T.S.Malathi v. B.Arulmurugan

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.06.2011CORAMThe Honourable Mr. Justice ELIPE DHARMA RAOandThe Honourable Mr. Justice M. VENUGOPALC.M.A.Nos.1742 and 1743 of 2010T.S.Malathi..Appellant in both CMAs/ Petitioner in O.P.No.2162/07 and Respondent in O.P.No.185/08.vs.B.Arulmurugan..Respondent in both CMAs/ Respondent in O.P.No.,2162/07 and Petitioner in O.P.No.185/08.PRAYER: Appeals filed under Section 19 of the Family Courts Act, 1984praying for the relief stated therein.CMA.1742/2010:- & 1743/2010:-against the Judgment and Decree dated 16.6.2009 passed inO.P.No.2162/07 & O.P.No.185/08 by the II Additional Family Court,Chennai.For appellant:Mr.J.SudhakaranFor respondent :No appearance.J U D G M E N T(Judgment of the Court was delivered by M. VENUGOPAL,J.)Both the civil miscellaneous appeals are preferred against thecommon order passed in O.P.No.2162 of 2007 and O.P.No.185 of 2008dated 16.6.2009 on the file of the II Additional Principal Judge,Family Court, Chennai.2. O.P.No.2162 of 2007 was filed by the Appellant/Wife seekingdissolution of marriage on the ground of cruelty as per Section 13[1][ia] of The Hindu Marriage Act, 1955 and O.P.No.185 of 2008 wasfiled by the Respondent/Husband for restitution of conjugal rightsunder Section 9 of The Hindu Marriage Act, 1955. https://hcservices.ecourts.gov.in/hcservices/

3. The appellant and respondent herein are respectively thewife and husband. The marriage between the parties took place on12.7.2006 at SPS Thirumanamandapam, Saidapet, Chennai. It was anarranged marriage. After marriage, the Appellant/Wife and theRespondent/Husband lived together at Villivakkam in Chennai in aprivate rented house on paying a monthly rent of Rs.5,000/-. TheAppellant/Wife is a M.Com., Post Graduate and the Respondent/Husbandis a Civil Engineer. The appellant's parents gave 50 sovereigns ofjewels, besides payment of Rs.10,000/= for dress at the time ofmarriage and also gave all household articles. From the verybeginning of the marriage, the Respondent/Husband was behavingindifferently and that his attitude towards the appellant was verycruel. The Respondent/Husband was not in a position to cohabitatewith the Appellant/Wife. Therefore, the Respondent/Husband had goneto the extent of harassing his wife, viz., the appellant. TheRespondent/Husband has been behaving like a Hysteria patient. Everynight, the Respondent/Husband used to beat the Appellant/Wife andwould not allow her to sleep peacefully. However, in order tomaintain a harmony in the family, the Appellant/Wife adjusting allthe respondent's ill-treatments under the fond hope that he wouldchange his attitude. When the appellant reported about the ill-treatment meted out to her and also his behaviour towards her, to therespondent's father, grandmother, brother and sister, they all keptsilent. On 10.3.2007, the Respondent/Husband had driven theAppellant/Wife out of the matrimonial home stating that he did notwant to live with her. Thereafter, the appellant informed herparents about the cruel behaviour and the physical torture given toher. On 21.4.2007, when the Appellant/Wife and her parents went tothe respondent's place at Cheyyar, in a Panchayat held by therespondent's relatives, especially one Babu, the Chairman of thePanchayat Board, the Respondent/Husband told that he would giveconsent divorce so that she can live peacefully. Though thehousehold articles given by the appellant's parents were returned tothem, the Maruti Car along with RC book standing in her name was notreturned to her. Subsequently, the wife filed O.P.No.2162 of 2007for dissolution of marriage on the ground of cruelty. As a counterlitigation, on the other hand, the Respondent/Husband filedO.P.No.185 of 2008 for restitution of conjugal rights under Section 9of the Hindu Marriage Act.4. During joint trial, the Appellant/Wife examined herself asP.W.1, and Exs.P.1 to P.4 were marked on her behalf. On the otherhand, the Respondent/Husband examined himself as R.W.1, and Exs.R.1and R.2 were marked on his side. 5. The trial court, on appreciation of the oral and documentaryevidence let in by the parties, dismissed the Original PetitionNo.2162 of 2007 filed by the Appellant/Wife seeking divorce andallowed the Original Petition No.185 of 2008 filed by the https://hcservices.ecourts.gov.in/hcservices/ Respondent/Husband seeking restitution of conjugal rights, therebydirecting the Appellant/Wife to restore the husband all the comfortsand bliss of married life immediately. Feeling aggrieved, the wifehas preferred the above appeals.6. Heard the learned counsel for the Appellant/Wife. Thoughnotice was served on the respondent as early as on 23.10.2010, he hasnot chosen to either engage a counsel on his behalf or appeared inperson to contest the matter. Therefore, we are left with no optionbut to pass the following order on merits of the matter.7. P.W.1/wife [the appellant in both the appeals], in herevidence, has stated that from the very beginning, theRespondent/Husband was behaving indifferently and his attitudetowards her was very cruel. It is also her evidence that the husbandused to lock the house from outside by keeping her inside the houseand further the husband was not in a position to cohabitate with her.According to the Appellant, this defect on the part of theRespondent/Husband had made him to go to the extent of harassing herand behaving like a Hysteria patient.8. The sum and substance of the evidence of P.W.1 is that shehad lost mental peace since she had to live in turmoil and because ofher husband's incapacity to cohabitate with her, he used to hit hishead on the walls and also create terror. This evidence adduced onbehalf of the Appellant/wife has not been specifically denied by theRespondent/Husband in his evidence as R.W.1. However, he hasgenerally denied the allegations made by the Appellant/Wife.9. The evidence of R.W.1 [Respondent/Husband] is to the effectthat the Appellant/Wife filed a petition for divorce with falseallegations and cooked up stories and that the wife has failed toprove the case of allegation of cruelty. In fact, R.W.1, in hisevidence, has denied the allegation that he has locked her insideand, according to him, even if he has locked, it shows hispossessiveness, care and affection and responsibility. Further more,the wife is having another house key and she used to lock and gowhenever she has any outside work. He has also denied thatallegation that he made an attempt to strangulate her. 10. The very fact that the husband, in his evidence, has goneto the extent of mentioning that he has locked his wife insidebecause of his possessiveness, care, affection and responsibility,would clearly indicate that he has not given the wife the enoughfreedom to live in a free, cool and calm atmosphere. However, thetrial court, on wrong appreciation of the oral and documentaryevidence, has rejected the petition filed by the Appellant/Wifeseeking divorce and directed the Appellant/Wife to restore conjugalbliss to the husband and resultantly allowing Section 9 petition forRestitution of Conjugal Rights. https://hcservices.ecourts.gov.in/hcservices/

