K. Rajdenran vs Poongothai

A. Selvam, J.—A wily and insidious husband as Appellant has challenged the order dated 11.08.2003 passed in CMA No. 3 of 2002 by

the District Court, Karur, wherein the order passed in HMOP No. 81 of 1997 by the Family Court/Sub Court, Karur is reversed.

The Appellant as Petitioner has filed the petition in question under Sections 13(1) (i-a) and i-b) of the Hindu Marriage Act, 1955 praying to

dissolve the marriage held in between him and the Respondent.

The epitome of the petition can be stated like thus:

The Petitioner has married the Respondent as per Hindu rites and caste customs on 11.11.1988. Both of them have been blessed with a female

child by name Rajasuganthi. The Petitioner and Respondent have lived in Andrapradesh and all of a sudden the Respondent has exhibited some

hostile attitude towards the Petitioner. The Respondent has caused mental cruelty to the Petitioner. On 01.08.1992 the Petitioner has met with an

accident which resulted amputation of his right leg. The Respondent has not attended the Petitioner in hospital at Visakapattinam. On 01.08.1992

the Respondent has left matrimonial abode abruptly. The Petitioner has been forced to live with his parents at his native village. From 20.10.1993

the Respondent has deserted the Petitioner. On 09.06.1994 the Petitioner has issued a legal notice to the Respondent for restitution of conjugal

and even after receipt of the same, the Respondent has not turned up. On 09.11.1997 the Respondent, her father and mother have formed an

unlawful assembly with deadly weapons and assaulted the parents of the Petitioner. The mother of the Petitioner has lodged a police complaint. In

the police station proper advice has been given to the Respondent. Since the Respondent has caused cruelty to the Petitioner and also deserted

him abruptly without any sufficient cause, the present petition has been filed so as to dissolve the marriage held in between them.

In the counter filed on the side of the Respondent it is averred that the Petitioner has married the Respondent on 11.11.1988 and after marriage

both of them have lived in Gopalpattinam, Andrapradesh. Both of them have been blessed with a female child by name Rajasuganthi. Due to

accident meted out by the Petitioner, the Respondent has suffered innumerable sufferings. The Petitioner has very often trounced the Respondent

by way of demanding dowry. The Petitioner has given a false legal notice. At the instigation of the mother of the Petitioner, the Respondent has

been forced to undergo abortion. The Petitioner has filed the present petition purely on frivolous and vexatious grounds. There is No. merit in the

petition and the same deserves to be dismissed.

On the basis of the divergent pleadings raised on either side and also on the basis of the available evidence on record, the trial Court has

allowed the petition and thereby dissolved the marriage held in between the Petitioner and Respondent. Against the order passed by the trial

Court, the Respondent as Appellant has preferred CMA No. 3 of 2002 on the file of the first appellate Court.

The first appellate Court after hearing both sides and upon reappraising the evidence available on record has allowed CMA Mo.3 of 2002 and

thereby set aside the order passed by the trial Court and ultimately dismissed the petition in question. Against the order passed by the first

appellate Court, the present Civil Miscellaneous Second Appeal has been preferred at the instance of the Petitioner as Appellant.

Even though the Respondent has been served with summons appearance has not been made. Under the said circumstances the present Civil

Miscellaneous Second Appeal is disposed of on merits on the basis of the argument advanced on the side of the Appellant/Petitioner.

On the side of the Appellant/Petitioner, the following substantial questions of law have been raised for consideration:

(i) Is the learned District Judge correct in reversing the well considered judgment of the learned subordinate Judge relying upon Ex.X1 which itself

was not proved in accordance with law by the examination of its author?

(ii)Is the learned District Judge correct in dismissing the petition for divorce on the reliance evidence of RW2 when the same is contradictory?

(iii) Is the learned District Judge right in not appreciating the document and evidence in its proper perspective which clearly reveals the factum of

cruelty?

(iv) Is the finding of the learned District Judge is right that the wife has not deserted the husband when she herself specifically admitted in her

evidence and counter that she is living alone with her parents?

