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2018 DIGILAW 4391 (MAD)

Patric Kingsley Iruthayaraj v. Venartius Anto

2018-11-29

V.M.VELUMANI

body2018
JUDGMENT : 1. Both the appeals are arising out of common order dated 12.12.2011 made in IDOP Nos.137 & 203 of 2007 on the file of the District Judge, Kanyakumari at Nagarcoil and hence they are disposed of by this common judgment. 2. The appellant is the husband and the respondent is the wife in both IDOP Nos.137 & 203 of 2007. IDOP No.137 of 2007 is filed by the respondent/wife for restitution of conjugal rights and IDOP No.203 of 2007 is filed by the appellant/husband for divorce. IDOP filed by the husband was dismissed and the IDOP filed by the wife was allowed vide common order dated 12.12.2001. 3. Against the common order dated 12.12.2011 made in IDOP Nos.137 & 203 of 2007, the present two appeals are filed by the appellant/husband. Facts of the case:- 4. According to the appellant, the marriage between the appellant and respondent was solemnized on 28.05.2003 as per Christian Rites and Customs on 28.05.2003 at Mount Carmel Church, Ramapuram, Kanyakumari District. According to the appellant, after the marriage, the appellant and respondent lived together in the matrimonial house of the appellant only for 15 days. The respondent did not like to live in a joint family and at her insistence, a separate house was taken on rent at Dindigul and both the appellant and respondent were living together in the said house. The appellant was working as a Manager in TANHOPE, a cooperative concern at Ottachathiram, Dindigul District. He maintained the family with his income. The respondent was working as a school teacher on temporary basis in a school run by Catholic church. The respondent wanted to lead a luxurious life and pressurized the appellant to purchase luxurious things. The appellant advised her to reduce the luxurious expenses and live normal life within the income of the appellant. 4(a) The respondent abused the appellant and insulted the appellant in front of others and hurt the feelings of the appellant. Due to the same, the appellant was mentally affected. The respondent failed to discharge the matrimonial duties and ignored him. The appellant was affected both mentally and physically by the action of the respondent. The appellant tolerated the said behaviour of the respondent for the sake of family and Christian principles. Due to the same, the appellant was mentally affected. The respondent failed to discharge the matrimonial duties and ignored him. The appellant was affected both mentally and physically by the action of the respondent. The appellant tolerated the said behaviour of the respondent for the sake of family and Christian principles. In April 2004, the respondent informed the appellant that she would go to her native place and return within few days but she did not return for long time. The appellant went to the residence of the respondent and requested her to come and join him. The respondent refused to such request and insulted the appellant. The respondent did not like to live with the appellant. 4(b) On 17.07.2004, the respondent came to the house of the appellant alongwith her sister and informed the appellant that she does not like to live with him and she has got a job at Nagercoil. She took all her articles including her jewels and the ring which was given to the appellant at the time of marriage and wrote a letter to that effect and gave it to the appellant. Her sister also attested the said letter. Even though the appellant advised the respondent to change her wrong decision, the respondent did not change her mind and ignored the appellant. She hired a vehicle and left in the said vehicle with all her articles. Inspite of the appellant's efforts, the respondent did not join the appellant. The respondent abandoned the appellant for more than 34 months and is living separately. 4(c) The appellant sent a notice dated 14.05.2007 to the respondent through his advocate informing the respondent that he is taking legal proceedings against her for getting divorce. The respondent sent a reply notice on 28.05.2007 through her advocate directly to the appellant instead of sending it to his advocate. In the said reply, the respondent made false allegations against the appellant, his father, brothers and sisters. In the said reply, she has also stated that she got a job at Nagercoil and the appellant can get transfer to Nagercoil where they can live happily. The respondent has alleged that family members of the appellant are responsible for separation of the appellant and respondent. Infact, the respondent has left the matrimonial home without any reason and got a job at Nagercoil and insulted the appellant continuously. The respondent has alleged that family members of the appellant are responsible for separation of the appellant and respondent. Infact, the respondent has left the matrimonial home without any reason and got a job at Nagercoil and insulted the appellant continuously. By the action of the respondent, the appellant has been mentally and physically affected. 