THE HONOURABLE MR v. C.Kalpana

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 22.03.2007CORAM:THE HONOURABLE MR.JUSTICE P.D.DINAKARANandTHE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMANC.M.A.No.1332 of 2000D.Umashankar .. Appellant/PetitionerversusC.Kalpana .. Respondent/RespondentPRAYER: Civil Miscellaneous Appeal filed under Section 19 of the FamilyCourt Act against the order dated 3.1.2000 made in F.C.O.P.No.2 of 1995 onthe file of the I Additional Family Judge, Chennai.For appellant :Mr.Venkatasubbaraju for Mr.R.VijayakumarFor respondent :Mrs.R.VijayaJUDGMENT(Judgment of the Court was delivered by CHITRA VENKATARAMAN,J.)This appeal is against the order of the I Additional Family CourtChennai. The petitioner is the appellant herein. The appellant herein,husband of the respondent herein, sought for dissolution of the marriageunder Section 13(1)(ia) of the Hindu Marriage Act, 1955, on the ground ofcruelty, or in the alternative, for judicial separation under Section 103of the Hindu Marriage Act, 1955.2. The appellant and the respondent got married on 29.8.1993according to the Hindu rites and customs. The marriage was an arrangedmarriage. It is alleged that soon after the marriage, the respondent wasbehaving strangely and not as a newly wedded wife. It is alleged thateven on the first night, the respondent was demanding the appellant to setup a separate residence and arrange for a cook. It is stated that theappellant left the respondent with her parents on 30.8.1993, since she had https://hcservices.ecourts.gov.in/hcservices/ measles. She returned back and started living with the appellant from16.9.1993 onwards. It is further stated that the respondent was employedin a Benefit Fund in Purasawalkam. She promised to resign her job, but itdid not materialise. The allegation is that on 25.9.1993, the respondent,after attending to her job, did not return back home. On enquiry, it waslearnt that she went to her mother's house and the father of therespondent came to the appellant's residence and demanded the sarees ofthe respondent on the ground that she was not willing to live with theappellant's family members and that she wished to live with the appellantonly if and when a separate residence was set up. It is also alleged thatthe respondent's father abused the family members of the appellant.Thereafter, the appellant's family members went to the respondent's houseon 25.9.1994 and attempted a mediation; however, it failed. In spite ofan offer to set up separate residence to enable the respondent to come andstay with the appellant, the respondent refused and told the familymembers that she was not interested in living with the appellant.However, on persuasion, she returned back to the appellant's residence. 3. It is alleged that on 7.10.1993, the respondent misbehaved withthe family members, and on the information given by the appellant'sbrother, the respondent's father came. The respondent and her father wenton to the road and shouted at the appellant's family members. Even forthe Thalai Deepavali, the appellant and his family members were notinvited. 4. The appellant states that the respondent threatened that she andher family members would lodge a complaint before the Dowry Cell. Theallegation is that after 7.10.1993, the respondent did not return back toher marital home; that he was not having mental peace and suffered mentalbreakdown. The conduct of the respondent showed that there was nopossibility of the appellant leading a happy marital life with therespondent. In the circumstances, the appellant/petitioner sought fordivorce on the ground of cruelty, or in the alternative, for judicialseparation.5. The appellant has sent a lawyer's notice, which was replied to,followed by a rejoinder from the appellant's Advocate. 6. The respondent filed a counter affidavit, wherein, she denied theallegations. She stated that she was employed in a Benefit Fund atPurasawalkam and it was agreed prior to the marriage that she would remainin employment for a month or so after the marriage till they moved toArakkonam, where the appellant had quarters in the Indian Naval AirStation, Rajali, Arakkonam. She alleged that considering the number offamily members and the size of the house and that the maternal aunt of theappellant was occupying a portion, there was no privacy to the newlymarried couple. She stated that there was no space to sit comfortably toenjoy the company of her husband. She alleged that the appellant askedher to resign her job and stated that unless she resigned her job, he https://hcservices.ecourts.gov.in/hcservices/ would not take her to Arakkonam. Hence, with a hope that the appellantwould set up a family at Arakkonam, she resigned her job. She alsoalleged that she also did not have even sufficient rest and peace duringher stay in her husband's house. When the respondent requested theappellant to take her to Arakkonam, she was informed that he hadsurrendered his quarters at Arakkonam and hence, could not take her toArakkonam. It is stated by the respondent that she had been requestingthe appellant to move to a better place, only for the purposes of having acomfortable living, that she never had the intention of staying away fromthe other members of the family. She submitted that she never requestedthe appellant to set up a separate family away from the family members.It is stated that she asked for a better accommodation and privacy to havea healthy marital life and that she never had any animosity over thefamily members. She also stated that she is an Arts Graduate and she hasfinished her post graduation also. She has passed higher typing both inEnglish and Tamil and that she has passed Diploma in Computer Programming.She has also passed Shorthand English lower grade, apart fromqualification in Hindi. 