(Common Prayer: Civil Miscellaneous Appeals filed under Section 19 of the Family Courts Act, against the order and decree dated 29.03.2019 passed by the Principal Family Court, Chennai made in HMOP.Nos.4042 of 2014 & 2166 of 2012.)

Common Judgement:

G. Jayachandran, J.

1. These two appeals are by the husband, who lost his petition for divorce filed under Section 13(1)(ia) & (ib) of the Hindu Marriage Act in O.P.No.4042 of 2014 on the file of the Principal Family Court, Chennai and also lost to his wife in her petition for restitution of conjugal rights filed under Section 9 of the Hindu Marriage Act in O.P.No.2166 of 2012 on the file of the Principal Family Court, Chennai. Both these original petitions were disposed of by a common judgment dated 29.03.2019.

2. For the sake of convenience, the appellant is referred as husband, the respondent is referred as wife.

3. The brief facts leading to these two appeals can be capsulized as below:-

On 16.11.2011, the appellant / husband and the respondent / wife got married as per the Hindu Rites and Customs Act. After a week of that marriage, nuclear family was set up and the appellant used to go to his work as Teacher in Neikarapatti village from his place of residence which is known as VK Mills Quarters. He also used to visit his parents and brothers living in the nearby village called Aiyampalayaam village on his way back to home. As a Teacher, he used to entertain students at his home when they approach him for doubts in their subject. However, the respondent always used to suspect his conduct and humiliate him by her bad behavior. She has demanded the salary to be handed over to her and restricted the appellant from spending money for his mother and brothers. The misunderstanding between them grew day by day when third parties intervened and started tutoring him in the nature of advise. The appellant’s character was suspected by the respondent / wife, despite his responsibilities and duties, expecting metropolitan style of living, the respondent continuously was in mental cruelty and started abusing him with filthy language. Unable to continue the relationship, the appellant / husband had left the company of the respondent / wife and caused notice to her on 16.04.2012 through the Advocate, for which, the wife threatened the husband that she will lodge criminal complaint alleging dowry harassment against him and his mother.

4. In the said circumstances, the husband filed HMOP.No.62 of 2012 before the Sub-Court, Palani, later transferred and re-numbered as HMOP.No.4042 of 2014. Meanwhile, the respondent / wife gave a police complaint on 15.08.2012 before D2-All Women Police Station, Anna Salai, Chennai and got it registered in Crime No.4 of 2012 as against the husband and his family members, alleging that he has been living with her only for three days and thereafter, he had been in bad association of family on bad repute and he has been forcing to bring original documents of property from her matrimonial home and transferred the property in his name. Subsequently, the husband has obtained Anticipatory Bail from High Court, in connection with the complaint alleged against him. The case finally ended up in C.C.No.7432 of 2014 before Chief Metropolitan Magistrate Court, Egmore.

5. The appellant’s petition in HMOP.No.4042 of 2014 for annulment of the marriage and seeking divorce was dismissed by the Principal Family Court, Chennai vide order dated 29.03.2019 and HMOP.No.2166 of 2012 filed by the wife for restitution of conjugal rights was allowed whereas the version of the wife, who is the respondent herein is that the marriage was solemnized on 16.11.2011 at Triplicane, Chennai and the matrimonial home was setup in Palani and, at the time of marriage, 35 sovereigns of jewels, a gold chain and ring was given to her husband / appellant and Sridhana articles with sharing of marriage expenses equally was given by her parents. It is stated that there was 11 years age difference between husband and wife and the Husband was suffering from Asthma even prior to marriage. Though he claim to be a Teacher in the Government aided school and earning Rs.40,000/- per month, his behavior was indifferent and not respectful. He used to come home very late in the night or at times, even stay outside continuously for two or three days. She came to know that her husband is staying in his friends’ house where he has developed intimacy with other ladies.

6. When his behavior became intolerable and when the same was questioned by her brothers, he started staying outside the home in the company of family friends and stopped giving money even for her day to day expenses and food. When she went to the School where he was working to enquire about what made him to stay away from her, he took as great insult and hence, she left her husband and lodged a complaint on 14.05.2012 before the Anna Salai Police Station. According to the wife, to escape from the criminal action, husband has filed divorce petition with frivolous allegations, even before expiry of the moratorium period of one year from the date of marriage. His divorce petition before the Sub-Court, Palani was transferred to Family Court, Chennai with a direction to club with the petition filed by her in HMOP.No.2166 of 2012 for restitution of conjugal rights. According to the wife / respondent, she has always ready and willing to joint her husband however, with his bad association, behavior and not inclined to change his conduct, she is unable to lead happy marriage life.

