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2015 DIGILAW 1635 (MAD)

S. Vijayalakshmi v. R. Chandrasekaran

2015-03-25

G.CHOCKALINGAM, V.DHANAPALAN

body2015
JUDGMENT : G. Chockalingam, J. Wife, who suffers a decree dissolving her marriage with the respondent herein on the ground of cruelty, has preferred the present civil miscellaneous appeal. 2. The case of the husband/respondent herein presented before the court below is as follows:- The marriage was solemnized on 23.5.1996 at Chennai and the couple started its matrimonial life at Chennai itself and out of such wedlock, the appellant herein gave birth to a female baby on 27.7.1997. The appellant herein was an adamant person and was under the influence of her mother. Though the respondent herein was a dutiful husband, she has neither been dutiful wife nor a dutiful mother to the child. The respondent herein was made to sleep in veranda as she refused to open the door at many a times when he returns a little late after attending some functions in temples. The appellant also refused to take care of the aged parents of the respondent herein. She also gave birth to a male baby on 29.12.2004 and after that, her mother started staying with the couple and from then onwards, she started torturing him without even providing him food or water. Due to such repeated harassment, the respondent herein had to take shelter with his parents in the month of February 2006. In November 2007, he was pacified by her to return to matrimonial home under the guise that she had changed her attitude, but, it was no so and the position was same and hence, he was again forced to be away from the matrimonial home from December 2007 on wards and even then, the appellant herein, alongwith a mob of her relatives, visited him and shouted at him with a view to tarnish his image. The attitude of the appellant amounts to cruelty and hence, the respondent herein sought for divorce on the ground of cruelty. 3. The attitude of the appellant amounts to cruelty and hence, the respondent herein sought for divorce on the ground of cruelty. 3. The case of the appellant was one of total denial of cruelty and per contra, her case was that the respondent herein often used to pick up quarrel and he was not taking proper care of her as well as the children and all the family expenses were met by her father alone and only due to the quarrel that were picked up by him, she had to be away from matrimonial home and stay with her parents and therefore, the respondent herein is not entitled to get a decree of divorce. 4. During the trial, the husband examined himself as PW1 and marked three documents as Exs.P1 to P3 while the wife examined as RW1 without marking any document. 5. The court below, on analysing the oral and documentary evidence, found that the respondent herein had proved that inspite of his several efforts for peaceful marital life, the appellant herein was not inclined to run the family without giving any torture or humiliation to the husband and therefore granted decree of divorce on the ground of cruelty which gave rise to the present appeal. 6. Learned counsel for the appellant submitted that the Family Court failed to consider that there is no evidence for the cruelty alleged to have been committed by the appellant and that the respondent-husband himself admitted that he himself came out of the matrimonial house and took shelter with his parents. He further submitted that the Family Court also failed to consider the fact that the respondent-husband, though contended that the appellant went to job against his will and consent, he had admitted in cross-examination that all those things were done only with his consent and knowledge. The learned counsel further submitted that there is no material evidence except the oral testimony of the husband to prove the cruelty committed by the appellant to her husband. The learned counsel further submitted that the Family Court failed to consider that the respondent herein had taken controversial stand between his own pleadings and evidence. The learned counsel further submitted that there is no material evidence except the oral testimony of the husband to prove the cruelty committed by the appellant to her husband. The learned counsel further submitted that the Family Court failed to consider that the respondent herein had taken controversial stand between his own pleadings and evidence. He further submitted that since, the respondent herein had given false evidence, his evidence cannot be believed and the evidence of the appellant has to be accepted in view of the fact that there is no proof for cruelty alleged to have been committed by the appellant. The learned counsel for the appellant further submitted that the Family Court erred in granting a decree of divorce to the respondent herein since the appellant has always been willing to join with the respondent, but, the respondent alone is not agreeable to live with the appellant as evident from his evidence and he himself had deposed that he had deserted the appellant and hence, he cannot taken advantage of the wrong committed by him. In view of the above circumstances, the learned counsel for the appellant submitted that the appeal has to be allowed and the decree of divorce granted by the Family Court has to be set aside. 7. Learned counsel for the respondent-husband contended that the evidence of the husband has to be accepted and the Family Court believed his evidence and the marriage was irretrievably broken in the year 2008 itself and the Family Court has come to the right conclusion that the appellant was always causing cruelty to the respondent-husband and the appeal has to be dismissed by confirming the decree of divorce granted by the Family Court. 8. In this case, this court, called for the entire records and perused the same in the light of the pleadings. On such perusal, it is found that except the evidence of PW1, the husband and RW1, the wife, no other witness was examined on both sides. Except the marriage invitation and joint photo of husband and wife and a xerox copy of the ration card, no other material evidence is produced on the side of the respondent-husband to show the cruelty committed by the appellant-wife. Further, to corroborate the evidence of PW1 or to prove the cruelty committed by his wife, no other substantial evidence is produced on the side of the respondent-husband. 