Madras High Court
B.Senthil Alias B. Pratheep Kumar vs T.S.Kasthuri on 10 September, 2024
Author: J.Nisha Banu
Bench: J.Nisha Banu
C.M.A.Nos.2809 & 2810 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 23.07.2024
PRONOUNCED ON : 10.09.2024
CORAM:
THE HON'BLE MRS. JUSTICE J.NISHA BANU
AND
THE HON'BLE MR. JUSTICE P.DHANABAL
C.M.A.Nos.2809 & 2810 of 2015
and C.M.P.Nos.9667, 9668 & 7197 of 2024
AND Crl.R.C.No.1142 of 2015
B.Senthil alias B. Pratheep Kumar ... Appellant in both C.M.A's.
/ Petitioner in Crl.R.C.
vs.
T.S.Kasthuri ... Respondent in both C.M.A's.
/ Respondent in Crl.R.C.
PRAYER in C.M.A.No.2809 of 2015: Civil Miscellaneous Appeal filed
under Section 19 of the Family Court Act, to set aside the common
judgment and decree made in so far as H.M.O.P.No. 254 of 2010 dated
23.06.2015 on the file of the Principal Family Court, Coimbatore and to
allow the Civil Miscellaneous Appeal to pass a judgment and decree
dismissing the HMOP filed by the respondent.
PRAYER in C.M.A.No.2810 of 2015: Civil Miscellaneous Appeal filed
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C.M.A.Nos.2809 & 2810 of 2015
under Section 19 of the Family Court Act, to set aside the order made in
H.M.O.P.No. 434 of 2011 dated 23.06.2015 on the file of the Principal
Family Court, Coimbatore and to allow the Civil Miscellaneous Appeal to
pass a judgment and decree granting Divorce, by dissolving the marriage
solemnised between the appellant and the respondent on 27.08.2007 at
Trichy.
PRAYER in Crl.R.C.No. 1142 of 2015: Criminal Revision Case filed
under section 397 of Code of Criminal Procedure Code, to set aside the
common judgment and decree made in so far as M.C.No.71 of 2010 dated
23.06.2015, on the file of the Principal Family Court, Coimbatore and to
allow the Criminal Revision Petition to pass an order dismissing the
Maintenance case filed by the respondent herein.
In all cases:
For Appellant : Mr. R.Sankarasubbu
in both appeals
For Petitioner
in Crl.R.C.No.1142 of 2015 : Mrs. Jothilakshmi
For Respondent : Mr.B.Nedunchezhiyan
in both appeals
and in Crl.R.C.No.1142 of 2015
******
COMMON JUDGMENT
(Judgment of this Court made by J. NISHA BANU, J.)
These Civil Miscellaneous Appeals have been preferred as against
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the common order passed in H.M.O.P.No.434 of 2011 and
H.M.O.P.No.254 of 2010 on the file of the Principal Judge, Family Court,
Coimbatore dated 23.06.2015.
2. The appellant/husband has filed the petition in
H.M.O.P.No.434 of 2011 to dissolve the marriage and the respondent/wife
has filed the petition in H.M.O.P.No.254 of 2010 for restitution of conjugal
rights and a petition in M.C.No.71 of 2010 has been filed seeking for
maintenance and the trial Court has granted Rs.12,000/- (Rupees Twelve
Thousand only) as interim maintenance to the respondent/wife vide order
dated dated 23.06.2015. Meanwhile, the appellant filed Crl.R.C.No.1142 of
2015, to set aside the common judgment and decree made in M.C.No.71 of
2010 dated 23.06.2015. Aggrieved by the above said orders, the present
appeals have been preferred by the appellant/husband. C.M.A.No. 2809 of
2015 is arising out of H.M.O.P.No. 254 of 2010 and C.M.A.No. 2810 of
2015 is arising out of H.M.O.P.No. 434 of 2011.
3. The case of the appellant/husband is that the marriage between
the appellant and the respondent took place on 27.08.2007 at Thirchirapalli
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C.M.A.Nos.2809 & 2810 of 2015
as per Hindu rites and customs. After marriage, they lived at Indira Nagar,
Bangalore. The marital life between the appellant and the respondent was
not satisfactory and very often the respondent/wife quarrelled with the
appellant/husband and also with his neighbours and friends, thereby
insisting him to send the respondent to her parental house situated at
Coimbatore.
4. Further, the respondent/wife frequently threatened the appellant
by stating that she will commit suicide if her demand was not met out.
