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2021 DIGILAW 302 (MAD)

Angayarkanni @ Kayal v. T. E. Balaji

2021-01-27

G.CHANDRASEKHARAN, T.RAJA

body2021
JUDGMENT : G.CHANDRASEKHARAN, J This Civil Miscellaneous Appeal is filed against the order of the learned Family Court Judge, Salem in FCOP No.62 of 2017. 2. The first respondent, as the petitioner, filed FCOP No.62 of 2017 under Sections 13(1)(i) & (i-a) of Hindu Marriage Act on the grounds of adultery and cruelty to dissolve the marriage between the first respondent and appellant that took place on 01.07.1999. 3. It is seen from the petition averments that the marriage between the appellant and the first respondent took place on 01.07.1999. Both the first respondent and appellant are Doctors and they are blessed with two children, namely B.Sruthi and B.Prajeth Raghav. It is the case of the first respondent that the appellant used to pick up quarrel with the first respondent and often abused his parents and relatives even on frivolous issues. Faced with incessant mental cruelty, the first respondent filed a divorce petition in the year 2001. The appellant gave a petition before the All Women Police Station, Ammapet. After counselling with the appellant, the first respondent reunited with her, resultantly he also came forward not to press the divorce petition. Thereafter, the first respondent purchased the house in the name of the appellant. However, the appellant has not taken care of the well being of the first respondent and children. For the last one year, the appellant refused to share bed with the first respondent. Moreover, the appellant used to spend the night time with her mobile phone by making voice calls and chatting with her paramours and several other persons hours together in a separate room. Therefore the first respondent, getting reasonable apprehension that his wife is leading adulterous life and unable to bear the torture given by her, finally approached a private detective for assistance and as such, the private detective, namely, Chandran at Chennai, had also instructed the first respondent to give a new mobile phone to his wife with a software flexipy installed in it. Accordingly, the first respondent, after purchasing a new mobile phone viz., Samsung 17-OOF (I.M.E.I.No.358425074294395), also purchased the said flexipy software with licence and installed the same in the said mobile phone and thereafter gifted the phone to his wife in July, 2016. After sometime, it was found through that software the exact call details and online chats of his wife with her paramours. After sometime, it was found through that software the exact call details and online chats of his wife with her paramours. In addition thereto, his daughter being a school topper in her academic side stood first in Chennai district in her 10th Matriculation Board Examination and his son was a small kid studying 7th Standard. 4. Later on, it was also further alleged that the first respondent went to attend the university examination in M.S.(O.G) at Chennai on 22.10.2016 and after his examination, when he came back to Salem on 3.11.2016, the security guard employed at his house front gate told him that on 25.10.2016 and 2.11.2016, somebody called Baskar with a white colour Ford Figo car bearing Regn.No.TN 47 X 6885 came to his house at midnight around 12.30 A.M., and went out of the house at about 3.30 A.M., and the CCTV footage of Modern Theatre on verification highlighted the same. Having seen the CCTV footage and after verifying the flexipy software, the first respondent came to know that his wife was leading adulterous life with the said Baskar. On this issue, when the first respondent questioned the appellant as to the illegal relationship with her paramour Baskar, she scolded him in filthy language and went out of the matrimonial home immediately. Since then, she has been living separately. It was further alleged that the appellant had illicit relationship with one Shikander and Madhavan. On 26.12.2016, she tried to forcibly take her son. He was informed by his daughter that the appellant exposed her body in a video chat with somebody on 03.01.2017. She had Whatsapp chats and face book sex chats and video chats with Baskar, Shikander, Madhavan, Shyam, Saheen Ashwaq and Marimuthu. On 26.01.2017 at about 9 p.m., appellant's paramour Shikander tried to assault the first respondent and a case was registered in Crime No.35 of 2017 in Kanakurichi Police Station, on the complaint made by the first respondent. In these facts and circumstances, the first respondent filed the petition for divorce. 5. On 04.03.2017, the first respondent and appellant appeared before the learned Family Court Judge, Salem and reported that the matter was settled. On the same day, an application to advance the hearing from 23.07.2017 was filed. It is seen that both the appellant and the first respondent were examined as witnesses. 5. On 04.03.2017, the first respondent and appellant appeared before the learned Family Court Judge, Salem and reported that the matter was settled. On the same day, an application to advance the hearing from 23.07.2017 was filed. It is seen that both the appellant and the first respondent were examined as witnesses. A memo was also filed by the first respondent withdrawing the ground of adultery. The memo reads as follows:- "Memo filed by the petitioner/husband The petitioner most humbly submit that he is given up and withdrawing the ground of adultery in the above FCOP.62/2017 and the same may be accepted. The memo may be recorded and thus render justice." 6. Considering the memo filed, the evidence of the parties, the learned Family Court Judge found that the marriage between the appellant and first respondent has to be dissolved on the ground of cruelty and ordered accordingly. Against the said order, this Civil Miscellaneous Appeal is filed. 