7. She stated that her father had spent substantially for hermarriage by giving gifts. She alleged that but for the assurance given bythe appellant that they would be moving to Arakkonam, she would not haveinsisted him to shift to Arakkonam or resigned her job. She denied theallegations in the petition as regards her father's conduct and statesthat he never abused the appellant's mother or sister; that theallegations on the behaviour of the respondent were wholly fictitious andinvented to suit the occasion. She also stated that only for themaintenance of a good marital life,she called on the appellant at hisoffice at Arakkonam and incidentally met the Principal. In short, allthat the respondent wanted was only a separate residence for a separateliving. She has narrated in the counter affidavit that the appellant hadrented out many of the portions and that by evicting anyone of thetenants, there would be better accommodation. She stated that in spite ofsuch a course open, nothing was done by the appellant. She denied theallegation that she told the appellant that she was not ready to live withthe appellant and to render conjugal assistance. She denied the statementof the appellant and expressed her willingness to join the appellant. Shestated that the respondent and the appellant fell in love with each other,which ultimately ended in an arranged marriage and that they are relatedtoo. She alleged that the appellant's unmarried sister and cousin sisterand the appellant's brother, aged about 26 years, stand in the way of theappellant and the respondent living a happy marital life. Hence, therespondent prayed for dismissal of the petition.8. The Court below went into the evidence. The appellant/petitionerwas examined as P.W.1 and the respondent was examined as R.W.1. Apartfrom the parties herein, other eye-witnesses were also examined, apartfrom marking the documents. https://hcservices.ecourts.gov.in/hcservices/

9. The Court below noted that the appellant herein had not proved hiscase on the act of cruelty. In this connection, the Court below referredto the evidence of P.W.1, the appellant herein, and pointed out that allthat the respondent demanded was a better residence rather than a separateresidence to stay away from the parents and stay with the respondent. TheCourt below further noted that the respondent had expressed her eagernessto join the appellant and had also written several letters requesting himto take her back. The Court below further noted the evidence of R.W.1 inparagraph 28 only go to show that she had taken efforts to meet theappellant and talk freely. R.W.3, the respondent's employer, deposed thatthe respondent tendered her resignation, since she wanted to join herhusband to live in Arakkonam. The Court below found that the appellanthad not stated clearly as to why he had not shifted the residence toArakkonam, as agreed prior to and after the marriage. The Court belowalso rejected the plea that the marriage was not consummated. Referringto the evidence of P.W.4, the Court below held that the parties hereinlived as husband and wife for more than two months. The Court belowfurther noted that although the appellant had alleged that the respondentbehaved badly with his family members, no evidence was let in to prove thesame by the appellant. The Court below also rejected the evidence ofP.W.3, maternal uncle of the appellant, since P.W.3's evidence did notshow categorically as to whatever had been alleged to have happened in theappellant's house. The evidence of P.W.3 being an interested testimonywas not not given credence to. The Court below further pointed out thatsurprisingly, the appellant had not examined any of the tenants residingin the same premises to substantiate the allegations as to the conduct ofthe respondent. The Court below pointed out the contradictions in theevidence of P.Ws.1, 3 and 4 as regards the allegation of abuse by therespondent and her father. The Court below further pointed out from theevidence of the respondent that there was no allegation of ill-treatmentor cruelty from the appellant and that her only regret was that as assuredby the husband, he had not taken her to the quarters. She further deposedthat in spite of her forceful entry, she was thrown out by the appellantwith the assistance of the tenants and that she was not allowed to stay inher matrimonial residence on the sole ground that a separate room had tobe given to the appellant and the respondent. Quoting from the evidenceof the respondent, the Court below came to the conclusion as a matter offact that the respondent was always ready and willing to live with herhusband, the appellant herein. In fact, in Ex.R3, in reply to the notice,the respondent had expressed her willingness to join the appellant andthat she requested the counsel to advise the appellant to take therespondent from her house to return to her matrimonial house and that shewas waiting for his arrival. The Court below also found that theallegation of rude behaviour from the respondent's father was not provedby any evidence. The Court below held that the demand by the respondentfor a separate room at night was genuine and true. Referring to theevidence given and allegation not thus proved, the Court below came to theconclusion that the appellant had not made out a case on the allegation ofcruelty to grant the prayer for divorce and consequently, the petition https://hcservices.ecourts.gov.in/hcservices/ under Section 13(1)(ia) of the Hindu Marriage Act was rejected. Asregards the prayer under Section 10 of the Hindu Marriage Act for judicialseparation, the Court below noted that the effect of Section 10 was merelya suspension of active marital life. When the appellant had not provedhis case on the allegation of cruelty and when the respondent hadexpressed her willingness to join the appellant any time, the Court belowrejected the prayer as totally misconceived. Thus, the alternative prayerwas also dismissed. 