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2022 DIGILAW 318 (MAD)

S. L. v. Santhosh David VS Jiji Goldy

2022-02-03

R.THARANI

body2022
JUDGMENT : This Civil Miscellaneous Appeals have been filed against the common order passed in D.O.P.Nos.222 of 2012 and 451 of 2011 dated 30.06.2016, on the file of the District Judge, Kanyakumari at Nagercoil. 2. The appellant herein is the husband and the respondent herein is the wife in both the C.M.As. The husband filed a petition in I.D.I.O.P.No.222 of 2021 for divorce and the wife filed a petition in I.D.O.P.No.451 of 2011 for restitution of conjugal rights. A common judgment was passed by the learned District Judge, Kanyakumari at Nagercoil on 30.06.2016, dismissing the divorce petition and allowing the petition for restitution of conjugal rights. Against which, the appellant has preferred these appeals. 3. Brief substance of the petitions in D.O.P.No.451 of 2011 is as follows: The marriage between the petitioner and the respondent was solemnized on 20.01.2010 at the C.S.I. Home Church, Nagercoil as per Christian rites. At the time of marriage, the parents of the petitioner gave 100 sovereigns of jewels amd Rs. 5,00,000/- (Rupees Five Lakhs only) cash and household articles worth about Rs. 1,00,000/- (Rupees One Lakh only) as dowry to the respondent. The petitioner was working as a Software Engineer in a Multi National Company at Bangalore. After marriage, the petitioner and the respondent stayed at his parents house for four days. The jewels were kept in the locker of the mother in law. Though the petitioner demanded for return of the jewels, the mother in law and sister in law refused to return the jewels back to the petitioner. They refused to hand over the jewels even at the time of marriage of the petitioner's brother. On 24.12.2010, the petitioner and the respondent went to Bangalore and the respondent used to spent the salary of the petitioner also. The respondent and his mother and sister demanded dowry for purchasing a flat at Bangalore and for purchasing a car. The petitioner's parents raised Rs.4,00,000/- (Rupees Four Lakhs only) by way of cheque to purchase the flat. The respondent never buy the flat. The petitioner came to the parents' house for delivery. Though intimation was immediately given, the respondent failed to visit the child. Only after 15 days, the respondent came to visit the child and he returned within a few hours. When the petitioner went to the house of the respondent along with the child, she was denied entry. The petitioner came to the parents' house for delivery. Though intimation was immediately given, the respondent failed to visit the child. Only after 15 days, the respondent came to visit the child and he returned within a few hours. When the petitioner went to the house of the respondent along with the child, she was denied entry. All the compromise efforts taken by the pastor of the church and by the parents and relatives failed. As there is no alternative remedy, the petitioner gave a complaint before the Inspector, Women Help Line Centre, Nagercoil. During the counselling, the respondent agreed to take the petitioner along with the child to Bangalore. But he failed to do so and he sent a legal notice on 05.07.2011 for divorce. The petitioner is always ready to live with the respondent. The respondent had deserted the petitioner and caused mental and physical cruelty. 4. Brief substance of the counter filed by the respondent therein is as follows : The demand of dowry as stated in the petition is utterly false and is denied. Neither the respondent nor his relatives demanded dowry and jewels were available in the bank locker. The petitioner's parents voluntarily contributed Rs.3,90,000/- (Rupees Three Lakhs Ninety Thousand only) for a flat to be purchased in the name of the respondent and the petitioner jointly. During the stay in Bangalore, the petitioner was very arrogant and adamant in nature and created unnecessary problems for petty reasons. She was not heed to the affectionate suggestions made by the respondent and she threatened to commit suicide by jumping from the balcony of the rented flat. She was trying to achieve her purpose at any cost to lead a lavish, luxurious and spendthrift life. Her parents and brother also supported the brutal and unruly behavior of the petitioner. Though the birth of the child was never informed to the petitioner, he rushed to the CSI Hospital Nagercoil and he took care of the child and mother for a week. The hospital and other expenses were met out only by the respondent. The petitioner's parents used to extract money from the petitioner's salary without the knowledge of the husband. The same was objected by the petitioner. On the instigation of the petitioner's parents, she was continuously fighting with the respondent. The hospital and other expenses were met out only by the respondent. The petitioner's parents used to extract money from the petitioner's salary without the knowledge of the husband. The same was objected by the petitioner. On the instigation of the petitioner's parents, she was continuously fighting with the respondent. She was not having the habit of maintaining mental equilibrium and she always threaten the respondent and his family members that she would commit suicide with a suicide note implicating the respondent and his family members as the cause of death. It was the petitioner's parents, who took efforts for the re-union. The petitioner is not entitled for any decree for restitution of conjugal rights. 