{"id":60673,"date":"2002-02-14T00:00:00","date_gmt":"2002-02-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-k-megalai-vs-r-muthuraj-on-14-february-2002"},"modified":"2019-01-01T22:59:25","modified_gmt":"2019-01-01T17:29:25","slug":"s-k-megalai-vs-r-muthuraj-on-14-february-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-k-megalai-vs-r-muthuraj-on-14-february-2002","title":{"rendered":"S.K. Megalai vs R. Muthuraj on 14 February, 2002"},"content":{"rendered":"
Madras High Court<\/div>\n
S.K. Megalai vs R. Muthuraj on 14 February, 2002<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF JUDICATURE AT MADRAS          \n\n Dated : 14.02.2002\n\n Coram :\n\n THE HONOURABLE MR. JUSTICE P. SHANMUGAM            \n\n  and\n\n  THE HONOURABLE MR. JUSTICE P. THANGAVEL           \n\n\n C.M.A. No.37 of 2001 and \n  C.M.P. Nos.3814 & 11991 of 2001 \n\n\n S.K. Megalai                                           ..  Appellant\n\n                vs.\n\n R. Muthuraj                                            ..  Respondent\n\n\n\nPRAYER :  \n        Appeal  against  the order and Decreetal order dated 24.11.2000 of the\nlearned Judge of the Family Court, Madurai made in H.M.O.P.  No.71 of 1997.\n\n:                                    ORDER \n<\/pre>\n
        This  Appeal  coming  on  for  Orders  on  this day, upon perusing the
\nMemorandum of Appeal, the order of the Lower Court, and the material papers in
\nthe case, and upon hearing the arguments of Mr.  V.  Sankaranarayanan for  the
\nappellant and of  Mr.   A.  Natarajan for the respondent and having stood over
\nfor consideration till this day, the Court made the following Order :-\n<\/p>\n
                                J U D G M E N T <\/p>\n
P.  SHANMUGAM, J.\n<\/p>\n
        The respondent\/wife before the Family Court, Madurai is the  appellant
\nbefore us.  The husband filed a petition H.M.O.P.  No.71 of 1997 under Section
\n13(1)  of  the  Hindu  Marriage  Act for a decree and judgment to dissolve the
\nmarriage between the parties held on 11.11.1991.    The  Family  Court,  by  a
\njudgment  dated 24.11.2000, granted the decree and directed the dissolution of
\nthe marriage.  The appeal is against this judgment and decree.\n<\/p>\n
        2.  The appellant\/wife was working as an Officer in the Indian Bank at
\nChennai and the respondent\/husband was working as Assistant  Chief  Controller
\nof  Imports  and  Exports in the Central Government Commerce Department at the
\ntime of marriage.  The marriage was an arranged marriage held according to the
\nHindu religious rites and customs on 11.1 1.1991.  Misunderstanding arose even
\nat the time of reception of the marriage  and  both  parties  have  their  own
\nversions about it.  However, they started living together at Madurai, the wife
\nhaving got  transferred  to  Madurai.    A  female  child  was born to them in
\nOctober, 1992.  On the basis of a stated incident in  the  petition  that  the
\nwife  did  not  obey  the  direction  of  the husband to take the milk tumbler
\noutside and the refusal and threatening by the wife on the alleged  statements
\nthat  she  will  give  a  police  complaint,  she  is  said  to  have left the
\nmatrimonial house at Madurai along with the child to  her  parents’  house  at
\nUthamapalayam.   The  petitioner  went  to Uthamapalayam to take the baby back
\nwith him, but the same was resisted to, resulting in the intervention  of  the
\npolice and  ultimately,  the  child was restored to the wife.  Thereafter, the
\nproblem between the parties was settled and compromised  on  22.1.1995.    The
\nwife  conceived  for the second time and she was taken for the second delivery
\non 10.10.1996, after taking scanning and undergoing medical tests at  Madurai.
