Thangavel vs Sumathi
2022 Latest Caselaw 8893 Mad

                                                                         C.M.S.A.Nos.57 & 58 of 2021

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 27.04.2022

                                                      CORAM

                                     THE HONOURABLE Ms.JUSTICE P.T.ASHA

                                             C.M.S.A.Nos.57 & 58 of 2021


                     Thangavel                                   ... Appellant in both C.M.S.As

                                                         -Vs.-

                     Sumathi                                     ... Respondent in both C.M.S.As

Prayer in C.M.S.A.No.57 of 2021 : Civil Miscellaneous Second Appeal filed under Section 28(1) of Hindu Marriage Act, read with Section 100 of Code of Civil Procedure, 1908, against the judgement and decree dated 26.02.2021, made in C.M.A.No.26 of 2019 on the file of IV Additional District & Sessions Judge, Coimbatore and confirming decree and Judgment dated 27.09.2019 in H.M.O.P.No.5 of 2014 on the file of Sub Court, Pollachi.

Prayer in C.M.S.A.No.58 of 2021 : Civil Miscellaneous Second Appeal filed under Section 28(1) of Hindu Marriage Act, read with Section 100 of Code of Civil Procedure, 1908, against the judgement and decree dated 26.02.2021, made in C.M.A.No.25 of 2019 on the file of IV Additional District & Sessions Judge, Coimbatore and confirming decree and Judgment dated 27.09.2019 in H.M.O.P.No.116 of 2015 on the file of Sub Court, Pollachi.

https://www.mhc.tn.gov.in/judis
                                                                                C.M.S.A.Nos.57 & 58 of 2021

                                              For Appellant   :         Mr.K.Sudhakar
                                              (in both CMSAs)

                                              COMMON              JUDGMENT

C.M.S.A.No.57 of 2021 is filed challenging the judgement and decree

dated 26.02.2021 passed in C.M.A.No.26 of 2019 on the file of the IV

Additional District and Sessions Judge, Coimbatore, which was filed

challenging the judgement and decree dated 27.09.2019 passed in

H.M.O.P.No.5 of 2014 on the file of the Sub Court, Pollachi.

2. C.M.S.A.No.58 of 2021 is filed against the judgement and decree

dated 26.02.2021 passed in C.M.A.No.25 of 2019 on the file of the IV

Additional District and Sessions Judge, Coimbatore, which in turn challenges

the judgement and decree dated 27.09.2019 passed in H.M.O.P.No.116 of

2015 on the file of the Sub Court, Pollachi.

3. Since the facts are similar in both H.M.O.Ps, the facts as narrated

in H.M.O.P.No.5 of 2014 is herein below narrated:

It is the case of the appellant/husband that he and the respondent got

married on 15.03.2009 and out of their wedlock, a daughter, namely,

https://www.mhc.tn.gov.in/judis C.M.S.A.Nos.57 & 58 of 2021

Dhanushri was born on 18.12.2009. Thereafter, a son was born on

10.10.2013. This fact was not informed by the respondent/wife to the

appellant. It is the case of the appellant that the respondent would often quarrel

with the appellant/husband and go to her father's house. That apart, the

respondent/wife was very suspicious about her husband interacting with ladies

and would make false allegations whenever he spoke to any lady. The

respondent was prone to using unparliamentary words and would also abuse

the appellant's parents. The respondent was insisting on the appellant living

separately and was compelling the appellant to seek a partition of his father's

properties. Quarrelling with the appellant, the respondent had returned to her

father's house and refused to show the daughter to the appellant. In fact, on 9

earlier occasions, she had returned to her parent's house and on 10th occasion,

she failed to return and for nearly two years, she did not return to the

appellant's house. The appellant made several attempts to re-unite, but it went

in vain. The respondent/wife had threatened to file a compliant under the

Dowry Prohibition Act against the appellant/husband and all of these caused

immense mental cruelty to the appellant. The appellant had sent a legal notice

on 07.12.2013, which had been returned. Therefore, the appellant/husband

had come forward with the petition seeking divorce.

https://www.mhc.tn.gov.in/judis C.M.S.A.Nos.57 & 58 of 2021

4. The respondent-wife had countered the allegations by contending

that she was subjected to great deal of physical abuse by the appellant and she

had in fact sustained injuries. Since the appellant had requested, she did not

file a Police complaint and she had also not informed the same to her parents

with the sole intent to not upset the harmony at home. She would deny the

allegation of the appellant that she was frequently going to her parent's house or

that she was a suspicious character. The respondent would submit that she is

still willing to live with the appellant/husband for the welfare of the two

children.

5. Both H.M.O.P.Nos.5 of 2014 and 116 of 2015 the petitions were

jointly tried by the learned Subordinate Judge, Pollachi. Before the Trial Court,

the appellant had examined himself as P.W.1 and marked Exhibits P1 to P4.

One Balasubramaniam was examined as P.W.2. The respondent-wife

examined herself as R.W1 and Exhibits R1 to R3 were marked. The Trial

Court, after considering the evidence on record, dismissed the petition filed by

the husband for divorce and allowed the petition filed by the wife for restitution

of conjugal rights. Aggrieved by the said orders, the husband had come

forward to file C.M.A.Nos.25 and 26 respectively before the IV Additional

https://www.mhc.tn.gov.in/judis C.M.S.A.Nos.57 & 58 of 2021

District and Sessions Court, Coimbatore. The learned IV Additional District

and Sessions Judge, Coimbatore, on considering the evidence on record and

hearing the arguments on both sides, held that the appellant-husband had failed

to prove the allegations of mental cruelty and dismissed the appeals.

Challenging the same, the appellant/husband is before this Court.

6. Heard the learned counsel for the appellant and perused the

materials available on record.

7. A perusal of the records would show that the husband, who had

come forward with a case that the wife has threatened him, has not been able to

establish the same. The Appellate Court has extracted the evidence of the

appellant as P.W-1, where the husband had stated that the wife had prevented

him from seeing his children, however he later stated that he had been informed

about the ear piercing ceremony of his child at the Temple and he had attended

the same. These admissions would clearly disprove the allegation of the

appellant that he has been prevented from seeing his children. The witness

examined on the side of the appellant as P.W.2 has not been able to prove that

there was disharmony between the appellant and the respondent. In his cross

https://www.mhc.tn.gov.in/judis C.M.S.A.Nos.57 & 58 of 2021

examination, P.W.2 has conceded that he has no personal knowledge about the

same. It is also seen that the respondent as R.W.1 has clearly deposed that she

has not complained against her husband before the Police for the physical

abuse done by him only on account of the fact that she wanted to continue her

matrimonial life with the appellant for the sake of her children. It would only to

go to show that she was willing to live with his husband. Therefore, it is very

clear that the appellant herein has not proved the allegations made by him and

on the contrary, the respondent is able to establish her intent to continue to live

along with her husband. In these circumstances, I see no reason to disagree

with the findings on facts by both the Courts below. There is no question of

law involved in the appeals and accordingly, this Civil Miscellaneous Appeals

are dismissed. No costs.

27.04.2022 Index:Yes/No Speaking Order : Yes/No srn To

1. The Subordinate Judge, Pollachi

2. The IV Additional District & Sessions Judge, Coimbatore

3. The Section Officer, V.R.Section, High Court of Madras, Chennai.

https://www.mhc.tn.gov.in/judis C.M.S.A.Nos.57 & 58 of 2021

P.T.ASHA.J

srn

C.M.S.A.Nos.57 & 58 of 2021

27.04.2022

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