5. Brief substance of the petitions in D.O.P.No.222 of 2011 is as follows: The marriage between the petitioner and the respondent was solemnized on 20.01.2010 at C.S.I. Home Church, Nagercoil. After the marriage, the respondent and the petitioner stayed at the house of the petitioner for 12 days and then they stayed at the respondent's house for three days and then they went to Bangalore and they were residing in an apartment for rent. During their stay at Bangaore, the behavior and actions of the respondent were abnormal. She picked up frequent quarrels with the petitioner stating that the marriage was against her wishes and that the petitioner had to clear the debts of her parents and that they have to support them for their living since they were in poverty. The petitioner objected to the money transaction made by her in support of her parents. The respondent frequently abused the petitioner in filthy language and in ugly words. On many occasions, the respondent frequently attacked the petitioner and caused damages to the property. She is not a women of lucid mind. She was behaving as a psycho and objected to do cooking inspite of the help offered by the petitioner. She was also using her mobile phone to get direction from her mother and brother who extracted money from her. The respondent picked up quarrel for petty reasons and she used to threaten the respondent that she would commit suicide with a suicide note. Four attempts of suicide made by the respondent were prevented by the wise behavior of the petitioner. These incidents created mental agony and it amounts to cruelty. The respondent picked up quarrel for petty reasons and she used to threaten the respondent that she would commit suicide with a suicide note. Four attempts of suicide made by the respondent were prevented by the wise behavior of the petitioner. These incidents created mental agony and it amounts to cruelty. After the delivery of the child, the attitude of the respondent become bad to worse. All the compromise talks failed. The respondent filed multiple false complaints against the petitioner and his family members. With no other alternative, the respondent has filed this petition for divorce. 6. Brief substance of the counter filed by the respondent therein is as follows: At the time of marriage, the parents of the respondent gave Rs.3,00,000/- (Rupees Three Lakhs only) and 50 sovereigns of gold. The petitioner's sister got the jewels and gave them to her mother to be kept in the locker and they refused to give back the jewels to the respondent even for wearing at the time of marriage of the respondent's brother. Then the petitioner and respondent went to Bangalore and they lived there. The petitioner got the ATM card of the respondent and he used to collect the entire salary and he spent the money in a lavish manner. The petitioner and his mother and sister demanded additional dowry by way of a car and a flat in Bangalore. The respondent's parents paid a sum of Rs.4,00,000/- to the petitioner by way of cheque for purchasing a flat. The petitioner did not buy a flat. The respondent came to her parents's house for delivery. Though the birth was intimated immediately, the petitioner came to see the child only after 15 days and he left the house within a few hours. Though the respondent tried to visit the petitioner, she was denied entry by the mother of the petitioner. Several efforts taken by the elders ended in vain. As there is no other option, the respondent approached the All Women Police Station. During the counselling, at the police station, the petitioner agreed to take back the child along with the petitioner to Bangalore. But he failed to do so. He sent a legal notice for divorce. The petitioner deserted the respondent and caused her physical and mental cruelty. The respondent is working in a reputed company in Bangalore. The petitioner has addressed the respondent as psycho. But he failed to do so. He sent a legal notice for divorce. The petitioner deserted the respondent and caused her physical and mental cruelty. The respondent is working in a reputed company in Bangalore. The petitioner has addressed the respondent as psycho. After filing a petition for restitution of conjugal rights, the petitioner has come forward with the petition for divorce. There is no ground for granting divorce. 