K.Chandrasekar v. Ramani

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 11.01.2012C O R A MTHE HONOURABLE MR.JUSTICE K.MOHAN RAMANDTHE HONOURABLE MR.JUSTICE R.KARUPPIAHCivil Miscellaneous Appeal Nos.1946 & 1947 of 2008and M.P.No.1 of 2008K.Chandrasekar... Appellant in both CMAs-Vs.-1. Ramani... R-1 in CMA No.1946 of 2008 & sole respondent in CMA No.1947 /20082. Pudhiaraja... R-2 in CMA No.1946 of 2008Prayer :- Civil Miscellaneous Appeals filed under Section 19 of theFamily Courts Act 1984 against the judgment and decree, dated19.03.2008, passed in F.C.O.P.Nos.258 of 2002 and 115 of 2002,respectively, on the file of the Family Court, Salem.For Appellant in both CMAs: Mr. M.V.VenkataseshanFor Respondents in both CMAs: Mr. K.SelvarajC O M M O N J U D G M E N T(JUDGMENT OF THE COURT WASDELIVERED BY JUSTICE K.MOHAN RAM)The appellant in the above appeals is the husband of the firstrespondent in CMA No.1946 of 2008 and sole respondent in CMA No.1947of 2008 / wife. For the sake of convenience, the first respondentwill be referred to as wife in these appeals. 2. The appellant filed FCOP No.258 of 2002 before the FamilyCourt at Salem, seeking a decree for divorce on the ground that thefirst respondent has committed acts which amounted to mental crueltyand she is guilty of adultery as she has developed illicit intimacywith the second respondent. The first respondent / wife filed FCOPNo.115 of 2002 before the same Court under Section 9 of the HinduMarriage Act for Restitution of Conjugal Rights. Both the petitionswere tried together and on a consideration of the evidence adduced bythe parties, the Family Court dismissed the Petition for Divorcefiled by the appellant / husband and allowed the Petition forRestitution of Conjugal Rights filed by the first respondent / wife.Being aggrieved by that, the appellant / husband has filed the aboveappeals. https://hcservices.ecourts.gov.in/hcservices/

3. The case of the appellant, as pleaded by him in his divorcepetition, is as follows:-(i) The marriage between the appellant and the first respondentwas performed according to Hindu Rites on 03.03.1995 at Attur atSalem District and the same was also registered on 21.03.1995 withthe Sub Registrar, Adyar, Chennai. The first respondent wanted to beindependent and she never displayed a tenancy to be a dutiful wife.Out of a wedlock, a girl child was born on 18.01.1996. When theappellant was on official visit for USA, he took the first respondentto USA, in January 1997. The appellant wanted to take his father whois a widower and an acute diabetic patient for two years, but thesame was resisted by the first respondent and she was mis-behavingthroughout his stay in USA.(ii) During their stay in USA, the appellant suspected that thefirst respondent had developed some illicit intimacy with herneighbour by name Nagesh. There were several instances to doubtabout her moral conduct and character, which resulted in her becomingpregnant. When the appellant grew suspicious and in order to give abenefit of doubt to her, he allowed her to undergo the abortion. InJanuary 1999, both of them returned to Hyderabad, where the appellanthad to continue his job with C.M.C. In June 2000, the appellant gottransferred to Chennai and the first respondent got a teaching job inSt.Mary's School, Kottur in Chennai. The first respondent developedillicit intimacy with the second respondent. On 17.02.2001 the firstrespondent phoned up the appellant to bring the keys of the school'slaboratory, which she forgot to take from the house. When theappellant was looking for the said keys in her hand bag, he cameacross a greeting card, which was nothing, but a love letter, writtenon 26.09.2000 by the second respondent to the first respondent. Whenthe first respondent was questioned, she told him that she hadscolded the second respondent.(iii) On August 18, 2001, the first respondent informed theappellant that the second respondent was appreciative andaffectionate to her and admitted that she had also written letters tothe second respondent and she informed him that the relationshipbetween her and the second respondent started from the first week ofJune 2000. The appellant felt that the illicit and illegitimaterelationship between the first and second respondents is the cause ofthe first respondent becoming pregnant and a child was also bornthrough them on 18.04.2001 whose parentage is in doubt. The undueintimacy coupled with an opportunity between the respondents led theappellant to conclude that the first respondent had been living inadultery and that has become impossible for the appellant to livewith the first respondent. Because of her immoral character, thefirst respondent had no other option except to leave the matrimonialhome on 27.08.2001. Subsequently, on 27.10.2001, the first respondentcame along with her parents and relatives to the