Bakul Krishna Kotian vs Mrs.Jyothi
2023 Latest Caselaw 11126 Mad

                                                                                C.M.S.A.No.33 of 2019

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 24.08.2023

                                                          CORAM:

                                   THE HONOURABLE MR. JUSTICE P.VELMURUGAN


                                       Civil Miscellaneous Second Appeal No.33 of 2019


                      Bakul Krishna Kotian                                 ... Appellant

                                                        -Versus-

                      Mrs.Jyothi                                          ... Respondent

                      Prayer :- This Civil Miscellaneous Second Appeals is filed under Section
                      13(1)(ia)(ib) and 3 of Hindu Marriage Act, 1955 read with Section 100 of
                      CPC., to set aside the Judgment and decree dated 27.04.2019 passed in
                      C.M.A.No.19 of 2017 by the Principal District Court, Chengalpet in having
                      confirmed the fair order and decreetal order passed in H.M.O.P.No.172 of
                      2010 by the Subordinate Court, Tambaram, in its order dated 29.09.2016.


                                   For Appellant            : Mr.M.Premkumar
                                   For Respondent           : Mr.N.Kishore Kumar




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                                                                                    C.M.S.A.No.33 of 2019



                                                           JUDGMENT

This Civil Miscellaneous Second Appeal is filed to set aside the

Judgment and decree dated 27.04.2019 passed in C.M.A.No.19 of 2017 by

the Principal District Court, Chengalpet, in having confirmed the fair and

decretal order passed in H.M.O.P.No.172 of 2010 by the Subordinate Court,

Tambaram, in its order dated 29.09.2016.

2. When the matter was taken up for hearing on 09.08.2023, the

learned counsel for the respondent/wife was present and there was no

representation for the appellant/husband. Hence, the matter was ordered to

be listed today (24.08.2023) under the caption "for dismissal".

3. Today (24.08.2023), when the matter is taken up for hearing, both

the learned counsel for the appellant and the learned counsel for the

respondent are present.

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

had filed a divorce petition under Sections 13(1)(ia)(ib) and 3 of the Hindu

Marriage Act, 1955 for cruelty and desertion, before the Subordinate Judge,

Tambaram, in HMOP No.172 of 2010. After recording the evidence and

completion of enquiry, the learned Subordinate Judge dismissed the petition

for divorce filed by the husband. Challenging the said order of the learned

Subordinate Judge, the husband filed an appeal before the Principal District

Judge, Kanchipuram at Chengalpattu, in CMA No.19 of 2017. The First

Appellate Court, after hearing the appeal, dismissed the same. Against

which, the husband has filed the present second appeal.

5. Though the appellant/husband has filed this second appeal

raising the following substantial questions of law, so far, this Court has not

formulated any substantial question of law;

A. Whether the Court below had failed to consider the specific case of the appellant that the respondent is suffering from skin disease prior to the marriage and the treatment taken by her for the said disease which was

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suppressed by the parents of the respondent during the marriage proposal and the treatment taken by her subsequent to the marriage?

B. Whether the Court below had considered (Exhibit-P8) the medical Prescription of the respondent vide which would clinches the issue that the respondent was suffering from skin disease prior to marriage and after marriage?

C. Whether the Court below had appreciated the pleadings of the appellant in so far in various infliction of mental cruelty by the respondent within a short span of marital life when no one would have expected it as they would be under the belief that marital life will be colourful, joyful and it was shattered by the act of the respondent?

D. Whether the Court below had considered the long separation between the appellant and the respondent and the same would be a valid ground for divorce and the

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same was not duly considered and appreciated by the Court below?

E. Whether the Court below had considered the specific grounds of the appellant for divorce when the respondent had voluntarily left the matrimonial home without even informing the elders of the family and further the respondent had not come forward to join with the appellant by way of filing any petition for reunion?