4(d) The respondent in IDOP No.137 of 2007 has stated that after marriage, they lived together in the ancestral house of the appellant for three months and at the insistence of the appellant's father, the appellant and respondent were shifted to a rented house very near to the ancestral house and the life of the respondent was made miserable as the appellant was not having his food with the respondent but with his father and other members of his family. The provisions for cooking was controlled by the sister of the appellant. The respondent was not allowed to keep any money and her entire salary was taken by the appellant. The respondent conceived but the conception ended up in abortion. 4(e) The appellant did not take care of the respondent and did not provide any treatment. At the insistence of the respondent, the appellant took her to ancestral house on 28.04.2004 and stayed with her for 2 days and sent her alongwith her sister for treatment. Without informing the respondent, the appellant left her residence. When she contacted the appellant over phone, he promised to come and take her to his house. She informed the appellant that as per his suggestion, she is getting a temporary job. She went to his house on 17.07.2004 but she was ill treated and physically tortured by him as well as his father in the presence of his sister. The appellant forcibly took a letter from the respondent that she took all the things as she got a job at Nagercoil. The appellant promised to join her at Nagercoil but the signatures were obtained from the respondent and her sister with physical pressure and threat. Inspite of physical torture by the appellant, she still holds him in good respect and fond affection. All her efforts for amicable settlement through parish priest and other church members went in vain. She wants the appellant to come and live with her at Nagercoil. 5. Inspite of physical torture by the appellant, she still holds him in good respect and fond affection. All her efforts for amicable settlement through parish priest and other church members went in vain. She wants the appellant to come and live with her at Nagercoil. 5. Before the Trial Court, the appellant examined himself as P.W.1 and three witnesses as P.Ws2 to 4 and marked five documents as Exs.P1 to P5. The respondent examined herself as R.W.1 and marked eight documents as Exs.R1 to R8. Two documents were marked through third party. 6. The learned Trial Court, considering the pleadings, oral and documentary evidence, dismissed the IDOP No.203 of 2007 filed by the appellant and allowed the IDOP No.137 of 2007 filed by the respondent holding that the appellant failed to prove the cruelty and desertion. 7. Against the said common order passed on 12.12.2011 in I.D.O.P.Nos.137 & 203 of 2007, the present two appeals are filed by the appellant/husband. 8. The learned counsel for the appellant contended that the learned Judge failed to properly appreciate the evidence let in by the appellant. The appellant has examined independent witnesses but the Tribunal, erroneously did not accept the said evidence. The learned Judge misconstrued the documents filed by the appellant and also failed to consider the admission and inconsistent statement made by the respondent. The learned Judge, without properly appreciating the evidence let in by the respondent, ordered for restitution of conjugal rights. In Ex.P4, reply notice, the respondent had admitted that she is not prepared to join the appellant in matrimonial home and insisted on the appellant to get transfer of his job area to Nagercoil where she got a job. This clearly shows that the respondent has voluntarily deserted the appellant and the appellant is entitled for divorce and the respondent is not entitled to decree for restitution of conjugal rights. 9. On 17.07.2004, the respondent alongwith her sister came to the matrimonial home of the appellant at Dindigul and took away all her articles including the gold jewels and also the gold ring given to the appellant at the time of marriage. The respondent informed the appellant that she is not wiling to stay with him. The respondent knew that appellant cannot get transfer of his job to her native place. The respondent informed the appellant that she is not wiling to stay with him. The respondent knew that appellant cannot get transfer of his job to her native place. The respondent has given a letter that she has taken all her belongings and appellant also gave a letter to that effect. The respondent left the matrimonial home in April 2004 and did not show any interest to return. Only when the appellant filed IDOP for divorce, the respondent has filed petition for restitution of conjugal rights. The learned Judge failed to see that the relationship between the appellant and respondent deteriorated to such an extent due to the conduct of the respondent, it has become impossible for them to live together without mental agony and torture. The respondent never had cordial relationship with the appellant and his family members and insulted the appellant in the presence of others which has caused mental agony and tension to the appellant. 