appellant's houseand had taken away her educational certificates, jewels and cloths inhis absence. The appellant had not condoned the acts and mis-deedsof the first respondent.4. The first respondent contested the petition inter-aliacontending as follows:- https://hcservices.ecourts.gov.in/hcservices/ (i) As a dutiful Hindu Tamil Lady, she discharged all her dutiesas a wife and daughter-in-law. Inspite of receiving huge dowry, thedetails of which have been set out in the counter statement, theappellant and his father were not satisfied with the same and theykeep on harassing and ill-treating her without showing her any mercyby physically beating and abusing her with filthy language. Both ofthem demanded more money and jewels. As a dutiful wife she toleratedall the harassments and ill-treatments of the appellant and hisfather. (ii) At USA, she was harassed and ill-treated with all kinds ofknown and unknown cruelties. At USA, the appellant behaved in astrange manner and used to bring all his friends to home and used toconsume liquor with them and make fun of the first respondent infront of his friends. She never objected the appellant to bring hisfather to USA. The alleged allegation of immorality attributed bythe appellant to the first respondent has been specifically denied.It is the case of the first respondent that the false allegation ofimmorality at USA has been made only for the purpose of the case.The abortion at USA was another harassment meted out to her. Theappellant forced her to undergo abortion, as the appellant felt thatit will cost more to take care of the child. As the contract periodwas over, both of them returned to India in January 1999.(iii) The alleged relationship between the first and secondrespondents is specifically denied. The said false allegations havebeen invented by the appellant only for the purpose of the case.Even after the birth of the child on 18.04.2001, the first respondentwas ill-treated by the appellant and his father. In June 2001, theappellant and his father had beaten the first respondent severely anddriven her out with the children to bring a sum of Rs.50,000/- andafter two days, the parents of the first respondent took her back tothe appellant's house and gave Rs.10,000/- and left her there. Eventhereafter she was badly treated demanding more dowry. As the firstrespondent refused to get more money from her father, the appellant'sfather poured kerosene on her and tried to set fire by throwing alighted camphor on her, but because of the timely intervention of thechild, she was saved. All the efforts taken by the first respondent,her parents and elders to pacify the appellant and his father did notyield any result. The first respondent is ready to forget all theill-treatment of the appellant and his father and ready to live withthe appellant considering the future of the children. On theaforesaid contentions, the first respondent sought for the dismissalof the petition for divorce.5. The averments and allegations made in the petition filed bythe first respondent for Restitution of Conjugal Rights is therepetition of the averments in her counter statement filed in theDivorce Petition. Similarly, the averments and allegations containedin the counter statement filed in the Restitution Petition arenothing but the repetition of the averments and allegations made inthe Divorce petition and therefore, the same are not being repeatedagain. https://hcservices.ecourts.gov.in/hcservices/

6. Before the Family Court, on the side of the appellant, he wasexamined as P.W.1 and Exs.P-1 to P-3 have been marked. On the sideof the first respondent, she was examined as R.W.1 and she has notproduced any documentary evidence. The DNA Test Report was marked asEx.X-1. The second respondent remained exparte before the Courtbelow.7. On a consideration of the evidence adduced before the Courtbelow, the Court below came to the conclusion that the allegations ofmental cruelty and adultery alleged by the appellant against thefirst respondent have not been proved and accordingly, dismissed thepetition for divorce. The Court below has held that because of thesuspicious nature of the appellant and because of the harassmentmeted out to the first respondent she had to leave the matrimonialhouse and therefore there is justification for ordering Restitutionof Conjugal Rights and accordingly allowed the petition forRestitution of Conjugal Rights filed by the first respondent. Beingaggrieved by the same, the husband has filed the above appeals.8. Heard the learned counsel on either side.9. Learned counsel for the appellant submitted that Ex.P-3,dated 26.09.2000 is the letter written by the second respondent tothe first respondent and the same was found inside the hand bag ofthe first respondent when searching for the keys of the school lab,which the first respondent wanted the