Madras High Court
C.Tamilkumaran vs Vedagnana Lakshmi on 23 September, 2024
Author: S.Srimathy
Bench: S.Srimathy
C.M.S.A.(MD)Nos.27 and 28 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 25.07.2024
PRONOUNCED ON : 23.09.2024
CORAM
THE HON'BLE MRS.JUSTICE S.SRIMATHY
C.M.S.A.(MD)Nos.27 and 28 of 2015
.
C.Tamilkumaran ... Appellant in both cases
Vs.
Vedagnana Lakshmi ...Respondent in both cases
PRAYER in C.M.S.A(MD)No.27 of 2015: Civil Miscellaneous Second Appeal is
filed under Section 100 of the C.P.C., read with Section 28 of the Hindu Marriage
Act, 1955, against the judgment and decree, dated 30.04.2015, passed in
H.M.C.M.A.No.2 of 2011 on the file of the II Additional District Sessions Court,
Thoothukudi, confirming the judgment and decree, dated 25.10.2010 passed in
Divorce Petition in H.M.O.P.No.178 of 2008 on the file of the Subordinate Court,
Thoothukudi.
PRAYER in C.M.S.A(MD)No.28 of 2015:: Civil Miscellaneous Second Appeal
is filed under Section 100 of the C.P.C., read with Section 28 of the Hindu
Marriage Act, 1955, against the judgment and decree, dated 30.04.2015, passed in
H.M.C.M.A.No.3 of 2011 on the file of the II Additional District Sessions Court,
Thoothukudi, confirming the judgment and decree, dated 25.10.2010 passed in
Divorce Petition in H.M.O.P.No.183 of 2008 on the file of the Subordinate Court,
Thoothukudi.
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C.M.S.A.(MD)Nos.27 and 28 of 2015
In both cases:
For Appellant : Mr.V.K.Vijaya Raghavan
for Mr.K.C.Ramalingam
For Respondent : Mr..Saravanan
Senior Counsel
for Mr.T.Senthil Kumar
*****
COMMON JUDGMENT
Both the Civil Miscellaneous Second Appeals are filed by the husband
against the common judgement and decree. Hence, both the cases were taken up
together and a common judgment is passed.
2.(i) C.M.S.A.(MD)No.27 of 2015:
The present Civil Miscellaneous Second Appeal in C.M.S.A.(MD)No.27 of
2015 is filed by the husband against the Judgment and Decreetal order dated
30.04.2015 passed in H.M.C.M.A.No.3 of 2011 on the file of the II Additional
District and Sessions Court, Thoothukudi, by confirming the Judgment and
Decreetal order dated 25.10.2010 passed in H.M.O.P.No.183 of 2008 on the file of
the Subordinate Court, Thoothukudi.
2.(ii) C.M.S.A.(MD)No.28 of 2015:
The present Civil Miscellaneous Second Appeal in C.M.S.A.(MD)No.28 of
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2015 is filed by the husband against the Judgment and Decreetal order dated
30.04.2015 passed in H.M.C.M.A.No.2 of 2011 on the file of the II Additional
District and Sessions Court, Thoothukudi, by confirming the Judgment and
Decreetal order dated 25.10.2010 passed in H.M.O.P.No.178 of 2008 on the file of
the Subordinate Court, Thoothukudi.
3. The H.M.O.P.No.183 of 2008 was filed by the wife for restitution of
conjugal rights and the same was allowed, against which the husband had
preferred appeal in HM.CMA No.3 of 2011 and the same was dismissed,
aggrieved over the same the C.M.S.A.(MD)No.27 of 2015 if filed. The HMOP
No.178 of 2008 was filed by the husband for divorce and the same was dismissed,
against which the husband had preferred appeal in HM.CMA No.2 of 2011 and
the same was dismissed, aggrieved over the same the present C.M.S.A.(MD)No.
28 of 2015 is filed.
4. The brief facts as stated by the husband is that the marriage between the
parties was solemnised on 16.05.2004 at Dindigul as per their customs and rituals.
