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2021 DIGILAW 1096 (MAD)

D. Senthilkumaran v. R. Nikila Umadevi

2021-03-25

PUSHPA SATHYANARAYANA, S.KANNAMMAL

body2021
JUDGMENT : S. KANNAMMAL, J. (Prayer: Civil Miscellaneous Appeal filed under Section 9 of Hindu Marriage Act, to set aside the judgment and decree, dated 07.04.2015 passed in H.M.O.P.No.437 of 2014 on the file of the Family Court (District & Sessions Court), Tirunelveli.) 1. This Civil Miscellaneous Appeal is preferred by the appellant/husband against the judgment and decree passed in H.M.O.P.No.437 of 2014, dated 07.04.2015 by the Family Court (District & Sessions Court), Tirunelveli. 2. The case of the appellant/husband is that the marriage between him and the respondent/wife was solemnized on 02.06.1995 at A.S.K.R. Mahal, Thoothukudi as per Hindu Rites and Customs. Out of wedlock two girl children, namely, Amirthavarshini and Jananidanya were born on 19.12.1998 and 28.06.2004 respectively. At the time of marriage, the respondent was studying at Tirunelveli Medical College by staying in House Surgency Hostel. The appellant/husband was practicing in his father's hospital at Alangulam. After completing the House Surgency, the respondent lived with the appellant at Alangulam for a short period and in the meantime, the respondent often quarreled with the appellant and his mother. Hence, the appellant and the respondent joined in Jeyasekaran Hospital at Nagercoil, from April 1997. Even though the appellant and the respondent lived together at Nagercoil, the respondent often quarrelled and fought with the appellant. The respondent never behaved as a dutiful wife and hence, due to the increasing mental agony, both the appellant and the respondent returned to appellant's parental house at Alangulam. When the respondent was conceived, the appellant joined in Kasthuribai Medical College at Mangalore for his higher studies. So the appellant joined Diploma in Anaesthetics during September 1998. Whenever the appellant visited Thoothukudi to see the respondent, the respondent and her parents neglected the appellant. The respondent also refused to go to Alangulam on repeated request of the appellant. While the appellant was at Managalore, the respondent attempted to commit suicide at her parental house. Due to that, her face was disfigured due to burn injury. The respondent has a habit of threatening to commit suicide which caused mental agony to the appellant. After completing the Diploma in Anaesthetics course, during August 2000, the appellant joined in Tirunelveli Medical College and took Senior Training for six months. The respondent refused to come and live with the appellant and stayed in her parental home. The respondent has a habit of threatening to commit suicide which caused mental agony to the appellant. After completing the Diploma in Anaesthetics course, during August 2000, the appellant joined in Tirunelveli Medical College and took Senior Training for six months. The respondent refused to come and live with the appellant and stayed in her parental home. Despite the earnest efforts taken by the appellant's parents and relatives, the respondent refused to come to Alangulam and if she is insisted, she would threaten to commit suicide. After completing the higher studies the appellant jointed in Jeyasekaran Hospital at Nagercoil as Anesthetist. Thereafter, at the request of the appellant, the respondent came to Nagercoil and lived with the appellant with the same attitude of threatening to commit suicide. During October 2001, the respondent joined in Diploma in Anaesthetics at Madurai Medical College. The girl baby was left with the respondent's parents though the appellant wanted the child to be with him. Whenever the appellant went to Thoothukudi to see his child, the parents of the respondent humiliated and neglected him. The respondent after completing her higher studies, came to Nagercoil and second child, namely, Jananidhanya was born at Nagercoil. After visit of the respondent's mother at Nagercoil, the respondent again started quarreling with the appellant during 2006. The respondent suddenly left the appellant and took her children to the appellant's parents house at Alangulam. Subsequently, at the request of the respondent both the appellant and the respondent resided at the ground floor separately. From the month of December 2007, the attitude of the respondent was hostile and whenever the appellant returned home from the hospital, the respondent locked the door and never allowed to see his children. The respondent also demanded that the appellant can see his children only if the property of the appellant's parents is registered in the name of children and also demanded to deposit a sum of Rs.30 lakhs in the name of the children. The respondent's mother is also living with the respondent at Alangulam and the respondent was working at Alangulam in “Sri Hospital” and the demand of the respondent was objected by the parents of the appellant and the relatives. The respondent left the matrimonial house at Alangulam during February 2000 along with the children. The respondent's mother is also living with the respondent at Alangulam and the respondent was working at Alangulam in “Sri Hospital” and the demand of the respondent was objected by the parents of the appellant and the relatives. The respondent left the matrimonial house at Alangulam during February 2000 along with the children. On 28.06.2009, when the appellant went to the respondent's house for his second daughter's birth day, the respondent behaved barbarously and threatened everybody. Since the respondent caused mental cruelty, it is not possible for the appellant and the respondent to live together as husband and wife. Hence, he filed a petition for divorce. 