MANGAYARKARASI versus M. YUVARAJ on 3 March 2020

1. Leave granted.

2. The appellant is before this Court assailing the judgment dated20.07.2018 passed by the High Court of Judicature at Madras in CMSANos.23 & 24 of 2016. The appellant is the wife of the respondent. Sincethe rank of parties was different in the various proceedings as both theparties had initiated proceedings against each other, for the sake ofconvenience and clarity the appellant herein would be referred to as‘wife’ and the respondent herein would be referred to as ‘husband’wherever the context so admits.

3. The husband initiated the petition under Section 13 of the HinduMarriage Act seeking dissolution of the marriage. The wife on the otherhand initiated the petition under Section 9 of the Hindu Marriage Actseeking restitution of conjugal rights. The respective petitions registeredas H.M.O.P No.13/2010 (old No.532/2007) and H.M.O.P No.27/2008were clubbed and the learned Subordinate Judge, Pollachi by the judgmentdated 26.11.2010 dismissed the petition filed by the husband and allowedthe petition filed by the wife. The husband claiming to be aggrieved bythe said judgment preferred the appeals in CMA No.90/2011 and 71/2011 before the Additional District & Sessions Judge, Coimbatore, namely,the First Appellate Court. The First Appellate Court having consideredthe matter, dismissed the appeals filed by the husband. The husband,therefore, filed the Second Appeal under Section 100 of the Code ofCivil Procedure before the High Court of Judicature at Madras in CMSANos.23 & 24 of 2016. The High Court has through the impugned judgmentdated 20.07.2018 allowed the appeals, set aside the order for restitutionof conjugal rights and dissolved the marriage between the parties herein.It is in that light the appellant-wife is before this Court in these appeals.

4. The undisputed position is that the marriage of the parties wassolemnised on 08.04.2005 which in fact was after the parties had fallenin love with each other. As per the averments, the wife is elder to thehusband by six to seven years. The parties also have a female child bornon 03.01.2007. During the subsistence of the marriage certain differencescropped up between the parties. The husband alleged that the wife wasof quarrelsome character and used filthy language in the presence ofrelatives and friends and also that she had gone to the college where the A

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Ahusband was employed and had used bad language in the presence ofthe students which had caused insult to him. The husband, therefore,claiming that he belongs to a respectable family and cannot toleratesuch behaviour of the wife got issued a legal notice dated 07.12.2006which was not responded to by the wife. The husband therefore filed apetition under Section 13 of Hindu Marriage Act in H.M.O.P No.65/B2007 seeking dissolution of marriage. The husband contends that thewife appeared before the Trial Court and on the assurances put forth byher of leading a normal married life the petition was not pressed further.The husband alleges that merely about five days thereafter the wifewent to the college and abused him and also left the marital home onC12.04.2007. In that background on the very allegations which had beenmade in the first instance, the petition seeking dissolution of marriage inH.M.O.P No.13/2010 (old No.532/2007) was filed.

5. The wife who appeared and filed objection statement disputedthe allegations of the husband. The factual aspects with regard to theDqualification of the husband at the time of the marriage and his employmentwere also disputed. It was contended by her that after marriage theyresided together at Sathiyamangalam up to the year 2005 and thereafterat Saravanampatti till December, 2006. It was contended that the distancebetween the hometown of the parents of the husband and the said placesreferred to is more than 120 kms and travelling the said distance wasEdifficult. Hence the allegation of insulting them is not true. Subsequentlywhen the relationship between the husband and his parents were cordialand were living together, it is claimed that the wife had behaved wellwith the relatives and the visitors. Hence the allegation about her rudebehaviour is disputed. In respect of the legal notice issued by the husbandFon 07.12.2006 it is contended that during the pregnancy, the husbandtold her that his parents are insisting on issuing the legal notice and thehusband did not mean what had been indicated therein. Within about 25days thereafter the wife had delivered a female child and even in respectof the earlier petition in H.M.O.P No.65/2007 she was made to appearand submit about her readiness to live with him which she had doneGunsuspectingly. The said case was also stated to be instigated by hisparents. In that light, the wife had denied the allegations and sought fordismissal of the petition.

6. In the petition filed by the wife under Section 9 of the HinduMarriage Act seeking for restitution of conjugal rights she had referredH

to the manner in which the marriage has taken place and had indicatedthat they are living separately without valid reasons and, therefore, soughtfor the relief. The husband having appeared filed the objection statementreferring to the parties belonging to different communities as also theage difference. The further averments made in the petition were denied.The husband also referred to the complaint filed by the wife before theNegamam Police Station in Crime No.401/2007 in which the husbandwas arrested by the police and was in judicial custody for seven days.In that light, it was contended that the marriage between the parties hadbroken down to a point of no return, hence sought for dismissal of thepetition.

