Sellamuthu vs Selvi
2021 Latest Caselaw 20021 Mad

                                                                                   CMSA NO.13 of 2018

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     Dated : 30.09.2021
                                                           CORAM :

                                  THE HONOURABLE MRS. JUSTICE S. KANNAMMAL

                                     Civil Miscellaneous Second Appeal No.13 of 2018
                                                            ---


                  Sellamuthu                                                     ... Appellant


                                                           Versus

                  Selvi                                                          ... Respondent

                            Civil Miscellaneous Second Appeal filed under Section 100 of the Code
                  of Civil Procedure against the judgment and decree dated 12.01.2018 in
                  C.M.A.No.2 of 2017 on the file of the III Additional District Court, Salem,
                  reversing the order and decree dated 11.11.2016 in HMOP.No.40 of 2013 on
                  the file of the Subordinate Court, Attur.




                                    For appellant     :     Mr.D.Shivakumaran

                                    For Respondent     :    Mr.M.Purushothaman




https://www.mhc.tn.gov.in/judis


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                                                                                  CMSA NO.13 of 2018

                                                     JUDGMENT

(This appeal was taken up for hearing through Video-conferencing)

This appeal has been preferred against the judgment and decree dated

12.01.2018 in C.M.A.No.2 of 2017 on the file of the III Additional District

Court, Salem, reversing the order and decree dated 11.11.2016 in

HMOP.No.40 of 2013 on the file of the Subordinate Court, Attur.

2.The appellant and the respondent are the husband and wife. The case

of the appellant/husband is that the marriage between them was solemnized on

02.07.2001 and out of their wedlock, two children were born. According to

the appellant, soon after the marriage, the respondent/wife's sister started

staying with them and the appellant was compelled to spend Rs.50,000/-

towards the education of his sister-in-law. It is further alleged that due to the

compulsion of his wife/respondent, the appellant was forced to obtain loan of

Rs.2 Lakhs from his Department and thereafter, again Rs.1 Lakh from his

friends and gave the same to his father-in-law. Thereafter due to continuous

demands of his wife to buy a land, he borrowed loan and bought a land and the

same was registered in the name of his wife/respondent. Even thereafter, the

respondent/wife and his parents demanded more and more money from him. https://www.mhc.tn.gov.in/judis

CMSA NO.13 of 2018

Since, he did not accede to the said demand, all of a sudden on 27.09.2012, the

respondent/wife took all the household articles, jewels, two wheeler and all

documents like voter I.D, Aadhar Card, Family Card, Bank Pass Book, ATM

card, etc and left the matrimonial home and settled with her father. It is further

alleged that the appellant was kidnapped by the respondent's men and got

signatures in plain papers. Thereafter,the appellant managed to escape from

them and gave complaint before the Chief Minister's complaint cell and also to

all the concerned police officials on 08.10.2012. Since no action was taken, he

filed Crl.O.P.No.29262 of 2012 to register the complaint, but the same was

dismissed by this Hon'ble Court. The respondent/wife also filed C.M.P.577 of

2013 before the Judicial Magistrate No.1, Attur, under protection of Women

from Domestic Violence Act and the same is pending.

3.According to the appellant/husband, he had been tortured by his wife

and father-in-law extracted as much as possible and made him debtor and

since the appellant failed to meet the demands made by his wife and father-in-

law time and again, the respondent/wife was instigated to file cases against the

appellant. Since the respondent/wife has been continuously causing financial,

physical and mental cruelty apart from prosecuting him for the offences under

Domestic Violence Act, the appellant is unable to lead matrimonial life with https://www.mhc.tn.gov.in/judis

CMSA NO.13 of 2018

the respondent/wife and since the respondent/wife acted in inimical turns with

the appellant/husband, the relationship between them had virtually come to an

end. In such circumstances, the appellant/husband been constrained to move a

petition in H.M.O.P.No.40 of 2013, before the Sub-Court, Aathur praying to

grant decree of divorce by dissolving the marriage which was solemnized

between the appellant and the respondent on 02.07.2001.

4.Before the trial Court, the appellant was examined as P.W.1 and

marked Exhibits A1 to A9 and the respondent was examined as R.W.1 and no

documents were marked.

5.The learned Trial Judge, after considering the oral and documentary

evidence, came to a conclusion that the respondent/wife in order to uplift her

family, had tortured the appellant and also filed a false complaint. alleging that

the appellant has illicit relationship with another lady and thereby damaged the

reputation of the appellant and caused mental agony and therefore, allowed the

petition for divorce.

6.As against the same, the wife/respondent filed an appeal in

M.C.O.P.No.2 of 2017 before the III Additional District Judge, Salem, https://www.mhc.tn.gov.in/judis

CMSA NO.13 of 2018

whereby the order of the trial judge was reversed and the order of dissolution

passed by the trial Court, was set aside. Aggrieved by the said order, the

appellant/husband has filed the present appeal.