\nThe second  child was born on 22.11.1996.  Contending that the husband was not
\ninformed of the birth of the second  child  and  that  his  friends  were  not
\npermitted  to  see  the  child  and that the wife had refused to carry out the
\nmarital obligations of conjugal rights, a registered notice was issued by  the
\nhusband  through  his  advocate  on  29.1.1997, followed by the petition under
\nSection 13(1) of the Hindu Marriage Act on the ground of mental cruelty.\n<\/p>\n
        3.  The wife opposed the petition, inter alia, contending  that  there
\nis  no  cause of action for the petition and that the same was made because of
\nthe hatred of the husband’s family towards the birth of  two  female  children
\nand with  an  intention  to  have a second marriage.  According to the written
\nstatement, the husband is acting at the instance of his mother and that he had
\ndeveloped hatred towards the wife only because of the constant instigation  by
\nthe mother-in-law.  She further says that the mother-in-law had influenced and
\ninterfered  even  with  the  official  conduct  of  the  husband, resulting in
\ncriminal complaints against him.  The minor differences were magnified and the
\nallegations that she was not happy with the marriage and that she  was  having
\nthe  habit  of leaving to her parents’ house without informing the husband and
\nthat the first child was named without informing him were all denied.  On  the
\ncontrary,  she points out that it is her, who was at the receiving end because
\nof her failure to bring sufficient dowry and for  giving  birth  to  a  female
\nchild.   In any event, after the admitted compromise on 22.1.1995, the husband
\nhas no cause of action to make any complaint  against  her  whatsoever.    She
\nrefused  the  allegation that the husband was not informed of the birth of the
\nsecond child.  On the contrary, it is her complaint that the husband’s  family
\ncame  to  know  that  the second child is going to be a female child after the
\nscanning was done, over which they were very much upset and therefore, inspite
\nof her informing them about the birth of the second child, they did  not  come
\nand see  the  child.    They  have  invented  reasons  to  immediately  give a
\nregistered notice on 22.1.1997 with false allegations to prepare a ground  for
\na divorce.    She  had denied all the allegations made in the petition and has
\nher own version and has put it that she is a person who had been  wronged  and
\nthat  the  mental  and physical cruelty had been inflicted only on the wife by
\nthe husband and not vice versa.\n<\/p>\n
        4.  The parties have examined themselves, besides the lawyer’s notice,
\nan inland letter and a photo album being marked as exhibits on the side of the
\nwife.  The learned Family Court Judge had considered the  materials  and  also
\nthe  only  issue  whether  the  respondent  had  caused  such  cruelty  to the
\npetitioner to enable him to get a divorce and answered the same in  favour  of
\nthe husband.\n<\/p>\n
        5.   The  judgment  of  the  Family Court has been assailed on several
\ngrounds.  We have heard the counsel for the parties and considered the  matter
\ncarefully.\n<\/p>\n
        6.   On  the  factual  aspects, shorn of all minute details, the major
\nevents that are admitted to have taken place are as follows :\n<\/p>\n
11.11.1991      - Marriage between the parties.\nOctober, 1992   - First female child was born.\nApril, 1993     - Termination of medical pregnancy to the               wife.\n\n<\/pre>\n
November, 1994  – Husband leaves the house with the female
\n                        child to Uthamapalayam and the wife’s
\n                        attempt to get back the child through
\n                        mediators and complaint in the police
\n                        station by the wife for assault and
\n                        refusal to give the child.\n<\/p>\n
22.1.1995               - The matter was compromised.  \n\n\n\n10.10.1996      - Wife leaves for second delivery after\n                        taking a scan and finding that the second\n                        child would be a female child.\n\n22.11.1996      - Female child was born.\n\n29.1.1997               - Registered Advocate's Notice by husband\n                        for judicial separation on the ground of\n                        failure to carry out marital obligations\n                        and cruelty.\n\n<\/pre>\n
        7.  In reference to the  above  events,  we  are  concerned  with  the
\ninstances  that  are said to have taken place after the admitted compromise on
\n22.1.1995 and the parties started living together thereafter.   Therefore,  we
\nare  not  seriously  concerned  with  the events that had taken place earlier.
