Madras High Court
B.Umamaheswari vs S.Gopalakrishnan on 18 August, 2023
C.M.A.No.2327 of 2016
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.08.2023
CORAM:
THE HONOURABLE MR JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MRS JUSTICE R.KALAIMATHI
C.M.A.No.2327 of 2016
and
C.M.P.No.16329 of 2016
B.Umamaheswari ...Appellant
Vs.
S.Gopalakrishnan ...Respondent
Prayer: Civil Miscellaneous Appeal filed under Section 19 of The Family
Courts Act, 1984 against the judgment and decree dated 25.07.2016 made in
H.M.O.P. No.76 of 2014 on the file of the Family Court, Erode.
For Appellant : Mr.N.Manokaran
For Respondent : Mr.P.K.Harinath Babu
for Mr.P.Muthukumarasamy
JUDGMENT
(Judgment of the Court was delivered by R.SUBRAMANIAN, J.)
Challenge in this appeal is for a decree for divorce granted by the
Family Court, Erode in a petition filed by the husband under Section
13(1)(i-a) of the Hindu Marriage Act, 1955 alleging that the respondent wife
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had treated him with cruelty. The parties were engaged on 24.06.2009 and
the marriage was held on 02.09.2009. According to the husband, even from
the very first day of the marriage, the wife had claimed that she does not like
him and she married him because of the compulsion of her parents.
2. It is the specific contention of the husband that the wife, who
was working as a Teacher, agreed to quit the job before marriage. It is
claimed that after marriage the wife wanted to rejoin and continue the job,
which was not acceptable to the husband. This also created disharmony
among the spouses. The wife conceived and ultimately delivered a baby boy
on 17.11.2010. Though she came back to the matrimonial home on the 6th
day after delivery, she stayed there only for a month and half. She took the
child and went to her parents house and refused to come back. The husband
would also claim that the wife had refused to return to the matrimonial home,
since she does not like the parents of the husband. Even though the husband
offered to set up a separate residence in his village itself, the wife did not
agree and insisted the husband to live in her parents house. Since all the
attempts to make the wife come back to the matrimonial home proved futile,
the husband lodged a police complaint on 22.08.2011 with the All Women
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Police Station at Erode. The wife was called for an enquiry, wherein she
agreed and gave it in writing to the police that she will go with her husband
from 30.08.2011. Since the wife did not come back even after the said date,
the husband filed H.M.O.P.No.227 of 2011 before the Principal Subordinate
Court, Erode for restitution of conjugal rights. The wife filed a counter
containing false allegations. Since the wife expressed her unwillingness to
live together, the husband withdrew the application for restitution of
conjugal rights and filed the instant petition for divorce on the ground of
cruelty.
3. The claim was resisted by the wife contending that the
averments regarding the wife’s refusal to live with the husband were false. It
was contended that the in-laws treated her with cruelty and they demanded
more money. The wife also accused the husband for demanding Rs.5 lakhs
for establishing a drinking water unit. According to the wife, because of the
demand for dowry and the cruel treatment meted out to her by the husband
she was forced to leave the matrimonial home along with the child, who was
only a month and half old at that time. It is the further contention of the wife
that though she was ready to go with the husband on 30.08.2011, he did not
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come to take her back. The sum and substance of the defence is that there
was a demand for dowry, she was treated with cruelty and forced to leave the
matrimonial home.
4. On the above rival contentions, the learned Family Judge framed
the following issue:
'4. jPht
; pw;Fhpa gpur;rid ? kDjhuh; kDtpy;
nfhhpa[s;s ghpfhuk; mtUf;F fpilf;fj;jf;fjh?'
5. At trial, the petitioner was examined as P.W.1 and one
Chinnasamy, a relative, was examined as P.W.2. Exhibits P1 to P8 were
marked. No document was filed on the side of the respondent. Respondent
was examined as R.W.1 and her father was examined as R.W.2 and paternal
uncle one Rasu was examined as R.W.3.