Meanwhile, the appellant/husband got transferred from Bangalore to
Chennai. Even thereafter, her behaviour remained unchanged and she
lodged a false complaint against the appellant, as a result of which, the
police had assaulted the appellant.
5. Finally on 19.12.2009, the respondent/wife lodged a false
complaint before the W-2 All Women Police Station, Madipakkam and
they advised the parties for reunion. The respondent with an intention to
harass, included her in-law's names by lodging false complaint against
them. Therefore, the respondent caused cruelty to the appellant. As a result
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of which, the appellant/husband filed a petition seeking for grantof divorce.
6. The facts stated by the appellant are not disputed by the
respondent. At the time of marriage, the appellant was working at
Bangalore and he never showed any love and affection towards the
respondent. The appellant always demanded dowry from the parents of the
respondent. Since his demand was refused, he assaulted the respondent as a
result of which, she sustained severe injuries and underwent treatment at
Manipal Hospital, Bangalore on 31.12.2007. Thereafter, the respondent
was driven out from her matrimonial home.
7. The learned counsel for the respondent submitted that when the
appellant and the respondent were residing at Chennai, the
appellant/husband kicked the respondent's mother without any respect, and
the respondent tolerated the attitude of the appellant with a fond hope that
he would mend his ways one day or the other. But the same ended in vain.
The appellant was suffering from depression. Often he calls the father of the
respondent in odd hours and asked him to take the respondent with him to
his house. Unable to tolerate the harassment of the appellant, she lodged a
complaint before the Adambakkam Police Station on 11.11.2008 and again
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before the W-2 Madipakkam All Women Police Station on 19.12.2009.
8. Furthermore, the police officials have also enquired into the matter
and advised the appellant to live together with the respondent. Since they
have no issues out of the wedlock, the respondent asked the appellant to
have medical treatment but he refused to do so. The main grievance of the
respondent is that even when she is willing to live with the appellant/
husband as a dutiful wife, the appellant has filed the petition seeking
divorce. Therefore, the respondent filed a petition for restitution of conjugal
rights and a maintenance case in M.C.No.71 of 2010.
9. Before the trial court, the petitions were jointly tried along with
M.C.No.71 of 2010. On the side of appellant, he was examined as P.W.1
and marked Ex. P1 to P15. Whereas, the respondent R.W.1 to R.W.4 were
examined and marked Ex. R1 to R34.
10. After analysing the evidences adduced on both sides, the Trial
Court has dismissed the petition filed by the appellant/Husband for granting
divorce and allowed the petition filed by the respondent/wife for restitution
of conjugal rights. Further, the Trial Court also awarded maintenance of
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Rs.12,000/- per month and the same was also challenged through
Crl.R.C.No.1142 of 2015 on the file of this Court seeking revision of the
maintenance Award granted by the Court below vide order dated
23.06.2015.
11. This Court, vide an interim order dated 30.10.2015, imposed a
conditional order to pay 50% of the maintenance amount i.e. Rs.6,000/- per
month (Rupees Six Thousand only) to the credit of M.C.No.71 of 2010 and
till date, maintenance amount of Rs.12,50,000/- (Rupees Twelve Lakhs
Fifty Thousand only) has been paid by the appellant to the respondent.
12. This Court heard both sides and perused the materials available
on records.
13. The point for determination in C.M.A.No. 2809 of 2015 is that,
'whether the respondent/wife is entitled to decree for Restitution of
Conjugal Rights as against the appellant?' and the point for determination
in C.M.A.No. 2810 of 2015 is that 'whether the appellant/husband is
entitled to decree for divorce on the ground of cruelty as against the
respondent/wife?'
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14. In this case, there is no dispute in respect of relationship of the
parties as husband and wife living without children. The appellant/husband
has filed petition for granting divorce on the ground of cruelty and the
respondent/wife also filed a petition for restitution of conjugal rights. Both
the petitions were tried together along with the M.C.No.71 of 2010 and the
Trial Court has dismissed the divorce petition and allowed the petition of
restitution of conjugal rights and awarded a maintenance of Rs.12,000/- per
month and same was also challenged through revision petition in
Crl.R.C.No.1142 of 2015. The said revision also tagged along with these
appeals and heard together.
15. On careful perusal of the evidence adduced on both sides, it is
clear that there is misunderstanding between the appellant and the
respondent and so she had given complaints before the Adambakkam Police
station on 11.11.2008 and again before W-2 Madipakkam All Women
Police Station on 19.12.2009. Within a period of one month, two
complaints were given on two different dates before two police stations.
Further as per the evidence of P.W.1, the respondent has threatened the
appellant of committing suicide frequently. Therefore the said acts of the
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respondent/wife would cause cruelty to the appellant/husband.
