Madras High Court

A.Rani vs P.Babu Venkatesh on 13 October, 2017

Author:
R.Subbiah

Bench:
R.Subbiah
,
P.Velmurugan

IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 15.09.2017
JUDGMENT PRONOUNCED ON : 13.10.2017
CORAM :
THE HONOURABLE MR. JUSTICE R.SUBBIAH
and
THE HONOURABLE MR.JUSTICE P.VELMURUGAN

CMA.No.987 of 2017

A.Rani ... Appellant
Vs.

P.Babu Venkatesh ... Respondent

PRAYER : Appeal filed under
Section 19
of the Family Courts Act, 1984 against the order dated 15.06.2016 made in FCOP.No.2 of 2008 on the file of the Family Court, Salem.

For appellant : Mr.CKM.Appaji.

For respondent : Mr.R.Jayaprakash.

JUDGMENT

(Judgment of this Court was made by P.VELMURUGAN, J.)

The Civil Miscellaneous Appeal is filed against the order dated 15.06.2016 made in FCOP.No.2 of 2008 on the file of the Family Court, Salem.

2. The husband has filed the petition for divorce on the ground of cruelty against the wife. The Family Court, Salem allowed the petition for divorce. Aggrieved against the said order passed by the Family Court, Salem, the wife has preferred the present Civil Miscellaneous Appeal before this Court.

3. The averments made in the petition is that the marriage between the parties was solemnized on 04.02.2001 at Kodumudi Magudeswaran Temple. At the time of marriage, the petitioner/husband was working in a two wheeler showroom at Salem. The petitioner is an agriculturist looking after the lands belonging to his brother at Mallur village, Salem. The respondent insisted upon the petitioner to shift the residence to Salem city, the same was refused by the petitioner as he was duty bound to take care of his aged parents. Thus, the respondent started behaving strangely with the petitioner and his family members. The petitioner has a sister and three nieces, who were brought up in the same house, the respondent behaved in a cruel manner towards the nieces of the petitioner and picked up quarrels with all the members in the matrimonial house and used to come late and thereafter keep on talking with somebody till 10.00pm over phone. The petitioner questioned the issue, the respondent gave a reply that she consented for the marriage only at the instance of her family members and in fact she was not at all interested in the marriage. The respondent on suspecting the petitioner kept on watching his movements and often picked up quarrels with the womenfolk engaged in the paddy field linking them with the petitioner and thereby made the petitioner to get ashamed. Due to the strained relationship, the respondent had undergone abortion for thrice. The respondent called the parents of the petitioner by name and never spent her income for the family and spent her earnings in an extravagant manner. Even during the holidays including Sundays, the respondent used to go somewhere and come back to home late at night. Due to the conduct of the respondent, the petitioner began to take food from his parents. The respondent gone to the extent of filing complaint against the petitioner and his family members before the All Women Police Station, Komalampatti levelling frivolous allegations against them and the family members of the petitioner's were subjected to police enquiry. Thus, the petitioner started to live separately under the same roof for two years prior to the date of filing the divorce petition. The respondent unnecessarily picked up quarrels with the petitioner and removed her thali for more than five occasions and the respondent had set up a dubious agreement in the name of Dhanalakshmi, portraying the said Dhanalakshmi as concubine of the petitioner and often started to blackmail the petitioner. Apart from the above acts, the respondent threatened to commit suicide and thereby compelling the petitioner to face nightmares. On 24.12.2007, the petitioner's sister came from USA to see her mother, at that time, the respondent picked up quarrel and went out of the house at 11.00pm and lodged a compliant before the Mallur Police Station alleging that the family members of the petitioner had committed cruelty and accordingly a case was registered in Cr.No.679 of 2007 against the petitioner, his mother and sister under
Sections 498A
,
,
and
506(ii)
of IPC. On apprehension, the petitioner and his family members obtained anticipatory bail from the Sessions Court, Salem. Hence, the petitioner has filed the petition for divorce on the ground of cruelty.

4. In the counter filed by the respondent/wife before the trial Court alleging that the petitioner is working in the farm land of his brother and settled the properties in favour of his brother and mother in order to escape from the payment of maintenance to the respondent. The letter issued by Dhanalakshmi is not fictitious, the Dhanalakshmi is a married woman and the petitioner had developed an illegal intimacy with her ten years prior to the marriage and hide the fact with deceit and they were caught red handed when involved in adultery and Panchayat was convened and the said Dhanalakshmi gave a letter of undertaking before the Panchayatars on 10.02.2006 that she will not contact the petitioner thereafter. In order to cover up the issue, the petitioner and his family members unnecessarily harassed and tortured the respondent on various occasions and she was driven out of the house forcibly. The respondent denied the allegation of aborting the fetus on earlier occasions and contended that she is hailing from a poor family and at the time of marriage, the petitioner family insisted for 72years sovereigns of Gold jewels as Shreedhana. Accordingly, the jewels were given by selling the family properties. The respondent admitted that while her stay in the matrimonial house in isolation, the petitioner disconnected the water and electricity connections to the portion occupied by the respondent and thereby compelled the respondent to face humiliation and also denied the allegation of spying the petitioner, usage of filthy language in the matrimonial house and disrespecting the elders of the house. With regard to registration of Cr.No.679 of 2007, the respondent was stubborn in her stand that on 24.12.2007 midnight the petitioner and his family members assaulted her brutally which resulted in the registration of the case. The respondent in her counter concluded by pleading that she was willing to forget the past events and decided to live along with the petitioner and lead a peaceful family life.