6. Having heard the parties and having considered the documents
that were produced, the learned Family Judge came to the conclusion that the
wife was guilty of cruelty. He found that the wife had insisted that the
husband has to set up a separate house for them and he should not live with
his parents. The learned Family Judge also found that the conduct of the wife
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in not attempting to live together even after giving an undertaking with the
police on 22.08.2011, would show that she is not interested in continuing the
marriage. The learned Family Judge found that the action of the wife in
lodging a complaint under the Domestic Violence Act, after institution of
H.M.O.P.No.227 of 2011 for restitution by the husband and its dismissal and
the acquittal of the husband of the charges therein would definitely amount
to cruelty. The learned Family Judge also took note of the fact that the
husband was always trying to preserve the marriage while the wife was
always bent upon destroying it. On the above said findings, the learned
Family Judge allowed the O.P. and granted divorce. Aggrieved by the same,
the wife is on appeal.
7. We heard Mr.N.Manokaran, learned counsel appearing for the
appellant and Mr.P.K.Harinath Babu, learned counsel appearing for the
respondent.
8. Mr.N.Manokaran, learned counsel for the appellant would
vehemently contend that the Family Court erred in concluding that the wife
has committed cruelty on the basis of very vague allegations made in the
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petition and uncertain evidence that was let in. The learned counsel would
point out that divorce under Section 13(1)(i-a) of the Act could be granted
for the fault of either of the spouses and if the Family Court does not render a
finding to the effect that one of the spouses is at fault, a decree for divorce
cannot be granted.
9. The learned counsel would invite our attention to the evidence
on record to contend that the allegations made even if they are true, would
not constitute a ground for divorce under Section 13(1)(i-a) of the Act. The
learned counsel would also rely upon the judgment of the Hon’ble Supreme
Court in Darshan Gupta vs. Radhika Gupta reported in (2013) 9 SCC 1
wherein the Hon’ble Supreme Court pointed out that Section 13(1) of the Act
is based on the fault of the party against whom dissolution of marriage is
sought. The provision being based on the matrimonial offence or fault theory,
unless the same is made out the Court cannot grant a decree for divorce. The
learned counsel would rely upon the following passage from the judgment of
the Hon’ble Supreme Court referred to supra:
'A perusal of the grounds on which divorce can be sought
under Section 13(1) of the Hindu Marriage Act, 1955, would
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reveal that the same are grounds based on the "fault" of the party
against whom dissolution of marriage is sought. In matrimonial
jurisprudence, such provisions are founded on the "matrimonial
offence theory" or the "fault theory". Under this jurisprudential
principle, it is only on the ground of an opponent's fault, that a
party may approach a court for seeking annulment of his/her
matrimonial alliance. In other words, if either of the parties is
guilty of committing a matrimonial offence, the aggrieved party
alone is entitled to divorce. The party seeking divorce under the
“matrimonial offence theory” / “fault theory” must be innocent.'
10. Relying upon the above observations of the Hon’ble Supreme
Court, the learned counsel would submit that the husband who is also guilty
cannot seek divorce invoking matrimonial offence theory or fault theory on
which Section 13(1) of the Act is based upon.
11. Contending contra, Mr.Harinath Babu, learned counsel
appearing for the respondent would submit that from the evidence available
on record it has been made out that (i) the wife had insisted upon a separate
residence; (ii) Having agreed to live with her husband on 22.08.2011 she had
not honoured that commitment and had given very flimsy excuses for not
resuming cohabitation and (iii) she had chosen to lodge a very belated
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complaint against the husband under the Domestic Violence Act for which
the husband was forced to undergo ordeal of trial and ultimately he was
acquitted of the charges. These three facts which have been proved beyond
doubt by themselves would constitute mental cruelty in order to enable the
husband to be favoured with the decree for divorce.