7. The Trial Court framed the issues based on the rival contentions.The husband examined himself and the witnesses as PW1 to PW4 andexhibited the documents A1 to A5, while the wife examined herself andthe witnesses as RW1 to RW3 and exhibited the documents as R1 toR3. The Trial Court after referring to the evidence tendered, has dismissedthe petition. While doing so the Trial Court had referred in detail to theevidence that had been tendered and in that light insofar as the allegations,the Trial Court was of the opinion that the husband has not examinedany witnesses to prove that after 15 months of the marriage the quarrelstarted between them and that he had to shift about seven houses due toquarrelling nature of the wife with the neighbours. It was further observedthat from the witnesses who have been examined, the evidence do notrelate to the allegation that the wife had abused the husband in front ofthe students and the co-workers. In that light, the Trial Court noticedthat the allegation made by the husband as PW1 and the relatives whowere examined as witnesses (PW2 and PW3) had alleged that the wifehad lived a luxurious life at her parent’s house. In that light, the TrialCourt taking into consideration the manner in which the marriage betweenthe parties had taken place and also taking note that a female child wasborn from the wedlock on 03.01.2007 had formed the opinion that thepetition seeking divorce had been filed at the instigation of the parents ofthe husband and there was no real cause for granting the divorce.

8. The First Appellate Court while considering the appeals filedby the husband had taken note of the evidence which had been referredto before the Trial Court and in that light having reappreciated the matterhad upheld the judgment of the Trial Court.

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A9. In the Second Appeal filed before the High Court, it raised thefollowing substantial questions of law for consideration:

“1. Whether the courts below are correct and justified in failureto dissolve the marriage of the appellant and respondent on theground of mental cruelty (when particularly the alleged complaintBdated 24.11.2007 for dowry harassment lodged by the respondentagainst the appellant and her in-laws and the consequent arrestby the police would unquestionably constitutes cruelty as postulatedin section 13(1)(ia) of the Hindu Marriage Act?

2. Whether the judgments of the courts below in dismissing theCpetition for divorce overlooking the subsequent event regardingthe lodging of false criminal complaint by the respondent-wife fordowry harassment against the appellant and her in-laws aresustainable in law?

3. Whether the judgment of the courts below are correct andDjustified when particularly the criminal prosecution initiated inC.C.No.149 of 2008 on the file of the Judicial Magistrate No.2,Pollachi for dowry harassment is ended in Honorary acquittal?

4. Whether the judgment of the courts below are perverse?”

10. It is in that background, the High Court had arrived at theEconclusion that the criminal case filed by the wife, which was proceededin C.C. No.149/2008 alleging that the husband had demanded dowryand in the said proceedings when the allegation is found to be false forwant of evidence the same would be an act of inflicting mental crueltyas contemplated under Section13(1)(ia) of the Hindu Marriage Act andFin that light had allowed the appeal.

11. Heard Mr. S. Nandakumar, learned counsel for the appellant-wife, Mr. B. Ragunath, learned counsel for the respondent-husband andperused the appeals papers.

12. In the light of the contentions put forth by the learned counsel,Ga perusal of the papers would disclose that the petition for dissolution ofmarriage instituted by the husband was on the allegation that the behaviourof the wife was intemperate as she was quarrelsome with the neighbours,friends and with the visitors. It was alleged that she had also gone overto the place of employment of the husband and demeaned him in thepresence of the students and other co-workers. In respect of the saidH

allegations, the Trial Court having taken note of the evidence tenderedthrough PW1 to PW4 had arrived at the conclusion that the said evidencewas insufficient to prove the allegations which were made in the petition.A bare perusal of the judgment passed by the Trial Court would indicatethat the evidence available on record has been referred to extensivelyand a conclusion has been reached. The First Appellate Court has alsoreferred to the said evidence, reappreciated the same and has arrived atits conclusion. In such circumstance, in a proceeding of the present naturewhere the Trial Court has referred to the evidence and the First AppellateCourt being the last Court for reappreciation of the evidence hasundertaken the said exercise and had arrived at a concurrent decisionon the matter, the position of law is well settled that neither the HighCourt in the limited scope available to it in a Second Appeal under Section100 of the Civil Procedure Code is entitled to reappreciate the evidencenor this Court in the instant appeals is required to do so.

13. It is in that view, we have not once again referred to theevidence which was tendered before the Trial Court which hadaccordingly been appreciated by the Trial Court. In such situation theHigh Court had the limited scope for interference based on the substantialquestion of law. The substantial questions of law framed by the HighCourt has been extracted and noted in the course of this judgment. Atthe outset, the very perusal of the questions framed would disclose thatthe questions raised does not qualify as substantial questions of law whenthe manner in which the parties had proceeded before the Trial Court isnoticed. The questions framed in fact provides scope for re-appreciationof the evidence and not as substantial questions of law. As noticed, inthe instant facts the husband filed a petition at the first instance, seekingdissolution of marriage in H.M.O.P No.65/2007 and the same waspredicated on the allegation about the wife using filthy language in thepresence of the relatives and friends and also using such language in thepresence of the students of the husband. It is in that light, the husbandalleged cruelty and sought for dissolution of marriage on that ground. Itis no doubt true that the said petition which was initially filed was notpressed though the contentions of the parties in that regard is at variance,inasmuch as the husband contends that the petition was not pressed asthe wife had assured of appropriate behaviour henceforth, while thewife contends that the said proceedings had been initiated at the instigationof his parents and had accordingly not been pressed thereafter.

