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assessment of evidence on adultery =It is true that the appellant has denied receiving those letters and has also denied that she ever sent any letters to Chandra Prakash. One can understand this denial in the case of a person like the appellant who was facing a petition for divorce on the ground of adultery. But assuming that those two letters were received by the appellant, that does not in our opinion prove that there was any adultery between the appellant and Chandra Prakash in 1955. We have read those letters and we must say that they are most improper and should not have been written by a person like Chandra Prakash who was married to the cousin of the appellant. But the first thing that strikes us is that the mere fact that some male relation writes such letters to a married woman, does not necessarily prove that there was any illicit relationship between the writer of the letters and the married woman who received them. The matter may have been different if any letters of the appellant written to Chandra Prakash had been proved.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Appeal to the Great Spirit

Image by cliff1066™ via Flickr

DATED: 11.01.2012

C O R A M

THE HONOURABLE MR.JUSTICE K.MOHAN RAM
AND
THE HONOURABLE MR.JUSTICE R.KARUPPIAH

Civil Miscellaneous Appeal Nos.1946 & 1947 of 2008
and M.P.No.1 of 2008

Mr. K.Chandrasekar … Appellant in both CMAs

-Vs.-

1. Mrs. Ramani … R-1 in CMA No.1946 of 2008
& sole respondent in CMA No.1947 /2008

2. Pudhiaraja … R-2 in CMA No.1947 of 2008
Prayer :- Civil Miscellaneous Appeals filed under Section 19 of the Family Courts Act 1984 against the judgment and decree, dated 19.03.2008, 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.Venkataseshan
For Respondents in both CMAs : Mr. K.Selvaraj

– – –

C O M M O N J U D G M E N T

(JUDGMENT OF THE COURT WAS
DELIVERED BY JUSTICE K.MOHAN RAM)

The appellant in the above appeals is the husband of the first respondent in CMA No.1946 of 2008 and sole respondent in CMA No.1947 of 2008 / wife. For the sake of convenience, the first respondent will be referred to as wife in these appeals.

2. The appellant filed FCOP No.258 of 2002 before the Family Court at Salem, seeking a decree for divorce on the ground that the first respondent has committed acts which amounted to mental cruelty and she is guilty of adultery as she has developed illicit intimacy with the second respondent. The first respondent / wife filed FCOP No.115 of 2002 before the same Court under Section 9 of the Hindu Marriage Act for Restitution of Conjugal Rights. Both the petitions were tried together and on a consideration of the evidence adduced by the parties, the Family Court dismissed the Petition for Divorce filed by the appellant / husband and allowed the Petition for Restitution of Conjugal Rights filed by the first respondent / wife. Being aggrieved by that, the appellant / husband has filed the above appeals.

3. The case of the appellant, as pleaded by him in his divorce petition, is as follows:-
(i) The marriage between the appellant and the first respondent was performed according to Hindu Rites on 03.03.1995 at Attur at Salem District and the same was also registered on 21.03.1995 with the Sub Registrar, Adyar, Chennai. The first respondent wanted to be independent 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 the appellant was on official visit for USA, he took the first respondent to USA, in January 1997. The appellant wanted to take his father who is a widower and an acute diabetic patient for two years, but the same was resisted by the first respondent and she was mis-behaving throughout his stay in USA.

(ii) During their stay in USA, the appellant suspected that the first respondent had developed some illicit intimacy with her neighbour by name Nagesh. There were several instances to doubt about her moral conduct and character, which resulted in her becoming pregnant. When the appellant grew suspicious and in order to give a benefit of doubt to her, he allowed her to undergo the abortion. In January 1999, both of them returned to Hyderabad, where the appellant had to continue his job with C.M.C. In June 2000, the appellant got transferred to Chennai and the first respondent got a teaching job in St.Mary’s School, Kottur in Chennai. The first respondent developed illicit intimacy with the second respondent. On 17.02.2001 the first respondent phoned up the appellant to bring the keys of the school’s laboratory, which she forgot to take from the house. When the appellant was looking for the said keys in her hand bag, he came across a greeting card, which was nothing, but a love letter, written on 26.09.2000 by the second respondent to the first respondent. When the first respondent was questioned, she told him that she had scolded the second respondent.

