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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R.SUDHAKAR, S.VAIDYANATHAN, JJ.
Sangeetha - Appellant in both appeals
Vs.
Jitendra Bhandari - Respondent in both appeals
Civil Miscellaneous Appeal Nos.168 and 169 of 2012
Decided On : 06-04-2016
HINDU MARRIAGE ACT - SECTION 13(1)(IA) - CRUELTY - SUICIDE ATTEMPT - IRRETRIEVABLE BREAKDOWN OF MARRIAGE - DIVORCE - WIFE SUFFERED SPINAL CORD AND PELVIC FRACTURE AND IS IN A VEGETATIVE STATE - HUSBAND FILED A PETITION FOR DISSOLUTION OF MARRIAGE ON THE GROUND OF CRUELTY - WIFE DENIED THE AVERMENTS MADE IN THE PETITION AND FILED A COUNTER AFFIDAVIT STATING THAT THERE WAS NO QUESTION OF DEMANDING ANY MONEY BY THE APPELLANT/WIFE AND HER PARENTS FROM THE RESPONDENT/HUSBAND, AS THE PARENTS OF THE APPELLANT/WIFE ARE THEMSELVES IN A GOOD AND SOUND FINANCIAL STATUS - FAMILY COURT GRANTED DIVORCE TO THE APPELLANT/WIFE - HELD, THE FINDING OF THE FAMILY COURT AGAINST THE APPELLANT/WIFE IN RESPECT OF THE INCIDENT ON 06.11.2005 IS WHOLLY UNSUSTAINABLE IN VIEW OF THE STATEMENT OF C.W.1, THE CHILD OF THE PARTIES TO THE EFFECT THAT HIS MOTHER, IN HER ATTEMPT TO CATCH HOLD OF THE GOLD BANGLE THAT SLIPPED OFF HER HAND, FELL DOWN ACCIDENTALLY FROM THE BALCONY - THE FAMILY COURT OUGHT TO HAVE SEEN THAT THE RESPONDENT/HUSBAND FILED A PETITION FOR DISSOLUTION OF MARRIAGE WITH A CLEAR INTENTION TO GET RID OF THE APPELLANT/WIFE, WHO HAS BEEN PHYSICALLY AFFECTED AND TO GET REMARRIED, EVEN ACCORDING TO THE ADMISSIONS IN HIS OWN EVIDENCE - THE APPELLANT/WIFE IS ALWAYS WILLING TO LIVE WITH HER HUSBAND AND SHE NEVER EVEN FILED A PETITION SEEKING INTERIM MAINTENANCE - APPEALS ALLOWED - DECREE FOR DISSOLUTION OF MARRIAGE AND DISMISSAL OF THE PLEA FOR RESTITUTION OF CONJUGAL RIGHTS PASSED BY THE PRINCIPAL JUDGE, FAMILY COURT, CHENNAI VIDE JUDGMENT DATED 25.11.2011 MADE IN F.C.O.P.NOS.1942 OF 2008 AND 218 OF 2011 ARE SET ASIDE.
Fact of the Case:
The marriage between the respondent/husband and the appellant/wife was solemnized on 28.06.1998 at Vijayashree Mahal, Anna Nagar, Chennai, as per customary rites. They both belong to orthodox Jain community. From the wedlock, they have two male children. The respondent/husband is running a shop dealing with Electrical accessories and the appellant is a house-wife. The respondent/husband initially filed a petition in O.P.No.1942 of 2008 seeking divorce on the ground of cruelty. Thereafter, the appellant/wife filed a petition in O.P.No.218 of 2011 praying for restitution of conjugal rights, which got dismissed. The Principal Family Court, Chennai took up both these petitions together and passed a common order dissolving the marriage on the ground of cruelty in favour of the husband. The aggrieved wife is before this Court now.
Finding of the Court:
The finding of the Family Court against the appellant/wife in respect of the incident on 06.11.2005 is wholly unsustainable in view of the statement of C.W.1, the child of the parties to the effect that his mother, in her attempt to catch hold of the gold bangle that slipped off her hand, fell down accidentally from the balcony. Also, the Family Court ought to have seen that the respondent/husband filed a petition for dissolution of marriage with a clear intention to get rid of the appellant/wife, who has been physically affected and to get remarried, even according to the admissions in his own evidence. The appellant/wife is always willing to live with her husband and she never even filed a petition seeking interim maintenance.
