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2021 Supreme(Mad) 3424
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
S.ANANTHI, J.
K.Sumathi - Appellant
Vs.
J.Kannappan - Respondent
C.M.S.A(MD)No.12 of 2018 and C.M.P(MD)No.4788 of 2018
Decided On : 22-12-2021
Advocate Appeared:
For the Appellant : Mr.S.Manoharan
For the Respondent: Mr.Babu Rajendran
Headnote:
Dowry Prohibition Act - Section 4 – Indian Penal Code,1860 - Sections 406, 498A – Decree of Divorce - Dowry Harassment -'mental cruelty'- Whether first Appellate Court was right in granting decree of divorce on ground of cruelty without proper pleadings by petitioner - Respondent herein/husband has filed a petition in H.M.O.P. on file of Additional Subordinate Court seeking divorce and same was dismissed on - Against said dismissal order he has preferred an appeal in H.M.C.M.A. on file of V Additional District Court same was partly allowed on against which present appeal has been filed by appellant herein/wife - Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the Court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse (Para 16).
Finding of the Court:
Appellant contended that she is willing to live with her husband - But Restitution of Conjugal rights petition was filed after years from divorce petition and same was also withdrawn by her - Next question is that their son is willing to live with both father and mother - So whether his welfare is to be considered - Age of son is years - He can easily understand situation - He also lived with his mother for past years - There is no doubt that if parents live together may give his comfort life - But both parties crossed stage of joint together - Considering all these aspects this Court is not inclined to interfere with findings of Appellate Judge - Civil Miscellaneous Second Appeal is dismissed.
Result: Miscellaneous Petition Is Closed.
JUDGMENT :
This appeal has been filed to set aside the Decree and Judgment, dated 28.02.2018 in H.M.C.M.A.No.9 of 2015 passed by the learned V Additional District Judge, Madurai, by partly allowing H.M.O.P.No.102 of 2000 on the file of the II Additional Subordinate Court, Madurai, dated 13.08.2015.
2. The respondent herein/husband has filed a petition in H.M.O.P.No. 102 of 2000 on the file of the learned II Additional Subordinate Court, Madurai, seeking divorce and the same was dismissed on 13.08.2015. Against the said dismissal order, he has preferred an appeal in H.M.C.M.A.No.9 of 2015 on the file of the learned V Additional District Court, Madurai, the same was partly allowed on 28.02.2018, against which, the present appeal has been filed by the appellant herein/wife.
3. Heard on either side. Perused the material documents available on record.
4. This appeal has been filed on the ground that the lower Appellate Court ought to have seen that if the appellant is unsound, she could not have been brought up her son. The appellant/respondent/wife who is in an illiterate and incapable of handling the opportunities of proving the evidence in the Court below and to cross examine the respondent/petitioner/husband in a proper and perspective manner.
5. The respondent/appellant/petitioner/husband has filed a petition in H.M.O.P.No.102 of 2000 seeking divorce on the ground of cruelty and wife is mentally affected. The said divorce petition was dismissed by the learned II Additional Subordinate Judge, Madurai.
6. Against the dismissal order, dated 13.08.2015, the respondent herein/husband has preferred an appeal in H.M.C.M.A.No.9 of 2015 and the same was partly allowed on the ground of cruelty. Against the said order, the wife/appellant herein has preferred this present appeal.
7. The substantial question of law is to be decided in this appeal is as follows:
a). Whether the first Appellate Court was right in granting decree of divorce on the ground of cruelty without proper pleadings by the petitioner?
b). Whether the first Appellate Court followed the guidelines of (2007) 4 SCC 511 by the Apex Court to make a case of mental cruelty to grant a decree of divorce?
c). Whether the First Appellate Court was right in not considering the welfare of the child which has to be prime consideration of divorce matters as held by the Apex Court?
d). Whether the first Appellate Court was right in allowing the Appeal in part by modifying the well considered Judgment of the Trial Court without proper reasons?
e). Whether the first Appellate Court was right in allowing the Appeal in part without appreciating the words and phrases cruelty, mental cruelty etc. as held by Apex Court in its various Judgments?
f). Whether the first Appellate Court was right in granting a decree of divorce on isolated incidents that too alleged by the petitioner without proper evidence?
8. The marriage between the parties is admitted. Due to the wedlock, one son born to them is also admitted. Both of them lived separately from the year 2000.
9. In the year 2000, the respondent herein/husband has filed divorce petition in H.M.O.P.No.102 of 2000. The appellant/wife has preferred a police complaint against her husband and his father and the same was registered in Crime No.22 of 2002 on the file of the All Women Police Station, Thirupparangundram, for the offences under Sections 406, 498A of IPC and Section 4 of Dowry Prohibition Act.
10. Till the date of filing H.M.O.P.No.102 of 2000, the appellant/wife has not given any complaint regarding dowry harassment. In this case, charge sheet was filed and taken as C.C.No.1983 of 2002 before the learned Judicial Magistrate No.VI, Madurai. Discharge petition was also filed before the learned Judicial Magistrate and the same was dismissed. Against the dismissal order, Crl.R.C.No.296 of 2009 has also been filed by the father of the husband before this Court and the same was allowed on 11.09.2009 on the ground that only after filing divorce petition the
