{"id":141994,"date":"2008-01-21T00:00:00","date_gmt":"2008-01-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sumathi-vs-palanichamy-on-21-january-2008"},"modified":"2016-07-07T08:50:12","modified_gmt":"2016-07-07T03:20:12","slug":"sumathi-vs-palanichamy-on-21-january-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sumathi-vs-palanichamy-on-21-january-2008","title":{"rendered":"Sumathi vs Palanichamy on 21 January, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Sumathi vs Palanichamy on 21 January, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 21\/01\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE G.RAJASURIA\n\nC.M.S.A.No.7 of 2007\nand\nM.P.(MD)Nos.1 to 5 of 2007\n\n\nSumathi\t\t\t... Appellant\/Wife\n\nVs\n\nPalanichamy\t\t\t... Respondent\/Husband\n\n\nPrayer\n\nAppeal filed under Section 28 of the Hindu Marriage Act read with\nSection 100 of the Civil Procedure Code, against the order passed in C.M.A.No.31\nof 2005 dated 28.12.2006 on the file of the Principal District Judge, Karur,\nconfirming the order passed in H.M.O.P.No.50 of 2004 dated 29.07.2005 on the\nfile of the Subordinate Judge, Karur.\n\n!For Appellant\t \t\t... Mr.S.Subbiah for\n\t\t\t\t    Mr.M.Subash Babu.\n\n^For Respondent \t\t... Mr.T.Srinivasa Raghavan\n\t\t\t\t\tfor Mr.M.Karthikeya\n\t\t\t\t\tVenkitachalapathy\n\n\n\n\n:JUDGMENT\n<\/pre>\n
\tThis appeal is focussed as  against the order passed in C.M.A.No.31 of
\n2005 dated 28.12.2006 on the file of the Principal District Judge, Karur,
\nconfirming the order passed in H.M.O.P.No.50 of 2004 dated 29.07.2005 on the
\nfile of the Subordinate Judge, Karur.\n<\/p>\n
\t2. For convenience sake, the parties are referred to hereunder as husband
\nand wife.\n<\/p>\n
\t3. The warp and woof of the case of the husband could pithily and
\nprecisely be portrayed thus:\n<\/p>\n
\tThe marriage between the parties herein took place on 20.02.1997 as per
\nthe Hindu Rites and Customs.  During the wedlock, they gave birth to two female
\nchildren.  The wife is an handicapped lady due to polio, even before such
\nmarriage.  Both are employed.  The wife started disrespecting the husband and
\nindulging in giving mental torture to him and treated him cruelly.  She was in
\nthe habit of leaving the matrimonial home at her whims and fancies.  She also
\nlodged a false complaint with the police as against the husband and his parents
\nand the criminal case ended in acquittal.  Accordingly, he prayed for divorce.\n<\/p>\n
\t4. Per contra, denying and disputing, refuting and impugning the
\naverments\/allegations in the petition filed by the husband, the wife filed the
\ncounter with the averments thus:\n<\/p>\n
\tThe husband was a part time worker in Karur Municipality at the time of
\nhis marriage and till he got confirmation in his job, the relationship between
\nthe husband and the wife was cordial.  Once, he became permanent in his job, he
\nstarted harassing the wife so as to get rid of her and to marry some other girl.
\nShe would also allege that the husband and his parents beat her black and blue
\nand injured her.  Accordingly, she prayed for the dismissal of the divorce
\npetition.\n<\/p>\n
\t5. The trial Court framed the relevant issue and during trial, the husband
\nexamined himself as P.W.1 and Exs.A.1 to A.6 were marked and the wife examined
\nherself as D.W.1 along with D.W.2 and no exhibits were marked on the side of the
\nwife.\n<\/p>\n
\t6. Ultimately, the trial Court granted divorce, whereupon the first
\nappellate Court confirmed the judgment and decree of divorce granted by the
\ntrial Court.  However, during the first appellate stage, the following documents
\nwere filed:\n<\/p>\n
Exhibits
\nDated
\nDocuments
\nEx.R.1
\n05.03.2003
\nCertified copy of the F.I.R.\n<\/p>\n
Ex.R.2
\n21.08.2003
\nCertified copy of the charge sheet against the petitioner.