(iii) On August 18, 2001, the first respondent informed the appellant that the second respondent was appreciative and affectionate to her and admitted that she had also written letters to the second respondent and she informed him that the relationship between her and the second respondent started from the first week of June 2000. The appellant felt that the illicit and illegitimate relationship between the first and second respondents is the cause of the first respondent becoming pregnant and a child was also born through them on 18.04.2001 whose parentage is in doubt. The undue intimacy coupled with an opportunity between the respondents led the appellant to conclude that the first respondent had been living in adultery and that has become impossible for the appellant to live with the first respondent. Because of her immoral character, the first respondent had no other option except to leave the matrimonial home on 27.08.2001. Subsequently, on 27.10.2001, the first respondent came along with her parents and relatives to the appellant’s house and had taken away her educational certificates, jewels and cloths in his absence. The appellant had not condoned the acts and mis-deeds of the first respondent.

4. The first respondent contested the petition inter-alia contending as follows:-
(i) As a dutiful Hindu Tamil Lady, she discharged all her duties as a wife and daughter-in-law. Inspite of receiving huge dowry, the details of which have been set out in the counter statement, the appellant and his father were not satisfied with the same and they keep on harassing and ill-treating her without showing her any mercy by physically beating and abusing her with filthy language. Both of them demanded more money and jewels. As a dutiful wife she tolerated all the harassments and ill-treatments of the appellant and his father.
(ii) At USA, she was harassed and ill-treated with all kinds of known and unknown cruelties. At USA, the appellant behaved in a strange manner and used to bring all his friends to home and used to consume liquor with them and make fun of the first respondent in front of his friends. She never objected the appellant to bring his father to USA. The alleged allegation of immorality attributed by the appellant to the first respondent has been specifically denied. It is the case of the first respondent that the false allegation of immorality at USA has been made only for the purpose of the case. The abortion at USA was another harassment meted out to her. The appellant forced her to undergo abortion, as the appellant felt that it will cost more to take care of the child. As the contract period was over, both of them returned to India in January 1999.
(iii) The alleged relationship between the first and second respondents is specifically denied. The said false allegations have been invented by the appellant only for the purpose of the case. Even after the birth of the child on 18.04.2001, the first respondent was ill-treated by the appellant and his father. In June 2001, the appellant and his father had beaten the first respondent severely and driven her out with the children to bring a sum of Rs.50,000/- and after two days, the parents of the first respondent took her back to the appellant’s house and gave Rs.10,000/- and left her there. Even thereafter she was badly treated demanding more dowry. As the first respondent refused to get more money from her father, the appellant’s father poured kerosene on her and tried to set fire by throwing a lighted camphor on her, but because of the timely intervention of the child, she was saved. All the efforts taken by the first respondent, her parents and elders to pacify the appellant and his father did not yield any result. The first respondent is ready to forget all the ill-treatment of the appellant and his father and ready to live with the appellant considering the future of the children. On the aforesaid contentions, the first respondent sought for the dismissal of the petition for divorce.

5. The averments and allegations made in the petition filed by the first respondent for Restitution of Conjugal Rights is the repetition of the averments in her counter statement filed in the Divorce Petition. Similarly, the averments and allegations contained in the counter statement filed in the Restitution Petition are nothing but the repetition of the averments and allegations made in the Divorce petition and therefore, the same are not being repeated again.

6. Before the Family Court, on the side of the appellant, he was examined as P.W.1 and Exs.P-1 to P-3 have been marked. On the side of the first respondent, she was examined as R.W.1 and she has not produced any documentary evidence. The DNA Test Report was marked as Ex.X-1. The second respondent remained exparte before the Court below.

7. On a consideration of the evidence adduced before the Court below, the Court below came to the conclusion that the allegations of mental cruelty and adultery alleged by the appellant against the first respondent have not been proved and accordingly, dismissed the petition for divorce. The Court below has held that because of the suspicious nature of the appellant and because of the harassment meted out to the first respondent she had to leave the matrimonial house and therefore there is justification for ordering Restitution of Conjugal Rights and accordingly allowed the petition for Restitution of Conjugal Rights filed by the first respondent. Being aggrieved 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 to the first respondent and the same was found inside the hand bag of the first respondent when searching for the keys of the school lab, which the first respondent wanted the appellant to bring to the school as she had forgotten to take the handbag with her. He further submitted that Ex.P-3 shows that it is nothing but a love letter written by the second respondent to the first respondent; the manner in which the second respondent has written in Ex.P-3 will suggest that both of them had illicit intimacy; when the appellant questioned the first respondent she denied the illicit intimacy with the second respondent, but these aspects have not been properly considered by the Family Court; the Family Court has placed undue reliance on Ex.X-1-DNA report; the DNA report only establishes the fact that the biological father of the child is the appellant, but from that it cannot be concluded that there was no illicit intimacy between the first and second respondents; the Court below is not right in coming to the conclusion that there was no illicit intimacy between the respondents merely basing reliance on Ex.X-1. He further submitted that even during her stay with the appellant in the USA, she had developed illicit intimacy with one Nagesh and she became pregnant, but the child was aborted with the permission of the appellant as the appellant condoned the conduct of the first respondent; her conduct and character had not changed even after coming back to India.

