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2018 DIGILAW 4519 (MAD)

Shanmugapriya Sinduja v. B. Sathish

2018-12-17

M.V.MURALIDARAN

body2018
JUDGMENT : 1. C.M.S.A.No.28 of 2016 has been filed challenging the judgment passed by the learned II Additional District Court, Tiruppur in C.M.A.No.12 of 2015, by which decree for divorce granted by the learned Sub Court, Tiruppur, in H.M.O.P.No.114 of 2013, was confirmed and C.M.S.A.No.29 of 2016 has been filed challenging the judgment passed by the learned II Additional District Court, Tiruppur in C.M.A.No.13 of 2015, by which dismissal of petition for restitution of conjugal rights by the learned Sub Court, Tiruppur in H.M.O.P.No.146 of 2014, was confirmed. 2. On the consent of both sides, the Civil Miscellaneous Second Appeals, pending at the admission stage, are taken up for final disposal. 3. In both the appeals, the wife is the appellant and the husband is the respondent. 4. H.M.O.P.No.114 of 2013, was filed by the respondent/husband under Sections 13(1)(i-a)(i-b) of the Hindu Marriage Act, 1955 seeking to dissolve his marriage with the appellant/wife dated 03.06.2009. 5. H.M.O.P.No.146 of 2014 was filed by the appellant/wife under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. 6. In H.M.O.P.No.114 of 2013, it is the case of the respondent/husband that the marriage took place on 03.06.2009 at Avinashi Lingeswarar Temple, Avinashi, Tiruppur as per Hindu customary rights. Out of the wedlock they have a son by namely Sashwat born on 05.07.2010 and right from the day of marriage the appellant/wife has harassed and ill-treated him. The appellant/wife and her family members hurled abuses at him and his family members standing in front of his house, that the appellant/wife left for her parents house in Singanallur at Coimbatore after child birth, and thereafter she refused to come to Tiruppur, where the respondent/husband was residing. After birth of their son, the respondent/husband resided with the appellant/wife for 20 days at her parents residence, where he was treated like a slave, and it was becoming increasingly difficult for him to stay with appellant/wife in their parents’ house. The appellant/wife had always demanded to set up a separate family and compelled the respondent/husband not to reside with his parents, and hence she refused to come to the matrimonial home in spite of several requests made by the respondent/husband. Even during the year 2011 Deepavali time, the respondent/husband was abused and ill-treated by the appellant/wife and her parents. The appellant/wife never performed her duties as wife and she denied him ‘marital relationship’. Even during the year 2011 Deepavali time, the respondent/husband was abused and ill-treated by the appellant/wife and her parents. The appellant/wife never performed her duties as wife and she denied him ‘marital relationship’. Therefore, the respondent/husband sent a legal notice dated 16.04.2012 calling upon the respondent’s wife to resume the matrimonial life, but she was adamant and she refused to come back. Hence, the respondent/husband has filed a petition in H.M.O.P.No.362 of 2012, for restitution of conjugal rights and later he withdrew the same, since the appellant/wife was also of the view that reunion is not possible, and the appellant/wife have never had any intention to live together. Though the appellant/wife sought for time of two months to resume cohabitation, but she did not turned up even after six months from the issuance of legal notice. In fact, later on even she refused to disclose her address, that she also telephonically informed that she is not inclined to live together and therefore, the petition filed by the husband/respondent for restitution of conjugal rights was later withdrawn. The respondent/husband was put to mental cruelty and the appellant/wife had also deserted him for more than the statutory period and hence the respondent/husband filed the petition for divorce in H.M.O.P.No.114 of 2013 before the learned Sub-Court, Tiruppur, against the appellant/wife on the grounds cruelty and desertion. 7. The appellant/wife resisted the petition for divorce by contending that the claim of the respondent/husband was false, she also states that the respondent/husband’s sister is a divorcee having a ten year son suffering from Autism, that the respondent/husband had always demanded gold and other dowry. Apart from this, the respondent/husband and his family members always ill-treated her, and the respondent/husband used to drink and create trouble and the respondent/husband abused her. In fact her son’s name is not Sashwat but Sasvanmithra, and the respondent/husband has no love and affection towards his son, that the respondent/husband has not done anything for his son. She further states that the respondent/husband refused to come to the appellant/wife’s parents house, that it is false to allege that the appellant/wife is not interested in matrimonial life and it is false to state that she refused to come to the matrimonial home. She further states that the respondent/husband refused to come to the appellant/wife’s parents house, that it is false to allege that the appellant/wife is not interested in matrimonial life and it is false to state that she refused to come to the matrimonial home. In fact, the only intention of the respondent/husband is to torment her, that earlier, the respondent/husband filed H.M.O.P.No.362 of 2012, for restitution of conjugal rights but withdrew the same, she further states that she and her parents never ill-treated her husband and prayed for dismissal of the H.M.O.P.No.114 of 2013. 