IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 15.04.2009 C O R A M THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN and THE HONOURABLE MR. JUSTICE T.S. SIVAGNANAM C.M.A. Nos.2871 and 2872 of 2004 D. Nagappan ..Appellant in both the CMAs. (Petitioner in FCOP.No. 674/97 & 623/95 versus T. Virgin Rani ..Respondent in both the CMAs. (Respondent in -do-) For Appellant : Mr. K.P. Gopalakrishnan in both the CMAs. For Respondent : Mr. V. Raghavachari for in both the CMAs. Mr. Krishnamoorthy PRAYER : Appeals filed under Section 19 of the Family Court Act against the judgment and decree dated 16.6.2004 made in F.C.O.P. Nos.674 of 1997 and 623 of 1995 respectively on the file of the Principal Judge, Family Court, Chennai. J U D G M E N T PRABHA SRIDEVAN, J. Both these appeals have been filed by the husband. The Family Court dismissed F.C.O.P.No.674 of 1997 filed by the husband for divorce and allowed F.C.O.P. No.623 of 1995 filed by the wife, the respondent herein, for restitution of conjugal rights. The parties will be referred to as appellant and respondent, which is how they are arrayed in these appeals, so that there may be consistency in reference. 2. F.C.O.P. No.623 of 1995 was filed first and therefore, we will look at the pleadings therein. https://hcservices.ecourts.gov.in/hcservices/ The couple got married in a Roman Catholic Church in Kanyakumari on 16.1.1989. According to the respondent, since she was the only daughter of her parents, her parents performed the marriage lavishly and bore the entire expenses. She is a Physics Graduate and had completed her P.G. Diploma Course in Computer Science. The appellant gave her to understand that he was qualified as an Engineer working in the Railways. To her shock, she found that he was only a Head Draftsman. Her parents questioned him as to why he uttered falsehood, but since the marriage preparations were at an advanced stage, they did not cancel the marriage. After the marriage, they resided together as husband and wife in Perambur. The appellant allegedly behaved in a rude and crude manner and used to ill-treat the respondent to appease his mother. It is stated that the appellant's mother was a cruel lady. But, inspite of all this cruel treatment, the respondent was carrying on as a dutiful wife. The respondent became pregnant. The delivery was complicated and the female child died. The appellant never cared to take her back to Chennai and after repeated requests, he reluctantly took her back to Chennai. The appellant was very friendly with one Viswanathan. The respondent did not like this and when she pointed this out to him, he abused her in unprintable language saying she should not question his relationship with Viswanathan and if she was unhappy, she could go back to her parents house. Then, she conceived her second baby. A female child was born on 31.7.1991, but that child also died. Due to prolonged medical treatment, the respondent suffered mental and physical agony. The appellant's attitude towards her was very bad and he did not pay her any care or attention and it was only the respondent's parents and brothers who gave her necessary support. When it was time to return to Chennai, she informed the appellant over telephone, when her parents took her to Chennai to her matrimonial home, they found the house locked. He had vacated the house on the previous midnight only with the motive of putting her to hardship. Therefore, the respondent stayed with her elder brother at Chennai. Since her efforts to find out his place of residence were unsuccessful, her brother went to his office, but on seeing her brother, the appellant left the office. After repeated efforts, they found out his address at Periyar Nagar and after much persuasion, he agreed to live with the respondent. The appellant's attitude towards the respondent became worse and worse and he also ill-treated her by demanding additional dowry for starting a rubber business with Viswanathan. Her pleas that he should not insist on further dowry fell on deaf ears and he also said that unless and until she brought the additional dowry, there would not be a peaceful marital life. Then he took to the old habit of spending time with his friends in clubs and other places. The respondent again conceived for the third time. This time, the appellant suggested that she should go to her parents' house at Nagercoil to have her parents' support, to which the respondent agreed. This time a male child was born. The entire medical expenses were born only by her parents. Even thereafter, he did not agree to take her back. The appellant was not agreeable to https://hcservices.ecourts.gov.in/hcservices/ her joining him because she was complaining that his mother was treating her cruelly. Every