CMA/1321/2000 of RANI Vs M.MOHAN on 5 December 2002

:JUDGMENT

(Judgment of the Court was made by P. Sathasivam, J.)

Aggrieved by the order of the Principal Family Court, Madras dated 14-06-2000made in F.C.O.P.No. 902 of 95, granting Divorce under Section 13(1) (i-a) ofthe Hindu Marriage Act, 1955, wife has filed the above appeal before thisCourt.

2. The respondent herein-husband filed F.C.O.P.No. 902/95 on the file of theFamily Court, Madras seeking dissolution of their marriage dated 02-03-94 by adecree of Divorce on the ground of cruelty under Section 13 (1) (i-a) of theHindu Marriage Act. In the petition it is stated that the marriage betweenthe petitioner and the respondent was performed on 2-3-94 at ParvathyRamaswamy Kalyana Mantapam, Anna Nagar, Madras-40 according to Hindu rites andceremonies. Subsequent to the marriage, they commenced the matrimonial lifeat No.36, Bashyam Reddy 2nd Street, Ottery, Madras-12. According to thehusband, on the very next day of the marriage her wife demanded a sum ofRs.1,000/- for purchase of a wrist watch for her sister. When he asked forreason, she insulted him by using filthy words. It is further stated that sheused to quarrel with him often and thereby causing mental agony. She did noteven cooperate with him not only in matrimonial matters, but also inhouse-hold affairs. She informed that she was very friendly with one Ramesh prior to the marriage and she openly said that she was very eager to marryhim. She did not even inform him the birth of a child. Even her parents didnot inform about the birth of the child either to him or to the elders of hisfamily. In the light of her attitude, her husband issued a notice on 29 -7-95through his advocate calling upon her to give consent for divorce. Though thenotice was duly received by her, she neither complied with the demand made inthe notice nor sent any reply. Hence the husband filed the petition fordivorce.

3. The wife filed a counter statement disputing various averments made by herhusband. Apart from denying all the averments, it is stated that she wrote 4letters to her husband, but he has not replied to the same and not taken anyeffort to take her back to the matrimonial home. When she visited her husband's house on 15-8-95 along with her parents, because of his attitude, theyreturned to the home. Even though she is eager to live with him, he has nottaken steps to take her and the child back.

4. Before the Family Court, the husband was examined as P.W.1 and marked 2letters, legal notice and acknowledgment as Exs. P1 and P-4. The wife wasexamined as R.W.1 and no document was marked by her. The learned PrincipalJudge of the Family Court, after considering all the materials, granted adecree for Divorce on the ground of cruelty under Section 13 (1) (i-a) of theHindu Marriage Act and dissolved the marriage solemnized on 02-03-94 atMadras. Questioning the said order, the respondent therein-wife has filed theabove appeal.

5. Heard the learned counsel for the appellant as well as respondent.

6. The only point for consideration in this appeal is whether the appellantherein/petitioner therein has made out a case for Divorce on the ground ofdesertion under Section 13 (1) (i-a) of the Hindu Marriage Act; and whetherthe Family Court is right in granting the decree for Divorce.

7. For convenience, we shall refer the parties as arrayed before the FamilyCourt. It is the case of the petitioner/husband that the marriage between thepetitioner and the respondent took place on 2-3-94 at Madras according toHindu rites and customs and it was an arranged marriage by the elders. Afemale child was also born to them and at the time of filing of the petition,she was aged about 5 years. He is living with the respondent along with his72 years old mother only for 80 days. He narrated in his petition as well asdeposed before the Court that on the next day of the marriage, the respondentdemanded a sum of Rs.1,000/- for purchasing a wrist watch for her sister andwhen he asked for the reason thereof, she insulted him by saying "You areunfit to be a man. Are you not ashamed". It is his specific case that therespondent has caused mental agony and cruelty to the petitioner. It is alsohis case that the respondent used to quarrel with him for trivial matters andnever used to cooperate with him for matrimonial matters and did not even takecare of cook food for the petitioner and his family members. The petitionerhas specifically alleged and also deposed before the Court that the respondentwent to the extent of saying that she did not like the marriage with thepetitioner and she divulged to the petitioner that she was forced to marry him and that the marriage was only an accident in her life. It is stated that sheopenly declared that she was friendly with one Ramesh prior to the marriageand in fact she was very eager to marry him. He further deposed that therespondent very often used to compare him with Ramesh and frequently statesthat in all respects he is inferior to the said Ramesh. After one month, whenhe pointed out that "this is the same day when our marriage was celebratedlast month", she remarked the petitioner "that was the saddest day in herlife" and further added that but for that marriage, she would have been happywith her friend Ramesh. With reference to the above specific averments, asrightly found by the Family Court, the appellant/wife has not deposed anythingin her evidence to disprove the incident as claimed by her husband, except herbald denial in the counter statement. In other words, she has not deposedanything in her evidence about the facts mentioned above by her husband toprove that she has not committed any such act of cruelty against him and hisfamily members and relatives.

8. It is the further case of the respondent herein that when he refused to leave his aged mother to come along with her and when the request wasdeclined, according to him, she time and again blackmailed him by saying thatshe would commit suicide by pouring kerosene on her and thereby making him toface the onslaught of criminal proceedings. Here again, as rightly observedby the Family Court, though she has stated in her counter that she has notmade any attempt to commit suicide, but in her evidence she has not denied herstatement or explain the same. We are satisfied that the respondent herein inhis petition and evidence has specifically stated that his wife threatened himthat she would commit suicide by pouring kerosene on her and thereby causedmental agony and cruelty to him.