Since both of them are relatives, the wife’s parents had given various jewels and
other gifts to the wife, except dowry. After the marriage both husband and wife
were residing in Pondicherry. The husband was serving as Medical Referee in ESI
Corporation and initially the wife was staying as homemaker but later on was
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serving as Doctor in Science Forum for Rs.10,000/- as salary. The disputes started
immediately after marriage. The wife never allowed the husband's relatives to
their home, further the wife demanded the husband to listen to her, imposed
condition that the husband should not talk to his parents and should never have
any connection with his family. If not, threatened the husband that she would
commit suicide or file false dowry case against the husband’s entire family
through her father and brother who are Advocates in High Court. Since the
parents of the husband are heart patient, the husband was tolerating all the insults
meted out by the wife. But the insults were increasing day-by-day. When the
husband’s sister had invited the couples for wedding feast, but the wife refused to
attend the same, but the husband was patiently handling the issues. In the
meanwhile, the couples had a daughter namely Neha. When the first birthday
celebrations of the daughter were planned on 24.03.2005, again there was fight
between the couples, wherein the husband’s mother alone had come to attend the
function, but the wife had objected for the husband’s mother participating in the
function, which ended in attempting suicide by the wife and she was admitted in
Jipmer hospital and treated her. The brother of the wife called the husband over
phone and insisted to take the wife home and directed the husband should handle
the wife properly otherwise he should face dire consequences of facing false
dowry case. The other allegations are that the wife did not allow the husband to be
with the daughter. Further the wife was insisting to live a luxurious life, since the
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husband was serving as a doctor in ESI Corporation with meagre salary, the wife
insisted to earn more and started comparing with one of her brothers, who was
earning more than 1½ lakhs in information technology. Also compared with one
Ganesan who was working as radiologists and insisted to do radiology as post-
graduation course instead of ENT. And also stated if she had married the said
Ganesan she would have lived a better life. The wife never carried on her duties as
“wife”. Further when the husband’s mother was admitted in Hospital for heart
treatment the wife did not allow the husband to visit his mother, threatened if
visited his mother she will prefer a dowry harassment complaint against the
husband, his parents, sisters-in-law and also commit suicide. Also stated after
marrying the petitioner she is living as “poor” and insulted the husband quite
often. The husband transferred from Pondicherry to Madurai on 05.02.2007 and
she complained about the smaller house and insisted to take a bigger house. Also
fixed a house for ?3500 rent through her father, but when the husband refused to
move to this ?3500/- rented house, she stated she cannot live in a low-class house
and fought with the husband. On 20.02.2007 her father visited the house and the
wife took her daughter and left the home along with her father. Thereafter the wife
visited the husband’s work place at ESI hospital and picked up quarrel and
disturbed him during duty hours, again insisted to live in the house rented for ?
3500 and refused to live in a house fixed by the husband. When there was
continuous cruelty, the husband issued lawyer notice dated 28.02.2007 for
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divorce. On the same day, the brother of the wife along with seven or eight
persons visited the husband’s parents’ house at Tirunelveli at 2 pm insulted and
threatened them with dire consequences, the parents fearing them had locked the
house from inside and several hours they could not come out of the house.
Thereafter, the mother had preferred police complaint to Perumalpuram Police
Station and Palayamkottai All Women Police Station. The husband had preferred
telegram on 01.03.2007 to Director General of Police, Chennai, Commissioner of
Police, Madurai, Commissioner of Police, Tirunelveli and Superintendent of
Police, Dindigul stating his parents were illegally detained and kept them under
house arrest by the wife’s brother along with goondas and threatened them that
they would not let them go out, until their son comes home or else to face the dire
consequences. Already the husband’s parents were heart patient, after the above
incident they were forced to live along with their daughter in the daughter’s place.
After the above incident, the wife preferred police complaint alleging the husband
and his family are demanding dowry. Based on the complaint the concerned police
officials had summoned the husband and his family for the enquiry and also the
police had visited the husband’s workplace in order to search the husband, thereby
the wife and their family did not allow the husband to work peacefully. In the
meanwhile, the wife’s brother along with the 2 or 3 persons threatened to the
petitioner and demanded signature in the blank papers. The husband and their
entire family including the married sisters were forced to file anticipatory bail
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application before the High Court. In the meanwhile, the husband returned all the
articles of the wife to her parents’ house. The gold jewels were always with the
wife and the same is with her. All these acts of the wife made the petitioner to
decide that hereafter they cannot live together and filed the petition for divorce.
5. The respondent wife had filed counter and denied the entire contents
stated in the divorce petition. The contention of the husband that the parties are
relatives is denied and hence the dowry was not demanded is also denied as false.
In the lawyer notice dated 28.02.2007, the husband has admitted receipt of dowry
and other articles. The allegation the wife has taken the Jewels and the husband
has returned the other articles will prove the husband has received dowry, jewels
and other articles. But the fact remains the father has not received the articles. The
husband has received 100 sovereign gold, five lakhs cash and other articles like
TV, air-conditioner, washing machine, refrigerator sofa set and silver articles
amounting to 3 lakhs rupees as dowry, which is also stated in the reply notice
issued by the wife. The wife further stated she was working in Science Forum,
Pondicherry and receiving Rs.10,000/- as salary and the salary was also handed
over to the husband. From 04.06.2004 both of them started residing in
Pondicherry and at that time the husband’s sister and her husband (who is
husband’s maternal uncle “thaimama”) came and stayed with them for two days.