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A14. Be that as it may, though the subsequent petition was filed bythe husband in H.M.O.P No.13/2010 which was originally numbered asH.M.O.P No.532/2007, the same was also filed on the same set ofallegations. Further at that point in time the wife had also filed a petitionunder Section 9 of the Hindu Marriage Act. In that background, thoughsubsequently in the proceedings before the Trial Court a reference isBmade to the criminal proceedings, as on the date when the cause ofaction had arisen for the husband who initiated the proceedings seekingdissolution of the marriage, the criminal case filed against him was notthe basis whereby a ground was raised of causing mental cruelty byfiling such criminal complaint. If that be the position, a situation whichCwas not the basis for initiating the petition for dissolution of marriage andwhen that was also not an issue before the Trial Court so as to tenderevidence and a decision be taken, the High Court was not justified inraising the same as a substantial question of law and arriving at itsconclusion in that regard. A perusal of the judgment of the High Courtindicates that there is no reference whatsoever with regard to theDevidence based on which the dissolution of marriage had been sought,which had been declined by the Trial Court and the First Appellate Courtand whether such consideration had raised any substantial question oflaw. But the entire consideration has been by placing reliance on thejudgment which was rendered in the criminal proceedings and had grantedEthe dissolution of the marriage. The tenor of the substantial questions oflaw as framed in the instant case and decision taken on that basis ifapproved, it would lead to a situation that in every case if a criminal caseis filed by one of the parties to the marriage and the acquittal thereinwould have to be automatically treated as a ground for granting divorcewhich will be against the statutory provision.F

15. It cannot be in doubt that in an appropriate case theunsubstantiated allegation of dowry demand or such other allegation hasbeen made and the husband and his family members are exposed tocriminal litigation and ultimately if it is found that such allegation isunwarranted and without basis and if that act of the wife itself forms theGbasis for the husband to allege that mental cruelty has been inflicted onhim, certainly, in such circumstance if a petition for dissolution of marriageis filed on that ground and evidence is tendered before the original courtto allege mental cruelty it could well be appreciated for the purpose ofdissolving the marriage on that ground. However, in the present facts asHalready indicated, the situation is not so. Though a criminal complaint had been lodged by the wife and husband has been acquitted in the saidproceedings the basis on which the husband had approached the TrialCourt is not of alleging mental cruelty in that regard but with regard toher intemperate behaviour regarding which both the courts below onappreciation of the evidence had arrived at the conclusion that the samewas not proved. In that background, if the judgment of the High Court istaken into consideration, we are of the opinion that the High Court wasnot justified in its conclusion.

16. The learned counsel for the respondent however, contendedthat ever since the year 2007 the parties have been litigating and wereliving separately. In that situation it is contended that the marriage isirretrievably broken down and, therefore, the dissolution as granted bythe High Court is to be sustained. The learned counsel has relied on thedecisions in the case of Naveen Kohli vs. Neelu Kohli (2006) 4 SCC558, in the case of Sanghamitra Ghosh vs. Kajal Kumar Ghosh (2007)2 SCC 220 and in the case of Samar Ghosh vs. Jaya Ghosh (2007) 4SCC 511 to contend that in cases where there has been a long period ofcontinuous separation and the marriage becomes a fiction it would beappropriate to dissolve such marriage. On the position of law enunciatedit would not be necessary to advert in detail inasmuch as the decision todissolve the marriage apart from the grounds available, will have to betaken on case to case basis and there cannot be a strait jacket formula.This Court can in any event exercise the power under Article 142 of theConstitution of India in appropriate cases. However, in the instant facts,having given our thoughtful consideration to that aspect we notice thatthe parties hail from a conservative background where divorce isconsidered a taboo and further they have a female child born on03.01.2007 who is presently aged about 13 years. In a matter where thedifferences between the parties are not of such magnitude and is in thenature of the usual wear and tear of marital life, the future of the childand her marital prospects are also to be kept in view, and in suchcircumstance the dissolution of marriage merely because they have beenlitigating and they have been residing separately for quite some timewould not be justified in the present facts, more particularly when therestitution of conjugal rights was also considered simultaneously.

17. In that view, having arrived at the conclusion that the verynature of the substantial questions of law framed by the High Court isnot justified and the conclusion reached is also not sustainable, thejudgment of the High Court is liable to be set aside.

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1046SUPREME COURT REPORTS[2020] 2 S.C.R.

A18. In the result, the judgment dated 20.07.2018 passed in CMSANos. 23 & 24 of 2016 is set aside. The judgment dated 26.11.2010 passedin H.M.O.P Nos.13/2010 and H.M.O.P No.27/2008 and affirmed in CMANo.90/2011 and CMA No.71/2011 are restored. The Appeals areaccordingly allowed with no order as to costs.

B19. Pending applications if any, shall also stand disposed of.

Divya Pandey

Appeals allowed.

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