7. Before the Family Court, pending disposal of the petitions, wife filed an application seeking interim maintenance of Rs.15,000/- per month in I.A.No.2832 of 2012. The said application was disposed of on 25.03.2014, directing the husband to pay a sum of Rs.6,000/- per month as interim maintenance from the date of petition i.e., 28.09.2012 to till disposal of the main OP.

8. Before the Family Court, the appellant / husband examined as P.W.1 and three documents marked as Exs.P1 to P3. On the side of the wife, four witnesses were examined and 13 documents were marked. The Family Court, after appreciation of the evidence, dismissed the divorce petition filed by the appellant / husband, allowed the petition for restitution of conjugal rights filed by the wife. Before this Court, the husband as appellant has filed CMA.No.4655 of 2019 against HMOP.No.4042 of 2014, in which, he is the petitioner and also filed CMA.No.4657 of 2019 against OP.No.2166 of 2012 filed by the wife for restitution of conjugal rights, in which, he was defendant.

9. The ground of appeal in both these appeals precisely directed against the impugned common order for not appreciating the evidence in proper prospective. The Court below failed to note the frivolous criminal complaint making all wild allegations about his character and conduct. The petition for restitution of conjugal rights was filed by the wife only to pressurize him. While the petition for conjugal right was pending, she participated in the trial in C.C.No.7432 of 2014 and deposed against the appellant. Since her deposition was found to be false, the Trial Court dismissed the complaint however, she preferred an appeal to keep pressure on him but, did not pursued the appeal and allowed it to go for dismissal on default. Later, she approached the High Court by way of revision and got the dismissal order set aside. The said appeal is still pending.

10. While so, the Trial Court unmindful of the fact that her petition for restitution of conjugal right is filed without any meaning in it and without any intention to resume the marital life whereas the husband’s petition for divorce is loaded with facts and proof that the respondent herein not discharged her duty as a wife, even for few days but, being carried away by her qualification and life style caused mental agony and aspersion against the appellant. The allegation of illegal affair without proof itself is sufficient indication that the appellant has been put to grave mental agony. While so, the Family court ignoring the conduct of the respondent and the fair admission of P.W.2 / the mother of the respondent herein that her daughter has no intention to join husband, an impractical order was passed by the Court below without appreciating the evidence properly.

11. Heard the learned counsel appearing for the appellant as well as the respondent and perused the evidence available on record.

12. The learned counsel appearing for the appellant would precisely states that the complaint filed by the respondent / wife with the Anna Salai Police Station on 14.05.2012 has culminated in C.C.No.7432 of 2014. Even after the acquittal order by the Trial Court, the respondent has vengeance to pursue the matter and her appeal is now remanded back and pending. She has also filed petition for maintenance and the same is also pending. He would submit that in the case where the allegation of false illicit intimacy is made against the spouse, the Hon’ble Supreme Court has categorically held that, that itself is sufficient to held that there is a mental cruelty.

13. Per contra, the learned counsel appearing for the respondent / wife would submit that the respondent was forced to leave the matrimonial home due to incorrigible conduct of the appellant and willful neglect to maintain her. She was left without food and care in the village of the appellant. Seeing her plight, neighbors advised her to leave Chennai. Since there was no responsible person in her family to conduct her marriage, despite age difference of 11 years, she agreed to marry the appellant however, taking advantage of her innocent character, the appellant started hurting her inhumanly and forced her to leave her matrimonial home by his bad conduct. This made her to give a complaint in all Women Police Station, Anna Salai which is self-explanatory. Even now, though there is an order for paying maintenance, the appellant had not paid the maintenance and to recover the maintenance, she is struggling. The Trial Court, after appreciating the evidence has rightly dismissed his petition for divorce finding that his allegations are imaginary and out of proportion. He would submit that since the statement against the wife made by the husband / appellant found to be false and the victim of cruelty had not been proved, conclusion of the Family Court needs no inference.