appellant to bring to theschool as she had forgotten to take the handbag with her. He furthersubmitted that Ex.P-3 shows that it is nothing but a love letterwritten by the second respondent to the first respondent; the mannerin which the second respondent has written in Ex.P-3 will suggestthat both of them had illicit intimacy; when the appellantquestioned the first respondent she denied the illicit intimacy withthe second respondent, but these aspects have not been properlyconsidered by the Family Court; the Family Court has placed unduereliance on Ex.X-1-DNA report; the DNA report only establishes thefact that the biological father of the child is the appellant, butfrom that it cannot be concluded that there was no illicit intimacybetween the first and second respondents; the Court below is notright in coming to the conclusion that there was no illicit intimacybetween the respondents merely basing reliance on Ex.X-1. He furthersubmitted that even during her stay with the appellant in the USA,she had developed illicit intimacy with one Nagesh and she becamepregnant, but the child was aborted with the permission of theappellant as the appellant condoned the conduct of the firstrespondent; her conduct and character had not changed even aftercoming back to India.10. Learned counsel for the appellant further submitted that theallegation of illicit intimacy of the first respondent with Nageshwhile she was at USA and the intimacy between the respondents herein,though have been specifically alleged in the petition, the same havenot been denied by the first respondent in her counter statement andtherefore, it would amount to admission on her part. He furthersubmitted that the first respondent had made false and seriousallegations of dowry harassment against the appellant and his fatherwhich itself will amount to causing mental cruelty as the said https://hcservices.ecourts.gov.in/hcservices/ allegations have not been substantiated by acceptable evidence; theevidence of P.W.1 clearly shows that the first respondent had notdischarged her duties as a dutiful wife; the allegation of the firstrespondent that the the father of the appellant poured kerosene onher and tried to set her on fire by throwing a lighted camphor is anutter falsehood and the same has not been proved by acceptableevidence; the said allegation itself will amount to causing mentalcruelty; only as a counter blast, the first respondent had chosen tofile the application for Restitution of Conjugal Rights, but she hasno intention for cohabiting with the appellant and therefore, theCourt below is not right in ordering the Restitution of ConjugalRights. He further submitted that there is absolutely no evidencelet in by the first respondent to prove that she was abused and ill-treated by the appellant and his father; the conduct of the wife /the first respondent herein has caused irretrievable break down ofthe marriage and there is absolutely no possibility for them to livetogether and therefore the marriage is liable to be dissolved. Insupport of the said contentions, the learned counsel based relianceon the following decisions:-(i) 2011-4-L.W.428 (I.Subramanian v. C.Kuppammal);(ii) 2011-5-L.W.347 (S.Hymavathy v. S.Venkateswara Rao (DB);(iii) (1994) 1 Supreme Court Cases 337 (V.BHAGAT v. D.BHAGAT);(iv) (2009) 1 Supreme Court Cases 422 (SUMAN KAPUR v. SUDHIRKAPUR).11. Countering the said submissions, the learned counsel for thefirst respondent / wife submitted that even in his petition, theappellant has clearly stated that he had condoned the alleged act andillicit intimacy of the first respondent with one Nagesh andtherefore the same cannot be relied upon to seek divorce on thatground. He further submitted that Ex.P-3-letter written by thesecond respondent to the first respondent is dated 26.09.2000 and theappellant got Ex.P-3-letter, dated 17.02.2001, from the handbag ofthe first respondent; the second child was born on 18.04.2001; ithas been specifically stated by the appellant in the petition thatfrom the language used in Ex.P-3 letter, he suspected that there wasillicit intimacy with the first respondent and the second respondentand only through the second respondent she became pregnant and thesecond child was born on 18.04.2001; merely because Ex.P-3 letterhad been written by the second respondent to the first respondent andwhich letter contain inappropriate wordings, it cannot be concludedthat there was illicit intimacy with the first and secondrespondents; the Court below has rightly pointed out that from theletter written by the second respondent to the first respondent,illicit intimacy between them cannot be inferred; the said reasoningof the Court below cannot be faulted with. He further submitted thatexcept the allegations of adultery, there is no specific acts eitheralleged with material particulars or proved before