Madras High Court
S.Arulkumar vs N.Umamaheswari on 11 January, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 11.01.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
C.M.A. Nos.11 & 12 of 2013, M.P. Nos.1 &
1 of 2014 and C.M.P. No.8054 of 2018
S.Arulkumar ... Appellant in both the appeals
-vs-
N.Umamaheswari ... Respondent in both the appeals
Prayer: Civil Miscellaneous Appeals filed under Section 19(1)(6) of the
Family Courts Act to set aside the judgment and order dated 02.12.2009
made in H.M.O.P. Nos.218 of 2006 and 796 of 2008 on the file of the
Family Court at Coimbatore and to allow the appeals.
For Appellant in both the appeals : Mr.K.Shivashanmugam
For Respondent in both the appeals : Mr.Venkataraman for
Mr.K.S.Karthik Raj
COMMON JUDGMENT
The appeals have been filed by Mr.S.Arulkumar, the husband of the
respondent, assailing the judgment and decree dated 02.12.2009 passed by
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the Family Court, Coimbatore in H.M.O.P. Nos.218 of 2006 and 796 of
2008 granting decree for restitution of conjugal rights filed under Section 9
of the Hindu Marriage Act 1955 (hereinafter referred to as 'the Act') and
dismissing his case for grant of divorce filed under Section 13(1) (i-a) (i-b)
of the Act.
2.Mr.K.Sivashanmugam, learned counsel appearing for the appellant
husband assailing the impugned judgment, pleaded that after the respondent
wife filed H.M.O.P. No.218 of 2006 under Section 9 of the Act for
restitution of conjugal rights, the appellant husband has filed H.M.O.P.
No.796 of 2008 under Section 13(1) (i-a) (i-b) of the Act seeking decree for
dissolution of marriage that was solemnised between the appellant and the
respondent on 14.02.2005 at Border Thottam 24 Manai Telugu Chettiyar
Kalyana Mandapam, Palani, as per the Hindu rites and customs in the
presence of both families and well wishers. Both the matters were taken up
by the Family Court, Coimbatore and while granting decree for restitution
of conjugal rights filed under Section 9 of the Act in favour of the
respondent wife, the Family Court, Coimbatore dismissed the petition for
divorce giving a finding that the appellant husband herein has failed to
bring out his case for grant of divorce. Arguing further, learned counsel for
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the appellant submitted that at the time of marriage, the appellant was
working as a Mechanical Engineer in SPIC JEL Engineering Construction
Limited, Chennai and the respondent wife is a graduate in English
Literature. After the marriage, they lived together for 10 days in the
matrimonial home and 4 days in the parental home of the respondent wife.
However, during the short stay of 10 days in the matrimonial home, the
respondent wife started showing her true character of arrogance and
disobedience to the appellant and his family members. When the appellant
and his family members were subjected to mental cruelty due to insult and
ignominy by the respondent wife, the appellant being a dutiful husband,
tolerated all these strange behaviours of his wife. After 14th day, when the
appellant husband invited the respondent wife to come to matrimonial
home, she refused to come with the appellant to Karur and insisted the
appellant to have a separate residence de-linking from his family members.
Since the appellant being an eldest son of his family, told his wife that it is
not possible to have a separate residence, but, again, she insisted upon the
appellant to set up a separate house to lead a matrimonial life. Therefore, the
appellant husband came to Karur alone and spoke to her over phone and
told her to come to matrimonial home. When the appellant sent his relatives
to Coimbatore to mediate with the respondent for joint living, she has not
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shown any interest in living with the appellant and has also removed the
thali in the presence of the mediators. Therefore, the attitude of the
respondent wife clearly shows that she caused cruelty and deserted her
husband which are the grounds for dissolution of marriage.