\nHowever, for the sake of completion we find from the legal notice as  well  as
\nthe petition, the following instances of cruelty :\n<\/p>\n
(1)The alleged statement of the wife that she did not like the husband.
\n(2)The  alleged  statement  of  the wife on the next day of marriage reception
\nthat she would commit suicide and the husband giving a telegram to the  wife’s
\nparents and asking them to take her back to advise her.
\n(3)Not  revealing the monthly income and spending for the family and the habit
\nof leaving the marital home whenever her parents come, without the  permission
\nof the husband.\n<\/p>\n
(4)Naming the child without informing the husband.\n<\/p>\n
(5)Creating  an  impression  among the friends and relatives that the wife had
\ngiven dowry.\n<\/p>\n
(6)The refusal to remove the milk tumbler and threatening that she will give a
\npolice complaint and send the husband to jail.\n<\/p>\n
(7)Giving police complaint to get back the baby on 18.11.1994.
\n(8)Settlement on 22.1.1995.\n<\/p>\n
The incidents that happened after the settlement as set out in the notice  and
\nthe petition are as follows :\n<\/p>\n
(1)Attempt of the wife to go to her parents’ house on weekly holidays.
\n(2)After  leaving to her parents’ house on 10.10.1996 for the second delivery,
\nthe failure to inform the husband about the birth of the child and the refusal
\nto permit the friends of the husband to see the child.\n<\/p>\n
        8.  The wife, in her counter as well as in her  evidence,  has  stated
\nthat they  were  living  happily  after  the marriage held on 11.11.1991.  The
\nmarriage reception was held at Chennai on 19.11.1991.  She had never  informed
\nthe  husband  that  she did not like him nor she threatened to commit suicide.
\nOn the contrary, she says that  it  is  only  her  mother-in-law  who  gave  a
\ntelegram  to  her  parents  alleging  that  their daughter is trying to commit
\nsuicide and her parents came there and finding the telegram to be false,  took
\nserious  objection  for the same, for which the mother-in-law replied that the
\ndowry given by them was insufficient.  After having married without specifying
\nthe dowry, the allegation of insufficient provisions was the  reason  for  the
\ncontroversy,  and  thereafter,  they  were  living  to gether at Madurai and a
\nfemale child was born to them in October, 1992.  The naming of the  child  was
\ndone  by the husband’s family at Tenkasi, the place of the family deity of the
\nhusband.  However, it is the husband, who had left her parental home with  the
\nchild on the flimsy allegation that she refused to remove the milk tumbler and
\nonly  in her attempt to get back the tender child as also the physical beating
\ngiven by the husband which prompted them to file a police complaint  and  only
\nthen they  were  able  to  get back the child.  It is only the husband who has
\nleft the house with the child without informing the wife.  According  to  her,
\nright  from  the beginning, the mother-in-law was so unhappy on account of the
\nbirth of the female child and became very upset when the second child was also
\nfound out to be a female child.   According  to  her,  she  had  informed  the
\nhusband  immediately  about  the  birth  of  the  child and she had denied the
\nalleged refusal to permit the husband’s friends to see the child.  It  is  not
\nin dispute  that the husband did not go to see the child.  She has also stated
\nin  her  evidence  that  immediately  after  the  legal  notice  Ex.P.1  dated
\n29.1.1997,  she contacted her husband over phone as to how he could issue such
\na notice.  He had replied saying not to take the notice seriously and that  he
\nhad issued it only as a joke.  It is the husband who had asked her not to come
\nto his house after the birth of the second child.\n<\/p>\n
        9.   The  allegations  of  cruelty prior to 22.1.1995, the date of the
\nadmitted compromises, are not established and in any event,  the  husband  had
\nadmittedly   condoned   whatever  that  had  happened  prior  to  22.1.199  5.
\nTherefore, we are seriously concerned only with the alleged incidents that are
\nsaid to have taken place after that.  The parties were  living  together  from
\nJanuary 1995 to 1996.  The main grounds of cruelty, after this, is the failure
\nof  the  wife  to  inform the birth of the child to the husband and permit his
\nfriends to see the child,  which  was  followed  by  the  legal  notice  dated
\n29.1.1997  stating  that  she had failed to discharge her marital obligations.