14. Relying upon the judgment of the Hon’ble Supreme Court rendered in Chetan Das Vs. Kamla Devi reported in MANU/SC/0262/2001, the learned counsel for the respondent would submit that the dissolution of the marriage on the ground of desertion filed by the husband dismissed by the Hon’ble Supreme Court held that the husband, who is living in adultery cannot take plea of desertion and it amounts to taking advantage of his own wrong. Pointing out that contrary to law and the pronouncement of the Hon’ble Supreme Court in Shilpa Sailesh Vs. Varun Sreenivasan reported in MANU/SC/0502/2023 regarding waiver of the marital period to file a petition for dissolution of marriage, the learned counsel submitted that the appellant had behaved irresponsibly by rushing to the Court even before one year of the marriage seeking dissolution of the marriage unmindful of the plight. The respondent facing the Trial court judgment is taken note of the conduct of the husband, who failed to maintain his wife when she was leaving that home who failed to pay the maintenance in time as ordered by the Courts and failed to re-join her even after petition for restitution of conjugal rights, rightly held that he is not entitled for dissolution of marriage, taking advantage of his own wrong.

15. Both the counsel appearing for the appellant as well as the counsel representing the respondent had filed the detailed written arguments along with a copy of the judgments they relies upon. We note that the marriage between the appellant and the respondent was solemnized on 16.11.2011. On 30.04.2012, the appellant has filed a petition for divorce under Section 3(1) (i)(a) and 14(2) of Hindu Marriage Act before the Sub-Court, Palani. On 14.05.2012, the respondent had given a complaint to the Assistant Commissioner, D2-All Women Police Station, Anna Salai, Chennai. In the complaint, the respondent has alleged that before marriage, both the families agreed to share the marriage expenses. Her family spent Rs.3,20,000/- and when they asked Rs.1,60,000/- from the appellant, they gave only Rs.1,00,000/- and refused to give the balance amount of Rs.60,000/-. From that day on wards, coral have started. She also caused her husband that he used to stay with prostitute and used to come home after consuming liquor. Naming the persons, who influencing her husband, made serious allegation of moral turpitude. This complaint has ended in filing final report and trial before Chief Metropolitan Magistrate, Egmore in C.C.No.7432 of 2014. This complaint, though after full trial ended in acquittal of the appellant, appeal is still pending. The respondent is persuading the appeal, which was earlier dismissed for default and got restored pursuant to the High Court direction.

16. In the light of the said background fact, we find that the marital life even according to the respondent was only three days and the separation had taken placed in the month of April, 2012. Surprisingly, the husband sent notice to the wife through Lawyer dated 16.04.2012 showing his own address and naturally, the notice returned unserved “as refused”, which indicates on the date when the notice was issued to the respondent/ wife, respondent herein and appellant are residing under the same roof and only thereafter, the respondent wife has left the company of her husband and alleged complaint before the Anna Salai Police Station. The said complaint is marked as Ex.R7. In the said complaint, the respondent has shown her parents address at Triplicane. Subsequently, CSR /Ex.R8 registered on the same day on 14.05.2012 and FIR /Ex.R8 registered in Crime No.4 of 2012 on 15.08.2012. These facts are reflected from Ex.R8 & Ex.R9.

17. Her deposition marked as Ex.R11 before the Chief Metropolitan Magistrate, Egmore recorded in C.C.No.7432 of 2014. In her deposition, we find that she left the appellant on 08.05.2015 and came to her parent’s home and thereafter, given the complaint to Police on 14.05.2015. Her police complaint and testimony before the Trial Court with serious imputation against the appellant, if held to be true, we can held that the husband cannot take advantage of his own wrong. However, we find that the Trial Court had acquitted the appellant holding that the imputations not proved.

18. No doubt, appeal is pending but, we cannot lose site of the fact that the marital relationship which short lived has ended in criminal prosecution and divorce proceedings in the year 2012 and, for the past 13 years, the appellant and the respondent are living separately and the acquisition and imputation made against the appellant still remains for being decided in the appellate Court. We cannot also lose site of the fact that the respondent at one breath has made a very serious allegation of immoral life against the appellant / husband and at the same time, she has filed a petition for restitution of conjugal rights. She cannot take dual stand, one to prosecute her husband and also to live with him. The contradictory stand taken by the respondent though at the initial stage may be appropriate, since she was not certain about her future even after 13 years of the breakdown of marriage, she still want to ride two horse at a time. In addition, she also pursuing her maintenance case.

19. The learned counsel for the respondent to impress upon this Court on two points. Firstly, the petition for divorce filed before expire of one year without permission and under Section 14(2) of the Hindu Marriage Act is per se is not maintainable. Secondly, the appellant who suffers order of the Court to pay maintenance of Rs.6,000/- per month, has not paying the maintenance amount and therefore, he is not entitled to pursue his appeal.

