Madras High Court
Dr.Angayarkanni @ Kayal vs Dr.T.E.Balaji on 27 January, 2021
CMA No.2360 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.01.2021
CORAM:
THE HONOURABLE MR. JUSTICE T.RAJA
and
THE HONOURABLE MR. JUSTICE G.CHANDRASEKHARAN
CMA No.2360 of 2019
Dr.Angayarkanni @ Kayal ... Appellant
Vs.
1. Dr.T.E.Balaji
2. Baskar
3. Shikendar
4. Madhavan
(Respondents 2 to 4 given up) ... Respondents
This Civil Miscellaneous Appeal is filed under Section 19 of the
Family Court Act, 1984 against the order and decree dated 14.03.2017 made
in FCOP No.62 of 2017 on the file of Family Court, Salem.
For Appellant : Mr.K.S.Karthik Raja
For Respondent-1 : Mr.S.Thankasivan
1/13
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CMA No.2360 of 2019
JUDGMENT
(Judgment of the Court was made by G.CHANDRASEKHARAN.J)
This Civil Miscellaneous Appeal is filed against the order of the
learned Family Court Judge, Salem in FCOP No.62 of 2017.
2. The first respondent, as the petitioner, filed FCOP No.62 of 2017
under Sections 13(1)(i) & (i-a) of Hindu Marriage Act on the grounds of
adultery and cruelty to dissolve the marriage between the first respondent
and appellant that took place on 01.07.1999.
3. It is seen from the petition averments that the marriage between the
appellant and the first respondent took place on 01.07.1999. Both the first
respondent and appellant are Doctors and they are blessed with two
children, namely B.Sruthi and B.Prajeth Raghav. It is the case of the first
respondent that the appellant used to pick up quarrel with the first
respondent and often abused his parents and relatives even on frivolous
issues. Faced with incessant mental cruelty, the first respondent filed a
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CMA No.2360 of 2019
divorce petition in the year 2001. The appellant gave a petition before the
All Women Police Station, Ammapet. After counselling with the appellant,
the first respondent reunited with her, resultantly he also came forward not
to press the divorce petition. Thereafter, the first respondent purchased the
house in the name of the appellant. However, the appellant has not taken
care of the well being of the first respondent and children. For the last one
year, the appellant refused to share bed with the first respondent. Moreover,
the appellant used to spend the night time with her mobile phone by making
voice calls and chatting with her paramours and several other persons hours
together in a separate room. Therefore the first respondent, getting
reasonable apprehension that his wife is leading adulterous life and unable
to bear the torture given by her, finally approached a private detective for
assistance and as such, the private detective, namely, Chandran at Chennai,
had also instructed the first respondent to give a new mobile phone to his
wife with a software flexipy installed in it. Accordingly, the first respondent,
after purchasing a new mobile phone viz., Samsung 17-OOF
(I.M.E.I.No.358425074294395), also purchased the said flexipy software
with licence and installed the same in the said mobile phone and thereafter
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CMA No.2360 of 2019
gifted the phone to his wife in July, 2016. After sometime, it was found
through that software the exact call details and online chats of his wife with
her paramours. In addition thereto, his daughter being a school topper in her
academic side stood first in Chennai district in her 10th Matriculation Board
Examination and his son was a small kid studying 7th Standard.
4. Later on, it was also further alleged that the first respondent
went to attend the university examination in M.S.(O.G) at Chennai on
22.10.2016 and after his examination, when he came back to Salem on
3.11.2016, the security guard employed at his house front gate told him that
on 25.10.2016 and 2.11.2016, somebody called Baskar with a white colour
Ford Figo car bearing Regn.No.TN 47 X 6885 came to his house at
midnight around 12.30 A.M., and went out of the house at about 3.30 A.M.,
and the CCTV footage of Modern Theatre on verification highlighted the
same. Having seen the CCTV footage and after verifying the flexipy
software, the first respondent came to know that his wife was leading
adulterous life with the said Baskar. On this issue, when the first
respondent questioned the appellant as to the illegal relationship with her
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CMA No.2360 of 2019
paramour Baskar, she scolded him in filthy language and went out of the
matrimonial home immediately. Since then, she has been living separately.
It was further alleged that the appellant had illicit relationship with one
Shikander and Madhavan. On 26.12.2016, she tried to forcibly take her son.
He was informed by his daughter that the appellant exposed her body in a
video chat with somebody on 03.01.2017. She had Whatsapp chats and face
book sex chats and video chats with Baskar, Shikander, Madhavan, Shyam,
Saheen Ashwaq and Marimuthu. On 26.01.2017 at about 9 p.m., appellant's
paramour Shikander tried to assault the first respondent and a case was
registered in Crime No.35 of 2017 in Kanakurichi Police Station, on the
complaint made by the first respondent. In these facts and circumstances,
the first respondent filed the petition for divorce.
5. On 04.03.2017, the first respondent and appellant appeared before
the learned Family Court Judge, Salem and reported that the matter was
settled. On the same day, an application to advance the hearing from
23.07.2017 was filed. It is seen that both the appellant and the first
respondent were examined as witnesses. A memo was also filed by the first
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CMA No.2360 of 2019
respondent withdrawing the ground of adultery. The memo reads as
follows:-
" Memo filed by the petitioner/husband
The petitioner most humbly submit that he is given
up and withdrawing the ground of adultery in the above
FCOP.62/2017 and the same may be accepted. The memo
may be recorded and thus render justice."
6. Considering the memo filed, the evidence of the parties, the learned
Family Court Judge found that the marriage between the appellant and first
respondent has to be dissolved on the ground of cruelty and ordered
accordingly. Against the said order, this Civil Miscellaneous Appeal is
filed.