10. Aggrieved of these, the appellant has come on appeal before thisCourt, contending that the Court below erred in not properly adverting tothe allegation on torture and cruelty by the respondent herein. He alsoquestioned the conduct of the respondent in insisting on the appellant tomove to Arakkonam to set up a residence, which the Court below had wronglyinferred as one with good intention of the respondent to live with herhusband. He submitted that the decision of the Court was on mereconjectures and surmises. He impressed on the misbehaviour of therespondent and her father. He also stated that it was not possible forthe appellant herein to set up a separate family, and knowing the factthat there was no place, the respondent constantly insisted to have aseparate residence. In the circumstances, he prayed for reversing theorder of the Court below and to grant the prayer for divorce. 11. We do not agree with the submission made by the learned counselfor the appellant herein. A perusal of the documents filed before theCourt below clearly show that right from the beginning, namely, from thestage of reply to the notice, the respondent had expressed her willingnessto join her husband and that her only grievance was that there was notenough space in the house to have privacy. In her evidence, she hadstated clearly that she had no animosity towards anybody in her husband'shouse. She also admitted that there was no cruelty from her husband orfrom other members of his family and that her only grievance was that shewas not taken to the quarters. She also admitted that he was kind to her.She also stated that when she visited the appellant's house on 7.10.1993to attend the Navarathiri Kolu, she was informed that they would makenecessary arrangement to build a separate room and arrange for privacy,and when she returned on 17.10.1993, she was not allowed to enter in,primarily for the reason that should she enter the house, she would insiston a comfortable stay there to assure privacy by providing a room. Aperusal of the evidence of the respondent show that she was verycategorical in her statement as regards her willingness to join herhusband. On the other hand, the refusal to take her back was only fromher husband. To quote the evidence:@U:k; eh';fs; nfl;ljpdhy; jhd; jfuhW Vw;gl;lJ/ U:k;fl;of;bfhLj;jhy; jhd; tUntd;. ,y;yhtpl;lhy; ehd; tukhl;nld;vd;W ehd; brhy;ytpy;iy/ E}W Kiw nghdhYk; E}W Kiwa[k;Juj;jptpl;lhh;fs;/ ehd; cs;ns jhd; ,Ug;ngd; vd;W gyhj;fhukhf https://hcservices.ecourts.gov.in/hcservices/ Kaw;rp vLj;njd;/ thlifjhuh; vd;id btspna J}f;fpnghl;Ltpl;lhh;/ @ 12. Considering the willingness expressed by the respondent to livewith the appellant herein even at the time of giving evidence before theCourt, we do not find any merit in the submission made by the appellantherein. On the other hand, the evidence of P.W.1, the appellant herein,leads one nowhere on the allegation of cruelty. He did not deny inevidence that there were tenants in the house. He denied that therespondent and her parents met the Principal and others who were workingalong with the appellant herein. It may be noted that except for theallegations in the petition, the evidence let in did not substantiate anyone of them, including the one on cruelty. There are absolutely nomaterials to support the case of the appellant herein. As rightly foundby the Court below, P.W.3 is none else than the uncle of the appellantherein. He stated that since the respondent stayed in her parents' house,they did not do anything. Considering the fact that the evidence ofP.W.1, or for that matter even the evidence of P.Ws.2, 3 and 4, containnothing to substantiate even to a small degree the allegations on crueltyor on the question of desertion, we do not find any merit in the appeal todisturb the order of the Court below. The evidence of P.W.1 is verycategorical in her desire and willingness to join her husband. In thecircumstances, we reject the plea of the appellant herein and therebyconfirm the order of the Court below.13. It is seen that during the pendency of the appeal, the matter wasreferred to the Tamil Nadu Mediation and Conciliation Centre to have anamicable settlement in this family matter. Considering the fact that boththe parties could not arrive at a settlement, the Tamil Nadu Mediation andConciliation Centre, sent the matter back to this Court for a decision.In the light of these facts noted above, we do not find any reason toaccept the contentions of the appellant herein. Accordingly, the appealstands dismissed. There will, however, be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarksv https://hcservices.ecourts.gov.in/hcservices/ To:1. The Presiding Officer,Family Court, Chennai.2. The Section Officer,E.R.Section, High Court, Madras.1 cc To M/s.R.Vijaya, Advocate, SR.18372.C.M.A.No.1332 of 2000 KG(CO)RVL 15.05.2007