IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:26.09.2011 Coram THE HONOURABLE Mr. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE Mr. JUSTICE M.VENUGOPAL C.M.A.Nos.1656 and 1657 of 2010 and M.P.Nos.1 and 1 of 2010 U.Sree ... Appellant in both CMAs/Petitioner in OP.No.568/97 & Respondent in OP.No.805/98. Vs. U.Srinivas ... Respondent in both CMAs/Respondent in OP.No.568/97 & Petitioner OP 805/98 Prayer: Appeals filed under section 19 of the Family Courts Act 1984 against the Common Order dated 22.12.2009 made in F.C.O.P.No.568 of 1997 and F.C.O.P.No.805 of 1998 on the file of the Principal Family Court, Chennai. For Appellant : Mr.R.Swaminathan For Respondent : Mr.V.Lakshmi Narayanan COMMON JUDGMENT M.VENUGOPAL,J. The Appellant/Wife has preferred these two Civil Miscellaneous Appeals as against the Common Order dated 22.12.2009 in F.C.O.P.Nos.568/1997 and 805/1998 on the file of the Principal Family Court, Chennai. 2.The Appellant/Wife has filed F.C.O.P.No.568 of 1997 [under Section 9 of the Hindu Marriage Act, 1955] on the file of Principal Family Court, Chennai praying for restitution of conjugal rights. 3.The Respondent/Husband has filed F.C.O.P.No.805 of 1998 [under Section 13 (1)(i-a), Sections 26 and 27 of the Hindu Marriage Act, 1955, read with Section 7 of the Family Courts Act, 1984] on the file of Principal Family Court, Chennai praying for dissolution of marriage that took place between him and the Appellant/Wife on 27.05.1994 at Thirupathi. https://hcservices.ecourts.gov.in/hcservices/ 4.Before the trial Court, O.P.Nos.568/1997 and 805/1998 were tried jointly and common evidence was recorded. On the side of the Appellant/Wife, witness P.W.1 was examined and Exs.P.1 to P.14 were marked. On the side of Respondent/Husband, witness R.W.1 was examined and Exs.R.1 to R.11 were marked. 5.The trial Court, on an appreciation of oral and documentary evidence on record and after scrutinising the same, had resultantly dismissed the relief of restitution of conjugal rights in F.C.O.P.No.568 of 1997 filed by the Appellant/Wife without costs and allowed F.C.O.P.No.805 of 1998 filed by the Respondent/Husband, by dissolving the marriage between the parties that took place on 27.05.1994 at Thirupathi. 6.Being dissatisfied against the Common Order dated 22.12.2009 in F.C.O.P.Nos.568/1997 and 805/1998, the Appellant/ Wife had preferred the present Civil Miscellaneous Appeals before this Court as an aggrieved person. 7.Facts in O.P.No.568 of 1997: (a)The Appellant/Wife in her Petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act had averred that her marriage with the Respondent/Husband took place on 27.05.1994 in accordance with the customary rites and ceremonies prevalent in Telugu communities living in Andra Pradesh and that the marriage was an arranged one. After marriage, the parties lived together at Maruthi Nilayam, 12-A, Venkateswara Street, Dhanalakshmi Colony, Vadapalani, Chennai – 600 026 till 03.01.1996, the date on which she was taken by her father-in-law to her parents house. They lived in the aforesaid address along with her husband's parents, married sister with her husband and younger unmarried brother and sister in a joint family after marriage. On 19.11.1994 she was sent to her parents house for medical check up and treatment. Again she was brought back by her mother-in-law on 26.01.1995 from her parents house to Chennai and she lived in Chennai with the Respondent upto 12.03.1995, when she was sent back for delivery to her parents house. The Respondent/Husband visiting the Appellant/Wife on 27.05.1995 to celebrate their first wedding anniversary. Again, the Respondent/Husband visited on 30.05.1995, when she delivered a male child. After delivery, on 13th day, Respondent/Husband came with his family members to the Appellant/Wife's parents house where she was staying after delivery. The Respondent/Husband visited the Appellant in August and September 1995 at her house at Hyderabad. She came back to Chennai on 04.10.1995 after her delivery and from then onwards she was living with the Respondent/Husband till 03.01.1996 together with the child. (b).The Appellant/Wife was always quite accommodative, adjusting and gave respect to Respondent/Husband's family members, fellow https://hcservices.ecourts.gov.in/hcservices/ musicians and senior members of her husband's profession. She never detested the visitors nor troubled the nest for any matters. She was taken by her father-in-law on 03.01.1996 to her parents house without her consent and thereafter, the Respondent/Husband had not visited her. From 03.01.1996, the Respondent/Husband without any reasonable excuse and with a view to leave the matrimonial home, withdrew from the society of the Appellant/Wife. Her parents move to contact the Respondent/Husband and the family members to find a solution had not yielded any fruitful result. Even the common relatives and friends tried to bring about solution, but it ended in vain. Hence, she filed the petition praying for restitution of conjugal rights. 