D.Gomathi vs T.Veerabahu
2023 Latest Caselaw 10695 Mad

                                                                                C.M.S.A.No.24 of 2021

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 18.08.2023

                                                         CORAM :

                                    THE HON'BLE MR. JUSTICE P.VELMURUGAN

                                                 C.M.S.A.No.24 of 2021
                                                         and
                                                 C.M.P.No.1975 of 2021


                     D.Gomathi                                                  ... Appellant

                                                           Vs.

                     T.Veerabahu                                               ... Respondent

                                     Civil Miscellaneous Second Appeal filed under Section 28 of
                     the Hindu Marriage Act, 1955 read with Section 100 C.P.C to set aside the
                     judgment and decree dated 05.08.2020 passed in H.M.C.M.A.No.1 of 2018
                     on the file of the I Additional District Judge, Tiruppur reversing the
                     judgment and decree dated 07.07.2017 passed in H.M.O.P.No.54 of 2012 on
                     the file of the Principal Sub Court, Tiruppur.

                                     For Appellant       : Mr.G.Saravanan

                                     For Respondent      : Mr.V.Krishnasamy




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                                                                                  C.M.S.A.No.24 of 2021

                                                    JUDGMENT

The present appeal has been filed against the judgment and

decree dated 05.08.2020 passed in H.M.C.M.A.No.1 of 2018 on the file of

the I Additional District Court, Tiruppur reversing the judgment and decree

dated 07.07.2017 passed in H.M.O.P.No.54 of 2012 on the file of the

Principal Sub Court, Tiruppur.

2. The appellant is the wife and the respondent is the husband.

The marriage between herself and the respondent took place on 09.05.2010.

After the pregnancy of the appellant, on 09.12.2010, the bangle function of

the appellant/wife was celebrated in the respondent's house on 09.12.2010,

and thereafter, she went to her parental home and thereafter, they were

blessed with a male child on 03.02.2011. On 05.06.2011, the appellant came

to her matrimonial home for attending the naming ceremony of the child and

on that day, the respondent demanded dowry and due to some wordy

quarrel, she left her matrimonial home. Thereafter, the appellant tried to live

with the respondent, but he refused to live with her and hence, she gave a

complaint against the respondent. During the enquiry, she came to know

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that the respondent has filed a petition seeking divorce on the ground of

mental cruelty under Section 13(1)(a) of Hindu Marriage Act, 1955 on the

file of the Principal Sub Court, Tiruppur in H.M.O.P.No.54 of 2012, which

came to be dismissed on 07.07.2017. Challenging the said dismissal, the

respondent/husband filed an appeal before the I Additional District Court,

Tiruppur in H.M.C.M.A.No.1 of 2018. The first appellate Court allowed

the appeal and dissolved the marriage solemnized between the appellant and

the respondent. Aggrieved by the same, the appellant/wife has come

forward with the present second appeal.

3. At the time of admission, this Court has formulated the

following substantial questions of law on 10.02.2021 :

                                              (i)Whether the First     Appellate Court      (I
                                  Additional District Court) has discretionary powers       to

overlook the facts recorded by based on evidence by the Principal Sub Court ? and

(ii) When there is no specific pleading in the petition substantiated by relevant evidence to corroborate averments stemming from after thoughts and when the

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divorce petition has been dismissed by the Sub Court, how could the Appellate Court reverse the order of lower Court ? ''

4. The learned counsel for the appellant submitted that the trial

Court dismissed the divorce petition on the ground that there was no

pleadings in the main petition in respect of cruelty and the evidence

adduced by the husband is not supported by pleadings. However, the First

Appellate Court, while allowing the appeal had taken into consideration the

subsequent events pleaded by the respondent/husband, but actually there

were no pleadings and substance in the divorce petition filed by the

respondent/husband. He further submitted that, without pleadings, no

amount of evidence can be let in and that evidence need not be looked into.

Further, the grounds raised in the petition for divorce are not sufficient to

grant divorce. In order to get divorce, the respondent has made certain bald

allegations, however, the allegations levelled in the petition are not

substantiated with the material evidence. Therefore, the impugned order of

the First Appellate Court is perverse, which warrants interference by this

Court.

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5.The learned counsel for the respondent submitted that the

respondent/husband has specifically pleaded in the petition about the act of

cruelty allegedly committed by her and that has been substantiated by him

through oral and documentary evidence, however, the trial Court failed to

appreciate the same and dismissed the petition. He further submitted that

even after the petition was filed by the respondent, the appellant/wife gave a

complaint before the All Women Police Station, for demand of dowry as

well as domestic violence, not only against the respondent/husband, but also

against his family members and relatives, which clearly shows that the

appellant with ill-will, made false complaint against the respondent/

husband. After investigation, the said complaint was closed as ‘mistake of

fact’, which clearly shows that, without any iota of materials, the appellant

made false allegations against the respondent and his family members and

the relatives. Though the trial Court failed to appreciate the evidence, the

divorce petition was dismissed, but the First Appellate Court rightly

appreciated the allegations levelled in the complaint and also considered the

subsequent events and the attitude of the appellant and the First Appellate

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Court had rightly dissolved the marriage between the appellant and the

respondent. There is no merit in the appeal and the same is liable to be

dismissed.

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

counsel for the respondent and perused the materials available on record.