7.The appeal is admitted on the following substantial questions of law:

i) When the evidence on record are sufficient to establish

cruelty by the wife upon the husband, is the lower appellate

Court correct in law in reversing the well considered order of

divorce granted by the trial Court?

ii) Is not the judgment and decree of the lower appellate Court

vitiated due to non-consideration of the materials available on

record in their correct perspective?

8. The learned counsel for the appellant would contend that there is no

dispute about the marriage between the appellant and the respondent and two

male children born out of their wedlock. On perusal of the petition in

H.M.O.P.No.40 of 2013, the appellant has sought for dissolution of marriage

on the ground of cruelty. The alleged cruelty by the respondent are as follows:

https://www.mhc.tn.gov.in/judis

CMSA NO.13 of 2018

i) The appellant was coerced to spend money of Rs.50,000/- for the

education of his sister-in-law.

ii) The appellant was compelled by the respondent to borrow Rs.2,00,000/-

from his department for his father-in-law.

iii) The appellant was coerced to borrow Rs.1,00,000/- from the co-worker

in order to give it to his father-in-law.

iv) The parents-in-law and family were giving pressure to the respondent

for payment and made him to suffer.

v) The appellant was kidnapped to the respondent's village and was

threatened to sign in blank papers.

vi) The respondent filed an application under DV Act which is pending

before the Judicial Magistrate No.I, Aathur in C.M.P.No.577 of 2013.

9.The learned counsel appearing for the appellant would submit that the

trial Court considering the evidence of both the parties rightly granted divorce

on the grounds cruelty. Whereas, the first appellate Court without considering

the merits of the case, erroneously allowed the appeal by reversing the order of

the trial Court.

https://www.mhc.tn.gov.in/judis

CMSA NO.13 of 2018

10.On perusal, the first appellate Court considering that there is no

evidence to prove that the appellant was coerced to spend money for his sister-

in-law and he was compelled to borrow Rs.2,00,000/- from his department

and borrow Rs.1,00,000/- from his co-worker, rightly disbelieved the

allegation of the appellant herein.

11.Obviously, the allegation of the appellant herein, with regard to the

coercion for spending money for his sister-in-law's education and borrowing

money for his father-in-law would not amount to cruelty.

12.Next coming to the point of kidnapping the appellant to the

respondent's village and threatened him to sign blank papers, the appellant

herein has not produced any documents or examine any other independent

witness apart from the petition sent to the Chief Minister and police official on

08.10.2012 and telegram to DIG of police on 09.10.2012. It is highly

unbelievable when it is a case of the appellant is that he was kidnapped on

28.09.2012, the appellant was not stated any reason for the delay in sending

petition or telegram belatedly. It is also pertinent to note that the

Crl.O.P.No.29262 of 2012 filed by the appellant before the High Court,

Madurai, was also dismissed. Hence, the above alleged cruelty of kidnapping https://www.mhc.tn.gov.in/judis

CMSA NO.13 of 2018

him and he was threatened to sign in blank papers are proved to be false.

13.The learned counsel appearing for the respondent would submit that

the respondent herein was very patient and was living with the appellant only

because of the two children. But, when the respondent questioned about the

illegal relationship of the appellant with another lady, and when he was

questioned for not returning home for the past four months, the respondent

was beaten and she was sent to her home with children. Further the house hold

articles were returned. The learned counsel further submitted that the appellant

retained 3 1/3 soverigns of gold bangle and only then the respondent gave

complaint to the police and he was enquired. It is contended on the side of the

respondent that only to escape from the above complaint, the appellant filed

the false petition for divorce and the same was rightly considered by the first

appellate Court and no interference is called for.

14.Though the learned counsel for the appellant submitted that the

respondent caused financial cruelty, there is no single piece of evidence to

prove the same. There is nothing to prove that the appellant was kidnapped

and he was forced to sign in blank papers. Since the allegation of the appellant

herein did not attract Section 13 (1) of Hindu Marriage Act, the first appellate https://www.mhc.tn.gov.in/judis

CMSA NO.13 of 2018

Court has rightly reappraised the oral and documentary evidence of the parties

allowed the appeal and set aside the order of the trial Court granting divorce.

Hence, no interference is called for from this Court. Accordingly, the

substantial questions of law are answered against the appellant.

15.In the result, the Civil Miscellaneous Second Appeal is dismissed.

No costs.

30.09.2021

Index: Yes/No Speaking Order: Yes/No

gbi

To

1. The III Additional District Judge, Salem.

2. The Subordinate Judge, Attur.

https://www.mhc.tn.gov.in/judis

CMSA NO.13 of 2018

S.KANNAMMAL, J.,

gbi

CMSA No. 13 of 2018

30.09.2021

https://www.mhc.tn.gov.in/judis