8.Counter Pleas: (a).The Respondent/Husband, in his counter, had stated that there was a total mental incompatibility between him and the Appellant /Wife. According to him, within a few weeks of marriage, the Appellant /Wife started finding fault with his life style, his daily routine, his likes and dislikes and constantly picked up quarrels on some pretext or other and throw tantrum when she did not had her way. His daily routine began in learning music lessons from his father and the Appellant/ Wife by interrupting them by hurling, abuses and screaming and shouting followed invariably by arguments and quarrels between the Appellant/Wife and the Respondent/Husband. The rehearsals would end abruptly. Occasionally, he would like the Appellant/Wife jointly in paying respects to the senior members of his profession, who either visit him or whom he visit or meet in public. The seeking of blessings from such elders was customary in music circles. But, the Appellant/ Wife started hurling abuses at him on such occasions and walked away from the scene much to his acute embarrassment. The Appellant/Wife behaved in a hard headed, arrogant, merciless, thoughtless and unbalanced manner, devoid of affection or any sense of respect or duty and subjecting the Respondent/Husband to a lot of embarrassment in private as well as in public and gave a beating to his reputation and image all of which constituted mental cruelty. He was conservative by nature and was an introvert who prefers to spend his leisure time quietly in the company of the Appellant/Wife and the child. (b).The Appellant/Wife called her parents to go over frequently to Madras and threatened him with proceedings under Indian Penal Code. The Appellant's father was an I.A.S. Officer in Vigilance Department in Government of Andhra Pradesh. At the instigation of Appellant/Wife, her father started threatening him that he would use the official machinery at his disposal to initiate several criminal proceedings against him for an alleged offence under the Indian Penal Code and Dowry Prohibition Act, if he had not towed the line of his wife. (c).The Appellant/Wife with her father's support became abnormally aggressive with the Respondent/Husband and never allowed him to go near her or their son. He was prevented from playing or feeding his son or accompanying her and her https://hcservices.ecourts.gov.in/hcservices/ son on outdoor trips. Each day passed with the threat of the Appellant/Wife's father looming large over the Respondent/Husband. He was unable to take on the cruel behaviour of the Appellant/Wife and had not stopped her on 03.01.1996, when she expressed her desire to visit her parents for a couple of months. He had not stood in the way, when she packed her belongings and took away with some of the costly gifts presented to him in India and abroad in appreciation of his music and left the matrimonial home on 03.01.1996. Fearing for the physical safety of the Appellant/Wife and his child, the Respondent /Husband requested his father to escort the Appellant/Wife and the son to Hyderabad and entrusted both of them to the care and custody of her parents. Even while at her parents house in Andhra Pradesh, the Appellant/Wife through remote control continued to indulge in every sort of harassment and mental cruelty on the Respondent/Husband by threatening him through her father and other relatives and friends who began spreading rumours in India and abroad on his fidelity and character and besmirched his hard earned reputation. (d).The Appellant/Wife filed a Petition under Section 9 of the Hindu Marriage Act, 1955 to forestall the proceedings in India initiated by the Respondent/Husband in O.P.No.208 of 1997 under Section 10 of the Hindu Marriage Act, 1955 for judicial separation from him. The present petition under Section 9 of the Hindu Marriage Act was filed on 21.04.1997 and a counter in O.P.No.208 of 1997 was filed on by the Appellant/Wife. (e).The averments made by the Appellant/Wife in the counter to O.P.No.208 of 1997 that she was ready and willing to join the Respondent/Husband, was made for the sake of making an averment. Since the Respondent/Husband was subjected to mental cruelty by harassing her as narrated by him in O.P.No.208 of 1997 as well as in the present counter, no decree can be passed forcing either of the parties to live with the other in such attitude of mind. 9.Factual Matrix in O.P.No.805 of 1998 (filed by the Respondent / Husband): (a)The Respondent/Husband in his petition filed under Section 13 (1)(1-a), Sections 26 and 27 of the Hindu Marriage Act read with Section 7 of the Family Courts Act, 1984 had averred that the marriage between him and the Appellant/Wife was solemnised at Thirupathi on 27.05.1994 in accordance with customary rites and ceremonies prevalent in Telugu Communities living in Andhra Pradesh. According to him, the marriage was consummated