time she requested him to take her back, he would avoid it on some pretext or the other. And again, she found that he would be satisfied only if the additional dowry was paid. The respondent once again came over to Chennai to join him, but again, the appellant had vacated the house at Periyar Nagar and she had to live with her brother. He told her that if she wanted to join him, she should go and reside with his parents and conduct herself as a servant and only then she could have conjugal rights. When she went to the Southern Railway Office to request for reunion, he physically dragged her to the Reception Desk to register her name, then took her to the police station to give a complaint. The Inspector of Police heard them and advised them to lead a happy married life. On 29.3.1995, when she went back to his office, the appellant took her in an auto-rickshaw pretending to take her to his home and then dropped her somewhere near his sister's house and ran away. On 31.3.1995, the respondent and her brothers sent to well wishers, Dorairaj and Sampath to do mediation between the couple, but they were informed that he was not willing because she did not pay the additional dowry and that she should live with his mother at Kulasekaram and that she should not come to Chennai. He had also given a false complaint that her brother had threatened her. So, she lodged a complaint in the All Women Police Station. In these circumstances, she filed the petition for restitution of conjugal rights. 3. The appellant filed his counter in July, 1995 wherein he denied all the averments that lavish expenditure was made for the marriage. He denied the allegation that he had informed her father that he was a qualified Engineer. He denied that the marriage was performed only because the preparations were at an advanced stage, inspite of his misrepresentation regarding his educational qualification. According to him, he could not complete his part-time B.E. because of her mental cruelty. He denied the allegations made against his mother. He said that she was a very nice person and that in all the years since the marriage, the respondent had stayed only for one week in the house along with his mother and therefore, the question of cruelty does not arise. The death of the first female baby was accepted, but the appellant would state that he took back the wife after she had taken the required rest at her parents' place. The innuendo regarding his association with Viswanathan was denied and according to him, the friendship with Viswanathan is true and a genuine one and it was only because the respondent had a suspicious mind that she made all the allegations. The appellant would state that because of some complications, the second baby also died. The averment that the respondent came on her own accord to Chennai and found that his address was changed was denied. According to him, these allegations are made only to cover up the long period of desertion. The demand for additional dowry was denied and it was stated that it was a product of a fertile imagination. All other https://hcservices.ecourts.gov.in/hcservices/ allegations regarding his character were denied. As regards the third pregnancy, according to the appellant, he paid sufficient amount and the respondent's parents voluntarily shared the expenses because the appellant was in a financial problem. According to him, he suggested that she should go to his parents' house at Kulasekaram because the third baby was a precious one, especially because the two earlier babies had died and since her health would be taken care of if she was in his parents' house as he might not be able to give her that care in the busy city life. He denied the allegation of dowry harassment and demand for additional dowry. According to him, the complaint given against her brother was truthful and the cruelty towards him was so grave. She indulged in character assassination and gave false complaints to various authorities taking advantage of the fact that her close relative was a Section Officer in the State Secretariat and therefore, a false complaint was made to the Chief Minister's Cell and the appellant was summoned. According to him, it was only because of her cruelty and suspicious character that was the cause of all the problems. 