\nEx.R.3
\n…\n<\/p>\n
Rough Sketch
\nEx.R.4
\n23.02.2003
\nCertified of wound certificate of the respondent\/wife.
\nEx.R.5
\n…\n<\/p>\n
Certified copy of the Compromise petition in C.C.No.606 of 2003.
\nEx.R.6
\n23.02.2004
\nCertified copy of the order of J.M.No.2, Karur, in the compromise petition.
\nEx.R.7
\n23.03.2004
\nCertified copy of the order of the J.M.No.2, Karur, in C.C.No.606 of 2003.
\nThe first appellate Court, it appears, relied on those documents as Exhibits 1
\nto 7 on the side of the wife and the fact remains that no documents were marked
\non the side of the wife before the trial Court and as such, the aforesaid
\ndocuments shall be taken as Exs.R.1 to R.7.\n<\/p>\n
\t7. Being aggrieved by and dissatisfied with, the judgments and decrees of
\nboth the Courts below, the wife preferred this Civil Miscellaneous Second Appeal
\non the following main grounds among others:\n<\/p>\n
\tBoth the Courts below erred in appreciating the facts, due to their wrong
\napproach.  The divorce application filed under Section 13(1)(ia) of Hindu
\nMarriage Act, on the ground of cruelty should have been dismissed.  The criminal
\ncase ended in acquittal, consequent upon the compromise arrived at between the
\nrival parties and not on merits.  Exs.A.3 to A.5 were wrongly relied on by the
\nCourts below.  Absolutely, there was no evidence for granting divorce on the
\nground of cruelty.  Accordingly, she prayed for setting aside the judgments and
\ndecrees of both the Courts below.\n<\/p>\n
\t8. Heard both sides.\n<\/p>\n
\t9. At the time of admitting this second appeal, my learned Predecessor
\nframed the following substantial questions of law:\n<\/p>\n
\t1. Whether the grant of divorce under ground of cruelty is right or not?\n<\/p>\n
\t2. Whether the complaint preferred by the wife against husband is amount
\nto mental agony?\n<\/p>\n
\t3. Whether the act of mental cruelty  continued even after the compromise?\n<\/p>\n
\t4. Whether the husband has discharged his burden of proof?\n<\/p>\n
At the time of hearing the second appeal, the following additional substantial
\nquestions of law are framed:\n<\/p>\n
\t(i) Whether after compromise the act of mental cruelty will stand?\n<\/p>\n
\t(ii) Whether the husband discharge his burden of proof?\n<\/p>\n
The Points:\n<\/p>\n
\t10. Axiomatic and obvious, the fact is that  there is no  proper
\ndefinition of cruelty as found set out in any statute, whereupon the Honourable
\nApex Court in catena of decisions highlighted as to what would amount to mental
\nand physical cruelty.  Before embark upon the discussion, based on factual and
\nlegal issues involved in this case, I would like to refer to the following
\ndecisions purposefully and fruitfully:\n<\/p>\n
\t(i) Savitri Pandey v. Prem Chandra Pandey<\/a> reported in (2002) 2 Supreme
\nCourt Cases 73.  An excerpt from it, would run thus:\n<\/p>\n
\t“6. Treating the petitioner with cruelty is a ground for divorce under
\nSection 13(1)( i-a ) of the Act. Cruelty has not been defined under the Act but
\nin relation to matrimonial matters it is contemplated as a conduct of such type
\nwhich endangers the living of the petitioner with the respondent. Cruelty
\nconsists of acts which are dangerous to life, limb or health. Cruelty for the
\npurpose of the Act means where one spouse has so treated the other and
\nmanifested such feelings towards her or him as to have inflicted bodily injury,
\nor to have caused reasonable apprehension of bodily injury, suffering or to have
\ninjured health. Cruelty may be physical or mental. Mental cruelty is the conduct
\nof other spouse which causes mental suffering or fear to the matrimonial life of
\nthe other. “Cruelty”, therefore, pos tulates a treatment of the petitioner with
\nsuch cruelty as to cause a reasonable apprehension in his or her mind that it
\nwould be harmful or injurious for the petitioner to live with the other party.
