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2022 DIGILAW 3064 (MAD)

H. Karthikeyan v. C. Vasanthi

2022-09-02

S.SOUNTHAR, V.M.VELUMANI

body2022
JUDGMENT : V.M. Velumani, J. (Prayer: This Civil Miscellaneous Appeal is filed under Section 19 of the Family Courts Act, 1984, against the order and decree dated 12.07.2016 made in H.M.O.P.No.459 of 2014 on the file of the Family Court, Erode.) 1. The appellant/husband is challenging the order of dismissal dated 12.07.2016 made in H.M.O.P.No.459 of 2014 on the file of the Family Court, Erode. 2. The appellant is husband and respondent is wife. The appellant filed H.M.O.P.No.459 of 2014 on the file of the Family Court, Erode under Section 13 (1) (i-a) of the Hindu Marriage Act for granting decree of divorce by dissolving the marriage conducted between the appellant and respondent on 31.08.2006. Case of the appellant: 3. The appellant/husband got married to the respondent on 31.08.2016. The marriage was an arranged marriage. From the date of marriage, the respondent was not cordial towards the appellant and his parents and informed her parents that she is allergic to marriage as her elder sister was driven out of the matrimonial home. She is not interested in conjugal relationship. A male child namely Dharakeshwar was born on 25.09.2007. The respondent did not take care of the child and was not doing house hold work and cooking properly. When the parents of the appellant asked her to do the household work, she abused them in filthy language. 3(a). The appellant's parents advised him to set up a separate matrimonial home. The respondent was an egoistic person and dominating in nature. She has taken all the salary of the appellant and used to spend it according to her whims and fancies and appellant has to take money from the respondent for his expenses. The respondent never liked the parents of the appellant visiting their house and insulted them whenever they come to the house. Due to the attitude of the respondent, they stopped their visit to the appellant's home. The respondent never understood the practical difficulties of the appellant who is working as a Head Master of a Government School. She would insist the appellant to reach home by 4.40 p.m. every day. When the appellant had to visit the office of the AEEO and come back to the house late after the said visit, the respondent used to abuse the appellant, suspecting his character. She used to harass the appellant by contacting him over cell phone during School hours. She would insist the appellant to reach home by 4.40 p.m. every day. When the appellant had to visit the office of the AEEO and come back to the house late after the said visit, the respondent used to abuse the appellant, suspecting his character. She used to harass the appellant by contacting him over cell phone during School hours. Due to that, he lost his mental peace. 3(b). After the birth of male child, the respondent refused to have conjugal relationship with the appellant. The respondent used to pickup quarrel when the appellant spent money for his parents towards medicines. After the quarrel, she used to go to her mother's house and appellant used to go to her mother's house and apologize on more than 10 occasions and then only she will return to the matrimonial home. She threatened the appellant that she would give false complaint against the appellant and his family on dowry harassment so that the appellant will lose his government job. The respondent used to be awake till odd hours in the night and wants the appellant also to be awake till she goes to sleep. The appellant who was a Teacher and later the Headmaster would request the respondent to permit him to take rest to enable him to attend his duty on the next day, for which the respondent would insult the appellant with unbearable words in the odd hours of night. Hence, the appellant could not discharge the duty as a Teacher. The respondent on three occasions, attempted to commit suicide by taking sleeping pills. The appellant took her to the Hospital for treatment. The appellant arranged for Counseling for the respondent, which she attended for a week and then, she stopped attending the Counseling. The respondent has no love and affection for the appellant and their son. The respondent used to beat the son mercilessly for his trivial childish act. On 21.04.2014, when the respondent started quarrel with the appellant, he advised the respondent to behave like a good family woman. Immediately, she poured Kerosene on her body and tried self immolation. The appellant tried to save her and both got injured. The Police has registered a case against the appellant for abetting suicide. After treatment, the respondent did not return to the matrimonial home and left to her mother's house. She refused to return to the matrimonial home. 3(c). Immediately, she poured Kerosene on her body and tried self immolation. The appellant tried to save her and both got injured. The Police has registered a case against the appellant for abetting suicide. After treatment, the respondent did not return to the matrimonial home and left to her mother's house. She refused to return to the matrimonial home. 3(c). Due to the above cruel acts of the respondent, it is not possible for the appellant to live with the respondent to have normal life. The parents of the respondent also informed the appellant that it is not possible to continue the marital relationship of the appellant and respondent. The respondent has caused mental pain and distress to the appellant and filed the present petition for decree of divorce. Case of the respondent: 4. The respondent filed counter statement, denying each and every