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2022 DIGILAW 3466 (MAD)

N. Umapathy v. Sheeba

2022-09-23

S.SOUNTHAR, V.M.VELUMANI

body2022
JUDGMENT (Prayer: This Civil Miscellaneous Appeal is filed under Section 19 of the Family Courts Act, 1984, against the judgment and decree dated 11.03.2015 made in F.C.H.M.O.P.No.2 of 2014 (M.O.P.No.39 of 2009) on the file of the Sub Court, Dharmapuri.) V.M. Velumani, J. 1. This appeal is filed by the appellant/husband challenging the order dated 11.03.2015, dismissing the F.C.H.M.O.P.No.2 of 2014 (M.O.P.No.39 of 2009) filed by him for dissolution of marriage. 2. The appellant/husband filed F.C.H.M.O.P.No.2 of 2014 (earlier M.O.P.No.39 of 2009) on the file of the Sub Court, Dharmapuri for dissolution of marriage conducted on 17.08.1997 between him and the respondent. According to the appellant, at the time of marriage, he was working in a Private concern and subsequently, he got appointed in the Dharmapuri Municipality. From the date of marriage, the respondent was not having cordial relationship with the appellant and his family members. The respondent abused the appellant and his mother and insisted for having a separate matrimonial home. Even after establishing separate matrimonial home, the respondent did not change her attitude. The respondent, without knowledge of the appellant, gave 7 Sovereigns of her jewels to one Gnanasekaran, her sister's husband. When the appellant asked the respondent to get back the 7 Sovereigns of jewellery from her brother-in-law, on 20.12.2006, the respondent, her parents, sister and brother-in-law came to the work place of the appellant and abused him in filthy language in the presence of his colleagues and threatened to give false complaint of dowry harassment against the appellant. Again, when the appellant asked the respondent to get back the jewels given to her brother-in-law, she shouted at him, threw household articles on him, left the matrimonial home and went to her parents' house at Krishnagiri. The appellant pacified the respondent and brought her to the matrimonial home. Again, during April, 2007, when the appellant asked the respondent about the jewels, she informed her parents, her sister, sister's husband and relatives and created a scene in front of the house of the appellant. The respondent shouted at the appellant that she is not willing to live with him and she will have relationship with somebody else and live happily and left. On 16.04.2007, the respondent gave a false complaint before the All Women Police Station, Dharmapuri, against the appellant, his mother, sister and brother, alleging dowry harassment. The respondent shouted at the appellant that she is not willing to live with him and she will have relationship with somebody else and live happily and left. On 16.04.2007, the respondent gave a false complaint before the All Women Police Station, Dharmapuri, against the appellant, his mother, sister and brother, alleging dowry harassment. The Police enquired the complaint and found that the same is false and advised the respondent. Immediately, the respondent shouted at the appellant stating that she will kill him by poisoning and get compassionate appointment and live luxurious life. Subsequently, the respondent informed the appellant that she is not willing to live with the appellant, got Rs.3,00,000/- from him and left the matrimonial home in the month of June, 2007 along with the children and got Transfer Certificate from the School. When the respondent deserted the appellant in the month of June, 2007, he tried to reconcile through elders. The respondent and her family members abused the elders and refused to join the appellant in matrimonial home. Suppressing the receipt of Rs.3,00,000/- from the appellant, the respondent filed M.C.No.15 of 2007 before the Chief Judicial Magistrate Court, Krishnagiri and obtained order. The appellant has filed an appeal challenging the said order. The respondent, with a view to get the appellant dismissed from his service got him arrested and appellant has come out on bail. Due to the above facts, the appellant suffered mental tension and cruelty and felt that it is not safe to live with the respondent any longer. The respondent deserted the appellant from the month of June, 2007 and appellant and respondent are living separately from that date onwards and respondent has given false complaint against the appellant and his family members. Due to the above act of the respondent, the appellant has sought for dissolution of marriage on the ground of cruelty and desertion. 3. The respondent/wife filed counter statement and denied all the averments made in the petition filed by the appellant. The respondent denied having received the sum of Rs.3,00,000/- from the appellant and stated that it is the imagination of the appellant. According to the respondent, the appellant at the instigation of his mother and sister, ill-treated and harassed the respondent. After birth of the second child, the appellant took all the School certificates of the respondent stating that he will admit her in DTP course in Dharmapuri. According to the respondent, the appellant at the instigation of his mother and sister, ill-treated and harassed the respondent. After birth of the second child, the appellant took all the School certificates of the respondent stating that he will admit her in DTP course in Dharmapuri. Even after completion of studies, the appellant kept all the certificates. The appellant's brother is doing jewellery business. The appellant and his brother sold 10 gms of gold jewellery to a person in Bangalore through the respondent's sister's husband. Some misunderstanding arose between them and appellant abused the respondent connecting her with her brother-in-law. In the year 2004, when the respondent went to her parent's house, the appellant took her 14 Sovereigns of jewellery. The appellant established a separate house at Sengundhar Colony, Dharmapuri which did not have even basic amenities. The appellant did not spend any