\nCruelty, however, has to be distinguished from the ordinary wear and tear of
\nfamily life. It cannot be decided on the basis of the sensitivity of the
\npetitioner and has to be adjudged on the basis of the course of conduct which
\nwould, in general, be dangerous for a spouse to live with the other. In the
\ninstant case both the trial court as well as the High Court have found on facts
\nthat the wife had failed to prove the allegations of cruelty attributed to the
\nrespondent. Concurrent findings of fact arrived at by the courts cannot be
\ndisturbed by this Court in exercise of powers under Article 136 of the
\nConstitution of India. Otherwise also the averments made in the petition and the
\nevidence led in support thereof clearly show that the allegations, even if held
\nto have been proved, would only show the sensitivity of the appellant with
\nrespect to the conduct of the respondent which cannot be termed more than
\nordinary wear and tear of the family life.”\n<\/p>\n
\t(ii) Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate<\/a> reported in
\n(2003) 6 Supeme Court Cases 334.  An excerpt from it, would run thus:
\n\t“6. In V. Bhagat v. D. Bhagat<\/a> 2 it was observed that mental cruelty in
\nSection 13(1)( i-a ) can broadly be defined as that conduct which inflicts upon
\nthe other party such mental pain and suffering as would make it not possible for
\nthat party to live with the other and the parties cannot reasonably also be
\nexpected to live together or that the wronged party cannot reasonably be asked
\nto put up with such conduct and continue to live with the other party. It was
\nalso considered to be not necessary to prove that the mental cruelty is such as
\nto cause injury to the health of the wronged party. That was a case wherein the
\nhusband filed a petition against the wife for divorce on the ground of adultery.
\nIn the written statement filed by the wife in the said proceedings, she alleged
\nthat the husband was “suffering from mental hallucination”, that his was a
\n“morbid mind … for which he needs expert psychiatric treatment”, and that he
\nwas “suffering from paranoid disorder” etc. and that during cross-examination
\nseveral questions were put to him suggesting that the petitioner and several
\nmembers of his family including his grandfather were lunatics and that the
\nstreak of insanity was running in the entire family. It is in the said context
\nthis Court though he ld the allegations levelled against the wife were not
\nproved, the counter-allegations made by the wife against the husband certainly
\nconstituted mental cruelty of such a nature that the husband cannot reasonably
\nbe asked to live with the wife thereafter. The husband, it was also held, would
\nbe justified to say that it is not possible for him to live with the wife. In
\nrejecting the stand of the wife that she wants to live with her husband, this
\nCourt observed that she was deliberately feigning a posture, wholly unnatural
\nand beyond comprehension of a reasonable person and held that in such
\ncircumstances the obvious conclusion has to be that she has resolved to live in
\nagony only to make life a miserable hell for the husband, as well. …\n<\/p>\n
\t11. … To satisfy the requirement of clause ( i-a ) of sub-section (1) of
\nSection 13 of the Act, it is not as though the cruel treatment for any
\nparticular duration or period has been statutorily stipulated to be necessary.
