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2007 DIGILAW 1602 (MAD)

P. Selvaraj v. P. Visalakshi

2007-06-05

S.ASHOK KUMAR

body2007
Judgment :- This Civil Miscellaneous Second Appeal is filed against the judgment and decree dated 111. 2002 made in C.M.A.No. 2 of 2002 on the file of the learned Prl.District Judge, Thiruvannamalai, reversing the order in HMOP.No. 18 of 1999, dated 29. 2001, made by the learned Subordinate Judge, Cheyyar. 2. The brief facts of the case are as follows:- (a) The petitioner and the respondent married as per Hindu Rites in Cheyyar on 5. 1997. It is the case of the petitioner that from the date of marriage the respondent was not interested in leading family life with the petitioner and also neglecting the parents of the petitioner/husband. She often used to leave for her mothers house. The respondent also demanded the salary of the petitioner for which the petitioner was not amenable. She also often stated that she married him only on the compulsion of her parents. She often threatened that she will commit suicide. There was no cohabitation between the petitioner and the respondent. During Deepavali in the year 1997 the respondent without informing the petitioner left for her mothers house with all her belongings. When the petitioner went there and enquired, she told that she is not going to live with him. Even after intervention by the elders and friends she did not return back to live with the petitioner. On the above allegations, the petitioner filed the petition under Section 13(1)(ia) of the Hindu Marriage Act on the ground that the respondent/wife is guilty of mental cruelty. (b) The respondent resisted the said petition stating that she lived with the petitioner happily for a short period only and thereafter the petitioner started ill-treating her. It is incorrect to state that she neglected the parents of the petitioner. She used to assist her mother in law and was cooking for all the members. She has been cooperation with the petitioner in the marital life. During Deepavali 1997, she gave her salary amount to the petitioner and they purchased cloths and things and the petitioner himself sent her to her mothers house. It is only the petitioner and others locked the house and went away neglecting the respondent. The respondent was forced to give police complaint when the petitioner and her mother said that the petitioner would marry his sisters daughter. The respondent is always willing to live with the petitioner. It is only the petitioner and others locked the house and went away neglecting the respondent. The respondent was forced to give police complaint when the petitioner and her mother said that the petitioner would marry his sisters daughter. The respondent is always willing to live with the petitioner. (c.) Before the learned Subordinate Judge, Cheyyar, on behalf of the petitioner/husband P.Ws 1 to 4 were examined and the respondent was examined as R.W.1. During the course of their examination, Ex.P.1 to P.6 and Ex.R.1 were marked. On a careful examination of the oral testimonies of both sides and also on a perusal of the records, the learned Subordinate Judge, Cheyyar, allowed the divorce petition. Aggrieved of the same, the respondent/wife preferred appeal in CMA.No:2 of 2002 before the learned Prl.District Judge, Tiruvannamalai, who allowed the appeal. Challenging the same, the petitioner/husband has preferred this Civil Miscellaneous Second Appeal, on the following two substantial questions of law:- (i) Whether the first appellate court is correct in having set aside, the decree of divorce, granted by the Trial Courts, on the allegation that Section 23 of the Hindu Marriage Act, has not been followed? (ii) Whether the false complaints given by the respondent/wife to the police, and false statement given before court, regarding those complaint amounts to cruelty or not, to justify the decree of divorce?" 3. Learned counsel for the appellant contended that the lower appellate court did not found that the respondent has failed to give marital consortium to the husband and thus has caused mental cruelty to the petitioner. Further, the respondent/wife had categorically informed the Panchayatdars that she was not interested in joining the husband and as such there cannot be any reunion among the parties. The respondent/ wife also gave police complaints and caused harassment to the husband by taking him to the police station and detaining him there. .4. However, a perusal of the judgment rendered by the lower appellate court would show that there is no ground to substantiate the allegation of mental cruelty meted out to the petitioner/husband. It is the finding of the lower appellate court that both parties have lived happily for nearly 8 months till Deepavali 1997 and it cannot also be believed that there was no consummation of marriage. It is the finding of the lower appellate court that both parties have lived happily for nearly 8 months till Deepavali 1997 and it cannot also be believed that there was no consummation of marriage. It is also significant to note that P.Ws 2 and 3 who are panchayatdars, belonging to the village of the petitioner have not stated as to on what date, the panchayat was arranged whether on two or three times etc., Their evidence cannot also be relevant on the aspect of cruelty alleged by the petitioner. It is also the evidence of P.W.2 that it is only the mother of the respondent/wife came and told that the respondent will not live with the petitioner. Even the alleged demand of salary is not proved as it is the evidence of the wife that for the Deepavali during the year 1997, she herself gave her salary for the purchase of cloths and other things. 5. Mental cruelty is a state of mind and feeling and inference has to be drawn on the facts and circumstances of the case cumulatively. But in this case when there is no ground of cruelty that the marriage between the petitioner and the respondent has not been consummated, and when there is nothing to prove the alleged non cooperation and non adjustment of the respondent with the petitioner in his day-to-day duties, it cannot be held that the treatment meted out to the petitioner by the respondent is sufficient within the meaning of cruel treatment as defined under Section 13(1)(ia) of the Hindu Marriage Act. The petitioner is not certain either in his petition or in his oral evidence as to when the respondent has left the matrimonial home without his consent. 6. It is also pertinent to note that the respondent expressed her willingness to live with the petitioner. Therefore, even the allegation of the petitioner that she had threatened him that she will commit suicide has no force at all. It is also the evidence of the respondent/wife that she was forced to file the police complaint only because the petitioner has stated that he will set her on fire. In the circumstances, there is absolutely nothing on record to show that the wife has behaved in such a manner that it had caused cruelty of any sort to the husband. .7. In the circumstances, there is absolutely nothing on record to show that the wife has behaved in such a manner that it had caused cruelty of any sort to the husband. .7. The decision relied upon by the learned counsel for the petitioner in Durga Prasanna Tripathy Vs. Arundhati Tripathi ( AIR 2005 SC 3297 ) is not applicable to the facts of the present case, since in the said decision, reunion of the parties was not possible and the parties were living separately for nearly 14 years and the Honble Supreme Court finding that a workable solution is certainly not possible, and the parties at that stage cannot reconcile themselves and live together forgetting their past as a bad dream, granted divorce. 8. It is the allegation of the respondent/wife that the petitioner is going to marry her sisters daughter. In this connection it is useful to refer to the decision of the Honble Supreme Court, wherein their Lordships have held that even the husband cannot be allowed to take advantage of his own wrong in marrying for the second time and that itself will not entitle him to get a decree for divorce and what cannot be granted directly cannot be achieved indirectly. Further, the separation between the parties being attributable to act and conduct of the petitioner, he cannot be permitted to take advantage of plea of irretrievability of marriage has been held by the High Court of Himachala Pradesh, reported in II (2003) DMC 319 (DB). The mere fact that wife has given a complaint to the All Women Police Station, would not amount to "mental cruelty" as held by a Division Bench of this Court in D.Suganthi Vs. B.Janakiram, reported in 2002 (3) L.W. 661 . Further, the lower appellate court cannot be found fault with merely on the ground that Section 23 of the Hindu Marriage Act has not been followed, it ought not to have set aside the decree of divorce granted by the trial court. 9. For the foregoing reasons, I do not find any ground to interfere with the well-considered judgment of the lower appellate court. Therefore, there is no substantial question of law involved in this appeal warranting a decision. Accordingly, this appeal fails and it is dismissed, confirming the judgment and decree passed in C.M.A.No. 2 of 2002 by the learned Principal District Judge, Thiruvannamalai. No costs.