Madras High Court
Mrs.Narmatha vs Mr.J.Murali on 25 January, 2021
C.M.A.Nos.574 & 575 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.01.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
AND
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
C.M.A.Nos.574 & 575 of 2018
Mrs.Narmatha
W/o J.Murali .. Appellant in both the Appeals
-vs-
Mr.J.Murali .. Respondent in both the Appeals
Memorandum of Grounds of Civil Miscellaneous Appeals filed under
Section 19(1) of the Family Courts Act, 1984, against the common order
and decree dated 4.12.2017 made in H.M.O.P.Nos.32 & 2690 of 2013 on
the file of the III Additional Principal Judge, Family Court, Chennai.
For Appellant :: Mr.C.R.Malarvannan
For Respondent :: Mr.R.Vasudevan
JUDGMENT
(Judgment of the Court was made by T.RAJA, J.)
These two civil miscellaneous appeals have been directed against the
impugned common order and decree dated 4.12.2017 made in
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H.M.O.P.Nos.32 & 2690 of 2013 by the learned III Additional Principal
Judge, Family Court, Chennai.
2. Mrs.Narmatha, having lost her prayer for restitution of conjugal
rights under Section 9 of the Hindu Marriage Act in H.M.O.P.No.2690 of
2013 and also being aggrieved by the dissolution of marriage granting
divorce in H.M.O.P.No.32 of 2013, has filed these civil miscellaneous
appeals.
3. Mr.C.R.Malarvannan, learned counsel appearing for the
appellant/wife pleaded that after the solemnization of marriage on 17.2.2010
between the parties at Sri Krishna Mahal, Nos.91-A & 91-B, North Park
Street, Venkatapuram, Ambattur, Chennai, as per the Hindu rites and
customs in the presence of well wishers of both family members, both the
husband and wife were leading a comfortable and happy life. During the
stay at the appellant's parental home, there was no discomfort caused to the
respondent/husband. But it was the allegation of the respondent/husband
that during the stay at his wife's place, he is said to have faced some
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insulting and embarrassing situation, because his wife's parents treated the
respondent like a servant. In view of the above allegation, they proceeded to
shift the place of residence to Anupuram nearby Kalpakkam, where the
respondent was working. It was the further allegation of the respondent that
after moving away the residence to Anupuram, it was alleged that the
appellant's attitude completely changed, because the appellant is said to
have not respected the respondent/husband, as she was all the time scolding
his parents and other family members. However, in the meanwhile, a girl
child was born on 18.12.2011 who is named as M.Shanmitha. Thereafter,
when the first birthday function of their child was celebrated on 18.10.2012,
the respondent/husband has tried to make out a case against the
appellant/wife and he has also filed a petition for divorce under Section
13(1)(i-a) of the Hindu Marriage Act alleging that the appellant was causing
mental cruelty. Yet another ground taken in the petition was really alarming,
since he has alleged that the appellant was frequently talking to her boy
friend one Mr.Chandrasekar. When the appellant knew Mr.Chandrasekar
while she was employed before marriage in Hewlett Packard (HP) as a
marketing executive, the appellant at no point of time met the said
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gentleman. But when the respondent was also well aware of the appellant's
office colleague, mistaking the few phone calls made out to him, the
respondent has tarnished the image of the appellant in the petition filed for
divorce, as though the appellant has been frequently talking to the said
gentleman and that incident had caused mental cruelty to him. Yet another
allegation made against the appellant in the said petition was that she used
to abuse the respondent and his family members with filthy language, which
was not correct. In one place in the petition for divorce, the respondent has
also unfairly alleged that the appellant has treated the respondent as slave
and she also used to throw hot coffee and other articles on him, which was
also not correct. Moreover, these averments and allegations were not even
established before the trial Court. When the respondent has filed the
petition charging the appellant/wife that she was treating the
respondent/husband as slave and that she was also throwing hot coffee and
other articles on him, neither of the allegation was substantiated before the
trial Court. However, during the pendency of the said petition, as the
respondent/husband has sought for a decree for dissolution of marriage, the
appellant also filed H.M.O.P.No.2690 of 2013 under Section 9 of the Hindu
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C.M.A.Nos.574 & 575 of 2018
Marriage Act seeking restitution of conjugal rights. In the petition for
divorce invoking Section 13(1)(i-a) of the Hindu Marriage Act, the
appellant also filed a detailed counter affidavit. After sometime, when the