On a subsequent date, since the house was not sufficient to keep all the house hold
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articles, the parties shifted to different house and during that time also the
husband’s sister and her husband came, shifted the articles, stayed with them for
two days and left. The attempt to suicide by taking rat poison is denied. If it is so
the wife ought to have been treated in hospital. No such evidence is produced by
the husband. In the lawyer notice the husband has stated on every Sunday some
guests would come, but the wife threatened that she will consume phenol and
commit suicide and the same is denied as false and stated that no normal person
who commit such act. The wife also denied the allegation that the wife is not
listening to the husband and deny that she would threaten to file dowry
harassment case against the husband and his family. The wife denied she intended
for luxurious life and submitted she always wishes simple life. Further submitted
that the husband after birth of the daughter demanded a dowry, since the same was
not paid, the husband and his family refused to visit the daughter after the birth of
the daughter. Hence an amount of Rs.60,000/- was paid to buy the car and balance
amount was paid by obtaining loan from the bank and the EMI was paid from the
wife’s salary. The allegation that the wife had compared with his brother and one
Ganesan and demanded to earn more is denied and submitted by mentioning the
name of Ganesan, the crooked intention of the husband is evident. The wife
further stated that she is aware that the husband is working in a Central
Government Service and any prudent woman would not demand to leave such
service. Further she is aware of the fact that if any clinic is started in Pondicherry,
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the same would affect his government service and for that reason she did not start
any clinic in Pondicherry. The wife denies the allegation that she refused to leave
the child to the husband and submitted that in Pondicherry only both of them were
there and whenever she was not available, then the husband alone ought to take
care of the child. The allegation that the wife attempted suicide for the reason that
the mother-in-law came for their daughter’s first birthday is denied. During that
time the husband demanded 2.5 lakhs for his higher studies and the family of the
wife declined to grant the said amount, hence the husband fought with the wife
and slapped her before her parents and also disrespected her parents. After the
said incident, the husband refused to celebrated the first birthday of their daughter
and demanded all the visitors to leave the home and the wife’s family left the
home. Since the child's first birthday could not be celebrated, the wife attempted
suicide, the same was intimated to the wife's brother, they returned halfway,
admitted her in Jipmer Hospital and first brother and his wife came to assist the
wife. But the husband's mother left immediately and went to Chennai. When the
police enquired, the wife and their family did not want to create problem in the
family life and hence the complaint was not preferred. Further the allegation the
wife did not act as a wife and she disrespected the husband's parents are denied.
The allegation that on 06.02.2007 when the husband was transferred from
Pondicherry to Madurai, the wife declined to stay in the rented house describing
the house as “low class house” is denied. The wife had resigned the job in
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Scientific Forum and started along with the husband and came to Madurai on
05.02.2007 night. But the very next day, the husband demanded Rs.25,00,000/-
dowry for his higher studies and physically assaulted the wife. At that time the
wife’s father, who is serving as Advocate in High Court Madurai, had visited
home and the father had sought some time. Since the amount was not paid the
husband did not allow the wife inside the home and locked the door. Hence the
wife along the child left the house with her father. The husband fearing criminal
action, through his sister’s husband approached the local communist party person
and negotiated not to take any action and the issue can be smoothly sorted out,
hence no legal action was taken against the husband. But after that, the husband or
his relatives did not take any effort to amicably set the issue. The next allegation
on 20.02.07, the wife came to the husband's workplace and picked up quarrel is
denied and the said fact is twisted. Infact the wife intended to live with the
husband at Madurai and came to Madurai. Or else at least take the dress materials
from the home since the wife and the child had left the house without any dresses.
But the house was locked, hence the wife went to the husband’s office requesting
to give the house keys and when the husband refused to give the keys and insulted
the wife and made the wife to run from pillar to post. Thereafter the husband had
issued lawyer notice on 28.02.2007. The allegation the wife's brother with several
persons had threatened the parents on 28.02.2007 with the dire consequences is
false. It is not possible to receive the lawyer notice 28.02.2007 and on the same
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day i.e. 28.02.2007 the brother of the wife had indulged any harassment against
the husband. Hence the allegation that the wife’s brother insulted the parents of
the husband is denied. Based on the dowry demand, complaint was preferred
against the husband and the husband was summoned for enquiry. In order to
conceal the dowry harassment, the legal notice for divorce was issued. Infact after
the enquiry the complaint was closed since there is no truth in the said complaint.