3. The respondent denied all the averments except admitting the marriage and the two girl children born out of the wedlock. It is the case of the respondent that at the time of marriage, she had completed M.B.B.S. and after marriage, she resided in the House Surgeon's quarters. Since the appellant was at Alangulam, the respondent went to Alangulam weekly thrice and lived together. The respondent did not get any salary when she worked at the hospital of her husband's father. When there was a shortage of money to run the family, both the appellant and the respondent joined in Jeyasekaran Hospital at Nagercoil during September 1996 and both of them were happily living together at Hospital quarters. Thereafter, the appellant resigned his job in order to pursue his higher studies viz., Diploma in Anaesthetics at Kasturibai Medical College at Mangalore and also on his request, the respondent resigned her job. The appellant visited the respondent and their children at Tuticorin whenever he comes on leave. The respondent admits that she had a burn injury on her hands only due to accident and not on account of attempt to commit suicide. When the respondent was at her parental home, the appellant's mother and his uncle one Jamburajan came there and insisted the respondent to divorce the appellant since she did not want a daughter-in-law who is not heeding to her words. During 2000, the appellant again joined the job and both the appellant and respondent live together happily. On the advise of the appellant, the respondent prepared for higher studies and after completing the higher studies both the appellant and the respondent lived together at Nagercoil happily, due to which, she gave birth to the second child. During 2000, the appellant again joined the job and both the appellant and respondent live together happily. On the advise of the appellant, the respondent prepared for higher studies and after completing the higher studies both the appellant and the respondent lived together at Nagercoil happily, due to which, she gave birth to the second child. Appellant’s mother called both the appellant and the respondent to Alankulam stating that she was unwell and was suffering due to diabetics, also she was unable to administer the School alone because the appellant’s father has left her. The appellant stated that he wouldn’t be able to go to Alankulam as he has many loans to pay and told his mother that he will send the respondent to Alankulam. When the respondent showed her disinterest in going to Alankulam, the appellant assured that he would come to Alankulam within a year. Then the respondent accepted to go to Alankulam. The hospital was renewed and the “Sri” hospital was handed over to the respondent in March 2006. Since then the respondent resided at Alankulam and admitted both her children at school. Appellant’s mother was administering the school and she did not even allow the respondent to visit her children at the school. The appellant’s mother also quarrelled with the employees of the hospital and threatened them not to come to work. When the respondent informed that to the appellant, the appellant had advised the respondent to stay patient. Appellant’s mother threatened the respondent many times to get out of the hospital and the house. On 24.08.2007, she filed a false complaint on the respondent at the Alankulam police station. The police officers enquired the respondent, then advised the appellant’s mother. As the appellant’s mother created hindrances to the employees, on 17.09.2007 a police complaint was preferred. The respondent filed a complaint on 28.09.2007 as the hospital employees were beaten and driven out and the hospital was locked due to the animosity over the respondent. The appellant’s mother, in the enquiry promised to the police official that she would not interfere in the respondent’s profession. On 22.11.2007, the appellant’s mother sent a legal notice to the respondent directing the respondent to vacate the house. As the appellant’s mother prevented the respondent from parking her car by locking the shed on 27.11.2007, the respondent preferred a police complaint. On 22.11.2007, the appellant’s mother sent a legal notice to the respondent directing the respondent to vacate the house. As the appellant’s mother prevented the respondent from parking her car by locking the shed on 27.11.2007, the respondent preferred a police complaint. The respondent was advised to seek remedy