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2019 DIGILAW 1383 (MAD)

Ragupathi v. Subasree

2019-04-30

K.KALYANASUNDARAM, R.THARANI

body2019
JUDGMENT : K. Kalyanasundaram, J. (Prayer: Civil Miscellaneous Appeal is filed under Section 19 of the Family Courts Act, 1984, against the decree and judgment dated 14.12.2018 made in H.M.O.P.No.211 of 2018 on the file of the Family Court, Dindigul.) 1. This appeal is directed against the judgment and decree passed by the Family Court, Dindigul in H.M.O.P.No.211 of 2018. 2. Facts in nutshell: (i) H.M.O.P.No.211 of 2018 was filed by the first respondent against the appellant and the second respondent under Sections 13(1) (i), 13(1) (ia), 13(1) (ib) of Hindu Marriage Act, 1955. (ii) The case of the petitioner is that on 29.04.2007, the marriage between the petitioner and the first respondent was solemnised as per Hindu Rites and Customs at Prem Mahal in Karur. At that time, the demand made by the parents of the first respondent for providing 100 sovereigns of gold, Rs.3,00,000/- and a Maruthi Car was met out. Subsequent to the marriage, the first respondent was not leading a happy married life and when it was enquired by the petitioner, he informed that he was not at all interested in the marriage, but he accepted the marriage expecting huge dowry. The petitioner replied stating that since marriage was already performed, she is ready to live with him as he likes, for which the first respondent stated that she is talking like a prostitute. Thereafter, the first respondent scolded the petitioner in the presence of his parents on many occasions. But she was living patiently hoping that he would change his attitude. (iii) It is further stated that when she was in the seven months pregnancy, the first respondent and his parents demanded a house for their living. So, the mother of the petitioner settled her property by a registered settlement deed dated 30.11.2007 and thereafter the father of the petitioner spent Rs.75,00,000/- for the construction of a new house and they started living in the new house from 29.04.2009. It is alleged that she was not provided with medical assistance and she was not permitted to eat whatever she likes. The first respondent did not allow the Doctors to conduct a surgery at the time of delivery and they demanded to wait for a normal delivery and eventually she delivered a child on 18.05.2008 through cicerone. It is alleged that she was not provided with medical assistance and she was not permitted to eat whatever she likes. The first respondent did not allow the Doctors to conduct a surgery at the time of delivery and they demanded to wait for a normal delivery and eventually she delivered a child on 18.05.2008 through cicerone. In pursuance of the demand and torture met out by the first respondent and his parents, the lands measuring an extent of 10.33 acres in Survey Nos.246/5, 243/1, 248/2 situated in Papampatti Village was given as dowry. (iv) It is further alleged that the first respondent demanded the petitioner to take sprout and raw vegetables and therefore, she was in hungry on many occasions and also suffered mental agony. In January 2011, the first respondent demanded Rs.10,00,000/- as dowry from the parents of the petitioner and harassed her, so the parents of the petitioner gave Rs.5,00,000/- , considering the welfare of the petitioner and the minor child. (v) In 2012, when the petitioner applied for the post of Assistant Public Prosecutor through online, the first respondent has wrongly entered her date of birth. When it was questioned, he stated that she should work as a slave and a house- maid. In September 2013, during the night hours, the first respondent was talking secretly to someone. On 12.10.2013, at 9.00 p.m., the first respondent was talking to have a romantic relationship with someone. When it was asked by the petitioner, there was no reply, but later on she became aware of the fact that the first respondent was talking with the second respondent, who was working in R.K.Tex. When the petitioner opposed the illegal intimacy with the second respondent, he assaulted her and during the time, the father of the first respondent also joined with him. So, the petitioner immediately called her parents and on the same day, she along with her minor son Adithya were taken to her parent’s house. (vi) The petitioner further stated that in July 2014, she was selected as Assistant Public Prosecutor Grade II and joined in the criminal Court, Tiruchencode as Assistant Public Prosecutor in the month of April 2015. The first respondent came to her working place, informed the advocates and other officers and spread false news causing disrespect to her which caused mental agony to the petitioner. The first respondent came to her working place, informed the advocates and other officers and spread false news causing disrespect to her which caused mental agony to the petitioner. When one Ramasamy, S/o. Rakkiyanan and Srinivasan, S/o. Kaliyannan enquired about this matter, the first respondent replied that he will not allow the petitioner to live peacefully. In February 2014, the petitioner met with an accident, but the first respondent did not even see her and hence on the grounds of desertion, cruelty and adultery, she prayed for grant of divorce. 