4. Thereafter, the appellant filed F.C.O.P. No.674 of 1997 for divorce under Section 22 of the Indian Divorce Act. In this petition, he had admitted that originally they were happy, but because of some bad influence, she changed drastically. Many of the averments in this petition are akin to what is stated in his counter to the petition filed by the respondent for restitution of conjugal rights. According to the appellant, he had sent letters to her, to which she had not responded and therefore, a clear case of desertion had been made out. The final blow to the conjugal bliss came when she lodged a complaint against the appellant for dowry harassment in the year 1995. The appellant was grilled by police personnel. Goondas had been hired, who came to his place of employment and physically assaulted him. According to him, his life has become meaningless and he had suffered the repeated acts of cruelty at the hands of the respondent. According to him, she had deserted the matrimonial home in December, 1993 and therefore, he was entitled to divorce on that ground. The respondent filed her counter in this O.P. in which she has repeated all the allegations made in her petition for restitution of conjugal rights. In this counter, she had stated that the appellant's illicit intimacy with the wife of Viswanathan is the cause for all these problems. According to her, the petition for divorce was a counter blast to her petition for restitution of conjugal rights. In the year 2001, the appellant filed an amendment petition, adding the ground of cruelty for seeking the prayer for divorce. To this, an additional counter was also filed. 5. Three witnesses were examined on the side of the respondent and one witness was examined by the appellant, which was himself. Thirteen documents were marked by the respondent and five by him. The learned Principal Judge, Family Court, found that the appellant had not proved his case that the respondent was residing with one https://hcservices.ecourts.gov.in/hcservices/ Dorairaj. The Family Court had observed that the couple had lived separately without having any intentions of separating from each other and that none of the documents support the case of the appellant. We will have to examine whether the judgment of the Family Court is sustainable. 6. Learned counsel appearing for the appellant submitted that all the allegations made by the respondent were not proved and on the other hand, the appellant's case of cruelty was supported by evidence. In fact, one should only look at the counter affidavit filed by the respondent which itself would prove the acts of cruelty alleged by the appellant. The learned counsel made impassioned submissions regarding the ordeal suffered by litigants seeking reliefs under the Family Courts Act. He submitted that it is not as if litigants in India rush to the Family Courts without any excuse. Conciliation and mediation takes place at every level within the family, amongst the friends, within the community and only when everything fails that the litigants approach the Family Court and thereafter, there is very little scope for reconciliation. In this case, the appellant had been harassed by the respondent in the office and she had made wild allegations without any justification. She had made allegations regarding adultery, which was not proved, which itself is an act of cruelty and therefore, the Family Court had erred in accepting the case of the respondent. Learned counsel referred to several decisions in support of his submissions. 7. Learned counsel appearing for the respondent submitted that the appellant cannot cite letters written by him requiring his wife to come to his parents house at Kulasekaram as a bona fide request for reunion. His mother was a cruel lady and to ask his wife to go to his mother's house at Kulasekaram was not bona fide. He submitted that a husband who vacates the house a day prior to the day when the wife was coming to rejoin him is the person who has committed the wrong and he cannot take advantage of the same. 8. We made an effort to see if the parties could rejoin at least for the sake of their son. But the appellant appeared very disturbed at the very thought of reunion. Therefore, we proceeded to decide the matter on merits. 9. Since the petition filed by the respondent was the earlier in point of time, she was examined as P.W.1. Whatever she had stated in her petition was stated in her chief-examination. During her cross- examination, she had admitted that since she did not like Viswanathan's attitude, she had asked the appellant not to have any connection with him. She had admitted that she had given notice to her husband alleging illicit intimacy with Viswanathan's wife. Her statement is that even though he treats her cruelly, she wants to live with him. According to her, right from the beginning she had been making these allegations regarding illicit intimacy. She had https://hcservices.ecourts.gov.in/hcservices/ admitted that since he continues to go to Viswanathan's house, she has the right to continue to make the same allegation again : "vjph;kDjhuh; bjhlh;e;J tpRtehjd; vd;gth; tPl;ow;F ,g;nghJk; ngha;f;bfhz;oUg;gjhy; ehd; mth; nghpy; fhl;oa Fw;wr;rhl;il