from civil court. The respondent filed a case in O.S.No. 941/2007 at the Tenkasi Munsif Court and also obtained an interim order. The appellant is aware of all the above mentioned information. The appellant knew his mother’s mistakes and when he spoke to her regarding the same, she refused to listen. The appellant’s mother filed a complaint against the respondent that she has stolen some articles from her house. Due to these actions of the appellant’s mother, the respondent went through a severe mental agony. The respondent stated her condition to the appellant and the appellant moved the respondent to a different house at Alankulam. The appellant assured that he would come to Alankulam within three months and would solve all the problems. The respondent admitted both her children at a different school. Influenced by his mother, the appellant gradually reduced his visits to the respondent’s house. On 28.06.2008, the appellant went to his second daughter’s birthday function. The appellant told the respondent that he cannot oppose his mother’s words and told that he is going to divorce the respondent and also told the respondent to accept it and to sign the divorce agreement. The respondent refused the same. 4. On 13.04.2009, the appellant sent a legal notice with false allegations. The respondent came to know only later that the appellant’s mother’s plan of moving the respondent to Alankulam to separate the respondent and the appellant who were living happily at Nagercoil. Since 2008, the appellant did not provide money to the respondent to manage the family and to pay school fees for the children. The respondent is living in Selvinayagapuram at Pavurchatram. The respondent’s mother died last year. The respondent is maintaining and taking care of her children by herself. The respondent has never spoken to the appellant in a disrespectful manner, has never rejected the appellant’s ideas. The respondent has always been a dutiful wife to the appellant. Only due to the confusion caused by his mother’s instigation, the appellant has filed a petition for divorce. The respondent is maintaining and taking care of her children by herself. The respondent has never spoken to the appellant in a disrespectful manner, has never rejected the appellant’s ideas. The respondent has always been a dutiful wife to the appellant. Only due to the confusion caused by his mother’s instigation, the appellant has filed a petition for divorce. At this present circumstance, the relief claimed by the appellant would affect the life of the children. The respondent has the belief that the appellant would change his mind. Therefore, the respondent and the children are willing to live along with the appellant. 5. Before the Family Court, the appellant examined himself as P.W.1 besides examining P.W.2 and marked Exs.P1 to P4 and on the side of the respondent/wife, she examined herself as R.W.1 and Ex.R1 to R5 were marked. 6. The learned Family Court Judge (District & Sessions Court), Tirunelveli, after perusing the entire material available on record both oral and documentary, had dismissed the petition filed by the husband. Challenging the dismissal order of the trial Court the appellant/husband is before this Court. 7. Heard both sides and perused the materials available on record. 8. The points for consideration in this Civil Miscellaneous Appeal are: “(i) whether the acts of the respondent amount to cruelty and whether the appellant is entitled for divorce? (ii) whether the learned Family Court Judge was right in dismissing the petition filed by the husband in H.M.O.P No. 437 of 2014?” 9. The admitted facts in this appeal are the marriage between the appellant and the respondent was solemnized on 19.12.1998 and out of their wedlock, two girl children were born. Both the appellant and the respondent started their matrimonial life at the appellant's house at Alangulam and both of them were working in the same hospital for sometime, which belongs to the appellant's father. Later, both the appellant and the respondent were serving in Nagercoil and both of them pursued higher studies. 10. It is the case of the appellant that the respondent often quarrelled with the appellant and his mother and the respondent failed to behave as a dutiful wife. The respondent had the attitude of locking the door from inside when the respondent returned from the hospital and never allowed the appellant to see his children. 10. It is the case of the appellant that the respondent often quarrelled with the appellant and his mother and the respondent failed to behave as a dutiful wife. The respondent had the attitude of locking the door from inside when the respondent returned from the hospital and never allowed the appellant to see his children. The respondent insisted the appellant to write the properties in the name of his two children and to deposit a sum of Rs.30,00,000/- in their names. The respondent also behaved barbarously when the appellant went to visit them on his second child's birth day and thus, the respondent caused mental cruelty. 