In such circumstances, the husband contacted the communist party Ex-MLA and
Advocate Mr Krishna for compromise. A compromise dated 05.03.2007 was
arrived at the house of the said Krishna and both the parties have signed in the
agreement, wherein it was agreed to withdraw the divorce petition, both would
live together and the husband would not demand dowry. Inspite of compromise
the husband failed to take the wife and child, hence again on 03.04.2007 the
wife’s parents requested the husband’s parents to take the wife and the child and
to live amicably. But the husband failed to abide by the compromise and left and
never returned back. When the wife’s parents requested for amicable settlement,
again the husband side demanded 25 lakhs and said if the said amount is paid then
only both can live together. But the wife intended to live together, hence the wife
filed petition for restitution of conjugal rights in H.M.O.P.No.183 of 2008 and
also preferred a police complaint in Crime No.14 of 2007 for dowry harassment
on the file of I Judicial Magistrate Court and the same is pending. The husband
has filed false petition and there is no cause of action. The case for divorce is
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filed, since the demanded dowry was not paid. The wife had tolerated the
husband’s torture and is seeking for restitution of conjugal rights and prayed to
dismiss the divorce petition.
6. The wife had filed H.M.O.P.No.183 of 2008 for Restitution of Conjugal
Rights petition and the husband had filed counter to the same and the same
contents in the said petition and counter are more or less the same.
7. The husband had marked Ex.P1 to P48 and PW1 to PW4 had deposed on
the side of the husband. The wife had marked Ex.R1 to R10 and RW1 and RW2
had deposed on the side of the wife. After considering the pleadings, evidence the
divorce petition was dismissed and the restitution of conjugal rights was allowed.
Aggrieved over the husband had filed HM.CMA No.2 of 2011 and HM.CMA No.
3 of 2011 and the same was dismissed. Aggrieved over the same, the present Civil
Miscellaneous Second Appeals are filed and the following substantial questions of
law are raised:
“a. When the respondent herself admitted that during the course of cross
examination of RWI she took "Sleeping pills" on the celebration of her
daughter's first birthday and the appellant /husband has placed adequate
material to show that the respondent /wife used to give repeated threats to
commit suicide, it is just and proper for the 1st Appellate Court to
confirming the trial court decree and judgment without considering the
reasoning of the trial court?
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b. When the respondent had not discharged the burden of proof under
Section 101 to 104 of the Indian Evidence Act 1872 had failed to prove the
accusation of evidence, whether it amounts to cruelty to the appellant?
c. Whether decree of divorce can be granted to the appellant for the failure
of the respondent to prove her contention and accusation in the statement
of objections and oral evidence?
d. When the Hon'ble Apex Court taken a stand hat repeated threat to
commit suicide amounts to cruelty when such a thing is repeated in form of
sign or gesture, no spouse can live peacefully. In the above said
circumstances were the trial court as well as the 1st Appellate Court were
correct to turn down and refused to grant decree in favour of the appellant
on the ground of cruelty?
e. When the respondent has made an attempt to attack the appellant in
front of the officials during the course of working hours and the same was
proved by evidence of PW 2 to 4. Was the learned Appellate Court is
correct to refusing to grant decree in favour of the appellant and granting
decree to the respondent on the ground that the respondent has not
committed any cruelty to the appellant and she is always willing to join
with the appellant?”
The following additional substantial question of law was also raised:
“Whether the Courts below have erred in not considering the relevant
evidence available on record to grant divorce on the ground of cruelties to
the appellant?”
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8. After perusing the records and hearing the rival submissions, this Court
had given its anxious consideration. The husband has filed the petition for divorce
under cruelty under section 13 (1) (ia) in HMOP No.178 of 2008 and fighting for
divorce unsuccessfully for the past 17 years. The couples were married on
16.05.2004, the divorce petition was filed on 16.03.2007 and they had lived for
three years and living separately for the past 17 years. The divorce petition is filed
under cruelty and the word cruelty was not defined in the provisions of Hindu
Marriage Act. But the Hon’ble Supreme Court in C.V.N. Kameshwar Rao vs G
Jabilli reported in AIR 2002 SC 576 had held that prior to the amendment in the
year 1976 “cruelty” was one of the grounds for judicial separation under section
10 of the Act. Under the said section cruelty was given an extended meaning by
using an objective phrase, viz “as to cause reasonable apprehension in the mind
of the petitioner that it will be harmful or injurious for the petitioner to live with
the other party”. By the amendment of the Hindu Marriage Act, 1976 ‘cruelty’
was made one of the grounds for divorce under section 13. Further held the acts
committed by the spouse whether it amount to cruelty ought to be assessed based
on the status of the parties in social life, their customs, traditions and other similar
circumstances. In the present case, the Court ought to consider whether the
conduct of the wife has become intolerable for the husband to suffer and no longer
the husband can carry on such suffering and living together has become
impossible. But this has to be judged not from a solitary incident, but on an
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overall consideration of all relevant circumstances. Therefore, the Court proceeds
to analyse the case based on the evidences marked by both the parties.