Issues: Whether the finding of the Family Court against the appellant/wife in respect of the incident on 06.11.2005 is sustainable?
Ratio Decidendi: The finding of the Family Court against the appellant/wife in respect of the incident on 06.11.2005 is wholly unsustainable in view of the statement of C.W.1, the child of the parties to the effect that his mother, in her attempt to catch hold of the gold bangle that slipped off her hand, fell down accidentally from the balcony. Also, the Family Court ought to have seen that the respondent/husband filed a petition for dissolution of marriage with a clear intention to get rid of the appellant/wife, who has been physically affected and to get remarried, even according to the admissions in his own evidence. The appellant/wife is always willing to live with her husband and she never even filed a petition seeking interim maintenance.
Final Decision: Appeals allowed - Decree for dissolution of marriage and dismissal of the plea for restitution of conjugal rights passed by the Principal Judge, Family Court, Chennai vide judgment dated 25.11.2011 made in F.C.O.P.Nos.1942 of 2008 and 218 of 2011 are set aside.
S.VAIDYANATHAN, J.
Aggrieved by the order of dissolution of marriage dated 25.11.2011 passed by the Principal Judge, Family Court, Chennai in F.C.O.P.Nos.1942 of 2008 and 218 of 2011, the appellant/wife has come up with the above appeals.
2. Since the issue involved in both the cases is one and the same, the appeals are taken up for disposal by a common judgment.
3. Background facts in a nutshell are as follows:
The marriage between the respondent/husband and the appellant/wife was solemnized on 28.06.1998 at Vijayashree Mahal, Anna Nagar, Chennai, as per customary rites. They both belong to orthodox Jain community. From the wedlock, they have two male children. The respondent/husband is running a shop dealing with Electrical accessories and the appellant is a house-wife. The respondent/husband initially filed a petition in O.P.No.1942 of 2008 seeking divorce on the ground of cruelty. Thereafter, the appellant/wife filed a petition in O.P.No.218 of 2011 praying for restitution of conjugal rights, which got dismissed. The Principal Family Court, Chennai took up both these petitions together and passed a common order dissolving the marriage on the ground of cruelty in favour of the husband. The aggrieved wife is before this Court now.
4. Before proceeding to analyze the correctness of the order of dissolution of marriage, for better appreciation of the case, contentions of both the husband and wife in their respective petitions, need to be looked into.
5. In the petition filed by the respondent/husband on 30.04.2008 for dissolution of the marriage, it was inter alia, stated as follows:
(a) After marriage, the appellant/wife often went to her parent's house and used to compel the respondent/husband to come out of his joint family. She is in the habit of troubling the respondent/husband to lend money to her parents and her relatives. Also, she used to threaten the respondent/husband that she will commit suicide and her attempt to commit suicide was thwarted by the respondent/husband more than once.
(b) On 05.11.2005, the appellant/wife demanded money from the respondent/husband and he in turn told her that he had already lent enough money to her parents and that he cannot give any money further to her family. Again on 06.11.2005, she asked for money from her husband, while he was in an angry mood. Immediately, the respondent/husband started for going out. While he reached the ground floor, where his driver was also standing, they saw the appellant/wife attempting to jump from their balcony, which is in the 2nd floor of the Apartment. Though the respondent/husband shouted at her not to jump, she jumped off the 2nd floor. Immediately, he took her to First Med Apollo Hospital and admitted her. The appellant/wife underwent treatment there and thereafter, the respondent/husband shifted her to Main Apollo Hospital and one Dr.Sajan Heggede told the respondent/husband that the appellant/wife had a fracture in the Spinal Cord. On 08.11.2005, the appellant/wife underwent operation on her Spinal Cord and was shifted to I.C.U. While so, police came for enquiry and the appellant/wife gave a statement that her gold bangle slipped and in an attempt to catch hold of the same, she slipped and fell from the 2nd floor.
(c) Thereafter, when the appellant/wife was admitted in Vellore Hospital, neither her parents nor her relatives took care of her and it is only the respondent/husband who looked after her in the hospital and their two children, who were studying in school. Even after such incident, the appellant/wife never used to speak with the respondent/husband smoothly. Thereafter, at the behest of the appellant/wife, she was shifted from Vellore Hospital to her parent's house and she was in the custody of her parents and their children were in the custody of the respondent/husband.
(d) According to the respondent/husband, differences arose between h
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