\nIn his legal notice, it is stated as follows :\n<\/p>\n
        “My client’s friends settled the matter, made a compromise  on  22.1.1\n<\/p>\n
995.  You  came  to  the  matrimonial home.  Even after settlements, you often
\nunco-operated with my client for no reason.”\n<\/p>\n
Till 10.10.1996, the date on which she left for  her  parental  home  for  the
\nsecond deliver after scanning, the only allegation in the notice is that it is
\nonly  the  husband  who was looking after the child and that she used to go to
\nher parents’ house on weekly holidays.  After the birth of the child, the wife
\ndid not bother to send a word to him about the delivery and his  friends  were
\nalso refused  permission to see the new born child.  On the contrary, the wife
\nhas stated in her counter that the birth of the second child  was  immediately
\ninformed to the husband and since the husband’s mother had already developed a
\nhatred  towards  female  child,  neither  the husband nor anyone from his side
\nchoose to come and see the second child.  Therefore,  the  fact  remains  that
\nadmittedly, the husband did not make any attempts to go and see the child even
\nassuming that he came to know through somebody about the birth of the child.\n<\/p>\n
        10.   Secondly, there is no question of refusal to perform the marital
\nobligations on the part of  the  wife,  between  22.11.1996  and  29.1.199  7,
\nespecially  after  the  birth  of  the  second  child on 22.11.1996, since the
\nhusband had not gone to take the wife back and further,  it  is  too  short  a
\nperiod for  the  wife to leave the tender child.  It is crystal clear that the
\nallegations made after 22.1.1995 that she did not  inform  the  birth  of  the
\nchild  and  the  refusal to permit his friends to see the child, which are not
\ndenied, are too trivial so as to constitute mental cruelty  for  the  husband.
\nAs  a  matter  of fact, the admitted failure of the husband to go and meet the
\nsecond child and his insistence upon the wife to come and perform the  marital
\nobligations  within two months of the birth of the second child itself is only
\na cruelty against the wife and not against the husband.\n<\/p>\n
        11.  The next main ground argued and objected to by  the  counsel  for
\nthe  respondent  herein is as to the allegations contained in the statement of
\nobjections filed by the wife before the Family Court.\n<\/p>\n
        12.  At the outset, it has to be stated that the  respondent  did  not
\namend  his petition alleging a new ground for divorce namely mental cruelty on
\nthe basis of the allegations contained in the statement of objections.  In the
\ncounter,  the  wife  had  stated  that  she  is  inherently   a   disciplined,
\nsophisticated  and modest housewife, who had determined to dedicate herself as
\na duty-bound housewife to her husband.  But on the other hand, the  respondent
\nhappened  to  be a “henpecked puppet” of his sadist mother and a greedy woman,
\nwho exploited the official status of her son and trained him to  e  xtend  his
\nhands beyond his reaches and invited criminal cases.  She says as follows :\n<\/p>\n
        “The respondent (wife) was very much disturbed by  the  activities  of
\nthe petitioner  right  from the threshold of her marital career.  But, neither
\nthe petitioner nor his mother entertained the feelings of the respondent.  The
\ndisagreeing attitude of the respondent towards the corrupt activities  of  the
\npetitioner gradually developed a dent in their relationship.”\n<\/p>\n
In other words, the allegation of the wife was  that  the  greediness  of  the
\nmother-in-law is the root cause for the activities of her husband, both inside
\nthe house  as  well  as  in  his  official  capacity.  She had stated that the
\nhusband earned several lakhs  of  rupees  out  of  the  corrupt  practice  and
\npurchased  several  properties and jewels in the names of his brothers, mother
\nand relatives in Uthamapalayam.  The respondent, in his deposition  as  P.W.1,
\nhas admitted that  R.C.   No.15 of 1992 was filed by the C.B.I.  Madras before
\nthe Special Court, in which he was shown as the 10th accused.  Thereafter,  he
\nwas deleted  from  the  chargesheet.    He  further admits that his net income
\nduring 1992-9 3 was Rs.6,000\/- or Rs.7,000\/- and one of his brothers Ravi  was
\nstudying in  a  college  during  1992-93.  For the suggestion that during that
\nperiod 1992-93 four properties were purchased in the name of his  brother  and
\nhis father, the respondent has stated that he is not aware of those purchases.