2.1.Continuing his arguments, learned counsel for the appellant
submitted that when there is no communication or correspondence from the
respondent wife indicating that she is willing to come and join in the
matrimonial home for a three long years, the appellant has been put to
mental cruelty. Hence, he has filed a petition for divorce on both the
grounds of cruelty and desertion invoking Section 13(1) (i-a) (i-b) of the
Act. Learned counsel for the appellant further pleaded that the respondent
wife has filed a petition in H.M.O.P. No.218 of 2006 on the file of the
Family Court, Coimbatore under Section 9 of the Act seeking restitution of
conjugal rights putting blame on the appellant that only the appellant had
taken her to her mother's house and after living with her family members, on
27.02.2005, he said that he would take her to Chennai after finding a shelter
for them, but he left the respondent and went to Chennai and thereafter
refused to come and take her back for re-union. The Family Court,
Coimbatore, taking both the matters together and considering the evidence
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of both the appellant and the respondent, held that on 27.02.2005, the
appellant, leaving her in her parental home at Coimbatore, went to Chennai
and thereafter refused to bring her back and that there was no evidence
produced by the appellant to show that he sent a request letter inviting her to
come back to matrimonial life and declined to accept the ground for
desertion. Coming to the ground for cruelty, the Family Court, Coimbatore
proceeded against the appellant husband holding that when both the
husband and wife were living together only for 14 days, namely, 10 days in
the matrimonial home and 4 days in her parental home, there cannot be any
reason or justification to invite the dissolution of marriage since there
cannot be any difference of opinion within few days and non-suited the
petition for divorce.
2.2.Learned counsel for the appellant, with respect to the findings and
conclusion given by the Family Court, pleaded that at the time of marriage,
the respondent's mother came forward to bear the marriage expenses only by
way of cheque, but, despite such humiliation, the appellant, who is having a
large family consisting of mother, three brothers and two sisters, have
adjusted with the respondent wife, however, after the marriage, she has
started harassing his family members even for a frivolous mater. But, the
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learned Family Court, Coimbatore, without taking note of humiliation faced
by the family members of the husband at the hands of his wife, declined to
accept the ground of cruelty. Thus, the infirmity and error committed by the
Family Court is liable to be interfered with by this Court. Since both the
parties are living separately for the past 16 long years, that itself would
cause long separation, hence, it is a fit case for grant of divorce by this
Court by reversing the judgment passed by the Family Court, Coimbatore.
3.Mr.Venkataraman, learned counsel appearing for the respondent
wife, opposing the above arguments pleaded that it is a categorical stand of
the appellant husband that within 14 days from the date of marriage, the
appellant alone, taking the respondent from the matrimonial home, left her
at her parental home in Coimbatore on 27.02.2005. In support of his
statement, referring to the petition filed under Section 13(1) (i-a) (i-b) of the
Act, invited our attention to the pleadings made in para vii and stated that it
was a simple pleading made by the appellant that the respondent has
committed mental cruelty to the appellant and his family members and
deserted the appellant during the third week of February 2005. The above
pleading of the appellant made in the petition filed for divorce and the
evidence adduced before the Court in the chief and cross examination would
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clearly demonstrate that it was only the appellant husband, for the reasons
best known to him, within 14 days, keeping something in his mind, brought
the innocent wife to her parental home at Coimbatore and left her with a
promise that he would find a better accommodation in Chennai, where he is
working. When it is a clear case of the appellant that he is a Mechanical
Engineer, working in SPIC JEL Engineering Construction Limited,
Chennai, for a handful monthly salary, it is his moral and legal obligation to
set up a decent family in Chennai before marriage or atleast after marriage.
But the appellant husband, without even taking any care on his wife, after
marrying her, dumped her in her parental house and now, he is working at
SPIC JEL Engineering Construction Limited, Chennai.
3.1.Without knowing the motive of appellant/husband, the respondent
innocent wife, also agreeing with the false promise given by him that he
would take her back after setting up a house at Chennai, started living in
Coimbatore. But after many deliberations and efforts taken by her, it was
found that the appellant was not willing to take her to Chennai and his
intention was to make her living only with her family members namely,
mother, three brothers and two sisters. Therefore, she was advised to file a
petition under Section 9 of the Act on the file of the Family Court,
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Coimbatore seeking restitution of conjugal rights. After knowing the filing
of the petition for restitution of conjugal rights by his wife, the appellant
husband, who wanted to wreck vengeance against his own wife, filed a
petition for divorce under Section 13 (1) (i-a) (i-b) of the Act on the file of
the Family Court, Coimbatore without even making any ground whatsoever
for cruelty or desertion. The above petition filed by the appellant would
only show that at no point of time, the respondent wife deserted her husband
or the matrimonial home. On the other hand, when it is a clear stand taken
by the respondent wife by filing a petition for restitution of conjugal rights
stating that the appellant husband only took her from Karur and left her with
her parents in Coimbatore on 27.02.2005, the same has not been specifically
denied anywhere. Moreover, when the appellant has pleaded that the
respondent has caused mental cruelty to his family members namely,
appellant's mother and his three brothers and two sisters, neither of them
came to the Trial Court to say one word of evidence against the respondent
wife. Therefore, the Family Court, Coimbatore, considering the false case
made by the appellant, holding that the appellant husband has spoiled the
entire career of the respondent wife, refused to accept the claim for divorce.