money for maintenance of the family or for the education of the children. The appellant harassed the respondent to get money from her father when he retired from service. On 16.04.2007, when the respondent's parents and relatives came to the house of the appellant, only the appellant behaved in a rude manner and beaten the mother of the respondent in the street and drove the respondent and children from the matrimonial home. The respondent gave complaint to the All Women Police Station only for protection, not alleging dowry harassment. Even after the advise of the Police, the appellant did not take the respondent and children to the matrimonial home. The respondent has not voluntarily left the matrimonial home, but the appellant has forcibly sent the respondent out of the matrimonial home. The respondent did not treat the appellant cruelly, but it is the appellant who treated the respondent cruelly and hence, prayed for dismissal of the petition. 4. The learned Judge considering the pleadings, framed the following necessary points for consideration: (i) Whether the cruelty meted out by the respondent on the appellant has been proved or not? (ii) Whether the alleged desertion of respondent from the matrimonial home is proved or not? (iii) Whether the appellant is entitled to get divorce or not? (iv) Any other relief? 5. Before the learned Judge, Family Court, the appellant examined himself as P.W.1 and marked 2 documents as Exs.P1 & P2. The respondent examined herself as R.W.1, but did not mark any document. 6. (iii) Whether the appellant is entitled to get divorce or not? (iv) Any other relief? 5. Before the learned Judge, Family Court, the appellant examined himself as P.W.1 and marked 2 documents as Exs.P1 & P2. The respondent examined herself as R.W.1, but did not mark any document. 6. Considering the pleadings, oral and documentary evidence, the learned Judge dismissed the F.C.H.M.O.P.No.2 of 2014. 7. Against the said order dated 11.03.2015 made in F.C.H.M.O.P.No.2 of 2014, the appellant has come out with the present appeal. 8. The learned counsel appearing for the appellant contended that the appellant proved cruelty by letting in evidence, but the learned Judge disbelieved the same without any proper reason. The cruelty has to be inferred from the conduct of the party. It has to be considered in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. The Court has to decide the impact of cruelty alleged on the spouse alleging cruelty. The cruelty meted out by a spouse depends upon the standard of life and culture. The learned Judge failed to see that the respondent created problem in the work place of appellant which has lowered the image of the appellant and de-moralised his character before his colleagues. The cruelty alleged has to be decided on the probabilities of the case and not proving the same beyond reasonable doubt has no application to the matrimonial disputes. The respondent has given false complaint against the appellant and his family members and tarnished the image of the appellant at the instigation of her parents, which itself amounts to cruelty. The appellant has proved that the respondent has deserted the appellant without any reasonable cause and learned Judge failed to see that the respondent has not made any attempt for reunion or she has not shown any interest to continue the matrimonial life. The appellant and respondent are residing separately for more than 15 years, there is no possibility of living together and the marriage has been irretrievably broken down. In such circumstances, divorce has to be granted and thus, prayed for allowing the appeal. In support of his contentions, the learned counsel appearing for the appellant relied on the judgment of the Hon'ble Apex Court reported in (2006) 4 SCC 558 [Naveen Kohli Vs. Neelu Kohli]. 9. In such circumstances, divorce has to be granted and thus, prayed for allowing the appeal. In support of his contentions, the learned counsel appearing for the appellant relied on the judgment of the Hon'ble Apex Court reported in (2006) 4 SCC 558 [Naveen Kohli Vs. Neelu Kohli]. 9. The learned counsel appearing for the respondent contended that the appellant made false allegations against the respondent and her family members. He has failed to prove the same by any acceptable evidence. The learned Judge considering the pleadings, oral and documentary evidence, rightly held that the appellant failed to prove the cruelty and desertion. The respondent did not desert the appellant, but she was forcibly driven out of the matrimonial home. The appellant has failed to prove the cruelty and desertion alleged against the respondent and he is not entitled to divorce on the ground of marriage being irretrievably broken down and prayed for dismissal of the appeal. 10. Heard the learned counsel appearing for the appellant as well as the respondent and perused the entire materials available on record. 11. The point for consideration arisen in this appeal is, “whether the appellant is entitled to decree of divorce on the ground of cruelty and desertion.” Point – (1) 12. From the materials on record, it is seen that the appellant and respondent got married on 17.08.1997 as per the Hindu Customs and Rites. In the wedlock, a male and female child were born. According to the appellant, from the beginning of marriage, the marital life was not cordial. The respondent was treating the appellant and his mother cruelly. At the time of marriage, the appellant was working in a Private concern and subsequently, he got appointment as Computer Operator in Dharmapuri Municipality. The respondent handed over her 7 Sovereigns of gold jewels to his brother-in-law. On 20.12.2006, when the appellant questioned the same, the respondent, her parents, sister and sister's husband came to the appellant's office and abused him in filthy language in front of all his colleagues. Due to the same, the appellant's image was tarnished and he was put to great mental tension due to the said cruel act of the respondent. To prove the said