bjhlh;e;J brhy;y vdf;Fhpik cz;L/" She had admitted that there is no evidence to show that her parents gave Rs.25,000/- as dowry. According to her, she and her mother-in- law stayed together for one week in 1991 and that they did not have a cordial relationship. She had admitted that she had not written any letters to the appellant describing the acts of cruelty by her mother-in-law. She had stated that she went and told Viswanathan that his wife behaves improperly, but that Viswanathan denied that there was any extramarital relationship between his wife and the appellant. She has admitted that there is no evidence regarding the illicit intimacy between her husband and Viswanathan's wife. She has admitted that she has not written to her relatives about the physical cruelty meted out to her by the appellant. According to her, she had made several attempts through the appellant's sister's husband for reunion, but she does not have any proof for that. According to her, she is aware of her husband's sister's address, but not her husband's address. 10. One Thangamani, who is said to be a Section Officer in the Secretariat, was examined as P.W.2. In his chief-examination, he has stated that the respondent had written several letters to the appellant to take her back, but there was no response and that he was informed by the respondent that when she went to her husband's house, the door was locked and thereafter, they left the respondent with the appellant. When she became pregnant for the third time, the appellant left the respondent in her parents' house. Even this time, he did not take her back. He, Dorairaj and Sampath went and requested him in his office, but it was of no avail. In cross- examination, he had admitted that he is the appellant's sister's husband. He has admitted that he has no specific knowledge about the husband and wife relationship between the parties and that he knows only what has been told by the respondent. A suggestion was put to this witness that since there is friction in his relationship with his wife, who is none other than the appellant's sister, he has falsely given evidence to punish him. One Christopher, who is the brother of the respondent, was examined as P.W.3. The cross- examination is restricted to whether he knew the address of the appellant. 11. The appellant, in his chief-examination, has reiterated the contents of his affidavit. He has stated in his evidence that whenever he went to Palliyadi to bring the respondent back, her parents would state that she is staying with Dorairaj in Chennai. According to him, P.W.2 would not give evidence to support him https://hcservices.ecourts.gov.in/hcservices/ because there is some family friction between them. According to him, the first child was buried even before he went to see her. He has denied that it is only after the allegation of illicit intimacy was made that the third child was born. 12. Ex.P.3 is a letter written by the respondent. It is an eight page typed letter sent by a wife to her husband. In this, she has stated that she had given some letters which were written with anger and after that, her brother and her parents left her at his home and that the appellant was happy with her: "mg;g[wk; buhk;g ehs; fHpj;J eP';fs; brd;id bghpahh; efhpy; jpU/ u';fhuhk; mth;fis nghap ghh;j;J vd;Dila tpc&a';fs; midj;Jk; ngrp ehd; Mj;jpuj;jpy; c';fSf;F vGjpa fojj;jpd; b$uhf;!; fhgpa[k; mtUf;F bfhLj;J bghpahh; efh; eP';fs; ,Uf;Fk; tPl;L Kfthpa[k; (rp/474. 9?tJ bjU) brhd;djpdhy; jhd; mth; K:ykhf tpgu';fs; bjhpe;J v';fSila mz;zd; mg;gh mk;kh Mfpnahh; vd;id Tl;o bfhz;L te;J c';fs; tPl;oy; tpl;lhh;fs;/ mg;g[wk; eP';fSk; vd;dplk; md;ghf ele;Jf; bfhz;Oh;fs;/" She has stated that when she wanted to set up a matrimonial home in Chennai, he had replied that she should stay at least for six months at Kulasekaram and only then establishment in Chennai was possible and thereafter, she has referred to the 'saddist' Viswanathan. She has then stated that, therefore, she waited and waited and came to the Periyar Nagar house in Chennai and they found the door of the house locked. She has again referred to a threat letter written by the appellant to her father and since all the time he was living with the 'saddist' Viswanathan, unable to come and live in the same house in Chennai, she stayed in her brother's house. She has written that her brother asked her whether the appellant said anything about the death of his brother and that she stated that she did not know anything. She has also said that she was asked how she will go to her husband's house, especially when the world speaks so differently about him. According to her, she was asked whether she would be able to bear it and whether the circumstances in the house would be conducive for