IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 12.02.2002
Coram :
THE HONOURABLE MR. JUSTICE P. SHANMUGAM
and
THE HONOURABLE MR. JUSTICE P. THANGAVEL
C.M.A. No.1006 of 1999
V.R. Rajakumaran .. Appellant
vs.
B. Jayalakshmi .. Respondent
PRAYER : Appeal against the order of the Family Court, Madurai dated 19.8.1998 and made in H.M.O.P. No.184 of 1994.
: ORDER
This Appeal coming on for hearing on this day and upon perusing the
Memorandum of Appeal, the order of the Lower Court and the material papers in
the case, and upon hearing the arguments of Mr. S. Muthuraman for the
appellant and of Mr. A.T. Balaji for the respondent, the Court passed the
following Judgment :
J U D G M E N T
(Judgment of the Court was delivered by P. Shanmugam, J.)
The unsuccessful petitioner before the Family Court for a divorce
under Section 13(1)(i)(a) of the Hindu Marriage Act is the appellant before
this court. The appellant had prayed for a decree of divorce mainly on the
ground of desertion and other allegations set out in the petition dated
4.3.1993. The respondent filed a counter statement on 6.8.1993 and after
considering the oral and documentary evidence, the Family Court Judge
dismissed the petition. The present appeal is against this judgment.
2. Both the parties are educated, the husband being a qualified Engineer and
the wife working as an Agricultural Officer in a Government Department. The
marriage took place on 21.6.1991 as per the customs and religious formalities
of their community. A female child was born to them on 21.6.1992. Within a
short period, a lawyer’s notice was issued dated 14.1.1993 by the
appellant/husband setting out the grounds for divorce. The respondent/wife
immediately wrote a letter dated 4.1.1993 to the counsel for the appellant
requesting him to permit them to live together. Thereafter, she also gave a
reply through her counsel on 5.3.1993. The learned Family Court Judge, after
considering both the oral and documentary evidence, dismissed the application.
3. We have heard the counsel for the appellant and the respondent,
gone through the records and considered the matter carefully.
4. The main grounds urged in support of the petition are that the
respondent/wife compelled the appellant/husband to resign his lucrative job as
an Engineer at Jamshedpur and made him to come back to Madurai. Thereafter,
the respondent was not willing to resign her job as Agricultural Officer and
continued to go to office, insisting for a separate residence. When the
appellant refused to comply with her request, she started giving troubles by
not fulfilling her matrimonial obligations which a wife is expected to do,
thereby causing mental agony and cruelty to the appellant. Even after the
transfer of the petitioner to Madurai, she did not change her attitude and
insisted for a separate residence at Pasumalai where her office is located.
The respondent ill-treated the appellant’s parents and his close relatives and
had not given due respect to them. According to the appellant, she used to
tease him on his unemployment in front of his friends and relatives. The
respondent used to leave her marital home to her parents’ house at
Aruppukottai without informing the appellant. She had often threatened the
appellant that she is going to commit suicide and was also making false
allegations against the appellant’s parents that there was a demand of dowry.
On 1.2.1992, the respondent left the house taking all her jewels and belonging
along with her and did not turn up to his house thereafter. The respondent
gave birth to a female child on 21.6.1992, but the birth of the child was not
informed to the appellant. Even after the appellant’s attempt to go and see
the child, the respondent did not change her attitude. In view of the adamant
attitude of the respondent in refusing to come and live with the appellant and
her insistence to have a separate house, finding no other alternative, the
appellant filed the petition seeking divorce on the ground that the respondent
had deserted him and alleging mental cruelty.
5. All these allegations are denied by the respondent/wife. She
pictures an entirely different story than what had been stated in the petition
of the appellant. Her main stand is that the husband has hatched out a case
for divorce on the ground of desertion by making necessary ingredients so as
to get a decree for divorce with an ulterior purpose. She had made it clear
that she is always ready and willing to live with her husband and denied all
the allegations contained in the petition. According to her, the appellant
had resigned his job on his own and not on her compulsion. Secondly, it is
her specific case that she never agreed to resign her own job. On the
contrary, it is the respondent’s father who helped her to get a transfer to
Madurai. She further says that she was always affectionate to the parents and
relatives of the appellant and had not compelled the appellant to have a
separate residence as claimed by him. She was taking care of the family and
the appellant’s parents. After the birth of the female child, the parents of
the appellant were disappointed to know that it was a girl child and hence, it
is only with an ulterior motive, an allegation that she did not return from
her parents’ house is made. All the allegations regarding her attempt to
commit suicide are, according to the respondent, created for the purpose of
the case. On 2.2.1992, she was five months’ pregnant. Even prior to that,
she was having complaints of giddiness and on one such occasion, she fell down
in the kitchen. Her father-in-law as well as the mother-in-law, who were with
her, made arrangements to take her to the hospital where she was advised to
take rest. Only at their insistence she was taken to her parents’ house. She
never took back the jewels along with her while leaving for her parents’ house
except for the usual jewellery which she was wearing. After the birth of the
child, there was no quarrel between them. The appellant came and saw the
child and he had also brought new clothes for the child and was staying for
two days at Aruppukottai. He had given telegram to his parents about the
birth of the child. However, they were disappointed to know that the child
was a female child and not a male child.