7. On the side of the petitioner, two witnesses were examined and six documents were marked. On the side of the respondent, one witness was examined and ten documents were marked. one document was marked as Ex,X1. After trial, the trial Judge has allowed the petition in D.O.P.No.451 of 2011 and dismissed the petition in D.O.P.No.222 of 2012. Against which, the appellant has preferred this Civil Miscellaneous Appeals. Since a common order was passed in both the appeals, a common judgment is passed in these cases and C.M.A.(MD)No.1260 of 2021 is taken as the lead case. 8. On the side of the appellant, it is stated that due to the harassment of the wife, the appellant and the respondent were living separately for several years. The trial Court failed to consider the mental cruelty caused by the wife to the husband. The trial Court failed to consider that there was no dowry harassment and that the jewels are available in the bank locker. The trial Court failed to consider that the parents of the respondent voluntarily contributed a sum of Rs.3,90,000/- (Rupees Three Lakhs Ninety Thousand only) for purchasing a property in the joint name of the appellant and the respondent. From the date of marriage itself, the respondent was very arrogant. Though marriage took place in the year 2010, the respondent stayed in the appellant's house only for four days. She evaded staying in the matrimonial home and the same was admitted by the respondent. She gave complaint against the appellant and his family members and dragged the family members of the respondent including a maternal uncle before the All Women Police Station and the said false complaint given by the respondent was also closed by the police. The respondent often refused to cook. She used to create scenes immediately after a conversation with her mother. There is no feasibility for the appellant to live with the respondent. The respondent often refused to cook. She used to create scenes immediately after a conversation with her mother. There is no feasibility for the appellant to live with the respondent. The appellant has returned the amount given by the respondent's mother for purchasing a flat. He only borrowed the amount from her parents and prayed the order to be set aside. 9. On the side of the appellant, it is stated that the respondent wife used to threaten that she would commit suicide with a suicide note. A suicide note was marked as Ex.P5. The wife lodged multiple false complaints against the appellant and his family members. The petition dated 12.07.2011 and 04.06.2011 were closed after investigation. The maternal uncle of the appellant, who is a Dean in the Law College was included as an accused in a case under the Domestic Violence Act. 10. The appellant and the respondent were living separately for the past 10 years and the marriage is irretrievably broken. In support of this contention, a judgment passed by the Hon'ble Supreme Court in the case of Naveen Kohli v. Neelu Kohli reported in (2006) 4 SCC 558 is cited, wherein it is stated as follows: “A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are presented with concrete instances of human behavior as they bring the institution of marriage into disrepute. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conductive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond.” 11. It is further stated that though the respondent has filed a restitution petition, she is not actually interested in living with the husband. To keep the sham is obviously conductive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond.” 11. It is further stated that though the respondent has filed a restitution petition, she is not actually interested in living with the husband. Filing multiple complaints against the husband and in laws amounts to cruelty. In support of this contention, another judgment of the Hon'ble Supreme Court in the case of K.Srinivas Rao v. D.A.Deepa reported in (2013) 5 SCC 226 is cited, wherein it is stated as follows: “In instant case, complaint was filed by respondent wife against appellant husband and his family members under Section 498-A IPC wherein besides alleging ill-treatment and harassment for dowry, it was alleged that mother of appellant husband had asked respondent wife to sleep with her father-in-law-said complaint was found to have been falsely lodged out of frustration on appellant husband's refused to cohabit – thus, held conduct of respondent wife in filing a complaint making unfounded, indecent and defamatory allegation against her mother-in-law, in filing revision seeking enhancement of sentence awarded to appellant husband, in filing appeal questioning acquittal of appellant husband and his parents indicates that she made all attempts to ensure that he and his parents were put in jail and he was removed from his job, which certainly constituted cruelty – hence, decree of divorce granted to appellant husband directing him to pay to respondent wife Rs.15 lakhs in three installments as and by way of permanent alimony – words and phrases – mental cruelty.” 