9. The primary allegation by the husband is that the wife had attempted to
commit suicide and the same would amount to cruelty. The Learned Counsel
appearing for the husband submitted that on 25.03.2006 the wife was admitted in
Jipmer Hospital since she had attempted to commit suicide and Ex.P9 discharge
summary is marked to prove the same. Even though the wife has denied in her
counter, but had admitted in the petition filed for restitution of conjugal rights
wherein the wife has stated in paragraph 8 as under:
“Again, on 25.03.2006 for the celebration of birthday of their daughter
Neha, both the family members were present respondent and his mother
demanded of ?25 lakhs from the parents of the wife for getting post-
graduation seat for the husband, when the parents of the wife rejected the
demand, the husband and his mother Ponnuthai had illtreated the parents
of the wife. The parents of the wife unable to bear the treatment and in
human behaviour of the husband and his mother intended to leave the
house. When the parents of the wife were about to get out of the house, in
the presence of the parents of the wife, the husband beat the wife, the wife
unable to bear the act of the husband. In the absence of her parents took
sleeping dose and made a suicide attempt, then the matter was informed
by the husband by the cell phone. The parents of the wife who were about
to board a bus for Chennai and her second elder brother rushed to the
house of the wife and found wife in unconscious stage where she was given
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first aid and was taken to Jipmer Hospital Pondicherry by the parents and
her brother and was given treatment and the wife was rescued. The
husband has not taken the wife to hospital.”
10. When there was clear admission by the wife the attempt to suicide, then
the same ought to be considered. But the Senior Learned Counsel appearing for
the respondent / wife submitted that it is a single act. And single or single fight or
trivial fights may be there in the martial life and the same cannot be considered as
a ground for cruelty. However, the Learned Counsel appearing for the appellant /
husband submitted that even though it is a single incident where it has ended in
admission to the hospital, but there were repeated threats to commit suicide by the
wife and the same ought to be considered. This Court is of the considered opinion
that there is a difference in “attempting to commit suicide” and “repeated threat to
commit suicide”. In the present case, Ex.P1, the discharge summary is proving the
“attempt to commit suicide”. Generally, for threat to commit suicide, there may
not be direct evidence but may be based on the conversation between the husband
and wife and / or other circumstances of the case. In the present case, the
husband’s father had deposed that the daughter-in-law had given repeated threats
to commit suicide whenever the husband intends to see his family or speak to his
family or anyway maintain connection with his family. Further in the present case
the husband had written a letter to his mother complaining about the wife’s threat
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of committing suicide and the said letter is marked as Ex.P32. On perusing the
Ex.P32, it is seen that the husband has stated, the wife is threatening to commit
suicide, threatening to prefer false dowry harassment case against the husband and
his family members and he is tolerating her. The Courts below disbelieved the
father’s evidence, but this Court is of the considered opinion, even though the
husband’s father’s evidence may be an interested witness, the same ought to be
considered based on the circumstances of the case and the same cannot be simply
brushed aside. The Courts below had disbelieved the Ex.P32 letter and stated
writing letter is unbelievable in the mobile era. This Court is of the considered
opinion that the letter was written on 21.02.2005, during 2005 the usage of mobile
in villages was less. Further the letter is written in “inland” letter with postal
stamping, hence there is no reason to disbelieve the same. The said letter was
written on 21.02.2005 within eight months from the date of marriage i.e.
16.05.2004 and the letter clearly indicates the agony of the husband where it states
the wife is threatening to commit suicide, hence the same cannot be brushed aside.
Therefore, this Court is of the considered opinion that there is an element of
mental cruelty.