8. The appellant/wife filed additional counter statement contending that her parents had invited the respondent/husband for family rituals, but the respondent/husband had refused to come and abused her on various occasions. She further states that the entire marriage expenses was borne by her father and the respondent/husband used to switch off his mobile all along. The sister of the respondent/husband had also abused her and her parents. The appellant/wife states that notices were sent to his residence and summons were sent to his work place, but the respondent/husband did not turn up for the ear-boring ceremony of their son and hence, she prayed for dismissal of the petition seeking divorce by the respondent/husband. 9. The appellant/wife had filed H.M.O.P.No.145 of 2014, reiterating her case as stated in the counter filed in H.M.O.P.No.114 of 2013 and the respondent/husband filed counter statement therein on allegations similar to the one made in his petition for divorce and prayed for dismissal of the same. 10. On the side of the respondent/husband, the respondent/husband was examined as PW1, his grandfather aged 96 years was examined as PW2 and his father was examined as PW3 and Exhibits-P1 to P8, viz. marriage invitation, reception invitation, legal notice, acknowledgement card, reply notice, additional notice, acknowledgement card and private notice were marked. On the side of the appellant/wife, appellant alone was examined as RW1 and she did not choose to mark any exhibit. 11. The Learned Sub Judge, after considering the pleadings and evidence on 20.02.2015 allowed the petition for divorce filed by the respondent/husband and dismissed the petition for restitution of conjugal rights filed by the appellant/wife. 12. Thereafter, challenging both the judgments, the appellant/wife filed two appeals in C.M.A.Nos.12 and 13 of 2015, before the learned II Additional District Judge at Tiruppur. The Learned Sub Judge, after considering the pleadings and evidence on 20.02.2015 allowed the petition for divorce filed by the respondent/husband and dismissed the petition for restitution of conjugal rights filed by the appellant/wife. 12. Thereafter, challenging both the judgments, the appellant/wife filed two appeals in C.M.A.Nos.12 and 13 of 2015, before the learned II Additional District Judge at Tiruppur. Considering both side cases, the Learned District Judge, Tiruppur by order dated 03.02.2016 dismissed both the appeals filed by the wife/appellant. 13. Aggrieved against both the judgments, the appellant/wife had come forward with the present Civil Miscellaneous Second Appeals before this Court. 14. I heard Mr.S.V.Jayaraman, learned Senior Counsel for M/s.K.Govi Ganesan, learned counsel for the appellant/wife and Mr.AR.L.Sundaresan, learned Senior Counsel for M/s.P.Valliappan, learned counsel for the respondent/husband in both the CMSAs and perused the entire materials available on record. 15. Mr.S.V.Jayaraman, learned Senior Counsel appearing for the appellant/wife strenuously contended that the grounds of cruelty and desertion have not been substantiated and that the Lower Courts were not correct in granting decree for divorce. The Learned Senior Counsel for the appellant/wife further submitted that the respondent/husband filed the petition in H.M.O.P.No.362 of 2012 for restitution of Conjugal Rights and withdrew the same and therefore he is deemed to have condoned the conduct of the appellant/wife. The Learned Senior Counsel further contended that the respondent/husband had not taken serious steps for restitution of conjugal rights. He also argued that the grounds of cruelty and desertion do not go together and it was false to allege that the appellant/wife had denied cohabitation with the respondent/husband. 16. Per contra, Mr.AR.L.Sundaresan, learned Senior Counsel for the respondent/husband contended that the respondent/husband had filed petition for restitution of conjugal rights on the very same allegations on which he later filed the petition seeking divorce, that the respondent’s husband had not condoned the act of the appellant’s wife and only if he had pursued the petition for restitution of conjugal rights, it can be said that he had not condoned the conduct of the appellant’s wife, whereas he withdrew the same and filed the present petition for divorce. The learned Senior Counsel further contended that admittedly the appellant/wife had deserted the respondent/husband and deprivation of conjugal rights would also amount to cruelty alleged against the appellant/wife. The learned Senior Counsel further contended that admittedly the appellant/wife had deserted the respondent/husband and deprivation of conjugal rights would also amount to cruelty alleged against the appellant/wife. The learned Senior Counsel also submitted that the appellant/wife and her parents performed ceremonies after the birth of their son without inviting the respondent/husband or informing him. The learned Senior Counsel drew the attention of this Court to the admissions made by the appellant/wife during the course of her cross examination. The Senior Counsel for the respondent/husband would contend that the real intention of the appellant/wife is not to resume cohabitation, that her only intention is to see that the respondent/husband is harassed. Her oral evidence and conduct expose her case, that the respondent/husband had proved the grounds of cruelty and desertion, but the lower Courts were correct in granting decree for divorce and dismissing the petition for restitution of conjugal rights. It is the further contention of the learned Senior Counsel that the appellant/wife had made wild accusations against the respondent/husband that he was in love with some person but failed to name such person and that the same would also amount to cruelty. Hence he prayed for dismissal of the appeals. 