10. Learned counsel for the appellant further submitted that the allegation of illicit intimacy of the first respondent with Nagesh while she was at USA and the intimacy between the respondents herein, though have been specifically alleged in the petition, the same have not been denied by the first respondent in her counter statement and therefore, it would amount to admission on her part. He further submitted that the first respondent had made false and serious allegations of dowry harassment against the appellant and his father which itself will amount to causing mental cruelty as the said allegations have not been substantiated by acceptable evidence; the evidence of P.W.1 clearly shows that the first respondent had not discharged her duties as a dutiful wife; the allegation of the first respondent that the the father of the appellant poured kerosene on her and tried to set her on fire by throwing a lighted camphor is an utter falsehood and the same has not been proved by acceptable evidence; the said allegation itself will amount to causing mental cruelty; only as a counter blast, the first respondent had chosen to file the application for Restitution of Conjugal Rights, but she has no intention for cohabiting with the appellant and therefore, the Court below is not right in ordering the Restitution of Conjugal Rights. He further submitted that there is absolutely no evidence let 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 of the marriage and there is absolutely no possibility for them to live together and therefore the marriage is liable to be dissolved. In support of the said contentions, the learned counsel based reliance on 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. SUDHIR KAPUR).

11. Countering the said submissions, the learned counsel for the first respondent / wife submitted that even in his petition, the appellant has clearly stated that he had condoned the alleged act and illicit intimacy of the first respondent with one Nagesh and therefore the same cannot be relied upon to seek divorce on that ground. He further submitted that Ex.P-3-letter written by the second respondent to the first respondent is dated 26.09.2000 and the appellant got Ex.P-3-letter, dated 17.02.2001, from the handbag of the first respondent; the second child was born on 18.04.2001; it has been specifically stated by the appellant in the petition that from the language used in Ex.P-3 letter, he suspected that there was illicit intimacy with the first respondent and the second respondent and only through the second respondent she became pregnant and the second child was born on 18.04.2001; merely because Ex.P-3 letter had been written by the second respondent to the first respondent and which letter contain inappropriate wordings, it cannot be concluded that there was illicit intimacy with the first and second respondents; the Court below has rightly pointed out that from the letter written by the second respondent to the first respondent, illicit intimacy between them cannot be inferred; the said reasoning of the Court below cannot be faulted with. He further submitted that except the allegations of adultery, there is no specific acts either alleged with material particulars or proved before the Court which amounted to mental cruelty and therefore, the court below is right in dismissing the petition for divorce and granting a decree for Restitution of Conjugal Rights; when the appellant had suspected the chastity of the first respondent and had even questioned the paternity of the second child, the first respondent had reasonable cause to leave the matrimonial home, but she did not leave the matrimonial home on her own, but she was driven out of the matrimonial home as she was not able to meet the demand for further dowry. He further submitted that the mere making of allegations in the counter statement and in the evidence about the dowry demand and ill-treatment of the first respondent by the appellant and his father will not amount to causing mental cruelty to the appellant. In support of his contentions, the learned counsel based reliance on the following decisions :-
(i) AIR 1967 SUPREME COURT 581 (Smt. Chandra Mohini Srivastava v. Shri Avinash Prasad Srivastava and another);
(ii) 2011 (6) CTC 35 (Malarvijy v. Kanthan).

12. We have considered the aforesaid submissions made by the learned counsel on either side and perused the materials available on record.

13. A perusal of the averments contained in the divorce petition filed by the appellant and his evidence shows that the main ground on which the petition for divorce has been filed is the alleged adultery between the first respondent and the second respondent.

14. As far as the prayer for divorce on the ground of mental cruelty is concerned, the acts of mental cruelty have not been set out with material particulars. In the petition it is stated that the first respondent never displayed a tendency to be a dutiful wife; the amorous activity of the first respondent with the second respondent, which resulted in her begetting a child again was nothing short of cruelty and mental torture lowering his reputation in the eyes of the public. Except the aforesaid allegations, no other allegations are found in the petition as far as mental cruelty is concerned. The first allegation that the first respondent did not discharge her duty as a dutiful Hindu wife by itself is not sufficient to hold that the same will amount to mental cruelty.