Before analysing the contention put forth on the side of the Appellant/Petitioner, the Court has to narrate the following admitted facts. The

Petitioner has married the Respondent as per Hindu rites and caste customs on 11.11.1988. Both of them have been blessed with a female child

by name Rajasuganthi. The Petitioner and Respondent have lived in Andrapradesh. On 01.08.1992 the Petitioner has met with an accident which

resulted amputation of his right leg.

The present petition has been filed on the grounds that the Respondent has caused cruelty to the Petitioner and also abruptly left marital abode.

Section 13(i-a) of the Hindu Marriage Act, 1955 reads as follows:

has, after the solemnization of the marriage, treated the Petitioner with cruelty.

Section 13 (i-b) of the said Act reads as follows:

has deserted the Petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.

The learned Counsel appearing for the Appellant/Petitioner has repeatedly contended that the marriage between the Petitioner and Respondent

has been performed on 11.11.1988 and after marriage both of them have lived as husband and wife at Visakapattinam in Andrapradesh. On

01.08.1992 the Petitioner has met with an accident which resulted amputation of his right leg and the Respondent has not cared to attend the

Petitioner in hospital and she abruptly left marital abode and further she caused mental cruelty to the Petitioner. The Petitioner has taken best

efforts so as to bring the Respondent to marital home and all his efforts have become futile and further on the side of the Petitioner, acceptable

evidence has been let in and the trial Court after considering the evidence available on record has rightly allowed the petition. But the first appellate

Court has disbelieved the version of the Petitioner simply on the ground of medical evidence adduced on the side of the Respondent and since the

Respondent has left matrimonial home on 01.08.1992, subsequent pregnancy has not been caused by the Petitioner and the first appellate Court

has not at all considered the same and therefore, the order passed by the first appellate Court in CMA No. 3 of 2002 is liable to be set aside.

In support of his contention, he has drawn the attention of the Court to the decision reported in 2006 (13) SCC 272 (Sujata Uday Patil v.

Uday Madhukar Patil), wherein the Honourable Apex Court has held that ""cruelty is a mixed question of law and fact and the same depends upon

the facts and circumstances of the case. Cruel treatment can be inferred from the entire course of conduct and incidents showing display of

temperament, emotion and perversion by one spouse causing hurt and humiliation to the other spouse. Neither actual nor presumed intention to

cause hurt to the other spouse is anecessary element in cruelty.

With the above legal backdrops and also on the basis of the contention urged on the side of the Appellant/Petitioner, the Court has to look into

as to whether the Respondent has caused cruelty to the Petitioner and also deserted him without having sufficient cause.

On the side of the Appellant/Petitioner, the Petitioner has been examined as PW1 and one Subramaniam has been examined as PW2. Except

the evidence of PWs.1 and 2 No. other piece of evidence is available so as to attract the provisions under which the present petition has been

filed. of course, it is true that PWs.1 and 2 have given picturesque evidence about the alleged cruelty of the Respondent and also her wilful

desertion. The specific stand taken on the side of the Appellant/Petitioner is that the marriage between the Petitioner and Respondent has been

performed on 11.11.1988 and for a short span both of them have lived as husband and wife happily and also with utmost jubilation which resulted

birth of their female child by name Rajasuganthi and subsequently the Respondent has vulnerably exhibited hostile attitude towards the Petitioner

and the Petitioner has had innumerable sufferings at the hands of the Respondent and finally on 01.08.1992 the Respondent has left marital abode

abruptly.

The first appellate Court has turned down the contention urged on the side of the Appellant/Petitioner mainly on the basis of Ex.P10. Ex.P10 is

a complaint given by the Petitioner on 10.11.1997 in All Women Police Station, Karur, wherein it has been simply stated that the Respondent has

been living separately and she may be directed to live with the Petitioner. In Ex.P10, the alleged harassment, cruelty have not been mentioned.

The specific case of the Petitioner is that both the Petitioner and Respondent have lived together as husband and wife for a short span happily

and subsequently considerable change has occurred in the conduct and treatment of the Respondent and she treated the Petitioner with utmost

cruelty and on 01.08.1992 she abruptly left marital abode. But those things have not at all been mentioned in Ex.P10. If really such occurrence has

taken place as alleged in the petition, definitely the same would have been mentioned in Ex.P10. Since in Ex.P10 No. details of alleged harassment

and cruelty have been mentioned, the alleged harassment and cruelty put forth on the side of the Petitioner cannot be accepted.