11. According to the respondent, the appellant's mother insisted both the appellant and the respondent to move to Alangulam. The appellant forcefully persuaded the respondent to move to Alangulam first by stating that he had numerous loans and also promised the respondent that he would also move to Alangulam within a year. The appellant's mother was running and managing a school wherein, the children of the parties were studying. The appellant's mother did not allow the respondent to see her own children. The appellant's mother tried to threaten the respondent to vacate the house, where the respondent and the children were residing and filed a false police complaint. The appellant's mother also filed a false complaint against the respondent that she has stolen the articles from her house. According to the respondent the appellant's mother gave disturbances by locking the hospital and sending the workers away. The appellant's mother did not allow the respondent to park her car in the car shed and in view of the attitude of the appellant's mother, the respondent filed a complaint before the police station. The appellant's mother was advised by the police officials to not interfere in the respondent's work and also advised the respondent to seek a remedy before the Court of law. 12. When the respondent informed the appellant, the appellant arranged for a separate house at Alangulam for the respondent and her children and the children were admitted in another school. According to the respondent, no cruelty was committed by the respondent and it is only because of the appellant's mother, the appellant has filed a petition seeking divorce and sought for dismissal of the petition. 13. According to the respondent, no cruelty was committed by the respondent and it is only because of the appellant's mother, the appellant has filed a petition seeking divorce and sought for dismissal of the petition. 13. The allegations made on the respondent by the appellant to attract the provisions for cruelty are as follows: (i) Threatening to commit suicide when asked to move to Alangulam. (ii) Burning her face and disfiguring it in an attempt to commit suicide. (iii) Frequent Quarrelling. (iv) Not mentioning the name of the appellant in the School Invitation. 14. With regard to the first allegation made by the appellant pertaining to the threatening of respondent to commit suicide when she was asked to move to Alangulam, it is clear from the evidence of the appellant in his cross examination that when the respondent was at Alangulam, she never attempted to commit suicide. Further when admittedly the respondent herself stayed at Alangulam at ground floor of the appellant's parents house, the appellant's allegation that the respondent threatened to commit suicide if asked to come to Alangulam is proved to be false. 15. The appellant would submit that once the respondent while attempting to commit suicide burnt her face and got her face disfigured. The respondent had denied the same and contended that while she was in a parental home her hands got burnt accidently and she never attempted to commit suicide. The appellant has also not produced any evidence like medical reports to prove that the respondent got her face disfigured due to burn injury while she attempted to commit suicide. Further, the appellant has also deposed in his cross examination that he has no knowledge of accident caused to the respondent at her parent's home in Tuticorin and got her hands injured. Hence, in the absence of any evidence that the respondent in attempting to commit suicide burnt her face, which caused mental cruelty to the appellant is unsustainable. 16. Although the allegation of the appellant is that the respondent quarrelled frequently and insulted the appellant, the appellant failed to mention any specific incidents or the date of incidents. Hence, it would not help the appellant to prove that the attitude of the respondent caused him mental cruelty. Both the appellant and the respondent were cross examined in detail and in fact, there was a lengthy cross examination. Hence, it would not help the appellant to prove that the attitude of the respondent caused him mental cruelty. Both the appellant and the respondent were cross examined in detail and in fact, there was a lengthy cross examination. On careful perusal, the allegation of the appellant that the respondent caused mental cruelty to the appellant has not been proved at all. 17. It is clear from the evidence of the appellant and the respondent, that there was misunderstanding between the respondent and her mother-in-law which led to police complaint against each of them and eventually a civil suit has been filed by the respondent herein. 18. Ex.P2 is the copy of the plaint in O.S.No.941 of 2007 filed by the respondent against the appellant's parents seeking permanent injunction not interfere with the peaceful possession of the respondent in the suit property, which is the ground floor at Alangulam, where the respondent was residing with her children. Though the document Ex.P2 was marked through the appellant herein, he has deposed that he has no knowledge about the document. 