3. (1) The appellant resisted the divorce petition by filing a detailed counter denying each and every allegations made in the divorce petition. It is stated in the counter that the first respondent is not having illicit intimacy with the second respondent and denied the demand of dowry and stated that the father of the petitioner wanted to pay a dowry of Rs.1,00,000/- as ‘petti panam’ which is prevalent in that area, however, he was paid Rs.10,001/- . It may be true that the petitioner was presented with 100 sovereigns of gold jewels, the first respondent never and ever taken it from the petitioner when they lived together. The father of the petitioner also compelled the first respondent to accept a car in accordance with the prevailing customs in the community. But the first respondent refused to accept the same. Then, against the wishes of the first respondent, the car was registered in the name of the petitioner, however, the car was never allowed to be parked in the residence of the first respondent nor used by him. (ii) The first respondent has further stated that the mother of the petitioner gifted a piece of land during November 2007 and for construction of a house, the father of the petitioner contributed Rs.13,00,000/- and the father of the first respondent paid the balance amount of Rs.12,00,000/-, but the value of the construction inflated as Rs.75,00,000/- . (ii) The first respondent has further stated that the mother of the petitioner gifted a piece of land during November 2007 and for construction of a house, the father of the petitioner contributed Rs.13,00,000/- and the father of the first respondent paid the balance amount of Rs.12,00,000/-, but the value of the construction inflated as Rs.75,00,000/- . (iii) The case of the first respondent before the Family Court was that he is a Software Developer by profession and owns a concern by the name EMak Softwares and he had to struggle hard in the market to establish his name and only out of his hard work, he could win over esteemed customers and despite the same, he used to take his wife every time to a Doctor for check up and consultation during the pregnancy. Since there was no medical emergency, the Gynecologist had advised for waiting for a normal delivery, but the father of the petitioner urged for a cicerone delivery. (iv) The property in Survey Nos.246/5, 243/1, 248/2 totally 10.33 acres in Papampatti Village was transferred by one Thirumalai in lieu of money he owed to the father of the first respondent. The first respondent’s father opted to gift the property to his daughter- in- law, the petitioner herein and it was registered on 05.11.2008, which would show that the father of the first respondent was treating the petitioner with love and affection and as his own daughter. Later, the said Thirumalai lodged a complaint against the father of the first respondent and his daughter- in- law on 15.10.2012 to the Inspector of Police, Land Grab Section, Karur. He also denied the demand of dowry and receipt of Rs.5,00,000/- as alleged and entering a wrong date of birth in the online application. The first respondent has further stated that in January 2012, the petitioner left the first respondent temporarily to pursue her studies for examination at her parents house and stayed therefor over six months. (v) One among the customers of the first respondent was M/s. RK Exports, Karur and during January 2012, the Textiles Production Management System was started for development and implementation and to clear the initial problems, the first respondent had to explain the proper implementation. During the said period, EDP Manager was Mrs.Dhanam. (v) One among the customers of the first respondent was M/s. RK Exports, Karur and during January 2012, the Textiles Production Management System was started for development and implementation and to clear the initial problems, the first respondent had to explain the proper implementation. During the said period, EDP Manager was Mrs.Dhanam. The first respondent used to receive calls from the said Dhanam and also from her subordinates for trouble shooting and also for clarification on various aspects of the software at various times and thereby he denied the illegal intimacy with the second respondent. (vi) In Paragraphs - 49 to 53 of the counter, the first respondent has stated as follows: “49. Be that as it may, the respondent1 submits that this particular allegation of the petitioner