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2011 Supreme(Mad) 4187

High Court of Judicature at Madras
K. MOHAN RAM & G.M. AKBAR ALI
Rajesh Surana
Versus
Rekha
Civil Miscellaneous Appeal Nos. 180 & 181 of 2010
Decided on : 11-10-2011

Appearing Advocates:
For the Appellant:T. Murugesan, Senior counsel, for, Mrs. Pushpa Sathyanarayanan, Advocate.
For the Respondent:Mrs. Hema Sampath, Senior Counsel, for Mrs. K. Bhawatharani, Advocate.

Headnote:(A). HINDU MARRIAGE ACT, 1955 - Section 10 & 13(1)(i)(a) - Wife seeking divorce - On grounds of cruelty Allegations raised by her against husband - Demanded dowry - Honeymoon to a foreign country - Drunkard - Suspected chastity and fidelity of wife and she was subjected to undergo AIDS test - Restrained wife visit her parents house - Masturbated in her presence and denied to have intimacy with wife - Did not care for her child and not bringing back wife to Matrimonial home immediately after delivery - Amounts to cruelty - Allegations raised by wife not proved by acceptable evidence - Decree of family court liable to set aside - Appeal allowed.

       (B). HINDU MARRIAGE ACT, 1955 - Section 13(i)(a) - Cruelty - Wife raised allegation that husband demanded dowry - Wife left Matrimonial home on 18-05-2002 - On 11-04-2003, husband filed petition seeking restitution of conjugal rights - On 04-06-2003 wife filed police complaint - No specific dates mentioned as to when she was harassed demanding dowry in complaint - Wife has taken more than one year to lodge complaint - Also she alleged that she tried to commit suicide - Wife is having habit of writing diary - Nowhere mentioned about dowry harassment Therefore, allegations have been made purposely to get divorce.

       (C). HINDU MARRIAGE ACT, 1955 - Section 13 - Allegations of dowry demand, harassment and ill treatment is stated regularly without specifying time, date and month on which such events happened Complaint lodged only as a counter blast to O.P. filed by husband - It raises a serious doubt that allegations in complaint and also in divorce petition are really true or invented for the purpose of case - There is no other corroborative evidence to prove allegations of demand of spoken about dowry - Allegation about demand of dowry has not been established by acceptable evidence Appeal allowed.

       (D). HINDU MARRIAGE ACT, 1955 - Section 13(i)(a) - Divorce on ground of cruelty - Husband is a drunkard - Whether amount to cruelty or not - A person consumes alcohol. frequently cannot be termed as a drunkard - Taking alcohol that alone will not amount to cruelty, unless it is proved that under influence of alcohol husband ill-treated or harassed his wife - Its not case of wife that husband under influence of alcohol either ill-treated or harassed his wife - Drinking alone frequently that alone will not amount to causing mental cruelty.

       (E). HINDU MARRIAGE ACT, 1955 -Section 13(i)(a) -Evidence Act-Section 43 - Admissibility of criminal court judgment in a civil court - Wife seeking divorce - Husband convicted for six months imprisonment under Section 498A of IPC to pay a fine of Rs. 5000/- also six months imprisonment was imposed for offence under Section 406 IPC together with fine of Rs.2000/- - Wife filed criminal court judgment before High Court -Admissibility - Held - Cannot be relied upon to conclude that husband has ill-treated wife and demanded dowry - Under Evidence Act, criminal court judgment shall not be admissible in a civil suit would be admissible is the admission made by a party in a previous proceeding - Not case of wife that husband made any admission before criminal court in criminal proceedings - Therefore, judgment of criminal court is not admissible in these proceedings - Its well settled law that civil proceedings cannot be determined on basis of judgment of civil court - Judgment of criminal court is not binding on civil court - Appeal allowed.

JUDGMENT :

1. The appellant in the above appeals is the husband of the respondent. The marriage between them took place at Chennai on 21.02.2000 as per Hindu Customs and ceremonies. Out of the wedlock, a son was born on 07.08.2001. On 09.08.2001 the respondent was discharged from the hospital and from there she went to her parental home. At the end of September 2001, she was taken by the appellant to the matrimonial home. On 18.05.2002 the respondent left the matrimonial home to her parental home. Contending that though the respondent and his family members were affectionate towards the respondent and the child and she was treated well by them, at the pressure and influence of her parents, she had left the matrimonial home without any sufficient cause, the appellant filed O.P.No.697 of 2003 under Section 9 of the Hindu Marriage Act, 1955 before the Principal Family Court, Chennai, for Restitution of Conjugal Rights.

2. Pending OP No.697 of 2003, the respondent / wife filed O.P.No.1601 of 2003 under Section 13 (1) (i)(a) of the Hindu Marriage Act, seeking a decree of divorce or in the alternative grant a decree for judicial separation under Section 10 of the said Act. In her petition, the wife alleged the following acts of cruelty against her husband in the above appeal:-

(i) The appellant and his family members demanded and harassed her to bring more dowry.

(ii) Even on the date of marriage itself the mother of the appellant demanded that the appellant and the respondent should be sent for their honeymoon to a foreign country.

(iii) The husband / appellant is a drunkard.

(iv) The appellant suspected the respondent's chastity and character and she was subjected to undergo AIDS test (HIV Test).

(v) The appellant restrained his wife / respondent from interacting with her parents and relatives.

(vi) The appellant masturbated in her presence and denied to have intimacy with her which amounted to cruelty.

(vii) The appellant did not care for her and the child in not bringing her back to the matrimonial home immediately after delivery.

3. The appellant / husband specifically denied all the aforesaid acts of cruelty alleged by the wife. The Principal Family Court, Chennai, dismissed O.P.No.697 of 2003 filed by the husband for Restitution of Conjugal Rights and allowed O.P.No.1601 of 2003 filed by the wife for divorce. Being aggrieved by that, the husband has filed the above appeals. CMA No.180 of 2010 is directed against dismissal of O.P.No.697 of 2003 and CMA No.181 of 2010 is directed against the decreeing of O.P.No.1601 of 2003.

4. The case of the appellant in O.P.No.697 of 2003 is as follows:-

(i) The marriage between the appellant and the respondent was solemnized as per Hindu Rites and customs on 21.02.2000 at Chennai. After marriage, both of them were living together at the appellant's house. On 07.08.2001, a male child was born and he was named as 'Ronak'. Their marriage life started off with a happy note. Both of them enjoyed their happy moments in the initial stage of marriage. They went on honeymoon to Calcutta, Dargeeling, Moonar, Kodai, Mumbai in the first one year and they also visited their respective relatives' houses. While so, the father-in-law of the appellant started intervening with the personal life of the appellant and the respondent and he attempted to separate them in order to keep a separate residence for them, which greatly disturbed the appellant's mind. The respondent's father visited the appellant's house and shouted at the appellant's younger sister without any rhyme or reason. In June 2000, the respondent's father called up the appellant's mother over phone and abused her in all sorts of language, though knowing fully well that in Jain community, the men of the other family will not talk to the female members of other family.

(ii) It is the case of the appellant that as far as the respondent is concerned, she has got great love and affection towards the appellant and similarly he is having love and affectio

























































































































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