at Chennai sometime thereafter. As a result of wedlock, a son was born to him at Vijayawada on 30.05.1995. (b).It is the case of the Respondent/Husband that serene atmosphere is a sine qua non for the pursuit of music, which has become a rare entity. Further, the time and concentration required for sadhana could not be compromised at the alter of other interests. https://hcservices.ecourts.gov.in/hcservices/ He had given up formal education and devoted himself totally to the pursuit of music in the belief that it was a form of 'Bhakthi' a faith and commitment to something he loves. (c).Each day the Respondent/Husband's life begins with 'Sadhana and Sadhakam'. His daily practices helped increase his repertoire under the guidance of his father who was his guru since childhood and to whom he looked upon for his sadhana, in the true guru sishya relationship that existed between them. The details were invariably followed by a steady stream of visitors to the Respondent/ Husband's house. He exchanged his views and ideas on the nuances of music with the fellow musicians. Senior members of his profession is impart knowledge and share their own experiences with him. Also, his other friends and members of the public will come over to invite him to participate in musical or cultural programmes. (d).Immediately, on arrival to the matrimonial house, the Appellant/Wife started finding fault with his lifestyle, his daily routine and his likes and dislikes, and also constantly picked up quarrel with him on some pretext or other. According to him, the Appellant/Wife's grand-father has been a famous violinist and she knew that his father has no guru but only claimed to be one. The early morning music sessions between him and his father were interrupted by the Appellant/Wife's abuses hurled at him for considering his father as his guru. This culminate in arguments and quarrels between the parties and the sadhakams would end abruptly with the Appellant/Wife striking discordant notes in his mind and spoiled the surrounding atmosphere. (e)The Respondent/Husband also averred that he occasionally asked the Appellant/Wife to join with him in offering respects to the senior members of his profession who either visit him or when he visits or meets in public. In music circles, seeking the blessings from elders was a customary one. However, the Appellant/Wife turned stony glares at him on occasions and walked from the scene much to his acute embarrassment. The hard headed, arrogant, merciless, thoughtless and unbalanced behaviour of the Appellant/Wife, devoid of any affection or a sense of respect or duty put him in a very unenviable position, giving a beating to his reputation and public image. If he refused to sail along with the Appellant/Wife, she went berserk and flung things at him. (f)The Appellant/Wife solely started inviting her parents to go over frequently to Madras and threaten him with proceedings under the Indian Penal Code. At the instigation of the Appellant/Wife, his father-in-law started threatening him that he would use the official machinery at his disposal to initiate several criminal proceedings against him for alleged offences under the Indian Penal Code and Dowry Prohibition Act, if he was not towing the line of the Appellant/ Wife, change his guru and his conservative life style. The https://hcservices.ecourts.gov.in/hcservices/ Appellant/ Wife's father was an officer in the Vigilance Department, Government of Andhra Pradesh and encouraged by his support, the Appellant/Wife was abnormally aggressive in a relationship with him and never allowed him to come anywhere near the Appellant/Wife or their son. He was deprived of his conjugal rights and also physically prevented from playing with or feeding his son or accompanying the Appellant/ Wife and son on outdoor trips. He started realising gradually that the Appellant/Wife's want of civil attention of his needs, her petulance of manners, rudeness of language and outbursts of temper were not ordinary wear and tear of married life to be suffered in silence. The outbursts of temper made by the Appellant/Wife with its degree, frequency and regularity became a menace to the peace and well being of the petitioner, affecting his career as a musician, as also affecting his mental and physical and emotional well being. (g).Inspite of many sacrifices and adjustments made by him the Appellant/Wife adamantly refused to adapt herself to the Guru Sishya Parampara Pani way of life in the house of a traditional performing musician. He was not stopped the Appellant/Wife on 03.01.1996 when she decided to spend a couple of months in her parents house, she packed with her belongings viz., the ancestral jewellery presented to her by her mother-in-law at the time of their marriage and left the matrimonial home. He remained as a mute spectator when she took away with her some of the costly and cherished gifts and mementoes presented to him by connoisseurs of his music in