averments made by the appellant in the petition. After denying the various averments, the respondent admitted that after treatment in the Hospital, she went to her parents' house stating that she is not interested to live with the appellant. The respondent further stated that only mother of the appellant picked up quarrel with the respondent. She was made to do all house hold work and she was not given any respect. At the time of marriage, the respondent's parents gave 50 soverigns of jewels, Rs.3,00,000/- worth house hold articles and Rs.5,00,000/- as dowry demanded by the appellant. The appellant and her parents demanded further dowry of Rs.10,00,000/- to buy a house and asked the respondent to get the same from her parents. On 21.04.2014, the appellant informed the respondent that he is going to marry his lover who is working with him as a Teacher and asked the respondent to sign the divorce petition. When she refused to sign the divorce papers, the appellant poured Kerosene and set her fire. The respondent shouted due to burn injuries. The appellant took the respondent to Hospital and on the way to Hospital, the appellant threatened the respondent that if she tells anything to Police, he will kill the respondent's son Dharakeswar. Due to the fear of the appellant, the respondent informed the Police that it is an accident. After that, she did not meet the appellant. There is no valid reason for filing the petition to seek divorce. Due to the fear of the appellant, the respondent informed the Police that it is an accident. After that, she did not meet the appellant. There is no valid reason for filing the petition to seek divorce. The respondent and her parents along with her native people, went to the appellant's house and sought for the reason for filing petition for divorce. They informed that they do not like the respondent and appellant is going to marry again. The respondent, on 21.07.2014, gave a complaint against the appellant and his parents before the Superintendent of Police, Erode, on which investigation is pending and prayed for dismissal of O.P.No.459 of 2014. 5. The learned Judge framed necessary point for consideration that whether the appellant is entitled to the relief as sought for by him in H.M.O.P.No.459 of 2014. 6. Before the learned Judge, the appellant examined himself as P.W.1, one Saraswathi as P.W.2 and 12 documents were marked as Exs.P1 to P12. The respondent examined herself as R.W.1 and mother of the respondent Amaravathy as R.W.2 and did not file any documentary evidence. 7. The learned Judge considering the pleadings, oral and documentary evidence and point for consideration, held that the appellant has not proved cruelty and he is not entitled to the relief as sought for by him in H.M.O.P.No.459 of 2014 and by the order dated 12.07.2016 dismissed the said H.M.O.P. 8. Against the said order of dismissal dated 12.07.2016 made in H.M.O.P.No.459 of 2014, the appellant/husband has come out with the present appeal. 9. The learned counsel appearing for the appellant contended that the learned Judge erred in holding that the respondent did not treat the appellant cruelly. The learned Judge failed to consider that the respondent has lodged false complaint, one after another only with a view to harass the appellant. The respondent's mother gave a false complaint when the respondent was living with her and got the appellant arrested. Due to which the appellant was suspended from service for a period of nine months. Due to suicide tendency of the respondent, she went to the extent of committing suicide in order to harass the appellant. The learned Judge failed to see that respondent attempted to commit suicide and only the appellant saved her life by admitting in the Hospital. There is no possibility of re-union in future. Due to suicide tendency of the respondent, she went to the extent of committing suicide in order to harass the appellant. The learned Judge failed to see that respondent attempted to commit suicide and only the appellant saved her life by admitting in the Hospital. There is no possibility of re-union in future. There is total break down of marriage with the respondent and hence, the appellant is entitled for divorce. The learned Judge erred in dismissing the OP filed by the appellant without taking into consideration that the respondent deserted the appellant without any reason and both are living separately from 2014 onwards. 9(a). The learned counsel appearing for the appellant further submitted that (i) M.C.No.100 of 2015 filed under Domestic Violence Act on the file of the Additional Mahila Court, Trichy was dismissed by the judgment dated 06.03.2021, holding that the respondent created false document and not entitled to the relief sought for. (ii) M.C.No.55 of 2017 filed by the respondent under Section 125 of Code of Criminal Procedure claiming maintenance of Rs.30,000/- from the appellant also was dismissed by the order dated 04.04.2019. (iii) In C.C.No.521 of 2020, the complaint made by the respondent was registered in Crime No.125 of 2014 under Section 309 of Indian Penal Code was subsequently altered and charge sheet was filed under Sections 326, 498(A), 309 r/w Section 109 of Indian Penal Code. The said case is taken on the file of Chief Judicial Magistrate, Additional Mahila Court, Erode and posted for examination of Investigating Officer. (iv) The respondent again filed M.C.No.45 of 2021 under Section 125 of the Criminal Procedure Code claiming maintenance from the appellant and the same is pending before the Family Court, Erode. (v) The complaint made by the mother of the respondent to the Inspector of Police, Erode Taluk Police Station is pending in Crime No.198 of 2014 was registered under Sections 294(b), 506(ii) r/w Section 4 of Women Harassment Act. In the said case, the appellant was arrested in the school while taking class, he was released on Bail after four days and he was suspended from service for nine months. 