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2014 DIGILAW 79 (MAD)

R. Vasanthi v. M. Harikrishnan

2014-01-09

P.R.SHIVAKUMAR

body2014
JUDGMENT 1. The appellant is the wife of the respondent. The respondent (husband) filed HMOP No.84 of 2008 on the file of the Sub Court, Poonamallee seeking dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act, 1955 on the ground of alleged cruelty committed by the appellant herein (wife). The case was subsequently transferred to the file of the Additional District Judge (Fast Track Court No.1), Poonamallee. The learned Additional District Judge (Fast Track Court No.1), Poonamallee, after trial, allowed the petition and granted a decree of divorce dissolving the marriage between the appellant herein and the respondent herein, which took place on 20.02.2005 at Kumanan Chavadi, Poonamallee, on the ground of cruelty. The said decree of divorce granted by the trial court dissolving the marriage between the parties, is challenged in the present Civil Miscellaneous Appeal under Section 28 of the Hindu Marriage Act, 1955. 2. The admitted facts are that the marriage between the appellant and the respondent took place as a marriage arranged by the parents on 20.02.2005 at E.V.P. Rajeswari Thirumana Mandapam, Kumanan Chavadi, Poonamallee as per the Hindu rites and customs; that at the time of marriage, the appellant (wife) was pursuing her M.Sc. degree at Pachiappa’s College, Chennai; that after the marriage, they resided with the parents and sisters of the respondent herein (husband) for some time; that thereafter, the respondent (husband) resigned his job and that after living in the separate house set up for them at Pillayar Koil Street, Puliambedu, Noombal, Chennai–117, they again shifted their residence and started living with the parents of the respondent. It is also an admitted fact that due to misunderstanding, the appellant/wife is now living with her parents. 3. The respondent (husband) chose to file the HMOP praying for a decree of divorce dissolving the marriage on the ground of cruelty making the allegations, which are, in brief, as follows: "i) After their marriage, their life went on normal only for a month and thereafter, the appellant started harassing the respondent with a demand to set up a separate house for them. She also tortured the respondent by using vulgar and unpleasant words, which caused mental agony to the respondent leading to his losing his job. She also tortured the respondent by using vulgar and unpleasant words, which caused mental agony to the respondent leading to his losing his job. Unable to bear the torture given by the appellant to get her demand for setting up a separate house for the couple accomplished, the respondent set up his family separately at No.47, Pillayar Koil Street, Puliambedu, Noombal, Chennai–117. There, the father of the appellant, besides watching and following the movements of the respondent (husband), chose to cause frequent threats. The appellant also started harassing him suspecting his conduct and also giving sexual torture by counting the number of times he was having sexual intercourse with her. ii) In the month of August 2007, the respondent got his left hand fractured in an accident, pursuant to which, he returned to his parent’s house along with his wife. Even there also, the appellant continued to cause harassment including making an attempt to commit suicide on 18.02.2008. The appellant also caused a threat that she would kill her husband, namely the respondent. Unable to bear the cruelty caused to him by the appellant, he was constrained to approach the court with the petition seeking a decree of divorce for dissolution of his marriage held on 20.02.2005 with his wife, namely the appellant." 4. The petition was resisted by the appellant (wife) denying the averments made in the petition and contending that her husband, namely the respondent herein alone was adopting all methods of harassing the appellant, scolding her with filthy language in front of his parents and other neighbours. Besides general denial, the averments in the counter affidavit of the appellant (wife) filed before the trial court are, in brief, as follows: "i) At the time of marriage she was gifted with gold ornaments weighing 15 sovereigns by her parents and 3 sovereigns of gold ornaments were gifted to the respondent (husband), besides the customary seers like bureau, cot and other utensils. Out of her own earnings, the appellant bought a TVS Star City two wheeler for the use of her husband, namely the respondent herein. She never demanded for setting up a separate house for themselves and in fact it was the mother of the respondent, who caused harassment to the appellant by not allowing her to sleep with her husband, namely the respondent, who compelled them to seek a separate house for them. She never demanded for setting up a separate house for themselves and in fact it was the mother of the respondent, who caused harassment to the appellant by not allowing her to sleep with her husband, namely the respondent, who compelled them to seek a separate house for them. The parents of the appellant never harassed the respondent at any point of time. On the other hand, the respondent alone, in front of his parents, used to harass the appellant by scolding her using filthy language and thereby causing mental agony to her. The respondent was in the habit of frequently assaulting the appellant without any reason and he also resigned his job and compelled the appellant to go for a job. ii) It was as per the instructions of the mother of the