7. Admittedly, the marriage between the parties was solemnised

on 09.05.2010 and out of their wedlock, a male child was born on

03.02.2011. The respondent filed divorce petition on 23.02.2012 on the

ground of mental cruelty and the same was dismissed by the trial Court,

however, he succeeded in the appeal and got divorce.

8. The main allegations taken by the respondent is that soon

after their marriage, the appellant/wife did not take care and show any

respect to the respondent and his mother and other family members. The

appellant frequently quarrelled with the respondent and his mother by using

unparliamentary words for petty reasons and she used to run away to her

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parents house without informing the respondent and his mother. The

appellant also demanded the respondent to come along with her to live at

her parental home at Tiruppur and since the respondent refused to do so, she

frequently fought with the respondent. On 09.12.2010, the bangle function

of the wife was celebrated in the respondent's house and on that day also,

she fought with the respondent and left the matrimonial home. Further, the

appellant did not inform the birth of the child to the respondent and his

parents. The respondent was informed about the child birth through a close

relative and he went to the appellant's house to see the child, but she did not

allow the respondent and his mother to touch the child. On 05.06.2011, the

appellant came to her matrimonial home for attending the naming ceremony

of the child and on that day also, without any valid reason, the appellant

fought with the respondent and his mother by using unparliamentary words

in front of his relatives and left her matrimonial home and thereafter, she did

not return back to her matrimonial home. The respondent tried to pacify

and take her back, but he could not succeed, and hence, he filed the divorce

petition on the ground of mental cruelty. However, the appellant has denied

all the allegations levelled by the respondent.

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9. The admitted fact is that both the parties are not residing

under the same roof. The appellant is residing in her parental home along

with her child. After filing of the divorce petition, she has filed a petition

under Section 9 of Hindu Marriage Act, 1955, for restitution of conjugal

rights in H.M.O.P.No.51 of 2016 and the same was dismissed, as against

which, she filed an appeal and the same is pending for consideration.

Further, after filing of the divorce petition, she filed a complaint against the

respondent and his family members and relatives for demand of dowry and a

complaint has also been preferred before the Protection Officer and the

same is pending and she is also getting maintenance from the respondent in

the domestic violence petition, which clearly shows that the marriage took

place in the year 2010 and on 09.12.2010 onwards, both the parties are

living separately.

10. It is settled principle of law that pleadings include petition

and counter statement. Further, original facts have to be pleaded with

evidence. In the case on hand, the respondent pleaded that the

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appellant/wife caused mental cruelty by scolding him and his mother with

unparliamentary words and also left the matrimonial home without any valid

reasons. Thereafter, he took various steps to bring her back to the

matrimonial home, but he could not succeed and hence, he filed divorce

petition, even though the birth of the child was also not informed to him and

also she has not even allowed the respondent to touch his child. In the proof

affidavit, all the above allegations are mentioned and that the proof affidavit

is nothing but the averments made in the petition. P.W.2, the relative of the

respondent, has also spoken about the behaviour of the appellant and how

she scolded the respondent and his mother with unparliamentary words.

11. Though the trial Court has come to the conclusion that all

the facts have not been pleaded, whereas, on a perusal of the main petition,

it is seen that the respondent has pleaded mental cruelty caused by the

appellant/wife and the First Appellate Court had rightly appreciated the

entire evidence and also considered the subsequent events after filing of the

main petition and allowed the appeal.

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12. The contention of the learned counsel for the appellant is

that there were no pleadings in the main divorce petition and that without

pleadings, the respondent had let in evidence. Without pleadings, if any,

evidence is let in, then that can be taken into consideration. The First

Appellate Court erroneously appreciated the evidence, without pleadings,

and therefore, learned counsel for the appellant submitted that the

substantial questions of law emerges.

13. As far as the substantial questions of laws are concerned, it

is clear that the Appellate Court is the final Court of fact finding and it can

re-appreciate the entire evidence and give independent findings, and it need

or need not to endorse the same view taken by the trial Court. The First

Appellate Court, while re-appreciating the entire evidence, found that the

appellant/wife has substantiated the grounds in the main petition, however,

the trial Court failed to look into all these factual findings and dismissed the

divorce petition and hence, no substantial questions of law need be

considered/answered in this appeal.

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14. This Court finds that the respondent-husband pleaded for

divorce on the ground that the appellant/wife caused mental cruelty and

scolded him and his mother even by using unparliamentary words in front of

his relatives and other family members and without any valid reasons, she

left the matrimonial home and she also did not inform them about the birth

of the child and all these factual aspects were rightly substantiated by the

respondent/husband. Therefore, there is no perversity in the findings given

by the First Appellate Court. The fact remains that from 2010 till 2023, the

appellant/wife is residing under the roof of her parents and that she has not

proved as to what steps are taken by her to come back to her matrimonial

home or that the respondent/husband refused to take her back.

15. Under those circumstances, this Court does not

find any perversity in the findings given by the first appellate Court and no

substantial questions of law are answered accordingly, and there is no merit

in this appeal.

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16. This Civil Miscellaneous Second Appeal is dismissed,

accordingly. There shall be no order as to costs. Consequently, connected

miscellaneous petition is closed.

18.08.2023

Index: Yes/No Speaking Order/Non-Speaking Order Neutral Citation Case : Yes/No ms

To

1. The I Additional District Judge, Tiruppur.

2.The Principal Sub Court, Tiruppur.

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

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P.VELMURUGAN, J.

ms

C.M.S.A.No.24 of 2021

18.08.2023

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