20. In response, the learned counsel for the appellant submitted that the maintenance fixed earlier was when the appellant in service. Now, having retired from service, he has sought for modification of the maintenance amount and the same is pending. Despite pendency of his application, he has tendered the maintenance amount in lump sum periodically. As far as the allegation regarding order for waiver, he has submitted that the time of presentation of the petition remains short for waiver and granted.

21. The records received from the Court below indicates that though the petition for divorce presented on 30.04.2012, before expire of one year period, no records available to show that permission granted to file divorce petition before the expiry of one year period. On 01.08.2012, the respondent has entered appearance and sought time for counter and thereafter, transferred OP filed by her, which was pending for nearly one year and later transferred from the Sub-Court, Palani to Family court, Chennai. The bundles were received by the Family Court pursuant to the order passed in Transfer C.M.P.No.366 of 2012 and re-numbered as O.P.No.4042 of 2014 and, by common order dated 29.03.2019, the petition for divorce dismissed.

22. When the matter was argued before us, we post a question to the counsel appearing for the appellant where the appellant obtained permission from the Trial Court namely, the Sub-Court, Palani for waiver of one year period under 14(2) of the Hindu marriage Act, he answered in affirmative but had not filed any particulars. Hence, we perused the records of the lower Court where we are not able to find any application or order by the sub- Court, Palani regarding waiver. However, the matter was taken up final disposal, no issue framed about this infirmity. Hence, we are of the view that the performance of one year moratorium is to prevent spouse rushing to the Court without giving time for healing the difference.

23. In this case, the purpose has out lived, since the divorce petition pending for about 13 years as on date. Regarding the non-payment of maintenance, the respondent has permitted to recover the same, if there is any arrears of maintenance. For this Court, the point for determination is whether the marriage between the appellant and the respondent has to be dissolved due to cruelty caused by the respondent as alleged by the appellant. For this purpose, we confined to the content of the criminal complaint given by the respondent and allegations made in the counter about the character of the appellant and the testimony of the respondent before the Trial court. A very serious allegations about the moral turpitude of the appellant and the intimacy with certain named ladies been repeatedly made by the respondent herein in all her pleadings and complaint.

24. Even before the Court, she had made allegations of illicit relationship with four ladies with names. In the cross-examination when she confronted how she is making this allegation, she has given explanation that her husband on the second day of marriage made a comment about body shape of those ladies and therefore, she suspect him that he has illicit relationship with those ladies.

25. The Trial Court had rightly held that those allegations without subsistence has to be ignored however, has taken adverse inference though the respondent not remaining in the matrimonial home and keeping himself away avoiding his wife also drawn adverse inference from the silence of the appellant regarding allegation made by the respondent about one Selvi. The Court below has assumed that the avoidance of his wife had led to an impression in the mind of the wife that her husband is having extra marital affairs. The Trial Court has failed to took note of the fact that the appellant has made specific finding that there was constant threat from the respondent and he was not peaceful when he was with her therefore, he was forced to stay away from home till late night and the allegation of mental cruelty by the appellant. The allegation of marital affairs against the appellant by the respondent, both has no sufficient evidence however, their separation lack of intention to re-union is evident from the conduct of the respondent pursuing her criminal case.

26. Even after acquittal and pursuing the maintenance case and the attempts of coercive steps to recover the same, the marriage is short lived for less than six months and the fact litigation between the spouse pending for more than 13 years, we find that the marriage to be dissolved to allow the parties to spend their remaining life peacefully. We say so, the appellant as on date has crossed 65 years, the respondent herein has crossed 55 years. They married very late when they were in 50s and 40s respectively. As the days of marital life only for few months or to be more precise three days as alleged by the respondent, we find no purpose in keeping this relationship alive on paper.

27. Hence, we set aside the common judgment passed by the Family Court, Chennai in HMOP.No.4042 of 2014 and HMOP.No.2166 of 2012 and allow both these appeals, dissolving the marriage held between the appellant and the respondent on 16.11.2011. The order of this Court dissolving the marriage is not to be construed as cruelty allegation of the appellant against the respondent is proved or his responsibility to maintain her has come to an end. We dissolve the marriage only because the allegation made against each other is not conducive for marital relationship and, if this continues, the allegation involving third parties reputation will be uptake. For the said reason, the marriage is dissolved.

28. In result, C.M.A.Nos.4656 & 4657 of 2019 stands allowed. No order as to costs. Consequently, connected miscellaneous petitions, if any, are closed.