12.2021
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