6. The learned counsel for the appellant/husband would submit

that the respondent/wife suppressed her age and she is elder to the

appellant/husband. She also suffered from some skin disease and the same

was suppressed before the marriage and she is also a hysteria patient. All

these facts were suppressed earlier to the marriage and only after the

marriage, the appellant/husband came to know of the same. Further, the

respondent/wife left the matrimonial home without any valid reason. The

appellant/husband took much efforts to take her back to the matrimonial

home, despite that, all the efforts ended in vain and he could not succeed to

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bring back the respondent/wife to the matrimonial home. The

appellant/husband had sent a notice to the respondent/wife and after

receiving the notice, she filed a false complaint against the

appellant/husband and subsequently, the same was closed as false. He

further submitted that the appellant/husband had earlier filed a petition for

divorce in HMOP No.8 of 2008 and since the respondent/wife had

expressed her willingness to reside with the appellant/husband, the

appellant/husband had withdrawn the said HMOP. Even thereafter, the

appellant/husband took much efforts to take the respondent/wife back to the

matrimonial home. But without any reason, she refused to come back and

harassed him and also caused mental cruelty not only to the

appellant/husband, but also to the family members of the appellant/husband.

Both the Courts below have failed to appreciate the materials. More over,

the appellate Court traversed beyond the grounds taken by the appellant/

husband and has given different reasons for the dismissal of the appeal and

confirmed the order passed by the trial Court. Even though the divorce

petition was filed in the year 2010, till 2023, the respondent/wife is not

ready to live with the appellant/husband. Even, the long period of deprived

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cohabitation is also a ground for divorce. Therefore, long separation is also

a reason to get divorce for a spouse. The learned counsel placed reliance of

the judgment of the Division Bench of this Court in C.M.A.No.3829 of

2019, dated 20.01.2021 wherein, this Court has considered the long period

of separation and he stated that the marriage between the appellant and the

respondent took place on 24.09.2007 and the respondent/wife left the

matrimonial home on 30.03.2008 itself. Though the appellant/husband took

much efforts to take her back to the matrimonial home and also sent notice,

after the receipt of the notice, the respondent/wife simply sent reply to the

notice and she had not taken any steps to come back to the matrimonial

home. More over, she sent a false reply and also filed a private complaint

with false materials on 17.09.2008 against the appellant/husband and his

family members, which also caused cruelty to the appellant/husband.

Subsequently, the said complaint was quashed, which itself would clearly

show that the respondent/wife went to the extent of filing false complaint

not only against her husband, but also against her in-laws. Under those

circumstances, though the appellant/husband pleaded and substantiated all

the materials to meet out the grounds under Section 13(1)(i-a)(i-b) of the

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Hindu Marriage Act, unfortunately, both the Courts below failed to consider

the materials placed by both the parties. Further, the respondent/wife has

not filed any petition under Section 9 of the Hindu Marriage Act for

restitution of conjugal rights, which would clearly show that the

respondent/wife is not interested to live with the appellant/husband.

However, the respondent/wife filed a petition for maintenance and she is

also getting maintenance, which clearly shows that the only motive of the

respondent/wife is to get maintenance from the appellant/husband and not to

live with him. Therefore, the judgments of both the Courts below are

erroneous. More over, the First Appellate Court has not considered the

pleadings and evidence and it traversed beyond the scope of the pleadings

and evidence and the grounds on which the appellant/husband sought for

divorce, which warrants interference. Since, the First Appellate Court had

given the findings beyond the scope of appeal, it leads to the formulation of

substantial question of law.

7. The learned counsel for the respondent/wife would submit

that the appellant/husband has suppressed several material facts. Though he

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filed a petition for divorce on the very same ground in the year 2008,

because of the subsequent developments, it was withdrawn and

subsequently, without any cause of action and without any change of

circumstances, he filed another application on the very same grounds. Since

both the parties agreed to join together during the pendency of the earlier

petition, the earlier private complaint given by the respondent/wife was

allowed to be quashed and it is not as if the complaint was falsely made and

therefore, the Court quashed the private complaint. He would submit that

the appellant/husband only caused mental cruelty to the respondent/wife and

refused to accept her. The respondent/wife is a typical Indian woman and

she wants to live only with the appellant/husband and she never suppressed

any fact either the age or any disease. Even the materials would clearly

show that she only took treatment for scar and not for any incurable or

communicable disease. The appellant/husband only has invented the reasons

for getting divorce and since he could not succeed in the earlier petition, he

tried to manage with that. Though he made an undertaking before the Court

and the respondent/wife was always ready and willing to join the

appellant/husband, he refused to take her back and again, he has filed the

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petition for divorce on the very same grounds raised in the earlier petition.