16. Though the respondent/wife has filed the petition for restitution
of conjugal rights , the evidence of R.W.1 shows that the respondent is not
ready to live with the appellant and it is admitted by both the parties that
they are living separately from the year 2010 onwards. Therefore, the long
separation, non co-habitation and the complete break down of all
meaningful bonds and the existing bitterness between the appellant and the
respondent has to be treated as cruelty under Section 31(1)(a) of 1955 Act,
as per the dictum laid down by the Hon'ble Supreme Court in Shri Rakesh
Raman Vs. Smt. Kavita Reported in 2023 SSC online SC 497. Therefore,
the long separation and non-cohabitation could not be brushed aside while
considering the petition for divorce.
17. The Trial Court failed to consider the aspects of making threats
to commit suicide and by giving false complaint as against the
appellant/husband and also failed to consider the long separation of the
parties. Therefore, the fair and decreetal order passed by the Trial Court are
liable to be set aside.
18. During the course of arguments, the learned counsel appearing for
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the appellant argued that the appellant/husband is willing to pay permanent
alimony of Rs.15,00,000/- (Rupees Fifteen Lakhs Only) to the respondent
wife. The learned counsel for the respondent, after consulting with the
respondent represented that, the respondent is not willing to receive the
permanent alimony.
19. Perusal of the order passed in M.C.No.71 of 2010 reveals that the
trial Court has granted Rs.12,000/- (Rupees Twelve Thousand only) as
interim maintenance to the respondent/wife. It can be averred that a sum of
Rs.12,50,000/- (Rupees Twelve Lakhs Fifty Thousand only) has been paid
as interim maintenance by the appellant/husband to the respondent/wife.
Considering the facts and circumstances of the case and relationship of the
parties and taking into consideration the maintenance Award passed by the
Principal Family Court, Coimbatore in M.C.No.71 of 2010, this Court is of
the opinion that it would be appropriate to award a sum of Rs.15,00,000/-
(Rupees Fifteen Lakhs Only) towards permanent alimony payable to the
respondent/wife, which is not inclusive of the earlier maintenance amount
of Rs.12,50,000/- (Rupees Twelve Lakhs Fifty Thousand only) paid by the
appellant/husband to the respondent.
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20. In view of the above, the interim maintenance award of
Rs.12,000/- per month granted in M.C.No.71 of 2010 is not further
maintainable. Accordingly, the order passed by the Trial Court in
M.C.No.71 of 2010 awarding maintenance to the respondent/wife for a sum
of 12,000/- per month is hereby set aside. Therefore, Crl.R.C.No.1142 of
2015 filed by the petitioner/husband is stands disposed of, in view of
granting permanent alimony of Rs.15,00,000/- payable to the
respondent/wife by the appellant/husband.
21. In the result,
(i) the appeal in C.M.A.No.2809 of 2015 is allowed
and the fair and decreetal order passed by the Trial Court in
H.M.O.P.No.254 of 2010 dated 23.06.2015 on the file of the
Principal District Judge, Family Court is set aside and the
original petition is dismissed.
(ii) the appeal in C.M.A.No.2810 of 2015 is allowed.
The fair and decreetal order passed by the Trial Court in
H.M.O.P.No.434 of 2011 dated 23.06.2005 on the file of the
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Principal District Judge, Family Court is hereby set aside
and the original petition is allowed.
(iii) The marriage solemnized between the appellant
and the respondent dated 27.08.2007 at Thiruchirapalli is
dissolved by granting decree of divorce.
(iv) The appellant is directed to pay the sum of
Rs.15,00,000/- (Rupees Fifteen Lakhs Only) to the
respondent/wife towards permanent alimony within a period
of three months from the date of receipt of copy of this
judgment.
(v) The above said amount has to be deposited by the
appellant before the Trial Court within the prescribed time
frame and after such deposit, the Trial Court has to inform
the same to the respondent/ wife, thereby enabling her to
withdraw the said amount. No costs. Consequently,
connected miscellaneous petitions are also closed.
(J.N.B,J.) (P.D.B., J.)
10.09.2024
Index:Yes/No
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Speaking Order : Yes/No Neutral Citation Case : Yes/No
sts
To:
The Principal Family Judge,
Coimbatore.
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C.M.A.Nos.2809 & 2810 of 2015
J. NISHA BANU, J.,
and
P.DHANABAL, J.,
sts
Common Judgment Order made in
C.M.A.Nos.2809 & 2810 of 2015
Dated:
10.09.2024
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