India and abroad. He requested his father to escort his wife and their son to Hyderabad and entrust both of them to the care of his wife's parents. (h).The Respondent/Husband filed O.P.No.208 of 1997 on the file of the Principal Judge, Family Court seeking the relief of judicial separation. But the Appellant/Wife filed O.P.No.568 of 1997 praying for restitution of conjugal rights and contested the O.P.No.208 of 1997 filed by him. (i).In the counter statement to O.P.No.208 of 1997, the Appellant/Wife stated that she was ready and willing to join him and these averments were made with no intention of pursuing the matter in real earnest. She filed applications before the Hon'ble Supreme Court of India seeking transfer of the matrimonial proceedings pending before the Family Court, Chennai to the Courts in Hyderabad. After the dismissal of the applications for transfer before the Hon'ble Supreme Court of India, the Appellant/Wife was started humiliating him in public by levelling baseless, false and scandalous allegations and charges to the effect that he was indulging in sexy conversations or having illicit affairs with his lady fans. These accusations were made by the Appellant/Wife during the course of counselling proceedings in the chambers of the trial Court as well as before the Lok Adalat. The counsellors because of the reprehensible conduct of the Appellant/Wife terminated the session after one sitting based on the reason that a reconciliation between the parties was an https://hcservices.ecourts.gov.in/hcservices/ impossibility. (j).It is the case of the Respondent/Husband that the Appellant / Wife went to the extent of communicating to his common friends and relatives that she would derive the utmost pleasure he would put behind bars if only for a day as in the case of Dr.Ambadi and his family. She expected to succeed in her plans through her petition in O.P.No.568 of 1997 for restitution of conjugal rights she further stated that once the petition was allowed, she proposed to return to his house for a short while only to shout for help alleging dowry harassment. Moreover, the Appellant/Wife stated that her husband entered the city of Hyderabad for giving music concerts, she would with the help of her parents and his henchmen kidnap him for life. When the news of these threats reached him, he started travelling to Hyderabad and returned in fear, humiliation and shame amidst private security against the threats posed by his wife. He also contemplated simultaneously initiating divorce proceedings. He was awarded with the Padmashree title in recognition of the contributions of the music. (k).The Appellant/Wife filed O.P.No.86 of 1998 and I.A.No.141 of 1998 in O.P.No.86 of 1998 before the Family Court at Hyderabad for maintenance and separate residence under the Hindu Adoption and Maintenance Act, 1956, during the pendency of matrimonial proceedings in Chennai Courts and after the dismissal of her transfer applications before the Supreme Court. (l).The Appellant/Wife did not bring any kind of Shridhana, be it jewellary or anything else to the matrimonial home. However, in January 1996 when she left for her home at Hyderabad, she took away with her all the following items of jewellary which formed part of the Shridhana of his mother and which were gifted to her by his parents at the time of her marriage. Description of the jewel Approximate weight in grams 1 1 Gold Oddiyanam 144 2 1 Gold Haaram 80 3 1 Gold chain for Mangala Sutra 40 4 1 Gold chain with black beads 36 5 2 Gold bangles studded with Semi Precious stones 24 6 6 Gold Bangles plain 48 7 1 Gold Strap for wrist watch 16 8 4 Gold ear studs 32 (m).Apart from the above, the Appellant/Wife was in possession of the following gold ornaments, silver ware and cash gifts aggregating to a sum of Rs.10,000/- presented to him by his parents https://hcservices.ecourts.gov.in/hcservices/ and his family friends on the occasion of the child's first birthday and the said details are hereunder: Description of the jewel Approximate weight in grams 1 1 Gold chain with dollar 24 2 4 Gold chain plain 32 3 1 Gold Bracelet 8 4 4 Gold rings 8 5 1 Silver Kancham 850 6 8 Silver tumblers 1200 7 6 Silver cups 600 (n).The intense hatred and animosity displayed by the Appellant/ Wife towards him, followed by her cruel treatment, was caused so much mental anguish and pain that it is not possible for him to live with her any more. The wounds inflicted upon him by the Appellant/ Wife will never heal and even if they did, the scars would be for there ever. As a matter of fact, any rapprochement between the parties was therefore in the realm of impossibility. The marriage was failed totally. A lonely house devoid of people other than the mother would rob his son of the warmth and security guaranteed in a large family and could lead to mental aberrations. His little more than 3 years child was at the right age when such change of surroundings would not also have adverse