\nThe  further  suggestion  that  these  properties were purchased and buildings
\nconstructed at the cost of Rs.15,00,000\/- and that it  was  his  property  was
\ndenied.   In  this  context,  the  wife  has stated that the greediness of his
\nmother had spoiled the mind of her husband to follow her dictates.  Apart from
\nthis, she had apprehension even for the life and  safety  of  her  two  female
\ndaughters.  She had emphatically denied that neither the respondent nor anyone
\nwent  to  her  house to see the female children when they were born and stated
\nthat she was denied entry to her marital house after delivery  of  the  second
\nchild.   Inspite  of  several  attempts  made  on her part through her father,
\nrelatives and mediators to try to join the husband, the respondent has  denied
\nthat right with an ulterior motive of satisfying his mother’s commands.\n<\/p>\n
        13.   Though  some  of  the expressions used are caustic like “corrupt
\npractice” and activity and that he acted  like  a  “henpecked  puppet  of  his
\nsaddist  mother  and greedy woman”, the language by itself cannot be taken out
\nof context and relied solely for the purpose of establishing mental cruelty on
\nthat score.  The fact remains that a criminal case was registered  wherein  he
\nwas  arrayed  as the 10th accused and subsequently absolved of the charges and
\nthat the husband was admitted to have purchased properties in the name of  his
\nfamily  members  and  was  acting  at  the  whims  of  his mother and that the
\ndisagreeing attitude of the wife to these activities is one of the grounds  to
\nrefuse her  the  right  to join her husband.  Apart from that, she had alleged
\nthat the mother of the  husband  had  developed  serious  hatred  towards  her
\nbecause  of  the  birth  of  the  second  daughter to the extent of weeping on
\nknowing about the result of the scanning  and  the  admitted  failure  of  the
\nrespondent  to  come  and  see  her and the issue of legal notice within three
\nmonths of the birth of the second  child  on  the  ground  that  she  had  not
\nprovided conjugal rights to the husband would only go to show how far the wife
\nis  driven  and  out  of  desparation,  she  has made the claim in the counter
\nstatement.  Therefo re, we have taken into account the  whole  background  and
\nthe context in which these expressions were used.\n<\/p>\n
        14.   Reliance  was  was made by the counsel for the respondent to the
\njudgment in V.  BHAGAT VS.  MRS.  D.  BHAGAT (A.I.R.  1994 S.C.  710).  In our
\nview, this judgment cannot be of any assistance  to  the  respondent  for  the
\nreason  that their lordships have observed therein that the case is an unusual
\ncase calling for an unusual solution.  They have also cautioned  in  paragraph
\n23 of the judgment by clarifying that merely because there are allegations and
\ncounter allegations,  a  decree of divorce cannot be granted.  Their lordships
\nobserved as follows :\n<\/p>\n
        “If it is a case of accusations and allegations, regard must  also  be
\nhad to the context in which they were made.”\n<\/p>\n
Referring to the marriage in that case, it was observed,<\/p>\n
        “It was  one  which  has turned into a hole for sure.  The allegations
\nand counter allegations are indicative  of  the  intense  hatred  and  rancour
\nbetween the parties.    Any reconciliation is out of question.  Each party, it
\nappears, is out to punish the other for what other is supposed to have said or
\ndone.  This appears to be the single thought ruling their lives today.  A good
\npart of the life of both the parties is consumed in this  litigation  and  yet
\nthe end  is  not  in  sight.    For the parties to come together, they must be
\nsuperhumans, which they are not.  The parties have crossed  the  point  of  no
\nreturn long  ago.   The nature of allegations levelled against each other show