15. The contention of the learned counsel for the appellant that the allegations made by the first respondent in her counter statement, in her petition for Restitution of Conjugal Rights and in her deposition regarding the alleged harassment and cruelty meted out to her on account of demand of dowry and the alleged attempt of the father by the appellant to kill her by pouring kerosene on her and tried to set fire by throwing a lighted camphor on her and the intervention of the child saved her are all false and the said allegations themselves will amount to mental cruelty. We are unable to countenance the said submission of the learned counsel. If demand for more dowry had been made and due to that she was subjected to harassment and cruelty, the first respondent is entitled to state the same in the counter statement filed in the divorce petition and in the petition seeking Restitution of Conjugal Rights and in her evidence. Simply because except the evidence of the first respondent, there is no other corroborative evidence and the said allegations have not been established, such allegations will not amount to mental cruelty. As a defence, the first respondent has made the said allegations and according to her, the allegations are true.

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) is not applicable to the facts of this case. In that case, the wife had made allegations against her husband that he had illicit intimacy with the servant maid and had started living with her house and only because of that, she had to leave the matrimonial home, but the said allegation was not proved. In that context, it has been held that the allegations of the adultery would amount to cruelty. In this case, the first respondent / wife has not made any such similar allegations against the appellant / husband and therefore the decision is not applicable to the facts of this case.

17. In the decision reported in 2009 (1) SCC 422 (referred to supra), which is relied upon by the learned counsel for the appellant, it was found from the evidence that the wife was interested in her career only and she had neglected towards matrimonial obligations and the termination of pregnancy by the wife was without consent or even the knowledge of her husband which was in the nature of mental cruelty. Only in those circumstances, the Court granted the decree for divorce on the ground of mental cruelty and therefore, the said decision is not applicable to the facts of this case.

18. In the decision reported in (1994) 1 Supreme Court Cases 337 (referred to supra) the husband was a practising advocate in Delhi High Court and Supreme Court. The wife made very serious allegations against the husband. In that context, the Apex Court has held as follows:-
Even so, allegations of ‘paranoid disorder’, ‘mental patient’, ”needs psychological treatment to make him act a normal person’ etc. are there coupled with the statement that the petitioner and all the members of his family are lunatics and that a streak of insanity runs through his entire family. These assertions cannot but constitute mental cruelty of such a nature that the petitioner, situated as he is and in the context of several relevant circumstances, cannot reasonably be asked to live with the respondent thereafter.
The Apex Court, in the said decision, has further observed that making such allegations in the pleadings and putting such questions to the husband while he is in the witness box is bound to cause him intense mental pain and anguish besides affecting his career and professional prospects. Only in the aforesaid facts and circumstances of the case, the Apex Court has held that the allegations made in the pleadings and the cross-examination constituted mental cruelty on the husband, but the facts of this case are totally different. In the very same decision, the Hon ‘ble Apex Court has pointed out that the mental cruelty has to be determined in the facts and circumstances of the case and the accusations and allegations to be seen in the context in which made. If the aforesaid test is applied to the facts of this case, the allegations made by the wife, in this case, against her husband and father-in-law cannot be said to be amounting to causing mental cruelty. Therefore, the said contention of the learned counsel for the appellant cannot be countenanced.

19. In the decision reported in 2011-5-L.W.347 (referred to supra) (to which one of us (KMJ) is a party in deciding the appeal), it has been held that if the allegations contained in the petition are not specifically averted to and denied, under Order 8 Rule 5 CPC, it will amount to admission. But, in this case, a perusal of the counter statement filed by the wife clearly shows that each and everyone of the allegations made by the husband against the wife have been specifically averted to and denied, therefore, the said decision is not applicable to the facts of this case.

20. On the facts alleged and admitted in this case, it could be seen that though the appellant alleged illicit intimacy between the first respondent and one Nagesh while they were at USA and the allegations have been denied by the first respondent, the appellant, in the petition itself, has stated that he had condoned the act of alleged adultery between the first respondent and Nagesh. Even assuming for a moment that the said allegation is true when the appellant himself has condoned the said act and had lived with the first respondent for number of years thereafter, the same cannot be pleaded or relied upon to seek the dissolution of the marriage.

21. It is pertinent to point out that the allegation of the alleged adultery and illicit intimacy of the first respondent with the second respondent has stemmed out of the suspicion entertained by the appellant from the wordings contained in Ex.P-3-letter written by the second respondent to the first respondent. Except the said letter-Ex.P-3, there is no other material, whatsoever, to entertain even that suspicion. It is not the case of the appellant that he had ever seen the first respondent in the company of the second respondent.