against respondent1 is not based on any facts but could be on the basis of her perception when growing up with her parents. Respondent1 submits to this Hon’ble Court that the petitioner had on several occasions appreciated respondent1 during the period they lived together that he never even turned his look at any other women, however pretty they were, while going to temples, cinema halls, etc. The petitioner had also mentioned to the respondent1 that she was very lucky to have the respondent1 as her husband and that it was strange to see him not even turning his eyes at other ladies; that she perceived that all men will look for sex with other ladies given an opportunity whenever and wherever, like her father Mr.Arumugam does. 50. Respondent1 submits that the petitioner had even stated that her father Mr.Arumugam had extra- marital relationship with several ladies, including with Mrs.Yashodha, the wife of Mrs.Arumugam’s elder brother. The petitioner had also stated that to the respondent1 that her father Mr.Arumugam is the biological father of the son born to Mrs.Yashodha. The respondent1 was further told by the petitioner that the said relationship of Mr.Arumugam with Mrs.Yashodha was also known to her mother Mrs.Arumugam and that she had seen in her tender age all three, viz., Mr.Arumugam, Mrs.Arumugam and Mrs.Yashodha coming out of the same bedroom. 51. The respondent1 was further told by the petitioner that the said relationship of Mr.Arumugam with Mrs.Yashodha was also known to her mother Mrs.Arumugam and that she had seen in her tender age all three, viz., Mr.Arumugam, Mrs.Arumugam and Mrs.Yashodha coming out of the same bedroom. 51. The respondent prays to this Hon’ble Court to appreciate the kind of situation prevailed during the brought up of the petitioner and respondent1 submits that she may be having some issues with her mental health, that makes her to see the work in the way she had perceived it from the childhood from the situation she was brought up. Therefore, the respondent1 prays to this Hon’ble Court to kindly order for a medical evaluation of the petitioner by a competent psychiatrist to evaluate her mental condition and for administering proper treatment, if need be. 52. The respondent1 submits that in the event a competent psychiatrist determining the petitioner’s mental health as affected and needs treatment, then, the respondent1 declares that he will not press for pursuing the perjury charges backed by evidences and also on pursuing the offence of falsified and forged evidence presented before the Hon’ble Court and even willing to accept the petitioner despite all these defamation thrown at him, in the interest of the future of his son with the petitioner, Master Adithya. 53. The respondent further submits and prays to this Hon’ble Court to order for taking a DNA Test to Mr.Arumugam and Mr.Gokul the stated biological son of Mr.Arumugam out of his relationship with Mrs.Yashodha, which would conclusively prove the conduct of Mr.Arumugam and the probable reason for the petitioner’s prejudiced views against the respondent1.” 4. In Paragraph - 61 of the prayer portion, he has stated as follows: “However, in the event of the psychiatrist examining the petitioner has declared as to having sound mind with no mental illness, the respondent1 prays to the Hon’ble Court to order for initiating proceedings for offences under Sections 191, 192 and 193 of the Indian Penal Code and set the law in motion. In such a circumstances, the respondent1 submits that he will be accepting the Hon’ble Court’s verdict on his marriage, even if it is going to be dissolved.” 5. To fortify the case of the petitioner, she examined herself as P.W.1 and examined her father as P.W.2 and one Selvaraj as P.W.3. In such a circumstances, the respondent1 submits that he will be accepting the Hon’ble Court’s verdict on his marriage, even if it is going to be dissolved.” 5. To fortify the case of the petitioner, she examined herself as P.W.1 and examined her father as P.W.2 and one Selvaraj as P.W.3. The petitioner also marked Exs.P1 to P10 and on the side of the appellant, he examined himself as R.W.1 and his father is R.W.2 and two other witnesses viz., Chandrasekaran and Viramani were examined as R.Ws.3 and 4. He marked Exs.R1 to R4. Court documents were marked as Exs.C1 and C2 and Authorisation Letter of P.W.3 marked as Ex.A1. 6. The Family Court, after analyzing both the oral and documentary evidence, came to the conclusion that the petitioner did not prove the grounds of adultery and desertion, while allowing the petition on the ground of cruelty. Challenging the same, the present appeal has been filed. 