respondent, the respondent shifted the matrimonial home to a separate house and in that separate house, he continued to harass the appellant daily. The respondent used to come to the house late in the night and when asked for reasons, he started quarrelling with the appellant stating that her parents had not given sufficient dowry. The respondent herein and his parents alone gave torture to the appellant with a view to separate her from her husband, namely the respondent. Since the appellant does have two unmarried sisters living with her parents, she is left with no other support but to live with a difficult life with her parents and unmarried sisters with the earnings of her father, who is a turner. She always expressed and continues to express her unconditional willingness to join with her husband and be a dutiful wife to the respondent. However, the parents of the respondent alone want to separate the appellant from the respondent. iii) It is true that the appellant made an attempt to commit suicide, but the same was only because she was not able to bear the torture given by the respondent and his parents and at that point of time, she was saved by her parents and not by the parents of the respondent, as stated in the petition. The grounds alleged in the petition filed by the respondent herein could not be sustained and the petition should be dismissed with exemplary cost." 5. The grounds alleged in the petition filed by the respondent herein could not be sustained and the petition should be dismissed with exemplary cost." 5. Based on the above said pleadings, the learned trial judge conducted a trial in which, the respondent herein figured as PW1 and his father was examined as PW2. The marriage invitation and the marriage photo were marked as Exs.P1 and P2. The appellant herein figured as the sole witness on her side as she deposed as RW1 and she did not produce any document on her side. 6. The learned trial judge, at the conclusion of trial, referring to the evidence, rendered a finding that the allegation of cruelty made by the husband stood proved and that therefore, the husband was entitled to a decree of divorce dissolving the marriage. Accordingly, the learned trial judge granted a decree of divorce and the same is challenged in the present civil miscellaneous appeal on various grounds set out in the Memorandum of Grounds of Appeal. 7. The point that arises for consideration in this appeal is “Whether the trial court committed an error in granting a decree of divorce dissolving the marriage between the appellant and the respondent on the ground of cruelty allegedly committed by the appellant herein?” 8. The arguments advanced by Ms. J.Sundarakanchini, learned counsel for the appellant and by Mr. A.Laxmi Rajarathnam, learned counsel for the respondent were heard. The materials available on record were also perused. 9. The learned counsel appearing for the appellant, pointing out various observations made by the learned trial judge in his order, argued that the trial judge chose to render a perverse finding without proper appreciation of evidence and relying on extraneous materials, which were not brought on record as evidence. It is her further contention that the testimony of a incompetent person regarding what transpired in the bedroom between the husband and wife was erroneously accepted by the trial court in the absence of pleadings and in the absence of any reference to the said aspects by PW1, the husband. It is her further contention that the testimony of a incompetent person regarding what transpired in the bedroom between the husband and wife was erroneously accepted by the trial court in the absence of pleadings and in the absence of any reference to the said aspects by PW1, the husband. It is the further contention of the learned counsel for the appellant that the very fact that the learned trial judge chose to make an observation that the sexual torture allegedly given by the wife, namely the appellant herein, was one kind of impotency on her part and that the reference made to what transpired before the Lok Adalat would also show the extent to which the learned trial judge was biased and that, if the pleadings and evidence were properly considered, the trial court ought to have come to the conclusion that the alleged cruelty on the part of the wife (appellant herein) was not established and the same should have led to the dismissal of the HMOP. 10. Per contra, Mr. A.Laxmi Rajarathnam, learned counsel for the respondent, contended that the wife (appellant) herself admitted having lodged a complaint against the husband (respondent herein), his parents and his sister alleging dowry harassment; that she had also admitted that she made an attempt to commit suicide and that the same would be enough to hold that she had committed cruelty on her husband providing a ground for seeking divorce. The learned counsel for the respondent contended further that PW2 being the father of PW1, had deposed regarding the facts revealed to him by his son and that hence the reliance made by the court below on the testimony of PW2 could not be found fault with. 11. This court paid its anxious considerations to the above said contentions made on both sides. The materials available on record were also taken into consideration. 