17. This Court has given its anxious consideration to the pleadings, oral and documentary evidence and arguments advanced on either side. The appellant/wife has raised the following substantial questions of law in the Memorandum of Grounds: (A) When the respondent herein has not denied the pleadings of the appellant herein by filing rejoinder and her evidence is also in consonance with her pleadings it is correct on the parts of the Courts below to accept the case of the Respondent herein and grant divorce and dismiss the petition for restitution of conjugal rights? (B) Whether the non consideration of the entire oral evidence in the case in a proper perspective manner has not resulted in miscarriage of justice? (C) Whether the allegation of desertion and cruelty has been satisfactorily established by the respondent herein to get a decree of divorce when the pleadings and evidence are otherwise? (D) Whether the withdrawal of H.M.O.P.No.362 of 2012 condonation of allegations, even assuming without admitting the same to be true and the allegations not made against the Appellant within in between period of seven days for dismissing the petitioner for Divorce and granting restitution of conjugal rights? 18. (D) Whether the withdrawal of H.M.O.P.No.362 of 2012 condonation of allegations, even assuming without admitting the same to be true and the allegations not made against the Appellant within in between period of seven days for dismissing the petitioner for Divorce and granting restitution of conjugal rights? 18. The appellant/wife had issued reply notice under Exhibit A6 dated 26.04.2012 as follows: “My client is always ready and willing to live with your client but she requires two months time to console and pacify herself as she was subjected to mental cruelty at the hands of your client and his family members during their matrimonial life.” The above reply notice discloses that the appellant/wife sent Exhibit-P6 reply notice seeking two months time to resume cohabitation. 19. During the course of her oral evidence, the appellant/wife examined as RW1 admitted as follows: “TAMIL” It is seen that though the appellant/wife sought two months time for resuming cohabitation, she did not resume cohabitation with her husband for more than six months and only thereafter the respondent/husband filed the petition for divorce. She has further admitted during cross-examination that only because both of them were not keen on living together, the respondent/husband withdrew the petition in H.M.O.P.No.362 of 2012, filed for restitution of conjugal rights and later sought for divorce. 20. A perusal of the cross examination of the appellant/wife and her reply notice would clearly establish that only after both of them were not interested in resuming matrimony life, the respondent/husband had withdrawn the petition for restitution of conjugal rights and filed the petition for divorce. A glance of the allegations contained in the petition for restitution and petition for divorce do not prove that the respondent/husband had condoned the conduct of the appellant/wife. Therefore the respondent/husband cannot be accused of having condoned the conduct of the appellant/wife. This Court finds that there is merit in the contention of the learned Senior Counsel for the respondent/husband, that he had not condoned the act of the appellant/wife with respect to cruelty and desertion by withdrawing the petition for restitution of conjugal rights. 21. The appellant/wife has admittedly not invited the respondent/husband even for the naming and tonsuring ceremony of their son. She has also avoided having marital relationship with the respondent/husband. She has without any justification withdrawn herself from marital life, from the child birth. 21. The appellant/wife has admittedly not invited the respondent/husband even for the naming and tonsuring ceremony of their son. She has also avoided having marital relationship with the respondent/husband. She has without any justification withdrawn herself from marital life, from the child birth. Although the respondent/husband has tried his best to rejoin the appellant/wife, she has avoided him. The allegation of the respondent/husband that the appellant/wife and her family members have abused him and his family standing in front of the house of the respondent/husband, has not been seriously disputed by the appellant/wife. Mental cruelty varies from person to person and situation to situation. It cannot be put in a straight jacket formula. It is a disturbing feeling, which only the couple know. In the opinion of this Court, the overall conduct of the appellant/wife as stated above, coupled with her failure to perform her duties as a wife, would amount to mental cruelty. 22. Now it has to be seen whether the appellant/wife is justified in not returning to the matrimonial home after childbirth, even after repeated requests made by the respondent/husband. The appellant/wife in her counter statement has made certain allegations against the respondent/husband and his family. A bare reading of the same would go to show that some of the normal happenings have been exaggerated and those incidences are trivial in nature. In fact those allegations were specifically denied by the respondent/husband and the allegations were not proved by the appellant/wife, through concrete evidence. Further, the evidence of the appellant/wife would reveal that she has not returned to the matrimonial home, without any justification. If at all she had faced harassment at the hands of the respondent/husband, she would have at least caused a legal notice to her husband, the respondent herein by narrating the events. On the other hand, the appellant/wife has refused for re-union, which she