\nthe intense hatred and animosity  of  each  bears  towards  the  other.    The
\nmarriage is  over  except  in name.  Both the parties are well settled and the
\nchilren are grown up and are on their own.  On these  facts,  the  allegations
\nwere held  not made in a fit of anger or under an emotional stress.  They were
\nmade in a formal pleading and the questions to that effect  were  put  by  her
\ncounsel at  her  instance  in  the  cross-examination.  Even in her additional
\nwritten statement, she had asserted her right.  The wife has  contribued  lack
\nof  mental  equilibrium  of  the  husband  and  all  members of his family are
\nlunatics and streaks of insanity run through his entire family.   The  husband
\nin that  case was a practising lawyer.  He began suspecting her infidelity and
\nwhen questioned of her adulterous behaviour, she admitted the same  and  asked
\nto be pardoned.  This was denied to by the wife.  According to the respondent,
\nshe is  an  incorrigible  adulteress.  The wife characterised the husband like
\nOthello, a pathological, suspicious character.”\n<\/p>\n
Therefore, in our view, in the facts and circumstances of the said case, their
\nlordships held  that  divorce  can  be  granted  in  the  peculiar  facts  and
\ncircumstances.  None of these parameters set out in the said judgment apply to
\nthe facts  of  the case on hand.  A Division Bench of the Bombay High Court in
\nRAJEN VASANT REVANKAR VS.  SHOBHA RAJAN REVANKAR (A.I.R.    1995  BOMBAY  246)
\nheld  that  wild,  reckless and scandalous allegations by the wife against the
\nhusband’s mother, his two  married  sisters  and  brother-in-laws  in  letters
\namount to  cruelty.    In this case, the wild and baseless allegations against
\nall the family members were found repeated and the Division Bench,  held  that
\nattempts  at reconciliation failing, the marriage irretrievably broke down and
\ngranted the decree for divorce.  In both the above judgments, their  lordships
\nheld that mental cruelty should be of such a nature that the parties cannot be
\nreasonably expected  to  live  together.   The situation must be such that the
\nwronged party cannot be reasonably asked to  put  up  with  such  conduct  and
\ncontinue to  live  with  the other party.  Applying this ratio, we cannot hold
\nthat the husband has reasonable apprehension from his wife that he  cannot  be
\nexpected to live with her.\n<\/p>\n
        15.  The judgment in  V.    BHAGAT  VS.    D.   BHAGAT cited supra was
\nreferred to and explained in PUSHPAVATHI @ LALITHA VS.  MANICKASAMY [I  (2001)
\nDMC 679  (SC)].  Their lordships in this case held that what is cruelty in one
\ncase may not amount to cruelty in  another  case.    It  is  a  matter  to  be
\ndetermined  in  each case having regard to the facts and circumstances of that
\ncase.  If it is a case of accusations and allegations, regard must also be had
\nto the context in which they were made.  The  failure  of  the  respondent  in
\nmaking  it  as  a  plea  for a ground of divorce and to give an opportunity to
\nexplain the case of the wife also has  to  be  taken  into  account.    In  R.
\nBALASUBRAMANIAN VS.  VIJAYALAKSHMI BALASUBRAMANIAN [1999 (7) S.C.C.  311], the
\nSupreme  Court  held  that  the  cruelty  stood condoned by the parties living
\ntogether and  celebrating  wedding  anniversary.    In  this  case,  all   the
\nallegations prior to 22.1.1995 stood condoned by their subsequent cohabitation
\nand getting  a  second  child.   After the birth of the second child, there is
\nhardly any acceptable material to constitute cruelty.  There is absolutely  no
\ncause  of  action  to issue a legal notice dated 29.1.1997 and it is obviously
\nintended to refer to the earlier incidents to prepare a ground of  a  petition
\nfor divorce.   Therefore, there are no bonafides in the allegation of cruelty.