7. The learned counsel for the appellant submitted that the order of the lower Court was obtained by fraud, coercion, collusion and external threat. Without giving sufficient time, the appellant was forced to file a memo and the case was disposed without considering the case of the parties. The formalities like, (i) withdrawing the allegation of adultery; (ii) filing of proof affidavit by the petitioner/husband; (iii) marking of documents; (iv) cross examination; (v) filing of proof affidavit by respondent/wife; (vi) marking of documents (viii) cross examination were completed on a single day, without actually considering whether the consent of the appellant was free and without undue influence or coercion. Therefore, the learned counsel for the appellant submitted that this Civil Miscellaneous Appeal has been filed for setting aside the judgment of the learned Family Court Judge, Salem. 8. The learned counsel for the first respondent strongly opposed this submission and submitted that the appellant had voluntarily consented for divorce and also the custody of the children with the first respondent. The learned Family Court Judge examined the parties and then only passed orders. This Civil Miscellaneous Appeal has been filed only to harass the first respondent and he prays for the dismissal of the Civil Miscellaneous Appeal. 9. Considered the rival submissions. 10. The learned Family Court Judge examined the parties and then only passed orders. This Civil Miscellaneous Appeal has been filed only to harass the first respondent and he prays for the dismissal of the Civil Miscellaneous Appeal. 9. Considered the rival submissions. 10. It is seen from the records that though FCOP No.62 of 2017 was filed on the grounds of adultery and cruelty, the first respondent had withdrawn the ground of adultery. The first respondent was examined as PW.1 and the appellant was examined as RW.1. The marriage invitation, copy of the marriage registration certificate, copy of divorce petition and marriage photo were marked as Exs.P1 to P4. During the course of evidence, the appellant gave evidence to the effect that she had purposely refused to cohabit with the first respondent; there were quarrels between them due to her refusal; she had no claims with regard to the custody of their children; she was ready to release the properties which were purchased by the first respondent in her name. Even the first respondent gave evidence to withdraw the complaint given before the Kanakurichi Police Station. The learned Family Court Judge, from the evidence of parties, especially, the appellant, found that the plea of cruelty was established by the first respondent and granted divorce to the first respondent by dissolving the marriage between the first respondent and appellant on the ground of cruelty. 11. It is clear from the order of the learned Family Court Judge and also the memo filed by the first respondent that both the first respondent and appellant had settled the dispute between them and in fact the appellant had tacitly accepted the cruelty committed by her on her husband. She had given evidence on oath in open Court. Therefore, it is not now open to the appellant to turn around and complain that her evidence was obtained by fraud or coercion or undue influence. It was like a judicial admission given during the course of giving evidence. In a case filed by the first respondent in GOP No.3/2017 seeking custody of minor children under Section 6 of Hindu Minority Guardian and Wards Act, she has filed a memo stating that she has no objection to appoint the first respondent as guardian of minor children. It was like a judicial admission given during the course of giving evidence. In a case filed by the first respondent in GOP No.3/2017 seeking custody of minor children under Section 6 of Hindu Minority Guardian and Wards Act, she has filed a memo stating that she has no objection to appoint the first respondent as guardian of minor children. The memo reads as follows:- "Memo filed by the respondent/mother The above named respondent most humbly submits that she has no objection to appoint the petitioner as the permanent guardian for the minor children namely B.Sruthi (16) and B.Prajeth Raghav (12) as such she prays that the main GOP No.3/2017 may be allowed and she undertakes that she will not claim any right either the custody of the children or the visiting rights of them or claim against them at any point of time in future. This memo may be recorded and pass such other suitable orders as deem fit and thus render justice." 12. The materials produced before this Court, especially the oral evidence and the memo filed by the appellant, clearly show that the appellant has consented to pass orders against her in FCOP No.62 of 2017 and GOP No.3 of 2017, therefore, she has no right to maintain this Appeal, by virtue of the statutory bar under Section 96(3) of the Code of Civil Procedure, which reads as follows:- “S.96(3). No appeal shall lie from a decree passed by the Court with the consent of parties.” A perusal of the above provision denies the right of statutory appeal against the own consent given by the parties. This is the settled legal position in civil law. The same legal position continues in writ proceedings also, where the parties opt to give their consent, based on which a consent order is passed. Later on, aggrieved by the consent order, no appeal lies. This issue also has been settled by a Division Bench of our High Court way back in the year 2002, in Kudiyiruppor Nala Sangam represented by its President P.Karuppasamy v. The Commissioner, Land Assignment, Chennai and another, (2002) 1 CTC 577 , wherein it is held that no writ appeal shall be maintainable as against the consent order passed by the learned single Judge. 13. 13. As highlighted above, since a memo has already been filed by the appellant/wife giving no objection to appoint the respondent/husband as permanent guardian for the minor children, namely, B.Sruthi and B.Prajesh Raghav with a further undertaking that she would not claim any right over the custody of the children or the visiting rights or make any claim against them at any point of time in future, the same goes without saying that she has no right to stay with them. In other words, a mother who gives an undertaking that she will not claim any right over the custody of the children and also relinquished the visiting rights, cannot be allowed to stay with them. Therefore, the decree of divorce granted by the trial Court deserves to be affirmed. Accordingly, this Court confirms the order of learned Family Court Judge, Salem in FCOP No.62 of 2017 dated 14.03.2017 and dismisses this Appeal. No costs.