\nAs to what constitutes the required mental cruelty for purposes of the said
\nprovision, in our view, will not depend upon the numerical count of such
\nincidents or only on the continuous course of such conduct, but really go by the
\nintensity, gravity and stigmatic impact of it when meted out even once and the
\ndeleterious effect of it on the mental attitude, necessary for maintaining a
\nconducive matrimonial home. If the taunts, complaints and reproaches are of
\nordinary nature only, the courts perhaps need consider the further question as
\nto whether their continuance or persistence over a period of time render, what
\nnormally would, otherwise, not be so serious an act to be so injurious and
\npainful as to make the spouse charged with them genuinely and reasonably
\nconclude that the maintenance of matrimonial home is not possible any longer.
\n…”\n<\/p>\n
\t(iii) Parveen Mehta v. Inderjit Mehta<\/a> reported in (2002) 5 Supreme Court
\nCases 706. An excerpt from it, would run thus:\n<\/p>\n
\t“17. This Court, construing the question of mental cruelty under Section
\n13(1)( i-a ) of the Act, in the case of G.V.N. Kameswara Rao v. G. Jabilli<\/a>
\n[(2002) 2 SCC 296] observed: (SCC pp.   303-04, para 12)
\n“12. The court has to come to a conclusion whether the acts committed by the
\ncounter-petitioner amount to cruelty, and it is to be assessed having regard to
\nthe status of the parties in social life, their customs, traditions and other
\nsimilar circumstances. Having regard to the sanctity and importance of marriages
\nin a community life, the court should consider whether the conduct of the
\ncounter-petitioner is such that it has become intolerable for the petitioner to
\nsuffer any longer and to live together is i mpossible, and then only the court
\ncan find that there is cruelty on the part of the counter-petitioner. This is to
\nbe judged not from a solitary incident, but on an overall consideration of all
\nrelevant circumstances.”\n<\/p>\n
\t21. Cruelty for the purpose of Section 13(1)( i-a ) is to be taken as a
\nbehaviour by one spouse towards the other, which causes reasonable apprehension
\nin the mind of the latter that it is not safe for him or her to continue the
\nmatrimonial relationship with the other. Mental cruelty is a state of mind and
\nfeeling with one of the spouses due to the behaviour or behavioural pattern by
\nthe other. Unlike the case of physical cruelty, mental cruelty is difficult to
\nestablish by direct evidence. It is necessarily a matter of inference to be
\ndrawn from the facts and circumstances of the case. A feeling of anguish,
\ndisappointment and frustration in one spouse caused by the conduct of the other
\ncan only be appreciated on assessing the attending facts and circumstances in
\nwhich the two partners of matrimonial life have been living. The inference has
\nto be drawn from the attending facts and circumstances taken cumulatively. In
\ncase of mental cruelty it will not be a correct approach to take an instance of
\nmisbehaviour in isolation and then pose the question whether such behaviour is
\nsufficient by itself to cause mental cruelty. The approach should be to take the
\ncumulative effect of the facts and circumstances emerging from the evidence on
\nrecord and then draw a fair inference whether the petitioner in the divorce
\npetition has been subjected to mental cruelty due to conduct of the other.”\n<\/p>\n
\t(iv) A.Jayachandra v. Aneel Kaur<\/a> reported in 2005-2-L.W.149. An excerpt
\nfrom it, would run thus:\n<\/p>\n
\t“10. The expression “cruelty” has not been defined in the Act.  Cruelty
\ncan be physical or mental.  Cruelty which is a ground for dissolution of
\nmarriage may be defined as willful and unjustifiable conduct of such character
\nas to cause danger to life, limb, or health, bodily or mental, or as to given
\nrise to a reasonable apprehension of such a danger.  The question of mental
\ncruelty has to be considered in the light of the norms of marital ties of the
\nparticular society to which the parties belong, their social values, status,