9. It is also the grievance of the respondent herein that the appellant never

behaved like a dutiful wife at any time and on 1-9-94, she left thematrimonial home on her own accord without any intimation or prior permissionfrom the family members and took with her all the jewels presented at the timeof marriage by her parents for her delivery. It is also his grievance thateven after the birth of the child, neither the appellant nor her familymembers informed about the birth of a child. It is also his case that he wasnot allowed to visit her parent's house. However, it is the case of theappellant/wife that though she wrote a letter to the respondent herein on5-9-94 and thereafter four letters to him and again a letter on 8-9-9 4, asrightly observed by the Family Court, she has not produced copy of the saidletters or evidence in support of her claim.

10. The other relevant circumstance to be noted is that the respondent/husband has stated that due to ill-treatment and mental crueltycaused by the appellant-wife, he issued a legal notice on 29-7-95 which hasmarked as Ex.P-3 calling upon her to give her consent for Divorce. The saidlegal notice was acknowledged by her and the acknowledgment has been marked asEx.P-4. We have perused Ex.P-3 legal notice dated 29-7-95. As rightlystated, in this legal notice the respondent herein has given all particularsand details from the date of marriage till the date of separation of theappellant herein from the matrimonial home and the fact that he has requestedher to give consent for filing a petition for divorce by mutual consent before the Court. In spite of all those details and having acknowledged thenotice-Ex.P-3, it is not clear why the appellant herein did not send reply forthe same highlighting her stand. We have already referred to the fact thatEx.P-3 contains the entire facts of his case including the request of therespondent herein made to the appellant/wife to give consent for divorce.Inasmuch as the appellant has not given any reply even after receipt of thenotice, we are of the view that the respondent herein is right in presumingthat her wife is not interested in living with him to lead a normal happymarried life which necessitated him to file the petition for divorce on theground of cruelty. In the absence of any explanation for not sending reply,there is no reason to reject the case of the respondent herein as explained inEx.P-3. Likewise, though the appellant-wife has stated that the respondenthas visited her house along with his relative to kill her, except herstatement, the same has not been substantiated by examining any one of theelders who were present at that time. In the absence of examination of atleast one or two persons, the case of the appellant is liable to be rejected.

11. The other material to be considered is Exs.P-1 and P-2. Ex.P-1 is anundated letter written by the appellant to the respondent herein. Ex.P-2dated 12-7-94 is another letter written by the appellant to the respondentherein. At the request of the counsel for both parties, we have carefullyperused both these letters. A reading of Ex.P-1 shows that the appellant haswritten and abused the respondent herein in a derogatory manner in filthylanguage without giving respect to him. On the other hand, in Ex.P-2 dated12-7-94 in categorical terms she conveyed her intention to live separatelyfrom him and she also requested him to get a divorce from her through herrelatives or Court. Though the learned counsel appearing for the appellant bydrawing our attention to the initial in Exs. P-1 and P-2, has contended thatboth letters were not written by her but the same were created, concocted andforged by the husband to get divorce, after verifying the signature, initialetc., and also of the fact that the appellant herself admitted in her evidencethat she wrote 4 letters, as rightly observed by the Family Court, we aresatisfied that both Exs. P-1 and P-2 letters are valid documents, written bythe appellant herein. We have already referred to the fact that in Ex.P-2 theappellant has asked the respondent herein to give divorce. Another incidentto be noted is that if the appellant is really interested in living with herhusband, she need not have filed M.C.No. 350/96 claiming maintenance even on1-10-96. As per the orders of the Court, it is the case of the respondentherein that he has been paying maintenance at the rate of Rs.300/- per monthto the first petitioner therein and Rs.250/- per month to the secondpetitioner therein with effect from 1-5-97. As rightly observed by the FamilyCourt, if the appellant is really interested and ready and willing to livewith her husband, there is no need for her to claim maintenance. Taking noteof all the aspects, more particularly using filthy language against herhusband, and threatening him that she would commit suicide by pouringkerosene, we are of the view that these acts of the wife might haveundoubtedly caused cruelty and mental agony to the respondent herein. We havealready referred to the fact that the appellant herself conveyed herwillingness for divorce in Ex.P-2. Likewise, we have already referred to thefact that for the legal notice-Ex.P-3, wherein entire facts are narrated fordivorce, the appellant-wife did not send reply for the same, accordingly it is presumed that she is willing for divorce as requested in Ex.P-3. Further,even according to the Family Court, both the husband and wife are livingseparately for more than 6 years and their relationship had broken downirretrievably and there is no possibility of any reconciliation between them.Same position continues even after two years viz., after th e decree fordivorce. Therefore, we are of the view that the marriage between theappellant and the respondent was dead and there is no chance of beingretrieved. From the materials placed before the Family Court, we aresatisfied that the respondent herein has made out a case for divorce on theground of cruelty under Section 13 (1) (i-a) of the Hindu Marriage Act and thesame has been rightly granted by the Family Court. In the absence of anyother material, we do not find any ground for interference. On the otherhand, we are in agreement with the conclusion arrived at by the Family Court;consequently the appeal fails and the same is dismissed. No costs.C.M.P.12553/200 is also dismissed.

R.B.

Index:- YesInternet: Yes.

To:-

1) The Principal Family Court, Madras.2) The Section Officer, V.R Section, High Court, Madras.