12. It is an admitted fact that the marriage of the appellant with the respondent took place at E.V.P. Rajeswari Thirumana Mandapam, Kumanan Chavadi, Poonamallee, Chennai – 56 on 20.02.2005 with the consent of the parents of both of them and that the said marriage was one arranged by the parents of the parties to the marriage. The marriage invitation has been produced as Ex.P1 and the marriage photograph has been marked as Ex.P2. Except those two documents, no other document has been produced on either side. The marriage invitation has been produced as Ex.P1 and the marriage photograph has been marked as Ex.P2. Except those two documents, no other document has been produced on either side. 13. The respondent herein/petitioner (husband) chose to file the HMOP against his wife, namely the appellant herein, for divorce alleging that the appellant (wife) committed cruelty on the respondent (husband). The cruelty alleged in the petition are: "i) the appellant harassed the respondent in order to make him concede to her demand for shifting to a separate house away from the respondent's parental home; ii) the appellant and her parents harassed the respondent herein using vulgar and unpleasant words leading to mental agony to the respondent, which cast his job; iii) even after a separate residence was set up for the couple at No.47, Pillayar Koil Street, Puliambedu, Noombal, Chennai – 117, the father of the appellant abused the respondent and caused threats; iv) the father of the appellant watched every movements of the respondent (petitioner in HMOP) and thereby caused mental agony to the respondent; v) the appellant doubted the conduct of the respondent and asked him whether he was having any illegal contact; vi) the appellant (wife) was giving him sexual torture by counting the number of sexual intercourse he had with her; vii) when they shifted their residence again to the parental house of the respondent, pursuant to his suffering a fracture in an accident in August 2007, the appellant continued her harassment and attempted to commit suicide on 18.02.2008 and was saved by the parents of the respondent herein; and viii) the appellant caused a threat to kill her husband, namely the respondent and put the life of the respondent in danger. Based on those averments, the respondent herein (husband) prayed for a decree dissolving the marriage." 14. The appellant herein (wife) disputed the above said contentions and on the other hand, contended that it was the respondent herein (husband) and his parents, who caused harassment to her, which drove her to make an attempt to commit suicide once and on that occasion, she was saved by her parents and not by the parents of the respondent, as contended in the petition. It was also her averment that, as the respondent developed a habit of coming late to the house, when she asked for the reason, the respondent retorted by quarreling with her stating that her parents had not given him sufficient dowry. Claiming that the respondent herein (husband) did have no justification for claiming divorce, she had prayed for the dismissal of the petition. She had also expressed her unconditional willingness to join with her husband. 15. Since the petition for divorce came to be filed on the ground of alleged cruelty, the respondent herein (petitioner/husband) is bound to prove his case that he was treated with cruelty by the appellant herein (respondent/wife). The respondent herein (petitioner/husband), who figured as PW1, filed a proof affidavit, which was recorded as his evidence in chief examination, stating that the life was normal for one month after the marriage and thereafter, the appellant herein/respondent (wife) started harassing him asking him to shift to a separate house, for which he was not agreeable. He had further stated that the appellant herein/respondent (wife) and her parents continued to harass him with vulgar and unpleasant words, which resulted in mental agony to him preventing him from doing his job properly and that the same resulted in his losing the job. The other averments in the proof affidavit are nothing but a re-statement and repetition of what has been averred in the petition. 16. But, during cross-examination, he did admit that the marriage was an arranged marriage and it took place according to the wishes of the couple and pursuant to their willingness to enter into the matrimonial fold. It was also admitted that, at the time of marriage, the parents of the appellant/respondent (wife), gave the customary seers properly. However, he has stated that, since the appellant/respondent (wife) grew suspicious and she was giving sexual tortures, he was forced to file the petition for divorce. But, what was the nature of suspicion and in what aspects, the appellant/respondent (wife) suspected him, was not stated either in the petition or in his proof affidavit. It is also an admission made by him that, though he has alleged that the appellant gave sexual torture, he could not state what kind of sexual torture he received in the hands of the appellant. It is also an admission made by him that, though he has alleged that the appellant gave sexual torture, he could not state what kind of sexual torture he received in the hands of the appellant. Though the respondent/petitioner (husband) would have stated that the appellant/respondent (wife) made an attempt to commit suicide on a particular day, namely 20.02.2008, in his evidence before the court, he has stated that he could not remember the date on which the appellant made an attempt to commit suicide. He has also admitted that a bald statement that she made an attempt to commit suicide alone was made in the petition and he did not spell out the way in which she made an attempt to commit suicide. Though he had alleged that the appellant/respondent (wife) also caused a threat to kill the respondent/petitioner (husband), he would admit that he could not furnish the date on which such a threat was made. It is his further statement in the cross-examination that even though the appellant/respondent (wife) was unconditionally willing to come and join with him, he was not prepared to live with her. The above said evidence of PW1 will make it clear that the alleged sexual torture, threat to kill, attempt to commit suicide, were only bald statements without necessary particulars and proof. 