10. The learned counsel for the appellant, in support of his contention, relied on the judgment reported in 2017 (9) SCC 632 [Sukhendu Das v. Rita Mukherjee] and judgment dated 06.04.2017 made in CMA (MD) Nos.238 & 239 of 2012 delivered by me. 11. Per contra, the learned counsel for the respondent contended that the appellant has made various allegations against the respondent with regard to cruelty alleged to have been committed by the respondent. He has failed to prove the same. On the other hand, he has admitted that respondent was doing her duty as a wife and when they were living together in the ancestral house of appellant, she took a temporary job and she handed over the entire salary to the appellant for the maintenance of matrimonial home. The appellant has admitted this fact in the cross examination. The father of the appellant tortured the respondent even after appellant and respondent had set up a matrimonial home in a house which was very near to the ancestral house of the appellant. The respondent did not desert the appellant. The appellant took the respondent to her native place for taking treatment for abortion, which she suffered while staying at Dindigul. The appellant promised to come and take the respondent to the matrimonial home but he did not do so. All the efforts taken by the respondent through the parish priest and other church members for re-union went in vain. 12. The appellant promised to come and take the respondent to the matrimonial home but he did not do so. All the efforts taken by the respondent through the parish priest and other church members for re-union went in vain. 12. The respondent took job at Nagercoil only with the consent of the appellant. The appellant failed to get transfer to Nagercoil or any other place near to Nagercoil to set up the matrimonial home. On 17.07.2004, when the respondent and her sister went to the house of the appellant at Dindigul, the appellant and his father threatened and by force made the respondent to sign a letter as though she has voluntarily given such a letter. The appellant's father assaulted the respondent on that day. The respondent has no intention of insulting the appellant. Even now, she is willing to join with the appellant and live with him. The learned counsel for the respondent filed written arguments and referred to Section 10 (1) (ix) and (x) of the Indian Divorce Act 1869, as amended by Indian Divorce (Amendment) Act, 2001. 13. The learned counsel for the respondent referred to judgment of this court in CMA No.1974 of 2015. The learned counsel for the respondent also extracted certain portion of the judgment of the Hon'ble Apex Court and contended that the respondent has not deserted the appellant and the appellant is not entitled for decree of divorce and the respondent is entitled for decree for restitution of conjugal rights and prayed for dismissal of both the appeals as there is no error or illegality as the order of the Trial Court is valid. 14. In reply to the submissions made by the learned counsel for the respondent, the learned counsel for the appellant contended that the appellant did not give consent for the respondent taking job at Nagercoil and he did not agree to get transfer of his job and join at Nagercoil. The learned counsel further contended that appellant is working in a private concern and there is no possibility of getting transfer to Nagercoil or any other place. The respondent informed the appellant only after getting a job at Nagercoil and the appellant did not have any other option but to consent for the same as the respondent was not willing to join the matrimonial home at Dindigul. 15. The respondent informed the appellant only after getting a job at Nagercoil and the appellant did not have any other option but to consent for the same as the respondent was not willing to join the matrimonial home at Dindigul. 15. Heard the learned counsel for the parties and perused the materials available on record. 16. The appellant has filed IDOP for divorce on two grounds, i.e. cruelty and desertion. On the other hand, the respondent has filed IDOP for restitution on conjugal rights. The respondent has stated that the appellant has filed IDOP No.203 of 207 for divorce only after the respondent filed IDOP No.130 of 2007 for restitution of conjugal rights. According to the respondent, the appellant filed IDOP only after receipt of notice in IDOP filed by her for restitution of conjugal rights. This contention is factually incorrect. From the typed set of papers filed in CMA, it is seen that the appellant has filed IDOP No.203 of 2007 on 27.06.2007 while the respondent has filed IDOP No.137 on 30.07.2007. The appellant has filed IDOP No. 68 of 2007 on the file of Principal District Court at Dindigul. The respondent filed Tr.CMP (MD) No.126 of 2007 and MP (MD) No.1 of 2007 before this Court for transfer of IDOP No.68 of 2007 to District Court, Nagercoil for joint trial alongwith IDOP No.137 of 2007. As per the orders of this court, IDOP No.68 of 2007 was transferred from the file of Principal District Court, Dindigul to the file of District Court, Nagercoil and re-numbered as IDOP No.203 of 2007. 