\nIn S.  HANUMANTHA RAO VS.  S.  RAMANI [1999 (3)  S.C.C.    620],  the  Supreme
\nCourt  held  that  hypersensitivity  and  panic reaction of complainant\/spouse
\ncannot be used to case a blame on and make out a case of mental cruelty.    In
\nthat case, a complaint before the Womens’ Protection Cell was made by the wife
\nagainst  the husband and his family members, who in panic, sought anticipatory
\nbail, in the absence of any record to show that any members of the family were
\nharassed, and that only a plea was made to bring a reconciliation between  the
\nparties, the  respondent  cannot  be  blamed for that.  In this case also, the
\npolice complaint is the result of the snatching away of the  tender  child  by
\nthe  husband  without  informing the wife and others and they were to go along
\nwith the family members and seek protection of the police to  get  the  child.
\nIt  was  a conciliation by which the husband handed over the child to th wife.
\nTherefore, the action of the wife to seek protection  of  police  for  getting
\nback  her child cannot be treated as amounting to cruelty against the husband.
\nOn the contrary, it is the other way around.\n<\/p>\n
        16.  Lastly, a reference was made to one of the letters written by the
\nwife ten years back to one of her friends.  It is an  undated  letter  without
\naddress and not posted.  Admittedly, this letter came to be marked not through
\nthe respondent.   The letter was simply shown to the wife and was marked.  The
\nadmissiblity of this letter itself is in doubt.  Apart from this,  the  letter
\nwas not  posted  and  it  is  not  intended to be seen by anybody.  She writes
\ntherein that she is not interested to marry the man as he wants an Accountant,
\ni.e.  the appellant and he demands for one car and ….  pounds of gold  also.
\nShe says, ” Think of it, what kind of desparate life I am going to have”.  She
\nprays the  help  of  the God as she was upset at the proposal at that time.  A
\nreading of this letter would only show that she is not happy for the  proposal
\nbecause of  the amounts demanded by the husband’s family.  Apart from this, we
\ndo not find anything u nusual so as to say that there she was having an affair
\nwith another person and that therefore, this has caused mental  agony  to  the
\nhusband.\n<\/p>\n
        17.   Section  10  of the Family Courts Act, 1984 says that subject to
\nthe other provisions of the said Act and the Rules, the provisions of the Code
\nof Civil Procedure, 1908 shall apply to the suits and proceedings  before  the
\nFamily Court.   Order 7, Rule 14 C.P.C.  deals with the documents relied on in
\nthe plaint.  Rule 14 mandates the production of the documents when  the  plant
\nis presented and at the same time, deliver the documents or copy thereof to be
\nfiled with  the  plaint.   Sub-rule (2) says that where he relies on any other
\ndocument, whether in his possession or power or hand as evidence of his claim,
\nhe shall enter such document in a list to be added or annexed to  the  plaint.
\nRule  17  says  that  a  document which ought to be produced in court when the
\nplaint is presented and when it is produced, it shall not, without  the  leave
\nof  the  court,  be  received  as evidence on his behalf at the hearing of the
\nsuit.  Sub-rule (2), which is relevant for our purpose states as follows :\n<\/p>\n
        “Nothing   in   this   rule   applies   to   documents   produced  for
\ncrossexamination of the defendant’s witnesses, or in answer to any case set up
\nby the defendant or handed over to a witness merely to refresh his memory.”\n<\/p>\n
        18.   In  this  case,  the petitioner ought not have been permitted to
\nmark a new document without the leave of the court  while  the  respondent  is
\nbeing  cross-examined,  especially  when there is such a plea in the petition.