11. The fact that the Respondent/Husband, in his evidence, hascandidly admitted that he has locked the house keeping his wifeinside the house and that would only show his possessiveness, careand affection and responsibility are all factors which wouldunequivocally and unerringly point out that the husband is at thewrong end and his inhuman act would amount to cruelty. Further, thefact remains that the Respondent/Husband has not specifically deniedabout the allegation of the Appellant/Wife about his incapacity forcohabitation with her. Though abundant evidence was available onrecord to show there was cruelty of wife at the hands of the husband,the conclusion arrived at by the trial court that the wife has failedto prove the cruelty and the said acts of the Respondent/Husband arenormal wear and tear of the married life, cannot be accepted by thisCourt. Hence, the said conclusion arrived at by the trial court willnot stand a moment's scrutiny in the eye of law and therefore, we setaside the said observation of the trial court in this regard.12. Even a single instance of cruelty is sufficient to enablethe wife to obtain the relief of Divorce. The husband has not deniedthe allegation made by the wife that he has not been in a position tocohabitate with her. When a serious allegation of this nature hasbeen made against the Respondent/Husband, he has not denied the samein his evidence. Conversely, the fact that he has admitted in hisevidence that he has locked her inside and even if he has done so, itis only on account of his possessiveness, care and affection andresponsibility, is clearly an adverse circumstance, which goesagainst the case of the Respondent/Husband. 13. It is to be borne in mind that in the absence of a positiveact of cruelty, a party is not entitled to obtain a decree forDivorce as per the decision reported in 97 CWN 747 [Sankar Prasad Palvs. Sabitta Pal].14. As far as the present case is concerned, we are of theconsidered view that the Appellant/Wife has proved cruelty againstthe Respondent/Husband. The evidence of the Respondent/Husband asR.W.1 in the present case clearly goes to show that he is the wrongdoer and he has committed the act of cruelty to the wife by lockingher inside the house, etc. and, on that basis, we have no hesitationto hold that the Appellant/Wife is entitled to the relief of Divorceas prayed for by her in O.P.No.2162 of 2007. Consequently, since theRespondent/Husband has committed the act of cruelty on the wife,there is no possibility for the wife to live with the husband. Inthe present case, the situation is that the wronged party cannotreasonably be required to put up with the other party. Added further,the husband has also not been in a position to give matrimonial blissby means of cohabitation with the Appellant/Wife. On that countalso, there are laches on the side of the husband and therefore, we https://hcservices.ecourts.gov.in/hcservices/ are of the considered view that the petition filed by theRespondent/Husband for restitution of conjugal rights is liable to bedismissed and it is accordingly dismissed. Therefore, as alreadyheld by this Court, the Appellant/Wife is entitled to a decree ofDivorce. The common order passed by the trial court in O.P.No.2162of 2007 and O.P.No.185 of 2008 is set aside. The divorce, as prayedfor by the Appellant/Wife in O.P.No.2162 of 2007, is granted.Consequently, the Original Petition No.185 of 2008 filed by theRespondent/Husband, seeking Restitution of Conjugal Rights, isdismissed. Accordingly, both the civil miscellaneous appeals areallowed. There would be no order to costs. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrargs.[ToThe II Additional Principal Judge, Family Court, Chennai.2 cc to Mr. J.Sudhakaran, Advocate, Sr.No.34801, 34802C.M.A.Nos.1742 and 1743 of 2010pkb(co)pmk.23.6.2011