Madras High Court
Mrs.Bhuvaneswari vs Mr.S.K.Jayakumar on 20 January, 2021
C.M.A.No.3829 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.01.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
AND
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
C.M.A.No.3829 of 2019
Mrs.Bhuvaneswari
D/o Nagarajan
W/o Jayakumar .. Appellant
-vs-
Mr.S.K.Jayakumar .. Respondent
Memorandum of Grounds of Civil Miscellaneous Appeal filed under
Section 19 of the Family Courts Act, 1984, against the order and decree
dated 19.11.2018 made in F.C.O.P.No.36 of 2013 on the file of the Family
Court, Salem.
For Appellant :: Mr.G.Saravanabhavan
For Respondent :: Mr.S.Xavier Felix
1/19
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JUDGMENT
(Judgment of the Court was delivered by T.RAJA, J.)
Mrs.Bhuvaneswari, Wife of Mr.S.K.Jayakumar has brought forth this
civil miscellaneous appeal, having been aggrieved by the judgment and
decree dated 19.11.2018 passed in F.C.O.P.No.36 of 2013 by the learned
Family Court Judge, Salem, dissolving the marriage solemnized on
16.2.2011 between the parties under Section 13(1)(i-a) of the Hindu
Marriage Act, 1955, accepting the case of the respondent/husband that the
appellant/wife has caused mental cruelty under Section 13(1)(i-a) of the
Hindu Marriage Act, 1955.
2. Mr.G.Saravanabavan, learned counsel appearing for the
appellant/wife pleaded that when the marriage between the parties was
solemnized on 16.2.2011 at Uthumalai Sri Balasubramaniar Sri Chakara
Devi Thirukoil, Seelanaickenpatti, Salem, as per the Hindu rites and
customs, in the presence of well-wishers of both the families, they were
living happily. The respondent/husband was employed as software engineer
in a private concern and was residing at Chennai, whereas the
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appellant/wife, employed as software engineer in IBM company at
Bengaluru, was earning a sum of Rs.7,50,000/- per annum. Although the
matrimonial life of the parties had commenced initially at Salem, they later
shifted to Chennai and continued their matrimonial ties. However, making
false allegations that even prior to marriage, the mother of the appellant as
well as the appellant started to pass ill-comments against the respondent and
his family members, that the appellant has been attempting to physically
assault the respondent/husband by using filthy words and that she used to
threaten the respondent that a false case would be lodged for inducing her to
commit suicide and that under the guise of delivery, she left the matrimonial
home four months prior to the delivery of the girl child on 9.8.2012 and till
date, she has not even come back to resume the matrimonial life, which in
turn had caused continuous mental cruelty to the respondent herein and his
family members, the respondent has filed the petition for divorce under
Section 13(1)(i-a) of the Hindu Marriage Act before the Family Court,
Salem.
3. Opposing the above prayer, a detailed counter affidavit has been
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filed refuting the allegations made by the respondent/husband that he has
not given silk sarees worth Rs.25,000/-, that the marriage reception
expenses of Rs.4,00,000/- was not met by the respondent, that in order to
pay the monthly instalments, the respondent/husband used to avail the ATM
card of the appellant till February, 2014 and that in order to pay the advance
amount of Rs.5,00,000/- for purchase of a house, the respondent had also
sold out the gold jewels of the appellant. Moreover, when the appellant and
the respondent were blessed with a girl child, only the mother of the
respondent alone visited the hospital to see the newly born child and they
never came up to the house of the appellant to see them. Besides, when the
naming ceremony of the child was held, the respondent alone came, but
none of his family members attended the function. In addition thereto, it was
specifically averred that even on the day of naming ceremony of the child,
the respondent came and quarrelled with the appellant that on that date
itself, he intended to take back the appellant along with the child to the
matrimonial home. However, under the guise of calling the auto-rickshaw,
the appellant left the place at about 11.00 A.M., and during the month of
January, 2013, he has suddenly filed the present petition seeking divorce
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against the respondent/wife, which is unjust and unfair. Therefore, it was
pleaded before the trial Court that for the simple reason that the appellant is
black in complexion, the respondent and his family members have not even
entertained the appellant/wife. Moreover, when the mother of the
respondent also unfairly used to coerce the respondent/husband to divorce
the appellant accepting the frivolous request made by the family members,
the petition for divorce should have been dismissed. Even a cursory reading
of the petition filed by the respondent before the Family Court, Salem
clearly shows that the respondent/husband has filed the petition for divorce
on the ground of cruelty under Section 13(1)(i-a) of the Hindu Marriage
Act, 1955. But, whereas, paragraph-46 of the impugned judgment reflects
clearly that the trial Court has travelled beyond the pleadings and has
erroneously given a finding on the ground of desertion that was not even
asked for by the respondent/husband. Therefore, the findings and
conclusions reached by the trial Court for granting the decree of divorce by
dissolving the marriage solemnized on 16.2.2011 between the parties, are
liable to be set aside by allowing this appeal.