9(b). The learned counsel appearing for the appellant referred to para.no.16 of the counter statement filed by the respondent and submitted that the respondent herself has stated that she is not interested in living with the appellant. 9(b). The learned counsel appearing for the appellant referred to para.no.16 of the counter statement filed by the respondent and submitted that the respondent herself has stated that she is not interested in living with the appellant. The learned counsel appearing for the appellant further submitted that the learned Judge without considering the oral and documentary evidence let in by the appellant, erroneously dismissed the OP and prayed for setting aside the order of the learned Judge in H.M.O.P.No.459 of 2014 and allowing this appeal filed for granting decree of divorce dissolving the marriage conducted between the appellant and respondent on 31.08.2006. 10. The learned counsel appearing for the respondent contended that it is the appellant who treated the respondent with cruelty. The appellant has not proved that respondent treated the appellant cruelly. The learned counsel for the respondent further contended that statement in para.no.16 of the counter statement is a typographical error and the learned Judge has considered all the materials and rightly dismissed the OP and prayed for dismissal of the appeal. 11. Heard the learned counsel appearing for the appellant as well as the learned counsel for the respondent and perused the entire materials on record. 12. The point for consideration arise in this appeal is whether the appellant has proved the cruelty alleged against the respondent and whether he is entitled to decree of divorce. Point for consideration: 13. From the materials on record, it is seen that the appellant has alleged various acts of cruelty meted out to him by the respondent. The respondent denied all such incident and stated that it is the appellant, who has treated her with cruelty. One of the main acts of cruelty alleged against the respondent is that on four occasions she tried to commit suicide and appellant only admitted her in Hospital for treatment. The counseling was arranged by the appellant in Lotus Hospital for respondent with regard to suicidal tendency of the respondent. The respondent attended the counseling for only one week and subsequently she did not attend the same. The respondent denied that she attempted suicide on four occasions and counseling was arranged for the respondent. The respondent's mother who was examined as R.W.2 also denied that respondent attempted suicide on four occasions. The respondent attended the counseling for only one week and subsequently she did not attend the same. The respondent denied that she attempted suicide on four occasions and counseling was arranged for the respondent. The respondent's mother who was examined as R.W.2 also denied that respondent attempted suicide on four occasions. The appellant examined one Saraswathi as P.W.2, who in chief examination deposed that she knows both about the appellant and respondent and she is relative to them. In the chief examination she has stated that respondent attempted suicide on four occasions and appellant only admitted the respondent in the Hospital. P.W.2 further stated in the chief examination that she and her husband met the appellant and respondent on all four occasions and advised the respondent not to attempt suicide. At that time the respondent did not express anything whether she accepted the advise given by P.W.2 or not. She further deposed that the respondent in their presence and in the presence of others, abused the appellant in filthy language. Not even a suggestion was put to P.W.2 that respondent did not attempt suicide on four occasions by consuming sleeping pills. P.W.2 is a relative and on the failure on the part of the respondent to prove the evidence of P.W.2 is false, fortifies the contention of the appellant. Apart from the alleged attempting of suicide by the respondent on four occasions by consuming sleeping pills, on 21.04.2014, according to appellant, the respondent poured kerosene and set herself fire and attempted suicide. According to appellant, he saved the respondent and admitted in the Hospital. His further case is that he also got injured in the said incident. Further the respondent gave statement before the Police and in her dying declaration that she herself poured kerosene and set fire. Subsequently she gone back on the said statement to the effect that the appellant only poured kerosene on her and set her fire to kill her. According to respondent, she gave the earlier statement for the benefit of her minor son. On the complaint given by the respondent, a criminal case has been registered under Section 309 of the Indian Penal Code and later charges were altered under Sections 326, 498(A), 309 r/w Section 109 of the Indian Penal Code. According to respondent, she gave the earlier statement for the benefit of her minor son. On the complaint given by the respondent, a criminal case has been registered under Section 309 of the Indian Penal Code and later charges were altered under Sections 326, 498(A), 309 r/w Section 109 of the Indian Penal Code. The said criminal case is pending and no final order is passed as to whether the respondent attempted suicide or appellant tried to kill her. 14. Another act of cruelty alleged by the appellant is that after filing of