11. It is seen that the wife had threatened to file dowry harassment case if
her demands are fulfilled. Infact the wife had preferred police complaint for
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dowry harassment not only against husband but the entire family. In the present
case the husband is the only son and he has three sisters. All the three sisters are
married and are living separately along with their husbands. And the dowry
harassment case was preferred against the parents, sisters and their husbands. The
entire family had applied for anticipatory bail and was appearing before the police
station for affixing signature, then they had filed relaxation petition, which is
evident from Ex.P33 and 34. Further in four Tamil Daily Newspapers the news of
dowry harassment case was published along with their names which are marked as
Ex.P35 to 38, thereby the entire family reputation was tarnished. This action of
the wife would definitely amount to cruelty. When the wife had preferred dowry
harassment case against the married sisters and their husbands, then the same
would conclusively prove there is mental cruelty against the husband.
12. The wife had alleged that the husband had demanded dowry for
purchasing the car. But the husband had proved that by availing loan from State
Bank of India the car was purchased. The SBI sanction letter dated 04.06.2005
was marked as Ex.P13, wherein it states that to purchase Santro Xing XP car loan
of Rs.3,36,000/- was sanctioned and the car was purchased on 06.06.2005 which
is evident through Ex.P15. The husband had availed loan from GPF and the
sanction letters was marked as Ex.P12 dated 25.05.2005 and Ex.P17 dated
26.04.2006. The husband had purchased house hold articles like television, its
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stand, almirah, steel almirah, teakwood cot and bed, micro-oven, fans, air
conditioner (A/C), refrigerator during 2004, 2005 and 2006 and the purchase bills
are marked as Ex.18 to 27, which would indicate as and when the loan was
sanctioned in GPF the husband had purchased the articles. Therefore, the
allegation that the husband demanded dowry for purchasing car and other articles
is false. Further the wife was given dowry of house hold articles at the time of
marriage is also false. The allegation that the husband demanded 25 lakhs as
dowry for his higher studies, but the wife had not submitted an iota of evidence,
hence the same is false. When the husband had purchased house hold articles
through loan, then the allegation of demand of dowry of 25 lakhs is remote
possibility. Repeatedly the Courts have held that the dowry harassment cases are
used as a tool and false cases are filed. In the present case also, it is a false dowry
harassment case. Therefore, this Court is of the considered opinion that the wife
filed false dowry harassment case, but the same is used as tool by the wife to
threaten the husband, which amounts to cruelty.
13. The next allegation that the wife had tarnished the image of the husband
by visiting to his workplace and picked up quarrel. Even though the Learned
Senior Counsel appearing for the wife tried to impress upon the Court that the
husband had locked the house and in order to get the keys from the husband, the
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wife went to workplace and unfortunately a wordy quarrel happened. Further
stated that when the husband was travelling and not available for a quite long
time, his whereabouts are not known to the wife, husband refused to take the wife
to the matrimonial home and left her in lurch, the anxiety of the wife ought to be
taken into account. Further submitted that the deposition of PW2, 3 and 4, who
had confirmed the quarrel, cannot be relied on since they are subordinates to the
husband and they are self-serving witness. This Court is of the considered opinion
even though the PW2, 3 and 4 are subordinates, the fact remains that the said
incident happened and the fact is not denied by the wife. Further the visit of wife
to the husband’s workplace and a wordy quarrel itself would have affected the
image of the husband at workplace. That too the husband is a doctor by profession
and was holding a responsible post in ESI Corporation, in such circumstances the
wife fighting with the husband in workplace would affect his image. For the sake
of argument, even if the wife’s contention is accepted that the wife was frustrated
on the attitude of the husband, then the wife ought not to have shown the
frustration in the workplace. A simple event of taking the keys had ended in
wordy quarrel in the workplace of the husband would clearly indicate all is not
well with them. All fights between husband and wife within the four walls may
not affect the image of the husband and wife, but if it is in public or workplace the
same would affect the image of the husband and wife and the same would
definitely amount to cruelty. The Hon’ble Supreme Court in Srinivas Rao Vs.
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C.M.S.A.(MD)Nos.27 and 28 of 2015
D.A.Deepa reported in (2013) 5 SCC 226 had held if the adverse impact is on the
job or business of the husband then the same can be a ground for divorce. The
relevant portion is extracted hereunder:
“16. Thus, to the instances illustrative of mental cruelty noted in Samar
Ghosh Vs. Jaya Ghosh reported in (2007) 4 SCC 511, we could add a few
more. Making unfounded indecent defamatory allegations against the
spouse or his or her relatives in the pleadings, filing of complaints or
issuing notices or news items which may have adverse impact on the
business prospect or the job of the spouse and filing repeated false
complaints and cases in the court against the spouse would, in the facts of
a case, amount to causing mental cruelty to the other spouse.”