22. In this context, it is relevant to refer to the evidence of P.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 and thereafter he read the same to his wife and thereafter before his wife left him in June 2001 itself, at the request of his wife, the letter was torn and kept in the house. He has further deposed that in February 2001, his wife / the first respondent took him to the school and asked him to enquire the second respondent. The appellant met the second respondent and enquired him, but the second respondent told him that there was no illicit intimacy between him and the first respondent. The appellant has further deposed that the second respondent told him that the first respondent will not even come in his bike. He has also admitted that he had not enquired regarding the alleged illicit intimacy with the respondents with the others. He has further admitted that the first respondent denied any illicit intimacy with the second respondent and therefore, he did not enquire the second respondent, which is contrary to what he has stated earlier.

23. It is pertinent to point out that the appellant, in his evidence, has admitted that there was sexual relationship between him and his wife / the first respondent till August 2001 and both of them got separated on 27.08.2001. When it is the admitted case of the appellant that he saw Ex.P-3-letter, dated 17.02.2001 and the second child was born on 18.04.2001 and in February 2001 itself, he had enquired the second respondent at the instance of the first respondent and that he had disowned the paternity of the second child, it is un-understandable as to how he could have sexual relationship with the first respondent. If really the appellant had suspected the first respondent for having illicit intimacy with the second respondent and he doubted the very paternity of the second child, he would not have had sexual relationship with the first respondent till August 2001. These circumstance itself makes it clear that the allegation of adultery has been levelled against the first respondent by the appellant only for the purpose of this case.

24. Further, it has to be pointed out that as rightly contended by the learned counsel for the first respondent from the mere letter written by the second respondent to the first respondent, which is marked as Ex.P-3 and the contents thereof, it cannot be inferred that there was any illicit intimacy between the first and second respondents.

25. In the decision reported in AIR 1967 SUPREME COURT 581 (referred to supra) the Apex Court, in similar circumstances, has in paragraph 9 held as follows:-
 9. It is true that the appellant has denied receiving those letters and has also denied that she ever sent any letters to Chandra Prakash. One can understand this denial in the case of a person like the appellant who was facing a petition for divorce on the ground of adultery. But assuming that those two letters were received by the appellant, that does not in our opinion prove that there was any adultery between the appellant and Chandra Prakash in 1955. We have read those letters and we must say that they are most improper and should not have been written by a person like Chandra Prakash who was married to the cousin of the appellant. But the first thing that strikes us is that the mere fact that some male relation writes such letters to a married woman, does not necessarily prove that there was any illicit relationship between the writer of the letters and the married woman who received them. The matter may have been different if any letters of the appellant written to Chandra Prakash had been proved.

26. The aforesaid decision squarely applies to the facts of this case and therefore, the contention of the learned counsel for the appellant that Ex.P-3-letter and its contents itself will prove that there was illicit intimacy with the first respondent and the second respondent cannot be countenanced.

27. As rightly pointed out by the Court below, the appellant seems to be a doubting Thomas and he was always suspecting the chastity and character of the first respondent right from the days when they were living at USA and even after coming back to India. The allegations of illicit intimacy between the respondents herein and the disowning of the paternity of the second child has stemmed out on his suspicion only and we are of the considered view that there is absolutely no material, whatsoever, to come to the conclusion that the first respondent had committed any acts of cruelty much less any mental cruelty. The allegations of adultery alleged against the first respondent has not at all been proved and it has been made without any basis, whatsoever, just to tarnish the image 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 serious allegations of adultery against the first respondent, the first respondent cannot be expected to live with the appellant bearing all such insults, but inspite of such baseless and serious allegations levelled against her, the first respondent had expressed her willingness to live with the appellant only in the interest of the children. We do not find any material reason whatsoever on record which dis-entitles the first respondent from seeking Restitution of Conjugal Rights. Therefore, we do not find any reason to interfere with the judgment and decree of the Court below granting a decree for Restitution of Conjugal Rights.
29. For the aforesaid reasons, the judgment and decree, dated 19.03.2008, passed in FCOP Nos.258 of 2002 and 115 of 2002, respectively, on the file of the Family Court, Salem, are confirmed and the above Civil Miscellaneous Appeals stand dismissed with costs throughout. Consequently, the connected MP is closed.

 

 

 

 
srk

To

The Family Court,
Salem

 

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