7. The learned counsel for the appellant submitted that the order of
the lower Court was obtained by fraud, coercion, collusion and external
threat. Without giving sufficient time, the appellant was forced to file a
memo and the case was disposed without considering the case of the parties.
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CMA No.2360 of 2019
The formalities like,
(i) withdrawing the allegation of adultery;
(ii) filing of proof affidavit by the petitioner/husband;
(iii) marking of documents;
(iv) cross examination;
(v) filing of proof affidavit by respondent/wife;
(vi) marking of documents
(viii) cross examination
were completed on a single day, without actually considering whether the
consent of the appellant was free and without undue influence or coercion.
Therefore, the learned counsel for the appellant submitted that this Civil
Miscellaneous Appeal has been filed for setting aside the judgment of the
learned Family Court Judge, Salem.
8. The learned counsel for the first respondent strongly opposed this
submission and submitted that the appellant had voluntarily consented for
divorce and also the custody of the children with the first respondent. The
learned Family Court Judge examined the parties and then only passed
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CMA No.2360 of 2019
orders. This Civil Miscellaneous Appeal has been filed only to harass the
first respondent and he prays for the dismissal of the Civil Miscellaneous
Appeal.
9. Considered the rival submissions.
10. It is seen from the records that though FCOP No.62 of 2017 was
filed on the grounds of adultery and cruelty, the first respondent had
withdrawn the ground of adultery. The first respondent was examined as
PW.1 and the appellant was examined as RW.1. The marriage invitation,
copy of the marriage registration certificate, copy of divorce petition and
marriage photo were marked as Exs.P1 to P4. During the course of
evidence, the appellant gave evidence to the effect that she had purposely
refused to cohabit with the first respondent; there were quarrels between
them due to her refusal; she had no claims with regard to the custody of
their children; she was ready to release the properties which were purchased
by the first respondent in her name. Even the first respondent gave evidence
to withdraw the complaint given before the Kanakurichi Police Station. The
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CMA No.2360 of 2019
learned Family Court Judge, from the evidence of parties, especially, the
appellant, found that the plea of cruelty was established by the first
respondent and granted divorce to the first respondent by dissolving the
marriage between the first respondent and appellant on the ground of
cruelty.
11. It is clear from the order of the learned Family Court Judge and
also the memo filed by the first respondent that both the first respondent and
appellant had settled the dispute between them and in fact the appellant had
tacitly accepted the cruelty committed by her on her husband. She had
given evidence on oath in open Court. Therefore, it is not now open to the
appellant to turn around and complain that her evidence was obtained by
fraud or coercion or undue influence. It was like a judicial admission given
during the course of giving evidence. In a case filed by the first respondent
in GOP No.3/2017 seeking custody of minor children under Section 6 of
Hindu Minority Guardian and Wards Act, she has filed a memo stating that
she has no objection to appoint the first respondent as guardian of minor
children. The memo reads as follows:-
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CMA No.2360 of 2019
" Memo filed by the respondent/mother
The above named respondent most humbly submits
that she has no objection to appoint the petitioner as the
permanent guardian for the minor children namely B.Sruthi
(16) and B.Prajeth Raghav (12) as such she prays that the
main GOP No.3/2017 may be allowed and she undertakes
that she will not claim any right either the custody of the
children or the visiting rights of them or claim against them
at any point of time in future. This memo may be recorded
and pass such other suitable orders as deem fit and thus
render justice."
12. The materials produced before this Court, especially the oral
evidence and the memo filed by the appellant, clearly show that the
appellant has consented to pass orders against her in FCOP No.62 of 2017
and GOP No.3 of 2017, therefore, she has no right to maintain this Appeal,
by virtue of the statutory bar under Section 96(3) of the Code of Civil
Procedure, which reads as follows:-
“S.96(3). No appeal shall lie from a decree passed
by the Court with the consent of parties.”
A perusal of the above provision denies the right of statutory appeal against
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CMA No.2360 of 2019
the own consent given by the parties. This is the settled legal position in
civil law. The same legal position continues in writ proceedings also, where
the parties opt to give their consent, based on which a consent order is
passed. Later on, aggrieved by the consent order, no appeal lies. This issue
also has been settled by a Division Bench of our High Court way back in the
year 2002, in Kudiyiruppor Nala Sangam represented by its President
P.Karuppasamy v. The Commissioner, Land Assignment, Chennai and
another, (2002) 1 CTC 577, wherein it is held that no writ appeal shall be
maintainable as against the consent order passed by the learned single
Judge.
13. As highlighted above, since a memo has already been filed by the
appellant/wife giving no objection to appoint the respondent/husband as
permanent guardian for the minor children, namely, B.Sruthi and B.Prajesh
Raghav with a further undertaking that she would not claim any right over
the custody of the children or the visiting rights or make any claim against
them at any point of time in future, the same goes without saying that she
has no right to stay with them. In other words, a mother who gives an
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CMA No.2360 of 2019
undertaking that she will not claim any right over the custody of the
children and also relinquished the visiting rights, cannot be allowed to stay
with them. Therefore, the decree of divorce granted by the trial Court
deserves to be affirmed. Accordingly, this Court confirms the order of
learned Family Court Judge, Salem in FCOP No.62 of 2017 dated
14.03.2017 and dismisses this Appeal. No costs.
(T.R.J.,) (G.C.S.J.,)
mra 27.01.2021
Internet: Yes (1/2)
Index : Yes
Speaking order
To
1. The Family Court Judge
Salem
https://www.mhc.tn.gov.in/judis/
CMA No.2360 of 2019
T.RAJA, J.,
and
G.CHANDRASEKHARAN, J.,
mra
CMA No.2360 of 2019
(1/2)
27.01.2021
https://www.mhc.tn.gov.in/judis/