\nenvironment in which they live.  Cruelty, as noted above, includes mental
\ncruelty, which falls within the purview of a matrimonial wrong.  Cruelty need
\nnot be physical.  If from the conduct of his spouse same is established and\/or
\nan inference can be legitimately drawn that the treatment of the spouse is such
\nthat it causes an apprehension in the mind of the other spouse, about his or her
\nmental welfare then this conduct amounts to cruelty.  In delicate human
\nrelationship like matrimony, one has to see the probabilities of the case.  The
\nconcept, a proof beyond the shadow of doubt, is to be applied to criminal trials
\nand not to civil matters and certainly not to matters of such delicate personal
\nrelationship as those of husband and wife.  Therefore, one has to see what are
\nthe probabilities in a case and legal cruelty has to be found out, not merely as
\na matter of fact, but as the effect on the mind of the complainant spouse
\nbecause of the acts or omissions of the other.  Cruelty may be physical or
\ncorporeal or may be mental.  In physical cruelty, there can be tangible and
\ndirect evidence, but in the case of mental cruelty there may not at the same
\ntime be direct evidence.  In cases where there is no direct evidence, Courts are
\nrequired to probe into the mental process and mental effect of incidents that
\nare brought out in evidence.  It is in this view that one has to consider the
\nevidence in matrimonial disputes.”\n<\/p>\n
\t11. I am of the considered opinion that the aforesaid excerpts from the
\ndecisions of the Honourable Apex Court would be more than sufficient to have a
\nclear understanding as to what type of conduct of a spouse would constitute
\ncruelty as against the other spouse.\n<\/p>\n
\t12. As such, the perusal of the aforesaid decisions would clearly indicate
\nthat mere wear and tear in the marital life, should not be taken as sufficient
\nground constituting cruelty for granting divorce.\n<\/p>\n
\t13. It is therefore clear that in the wake of the dicta of the Honourable
\nApex Court, it has to be analysed as to whether both the Courts below approached
\nthe problem in proper perspective.  A mere perusal of findings of both the
\nCourts below, to say the least, would speak volumes that they never considered
\nthose decisions in proper perspective.\n<\/p>\n
\t14. The perusal of the petition in H.M.O.P.No.50 of 2004 filed by the
\nhusband under Section 13(1)(ia) of the Act, would demonstrate that the husband
\nmade some bald allegations that the wife insulted him; made publications as
\nagainst him; lodged false complaint with the police and that thereby caused
\nphysical and mental cruelty to him.\n<\/p>\n
\t15. It is therefore just and necessary to analyse in seriatim the various
\npoints raised by the parties concerned.\n<\/p>\n
\t16. The contention of the husband that she gave false complaint with the
\npolice and it ended in acquittal as though it was an acquittal on real merits of
\nthe case, turned out to be false.  During trial, the true picture was brought to
\nlimelight as under what circumstances, the criminal case ended in acquittal.\n<\/p>\n
\t17. As many as six documents were marked during trial, still the judgment
\nof the criminal Court was not marked in view of the obvious reason that had it
\nbeen marked, it would have exposed the unsatisfactory plea of the husband.\n<\/p>\n
\t18. During the appellate stage, the certified copy of the judgment of the
\ncriminal Court, was marked.  The perusal of it, would clearly highlight  that
\nthe case ended in acquittal, because the wife herself resiled from her
\ncomplaint.\n<\/p>\n
\t19. During the second appellate stage, both sides filed M.P.Nos.3,4 and 5
\nof 2007 respectively and heard both sides thereon. I am of the considered
\nopinion that this being a matrimonial matter, for the purpose of comprehensively
\ndeciding the dispute, it is just and necessary to permit all of them to file
\nadditional documents on their sides,  Moreover, these  additional documents are
\nnot cooked up ones or brought about artificially for the purpose of this case.
