Madras High Court
V.Vimalraj vs J.Jeyasudha on 10 September, 2024
Author: P.Velmurugan
Bench: P.Velmurugan
C.M.A(MD)No.776 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated :10.09.2024
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
AND
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
C.M.A(MD)No.776 of 2018
and
C.M.P.(MD).No.8727 of 2018
V.Vimalraj ...Appellant
Vs.
J.Jeyasudha ...Respondent
PRAYER:- Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, to set aside the order made in H.M.O.P.No.68
of 2016 dated 28.04.2017, on the file of the Family Court, Sivagangai.
For Appellant : Mr.R.Sreenivasan
For Respondent : Mr.S.M.A.Jinnah
JUDGMENT
The husband is the appellant and he has filed this Civil
Miscellaneous Appeal, challenging the decree for divorce granted by the
Learned Judge, Family Court, Sivagangai in H.M.O.P.No. 68 of 2016
filed by his wife.
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For the better appreciation of the facts, parties are described
hereunder as “husband” and “wife”.
2. The wife filed a petition in H.M.O.P.No.68 of 2016, seeking
divorce against the appellant/husband with the following averments:
2.1. The appellant married the respondent on 23.11.2012 and
during their wedlock, a girl child was born on 04.01.2014. The husband
suspected the conduct of the wife from the day one of the marriage and
endlessly caused intolerable harassment to her. Hence, she left the
matrimonial home in the month of April 2016 and thereafter, many
compromise talks ended in vain. Subsequently, the appellant is said to
have assaulted his wife and hence she made a police complaint before
the All Women Police Station, Sivagangai on 20.08.2016. Finally, she
filed the above HMOP under section 13(1)(ia) of Hindu Marriage Act.
2.2. The appellant filed the counter denying the above allegation
and the marriage between the appellant and the respondent was love cum
arranged marriage and both belong to different communities and only due
to the interference of the mother in law of the husband and ill- advise of
the mother in law, there was a separation. He further stated that since
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both entered into love marriage, he never suspected the conduct of the
wife. He never demanded any dowry. The wife herself took 4 ½
sovereigns of the gold jewels belonging to him. Immediately, after the
marriage, she insisted to live separately and continuously caused
problem and disturbance to him. She always intended to dominate him
and never gave any respect to him as a husband. Even after the separate
matrimonial home at Kerala, most of the time she never cooked and
asked to by food from hotel. Even for small issues he scolded him
in front of others. He tolerated everything with the fond hope that the
same would be resolved after the birth of child. She also did a second
abortion without his knowledge. In the complaint made before the police
station, wife gave an undertaking to live with him and allowed him to
see the child. But, she filed the divorce petition. There was no ground of
cruelty and they had only petty quarrel and he is ready to live with her
and hence he seeks for dismissal of the divorce petition.
2.3.Wife has examined herself as P.W.1 and examined P.W.2 on her
side and marked Ex.P1 to Ex.P5 to substantiate her case of cruelty. The
appellant examined himself as R.W.1 and examined also R.W.2 on his
side. No documents were filed on his side. The learned judge family
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court after considering the entire evidence, decreed the H.M.O.P.No. 68
of 2016 and granted divorce by passing the impugned order dated
28.04.2017. Challenging the same appellant filed this appeal.
3. The Learned counsel for the appellant apart from the detailed
oral submission, has filed the detailed written arguments with the dates
and events. The sum and substance of the argument of the learned
counsel for the appellant are as follows :
3.1. The Learned Judge, Family Court after holding that there was
no evidence to prove the demand of dowry made by the appellant, ought
to have dismissed the divorce petition when the allegation that the wife
was subjected to harassment by suspecting her conduct had not been
proved.
3.2. The Learned Judge, Family Court failed to consider that this is
a case of trivial issues and only petty quarrels had happened between the
spouses and there was no proof of intolerable harassment made by the
appellant to grant the divorce on the ground of cruelty.
3.3. The Learned Judge, Family Court failed to consider that mere
long and continued separation of the couple without any cause does not
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amount to cruelty and in the interest of the child, impugned order of
granting divorce is liable to be set aside.
3.4. The Learned counsel for the husband to substantiate his
argument submitted the following precedents:
3.4.1. 1975-2-SCC-326 Dr.N.G.Dastane Vs Mrs.S.Dastance
3.4.2. 2005-2-SCC-22-A.Jaya ChandraVs Aneel Kumar
3.4.3.2010-3-MWN (civil) -129 Rajalakshmi Vs Vairamuth
3.4.4. 2012-3-MWN(Civil)-397-Sukumar.A Vs K.S.Chitra
3.4.5. 2013-3-MWN (Civil)-55-Saravanakumar Vs M.Parameswar.
3.4.6. 2015-11-SCC-539 Ramachandar Vs Ananta
3.4.7. 2021-1-CTC-504-V.R.RajkumaranVs B.S. Lavanya
3.4.8.2021-1-MWN(Civil 1) Panneer Selvam Vs Sivagami.
4. The Learned counsel for the wife submitted that living with a
person suspecting every act of the spouse with doubtful eyes amounts to
intolerable cruelty. In the matrimonial life, basic tenet of the matrimonial
life is mutual trust but in this case the appellant had been suspecting the
conduct of the wife in every aspect and hence there is a matrimonial
discord which had developed into broken glass pieces. The conduct of
the appellant right from the marriage day are not appreciable and all her
steps to safeguard the martial life with utmost tolerance ended in vain.