the Court whichamounted to mental cruelty and therefore, the court below is right indismissing the petition for divorce and granting a decree forRestitution of Conjugal Rights; when the appellant had suspected thechastity of the first respondent and had even questioned thepaternity of the second child, the first respondent had reasonablecause to leave the matrimonial home, but she did not leave thematrimonial home on her own, but she was driven out of the https://hcservices.ecourts.gov.in/hcservices/ matrimonial home as she was not able to meet the demand for furtherdowry. He further submitted that the mere making of allegations inthe counter statement and in the evidence about the dowry demand andill-treatment of the first respondent by the appellant and his fatherwill not amount to causing mental cruelty to the appellant. Insupport of his contentions, the learned counsel based reliance on thefollowing decisions :-(i) AIR 1967 SUPREME COURT 581 (Smt. Chandra Mohini Srivastavav. Shri Avinash Prasad Srivastava and another);(ii) 2011 (6) CTC 35 (Malarvijy v. Kanthan).12. We have considered the aforesaid submissions made by thelearned counsel on either side and perused the materials available onrecord.13. A perusal of the averments contained in the divorce petitionfiled by the appellant and his evidence shows that the main ground onwhich the petition for divorce has been filed is the alleged adulterybetween the first respondent and the second respondent.14. As far as the prayer for divorce on the ground of mentalcruelty is concerned, the acts of mental cruelty have not been setout with material particulars. In the petition it is stated that thefirst respondent never displayed a tendency to be a dutiful wife;the amorous activity of the first respondent with the secondrespondent, which resulted in her begetting a child again was nothingshort of cruelty and mental torture lowering his reputation in theeyes of the public. Except the aforesaid allegations, no otherallegations are found in the petition as far as mental cruelty isconcerned. The first allegation that the first respondent did notdischarge her duty as a dutiful Hindu wife by itself is notsufficient to hold that the same will amount to mental cruelty.15. The contention of the learned counsel for the appellant thatthe allegations made by the first respondent in her counterstatement, in her petition for Restitution of Conjugal Rights and inher deposition regarding the alleged harassment and cruelty meted outto her on account of demand of dowry and the alleged attempt of thefather by the appellant to kill her by pouring kerosene on her andtried to set fire by throwing a lighted camphor on her and theintervention of the child saved her are all false and the saidallegations themselves will amount to mental cruelty. We are unableto countenance the said submission of the learned counsel. If demandfor more dowry had been made and due to that she was subjected toharassment and cruelty, the first respondent is entitled to state thesame in the counter statement filed in the divorce petition and inthe petition seeking Restitution of Conjugal Rights and in herevidence. Simply because except the evidence of the first respondent,there is no other corroborative evidence and the said allegationshave not been established, such allegations will not amount to mentalcruelty. As a defence, the first respondent has made the saidallegations and according to her, the allegations are true. https://hcservices.ecourts.gov.in/hcservices/

16. The decision reported in 2011-4-L.W.428 (referred to supra)(DB) (to which one of us (KMJ) was a party in deciding the appeal) isnot applicable to the facts of this case. In that case, the wife hadmade allegations against her husband that he had illicit intimacywith the servant maid and had started living with her house and onlybecause of that, she had to leave the matrimonial home, but the saidallegation was not proved. In that context, it has been held thatthe allegations of the adultery would amount to cruelty. In thiscase, the first respondent / wife has not made any such similarallegations against the appellant / husband and therefore thedecision is not applicable to the facts of this case.17. In the decision reported in 2009 (1) SCC 422 (referred tosupra), which is relied upon by the learned counsel for theappellant, it was found from the evidence that the wife wasinterested in her career only and she had neglected towardsmatrimonial obligations and the termination of pregnancy by the wifewas without consent or even the knowledge of her husband which was inthe nature of mental cruelty. Only in those circumstances, the Courtgranted the decree for divorce on the ground of mental cruelty andtherefore, the said decision is not applicable to the facts of thiscase.18. In the decision reported in (1994) 1 Supreme Court