\nAccordingly, M.P.No.5 of 2007 is allowed and the following documents are marked
\non the husband’s side as under:\n<\/p>\n
\t(i)Ex.P.7 – The Certified copy of the order passed by the Sessions Judge,
\nKarur in Cr.R.P.No.21 of 2006 dated 29.06.2007.\n<\/p>\n
\t(ii)Ex.P.8 – Notice from the Commissioner, Karur Municipality, dated
\n26.05.2003.\n<\/p>\n
On the side of the wife, M.P.No.4 of 2007 is allowed and the following documents
\nare marked on the wife’s side:\n<\/p>\n
\t(i)Ex.R.8 – Certified copy of the order dated 21.03.2003 passed in
\nCrl.O.P.No.7324 of 2003.\n<\/p>\n
\t(ii)Ex.R.9 – Certified copy of the order dated 13.05.2003 passed in
\nCrl.O.P.No.13840 of 2003.\n<\/p>\n
\t20. During the appellate stage, the order of the Magistrate was filed and
\nrelied on as evidence.  The typed set of papers filed before this Court would
\nevidence that before the Criminal Court, a compromise petition was filed,
\nsetting out the fact that before the Panchayat, the husband and wife got the
\nmatter settled and that they intended to resume cohabitation.  Accordingly, they
\nwanted the criminal case to be dropped.  However, the learned Magistrate by
\nvirtue of his order dated 23.02.2004, dismissed the said petition on the ground
\nthat the offences under Section 498(A) and 506(ii) I.P.C were non-compoundable
\nones.\n<\/p>\n
\t21. In view of the clinching admitted facts, the matter is clear that even
\nbefore the disposal of the Criminal case, the compromise was arrived at between
\nthe husband and the wife to the effect that the criminal case should be
\nwithdrawn and they should resume cohabitation. Since the offences are non-
\ncompoundable, the wife was constrained to depose quite contrary to her complaint
\nwhich resulted in acquittal of the husband and his parents in the criminal case.
\nIn this proved background, if the  averments in the petition are considered, it
\nis at once clear that the husband was guilty of suppression of material facts.\n<\/p>\n
\t22. It is not as though the criminal Court gave a finding that the husband
\nwas innocent on real merits of the case.  But, in view of the compromise alone,
\nthe said acquittal resulted.\n<\/p>\n
\t23. Quite contrary to the undertaking given before the Criminal Court as
\nfound set out supra, the husband resiled and backed out from his stand relating
\nto resumption of cohabitation within a period of one month from the date of such
\nacquittal and he had chosen to issue divorce notice to his wife.\n<\/p>\n
\t24. At this juncture, the pertinent question arises as to how such a
\ncourse was open for the husband.  The learned Counsel for the wife would
\ncorrectly argue that for the purpose of getting acquittal, the husband
\nhoodwinked the wife to enter into such a compromise with him and consequently,
\nmade her to depose as though there was no harassment meted out to her by the
\nhusband and his parents.  The very fact that he agreed to resume cohabitation
\nwith his wife and thereafter got the criminal case ended in acquittal in his
\nfavour, would clearly demonstrate that the husband is not entitled to press into
\nservice the alleged facts of cruelty purportedly perpetrated by the wife as
\nagainst the husband.\n<\/p>\n
\t25. After such compromise and the consequent acquittal recorded in the
\ncriminal case, there was no more act of cruelty allegedly perpetrated by the
\nwife as against the husband.  Hence, in such a case, the theory of cruelty as
\nput forth by the husband should have been rejected by both the Courts below.\n<\/p>\n
\t26. Ex.A.4 is dated 27.04.2004, the certified copy of the husband’s
\ndivorce notice issued to the wife, whereas the acquittal judgment of the
\ncriminal Court is dated 23.03.2004.  Ex facie and prima facie, it is crystal
\nclear that the husband exploited the situation and got acquittal from the
\nCriminal Court. However, after getting the benefit of acquittal, he turned
\nturtle and had a volte face which resulted  in issuing divorce notice by him to
\nhis wife quite antithetical to his previous stand of compromise.\n<\/p>\n