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4. Mr.S.Xavier Felix, learned counsel appearing for the
respondent/husband, opposing the above arguments, pleaded that when the
marriage was solemnized on 16.2.2011 between the parties as per the Hindu
rites and customs at Uthumalai Sri Balasubramaniar Sri Chakara Devi
Thirukoil, Seelanaickenpatti, Salem, even before the marriage, the
appellant's family was not showing any courtesy to the members of the
respondent's family. Every time the appellant/wife used to make false
allegations against the respondent and his family members. In support of his
submission, Mr.Xavier Felix, drawing our attention to the pleadings made
by the appellant in the counter affidavit, demonstrated that when the
appellant has filed the counter affidavit before the trial Court refuting the
averments made in the petition for divorce, she has denied the factum of
purchase of marriage sarees worth Rs.25,000/- and also denied yet another
factum of marriage reception expenses of Rs.4,00,000/- spent by the
respondent/husband. Whereas, when she stood in the witness box before the
Family Court, she has taken a diametrically opposite stand and conceded
before the Family Court that the marriage photographs produced before the
Family Court showing her appearance with three silk sarees were presented
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by the respondent/husband, which would be worth about Rs.25,000/-.She
also further admitted before the Family Court during the enquiry that it is
the usual customary practice of the husband's family to meet out the
marriage expenses that would be around Rs.4,00,000/-. Therefore, when the
appellant/wife has come to the Family Court with unclean hands that she
was all the time pleading a false case, the Court below, bearing in mind the
averments made in the counter affidavit filed to the divorce petition and the
oral testimony made before the Court, disbelieved her entire averments.
Moreover, when she left the respondent/husband in the guise of delivery
four months before the birth of the girl child on 9.8.2012, she did not even
come back to resume the matrimonial bond.
5. Arguing further, learned counsel appearing for the
respondent/husband further pleaded that when the respondent/husband has
undergone many nightmares at the hands of the appellant/wife within few
months from the date of marriage and he has consistently pleaded that she
was not showing any interest to cooperate with the respondent/husband to
lead a normal matrimonial life, specifically pleading that she is not even
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cooperating for cohabitation, nothing has prevented the appellant to move
an application invoking Section 9 of the Hindu Marriage Act, 1955 for
restitution of conjugal rights. When the appellant/wife is a software
engineer employed in IBM company at Bengaluru, she could have been well
advised not to move any application for restitution of conjugal rights, for
the reason that once the application is filed, the Family Court was expected
to answer the said application either in favour of the appellant/wife or the
respondent/husband. Learned counsel appearing for the respondent/husband
also pleaded that once the application invoking Section 9 of the Hindu
Marriage Act for restitution of conjugal rights is filed, the ground of divorce
sought under Section 13(1)(i-a) of the Hindu Marriage Act would normally
disappear. But in the present case, the appellant/wife has deliberately
chosen not to move any application under Section 9 of the Hindu Marriage
Act. Such a conduct clearly shows that the respondent/husband was justified
in seeking divorce under Section 13(1)(i-a) of the Hindu Marriage Act,
1955 on the ground that his wife was all the time causing mental cruelty by
getting herself away from the matrimonial home and that she has deserted
the respondent. Therefore, the trial Court, rightly reading the case of both
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parties, has given a clear finding that the appellant/wife was responsible for
causing mental cruelty to the respondent and his family members by
choosing to live away from the matrimonial home. Yet another fact that was
conceded by the appellant also needs to be reiterated here with emphasis
that when the respondent/husband unfortunately met with an accident on
20.6.2012 and was undergoing inpatient treatment at the Apollo Hospital,
Chennai for a period of 45 days, for the reasons best known to the appellant,
who claims to be a dutiful wife, did not even bother to visit her husband in
the hospital bed for 45 days. The said act also clearly shows that the
appellant has willfully and intentionally deserted the respondent/husband.