14. Further the wife had stated in the counter that she is aware of the fact
that the husband is in government service and hence she had not taken up her
private practice and the private practice would affect his unblemished government
service. But it is seen from the records that a Name Board was erected at the
husband’s house in Tirunelveli indicating that both the husband and wife are
doing private practice and the clinic name is “Neha Clinic” and the photo of the
board was marked as Ex.P30. After seeing the board immediately the husband had
preferred complaint dated 20.02.2007 and 27.04.2007 against his wife to the
higher authority, that his name is being misused and which is marked as Ex.P27,
28, and 29. This would clearly indicate that the wife had given all sort of
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C.M.S.A.(MD)Nos.27 and 28 of 2015
problems which would affect the carrier of the husband. As held in Srinivas Rao
Vs. D.A.Deepa reported in (2013) 5 SCC 226, if the job of the spouse had
adversely affected by the act of the act of the spouse, then the same would amount
to cruelty. In the present case, the husband cannot do private practice since he is in
government service, by erecting such name board the wife had adversely affected
the job of the husband. By applying the above illustration to the present case, then
the husband is entitled to divorce.
15. The next allegation is that on 28.02.2007 the husband had issued lawyer
notice for divorce in Ex.P.8 and on the same day i.e. on 28.02.2007 the wife along
with her brother and seven to eight persons had threatened the parents of the
husband at Tirunelveli and the parents were forced to lock their home from inside.
Thereafter the mother had preferred police complaint to Perumalpuram Police
Station and All Women Police Station Palayamkottai which is marked as Ex.P1, 2
and 3. The husband had preferred complaint through telegrams on 01.03.2007 to
various authorities like Director General of Police, Chennai, Commissioner of
Police, Madurai, Commissioner of Police, Tirunelveli and Superintendent of
Police, Dindigul stating his parents were illegally detained and kept them under
house arrest by the wife’s brother along with goondas and threatened they would
not let the parents out until their son comes home or else to face the dire
consequences. The said telegrams are marked as Ex.P4, 5, 6, and 7. These
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C.M.S.A.(MD)Nos.27 and 28 of 2015
complaints were not immediately acted on by the police. But when the wife had
preferred dowry harassment case on 03.03.2007 (within three days from the date
of divorce notice) and the Commissioner of Police, Tirunelveli had issued
summons dated 05.03.2007 directing the husband to appear at 11.00 hours for
enquiry marked as Ex.P26. It is pertinent to note that no action was taken for the
complaint of the husband and his mother, but the wife’s complaint was attended
immediately. The sequence of the events would clearly indicate an undue threat to
the husband with the influence of the police. This undue influence is because of
the fact that the father and brother of the wife are advocates. Due to this undue
influence the husband was forced to fight several layers. In other words, the
husband was forcefully put in a Chakravyuh, which had added fuel to the already
existing fight between the husband and wife.
16. Infact, after filing of divorce petition, the threat to the husband was
continuing. The husband had submitted a complaint dated 22.06.2007 to various
authorities alleging that the wife’s brother along with some persons tried to kidnap
the husband and the husband had also preferred criminal complaint through
proper channel. The complaints preferred to various authorities are marked as
Ex.P31. The said complaint is extracted hereunder:
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C.M.S.A.(MD)Nos.27 and 28 of 2015
“From
Dr.C.Thamilkumaran, Madurai,
Medical Referee, 22.06.2007
Sub-Regional Office,
ESI Corporation,
Madurai.
To
The Superintendent of Police,
Dindigul
(Through proper channel)
Sub: Attempted kidnap of myself by Shri S. Sarvagan Prabhu and four
others while I was on official duty.
Sir,
In order to examine the referral cases and other official work, I undertook a tour
to the Branch Office, ESI Corporation, Dindigul. On 22.6.2007 I reached the
Branch Office at 9.15 am today. I attended the official duty in the Branch Office
and thereafter I boarded a Government Bus at 11.10 am from Dindigul Bus Stand
to return to Madurai. Around 12.00 noon, I was waylaid by S. Sarvagan Prabhu,
Advocate and four others and threatened with deadly weapons in the running bus
itself. I immediately raised an alarm and the fellow passengers came to my help
and, therefore, no physical harm could be done by the said gang. The driver and
the conductor of the bus stopped the bus on the way and myself and the said Shri
Sarvagan Prabhu were entrusted to the Highway Patrol police. The police took us
to Ammayanaickanoor Police Station.
On the way to the Police Station, I telephoned to the Joint Director and informed
the facts. The Inspector of Ammayanaickanoor Police Station orally enquired the
case and allowed the undersigned to proceed to Madurai. The said Shri Sarvagan
Prabhu and the gang of four left the police station just before that. The police
station refused to accept my complaint.