Cases 337(referred to supra) the husband was a practising advocate in DelhiHigh Court and Supreme Court. The wife made very serious allegationsagainst the husband. In that context, the Apex Court has held asfollows:-“Even so, allegations of 'paranoid disorder', 'mentalpatient', ''needs psychological treatment to make him act anormal person' etc. are there coupled with the statementthat the petitioner and all the members of his family arelunatics and that a streak of insanity runs through hisentire family. These assertions cannot but constitutemental cruelty of such a nature that the petitioner,situated as he is and in the context of several relevantcircumstances, cannot reasonably be asked to live with therespondent thereafter”.The Apex Court, in the said decision, has further observed thatmaking such allegations in the pleadings and putting such questionsto the husband while he is in the witness box is bound to cause himintense mental pain and anguish besides affecting his career andprofessional prospects. Only in the aforesaid facts andcircumstances of the case, the Apex Court has held that theallegations made in the pleadings and the cross-examinationconstituted mental cruelty on the husband, but the facts of this caseare totally different. In the very same decision, the Hon 'ble ApexCourt has pointed out that the mental cruelty has to be determined inthe facts and circumstances of the case and the accusations andallegations to be seen in the context in which made. If theaforesaid test is applied to the facts of this case, the allegationsmade by the wife, in this case, against her husband and father-in-lawcannot be said to be amounting to causing mental cruelty. Therefore,the said contention of the learned counsel for the appellant cannotbe countenanced. https://hcservices.ecourts.gov.in/hcservices/

19. In the decision reported in 2011-5-L.W.347 (referred tosupra) (to which one of us (KMJ) is a party in deciding the appeal),it has been held that if the allegations contained in the petitionare not specifically averted to and denied, under Order 8 Rule 5 CPC,it will amount to admission. But, in this case, a perusal of thecounter statement filed by the wife clearly shows that each andeveryone of the allegations made by the husband against the wife havebeen specifically averted to and denied, therefore, the said decisionis not applicable to the facts of this case.20. On the facts alleged and admitted in this case, it could beseen that though the appellant alleged illicit intimacy between thefirst respondent and one Nagesh while they were at USA and theallegations have been denied by the first respondent, the appellant,in the petition itself, has stated that he had condoned the act ofalleged adultery between the first respondent and Nagesh. Evenassuming for a moment that the said allegation is true when theappellant himself has condoned the said act and had lived with thefirst respondent for number of years thereafter, the same cannot bepleaded or relied upon to seek the dissolution of the marriage.21. It is pertinent to point out that the allegation of thealleged adultery and illicit intimacy of the first respondent withthe second respondent has stemmed out of the suspicion entertained bythe appellant from the wordings contained in Ex.P-3-letter written bythe second respondent to the first respondent. Except the saidletter-Ex.P-3, there is no other material, whatsoever, to entertaineven that suspicion. It is not the case of the appellant that he hadever seen the first respondent in the company of the secondrespondent.22. In this context, it is relevant to refer to the evidence ofP.W.1 himself. In his evidence, P.W.1 has deposed that he read Ex.P-3 letter in February 2001 and he kept the same with him andthereafter he read the same to his wife and thereafter before hiswife left him in June 2001 itself, at the request of his wife, theletter was torn and kept in the house. He has further deposed thatin February 2001, his wife / the first respondent took him to theschool and asked him to enquire the second respondent. The appellantmet the second respondent and enquired him, but the second respondenttold him that there was no illicit intimacy between him and the firstrespondent. The appellant has further deposed that the secondrespondent told him that the first respondent will not even come inhis bike. He has also admitted that he had not enquired regardingthe alleged illicit intimacy with the respondents with the others.He has further admitted that the first respondent denied any illicitintimacy with the second respondent and therefore, he did not enquirethe second respondent, which is contrary to what he has statedearlier.23. It is pertinent to point out that the appellant, in hisevidence, has admitted that there was sexual relationship between himand his wife / the first respondent