6. We also find merits on the submissions made by Mr.S.Xavier
Felix, learned counsel appearing for the respondent/husband, for the
following reasons.
7. When the marriage of the parties was solemnized on 16.2.2011 at
Uthumalai Sri Balasubramaniar Sri Chakara Devi Thirukoil,
Seelanaickenpatti, Salem as per the Hindu rites and customs, it may be
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mentioned herein that both the appellant and the respondent are well placed,
as both of them are software engineers and that the respondent is employed
in a private concern at Chennai and the appellant is employed in IBM
company at Bengaluru earning a handsome salary of Rs.7,50,000/- per
annum. When the appellant and the respondent are well educated, it is
expected that when they are coming to Court, they cannot take an
inconsistent stand to blow hot and cold simultaneously, that would be
considered as rudimentary disqualification for even considering their case.
Admittedly, when the respondent/husband filed the petition for divorce
under Section 13(1) (i-a) of the Hindu Marriage Act before the Family
Court, Salem in F.C.O.P.No.36 of 2013 listing out the various unpleasant
experiences faced by him and his family members, the appellant/wife, in her
counter affidavit, started denying the purchase of marriage silk sarees worth
about Rs.25,000/- given to her. Again she also vehemently denied the
marriage reception expenses of Rs.4,00,000/- spent by the
respondent/husband. The appellant also pleaded that when her husband
pressurized her to purchase a house at Chennai for a sum of Rs.55,00,000/-,
in order to pay the advance amount of Rs.5,00,000/-, the
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respondent/husband sold away her gold jewels. However, the
appellant/wife, after stepping into the witness box, has clearly admitted
before the trial Court that her husband only had presented the three marriage
silk sarees worth about Rs.25,000/- and she also further admitted the
incurring of the marriage reception expenses of Rs.4,00,000/- by her
husband. Secondly, when she alleged that her husband only pressurized her
to purchase a house at Chennai for a sum of Rs.55,00,000/- by selling away
her gold jewels so as to pay the advance of Rs.5,00,000/-, she has not even
indicated which jewel either bangle or gold chain or any other gold
ornament was sold away for such purpose. That clearly shows that she was
oblivious of making a wrong statement before the Court blowing hot and
cold.
8. Secondly, the appellant being well educated and working as
software engineer in the IBM company at Bengaluru, ought not to have
taken a false stand either before the trial Court or before this Court. As a
matter of fact, the trial Court also has vividly indicated that the appellant
has clearly and categorically admitted the factum of payment of advance
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amount of Rs.5,00,000/- for purchase of the house, which is extracted as
follows:-
“kDjhuh; vd;Dila eiffis
tpw;Wjhd; Kjy; jtiz U:/5 yl;rj;ij
fl;odhh; vd;W brhy;ypapUf;fpnwd;/
ve;bje;j eiffis mth; vg;nghJ
tpw;whh; vd;W ehd; Fwpg;gpl;L
brhy;ytpy;iy/”
9. Thirdly, when the appellant, as highlighted above, is a software
engineer and employed in the IBM company at Bengaluru, after hearing the
news that her beloved husband met with an accident on 20.6.2012 and
subsequently taken to Apollo Hospitals, Chennai, where he was undergoing
treatment as an inpatient for a period of 45 long days, it is not known why
the appellant, as a dutiful wife, or her family members refused to visit him at
the hospital. That clearly shows that the appellant/wife has miserably failed
to show any iota of trust as a dutiful wife to her husband.
10. In addition thereto, when the respondent/husband took out an
application seeking a decree of divorce to dissolve the marriage solemnized
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on 16.2.2011 before the Family Court, Salem, nothing prevented the
appellant/wife to move an application invoking Section 9 of the Hindu
Marriage Act for restitution of conjugal rights. In fact, when the
F.C.O.P.No.36 of 2013 was pending for consideration from 21.1.2013 till
the date of disposal on 19.11.2018 i.e., for a period of five long years, we do
not find any justification on the part of the appellant/wife not to move any
application for restitution of conjugal rights. That clearly shows that at no
point of time she was showing any interest to resume or rejoin the
matrimonial home.