has admitted during the course of her cross-examination. The appellant/wife has not taken any recourse under law for re-union. The respondent/husband has filed the petition for divorce on 17.04.2013, but the appellant/wife has chosen to file the petition for restitution of conjugal rights only on 25.10.2014, which is more than 1½ years thereafter. If really the appellant/wife was keen on restitution of conjugal rights, she would have sought for the same, prior to the respondent/husband filing petition for divorce or immediately thereafter. If really the appellant/wife was keen on restitution of conjugal rights, she would have sought for the same, prior to the respondent/husband filing petition for divorce or immediately thereafter. Since the couple have been living separately from 01.08.2010, the petition for restitution of conjugal rights filed on 25.10.2014, appears to be an after-thought and only a counter blast to the proceeding initiated by the respondent/husband. Thus the factum of desertion is clearly established in the present case. 23. The appellant/wife also admitted that even after separation, the respondent/husband had approached her to resume matrimonial life. The above admission clearly proves that though the respondent/husband was keen on resuming peaceful marital life, the appellant/wife was not inclined. Due to the conduct of the appellant/wife, the respondent/husband got dejected and withdrew his earlier Petition seeking restitution of conjugal rights and filed the Petition seeking divorce on the ground of cruelty and desertion. The act of the respondent/husband cannot be found at fault. The reason adduced by the appellant/wife in staying away from her husband is not bona fide and it appears to be an afterthought. Though various contentions were raised by the appellant/wife, her evidence suggests that she is not inclined to live with the respondent/husband. 24. The Lower Courts have taken note of the evidence of RW1 and the contents of P6 reply notice along with other documents in arriving at the conclusion that the appellant/wife does not have any inclination to resume cohabitation or live peacefully with the respondent/husband. 25. The further contention of the Senior Counsel for the respondent/husband is that due to the wilful desertion, the respondent/husband has been denied conjugal pleasure and the same amounts to cruelty. According to him, desertion also amounts to mental cruelty. It is an admitted fact that both the appellant/wife and the respondent/husband are living separately for nearly eight years. Normal wear and tear situations, trivial irritations in the matrimonial home are no ground for seeking separate residence. Desertion requires four important elements, viz., (i) factum of separation, (ii) intention to put an end to matrimonial consortium and cohabitation permanently, (iii) want of reasonable cause, and (iv) want of consent or against the wish of the other spouse. Admittedly even after six months after separation, the appellant/wife did not take any steps to rejoin the respondent/husband. It is apparent that the appellant/wife has been making contradictory allegations without substantiating them. Admittedly even after six months after separation, the appellant/wife did not take any steps to rejoin the respondent/husband. It is apparent that the appellant/wife has been making contradictory allegations without substantiating them. As rightly held by the Courts below, the respondent/husband had proved both the factum of cruelty as well as desertion. Moreover, the parties have been living separately from the year 2010 for more than eight years and there does not seem any likelihood for reunion. The case on hand squarely falls within the four corners mentioned supra, the appellant/wife is guilty of desertion. No reasonable cause is established by the appellant/wife to justify her desertion. 26. The Lower Courts have adverted to the entire evidence and found that the appellant/wife's intention was not bona fide and she was not interested in continuing her matrimonial ties and her continuous refusal to join her husband, were taken as indicators of the fact that she does not interested in living with her husband. On the other hand, the respondent/husband had made several attempts to rejoin with his wife and all those attempts were consistently rebuked by the appellant/wife. From the evidence and the candid admissions made by the appellant/wife during trial, I hold that appellant/wife is found guilty of desertion and mental cruelty. Hence I do not find any perversity in the appreciation of evidence and the finding rendered by the Lower Courts. 27. The learned Senior Counsel for the appellant/wife was also not able to convince that any question of law much less the substantial questions of law raised in the grounds were truly involved in the appeals. The questions of law raised in the Memorandum of Grounds are regarding the factual aspects, which have been correctly appreciated and dealt with by the lower Courts. The Learned Senior Counsel for the appellant/wife was not able to point out any perversity or illegality in the impugned judgment. 28. In view of the above, this Court find that there is no question of law much less the substantial question of law for consideration in the Civil Miscellaneous Second Appeals warranting interference with the concurrent findings rendered by the lower Courts and resultantly both the Civil Miscellaneous Second Appeals are dismissed by confirming the judgment and decree passed by the learned II Additional District cum Sessions Court at Tiruppur dated 03.02.2016 made in C.M.A.Nos.12 and 13 of 2016. Considering the relationship between the parties, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.