17. From the materials on record, it is seen that admittedly, the appellant took the respondent in April 2004 to her native place for treatment for abortion. According to the appellant, after the treatment, the respondent refused to come and join the appellant in the matrimonial home at Dindigul. On the other hand, it is the contention of the respondent that the appellant failed to come and take her to the matrimonial home and all her efforts to contact the appellant failed. This contention is not acceptable in view of the fact that the respondent has got a job at Nagercoil and came to the house of the appellant alongwith her sister and took away all the articles and gave a letter to that effect. The appellant has also given a letter to that effect. This contention is not acceptable in view of the fact that the respondent has got a job at Nagercoil and came to the house of the appellant alongwith her sister and took away all the articles and gave a letter to that effect. The appellant has also given a letter to that effect. Both the letters are marked as exhibits. The learned counsel for the respondent contended that she was forced to give such a letter under threat and coercion by the appellant's father and family members and as per the draft letter given by the appellant. It is also the contention of the learned counsel for the respondent that the father of the appellant assaulted the respondent. To substantiate this contention, the respondent has not given any complaint to the police with regard to assault made by the father of the appellant. She has not given any letter or notice to the appellant in this regard. 18. The next contention of the respondent that only with the consent of the appellant, she took a job at Nagercoil and the appellant agreed to get transfer and join the respondent at Nagercoil is not acceptable in the facts and circumstances of the case. On the other hand, the contention of the appellant that he could not get any transfer as he was working in a private concern and the respondent, after getting a job at Nagercoil, informed the appellant about the same is acceptable. From the attitude of the respondent, it is clear that she is not inclined to live with the appellant at matrimonial home at Dindigul and her intention is that appellant must come and join her at Nagercoil. She left the matrimonial home during April 2004. On 17.07.2004, she came to Dindigul alongwith her sister and took away all her articles from the matrimonial home. Even though she alleged that she has made various attempts to join the appellant at matrimonial home at Dindigul through parish priests and other members of the church, she has not examined anybody to substantiate this claim. 19. The appellant issued notice on 14.05.2005 marked as Ex.A2 informing the respondent that he will be initiating proceedings for getting dissolution of marriage between the appellant and the respondent. 19. The appellant issued notice on 14.05.2005 marked as Ex.A2 informing the respondent that he will be initiating proceedings for getting dissolution of marriage between the appellant and the respondent. The respondent sent a reply through her counsel directly to the appellant denying various allegations made by the appellant and has not joined the appellant even after such reply. This inaction of the respondent from April 2004 to 30.07.2007 when she filed IDOP for restitution of conjugal rights clearly shows that she is not inclined to join the appellant in the matrimonial home. Even after obtaining decree of conjugal rights, the respondent has not made any attempt to join the appellant or initiate any execution proceedings as per Order XXI Rule 32 CPC. As per this provision, when a person who suffered a decree of restitution of conjugal rights, wilfully fails to obey the said decree, the person who got the decree can execute the decree by attaching the properties of other person. 20. It is pertinent to note that in the written arguments, the learned counsel for the respondent contended that the appellant has now got a job as B.T. Assistant in a Government School and he is getting salary of Rs.60,000/- per month. The learned counsel for the respondent has not stated that the respondent expresses her willingness to join the appellant where he is working. It is the contention of the respondent that she took the job as teacher in leave vacancy at Dindigul as the amount of salary earned by the appellant is not sufficient to maintain the family. When according to the respondent, the appellant is earning a sum of Rs.60,000/- per month, she could have joined the appellant and set up a matrimonial home. 21. The learned counsel for the appellant contended that appellant and respondent are living separately from the year 2004 and there is no possibility of living together and the marriage has been broken down irretrievably and appellant is entitled