\t27. At this juncture, the learned Counsel for the husband drew the
\nattention of this Court to the additional substantial questions of law to be
\nframed in this appeal and accordingly, both sides submitted their arguments.\n<\/p>\n
\t28. The learned Counsel for the husband would contend that a sum of Rs.2
\nlakhs was paid by the husband to the wife before the criminal case ended in
\nacquittal, by way of showing his concern towards her.\n<\/p>\n
\t29. The learned Counsel for the wife would contend that absolutely no such
\namount was paid to her and the evidence in that regard is not clear.  Whatever
\nmight be the circumstances, the husband having agreed to resume cohabitation
\nwith the wife prior to the acquittal recorded by the criminal Court, was not
\njustified in veering round and taking an antithetical plea seeking divorce by
\nissuing Ex.A.1, the divorce notice, almost a month after the criminal case ended
\nin acquittal.  In fact, the wife is the sufferer as she sustained injury
\ninflicted by the husband and her in-laws and it is clear from the records placed
\nbefore the Court.\n<\/p>\n
\t30. The F.I.R itself which was lodged by her with the police on 05.03.203,
\nwould contain the details of the injuries sustained by her, as the husband and
\nothers attacked her and thereupon only, the police registered the case in
\nCr.No.1 of 2003.  As such, the husband having perpetrated cruelty as against the
\nwife, cannot try to turn the table as against her and that too, when the
\ncriminal case ended in acquittal on the assurance of the husband  that there
\nwould be resumption of cohabitation between the husband and the wife.
\nUltimately, the husband after reaping the fruit of the wife’s concession and
\nkindness towards him, by securing acquittal in his favour, cannot be heard to
\ncontend that the wife was harsh towards him earlier to such acquittal nor can he
\nbe given the facility of obtaining divorce on the ground of alleged false
\ncomplaint lodged by her with the police.\n<\/p>\n
\t31. To the risk of repetition, it could be highlighted that after such
\nacquittal, there is no evidence to show that the wife behaved cruelly and in
\nfact, even before that there is nothing to show that she behaved cruelly towards
\nthe husband.\n<\/p>\n
\t32. The complaint given by her as against her husband to the Commissioner
\nof Karur Municipality, the employer of the husband, was anterior to such
\ncompromise.  The additional documents filed before this Court dated 26.05.2003
\nthe communication issued by the Commissioner would demonstrate that the said
\ncomplaint was given by her on 23.05.2004 long prior to the said compromise.  Her
\ncomplaint to Human Rights Commission was referred as “sub-judice” before  such
\ncompromise.  As such, the conduct of the husband clearly exposes his unwarranted
\nattitude towards his wife.\n<\/p>\n
\t33. Admittedly, the wife happened to be the husband’s father’s sister’s
\ngrand daugther and even before marriage, she was a lame.  Admittedly and
\nunambiguously, it was a love marriage between them.  After giving birth to two
\nchildren, the wife being  lame, could have had no rhyme or reason to pick up
\nunnecessary quarrels with the husband or to torture him or to indulge in
\npinpricks as against him.  Whereas considering the preponderance of
\nprobabilities and the averments in the petition coupled with the oral evidence
\non both sides, it is clear that this is not a fit case for divorce.\n<\/p>\n
\t34. The husband cannot try to capitalize his own misconducts and
\nunwarranted attitude towards his wife. If at all, there is any evidence to prove
\nthat the wife gave any false complaint either to the police or to the higher
\nofficials of the husband, the question of taking them into consideration would
\narise. In this case, the husband at the first instance, could not get
\nanticipatory bail as evidenced by the additional document, but others could get
\nanticipatory bail as per the order dated 21.03.2003 in Crl.O.P.No.7324 of 2003.