\nThere is no scope for marking such a document through  the  respondent.    The
\nheading  of  Rule 18, which says, “Admissibility of document not produced with
\nplaint filed”,  shows  that  the  document  said  to  have  been  produced  is
\ninadmissible in   evidence.     However,  the  learned  Judge,  in  our  view,
\nerroneously went on to mark this document as Ex.P.3 and narrated the full text
\nof the letter, holding that this letter clearly reveals that she had  lots  of
\nlove to one Mr.  Jugal Kishore Hasmukh who had an idea of getting her hand and
\nthat she  did  not  like  to marry the petitioner.  The respondent had deposed
\nthat she had realised the mistake after writing the letter and therefore,  she
\ndecided not  to post it to the destination.  The learned Judge went on to hold
\nthat the sentence written in the letter exhibited her  inner  feeling  towards
\nthe  petitioner  and  therefore, she might have informed the husband, whom she
\nhad to marry against her wishes, that she was not interested in  the  marriage
\nand therefore,  she  has  caused  mental agony by writing this letter.  We are
\ntotally unable to accept the reasoning of the learned Judge.    In  our  view,
\nthis undated and unposted letter cannot be treated as having been addressed to
\nanybody,  much  less to reveal the feelings of the respondent this cannot give
\nrise to a reasonable presumption  that  she  has  got  a  hatred  against  her
\nhusband.   The  learned  Judge  failed  to  see  that  many such proposals and
\narrangements would have come prior to one’s marriage.  They might have liked a
\nperson for one reason or the other, but that may not  fructify  the  marriage.
\nSimply  because the appellant liked a person other than her husband, that does
\nnot mean that she developed a hatred towards her husband, whom she had married  <\/p>\n
later on.  The unearthing of this letter after  ten  years  and  putting  that
\nagainst  the appellant as if it had caused a mental agony to the respondent is
\nclearly illegal.\n<\/p>\n
19.  A Division Bench of the Calcutta High Court in  SHRI  PRANAB  BISWAS  VS.
\nSMT.  MRINMAYEE  DASSI  &  ANOTHER  (A.I.R.   1976 CALCUTTA 156), held that in
\norder to determine that a love letter written to her  lover  would  amount  to
\nmental  cruelty,  that  must  be  evidenced  to show that there was reasonable
\napprehension of harm or injury in the mind of the respondent\/husband.\n<\/p>\n
        20.  The finding of the learned judge that by writing the letter,  the
\nwife  had  caused  mental  agony  to  the  husband cannot be sustained for the
\nreasons stated above.  The learned Judge further  erred  in  holding  that  it
\ncannot  be  held that the petitioner is entitled to get divorce merely because
\nof the threat of the wife to commit suicide.  It should be taken into  account
\nas one  of  the points in favour of the petitioner.  This is in the absence of
\nestablishment of the fact that the wife threatened to commit  suicide.    From
\nthe  evidence, we find that the allegation is unfounded and it has no evidence
\nto support the case of threat.  The wife has stated at  more  than  one  place
\nthat  she is always ready and willing to live with her husband and that it was
\nonly her husband who is not willing to permit her to lead the marital life.\n<\/p>\n
        21.  For all these reasons, there are absolutely no grounds to sustain
\nthe contention of cruelty under Section 13(1) of the Hindu Marriage Act.   The
\nfindings  of  the  learned  Judge  are  therefore  liable  to be set aside and
\naccordingly set aside.  The appeal is allowed.  No costs.   Consequently,  the
\nconnected C.M.Ps.  are closed.\n<\/p>\n
14..02..2002.\n<\/p>\n
Index :  Yes
\nab<\/p>\n
                                                        Sd\/..\n<\/p>\n
                                                Assistant Registrar<\/p>\n
                                \/\/ TRUE COPY \/\/  <\/p>\n
                                        Sub Assistant Registrar (C.S.)<\/p>\n
To
\nThe Presiding Officer,
\nFamily Court,
\nMadurai.\n<\/p>\n
P.  SHANMUGAM, J.\n<\/p>\n
and
\nP.  THANGAVEL, J.\n<\/p>\n
Pre-delivery Judgment in
\nC.M.A.  No.37 of 2001<\/p>\n
Delivered on<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court S.K. Megalai vs R. Muthuraj on 14 February, 2002 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 14.02.2002 Coram : THE HONOURABLE MR. JUSTICE P. SHANMUGAM and THE HONOURABLE MR. JUSTICE P. THANGAVEL C.M.A. No.37 of 2001 and C.M.P. Nos.3814 & 11991 of 2001 S.K. Megalai .. Appellant vs. R. […]<\/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-60673","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nS.K. Megalai vs R. 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