17. Only in order to supplement the missing links in the evidence of PW1, his father was examined as PW2. During the subsistence of marriage whatever transpires between the parties to the marriage and whatever matters conveyed by one party to the marriage to the other party, shall be entitled to a qualified privilege. The respondent herein/petitioner himself has not spoken about the details of sexual torture. The particulars were also not furnished in the petition. As such, PW2 was made to depose to the effect that the appellant herein/respondent (wife) was compelling her husband, namely the respondent herein to have sexual intercourse with her five times a day, believing someone's word that she would conceive only if they had sexual intercourse five times a day. The particulars were also not furnished in the petition. As such, PW2 was made to depose to the effect that the appellant herein/respondent (wife) was compelling her husband, namely the respondent herein to have sexual intercourse with her five times a day, believing someone's word that she would conceive only if they had sexual intercourse five times a day. Similarly, PW2 would also state in his evidence that when the respondent/petitioner (husband) was not willing to comply with her demand for having sexual intercourse five times a day, he was harassed by the appellant asking him whether he had shared his bed with his mother and his sister and that only because of such cruelty, the respondent/petitioner (husband) filed the petition for divorce. 18. The above said aspects deposed by PW2 are nothing but the result of an afterthought to fill up the lacuna caused in the case of the respondent/petitioner (husband). When PW1 himself has not stated anything regarding the said details, PW2, who is incompetent to speak about the same, had been allowed by the court below to depose in this regard and the court below has chosen to believe and rely on the evidence of PW2. Such an approach made by the trial court is not proper. PW2 should have been prevented from giving any evidence as to what transpired in the bedroom between the appellant and the respondent, as the same would offend the qualified privilege indicated supra. Furthermore, when there is absence of plea, PW2 ought not to have been allowed to lead evidence so as to introduce a new plea by supplementing the plea made in the petition. This will be more obvious from the further evidence of PW2. 19. It is the further assertion of PW2 that his son confided with him that the appellant/respondent (wife), after smelling the inner wears of the respondent/petitioner (husband), harassed him suspecting his conduct and stating that only the smell of perspiration should emanate from inner wears and on the other hand, some other odour was coming from it. Though PW1 was not able to say in what way the appellant/respondent (wife) made an attempt to commit suicide, PW2 stated that the appellant threatened to commit suicide by jumping from the upstairs, in order to strip the parents of the respondent of their jobs, who were government employees. Though PW1 was not able to say in what way the appellant/respondent (wife) made an attempt to commit suicide, PW2 stated that the appellant threatened to commit suicide by jumping from the upstairs, in order to strip the parents of the respondent of their jobs, who were government employees. Even PW2 was not able to say how and who saved the appellant from the alleged attempt of suicide. Therefore, the contention of the respondent/petitioner (husband) that the appellant made an attempt to commit suicide, while she was in the house of the respondent’s parents and she was saved by the parents of the respondent, stands unsubstantiated by sufficient and reliable evidence. 20. On the other hand, the appellant herein/respondent has admitted in her counter statement that she once made an attempt to commit suicide, but she was finally saved by her parents. The said admission that she made an attempt to commit suicide and was saved by her parents, itself will not be enough to come to the conclusion that she was guilty of committing cruelty on her husband. It is her clear and categorical statement that her husband and his parents were giving tortures and despite the same, she was not in a position to make a complaint to her parents, as her two unmarried sisters were with them and that not able to bear the torture given by the husband and his parents, she made an attempt to commit suicide, to be saved by her own parents. The further admission made by the appellant is that she lodged a complaint with the police against her husband and in-laws alleging dowry harassment and that her husband and his parents got anticipatory bail. It is also her admission that she gave a complaint to the Inspector of Police, Assistant Commissioner of Police and also the Human Rights Commission against her husband and that enquiry was conducted on the said complaint. It is also her admission that an attempt was made at All Women Police Station to effect a settlement and the same failed. It is her further statement that pursuant to the failure