7. Mr.B.Mohan, the learned counsel for the appellant would submit that the Family Court failed to appreciate the entire case of the appellant and the first respondent on the basis of pleadings and evidence let in by both sides. Though the appellant exposed the falsity, forgery and perjury committed by the first respondent during the cross- examination, the trial Court failed to appreciate the same. The property purchased in the name of the first respondent by his father to an extent of 10.33 acres in Pappampatti Village has been usurped by the first respondent claiming to be paid by her father. This conduct would prove that they may go to any extent through the allegation against the petitioner. 8. It is further added that the Family Court failed to appreciate that the appellant confronted P.W.2 for DNA Test, to prove the paternity of the minor child born to P.W.2 and his brother’s wife viz., Yesodha that was disclosed only by the first respondent, but the appellant was subjected to grave prejudice as Family Court failed to grant an opportunity for subjecting P.W.2 to DNA Test. It is further contended that the ground on which the divorce is granted is without any evidence and the same is liable to be set aside by this Court. 9. It is further contended that the ground on which the divorce is granted is without any evidence and the same is liable to be set aside by this Court. 9. Per contra, Mr.Ajmal Khan, learned Senior counsel for the respondents by referring the documents annexed in the typed set filed by the respondents, would submit that though the first respondent had established the grounds of adultery and desertion also, however the Family Court granted divorce only on the ground of cruelty. It is the submission of the learned Senior counsel that in the matrimonial dispute between the appellant and the first respondent, scandals and unwarranted allegations have been levelled against the father of the first respondent, however, the appellant did not take any steps to substantiate the same. According to the learned Senior counsel, both the first respondent herein and her father are lawyers and they are from a reputed family and the unproved character assassination caused mental agony and therefore, the judgment of the Family Court is to be confirmed by placing reliance on the following decisions. (i) In V.Bhagat v. D.Bhagat reported in 1994 SCC (1) 337, the Hon’ble Supreme Court has held as follows: “20. In the light of the principles enunciated hereinabove, we may now examine whether the allegations made by the wife in her written statement and the questions put by her counsel to the petitioner in cross-examination amount to mental cruelty within the meaning of the said sub-clause? The relevant portions of the written statement have already been set out by us hereinbefore. We have also set out in the said paragraph the explanatory statement made by the respondent’s counsel in court in Justification of the questions put by him to the petitioner in his cross- examination. It is true that the said averments must be read in the context in which they were made. At the same time, it must be remembered that the wife was merely defending herself against what are, according to her, totally unfounded allegations and aspersions on her character. It is true that the said averments must be read in the context in which they were made. At the same time, it must be remembered that the wife was merely defending herself against what are, according to her, totally unfounded allegations and aspersions on her character. It was not necessary for her to go beyond that and allege that the petitioner is a mental patient, that he is not a normal person, that he requires psychological treatment to restore his mental health, that he is suffering from paranoid disorder and mental hallucinations and to crown it all, to allege that he and all the members of his family are a bunch of lunatics. It is not as if these words were uttered in a fit of anger or under an emotional stress. They were made in a formal pleading filed in the Court and the questions to that effect were put by her counsel, at her instructions, in the cross-examination. Even in her additional written statement she has asserted her right “to make correct statement of facts to defend herself against the wanton, imaginary and irresponsible allegations”. These are not the mere protestations of an injured wife; they are positive assertions of mental imbalance and streak of insanity in the mental build- up of the husband. The husband is an Advocate practicing in this Court as well as in Delhi High Court. The divorce petition is being tried in the Delhi High Court itself. Making such allegations in the pleadings and putting such questions to the husband while he is in the witness-box, is bound to cause him intense mental pain and anguish besides affecting his career and professional prospects. It is not as if the respondent is seeking any relief on the basis of these assertions. The allegations against her may not be true; it may also be true that the petitioner is a highly suspicious