12. On the side of the respondent, it is stated that the wife is having the child and is ready for re-union. There was misunderstanding at the time of dispute. There was absolutely no evidence for cruelty. Only the family members are influencing the appellant. There is actually no problem between the husband and the wife. Both the appellant and respondent are working as Engineers in Bangalore. There is no misunderstanding between the husband and the wife and prayed the appeals filed by the husband to be dismissed. 13. On the side of the appellant, it is stated that both the appellant and the respondent were living separately for the past 10 years. The wife has filed multiple complaints against the husband and his family members. There is no possibility of re-union. 13. On the side of the appellant, it is stated that both the appellant and the respondent were living separately for the past 10 years. The wife has filed multiple complaints against the husband and his family members. There is no possibility of re-union. Continuous suicide threat is the reason for separation. To prove the mental cruelty, the suicide note was filed. 14. The allegation of the husband is that the parents of the wife used to swindle money from the account of the wife and that the husband objected to the money transaction made by her in support of her parents. Another allegation made out by the husband is that the wife indulged in frequent quarrels that the petitioner has to clear the debts of her parents and they have to support them, since they were in poverty. Admittedly, the petitioner and respondent were working as Engineers. The husband is spending for his parents and family but the husband is not accepting his wife spending for her parents. This mentality of the husband cannot be appreciated. 15. The another allegation made out by the husband is that the wife filed multiple complaints against the husband and his family members including a maternal uncle of the husband, who was the Dean of Law College and that filing multiple complaints against the husband and his family members amounts to mental cruelty. On the side of the husband, it is stated that the complaints filed by the wife were closed by the Women Polices after a compromise before the Police. Since the complaints were closed on compromise, they cannot be treated as mental cruelty. 16. Another allegation raised by the appellant is that the wife was in the habit of quarrelling for petty matters and she used to threaten the husband that she would commit suicide leaving a suicide note indicating the husband and his family members as the reason for the suicide. It is stated that four attempts of the wife to commit suicide was prevented by the husband. A suicide note was also marked on the side of the husband. There is no possibility for a happy person to attempt to commit suicide. It is the duty of the husband and his family members to give space for the wife to adjust herself in the marital home. 17. A suicide note was also marked on the side of the husband. There is no possibility for a happy person to attempt to commit suicide. It is the duty of the husband and his family members to give space for the wife to adjust herself in the marital home. 17. The allegation of the wife is that the husband's mother is keeping the jewels and she refused to return the same even for wearing at the time of marriage of the brother of the wife. The husband has admitted that the jewels are in the bank locker. Though the husband filed a divorce petition and he is not ready to live with the wife, he has not taken any efforts to return back the jewels. 18.The another allegation of the wife is that on demand, her parents gave Rs.4,00,000/- to the husband for purchasing a flat and the husband failed to purchase a flat. The husband has admitted that he obtained a sum of Rs.3,90,000/- for purchasing a flat. He is silent as to whether a flat was purchased by him. In contra to his submission, the husband has claimed that the amount was received by him only as a loan and he has repaid the same. No document was filed by the petitioner to show that the amount was actually repaid by him. 19. The above submission made by the husband justify the complaints alleged to have been filed by the wife before the All Women Police Station. 20. In the above circumstances, this Court finds no ground to interfere in the order of the trial Court. Hence, these Civil Miscellaneous Appeals are dismissed. Consequently, C.M.P.(MD)Nos.10785 and 10786 of 2016 are closed.