contention, the appellant did not examine any of his colleagues. Similarly, on 15.04.2007, when the appellant again demanded return of jewels from the respondent's sister's husband, she called her parents over phone. To prove the said contention, the appellant did not examine any of his colleagues. Similarly, on 15.04.2007, when the appellant again demanded return of jewels from the respondent's sister's husband, she called her parents over phone. The respondent's parents, along with others, came to the house of the appellant and abused the parents of the appellant and created a big scene in front of the house in the presence of the neighbours. On that date, the respondent shouted that she is not willing to live with the appellant and left the matrimonial home. For proving this case also, the appellant did not examine any of the neighbours. The next instance of cruelty alleged by the appellant is, the respondent lodged false complaint of dowry harassment against his mother and brother. According to the appellant, the Police advised the appellant to live with the respondent and the respondent openly declared that she is not willing to live with the appellant. The appellant has produced a xerox copy of the complaint given by the respondent to the Police and marked the same as Ex.P2. A reading of the said complaint shows that even though the respondent has stated that the appellant and her family members harassed her for demanding dowry, abused her father and assaulted her mother, she did not seek any action against the appellant and his family members. On the other hand, she pleaded the Police to advise the appellant to live with the respondent. Ex.P2 is not a complaint as alleged by the appellant to harass him and his family members. According to the appellant, in June, 2007, the respondent received a sum of Rs.3,00,000/- as maintenance from the appellant and got Transfer Certificate for children from the School and left the matrimonial home along with the children. After receiving the said amount, the respondent filed M.C.No.15 of 2007 before the Chief Judicial Magistrate Court, Namakkal for maintenance and obtained order. The appellant filed appeal challenging the said order. When the appeal was pending, the appellant was arrested and subsequently, enlarged on bail. The appellant has not produced any material to show that the appellant has paid a sum of Rs.3,00,000/- to the respondent as maintenance. The appellant was arrested for non-payment of maintenance as ordered by the Chief Judicial Magistrate Court, Namakkal. When the appeal was pending, the appellant was arrested and subsequently, enlarged on bail. The appellant has not produced any material to show that the appellant has paid a sum of Rs.3,00,000/- to the respondent as maintenance. The appellant was arrested for non-payment of maintenance as ordered by the Chief Judicial Magistrate Court, Namakkal. From the above materials, it is clear that the appellant failed to prove the acts of cruelty alleged against the respondent and made false allegation of cruelty against the respondent. 13. As far as the allegation of desertion is concerned, according to the appellant, the respondent without any reason voluntarily left the matrimonial home. When the appellant tried through elders to make the respondent reconcile and live with the appellant, the respondent and his family members insulted the persons who tried to resolve the dispute between the appellant and respondent. The appellant has not issued any notice calling upon the respondent to join the matrimonial home or file any petition for restitution of conjugal rights. On the other hand, in Ex.P2, the respondent has pleaded the Police to advise the appellant to live with the respondent. This shows that the respondent wants to live with the appellant and lead a matrimonial life. The appellant has not proved that the respondent has deserted the appellant voluntarily without any valid reason. 14. The contention of the learned counsel appearing for the appellant is that marriage between the appellant and respondent was not irretrievably broken and there is long period of separation for 15 years. In view of the long separation by the appellant and respondent, the appellant is entitled to decree of divorce. The said contention is without merits. Long separation will not automatically entitle a spouse for a decree of divorce. Making false allegation and not living with other spouse for long period cannot be termed that marriage has been irretrievably broken and marriage has become fiction. The facts and circumstances of each case has to be considered on its own merits and Court has to decide whether the marriage has been irretrievably broken and there is no possibility of reunion. In the present case, the respondent has sought for reunion through Police and appellant also stated that through well-wishers, he tried for reunion. The facts and circumstances of each case has to be considered on its own merits and Court has to decide whether the marriage has been irretrievably broken and there is no possibility of reunion. In the present case, the respondent has sought for reunion through Police and appellant also stated that through well-wishers, he tried for reunion. Considering the above facts and circumstances of the case, it cannot be said that the marriage has been irretrievably broken and there is no possibility of reunion. Even in the judgment relied on by the learned counsel appearing for the appellant, the Hon'ble Apex Court has held that each case has to be decided based on the facts and circumstances of that case. Hence, the judgment relied on by the learned counsel appearing for the appellant does not advance the case of the appellant to the facts and circumstances of the present case. For the above reason, Point No.1 is answered against the appellant and in favour of the respondent. In the result, the Civil Miscellaneous Appeal is dismissed and the judgment dated 11.03.2015 made in F.C.H.M.O.P.No.2 of 2014 (M.O.P.No.39 of 2009) is confirmed. No costs.