Therefore, no interference is called for, he pleaded.
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4. Heard the learned counsel appearing on either side and perused the
materials available before this Court.
5.It is seen from records that the marriage of the parties was
solemnised on 14.02.2005 at Border Thottam 24 Manai Telugu Chettiyar
Kalyana Mandapam, Palani as per the Hindu rites and customs in the
presence of family members of both the parties and thereafter, they were
living together only for a short period of 10 days in the matrimonial home
and 4 days in the parental home of the respondent. It is an admitted case of
both the parties that the appellant husband is an Engineer working in SPIC
JEL Engineering Construction Limited, Chennai, whereas, the respondent
wife is a graduate in English Literature.
6.Section 13(1)(i-a) of the Hindu Marriage Act, 1955, based, on
which the present petition has been filed, mandates that any marriage
solemnised on a petition presented by either the husband or the wife, be
dissolved by a decree of divorce on the ground that the other party has, after
the solemnisation of the marriage, treated the petitioner with cruelty. In the
case on hand, admittedly, the parties lived together only for 10 days in the
matrimonial home and 4 days in the wife's home. The appellant/husband has
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not even established that there has been instances of cruelty by the wife
during their stay of 10 days at matrimonial home. Secondly, the appellant/
husband has again failed to substantiate to whom his wife has caused
cruelty. Thirdly, there has not been long period of separation between the
husband and wife. Therefore, the law, in such cases, demand the parties
approaching the Court have to come with clinching evidence to accept the
case of cruelty and desertion. Equally, when the husband pleaded desertion,
it is his own case that he only took her to her parental home at Coimbatore,
besides, he has failed to substantiate how she has deserted him. On the
contrary, only after filing of a petition for restitution of conjugal rights by
the wife, he has filed a petition for divorce.
7.In S.P.Chengalvaraya Naidu (dead) Vs. Jagannath (dead) and
others [(1994) 1 SCC 1], the Hon'ble Apex Court has restated the
rudimentary principle by holding that the Courts of law are meant for
imparting justice between the parties and one who comes to the Court must
come with clean hands. A person, who's case is based on falsehood, has no
right to approach the Court and he can be summarily thrown out at any stage
of the litigation. Relevant portion thereof is extracted below:-
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“6..................... A litigant, who approaches the
Court, is bound to produce all the documents executed by him
which are relevant to the litigation. If he withholds a vital
document in order to gain advantage on the other side then he
would be guilty of playing fraud on the Court as well as on the
opposite party.”
8.As highlighted above, in the present case, the husband, having
deserted his wife by taking her from the matrimonial home to her parental
home, is not entitled to plead that his wife has deserted him when he himself
evidently deserted.
9.In Kumari Madhuri Patil and another Vs. Addl. Commissioner,
Tribal Development and others [(1994) 6 SCC 241], the Hon'ble Apex
Court held that a party that seeks equity, must come with clean hands. He
who comes to the Court with false claim, cannot plead equity nor the Court
would be justified to exercise equity jurisdiction in his favour.
10.Therefore, when the rudimentary principle demands that the
parties who are coming to the Court have to come with clean hands, in this
case, the appellant husband, who has taken her to her parental home, cannot
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T.RAJA, J.
and
G.CHANDRASEKHARAN,J.
vga
plead that she has deserted him when he himself rejected her. Therefore, we
are unable to agree with his double stand. Thus, the dismissal of his petition
by the Court below under Section 13(1)(i-a) and (i-b) deserves to be upheld.
Accordingly, the appeals are dismissed. Consequently, connected M.Ps are
closed. No costs.
(TRJ) (GCSJ)
11.01.2021
Index : Yes/No
vga
To
1.The Family Court,
Coimbatore.
2.The Section Officer,
V.R.Section,
High Court, Madras.
C.M.A. Nos.11 & 12 of 2013, M.P. Nos.1 &
1 of 2014 and C.M.P. No.8054 of 2018
https://www.mhc.tn.gov.in/judis/