6. Thus, we find that each and every allegation contained in the
petition has been denied in detail by the respondent/wife and an entirely new
case has been put forward by her. The appellant has also filed a detailed
reply affidavit. From the findings of the court below, we find that according
to the court below, the main grounds on which the appellant sought for a
separation are that the respondent refused to resign her job even though it
was agreed to be done prior to the marriage; secondly, the wife forced the
appellant to resign his job; thirdly, she wanted to have a separate residence
of her own, away from the appellant’s family; fourthly, it is alleged that she
had been threatening to commit suicide on the ground that she is not allowed
to have a separate residence. It is also stated that she is not showing due
respect to the appellant’s parents. The Family Court found that the wife is
always willing to go and live with her husband and if he wants, she is
prepared to resign her job. But, it is found that it is the appellant who is
not willing to take her back. It is found that the appellant had not
established cruelty. The Family Court observed, “The petty trifles and
quarrels in an ordinary family should not be taken as a ground for cruelty and
divorce. The day-to-day wear and tear of life has been exaggerated to claim
divorce”. The application was dismissed with costs.
7. The main point for consideration is whether the appellant has made
out a case for divorce. The main plea of the appellant in support of his case
are :
(i) Compulsion on the part of his wife to resign his
lucrative job;
(ii) Refusal of the wife to resign her job;
(iii) Failure to perform her marital obligations;
(iv) Threatening with suicide;
(v) Disrespect to elders; and
(vi) Failure to inform the birth of the child.
We find from the records that the statement that the husband was compelled by
the respondent to resign his job cannot be accepted. After the marriage took
place on 21.6.1991, both of them left for Jamshedpur and lived there hardly
for a month’s time and within that one month period, it is very difficult to
accept the case of the appellant that the wife had compelled him to resign his
job. In his own legal notice, the appellant has stated that the respondent
was putting obstacle for improving in his life by requesting for resignation.
But, from Ex.R.1, in his alleged interview given to a magazine dealing with
industries, along with his photograph, he has stated that he has taken a
decision to start his own hosiery industry after resigning his job. He
further says that only due to his extreme interest in selfemployment, he had
resigned his job wherein he was drawing a salary of Rs.7,000/-. At more than
one place, he has mentioned about his selfemployment and his ambition to earn
crores of rupees in future years. This is in consonance with the stand of the
respondent that even before the marriage, the appellant had decided to resign
his job and come back to start his own industry. Therefore, it is too much to
ask the court to believe that within one month of the marriage, the wife
compelled the appellant to resign his job, come back to Madurai and remain
unemployed, on the basis of the self-serving oral testimony. No wife would
like her husband to remain unemployed, especially when both the parents are
very much interested in having employment. Therefore, the allegation has no
substance.
8. The second allegation as found in the petition is that the
respondent refused to resign her job after having assured the appellant’s
family that she would resign the job after marriage. The said allegation also
cannot be accepted to be true. In Ex.A.5, the legal notice issued by the
appellant, in paragraph 4, he has stated that only with the assistance and the
efforts of the appellant’s father, the respondent could get a transfer from
Paramakudi to Madurai. This shows that the appellant’s family was assisting
her to get a transfer. Therefore, if really they wanted the respondent to
resign from the job, they would have not helped her to get the transfer. The
appellant’s father was an officer in the Agricultural Department and according
to them, it is not in dispute that many of their relatives are employed in
Government service and the specific case of the respondent is that they wanted
an employed daughter-in-law who is in Government service and therefore, after
having known that the respondent is employed in Government service, it is very
difficult to be lieve that they would have compelled her to resign as a
condition for the marriage. The case of the appellant, as stated, that she
had agreed to resign the job after the marriage and thereafter refused to do
so is therefore difficult to accept. Further, there is no purpose to resign
her job when actually the husband is also unemployed. She had categorically
stated that she is prepared to resign her job if he takes her back.