matters were taken up, the appellant was able to establish that she was all
the time ready and willing to live with the respondent not only for herself
but also for the future career of her girl child. When the appellant has been
agitating all along by filing the petition under Section 9 of the Hindu
Marriage Act seeking restitution of conjugal rights, every allegation made
against the appellant by the respondent/husband that the appellant/wife has
caused mental cruelty that has consequently led to the dissolution of
marriage, should have been rejected by the trial Court, inasmuch as the
respondent/husband has taken out a petition for divorce, for the simple
reason that she filed a domestic violence case in D.V.C.No.6 of 2014 before
the Tirukalukundram Judicial Magistrate Court seeking right of residence to
live with the respondent, that goes without saying that the appellant was all
along craving for reunion and also in the alternative to live with him in his
own house along with the girl child. But this has not been properly
appreciated by the trial Court and wrongly going to a non-issue that the
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C.M.A.Nos.574 & 575 of 2018
filing of the D.V.C.No.6 of 2014 before the Tirukalukundram Judicial
Magistrate Court seeking right of residence and filing one another case
before the Mahabalipuram All Women Police Station stating that she was
facing life threat from the respondent, the trial Court mistaking the genuine
efforts shown by the appellant, wrongly proceeded as though the appellant
has caused mental cruelty to the respondent. Even today, the appellant is
ready for living together. When the respondent has not even shown any
response for reunion, the appellant was left with no other option but to
move the application seeking maintenance for herself and her child.
Therefore, the filing of application seeking monthly maintenance and also
moving another application before the Tirukalukundram Judicial Magistrate
Court seeking right of residence, cannot be taken as the reason or
foundation for causing mental cruelty. Although eight long years had rolled
away, still the appellant is ready and willing to live with the
respondent/husband. Therefore, by setting aside the impugned common
order and decree passed by the trial Court, both the civil miscellaneous
appeals be allowed, he pleaded.
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4. We heard Mr.R.Vasudevan, learned counsel appearing for the
respondent also.
5. Although the learned counsel appearing for the
respondent/husband took us through the entire evidence and also the
averments made by the respondent/husband in the petition for divorce filed
under Section 13(1)(i-a) of the Hindu Marriage Act and also the averments
made by the appellant/wife in the petition for restitution of conjugal rights
filed under Section 9 of the Hindu Marriage Act to show that the respondent
was made to face innumerable incidents of mental cruelty, we were unable
to appreciate why the respondent/husband has been fighting against his own
wife forgetting the future career of the innocent girl child, for the reason
that when major allegations were put against the appellant/wife that she
used to treat the respondent/husband as slave when they were living
together at the appellant's parental home immediately after the marriage,
that she used to throw hot coffee and other articles on him, literally
speaking, as these two allegations could not be established by the
respondent/husband herein, we were not inclined to accept his case. But, all
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of a sudden, when the learned counsel appearing for the respondent/husband
took us through the Advocate Commissioner's report dated 16.12.2014, the
incidents of mental cruelty alleged for passing the decree for dissolution of
marriage could not be simply disbelieved. It is pertinent to extract the
relevant paragraphs of the report filed by the learned Advocate
Commissioner, who was appointed by the trial Court to visit the residence
of the husband at Anupuram to enable the respondent to take away the
articles belonging to him, reading thus:
“9. I humbly submit that when the petitioner
informed about the non-working of computer,
camera, iron box and missing of tools to me, the
respondent/wife scolded the petitioner in my
presence and used some unparliamentary words
against the petitioner and she was supported by
her father and I requested both of them to keep
quiet even inspite of my repeated request they
have been continuously murmuring and created
some unwanted scenes and on some occasions
they threw some materials outside the premises
and asked the petitioner to take them from outside
the premises.
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10. I humbly submit that the petitioner informed
me that the AEECS membership card was inside
two step drawer and requested the respondent to
deliver the key of the said drawer. Originally the
respondent refused to deliver the key and
subsequently she said she don't have the key.