of the attempt to conciliate in the All Women Police Station, the HMOP came to be filed by the respondent herein/petitioner (husband). It is also her admission that an attempt was made at All Women Police Station to effect a settlement and the same failed. It is her further statement that pursuant to the failure of the attempt to conciliate in the All Women Police Station, the HMOP came to be filed by the respondent herein/petitioner (husband). When the appellant herein/respondent (wife) has clearly admitted that she gave a complaint against her husband and in-laws alleging harassment demanding dowry and that she even approached the Assistant Commissioner of Police and the Human Rights Commission for the said purpose, the same alone will not be enough to show that such a complaint was false and the same would amount to cruelty. If at all such a complaint is proved to be false, then it shall amount to cruelty. 21. In this case, there is no tangible evidence to prove that the complaint lodged by her was false. No document relating to the complaint and the criminal case registered based on the complaint has been produced and no one connected with the said complaint, like Investigating Officer, the Police officer, who conciliated or the officials, who dealt with the complaint or the witnesses examined by the officials during investigation, was examined as a witness in this case. In the absence of any evidence to prove that the averments made in the complaint were false, the mere admission made by the appellant herein/respondent (wife) that she gave a complaint against her husband and in-laws alleging dowry harassment, will not be taken as proof of cruelty or harassment on her part. 22. The learned trial judge, without properly evaluating the said evidence, seems to have acted with a determination to believe the case of the respondent herein/petitioner (husband) and disbelieve the case of the appellant herein/respondent (wife). The same is obvious from the procedure adopted by the trial judge in accepting the evidence of PW2 without there being any pleading and on those aspects that were not even touched by PW1. The same is obvious from the procedure adopted by the trial judge in accepting the evidence of PW2 without there being any pleading and on those aspects that were not even touched by PW1. It is also obvious from the observation made by the learned trial judge, that too based on the evidence of PW2, that the appellant insisted her husband to have sexual intercourse five times a day and unable to cope up with such demand, the respondent/husband narrated the same to his father, namely PW2, was the sexual torture given by the appellant and that such an act on the part of the appellant/respondent (wife) was a kind of impotency on her part that the learned trial judge was not unbiased. If a person needs more sex, he/she cannot be called impotent. The learned trial judge has exhibited his ignorance by calling the appellant herein/respondent (wife) impotent, when the allegation is that she needed sexual intercourse five times a day, whereas her husband was not able to cope up with such insistence. 23. The fact that the learned trial judge has not approached the matter unbiasedly will be revealed from the fact that the learned trial judge has even chosen to observe that during negotiation before the Lok Adalat, the appellant pulled her husband's shirt in front of the advocates and third parties. Where from the learned trial judge got the information for incorporating such an observation is not known. It is quite surprising to note that Pws.1 and 2 have not spoken about such an incident. When RW1 was cross-examined in this regard, she categorically denied having done so. When there is such a categorical denial on the part of RW1 and there is no other evidence, this court wonders how the learned trial judge came to a conclusion that the appellant herein pulled her husband's shirt when the matter stood referred to the Lok Adalat for settlement. Whatever transpires in the mediating table or in the Lok Adalat, shall not be taken into account for deciding the case on merits, when the attempt to arrive at a settlement fails. Without considering the said aspect also, the learned trial judge, chose to state the said aspect as one of the grounds for holding that the appellant herein/respondent (wife) had committed cruelty and that there was no chance of re-union. 24. Without considering the said aspect also, the learned trial judge, chose to state the said aspect as one of the grounds for holding that the appellant herein/respondent (wife) had committed cruelty and that there was no chance of re-union. 24. It will not be out of place to mention here that the learned trial judge even committed a blunder in framing the point for consideration. The point for consideration framed by the learned trial judge found in paragraph 4 of the order reads as follows: “4. The point for consideration is whether the petition is allowed?" It shows non-application of mind and improper approach to the issue involved in the case. Viewed from any angle, the order of the learned trial judge is infirm, defective and the same cannot be countenanced. The order of the learned trial judge is erroneous and the same is liable to be set aside. In the result, the civil miscellaneous appeal succeeds and the same is allowed with cost. The judgment and decree of the Additional District & Sessions Judge (Fast Track Court No.I), Poonamallee dated 12.07.2010 made in H.M.O.P.No.84 of 2008 is set aside and the H.M.O.P.No.84 of 2008 shall stand dismissed with cost.