Further, the appellant/husband has not substantiated the grounds taken by

him. Therefore, both the trial Court as well as before the First Appellate

Court rightly appreciated and re-appreciated the evidence in proper

perspective and given the findings that the appellant/husband has not

proved his case and the reasons for getting divorce. Therefore, no

substantial question of law arises for consideration. Even the substantial

questions of law which have been raised by the appellant/husband in the

grounds of appeal, are not substantial questions of law. Both the Courts

below have given the factual findings based on the materials, which do not

lead to any substantial question of law and there is no perversity in the

appreciation of evidence by the Courts below. Therefore, the second appeal

is liable to be dismissed.

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

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

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9. Admittedly the appellant is the husband. The respondent is

the wife. The appellant/husband had filed a petition for divorce under

Sections 13(1)(ia)(ib) and 3 of the Hindu Marriage Act, 1955 for cruelty as

well as for desertion stating that the respondent/wife suppressed certain

material facts regarding her age and also ailment. Only after the marriage,

he came to know from the temperament of the respondent/wife that she is

mentally unbalanced and she is not fit for leading the matrimonial life.

Further, she went to the extent of making false complaint against the

appellant/husband and also against her in-laws, which caused him mental

cruelty. After leaving the matrimonial home, though the appellant/husband

took much pain to take her back to the matrimonial home, she did not

accede his request and she left the matrimonial home and deserted the

appellant/husband beyond the statutory period and also caused him cruelty.

10. Though the respondent/wife has denied all the allegations,

a reading of the materials shows that the appellant/husband, during

evidence, has admitted that the respondent/wife had disclosed her age and

date of birth even prior to the marriage. Further, though the

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appellant/husband has stated about the ailment of the respondent/wife, i.e.

skin disease and mentally unbalanced, no expert opinion was called for or

she was not subjected to any clinical or medical examination and there is no

material evidence to prove the same. Therefore, the appellant/husband has

not proved that the respondent/wife suffered from communicable disease or

incurable disease. Simply, the appellant/husband has filed some medical

prescriptions and the results. Therefore, both the Courts below have rightly

appreciated the evidence and given the findings that the appellant/husband

has not substantiated his pleadings in the manner known to law.

11. Further, the materials show that the appellant/husband has

not examined any independent witness and he examined himself as P.W.1

and he was the only witness examined. He has not substantiated the

allegations levelled against the respondent/wife in the complaint. In the

absence of any medical or independent evidence, both the Courts below

have rightly come to the conclusion that the appellant/husband has failed to

prove his case. Though the appellant/husband admitted that the earlier

petition filed him for divorce, was dismissed as withdrawn, he has not

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substantiated the fresh cause of action for filing the subsequent petition for

divorce. Though the appellant/husband has given the reason for filing the

petition as suppression of ailment, the First Appellate Court has dismissed

the petition on the ground that the appellant has not established the same

with documents.

12. Therefore, on a perusal of the records this Court finds that

no substantial question of law arises for consideration in the present appeal,

since all the findings are based on the factual aspects and the materials

available before the Court. If the Courts below had failed to appreciate the

available materials or erroneously appreciated the materials, then it will lead

to substantial question of law, whereas, in this case, the findings of both the

Courts below are entirely based on the materials available on record and

there is no perversity in appreciation of the evidence. Therefore, no

substantial question of law arises for consideration in this appeal.

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13. The appellant has not canvassed that substantial question of

law is existing in the Second Appeal and the Court need to formulate

substantial question of law and to answer for the same. Further, the decision

referred to by the learned counsel for the appellant is not applicable to the

present case on hand. Both the cases are entirely different and the facts and

circumstances of the case referred to by the learned counsel for the

appellant, is distinct from the present case on hand.

14. On a careful reading of the entire materials, this Court finds

that no substantial question of law arises for consideration and the findings

of both the Courts below are only on factual aspects. Under these

circumstances, there is no merit in the appeal and the appeal is liable to be

dismissed.

15. Accordingly, the Civil Miscellaneous Second Appeal is

dismissed. There shall be no order as to costs.

24.08.2023

Index : Yes / No Speaking Order: Yes/No Neutral Citation: Yes/No ksa-2

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To

1. The Principal District Judge, Chengalpet

2. The Subordinate Judge, Tambaram,

3.The Section Officer, VR Section, High Court, Madras.

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P.VELMURUGAN. J.

ksa-2

Civil Miscellaneous Second Appeal No.33 of 2019

24.08.2023

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