S.N.Sureshbabu v. Latha

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.06.2011CORAMThe Honourable Mr. Justice ELIPE DHARMA RAOandThe Honourable Mr. Justice M. VENUGOPALC.M.A.No.3127 of 2009S.N.Sureshbabu..Appellant/Petitionervs.Latha..Respondent/RespondentPRAYER: Appeal filed under Section 19 of the Family Courts Act, 1984praying for the relief stated therein.-----For appellant:Mr.V.JagannathanFor respondent :Mrs.A.Arulmozhi.-----J U D G M E N T(Judgment of the Court was delivered by M. VENUGOPAL,J.)The Appellant/Husband has filed the present civil miscellaneousappeal as against the order dated 24.7.2009 in O.P.No.2175 of 2004 onthe file of the learned II Additional Judge, Family Court, Chennai.2. The marriage between Appellant/Husband and theRespondent/Wife took place on 28.2.1996 at Nalavazhvu Kalyana Mandapam,No.81, Avvai Shanmugam Salai, Lloyds Road, Chennai-14, according toHindu Rites and Customs. After marriage, both of them lived togetherin Appellant/Husband's house. As a result of the wedlock, a femalechild, viz., Kavitha @ Jajol was born to them on 21.1.1997. Afterdeliverance of the child, the relationship with the Respondent/Wife wasnot cordial. According to the Appellant/Husband, the Respondent/Wifeused to pick up quarrels and threaten him to live in a separate house.The Respondent/Wife shifted her house to No.7, Nehru Nagar IV Street, https://hcservices.ecourts.gov.in/hcservices/ Cholapuram, Ambattur.3. In the O.P.No.2175 of 2004 filed by the Appellant/Husbandunder Section 13(1)(i), (ia) and (ib) of the Hindu Marriage Act seekingDivorce against the Respondent/Wife on the ground of cruelty, he hasmentioned that his wife was having illicit intimacy with one Muthu.Admittedly, the said Muthu was not impleaded as a party to theproceedings in the Original Petition, to prove the allegation ofadultery.4. It is the case of the Appellant/Husband that one day, hehad seen his wife, viz., the respondent herein with the said Muthu in acompromising position; that the Respondent/Wife went to her parentshouse without his knowledge and after panchayat, they lived together inAmbattur for about a month. Thereafter, on 9.7.1999, theRespondent/wife's brother assaulted the Appellant/Husband at 9 a.m. andthe appellant/Husband lodged a complaint against him in D.1 TriplicanePolice Station. On the same day evening, the Respondent/Wife lodged acomplaint against the Appellant/Husband and his parents in W.3 AllWomen Police Station, Thousand Lights and during enquiry, the policeofficials advised the parties to live together, but till date,according to the Appellant/Husband, the Respondent/Wife had notreturned back to the matrimonial home. 5. It is the specific case of the Appellant/Husband that theRespondent/Wife deserted him on 6.7.1999. Also, the Appellant/Husband,in O.P.No.2175 of 2004, has pleaded that the Respondent/Wife ill-treated him by using filthy and abusive language. She had alsothreatened him to commit suicide day by day and because of the abovesaid activities, it caused mental agony, disgrace, dejection anddisappointment to his life. Therefore, he had filed the petition fordivorce on the ground of cruelty, adultery and Desertion. 6. Per contra, the Respondent/Wife had denied the allegationsmade against her by the Appellant/Husband, in her counter. It is thecategorical denial of the Respondent/Wife that she had intimacy withone Muthu, who was the owner of the house, where the parties residedtogether at Ambattur. According to the Respondent/Wife, she knew thesaid Muthu only as a house owner and she was having cordial friendshipwith the house owner's family. It is the plea of the Respondent/Wifethat misunderstanding between her Husband and herself has arisen due tothe suspicious nature of the Appellant/Husband.7. During trial, the Appellant/Husband examined himself asP.W.1, and Ex.P.1 Marriage Invitation was marked on his behalf. Onthe other hand, the Respondent/Wife examined herself as R.W.1 and nodocuments were marked on her side. 8. The trial court, on appreciation of the oral and documentary https://hcservices.ecourts.gov.in/hcservices/ evidence let in by the parties, had given a categorical finding thatthe Appellant/Husband had not proved his allegation that theRespondent/Wife was living in adultery, committed cruelty and desertionand accordingly, held that the Appellant/Husband is not entitled to getthe relief of Divorce as prayed for in his Original Petition andconsequently dismissed the Original Petition.9. Though the Appellant/Husband has filed the present appealassailing the order of the trial court passed in O.P.No.2175 of 2004thereby dismissing his petition, it is to be pointed out that when anallegation of cruelty, adultery and desertion having been made againstthe Respondent/Wife, it is the duty of the Appellant/Husband to provethe same before the Court of law. 10. The onus of proving adultery in a matrimonial matter is onthe person who makes the allegation. Mere suspicion is not enough.There ought to be circumstances amounting to proof that opportunitiescould be used such as association of parties was clear that adulterymight reasonably be assumed as the result of an opportunity for anoccurrence as per the decision reported in Sachindranath Chatterjee v.Smt.Nilima Chatterjee [AIR 1970 Cal. 38 {DB}].11. In the present case, when the Appellant/Husband has not beenin a position to prove the allegations of cruelty, adultery anddesertion, then making such sort of allegation against theRespondent/Wife will amount only to cruelty upon the Wife. Therefore,the proper person, who is aggrieved against the act of cruelty made bythe Husband, is the Respondent/Wife. In the present case, theRespondent/Wife has not resorted to filing any Original Petition,seeking appropriate relief, in the manner known to law. On the otherhand, it is only the Appellant/Husband, who had filed the petition onthe ground of cruelty, adultery and desertion. 12.In law, the mental cruelty should be of such a kind that theparties cannot reasonably be expected to live together. It is notessential that the mental cruelty is such as to cause injury to thehealth of the petitioner. While coming to the such conclusion a Courtof law is required to take into account the social status, educationallevel of the parties, the Society they move, the possibility orotherwise of the parties ever living together in case they are alreadyliving separately and all other relevant facts and circumstances.13. In short, on going through the order passed by the trialCourt in O.P.No.2175 of 2004, we are of the considered view that theAppellant/Petitioner/Husband has not made out a case as alleged by himin his O.P.No.2175 of 2004 amounting to cruelty, adultery and desertionand the allegations made against the Respondent/Wife are notsubstantiated by him in any manner. Therefore, we are left with no option but to dismiss the appeal thereby confirming the order https://hcservices.ecourts.gov.in/hcservices/ of the trial court in O.P.No.2175 of 2004 dated 24.7.2009. 14. Looking at from any angle, the Civil Miscellaneous Appealis devoid of merits. Resultantly, the Civil Miscellaneous Appeal isdismissed with costs throughout. The Appellant/Husband is directedto pay a sum of Rs.25,000/- towards costs to the Respondent/Wife,within two weeks from the date of receipt of a copy of this order,failing which, it is open to the Respondent/Wife to take necessarysteps to recover the costs from the Appellant/Husband in the mannerknown to law. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrargs. .ToThe II Additional Principal Judge, Family Court, Chennai.+1cc to Mr.V.Jagannathan, Advocate Sr 35857+1cc to M/s.S.Arulmozhi, Advocate Sr 35795CK(CO)km/6.7.CMA NO.3127 of 2009