Therefore, on this count also, we are unable to accept the case of the
appellant.
9. Thirdly, it is stated that the wife is insisting to have a
separate family and is asking the appellant to come away from his family. As
against the legal notice stating that she is trying to have a separate house,
she had, on her own, written a letter to the counsel for the appellant wherein
she says that she was shocked to receive the legal notice and that she is
prepared to live with her loving husband and respected father-in-law and
mother-in-law. She further says that she wanted to live with them jointly and
requested the counsel to help her in her endeavour. This letter, in our view,
appears to be very natural, coming out of the inner feelings of the wife. We
have no reason to reject this letter written by the respondent, since
admittedly there is no reply to this letter. Thereafter, the respondent has
given a detailed reply, countering each and every claim of the appellant 0
that it is the wife who wanted to go for a separate house. In the light of
the specific stand and the facts and circumstaces of the case, we find no
grounds to accept the case of the appellant that the wife was insisting for a
separate house of her own and that this is one of the grounds for cruelty.
10. The marriage was held in January, 1991 and she was five months’
pregnant in February 1992. She became sick because of her pregnancy and
admittedly she was taken to the hospital and was advised rest and was then
taken to her parents’ house on her medical leave. After the birth of the
child in January 1992, she was refused permission to come back. Therefore,
there is no question of her denial of marital obligations towards her husband.
11. It is submitted that the appellant was showing disrespect to the
parents of the appellants and his relatives and that she had tried to threaten
to commit suicide. In support of this plea, the appellant has let in the
evidence of P.Ws. 2, 3 and 4. Admittedly, the witnesses are all either very
close relatives or friends of the appellant’ s family. Even P.W.2 had stated
that when the respondent was questioned about this in the panchayat, she did
not reply anything but only stated that she will live peacefully thereafter.
P.W.3 is a very close relative of the appellant. P.W.4 is said to be an
independent witness, who is living in the house opposite to the appellant’s
house. As per this deposition, on one particular day, the appellant’s mother
came to his house and informed him that her daughter-in-law has poured
kerosene upon herself and she requested for assistance. They took her to the
doctor and got her examined. According to the doctor, it was a suicide case
and he requested them to take her to the Government Hospital. The respondent
informed that she has only threatened and that she has not poured kerosene
when she was asked as to why she did so, being an educated lady. In this
case, the doctor was not examined. Further, the case, as stated by P.W.4,
appears to be not clear. If really the doctor was examined, it would have
been easily found out whether there was actually an attempt to commit suicide
either by consuming or pouring kerosene and he would not have asked the
patient to be taken to the hospital unless it was true. Admittedly, she was
not taken to the hospital. There is inconsistency in the version. The
statement of P.W.4 in the cross-examination is not helpful to the appellant.
As a matter of fact, he says that he does not know whether there will be any
quarrel between the appellant and the respondent and that he does not know why
they are living separately. From this, it is clear that a person who is
living in the house opposite to the appellant’s house in unaware of any
problem in the family of the appellant. If the case as spoken to by the
appellant is true, definitely he would have known about it and he would have
deposed about the factum of atleast some of the allegations as stated in the
petition. The respondent, apart from denying the allegation, says that there
was no such incident and that she does not P.W.4. The burden is on the
appellant to prove his case. In our view, the appellant had failed to
establish this allegation. On the contrary, the finding is, “It is the
petitioner who has deserted the respondent”. The appellant and his family
were upset over the birth of the female child and she had categorically
replied to the notice that she wants to live with her husband and family. We
are unable to attach any credence to the case of the appellant. In the light
of the discussion as stated above, we are of the view that no case has been
made out as alleged.
11. We find that the learned Family Court Judge has gone through the
evidence and has, in our view, rightly found that no grounds have been made
out to grant the relief sought for in the petition filed by the appellant.
Hence, we do not find any ground to interfere with the judgment of the Family
Court. The appeal is devoid of any merit and it is accordingly dismissed. No
costs.
(P.S.M.J.) (P.T.J.)
12.02.2002.
ab
Sd/..
Assistant Registrar
// TRUE COPY //
Sub Assistant Registrar (C.S.)
To
The Judge,
Family Court,
Madurai.
P. SHANMUGAM, J.
and
P. THANGAVEL, J.
C.M.A. No.1006 of 1999