\nHowever, subsequently, by virtue of order dated 13.05.2003, in Crl.O.P.No.13840
\nof 2003, the husband got anticipatory bail, but the wife did not oppose it by
\nfiguring herself as an intervener.  Simply because, the wife approached the
\npolice for help and that too after sustaining injuries, there is no presumption
\nthat the wife had intended to treat the husband cruelly.  But, on the other
\nhand, if the complaint lodged with the police is turned out to be one  actuated
\nby malice or if there are successive frivolous complaints by the wife, then such
\nfacts would enure to the benefit of the husband in seeking divorce.  Here, it is
\nnot so for the reasons already adverted to supra.  She has not given any
\nfrivolous complaint with the employer of the husband also.\n<\/p>\n
\t35. In the petition itself, absolutely there is no plausible reason set
\nout as to what made such lame wife to create trouble when the husband was
\nallegedly so kind and considerate towards her.  As such, the case of the husband
\nis an untenable one and unbelievable one.\n<\/p>\n
\t36. The learned Counsel for the husband cited the following decisions:\n<\/p>\n
\t(i) Dastane v. Dastane<\/a> reported in AIR 1975 SUPREME COURT 1534.\n<\/p>\n
\t(ii) Chetan Dass v. Kamla Devi<\/a> reported in (2001) 4 Supreme Court Cases\n<\/p>\n
250.<\/p>\n
\t37. The learned Counsel for the wife relied on the following dicta:\n<\/p>\n
\t(i) Rajinder Bhardwaj v. Anita Sharma reported in AIR 1993 DELHI 135.\n<\/p>\n
\t(ii) A.Jayachandra v. Aneel Kaur<\/a> reported in 2005-2-L.W.149.\n<\/p>\n
\t(iii) Gajalakshmi v. R.Saravanan<\/a> reported in 2004(1) TLNJ 329.\n<\/p>\n
\t38. In fact, the wife was driven to the extent of filing an application
\nunder Section 125 C.P.C for maintenance and except to the wife, the maintenance
\nwas ordered to the minor children on the ground that she was employed.  The
\ntrial Court as well as the appellate Court simply misunderstood the judgment of
\nthe criminal court and the complaint given to the employer by the wife and
\nconsequently misapplied the decision of the Honourable Apex Court in
\nA.Jayachandra v. Aneel Kaur<\/a> reported in 2005-2-L.W.149.\n<\/p>\n
\t39. The findings of both the Courts below are far from satisfactory as
\nthey should not have been carried away by the acquittal of the criminal case as
\nwell as the complaint given by the wife to the employer of the husband in
\ngranting divorce.\n<\/p>\n
\t40. Hence, a deep scrutiny clearly highlights that the husband was at
\nfault in causing the matrimonial rift in the relationship between them and that
\nalone, paved the way for the dispute.  Accordingly, the points are answered.\n<\/p>\n
\t41. In the result, this second appeal is allowed, setting aside the
\njudgments and decrees of both the Courts below and ultimately, the H.M.O.P.No.50
\nof 2004 on the file of the Subordinate Judge, Karur, is dismissed.\n<\/p>\n
\t42. I am of the firm opinion that this is a fit case for the husband to
\nbury the hatchet and think of reunion.  Both parties should forget about the
\npast and the unsavory events which took place in their life and resume
\ncohabitation at the earliest point of time in the best interest of their two
\nfemale children whose future is of paramount importance.   Consequently,
\nM.P.Nos.1 and 2 of 2007 are closed.  No costs.\n<\/p>\n
rsb\t<\/p>\n
To<\/p>\n
1.The Principal District Judge, Karur.\n<\/p>\n
2. The Subordinate Judge, Karur.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Sumathi vs Palanichamy on 21 January, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21\/01\/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.S.A.No.7 of 2007 and M.P.(MD)Nos.1 to 5 of 2007 Sumathi … Appellant\/Wife Vs Palanichamy … Respondent\/Husband Prayer Appeal filed under Section 28 of the Hindu Marriage Act read with Section […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-141994","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSumathi vs Palanichamy on 21 January, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sumathi-vs-palanichamy-on-21-january-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sumathi vs Palanichamy on 21 January, 2008 - 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