till August 2001 and both of themgot separated on 27.08.2001. When it is the admitted case of theappellant that he saw Ex.P-3-letter, dated 17.02.2001 and the second https://hcservices.ecourts.gov.in/hcservices/ child was born on 18.04.2001 and in February 2001 itself, he hadenquired the second respondent at the instance of the firstrespondent and that he had disowned the paternity of the secondchild, it is un-understandable as to how he could have sexualrelationship with the first respondent. If really the appellant hadsuspected the first respondent for having illicit intimacy with thesecond respondent and he doubted the very paternity of the secondchild, he would not have had sexual relationship with the firstrespondent till August 2001. These circumstance itself makes itclear that the allegation of adultery has been levelled against thefirst respondent by the appellant only for the purpose of this case.24. Further, it has to be pointed out that as rightly contendedby the learned counsel for the first respondent from the mere letterwritten by the second respondent to the first respondent, which ismarked as Ex.P-3 and the contents thereof, it cannot be inferred thatthere was any illicit intimacy between the first and secondrespondents. 25. In the decision reported in AIR 1967 SUPREME COURT 581(referred to supra) the Apex Court, in similar circumstances, has inparagraph 9 held as follows:-“ 9. It is true that the appellant has denied receivingthose letters and has also denied that she ever sent anyletters to Chandra Prakash. One can understand this denialin the case of a person like the appellant who was facing apetition for divorce on the ground of adultery. But assumingthat those two letters were received by the appellant, thatdoes not in our opinion prove that there was any adulterybetween the appellant and Chandra Prakash in 1955. We haveread those letters and we must say that they are mostimproper and should not have been written by a person likeChandra Prakash who was married to the cousin of theappellant. But the first thing that strikes us is that themere fact that some male relation writes such letters to amarried woman, does not necessarily prove that there was anyillicit relationship between the writer of the letters andthe married woman who received them. The matter may havebeen different if any letters of the appellant written toChandra Prakash had been proved.”26. The aforesaid decision squarely applies to the facts of thiscase and therefore, the contention of the learned counsel for theappellant that Ex.P-3-letter and its contents itself will prove thatthere was illicit intimacy with the first respondent and the secondrespondent cannot be countenanced.27. As rightly pointed out by the Court below, the appellantseems to be a doubting Thomas and he was always suspecting thechastity and character of the first respondent right from the dayswhen they were living at USA and even after coming back to India.The allegations of illicit intimacy between the respondents hereinand the disowning of the paternity of the second child has stemmedout on his suspicion only and we are of the considered view thatthere is absolutely no material, whatsoever, to come to the https://hcservices.ecourts.gov.in/hcservices/ conclusion that the first respondent had committed any acts ofcruelty much less any mental cruelty. The allegations of adulteryalleged against the first respondent has not at all been proved andit has been made without any basis, whatsoever, just to tarnish theimage of the first respondent. We do not find any reason,whatsoever, to interfere with the judgments of the Court below.28. When admittedly the appellant had been making seriousallegations of adultery against the first respondent, the firstrespondent cannot be expected to live with the appellant bearing allsuch insults, but inspite of such baseless and serious allegationslevelled against her, the first respondent had expressed herwillingness to live with the appellant only in the interest of thechildren. We do not find any material reason whatsoever on recordwhich dis-entitles the first respondent from seeking Restitution ofConjugal Rights. Therefore, we do not find any reason to interferewith the judgment and decree of the Court below granting a decree forRestitution of Conjugal Rights.29. For the aforesaid reasons, the judgment and decree, dated19.03.2008, passed in FCOP Nos.258 of 2002 and 115 of 2002,respectively, on the file of the Family Court, Salem, are confirmedand the above Civil Miscellaneous Appeals stand dismissed with coststhroughout. Consequently, the connected MP is closed.Sd/Asst. Registrar/true copy/Sub Asst.RegistrarsrkToThe Judge, Family Court, Salem+ 2 ccs to Mr.K. Selvaraj, Sr.2859, 2860+ 2 ccs to Mr.M.V. Venkataseshan, Sr.2908,C.M.A.Nos.1946 & 1947 of 2008and M.P.No.1 of 2008 CK(CO)Eu 15.5.12..2012