As I was fearing for life, I remained, with the permission of the Inspector,
inside the Police Station till some help was received from ESIC office. Shri
M.Palaniappan, Branch Manager and Shri M.N. Ramasamy, Union Leader
came in a car (No. TN 63 6243) and all the three came to Madurai and reached
Sub Regional Office, Madurai at 2.30 pm.
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C.M.S.A.(MD)Nos.27 and 28 of 2015
I have already intimated to my office the rowdyism indulged by my estranged wife
Smt. Veda Gnanalakshmi, his elder brother Sarvagan Prabhu and other family
members in collusion with rowdy elements on many occasions earlier. This is one
such attempt on my life. Again I expect danger to my life in future also.
I request that the police may be asked to take appropriate action against the
persons responsible for the attempted kidnapping today and also to take necessary
action to protect my life in future.
/True Copy/ Yours faithfully,
Attested Sd/-
Sd/-18.6.2009 (Dr.C.THAMILKUMARAN)
P.GANAPATHI SWAMY MEDICAL REFEREE
JOINT DIRECTOR
SRO, ESIC, MADURA-20”
17. However the Learned Senior Counsel appearing for the wife submitted
that the criminal cases between the parties were compromised by the parties and
the same cannot be cited after compromise. But the fact remains that the wife and
her family had threatened and humiliated the husband and his family. Especially
the aforesaid letter would clearly indicate that the husband was not allowed to
carry on his Central Government Service and the husband was always under fear
and was seeking the help of police or his office persons and others to escape from
the threat given from the wife side.
18. Thus, when the wife had attempted to commit suicide, when there is
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C.M.S.A.(MD)Nos.27 and 28 of 2015
repeated threat to commit suicide, when the wife had visited the workplace and
insulted the husband, when the husband was threatened by the wife’s brother
during his official duty, when the dowry harassment case was filed against the
parents, sisters and their husbands and when the said dowry harassment case was
published in the newspapers along with the names of the entire family, especially
the name of the sisters and their husbands’ names were published, then the same
would amount to mental cruelty caused to the husband by the wife. The above
narration of events would indicate that the husband is suffering in the hands of the
wife and no longer the husband can carry on such suffering. The exhibits 1 to 48
marked on the side of husband would indicate the threat, humiliation,
highhandedness of the wife and her relatives. In short, the husband had reached a
stage that it will be harmful or injurious for him to live with his wife. Therefore
this Court is of the considered opinion that the husband is entitled for the relief of
divorce.
19. Further, in the present case the husband had stated right from the day of
marriage the wife was fighting with him which is evident from his letter written to
his mother. The parties had lived hardly for three years and not a single day was
happy for the parties. The parties were estranged from 2007 onwards and for more
than 17 years they are living separately. The breakdown of marriage has never
been reconciled by the parties leading to the inference that it has reached beyond
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C.M.S.A.(MD)Nos.27 and 28 of 2015
return. The long, continued separation has made the martial bond an empty shell.
In such circumstances, divorce in the only relief as held in Samar Ghosh Vs.
Jaya Ghosh reported in (2007) 4 SCC 511.
20. At this juncture, the Learned Senior Counsel appearing for the wife
stated that if divorce is granted it would affect the parties since the parties are in
their middle age. Especially the wife in her middle age ought to face the society
with a stigma as divorced women and the same would affect the upbringing of
their daughter. However, the said submission cannot be entertained in the present
case, since the husband had already suffered in the hands of the wife and her
family.
21. For the reasons stated supra, the substantial questions of law raised by
the appellant / husband are answered in favour of the husband and the civil
miscellaneous second appeals are allowed. The judgment and decree passed by
both the Courts in both the cases are set aside. The marriage between the appellant
/ husband Dr.S.Tamilkumaran and respondent / wife Vedagnana Lakshmi is
hereby dissolved. No costs.
23.09.2024
NCC : Yes / No
Index
https://www.mhc.tn.gov.in/judis : Yes / No
C.M.S.A.(MD)Nos.27 and 28 of 2015
Internet : Yes / No
Tmg
To
1. II Additional District Sessions Court,
Thoothukudi.
2.Subordinate Court, Thoothukudi.
3.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.S.A.(MD)Nos.27 and 28 of 2015
S.SRIMATHY, J.
Tmg
C.M.S.A.(MD)Nos.27 and 28 of 2015
23.09.2024
https://www.mhc.tn.gov.in/judis