19. The appellant in his cross examination has deposed that he has no knowledge about the disputes between his mother and the respondent and he did not even take steps to know about the case filed by them. This Court need not go into detail to the evidence produced by the appellant and the respondent, pertaining to the disputes between the appellant's mother and the respondent herein. It is quite obvious that filing of petition for divorce has been emerged due to the misunderstandings and disputes between the mother-in-law and daughter-in-law, that is, between the appellant's mother and the respondent. Ex.R3 is the legal notice sent to respondent by the appellant's mother, Ex.P4 is the counter statement filed in O.S.No.941 of 2007 and Ex.P5 is the legal notice sent to first defendant by second defendant, would prove that there was dispute between the appellant's parents as well as between the appellant's mother and the respondent. The evidence of the appellant in his cross examination would also prove the case of the respondent that there were disputes between the mother-in-law and daughter-in-law only and the mother-in-law had sent a eviction notice to her own daughter-in-law and the respondent herein has also preferred a police complaint for the attitude of her mother-in-law, the appellant's mother herein. 20. The evidence of the appellant in his cross examination would also prove the case of the respondent that there were disputes between the mother-in-law and daughter-in-law only and the mother-in-law had sent a eviction notice to her own daughter-in-law and the respondent herein has also preferred a police complaint for the attitude of her mother-in-law, the appellant's mother herein. 20. Further, the appellant during his cross examination deposed that he filed this case with the thought that the respondent might join with him. At the same time, in contradiction, he has deposed that there is no chance for reunion with the respondent and children. He has also made admission that he did not take any legal steps to see his children. Further, he made admission that he did not give any money to the respondent for family expenses. 21. The evidence of one Sathiskumar, who was examined as PW2 is of no use for the appellant to prove his case when he categorically deposed in his cross examination as follows:- “TAMIL” He further deposed that, “TAMIL” 22. The respondent was cross examined pertaining to the non mentioning of the name of the appellant in a School Programme Invitation – (Ex.P3 for the year 2012) and non mentioning of the initial of the appellant's name before the name of the respondent in order to prove the case of the appellant that the appellant was not given importance by the respondent. But we are of the opinion that there is no need to print the appellant's name when obviously the children are under the care of the respondent. Merely non printing of the name of appellant and non mentioning of the initial of appellant's name before the name of the respondent shall not be considered as evidence for proving that the appellant was not given importance to the respondent and divorce cannot be granted on the above ground. 23. The Family Court has elaborately discussed in Page No.18 of its judgment and has rightly considered that for the above reasons divorce cannot be granted for the allegations made by the petitioner in his petition. The Family Court has also rightly considered that having given birth to two girl children, the allegation of the appellant that the respondent is not giving conjugal rights to the appellant is only for the reason to file the divorce petition. The Family Court has also rightly considered that having given birth to two girl children, the allegation of the appellant that the respondent is not giving conjugal rights to the appellant is only for the reason to file the divorce petition. The Family Court has also rightly considered that the divorce petition has been filed by the appellant only due to the disputes between his mother and the respondent and not because of any matrimonial issue. 24. In A.jayachandra v. Aneel Kaur reported in (2005) 2 SCC 22 , the Honourable Supreme Court observed as under: “The expression ''cruelty'' has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse, same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty”. 25. In the case on hand, the appellant has not established any act of cruelty by the respondent for granting him the decree of divorce. Hence, we are of the opinion that there is no cruelty caused by the respondent and we decide that the appellant is not entitled for divorce on the ground of cruelty. 26. Keeping in view of the above decision and also considering the facts and circumstances of this case, we are of the considered view that the Family Court (District & Sessions Court), Tirunelveli, has rightly dismissed the petition, which needs no interference. 27. In the result, the Civil Miscellaneous Appeal is dismissed and the order and decree passed by the Family Court (District & Sessions Court), Tirunelveli, in H.M.O.P.No.437 of 2014, dated 07.04.2015, is confirmed. No costs.