character and that he assumes things against his wife which are not well founded. But on that ground, to say that the petitioner has lost his normal mental health, that he is a mental patient requiring expert psychological treatment and above all to brand him and all the members of his family including his grandfather as lunatics, is going far beyond the reasonable limits of her defence. But on that ground, to say that the petitioner has lost his normal mental health, that he is a mental patient requiring expert psychological treatment and above all to brand him and all the members of his family including his grandfather as lunatics, is going far beyond the reasonable limits of her defence. It is relevant to notice that the allegations of the wife in her written statement amount in effect to “psychopathic disorder or any other disorder” within the meaning of the Explanation to clause (iii) of sub- section (1) of Section 13, though, she has not chosen to say that on that account she cannot reasonably be expected to live with the petitioner-husband nor has she chosen to claim any relief on that ground. Even so, allegations of ‘paranoid disorder’, ‘mental patient’, ‘needs psychological treatment to make him act a normal person’ etc. are there coupled with the statement that the petitioner and all the members of his family are lunatics and that a streak of insanity runs through his entire family. These assertions cannot but constitute mental cruelty of such a nature that the petitioner, situated as he is and in the context of the several relevant circumstances, cannot reasonably be asked to live with the respondent thereafter. The husband in the position of the petitioner herein would be justified in saying that it is not possible for him to live with the wife in view of the said allegations. Even otherwise the peculiar facts of this case show that the respondent is deliberately feigning a posture which is wholly unnatural and beyond the comprehension of a reasonable person. She has been dubbed as an incorrigible adulteress. She is fully aware that the marriage is long dead and over. It is her case that the petitioner is genetically insane. Despite all that, she says that she wants to live with the petitioner. The obvious conclusion is that she has resolved to live in agony only to make life a miserable hell for the petitioner as well. This type of callous attitude in the context of the facts of this case, leaves no manner of doubt in our mind that the respondent is bent upon treating the petitioner with mental cruelty. It is abundantly clear that the marriage between the parties has broken down irretrievably and there is no chance of their coming together, or living together again. It is abundantly clear that the marriage between the parties has broken down irretrievably and there is no chance of their coming together, or living together again. Having regard to the peculiar features of this case, we are of the opinion that the marriage between the parties should be dissolved under Section 13(1)(i-a) of Hindu Marriage Act and we do so accordingly. Having regard to the peculiar facts and circumstances of this case and its progress over the last eight years detailed hereinbefore we are of the opinion that it is a fit case for cutting across the procedural objections to give a quietus to the matter.” (ii) In Vijayakumar Ramachanddra Bhate v. Neela Vijayakumar Bhate reported in (2003) 6 SCC 334 , the Hon’ble Supreme Court has held as follows: “7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1) (i- a) of the Act. The position of law in this regard has come to be well settled and declared that leveling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross- examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible. 8. The allegations made in this case do not appear to have been the result of any sudden outburst. On the other hand, such injurious reproaches, accusations and taunts as were found to have been made in this case lend credence to the fact that the husband was persisting in them for sufficiently a long time humiliating and wounding the feelings of the wife to such an extent as to make it insufferable for the wife and to live in matrimonial home any longer with the husband. The Division Bench of the High Court, in the course of its judgment in FCA No. 57 of 1994, particularly in paras 31 to 38 adverted to the nature and details of the allegations as culled out from the written statement extensively and meticulously and considered them in the light of the settled principles of law governing the same before affirming the judgment of the trial court which also recorded findings against the respondent after a detailed discussion of the relevant materials on record in paras 26 to 30 of the judgment in M.J. Petition No. 382 of 1983. On going through them we are convinced that the findings of the courts