Research › Search › Judgment

Madras High Court · body

2021 DIGILAW 3593 (MAD)

K. Sumathi v. J. Kannappan

2021-12-22

S.ANANTHI

body2021
JUDGMENT : This appeal has been filed to set aside the Decree and Judgment, dated 28.02.2018 in H.M.C.M.A.No.9 of 2015 passed by the learned V Additional District Judge, Madurai, by partly allowing H.M.O.P.No.102 of 2000 on the file of the II Additional Subordinate Court, Madurai, dated 13.08.2015. 2. The respondent herein/husband has filed a petition in H.M.O.P.No. 102 of 2000 on the file of the learned II Additional Subordinate Court, Madurai, seeking divorce and the same was dismissed on 13.08.2015. Against the said dismissal order, he has preferred an appeal in H.M.C.M.A.No.9 of 2015 on the file of the learned V Additional District Court, Madurai, the same was partly allowed on 28.02.2018, against which, the present appeal has been filed by the appellant herein/wife. 3. Heard on either side. Perused the material documents available on record. 4. This appeal has been filed on the ground that the lower Appellate Court ought to have seen that if the appellant is unsound, she could not have been brought up her son. The appellant/respondent/wife who is in an illiterate and incapable of handling the opportunities of proving the evidence in the Court below and to cross examine the respondent/petitioner/husband in a proper and perspective manner. 5. The respondent/appellant/petitioner/husband has filed a petition in H.M.O.P.No.102 of 2000 seeking divorce on the ground of cruelty and wife is mentally affected. The said divorce petition was dismissed by the learned II Additional Subordinate Judge, Madurai. 6. Against the dismissal order, dated 13.08.2015, the respondent herein/husband has preferred an appeal in H.M.C.M.A.No.9 of 2015 and the same was partly allowed on the ground of cruelty. Against the said order, the wife/appellant herein has preferred this present appeal. 7. The substantial question of law is to be decided in this appeal is as follows: a). Whether the first Appellate Court was right in granting decree of divorce on the ground of cruelty without proper pleadings by the petitioner? b). Whether the first Appellate Court followed the guidelines of (2007) 4 SCC 511 by the Apex Court to make a case of mental cruelty to grant a decree of divorce? c). Whether the First Appellate Court was right in not considering the welfare of the child which has to be prime consideration of divorce matters as held by the Apex Court? d). c). Whether the First Appellate Court was right in not considering the welfare of the child which has to be prime consideration of divorce matters as held by the Apex Court? d). Whether the first Appellate Court was right in allowing the Appeal in part by modifying the well considered Judgment of the Trial Court without proper reasons? e). Whether the first Appellate Court was right in allowing the Appeal in part without appreciating the words and phrases cruelty, mental cruelty etc. as held by Apex Court in its various Judgments? f). Whether the first Appellate Court was right in granting a decree of divorce on isolated incidents that too alleged by the petitioner without proper evidence? 8. The marriage between the parties is admitted. Due to the wedlock, one son born to them is also admitted. Both of them lived separately from the year 2000. 9. In the year 2000, the respondent herein/husband has filed divorce petition in H.M.O.P.No.102 of 2000. The appellant/wife has preferred a police complaint against her husband and his father and the same was registered in Crime No.22 of 2002 on the file of the All Women Police Station, Thirupparangundram, for the offences under Sections 406, 498A of IPC and Section 4 of Dowry Prohibition Act. 10. Till the date of filing H.M.O.P.No.102 of 2000, the appellant/wife has not given any complaint regarding dowry harassment. In this case, charge sheet was filed and taken as C.C.No.1983 of 2002 before the learned Judicial Magistrate No.VI, Madurai. Discharge petition was also filed before the learned Judicial Magistrate and the same was dismissed. Against the dismissal order, Crl.R.C.No.296 of 2009 has also been filed by the father of the husband before this Court and the same was allowed on 11.09.2009 on the ground that only after filing divorce petition the same was allowed in exparte, the wife gave a complaint after thought only. The father of the husband was arrested. 11. In the order, dated 11.09.2009 in Crl.R.C.296 of 2009, this Court held as follows: ..... “5.The decision of the Supreme Court arose in very similar circumstances. In that case, the complaint was preferred by the wife alleging offences under Section 498A and Section 4 of Dowry Prohibition Act. The marriage was of the date 27.01.1999 and the complaint of the wife was of the date 26.09\8.2002. The divorce petition filed by the husband had been allowed exparte. In that case, the complaint was preferred by the wife alleging offences under Section 498A and Section 4 of Dowry Prohibition Act. The marriage was of the date 27.01.1999 and the complaint of the wife was of the date 26.09\8.2002. The divorce petition filed by the husband had been allowed exparte. In such circumstances, the Hon'ble Apex Court found that category 7' of the illustrative parameters highlighted in Bajanlal's case stand attracted and quashed further proceedings. Category 7, reads as follows:- “Where a criminal proceeding is manifestly attended with mala fide and/or instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and person grudge.” 12. The appellant has stated that her husband has also gave a complaint against her. Admittedly, she went to the house of husband and some problems occurred there. 13. But after the divorce decree the appellant/wife gave a complaint under Section 4 of Dowry Prohibition Act. 14. Admittedly, after some compromise made between the parties, a house was given to the appellant by the father of the respondent herein/husband. The appellant lived with her son in that house. 15. Filing of false complaint by either spouse constitutes matrimonial cruelty entitling other spouse to claim divorce. 16. The Paragraph Nos.12 & 13 of the Judgment reported in the case of Neelam Vs Ravinder Kumar in FAQ No.4097 of 2013 is extracted hereunder: “12. In addition to the aforesaid, certain other illustrations were added by the Apex Court in K.Srinivas Rao V. D.A.Deepa, (2013)5 SCC 226 , as under:- “Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the Court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse. 13. Elucidating 'mental cruelty' the Apex Court in K.Srinivas Rao's case (supra) concluded that if a false criminal complaint is filed against the spouse and his/her relatives regarding matrimonial offences, it would be a case of mental cruelty.” 17. The learned counsel appearing for the appellant contended that she is willing to live with her husband. 13. Elucidating 'mental cruelty' the Apex Court in K.Srinivas Rao's case (supra) concluded that if a false criminal complaint is filed against the spouse and his/her relatives regarding matrimonial offences, it would be a case of mental cruelty.” 17. The learned counsel appearing for the appellant contended that she is willing to live with her husband. But, Restitution of Conjugal rights petition was filed after 16 years from the date of divorce petition and the same was also withdrawn by her. 18. The next question is that their son is willing to live with both father and mother. So, whether his welfare is to be considered?. The age of the son is 21 years. He can easily understand the situation. He also lived with his mother for the past 21 years. There is no doubt that if the parents live together may give his comfort life. But, both the parties crossed the stage of joint together. 19. Considering all these aspects, this Court is not inclined to interfere with the findings of the learned Appellate Judge. 20. Accordingly, this Civil Miscellaneous Second Appeal is dismissed by confirming the Decree and Judgment, dated 28.02.2018 in H.M.C.M.A.No.9 of 2015 passed by the learned V Additional District Judge, Madurai, by partly allowing H.M.O.P.No.102 of 2000 on the file of the II Additional Subordinate Court, Madurai, dated 13.08.2015. No costs. Consequently, connected miscellaneous petition is closed.