Hence in the presence of all of us the drawer lock
was broken but the said AEECS membership card
was not there and the petitioner further informed
me that the cash was also not available. After
break open of the drawer the respondent laughed
and shouted.
11. I humbly submit that except the said few
incidents the petitioner was able to take most of
the articles as mentioned in the warrant and we
have completed the procedures at 12.40 P.M.
12. I humbly submit that the petitioner with the
help of his helpers brought the above said articles
and kept inside of the travera car and when we
came out of the premises, the respondent's
chithappa (maternal uncle) along with his men
used filthy language against the petitioner and
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threatened him.
13. I hereby submit the report with the above said
observations and I hereby return the warrant
issued by this Hon'ble Court.”
6. The above incidents picturized by the learned Advocate
Commissioner in his report dated 16.12.2014 really brought before us the
cruel and painful conduct as well the behaviour of the appellant/wife. As a
matter of fact, we are able to imagine that when the appellant/wife had
misbehaved so badly even in the presence of the learned Advocate
Commissioner sent by the Court below by not only throwing the articles
belonging to the respondent/husband, but also shouting and humiliating the
respondent/husband to go and pick them up from the place where she threw
the articles and valuable things, we do not think that we must search for any
more evidence to disbelieve the case of mental cruelty and also physical
cruelty underwent by the respondent husband.
7. We also wish to point out one more evidence that deserves a
mention herein. When there was an allegation by the respondent that his
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wife without any reason or justification filed the domestic violence case
against his entire family members, during cross examination, few questions
were posed to her by the husband's counsel. One of the questions was
whether the parents or her husband's brother and sister had prevented her
from staying in the house, she clearly said 'No'. The second question
therefore put to her was that when the family members of the respondent
have not prevented her from using the house, was there any necessity or
reason for lodging the case of domestic violence against the members of her
husband's family, the answer of the appellant shows that she filed the said
case for no reason at all. Moreover, the incidents created by the
appellant/wife by throwing away the articles from the respondent's house
and shouting at her husband to go and collect them from outside in the
presence of the learned Advocate Commissioner, clearly portrays that even
the allegation made by the respondent that his wife used to throw hot coffee
and some articles on him and also used to treat him as slave, appeared to be
true.
8. The Apex Court in Pankaj Mahajan v. Dimple alias Kajal, (2011)
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C.M.A.Nos.574 & 575 of 2018
12 SCC 1, while culling out various instances of cruelty from the pleadings
and evidence and how the acts of one party would constitute cruelty, in
paragraphs 36 & 37, has held 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.
(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
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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.
(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
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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
possibility to unite the chain of marital life
between the appellant husband and the respondent
wife.”
9. As the report of the learned Advocate Commissioner, in the case on
hand, gives a clear picture about the quarrelsome attitude and behaviour of
the appellant wife towards the respondent husband and also his family
members even in his presence, we are of the considered opinion that the
appellant wife has caused repeated mental and physical cruelty to her
husband. When the conduct & behaviour of the appellant seen and recorded
by the learned Advocate Commissioner were not even objected, that
clearly speak that she indeed did not mend her ways to come and live with
her husband and that the proof of mental cruelty explained in the report of
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the learned Advocate Commissioner is sufficient enough for granting the
decree of dissolution of marriage, therefore, we do not find any justification
to interfere with the impugned common order and decree passed by the trial
Court granting the decree of divorce, while dismissing the petition for
restitution of conjugal rights.
10. Therefore, for all the aforementioned reasons, both the civil
miscellaneous appeals filed by the appellant are dismissed. Consequently,
interim order stands vacated and the C.M.P.No.5060 of 2018 is also
dismissed. No costs.
Speaking/Non speaking order (T.R.,J.) (G.C.S., J.)
Index : yes/no 25.01.2021
ss
To
1. The III Additional Principal Judge
Family Court
Chennai
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C.M.A.Nos.574 & 575 of 2018
T.RAJA, J.
and
G.CHANDRASEKHARAN, J.
ss
C.M.A.Nos.574 & 575 of 2018
25.01.2021
https://www.mhc.tn.gov.in/judis/
