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2018 Supreme(Mad) 2244
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBBIAH, C. SARAVANAN, JJ.
E. Kavitha - Appellant
Vs.
A. Rajithkumar - Respondent
Civil Miscellaneous Appeal No. 2678 of 2017 and C.M.P. No. 14900 of 2017
Decided On : 24-08-2018
For the Appellant : Mr. M. Sriram for Mr. S. Bhargavan.
For the Respondent: Mr. D. Nagesh Babu.
The main legal point established in the judgment is the need for specific evidence to prove cruelty under the Hindu Marriage Act, and the consequences of a second marriage during the pendency of an appeal.
Headnote:
Cruelty - Hindu Marriage Act - Section 13-1(i-a) & (i-b) - The court discussed the grounds of cruelty and adultery under the Hindu Marriage Act, 1955 and the interpretation of these provisions. The court emphasized the need for specific evidence to prove cruelty and highlighted the importance of considering the efforts made for reconciliation. The court also addressed the issue of irretrievable breakdown of marriage and the consequences of a second marriage during the pendency of an appeal.
Fact of the Case:
The appellant-wife appealed against the Family Court's order dissolving her marriage based on cruelty. The court analyzed the events leading to the divorce, including allegations of adultery and cruelty, the appellant's attempts to reconcile, and the respondent's remarriage during the appeal.
Finding of the Court:
The court found that the Family Court erred in inferring cruelty based on the appellant's actions and concluded that no cruelty was established. The court also held that the respondent's second marriage could not be used to justify the wrong order of the Family Court.
Issues: The issues before the court were whether the appellant's actions amounted to cruelty and whether there was an irretrievable breakdown of the marriage due to the second marriage of the respondent.
Ratio Decidendi: The court emphasized the need for specific evidence to prove cruelty and highlighted the importance of considering the efforts made for reconciliation. The court also held that the second marriage during the pendency of an appeal could not be used to justify a wrong order.
Final Decision: The civil miscellaneous appeal was allowed, the impugned order was set aside with cost, and the connected Miscellaneous Petition was closed.
C. SARAVANAN, J.
The appellant-wife is aggrieved by the impugned fair and decretal order dated 17.10.2016 passed by the Family Court at Vellore in F.C.O.P.No.245 of 2014 (hereinafter referred to as the Family Court and the impugned order).
2. F.C.O.P. No. 245 of 2014 was filed by the respondent-husband before the Family Court seeking to dissolve the marriage solemnized on 15.2.2009 under Section 13-1(i-a) & (i-b) of the Hindu Marriage Act, 1955 between the appellant and the respondent on the grounds of cruelty and adultery.
3. The impugned order has dissolved the marriage solemnized on 15.2.2009 between the appellant and the respondent on the ground of cruelty by the appellant. Though adultery was also alleged same has not been proved before the Family Court.
4. In the present appeal the appellant seeks to assail the impugned order insofar as it upholds the plea of cruelty and the dissolution of the marriage ordered by the impugned order by the Family Court.
5. The present appeal was filed on 11.01.2017 before this Court with a delay of 24 days. Though notice was ordered in the miscellaneous proceeding to condone delay the delay on 14.02.2017, it remained un-served on the respondent.
6. Meanwhile, on 05.03.2017 the respondent re-married without awaiting for the outcome of the present appeal. The 2nd marriage was solemnized within 101 days from the date of the impugned order. The respondent also did not file caveat before this Court to get notice.
7. The brief facts of the case on merits are as follows :-
(I) The marriage between the appellant and the respondent was solemnized on 15.02.2009 as per the Hindu Customary rites.
(II) On 13.03.2009, after the marriage the appellant and the respondent proceeded to the United States of America, where the respondent was employed.
(III) The appellant and the respondent started their matrimonial home in the United States of America.
(IV) The marriage was consummated and later a child was born on 07.04.2010 in the United States of America.
(V) Sometime during their stay, respondent’s friend Prabhakar is said to have visited the appellant and the respondent’s house when he is supposed to have inappropriately and casually touched/tapped the appellant’s thigh thrice in front of the respondent.
(VI) Though the appellant did not react to the same, the respondent was upset and slighted with the appellant for not having protested to his friend for such indiscretions.
(VII) Later in connection with the child's birth, the appellant's parents visited the appellant and the respondent. That time the relationship between the appellant and respondent was not very cordial.
(VIII) The appellant’s father appears to have intervened and got embroiled and in the heat of the moment had chided the respondent to go and “sleep with his mother” though the exact background for the trigger has not been explained.
(IX) The episode forms the basis on which the respondent initiated proceeding before the Family Court for dissolution of the marriage. Though adultery was pleaded it was neither proved nor seriously argued.
(X) The Family Court has concluded that since the appellant neither rebuked her father nor consoled the respondent, the appellant was cruel and found good reason for dissolving the marriage.
(XI) After the incident, the appellant returned back to India on 27.07.2010 with child and her parents.
(XII) The appellant thereafter, had tried contacting the respondent over phone. However, the respondent refused to take any of the appellant’s calls.
(XIII) The respondent’s mother is said to have called the appellant and scolded her and asked her not to disturb the respondent.
(XIV) Thereafter, the appellant addressed an Ex.P3 e-mail dated 19.03.2011 to the respondent and requested the respondent to rework the broken relationship.
(XV) The respondent sent a reply vide, Ex.A.4 dated 24.03.2011 wherein he countered the allegations and found fault with the appellant and her father on several counts including the appellant’s fath
