Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 3937 (MAD)

Gandhi v. S. Jeyasudha

2018-10-24

G.R.SWAMINATHAN

body2018
JUDGMENT : G.R. Swaminathan, J. 1. S. Gandhi, the appellant herein got married to the respondent Jeyasudha on 4.9.2002 as per Hindu rites and customs. The petitioner was employed in National College, Trichirappalli as a Lecturer in Tamil Department. According to the appellant, the respondent herein committed acts of cruelty on him. He therefore filed HMOP No. 40 of 2005 on the file of the Sub-Court, Trichirappalli seeking dissolution of his marriage with the respondent. The respondent herein filed HMOP No. 282 of 2006 before the very same Court for restitution of conjugal rights. Both the petitions were taken up together and disposed of by a common judgment dated 25.1.2011. While the HMOP filed by the appellant/husband was dismissed, the one filed by the respondent/wife was allowed. Challenging the same, the appellant filed CMA Nos. 60 and 61 of 2011 before the Principal District Judge, Trichirappalli. By a common judgment dated 26.6.2013, both the appeals were dismissed. Questioning the same, these civil miscellaneous second appeal have been filed. 2. The appeals were admitted on 26.9.2013. This Court framed the following substantial question of law: "Whether the Courts below applied the correct principles of law relating to the concept of cruelty in matrimonial proceedings." 3. It is not in dispute that since April 2003, the parties herein have been living apart. Thus, more than 15 + years have gone by. HMOP No. 40 of 2005 was filed by the appellant/husband on 24.1.2005. HMOP No. 288 of 2006 was filed by the respondent/wife on 28.8.2006. This Court can safely come to the conclusion that the petition filed by the wife is more a response to the proceedings initiated by the husband. The appellant examined himself as P.W. 1 while the respondent examined herself as R.W 1. On the side of the appellant, Exs. A1 to A16 were marked. On the side of the wife Ex. R1 was marked. 4. One sentence in the HMOP No. 282 of 2006 filed by the respondent herein is a give away. In Paragraph No. 4 of her petition, the respondent herein has frankly stated "the marriage life of the petitioner along with the respondent was not up to the standard comparing with the life of the petitioner she is enjoyed with her parents". As already pointed out, the parties herein got married on 4.9.2002. The appellant stopped being with the respondent since April 2003. As already pointed out, the parties herein got married on 4.9.2002. The appellant stopped being with the respondent since April 2003. Thus, the parties were together for hardly six months. In the petition for restitution of conjugal rights, the respondent herein regretfully contrasts the matrimonial life she had with the appellant herein with what she enjoyed earlier in her family of birth. 5. It is admitted by the respondent herein that she was only an engineering graduate at the time of marriage and that her post graduate education was funded only by the appellant. The appellant issued a legal notice dated 27.9.2004 to the respondent. The respondent did not choose to send her reply. She did not even take steps to rejoin her husband. On the other hand, she remained content by filing a counter in the HMOP filed by the appellant. She applied for restitution of conjugal rights only in August 2006. This time gap is fairly significant. There has been no cohabitation between the parties since April 2003. The husband filed a petition for divorce in June 2005 itself. He had issued a legal notice in September, 2004. But then, the respondent filed OP for restitution of conjugal rights only in August 2006. It is also seen that the respondent herein filed a police complaint Ex. A13. The respondent had alleged in her complaint that she suffered dowry harassment at the hands of the appellant and his mother and sisters. 6. Though, such a complaint was lodged by the respondent only after the institution of both the HMOPs, still this Court would be justified in taking note of the same. The respondent however has not chosen to establish the said allegation made against the appellant herein. In other words, the allegation of dowry harassment made against the appellant remains un-established. This Court will have to take a overall view of the situation. 7. Levelling an allegation of dowry complaint against a person who is in a teaching faculty in a college cannot be lightly taken. In this case, there has been a long period of continuous separation. This Court even at the stage of arguments referred the parties to mediation. But, nothing fruitful came out of the said exercise. This Court can therefore safely conclude that the matrimonial bond is beyond repair. The marriage has become a fiction. It is supported only by a legal tie. This Court even at the stage of arguments referred the parties to mediation. But, nothing fruitful came out of the said exercise. This Court can therefore safely conclude that the matrimonial bond is beyond repair. The marriage has become a fiction. It is supported only by a legal tie. The circumstances set out above cumulatively go to show that mental cruelty has been committed on the appellant herein. 8. This aspect of the matter has not been correctly appreciated by the Courts below. The appellant has filed an affidavit before this Court undertaking to pay a sum of Rs. 10.00 lakh as a permanent one time settlement in favour of the respondent. The appellant seeks a months time to make a said payment. Recording this undertaking, the appellant is directed to deposit a sum of Rs. 10.00 lakh to the credit of HMOP No. 40 of 2005 on the file of the Principal Sub-Court, Trichy in favour of the respondent S. Jeyasudha. It is open to the respondent to withdraw the said amount towards a full and final settlement of all claims which she may have against the appellant. The substantial question of law framed in these civil miscellaneous second appeals is answered in favour of the appellant. The Judgment and decrees passed by the Courts below are set aside. HMOP No. 40 of 2005 filed by the husband stands allowed. HMOP No. 282 of 2006 filed by the wife stands dismissed. These Civil Miscellaneous Second Appeals stand allowed. No costs.