9. Further, to corroborate the evidence of PW1 or to prove the cruelty committed by his wife, no other substantial evidence is produced on the side of the respondent-husband. 9. In the above circumstances, it is very useful to refer to the admissions made in the deposition of PW1 which reads thus:- --------------- In other language ------------------ 10. In this case the allegation against the appellant-wife is that she went to job against the will and consent of the respondent and caused mental torture to the respondent herein viz., the husband. In para 4 of the main petition filed before the Family Court, it is stated that the appellant herein went to job against the consent and will of the respondent herein, but, his own evidence in cross is to the effect that only with his knowledge alone, the appellant herein went to employment and he himself arranged for a house in Madras and they lived together peacefully. Hence, the pleading of the respondent is proved to be a false one. 11. Further, the respondent-husband himself admitted that he alone spent for the second delivery and by that time, they lived peacefully without any indulgence of their parents. Even the other allegations such as ill-treatment like not providing food and water to him and refusing to open the door when he comes back to home were proved to be not believable one considering the admissions made by PW1 in his evidence. He further admitted that he has more complaints against his mother in law than his wife-the appellant. Hence, except the bald allegations made in the main petition which was also proved to be false ones by the admissions made by the respondent-herein in his evidence, there was no evidence to support the case of the respondent herein. 12. The further allegation of the respondent herein through his evidence is that the appellant had committed cruelty to his aged parents also. However, to corroborate his evidence, he has not taken any steps to examine his parents. Another cruelty alleged to have been committed by the wife is that she visited the Welfare Department viz., the husband's office to give complaint against the husband. To prove the above, no witness was examined on the side of the respondent herein. However, to corroborate his evidence, he has not taken any steps to examine his parents. Another cruelty alleged to have been committed by the wife is that she visited the Welfare Department viz., the husband's office to give complaint against the husband. To prove the above, no witness was examined on the side of the respondent herein. According to the respondent herein, the appellant, with a view to tarnish his image, came with a mob and shouted in filthy language in front of his house for which, he alongwith his father had to approach the Kolathur Police Station and the police people assured that they would take necessary action if the appellant repeats her action. The above pleading of the respondent herein was proved to be a false one by his own admission in his cross examination to the effect that he had not given any complaint at Kolathur Police Station. Therefore, it is very much clear that the respondent herein is in the habit of making false and imaginary allegations and hence, he cannot be a trustworthy person. On the contrary, the appellant-wife's evidence is believable one. 13. Further, from the facts and circumstances of the case and the evidence adduced, it is clear that the respondent herein viz., the husband alone went out of the matrimonial home during the year 2006, but, later on, at the request of his wife alone, he united to live with her in the month of November 2007, but, in December 2007, again, he went out of the matrimonial home, however, the father of the appellant and their well-wishers and family members went to the house of the respondent herein twice to request him to join with his wife, but, it is evident even from the admission of PW1 that he replied to the relatives of the appellant that he would go to the police station if they disturb him and his parents. From the above, it is clear that the appellant is very much interested to live with her husband, but, the respondent herein alone is not agreeable to live with his wife. In his cross-examination, he has clearly admitted that even if his wife is ready and willing to live with him, he is not ready to live with her. From the above, it is clear that the appellant is very much interested to live with her husband, but, the respondent herein alone is not agreeable to live with his wife. In his cross-examination, he has clearly admitted that even if his wife is ready and willing to live with him, he is not ready to live with her. Therefore, the evidence of PW1 and the pleadings of the respondent herein have clearly proved that the respondent herein was in the habit of making false allegation and contrary statements to contend that his wife committed cruelty to him and his parents and the allegation of cruelty was not proved. 14. The learned counsel for the respondent further submitted that the marriage was irretrievably broken in the year 2008 and hence, the decree of divorce granted by the Family Court has to be confirmed. 15. In this case, even from the pleadings, it is clear that the respondent-husband alone is not living with his wife. Since he is a wrong doer and not living with his wife, he cannot be allowed to take advantage of the wrong done by him. Therefore, we are of the considered opinion that the Family Court has come to a wrong conclusion that the marriage was irretrievably broken from the year 2008 and hence, granted the decree of divorce. But, the cruelty alleged to have been committed by the wife is proved to be a false one. In view of the above circumstances, we are of the considered opinion that the respondent-husband is not entitled to get the decree of divorce and hence, the decree of divorce granted by the Family Court is liable to be set aside. 16. In the result, the civil miscellaneous appeal is allowed and the decree of divorce granted by the Family Court is set aside. Considering the circumstances of the case, there will be no order as to costs. The connected miscellaneous petition is closed.