12. The learned counsel would invite our attention to the judgment
of the Hon'ble Supreme Court in Narendra vs. K.Meena made in Civil
Appeal No.3253 of 2008 dated 06.10.2016 wherein the Hon'ble Supreme
Court after adverting to the custom and the practice of Hindus, concluded
that wife insisting the husband to separate from his family by itself would
amount to cruelty. The Hon'ble Supreme Court while disagreeing with the
view of the High Court to the effect that wife has legitimate expectation that
the entire income of the husband belongs to her held that there cannot be
such expectation even if it is there, they cannot be legitimate. Learned
counsel would draw our attention to the following observations of the
Hon'ble Supreme Court:
'11. The Respondent wife wanted the Appellant to get
separated from his family. The evidence shows that the family was
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virtually maintained from the income of the Appellant husband. It
is not a common practice or desirable culture for a Hindu son in
India to get separated from the parents upon getting married, at
the instance of the wife, especially when the son is the only earning
member in the family. A son, brought up and given education by his
parents, has a moral and legal obligation to take care and
maintain the parents, when they become old and when they have
either no income or have a meagre income. In India, generally
people do not subscribe to the western thought, where, upon
getting married or attaining majority, the son gets separated from
the family. In normal circumstances, a wife is expected to be with
the family of the husband after the marriage. She becomes integral
to and forms part of the family of the husband and normally
without any justifiable strong reason, she would never insist that
her husband should get separated from the family and live only
with her. In the instant case, upon appreciation of the evidence, the
trial Court came to the conclusion that merely for monetary
considerations, the Respondent wife wanted to get her the
Respondent husband separated from his family. The averment of
the Respondent was to the effect that the income of the Appellant
was also spent for maintaining his family. The said grievance of
the Respondent is absolutely unjustified. A son maintaining his
parents is absolutely normal in Indian culture and ethos. There is
no other reason for which the Respondent wanted the Appellant to
be separated from the family the sole reason was to enjoy the
income of the Appellant. Unfortunately, the High Court considered
this to be a justifiable reason. In the opinion of the High Court, the
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wife had a legitimate expectation to see that the income of her
husband is used for her and not for the family members of the
Respondent husband. We do not see any reason to justify the said
view of the High Court. As stated hereinabove, in a Hindu society,
it is a pious obligation of the son to maintain the parents. If a wife
makes an attempt to deviate from the normal practice and normal
custom of the society, she must have some justifiable reason for
that and in this case, we do not find any justifiable reason, except
monetary consideration of the Respondent wife. In our opinion,
normally, no husband would tolerate this and no son would like to
be separated from his old parents and other family members, who
are also dependent upon his income. The persistent effort of the
Respondent wife to constrain the Appellant to be separated from
the family would be torturous for the husband and in our opinion,
the trial Court was right when it came to the conclusion that this
constitutes an act of ‘cruelty’.
13. Learned counsel would draw our attention to the judgment of
the Hon'ble Supreme Court in Rani Narasimha Sastry vs Rani Suneela
Rani reported in (2020) 18 SCC 247 to contend that the very fact of the wife
chose to lodge a false complaint of which, the husband was acquitted, would
amount to cruelty. Our attention is drawn to paragraph 13 of the said
judgment which reads as follows:
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'13. In the present case, the prosecution is launched by the
respondent against the appellant under Section 498-A IPC making
serious allegations in which the appellant had to undergo trial
which ultimately resulted in his acquittal. In the prosecution under
Section 498-A IPC not only acquittal has been recorded but
observations have been made that allegations of serious nature are
levelled against each other. The case set up by the appellant seeking
decree of divorce on the ground of cruelty has been established.
With regard to proceeding initiated by the respondent under Section
498-A IPC, the High Court made the following observation in para
15: (Rani Narsimha Sastry Case, SCC OnLine Hyd)
“15. ... Merely because the respondent has
sought for maintenance or has filed a complaint
against the petitioner for the offence punishable under
Section 498-A IPC, they cannot be said to be valid
grounds for holding that such a recourse adopted by
the respondent amounts to cruelty.”
The above observation of the High Court cannot be approved. It is
true that it is open for anyone to file complaint or lodge prosecution
for redressal of his or her grievances and lodge a first information
report for an offence also and mere lodging of complaint or FIR
cannot ipso facto be treated as cruelty. But, when a person
undergoes a trial in which he is acquitted of the allegation of offence
under Section 498-A IPC, levelled by the wife against the husband,
it cannot be accepted that no cruelty has been meted out on the
husband.'
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14. We have considered the submissions of the counsel on either
side. Adverting to the evidence on hand we find that the marriage happened
in the year 2009, a child was born on 17.11.2010. After the birth of the child
the wife went back to the husband's house. She however chose to leave the
matrimonial house during December 2010. Since she did not return despite
efforts the husband lodges a complaint with the police on 22.08.2011 under
Ex.P5. The wife gives an undertaking that she would go and live with him
under Ex.P6. Despite such undertaking, she does not get back. No doubt in
the evidence of R.W.1, R.W.2 and R.W.3 all of them would in unison depose
that she did not go back because the husband did not come and take her
back. This appears to be a very lame excuse. Thereafter the husband initiates
proceedings for restitution in H.M.O.P No.227 of 2011. After the initiation of
the restitution proceedings, the wife lodges a complaint on 27.12.2011
against the husband accusing him of all sorts of things including the demand
for dowry and physical violence. Having left the matrimonial home in
December 2010, the wife did not move the little finger till 27.12.2011 for
nearly a year before she lodged a complaint under the Domestic Violence
Act. This conduct of the wife in our opinion speaks volumes. If only the
evidence of the wife and her father to the effect that she was beaten up and
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therefore she left the matrimonial home was true, they should have lodged a
complaint with the police immediately. Admittedly, no complaint was lodged.