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The offer of the husband to reunite is not bonafide and also he never took
any steps to resume the matrimonial life and filed this appeal only to
make further harassment. Therefore, the learned trial judge correctly
appreciated the circumstances of the case and granted divorce.
5. This court considered the rival submissions made by the learned
counsel appearing for the appellant and the respondent and perused the
materials available on record and the precedents relied upon by them.
6. Now the question to be decided in this appeal is that whether the
court below is correct in granting divorce in favour of the wife?
7. Both husband and wife belong to different communities and
entered into marriage on 23.11.2012 at Sivagangai. At the time of the
marriage, husband was living in his native village situated at
Dhasavanayackanpatti Village, Moolachathiram with his family members
as a joint family. He was running auto finance at his village. After
marriage, she was taken to the village and in the village, within few
months, he is said to have suspected her fidelity. He is said to have
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questioned about her conduct of seeing the driver of the car. The family
members also have had similar suspicion over her conduct. Therefore,
some matrimonial discord had started within few months from the date of
the marriage and the same had continued. Even after the birth of the
female child on 04.01.2014, the suspicion has not dried up and continued
as a stumbling block for the happy matrimonial life. Even he made
offensive conversation by linking her with the appellant's own brother in
law and hence the wife attempted to commit suicide by drinking
kerosene and appellant himself driven the wife from the matrimonial
home in the odd hour. Thereafter, he continued to cause disturbance to
her life in her parent’s house by illegally trespassing into the house and
forcibly took the child which resulted into preferring complaint before
the police. She deposed that she never did abortion and there was no
pregnancy as pleaded by the husband. The evidence of the wife in the
above aspect is cogent and trustworthy. PW2 also deposed about the
incident that she was informed by PW1 about the incident that she was
subjected to cruelty by making unfounded allegation against her by
suspecting her fidelity by linking her with the own brother in law of the
appellant and she attempted to commit suicide. The said evidence of the
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P.W.2 has to be believed. Even though it is hear say evidence, the same is
duly informed by the P.W.1 to P.W.2 and the same has to be taken into
consideration. Apart from that, she also deposed that there was a
panchayat in her house in the month of April 2016. Apart from that the
appellant himself admitted that there was a fight between the spouses in
April 2016 and he deposed that he never took steps to live with her by
issuing a legal notice and filing petition for restitution of conjugal right.
R.W.2 also admitted that frequent quarrel had taken place between the
appellant and the respondent. In the said circumstances the Learned Trial
Judge correctly appreciated the circumstances of the case and rendered a
finding that the appellant had suspected her conduct and thereby caused
cruelty to the wife. The suspicion had not ended even after the birth of
the child and it continued. Earlier, she was subjected to cruelty by having
suspicion linking her with the driver. After the birth of child, the
appellant and his family members had suspicion that she had relationship
with his own brother in law. This type of the conduct of having suspicion
over her every conduct is nothing but cruelty. The same amounts to
intolerable harassment. When the appellant suspected her character by
seeing her every act wearing a dark glass and magnified every incident
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with jaundiced eye, the court cannot expect her to patch up with the
husband and hence this case is not the case of trivial issues. The
matrimonial trust is the foundation of the matrimonial life. When there is
no trust on the part of either party, there is no scope for the peaceful
matrimonial life. As pleaded by the wife, her matrimonial tolerance
crossed all levels and resulted in irreparable damage to the matrimonial
life after making allegation of illegal conduct with his own brother in
law. Therefore, the same amounts to cruelty and hence the Learned Trial
Judge rightly granted divorce.
8. The “Lord Denning” has observed in his celebrated judgment in
the case of Sheldon Vs. Sheldon reported in 1966 (1) AIIER 257
“categories of cruelty are not closed” and the Hon’ble Supreme Court
followed the same in the case of Shobha Rani v. Madhukar Reddi,
reported in 1988 (1) SCC 105 and subsequent decisions and reiterated the
principle that “each case rests on its own facts”. Therefore, the
precedents relied by the husband is not applicable to the present case, on
other hand the principle laid down by the Hon'ble Supreme Court in the
above case is applicable to the present case. Causing disturbance to the
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wife by suspecting her character and making character assassination by
linking her relationship with own brother in law of the appellant amounts
to mental cruelty. Apart from that he caused physical assault upon the
wife and also he illegally had taken the female child from the custody of
the wife and the same resulted into filing of criminal complaint. In all
aspects, this court finds no ground to dismiss the divorce petition filed by
the wife.
9. Accordingly, this Civil Miscellaneous Appeal stands dismissed
and the order passed in H.M.O.P.No.68 of 2016 dated 28.04.2017, by the
learned Judge, Family Court, Sivagangai, is hereby confirmed. There
shall be no order as to costs. Consequently, connected miscellaneous
petition is closed.
[P.V.J,] [K.K.R.K.J,]
10.09.2024
NCC : Yes/No
Index : Yes/No
sbn
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To
1.The Motor Accident Claims Tribunal,
The Chief Judicial Magistrate, Sivagangai.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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P.VELMURUGAN.J.,
and
K.K.RAMAKRISHNAN.J.,
sbn
and
10.09.2024
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