As pointed out in mainly places, the specific case of the Petitioner is that from 01.08.1992 the Petitioner has left marital abode and he has been

living separately. The first appellate Court has rejected the case of the Petitioner on the ground of medical evidence available on the side of the

Respondent.

The specific contention of the Respondent is that apart from the birth of Rajasuganthi, the Respondent has become pregnant twice and at the

instigation of the mother of the Petitioner, abortions have been done.

At this juncture, the Court has to look into the evidence given by RW3. One doctor by name Krishnasamy has been examined as RW3 and his

specific evidence is that on 04.03.1997 the Respondent by name Poongothai has been admitted in C.K. Hospital, Erode and she requested to

cause abortion to her pregnancy and accordingly the same has been done.

The learned Counsel appearing for the Appellant/Petitioner has made an inert attempt at this stage to the effect that the alleged pregnancy has

not been caused by the Petitioner. If that be the stand of the Petitioner, definitely the alleged adulterous life of the Respondent would be a ground

for getting divorce. Even at the risk of repetition the Court would like to point out that in paragraph-5 of the petition it has been specifically stated

that from 01.08.1992 the Respondent has left marital abode abruptly and subsequently No. reunion or restitution has taken place in the marital life

of the Petitioner and Respondent. But the Respondent has proved otherwise by way of examining RW3. The specific evidence of RW3 is that on

04.03.1997 the Respondent has requested to cause abortion and accordingly the same has been done. Therefore, the alleged desertion from

01.08.1992 on the part of the Respondent has been belied by the evidence of RW3.

As stated supra, the learned Counsel appearing for the Appellant/Petitioner has made an inert attempt to the effect that the alleged pregnancy

has not been caused by the Petitioner. But the alleged adulterous life of the Respondent has not been mentioned in the present petition as one of

the grounds. Under the said circumstances, it would be condign to look into Section 114 of the Indian Evidence Act, 1872 and the same reads as

follows:

Court may presume existence of certain facts.-The Court may presume the existence of any fact which it thinks likely to have happened, regard

being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular

case.

In the instant case, the Petitioner and Respondent are husband and wife. On the side of the Respondent it has been clinchingly established that

on 04.03.1997 the Respondent has undergone abortion. Since the Petitioner and Respondent are husband and wife, the Court can very well

presume that the alleged pregnancy of the Respondent is only due to the Petitioner.

In the instant case, even though an argument has been advanced to the effect that the Petitioner is not responsible for the alleged pregnancy of

the Respondent, No. contra evidence is available. Since No. contra evidence is available on the side of the Petitioner with regard to alleged

pregnancy and subsequent abortion of the Respondent, it is made clear to the Court that the Petitioner is the sole cause for the alleged pregnancy

of the Respondent. Since abortion has taken place on 04.03.1997 the alleged desertion put forth on the side of the Petitioner from 01.08.1992 is

nothing but false.

It has already been discussed in detail that the alleged cruelty narrated in the petition has not at all been proved on the side of the Petitioner.

Like wise, the alleged desertion from 01.08.1992 has also been belied on the side of the Respondent by way of examining RW3. Therefore, put in

short, both grounds mentioned in the petition have not at all been proved on the side of the Petitioner. In fact the present petition has been filed

only on the basis of miskenning pleading. Since the present petition has been filed on the basis of miskenning pleading, the relief sought for in the

petition cannot be granted.

The trial Court without considering the evil design and also oblique motive of the Petitioner has erroneously granted a decree of divorce by

way of believing both the oral and documentary evidence adduced on the side of the Petitioner. But the first appellate Court has rightly dismissed

the petition. In view of the discussion made earlier, this Court has not found any force in the contention urged on the side of the

Appellant/Petitioner and further the substantial questions of law raised on the side of the Appellant/Petitioner are not having substance at all and

altogether the present Civil Miscellaneous Second Appeal deserved to be dismissed.

In fine, this Civil Miscellaneous Second Appeal deserves dismissal and accordingly is dismissed without cost and the order passed in CMA

No. 3 of 2002 by the District Court, Karur is confirmed.