11. It is also relevant to mention herein that before the Family Court
proceeded to answer the issue raised on merits, it has also taken into
account the conduct of the parties. When both the parties were directed to
explore the chances for reconciliation, they were unable to arrive at an
amicable settlement, therefore, the matter was sent back to the Family
Court. When the trial Court has also taken sufficient care to unite the
parties, unfortunately, they did not come forward to reconcile their ifs and
buts.
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12. In the case on hand, the trial Court, to support its reasonings and
conclusions, has rightly relied on the judgment of a Division Bench of this
Court in the case of Suguna v. Kubendiran, 2017 (1) CTC 695, wherein it
has been held 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, the
same would amount to cruelty in matrimonial law for granting the decree of
divorce. The Supreme Court has ruled that the Court, before granting
divorce, should be satisfied whether the husband or wife pleading divorce
on the ground of mental cruelty, has placed ample evidence on record to
substantiate his/her claim. Going further, the Apex Court has also indicated
several instances of cruelty in Pankaj Mahajan v. Dimple alias Kajal,
(2011) 12 SCC 1, in paragraphs 36 & 37, which read as follows:-
“36. From the pleadings and evidence, the
following instances of cruelty are specifically
pleaded and stated. They are:
(i) Giving repeated threats to commit suicide and
even trying to commit suicide on one occasion by
jumping from the terrace.
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(ii) Pushing the appellant from the staircase
resulting into fracture of his right forearm.
(iii) Slapping the appellant and assaulting him.
(iv) Misbehaving with the colleagues and relatives
of the appellant causing humiliation and
embarrassment to him.
(v) Not attending to household chores and not even
making food for the appellant, leaving him to fend
for himself.
(vi) Not taking care of the baby.
(vii) Insulting the parents of the appellant
and misbehaving with them.
(viii) Forcing the appellant to live separately
from his parents.
(ix) Causing nuisance to the landlord's
family of the appellant, causing the said landlord
to force the appellant to vacate the premises.
(x) Repeated fits of insanity, abnormal behaviour
causing great mental tension to the appellant.
(xi) Always quarrelling with the appellant and
abusing him.
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(xii) Always behaving in an abnormal manner and
doing weird acts causing great mental cruelty to
the appellant.
37. All these factual details culled out from the
pleadings and evidence of both the parties clearly
show the conduct of the respondent wife towards
the appellant husband. With these acceptable facts
and details, it cannot be concluded that the
appellant husband has not made out a case of
cruelty at the hands of the respondent wife. We are
satisfied that the appellant husband had placed
ample evidence on record that the respondent wife
is suffering from "mental disorder" and due to her
acts and conduct, she caused grave mental cruelty
to him and it is not possible for the parties to live
with each other, therefore, a decree of divorce
deserves to be granted in favour of the appellant
husband. In addition to the same, it was also
brought to our notice that because of the
abovementioned reasons, both appellant husband
and the respondent wife are living separately for
the last more than nine years. There is no
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possibility to unite the chain of marital life
between the appellant husband and the respondent
wife.”
13. In the light of the above, if the case of the appellant/wife is taken
up for examination, the respondent/husband has brought home the charges
of mental cruelty as enunciated in clauses (vii), (xi) & (xii) of paragraph-36
of the aforesaid judgment that his wife has been insulting his parents and
that she has been quarrelling with him and abusing him every now and then.
Besides, she was always behaving in an abnormal manner, causing great
mental cruelty to the respondent. Therefore, when all these factual details
from the pleadings and evidences of both parties clearly show that the
conduct of the appellant/wife towards her husband has been substantiated,
resultantly, they are living separately for more than seven long years, we are
of the view that it is not possible to unite the chain of marital life between
them. Accordingly, finding no infirmity or error in the judgment and decree
passed by the Family Court, Salem granting the decree of divorce by
dissolving the marriage solemnized on 16.2.2011 between the parties on the
ground of cruelty under Section 13(1)(i-a) of the Hindu Marriage Act,
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1955, the civil miscellaneous appeal is dismissed. However, there is no
order as to costs.
Speaking order (T.R.,J.) (G.C.S., J.)
Index : yes 20.01.2021
ss
To
1. The Family Court Judge
Salem
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C.M.A.No.3829 of 2019
T.RAJA, J.
and
G.CHANDRASEKHARAN, J.
ss
CM.A.No.3829 of 2019
20.01.2021
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