It is also claimed that the mother of the wife committed suicide because of
the matrimonial discord of a daughter. Even then there was no complaint to
the police. This conduct, we find, is very strange.
15. A complaint is made for the first time in December 2011 that
too after the husband launches proceeding under Section 9 of Hindu
Marriage Act for restitution. This would go long way to show the mental
status of the wife and her relatives. Even in cross examination of the husband
a suggestion is made to him that the wife did not get back to the matrimonial
house because the husband did not come and take her back as per custom.
All the three witnesses, namely, the wife, her father and her paternal uncle
have reiterated the same in their evidence. This establishes the mental frame
of a superiority feeling which they did not want to shed even after being
forced to visit a police station and being required to answer a claim for
restitution of conjugal rights in a Court of law. The response of the wife to
the police to the complaint under Ex.P6 is more intriguing. She had stated
that the husband has agreed to establish a separate house for themselves and
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she would go and live there. From this we could gather that the wife has been
persistent in her demand that she would not live with her in-laws. Such an
act by itself as pointed out by the Hon'ble Supreme Court in Narendra vs.
K.Meena referred to supra would amount to cruelty.
16. Apart from the above, the wife has lodged a compliant under
the Domestic Violence Act on 27.12.2011, based on which a miscellaneous
case was registered in M.C.No.9 of 2012 against the husband which was
disposed of by the District Munsif-cum-Judicial Magistrate, Perundurai on
07.01.2013 directing that the wife is entitled to residence under Section
19(8) of the Protection of Women from Domestic Violence Act, 2005. This
order was challenged in Crl.A.No.9 of 2013 before the district Court. The
learned Principal District Judge, Erode by order dated 27.03.2013 allowed
the appeal and remitted the matter back to the trial Court for fresh
consideration. Thereafter, in the year 2020 the husband was directed to pay
maintenance. It is submitted by the learned counsel that the said M.C., which
was remitted was disposed of directing the husband to pay maintenance as
against which an appeal has been filed by the husband which is said to be
pending. Therefore, it is clear that the other allegations made against the
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C.M.A.No.2327 of 2016
husband by the wife were found to be false. This will also buttress the claim
of the husband that the wife had lodged a complaint only to scuttle the
proceedings in H.M.O.P.No.227 of 2011.
17. As rightly argued by the learned counsel for respondent, the
Hon'ble Supreme Court in Rani Narasimha Sastry vs Rani Suneela Rani
referred to above has held that forcing the husband to undergo the ordeal of
trial on the basis of the false claim itself would amount to cruelty. From the
averments in the petition and the evidence that is available on record, we
find that what is alleged by the husband is mental cruelty. It is settled that
mental cruelty cannot be proved by direct evidence and could be gathered
from the circumstances and the preponderance of probabilities. As we have
indicated above, the evidence on record shows that it was the wife who was
unwilling to save the marriage and that she had persistently resisted attempts
for resumption of cohabitation made by the husband. She had also indulge in
lodging false complaint against the husband. The learned Family Judge had
concluded that the demand by the wife that the husband should set up a
private residence and persistent refusal to live with her husband despite his
efforts would amount to cruelty.
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18. In the light of the evidence which we had discussed above we
do not find any reason to interfere with the conclusions of the learned Family
Judge. The appeal therefore fails and it is accordingly dismissed. No costs.
Consequently, the connected miscellaneous petition is closed.
(R.S.M.,J.) (R.K.M.,J.)
18.08.2023
Index : No
Internet : Yes
Neutral Citation : No
Speaking order
rsi
To
The Family Judge,
Erode.
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C.M.A.No.2327 of 2016
R.SUBRAMANIAN, J.
and
R.KALAIMATHI, J.
rsi
C.M.A.No.2327 of 2016
and
C.M.P.No.16329 of 2016
18.08.2023
https://www.mhc.tn.gov.in/judis