petition for dissolution of marriage, the respondent has given false complaint against him. The respondent's mother also gave a false complaint against the appellant and got him arrested in the class room while he was teaching the students and he was suspended from service for a period of nine months. The learned counsel for the appellant has furnished details of criminal case filed against him by the respondent as well as by the respondent's mother. The learned counsel for the appellant contended that M.C.No.100 of 2015 filed on the file of the Judicial Magistrate, Additional Mahila Court, Trichy under Domestic Violence Act was dismissed by the judgment dated 06.03.2021 and M.C.No.55 of 2017 filed by the respondent under Section 125 of Code of Criminal Procedure claiming maintenance of Rs.30,000/- from the appellant also was dismissed by the order dated 04.04.2019. 14(i). After dismissal of maintenance case, again the respondent has filed M.C.No.45 of 2021 under Section 125 of the Code of Criminal Procedure for maintenance and the same is pending before the Family Court, Erode. The said maintenance case and a case filed under Section 309 of Indian Penal Code altered under Sections 326, 498(A) and 309 r/w Section 109 of Indian Penal Code and C.C.No.522 of 2022 filed under Sections 294(b), 506(ii) of Indian Penal Code based on the complaint given by the respondent and her mother are pending. It is no doubt true that all the criminal case was lodged by the respondent and her mother after appellant filed petition for divorce. The Court can take into consideration the subsequent event while deciding the issue of dissolution of marriage. It is no doubt true that all the criminal case was lodged by the respondent and her mother after appellant filed petition for divorce. The Court can take into consideration the subsequent event while deciding the issue of dissolution of marriage. The contention of the learned counsel for the appellant that criminal case in M.C.No.100 of 2015 filed under Domestic Violence Act was dismissed and after dismissal of M.C.No.55 of 2017 for maintenance, filed by the respondent claiming maintenance of Rs.30,000/- from the appellant on 04.04.2019, the respondent filed similar case for maintenance in M.C.No.45 of 2021 claiming maintenance from the appellant. From the evidence of respondent and her mother, it is seen that appellant had obtained anticipatory bail and the same was informed by the Office of the Superintendent of Police to the respondent and her mother. On coming to know the anticipatory bail obtained by the appellant, the respondent's mother gave a complaint for the alleged offence under Section 294(b) and 506(ii) r/w Section 41 of Women Harassment Act and appellant was arrested. Both the respondent and respondent's mother admitted that they gave a complaint to arrest the appellant. This clearly shows that intention of the respondent and her mother is some how or other to get the appellant arrested. Even though in the said criminal case, no final order has been passed, the Court can take into consideration the admission of the respondent and her mother and their intention was to arrest the appellant. This clearly reveals that respondent and her mother had given complaint against the appellant only with a view to harass the appellant. Giving complaint after complaint against the appellant will not amounts to cruelty. But C.C.No.100 of 2015 filed by the respondent under Domestic Violence Act was dismissed. From the said judgment dated 06.03.2021, it is seen that the respondent has created documents with a view to get conviction for the appellant. The learned Judge has categorically stated that the respondent has forged the documents and has given false evidence and that she is liable to be prosecuted under Section 193 of the Indian Penal Code. The learned Judge also held that the case of the respondent that appellant and his family members committed domestic violence on the respondent is false and the respondent failed to prove the charges levelled against the appellant and his family members and dismissed C.C.No.100 of 2015. The learned Judge also held that the case of the respondent that appellant and his family members committed domestic violence on the respondent is false and the respondent failed to prove the charges levelled against the appellant and his family members and dismissed C.C.No.100 of 2015. The respondent has filed a memo stating that she is not going to file an appeal and sought for return of exhibits. 15. The judgment of the learned Judge in C.C.No.100 of 2015 clearly proves that respondent has given false complaint against the appellant and his family members which amounts to causing mental cruelty to the appellant. On these grounds, the appellant is entitled to dissolution of marriage as prayed for in H.M.O.P.No.459 of 2014. 16. Giving complaint itself will not amount to mental cruelty to the appellant but giving a false complaint against the appellant will definitely cause mental cruelty. At the time of trial of HMOP, all the criminal cases filed by the respondent and her mother were pending and therefore, the learned Judge did not take the criminal case for consideration of deciding the issue before him. Now it is proved that the respondent has given false complaint against the appellant. 17. In view of the above materials, the appellant is entitled to dissolution of marriage as claimed in the petition. The point for consideration is answered in favour of the appellant and against the respondent. The order of the learned Judge dismissing the claim petition is set aside. H.M.O.P.No.459 of 2014 is allowed and accordingly, this appeal stands allowed. No costs.