the good upbringing of the child : "cd;dhy; jh';f Koa[kh> vd;W nfl;L FHe;ijia ed;whf tsh;g;gjw;F me;j tPl;L FH;epiy rhpahf mikahJ vd jhd; fUJtjhft[k; Twpa[s;shd;" And that every one who knew the appellant's mother told her parents and her brother that on no account should she be sent to the house of those poisonous people : "c';fs; mk;khitg; gw;wp bjhpe;jth;fs; midtUk; vd;Dila mk;kh. mg;gh. mz;zd; vy;nyhiua[k; ghh;j;J vf;fhuzk; Kd;dpl;Lk; me;j tpc& ehrpdpfs;. mjhtJ mth;fs; tPl;L kug[ bghpa igad; https://hcservices.ecourts.gov.in/hcservices/ Vw;fdnt mk;kh JiznahL xU bgz;id nknu$; gz;zp divorce gz;zpdth;. me;j kug[g;go tps';Fk; me;j ekJ tPL vd;w CUf;F mDg;ghjPh;fs;. xU FHe;ij gpwe;nj te;J ghh;f;ftpy;iy vd;dg;ghr nehf;fj;njhL/ c';fs; bgz;iz c';fs; bgz;zpd; fzth; ekJ tPL vd miHf;fpwhnuh vd vr;rhpj;jjd; nghpYk; vdf;F tpUg;gk; , y;yhj ,lj;Jf;F vd;id vd; mz;zndh. mk;khnth. mg;ghnth mDg;gp itf;f khl;lhh;fs;/" Therefore, since they were warned regarding the motive with which the appellant was inviting her to come to "our house" and that neither her parents nor her brothers will ever sent her to that house against her will : "ehDk;. ekJ tPL vd te;jhy; vdf;F me;j fjpjhd;/ vd;ida[k; tHf;fj;Jf;F khwhf bfhSj;jp ,unthL ,uthf vhpj;jhy; vd; FHe;ijf;F ahh;> Mfnt eP';fs; ,Uf;Fk; brd;idapy; c';fnshLjhd; ,Ug;ngd;/" Therefore, according to her, the appellant's mother would burn her if she goes to Kulasekaram and that she would live with him only in Chennai. According to her, if he did not turn up, she would herself go over to Chennai. This letter is dated 10.11.1994. 13. Ex.P.4, which is the appellant's letter, is to the effect that the respondent had not returned even after delivery : "ehd; vt;tst[ mwpt[Wj;jpa[k; eP';fs; Fynrfuj;jpy; cs;s ekJ tPl;ow;F tutpy;iy/" He has also written that she was on that date not with her parents and she was somewhere without informing him of her whereabouts. He had stated that she should immediately go to his parents house in Kulasekaram and as soon as she goes there, she should send a letter. He sent another letter dated 15.12.1994, in which he again addresses her as "Dear Rani" (md;g[s;s uhzp). He has stated that for some months, she had not been with her parents and not gone to Kulasekaram and he has asked her why without telling him she had gone and stayed in different places and that she should give up her ego and come to his house in Kulasekaram. He has asked her whether she can go to Kulasekaram or not. He has also stated that to resume matrimonial life, she should go to Kulasekaram with the child and that she should let him know within one week her decision. Next is the letter, Ex.P.6, which is written by the appellant to the Father of the Roman Catholic Church and this is dated 11.1.1995. In this letter, he has stated that there had been marital problems and that they are living separately. He had stated that he had requested the respondent several times to join him, but she had refused to do so. https://hcservices.ecourts.gov.in/hcservices/ "vd; Jiztpahiu vd;ndhL FLk;gk; elj;j gyKiw miHj;j nghJk; vd; Jiztpahh; vd;ndhL FLk;gk; elj;j kdJ ,y;yhky; tpthfuj;J bra;tjhf gyKiw vd;dplk; Twpa[s;shh;/" 14. Ex.P.7 is a letter dated 14.12.1993 written by one C. Rajabai to the respondent. In this, there is reference to the respondent's acts of cruelty. Then comes Exs.P.8 and P.9, which is a letter sent by the respondent to the husband by registered post. In this, she has stated that the appellant must be mentally disturbed to behave like this. She has regretted his disinterest in the child. This is written on 11.1.1995. Next is Ex.P.10, which is a copy of the petition submitted to the Chief Minister of Tamil Nadu with serious allegations against Viswanathan, an employee of Syndicate Bank requesting that Viswanathan should be warned and therefore, the Deouty Secretary to the Chief Minister had addressed a letter to the Zonal Manager, Syndicate Bank, giving directions to warn Viswanathan. As a follow up to this, in Ex.P.11, the General Manager, Southern Railway is addressed to get the address of the respondent. Exs.P.12 and P.13 are greeting cards sent by the appellant to his son N.V. Anginio calling himself his loving father. 15. Ex.R.1 Series are the ackowledgment cards for money orders sent by the appellant. Ex.R.2 is the letter written by the respondent's brother Gnanaseelan to the appellant. This is dated 19.1.1995. In this letter, it is stated that the appellant had gone on 14.1.1995 to Palliyadi where his wife was residing and on the next day, the brother of the respondent, Gnanaseelan had gone to Palliyadi and that he got all the details and told them that the respondent and the child should be first taken to Kulasekaram and from there, they can go to Chennai. Another request is