psychological impact on him etc. If the custody of the child was made over to him rather than few years later, it would certainly be in the interests of the child. He was vitally interested in the future of his minor son. His father trained him. He would like to continue to Guru-Sishya lineage in the family by becoming his son's guru. The welfare of the child was of paramount importance to him and therefore, he may be given the custody and guardianship of his minor son. 10.Counter Averments: (a)The Appellant/Wife denied that she went to her parents house on 03.01.1996 and instead she was sent back by the Respondent/ Husband and his parents-in-law. She was also from a music family and knew the importance of music. The devotion and dedication to a profession was very important. At the same time, dedication to build up a strong matrimonial home was equally necessary for peace, happiness and bliss. She was a Veena player and aware of the efficacy and efficiency of music. It was because of her sacrifice, devotion and dedication towards the Respondent/Husband, he started touching the heights of music, gaining reputation and also popularity apart from increase in financial status. The Respondent/ Husband was negligent and careless in performing his duties as husband. Hence, he was no manner of right to take the plea of cruelty nor he was https://hcservices.ecourts.gov.in/hcservices/ entitled to seek any relief on the basis of cruelty. (b).The Respondent/Husband used to give public performances only by charging huge amounts which ranging from Rs.30,000/- to Rs.40,000/- per show depending upon the venue of performance. Her family background and their lifestyle daily routine was one and the same which the Respondent/Husband and his family members possess. The allegations that early morning music sessions were interrupted by her abuses, for his father to be accepted as guru or allegations with regard to arguments, quarrels etc. are all denied by her. He never cared to provide love and affection either to her or to the child. She was always ready and willing to join the company of the Respondent/Husband and to preserve the matrimonial home from being wretched. Her husband was directly under the strong influence of his parents, sister and brother in law. (c).The Appellant/Wife was married at the age of 18 years to the Respondent/Husband and blessed with the son at the age of 20 years. She was no moral support in her husband's family and the husband's family members used to harass her for one reason or other. Her husband and his parents sent her to her parents house on the pretext of temporary short visit and it was only on the basis of her husband's assurance that he would take her back she would left the matrimonial home. However, he failed to bring her back from her parents house. He filed O.P.No.208 of 1997 before the Family Court. Her father was always keen in her welfare and her husband. Her husband having gained reputation and name in the field of music, his rich parents were making attempts to have an alliance with her husband and also offering huge amounts of dowry to which the parents of her husband, sister and brother-in-law are playing a very key role in instigating him to go for a second marriage and for such purposes, the parents, sister and brother-in-law of her husband were not only influencing him but also putting so many ways of pressure to attain their goal. Her husband trapped under the influence, was compelled to file the present petition and only for this reason, had narrated the events for the purpose of constituting the grounds for divorce on the basis of cruelty. (d).Her husband's family members were already threatened her by dire consequences if he reached Chennai and in those circumstances, it was difficult to prosecute the pending case before the Chennai Court. Moreover, she was compelled to file the transfer petition before the Hon'ble Supreme Court, as it was very difficult to conduct the case in Chennai and to produce witnesses and to meet the travelling expenses, lodging charges etc. (e).The Appellant/Wife never indulged in scandalous accusations during counselling proceedings either before the Court or before the Lok Adalat. The conciliation proceedings terminated the case of her husband's refusal to accept the restitution of conjugal rights. She https://hcservices.ecourts.gov.in/hcservices/ was in fact proud of her husband's accomplishments and also when he was awarded Padmasri by the Government of India. She exercised her rights rightfully in filing the petition for maintenance at Hyderabad, since the cause of action arose at Hyderabad Court, which had also got the jurisdiction to entertain the petition. Being a stranger to Chennai city, except to her husband and his family, it was difficult for her to stay alone in Chennai. Hence, she filed a petition before the Competent Court having the concurrent jurisdiction. (f).According to the Appellant/Wife, whatever type of gifts, the