to decree of divorce on this ground. The learned counsel for the appellant relied on the judgment of the Hon'ble Apex Court granting decree of divorce on the ground of irretrievably but in the subsequent judgment, the Hon'ble Apex Court has stated that irretrievably broken down is not a ground for granting divorce as it is not a ground for divorce as per statute. The learned counsel for the appellant relied on the judgment of the Hon'ble Apex Court granting decree of divorce on the ground of irretrievably but in the subsequent judgment, the Hon'ble Apex Court has stated that irretrievably broken down is not a ground for granting divorce as it is not a ground for divorce as per statute. As per the provisions of the Act, the irretrievably broken down marriage is not a ground for divorce and court cannot introduce a new ground. At the same time, this court takes notice of the judgment of the Hon'ble Apex Court reported in 2006 (4) SCC 558 (Naveen Kohli v. Neelu Kohil and judgment of Delhi High Court reported in 2016 (0) Supreme Delhi 3869 [Sandhya Kumari v. Manish Kumar]. In both the judgments, when a spouse is not willing to live with other spouse and at the same time refuses for a decree of divorce, the same amounts to mental cruelty. The relevant portion in the said judgment of the Hon'ble Apex Court in Para 83 reads as follows – 83. Even at this stage, the respondent does not want divorce by mutual consent. From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt in our minds that the respondent is bent upon treating the appellant with mental cruelty. It is abundantly clear that the marriage between the parties had broken down irretrievably and there is no chance of their coming together or living together again. 22. In the judgment relied on by the learned counsel for the appellant in CMA (MD) No.238 & 239 of 2012 dated 06.04.2017, I have considered all the judgments in this aspect and in Para 19, I held as follows - 19. The learned counsel for the appellant contended that divorce can be granted on the ground of irretrievable break down of marriage as per judgments of the Hon'ble Apex Court. This contention is untenable. The Hon'ble Apex Court has granted divorce on that ground exercising its extraordinary power under Article 142 of the Constitution of India. The said power is not available to this Court or to the Trial Court. This contention is untenable. The Hon'ble Apex Court has granted divorce on that ground exercising its extraordinary power under Article 142 of the Constitution of India. The said power is not available to this Court or to the Trial Court. In the subsequent judgments, the Hon'ble Apex Court held that the earlier judgment, granting divorce on the ground of irretrievable broken down cannot be taken as precedent. It is pertinent to note that the respondent obtained a decree of restitution of conjugal rights. There is nothing on record to show that after obtaining decree, he took steps to 28 make the appellant to live with him as his wife. He has not filed any E.P. as per Order 21 Rule 32 Civil Procedure Code. Where a person, who suffered a decree of restitution of conjugal rights has wilfully failed to obey the decree, the person, who obtained decree can enforce the same by attachment of his or her property. In the circumstances, the fact that the appellant and the respondent are living separately for more than 10 years and the attitude of the respondent even after obtaining a decree of restitution of conjugal rights has not taken steps to enforce the same, but insisting on retaining matrimonial bond would amount to causing mental cruelty and to torment and traumatized the appellant. This has been held so by the Delhi High Court in the judgment reported in 2016 (0) Supreme (Del.) 3869 and the Hon'ble Apex Court in the judgment reported in 2006 (4) SCC 558 [cited supra] 23. The reasoning given by me in Para 19 of the said judgment and the ratio in the judgment of the Hon'ble Apex Court and Delhi High Court are squarely applicable to the facts of the present case. 24. I hold that when respondent has no intention to join the appellant in the matrimonial home as per her attitude seen from the record and contest the petition for divorce amounts to causing mental cruelty to the appellant. For the above reason, the appellant is entitled to decree of divorce and the respondent is not entitled to decree of restitution of conjugal rights. 25. In the result, both the appeals are allowed setting aside the common order dated 12.12.2011 made in I.D.O.P.Nos.137 & 203 of 2007 on the file of the District Judge, Kanyakumari at Nagercoil. For the above reason, the appellant is entitled to decree of divorce and the respondent is not entitled to decree of restitution of conjugal rights. 25. In the result, both the appeals are allowed setting aside the common order dated 12.12.2011 made in I.D.O.P.Nos.137 & 203 of 2007 on the file of the District Judge, Kanyakumari at Nagercoil. IDOP No.203 of 2007 filed by the appellant is allowed and IDOP No.137 of 2007 filed by the respondent is dismissed. No costs.