below are well merited and fully justified on the materials available on record and that they are neither shown to suffer any infirmity in law nor substantiated to be based on no evidence or vitiated on account of any perversity of approach to call for a different conclusion in our hands and interfere with the concurrent verdicts recorded by them.” (iii) In Raj Talreja vs. Kavita Talreja (Civil Appeal No.10719 of 2013) the Hon’ble Supreme Court has held as follows: “10. Cruelty can never be defined with exactitude. Cruelty can never be defined with exactitude. What is cruelty will depend upon the facts and circumstances of each case. In the present case, from the facts narrated above, it is apparent that the wife made reckless, defamatory and false accusations against her husband, his family members and colleagues, which would definitely have the effect of lowering his reputation in the eyes of his peers. Mere filing of complaints is not cruelty, if there are justifiable reasons to file the complaints. Merely because no action is taken on the complaint or after trial the accused is acquitted may not be a ground to treat such accusations of the wife as cruelty within the meaning of the Hindu Marriage Act 1955 (for short “the Act”). However, if it is found that the allegations are patently false, then there can be no manner of doubt that the said conduct of a spouse levelling false accusations against the other spouse would be an act of cruelty. In the present case, all the allegations were found to be false. Later, she filed another complaint alleging that her husband along with some other persons had trespassed into her house and assaulted her. The police found, on investigation, that not only was the complaint false but also the injuries were self inflicted by the wife. Thereafter, proceedings were launched against the wife under Section 182 of IPC.” 10. In the instant case, it is not in dispute that the marriage between the appellant and the first respondent was performed on 29.04.2007 and during the lawful wedlock, a son was born to them on 18.05.2008. It is the case of the first respondent herein that on 12.10.2013, at 9.00 p.m., the first respondent found out that the appellant was talking with the second respondent for having illicit intimacy, since it was objected, the appellant assaulted her. Hence, she left the matrimonial home along with her minor son. On perusal of the evidence of P.Ws.1 to 3, it is evident that they have consistently deposed before the Family Court in tune with the averments made in the divorce petition. However, the Family Court disbelieved their evidence and rejected the grounds of adultery and desertion. 11. Hence, she left the matrimonial home along with her minor son. On perusal of the evidence of P.Ws.1 to 3, it is evident that they have consistently deposed before the Family Court in tune with the averments made in the divorce petition. However, the Family Court disbelieved their evidence and rejected the grounds of adultery and desertion. 11. In the matter on hand, it is not disputed that the father- in- law of the appellant is a Senior Lawyer and his daughter, who is the first respondent is an Advocate and she is now selected to the post of Assistant Public Prosecutor as such she is serving. There cannot be any dispute that the accusations levelled against them in the counter referred supra are serious in nature, but it is to be seen whether they have been proved. The further perusal of the records reveal that no materials were produced nor any steps taken by the appellant to prove those allegations. Though in the grounds of appeal, it is stated that the appellant was prejudiced for not granting an opportunity of subjecting P.W.2 to DNA Test, but admittedly no application was filed seeking DNA Test. When this Court posed a question to the learned counsel for the appellant whether any application was filed by the appellant before the trial Court, the learned counsel fairly conceded that no application was filed. In the present case, the allegations are bound to be false. 12. In the above decisions, the Hon’ble Apex Court has consistently held that the allegations, accusations and character assassinations in the written statement and the questions put to the parties in the cross-examination would amount to mental cruelty. 13. The Family Court relying upon the above decisions of the Supreme Court, granted divorce in favour of the first respondent. No additional materials have been brought on record to take a different view and in our considered opinion, the principles laid down in the above decisions of the Supreme Court squarely applies to the instant case. In that view, we find no ground to interfere with the judgment of the Family Court and therefore it is confirmed. In the result, the appeal fails and the same is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed.