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2018 DIGILAW 2627 (MAD)

E. Kavitha v. A. Rajithkumar

2018-08-24

C.SARAVANAN, R.SUBBIAH

body2018
JUDGMENT : C. SARAVANAN, J. The appellant-wife is aggrieved by the impugned fair and decretal order dated 17.10.2016 passed by the Family Court at Vellore in F.C.O.P.No.245 of 2014 (hereinafter referred to as the Family Court and the impugned order). 2. F.C.O.P. No. 245 of 2014 was filed by the respondent-husband before the Family Court seeking to dissolve the marriage solemnized on 15.2.2009 under Section 13-1(i-a) & (i-b) of the Hindu Marriage Act, 1955 between the appellant and the respondent on the grounds of cruelty and adultery. 3. The impugned order has dissolved the marriage solemnized on 15.2.2009 between the appellant and the respondent on the ground of cruelty by the appellant. Though adultery was also alleged same has not been proved before the Family Court. 4. In the present appeal the appellant seeks to assail the impugned order insofar as it upholds the plea of cruelty and the dissolution of the marriage ordered by the impugned order by the Family Court. 5. The present appeal was filed on 11.01.2017 before this Court with a delay of 24 days. Though notice was ordered in the miscellaneous proceeding to condone delay the delay on 14.02.2017, it remained un-served on the respondent. 6. Meanwhile, on 05.03.2017 the respondent re-married without awaiting for the outcome of the present appeal. The 2nd marriage was solemnized within 101 days from the date of the impugned order. The respondent also did not file caveat before this Court to get notice. 7. The brief facts of the case on merits are as follows :- (I) The marriage between the appellant and the respondent was solemnized on 15.02.2009 as per the Hindu Customary rites. (II) On 13.03.2009, after the marriage the appellant and the respondent proceeded to the United States of America, where the respondent was employed. (III) The appellant and the respondent started their matrimonial home in the United States of America. (IV) The marriage was consummated and later a child was born on 07.04.2010 in the United States of America. (V) Sometime during their stay, respondent’s friend Prabhakar is said to have visited the appellant and the respondent’s house when he is supposed to have inappropriately and casually touched/tapped the appellant’s thigh thrice in front of the respondent. (IV) The marriage was consummated and later a child was born on 07.04.2010 in the United States of America. (V) Sometime during their stay, respondent’s friend Prabhakar is said to have visited the appellant and the respondent’s house when he is supposed to have inappropriately and casually touched/tapped the appellant’s thigh thrice in front of the respondent. (VI) Though the appellant did not react to the same, the respondent was upset and slighted with the appellant for not having protested to his friend for such indiscretions. (VII) Later in connection with the child's birth, the appellant's parents visited the appellant and the respondent. That time the relationship between the appellant and respondent was not very cordial. (VIII) The appellant’s father appears to have intervened and got embroiled and in the heat of the moment had chided the respondent to go and “sleep with his mother” though the exact background for the trigger has not been explained. (IX) The episode forms the basis on which the respondent initiated proceeding before the Family Court for dissolution of the marriage. Though adultery was pleaded it was neither proved nor seriously argued. (X) The Family Court has concluded that since the appellant neither rebuked her father nor consoled the respondent, the appellant was cruel and found good reason for dissolving the marriage. (XI) After the incident, the appellant returned back to India on 27.07.2010 with child and her parents. (XII) The appellant thereafter, had tried contacting the respondent over phone. However, the respondent refused to take any of the appellant’s calls. (XIII) The respondent’s mother is said to have called the appellant and scolded her and asked her not to disturb the respondent. (XIV) Thereafter, the appellant addressed an Ex.P3 e-mail dated 19.03.2011 to the respondent and requested the respondent to rework the broken relationship. (XV) The respondent sent a reply vide, Ex.A.4 dated 24.03.2011 wherein he countered the allegations and found fault with the appellant and her father on several counts including the appellant’s father chiding the respondent and the appellant’s failure to rebuke her father. (XVI) In Ex.P4 dated 24.03.2011, the respondent has narrated how he felt cheated by the appellant for having changed her behaviour after the marriage and vented out his frustrations. (XVI) In Ex.P4 dated 24.03.2011, the respondent has narrated how he felt cheated by the appellant for having changed her behaviour after the marriage and vented out his frustrations. (XVII) Thereafter, the respondent took steps to get separated from the appellant by initiating divorce proceedings by filing I.A.No.107 of 2011 on 09.09.2011 in an unnumbered H.M.O.P through his father. (XVIII) The said I.A. was contested by the Appellant and later dismissed by the Family Court by an order dated 25.08.2012. (XIX) Thereafter, on 27.09.2012, the respondent filed H.M.O.P.No.197 of 2012 before the Sub-ordinate Judge, Vellore, which came to be transferred to the Family Court at Vellore and renumbered as F.C.O.P.No.245 of 2014. (XX) On 17.10.2016, the impugned order came to be passed. 8. In the divorce proceeding before the Family Court, the respondent alleged as follows :- a. Appellant was not interested in having sex with the appellant and that in a period of 18 the appellant and the respondent stayed together, cohabited only 10 times. b. Appellant's father had asked the respondent to go and sleep with his mother and that the appellant did not protest. c. The appellant had superiority complex about her higher qualification and insulted the respondent in front of his friends on several occasions. d. The Appellant had illicit relationship with her father and with his friend Prabakar. e. The appellant's father threatened the respondent that he would kill him by engaging rowdy elements and was ready to spend a sum of Rs.2,00,000/- to achieve his ambitions. 9. The Family Court vide the impugned order has dissolved the marriage. In para 10 of the impugned order, the Family Court has found the appellant guilty of “cruelty” and has therefore ordered dissolution of the marriage. 10. Though para 10 of the impugned order has not been paraphrased properly, a reading of it makes it clear that the learned Judge of the Family Court has blamed the appellant on two counts to infer cruelty by the appellant on the respondent to dissolve the marriage. They are as follows : (i) The appellant was cruel to the respondent as she failed to rebuke her father for making the above underlined insulting utterance while chiding the respondent in her presence. (ii) The appellant also failed to console the respondent and pretended as if nothing happened when the appellant’s father insulted the respondent. 11. They are as follows : (i) The appellant was cruel to the respondent as she failed to rebuke her father for making the above underlined insulting utterance while chiding the respondent in her presence. (ii) The appellant also failed to console the respondent and pretended as if nothing happened when the appellant’s father insulted the respondent. 11. Para 10, which has the conclusion in the impugned order is reproduced below :- “10. Though the words were thrown by the father in law of the petitioner the normal expectation of husband is immediate retorted attitude and response of his wife towards her father. This court felt the non-reaction of the respondent still goes worst and caused hurt to the petitioner which is amount to cruelty further such attitude definitely discloses the cruelty that was caused to this petitioner which instigated him to file this petition. Therefore, the petitioner’s entitled for divorce on the ground of cruelty.” 12. Heard the learned counsel for the appellant and the respondent. 13. Assailing the impugned order the learned counsel for the appellant submitted that; i. The impugned order passed by the Family Court is based on the inference from the events discussed in two e-mails vide Ex.P3 dated 19.3.2011 and Ex. P4. dated 24.3.2011. ii. The Family Court erred in inferring cruelty based on the facts narrated in Ex.P3 and Ex.P4. iii. In any event on merits also no cruelty has been established. iv. The learned counsel relied on the decision of the Hon’ble Supreme Court in S. Valli vs. N. Rajendran reported in 2010 SCC OnLine Mad 1471 and Savitri Pandey v. Prem Chandra Pandey, reported in (2002) 2 SCC 73 . 14. The learned counsel for the respondent had defended the order of Family Court and submitted that : i. This is a fit case for upholding the divorce granted by the Family Court as the appellant was cruel. ii. The appellant left for India despite protest by the respondent. iii. There is irretrievable breakdown of the marriage as the parties have lived away since 2011. iv. The 2nd marriage was valid on the ground that it was solemnized after the expiry of statutory period prescribed under the Act. ii. The appellant left for India despite protest by the respondent. iii. There is irretrievable breakdown of the marriage as the parties have lived away since 2011. iv. The 2nd marriage was valid on the ground that it was solemnized after the expiry of statutory period prescribed under the Act. v. Since the respondent has married, any adverse order at this stage in favour of the appellant will jeopardize not only the 2nd marriage contracted by the respondent but also would serve no useful purpose as the respondent has no desire to live with the appellant. 15. The learned counsel for the respondent has also relied upon the decision of the following decisions : i. Narendra Vs. K. Meena reported in CDJ 2016 SC 922. ii. Vinoth Kumar Subbiah Vs. Saraswathi Palaniappan reported in CDJ 2015 SC 381. iii. Vidhya Viswanathan Vs. Karthik Balakrishnan reported in CDJ 2014 SC 803. iv. Jadish Singh Vs. Madhuri Devi reported in CDJ 2008 SC 792. v. Rishikesh Sharma Vs. Saroj Sharma reported in CDJ 2006 SC 921. 16. The entire premise of the divorce petition seems to have been based on few misunderstandings between the appellant and the respondent and the incident when the appellant’s father had hurled the insulting utterances. 17. Further, the respondent was also disappointed and upset with the appellant when she did not react to the insulting utterances of the appellant’s father. 18. The respondent also felt upset and slighted when as the appellant did not react to the tapping / touching of the thigh of the appellant by his friend Prabhakar and therefore assumed adultery on part of the appellant. 19. Furthermore, the respondent was also unhappy that the appellant delivered their child in USA and that he was forced to spend for the appellant’s frequent illness and her delivery charges which were not covered under the health insurance. Thus, based on these premises the respondent alleged in the divorce petition cruelty, adultery and illicit relationship of the appellant with her father. 20. The Family Court in the impugned order has held cruelty was established while adultery was not made out. 21. In the facts of the case in this appeal two issues arise for our consideration. Thus, based on these premises the respondent alleged in the divorce petition cruelty, adultery and illicit relationship of the appellant with her father. 20. The Family Court in the impugned order has held cruelty was established while adultery was not made out. 21. In the facts of the case in this appeal two issues arise for our consideration. They are : i. Whether the Family Court was correct in concluding that the utterances of the appellant’s father and failure of the appellant to rebuke her father and console the respondent can amount to cruelty? ii. Whether there was irretrievable breakdown of marriage on account of the fact that the appellant and respondent stayed away since October 2010 and in view of the 2nd marriage of respondent? 22. The Hon’ble Supreme Court in Gurbux Singh v. Harminder Kaur, (2010) 14 SCC 301 has laid down the test of cruelty. It has held as under : “Cruelty has not been defined under the Act. It is quite possible that a particular conduct may amount to cruelty in one case but the same conduct necessarily may not amount to cruelty due to change of various factors, in different set of circumstances. Therefore, it is essential for the appellant, who claims relief, to prove that a particular/part of conduct or behaviour resulted in cruelty to him. No prior assumptions can be made in such matters. Meaning thereby that it cannot be assumed that a particular conduct will, under all circumstances, amount to cruelty, vis-a-vis the other party. The aggrieved party has to make a specific case that the conduct of which exception is taken amounts to cruelty”. 23. We find that the appellant showed maturity by trying to reach out to the respondent to mend their relationship by making several calls to the respondent which went unanswered and thereafter sent Ex.P3 email dated 19.3.2011. 24. The appellant also had requested the respondent to not to precipitate the issue further and expressed her desire to live with him. 25. The appellant also asked the respondent to think of their child and asked him to speak to the appellant directly instead of speaking through people as it was not helping them in any way. 26. On the other hand, in the Ex.P4 reply email the respondent did not show any efforts to reconcile with the appellant and was unforgiving the appellant for her father’s utterances. 27. 26. On the other hand, in the Ex.P4 reply email the respondent did not show any efforts to reconcile with the appellant and was unforgiving the appellant for her father’s utterances. 27. In the said Ex-P4, the respondent expressed frustration and disappointment. The respondent was also uncharitable to the appellant as he was forced to incur hospital expenses in connection with their child's birth in USA and her frequent health problems which were not covered under health insurance. 28. He also vented out his frustrations over the fact that he did domestic work to take care of the appellant’s parents during their visit to USA though they had come to help the appellant and the respondent. 29. We find that the respondent has also allowed his imaginations to go wild by casting aspersion on appellant’s character and chastity by alleging adultery with his friend and illicit relationship between the appellant and her father. These allegations have been made casually without any material to substantiate the same. 1. The respondent has also defended his mother for scolding the appellant for attempting to call the respondent after he refused to answer appellant’s repeated calls. 30. The respondent proceeded to file a frivolous and vexatious divorce proceedings before the Sub-Court first through his father and after it was rejected, thereafter the impugned proceeding by himself by alleging cruelty and adultery. 31. The impugned order unfortunately is based on assumptions and presumptions and infers cruelty by the appellant on the respondent only on account unsavoury utterances of the appellant’s father and the failure of the appellant to rebuke her father and her failure to console the respondent after those utterances. 32. The impugned order further tries to unnecessarily sermonize the relationship between a mother and her son in the context of the appellant’s father utterance ignoring the evidence in Ex.P.3 email dated 19.03.2011 wherein the appellant had taken efforts to mend the relationship between the appellant and the respondent after the incident after the respondent failed to answer her calls or speak to her. 33. The impugned order also ignores that the respondent did not take any efforts to reconcile the relationship but only vented out frustrations in his reply email vide Ex.P.4 and made allegations of cruelty and adultery without any basis. 34. 33. The impugned order also ignores that the respondent did not take any efforts to reconcile the relationship but only vented out frustrations in his reply email vide Ex.P.4 and made allegations of cruelty and adultery without any basis. 34. Though, the Family Court has held the appellant was cruel, it has actually inferred that the appellant was irresponsible for not rebuking her father and for not consoling the respondent and tilted the scales of justice against the appellant by granting decree of divorce in favour of the respondent. 35. In our view, though the utterances of the appellant’s father may have riled the respondent, however the appellant cannot be held responsible for the utterances of her father. Even if they were stinging and harsh, cruelty cannot be attributed by the appellant to the respondent. 36. Merely because the appellant did not react immediately after her father hurled the offending utterances would not mean that the appellant was cruel to the respondent. 37. On the otherhand, it may show maturity on part of the appellant to not precipitate the issue further in the heat of the moment. 38. Thus, we are of the view that though the utterances of the appellant’s father were insulting, the failure of the appellant to rebuke her father cannot amount to cruelty by the appellant. 39. It could at best mean that the respondent was disappointed by the appellant’s silence. 40. However, disappointment cannot be equated with cruelty as held by the Family Court. In our view, the Family Court fell in grave error in holding cruelty was established. 41. Therefore, we are of the view that there are neither ingredients nor evidence to sustain the allegation of cruelty as held in the impugned order of the Family Court. We therefore, hold that the Family Court has granted a decree of divorce in a very casual manner. 42. The second issue is whether the marriage has broken down irretrievably in view of the second marriage and the fact that the appellant and respondent stayed away from each other since October 2010. 43. In this context, we find the decision of the Hon'ble Supreme Court in the case of Savitri Pandey Vs. Prem Chandra Pandey reported in (2002) 2 SCC 73 , relied upon by the learned counsel for the appellant relevant. 43. In this context, we find the decision of the Hon'ble Supreme Court in the case of Savitri Pandey Vs. Prem Chandra Pandey reported in (2002) 2 SCC 73 , relied upon by the learned counsel for the appellant relevant. In para 19 it was held as follows :- “At this stage we would like to observe that the period of limitation prescribed for filing the appeal under Section 28(4) is apparently inadequate which facilitates the frustration of the marriages by the unscrupulous litigant spouses. In a vast country like ours, the powers under the Act are generally exercisable by the District Court and the first appeal has to be filed in the High Court. The distance, the geographical conditions, the financial position of the parties and the time required for filing a regular appeal, if kept in mind, would certainly show that the period of 30 days prescribed for filing the appeal is insufficient and inadequate. In the absence of appeal, the other party can solemnise the marriage and attempt to frustrate the appeal right of the other side as appears to have been done in the instant case. We are of the opinion that a minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnized during the aforesaid period be deemed to be void. Appropriate legislation is required to be made in this regard. We direct the Registry that the copy of this judgment may be forwarded to the Ministry of Law and Justice for such action as it may deem fit to take in this behalf.” 44. In the above case, the Hon’ble Supreme Court further held that : “there is no denial of the fact that right of at least one appeal is a recognised right under all systems of civilised legal jurisprudence. If despite the pendency of the appeal, the appellant chose to solemnise the second the marriage, the adventure is deemed to have been undertaken at her own risk and the ultimate consequences arising of the judgment in the appeal pending in the High Court.” 45. We are of the view that the second marriage cannot be a fait accompli to uphold wrong order of the Family Court. We are of the view that the second marriage cannot be a fait accompli to uphold wrong order of the Family Court. The fact that the respondent also did not file caveat before the Court also shows the intention of the respondent to subvert the legal process and present his 2nd marriage as a fait accompli. 46. The respondent has to bear the consequences of his 3rd mis-adventure in the form ill-advised 2nd marriage after filing two frivolous divorce proceedings, 2nd of which culminated in the impugned order which is being now set aside by this order. 47. Unfortunately, the respondent has involved another person in his life by marrying her as his second wife after securing an altogether unstainable order in an hurry. 48. Respondent cannot take advantage of his mistake and now plead irretrievable break down of his marriage with the appellant on account of his 2nd marriage. 49. Furthermore, in view of our conclusion on merits on the first issue that no cruelty was established, entire edifice of the defence of the respondent regarding irretrievable breakdown of marriage also has to fail. 50. In view of our above observations, the civil miscellaneous appeal is allowed and the impugned order is set aside with cost. Consequently, connected Miscellaneous Petition is closed.