5. During the course of enquiry before the Family Court, the husband himself examined as PW1 and examined one Saravanan as PW2 and marked Ex.P1 to Ex.P4 and the wife examined herself as DW1 and examined one Prema as DW2 and marked Ex.D1 to Ex.D5.

6. After considering the arguments of both sides and the oral and documentary evidences adduced before the Court below, the trial Court allowed the petition filed by the husband and granted divorce on the ground of cruelty. The findings of the trial Court is extracted hereunder :-

...... the letter written by the concubine Danalakshmi under Ex.R4 is not proved by examining the attesting witnesses and the complaint lodged before Mallur police station in connection with the illegal intimacy of the respondent with Danalakshmi was not marked as Exhibit. That apart, on 24.12.2007, when the respondent's sister attended the house to see her ailing mother, the appellant and her brothers unnecessarily picked up quarrel with the respondent's sister and mother at 11p.m. and in contrast to the reality, the appellant herein preferred a complaint before the All women police station, kondalampatti as if the respondent and his family members committed cruelty on demanding dowry and a case was registered under
Section 498A
,
,
and
506(ii)
of IPC against all the family members of the respondent but the case was referred as mistake of fact on 27.12.2007 and the final report was accepted by the Judicial Magistrate No.6, Salem. Though it is contended that the appellant had filed private complaint, no proof has been adduced. Thus, it is clear that the contention of the appellant that the respondent had involved in illegal intimacy with the one Danalakshmi is not proved and also the appellant committed cruelty against the respondent and his family members by foisting criminal cases and on account of the cruel behaviour of the appellant, the respondent underwent mental agony and hardship. Thus the petitioner is entitled for divorce as prayed for.

7. Aggrieved against the order passed by the Family Court, Salem, the wife has preferred the present appeal before this Court.

8. The learned counsel for the appellant/wife would submit that the family Court had shifted the burden on the shoulder of the wife, the wife has not proved the allegation against the respondent/husband. It is settled principle of law, the person who filed the petition based on the allegation has to prove the allegations, whereas, in this case, the trial judge shifted the burden on the wife that she has not proved the case against the respondent/husband. The trial judge, further failed to look into the final report filed by the investigating officer and the Magistrate has dismissed the private complaint on the ground of mistake of fact and the appellant filed an appeal before the District Court and the same is dismissed. The trial Court failed to consider the averments raised in the counter filed by the wife and the evidence of RW1 and RW2 and also the Exs.R1 to R5 and disbelived the evidence of the wife and accepted the evidence of the husband. The allegation levelled against the respondent/husband by the appellant/wife is not a valid ground to grant divorce and the false allegation made against the wife has not been proved. Hence, the learned counsel prays to set aside the order of the Family Court, Salem.

9. The learned counsel for the respondent/husband would submit that the wife after the marriage refused to resign the job and insisted upon the husband to shift the residence from the Mallur village to Salem town, since, the respondent/husband has got aged parents and the agricultural lands he could not yield the demand of the appellant/wife, the appellant started to abuse the parents in law and also raised unnecessary quarrels with the sister-in-law and those who are coming to the family and to the workers who are coming to the paddy filed by shouting and by misbehaving with them. The appellant had gone to the extent of aborting thrice without any reason and only because of denial on the part of the respondent to shift the residential house to Salem. The appellant behaved in a cruel manner with the nieces of the respondent and used to come late to house and used to talk with somebody till 10.00pm. The appellant started to suspect the respondent and kept on watching his movements and often picked up quarrels with the women folk engaged in the paddy filed. On 24.12.2007, the respondent's sister came from USA to see her mother, at that time, the appellant picked up quarrel and went out of the house at 11.00pm and lodged a complaint before the Mallur Police Station against the respondent stating that the family members had committed cruelty and case was registered in Cr.No.679 of 2007 against the respondent, his mother and sister under
Section 498A
,
,
and
506(ii)
of IPC. On apprehension of arrest, the respondent and his family members obtained anticipatory bail from the Sessions Court, Salem. Subsequently, after investigation final report was filed by the police as mistake of fact and the Magistrate after sending notice to the appellant and after enquiry closed the same and the appeal preferred by the appellant was also dismissed. The Family Court after considering the oral and documentary evidence adduced before it, held that the respondent/husband has proved the allegations levelled against the appellant/wife and comes to the conclusion that the allegation raised by the appellant/wife regarding extra martial life by the respondent is false and the complaint against the respondent and his family members amounts to mental cruelty and granted the divorce on the ground of cruelty and there is no reason to interfere with the order passed by the trial Court and the same does not warrant any interference and prays for dismissal of the appeal.

10. Heard the rival submissions made on both sides and perused the records placed before the Family Court and also the written submissions filed by both the counsel and the order passed by the Family Court and also the grounds raised by the appellant in the grounds of appeal.

11. The short point arises for consideration in this appeal is as to whether the respondent has made out clear grounds for cruelty against the appellant or not.

12. The main allegation raised by the respondent/husband against the appellant/wife is that after the marriage she refused to resign the job and insisted upon the husband to shift the residence to Salem town. The appellant had gone to the extent of aborting thrice without any reason. The appellant behaved in a cruel manner with the nieces of the respondent and used to come late to house and used to talk with somebody till 10.00pm and spend her earnings in an extravagant manner. The appellant started to link one Dhanalakshmi with her husband and suspected the character of the respondent. On 24.12.2007, the appellant picked up quarrel and went out of the house at 11.00pm and lodged a complaint before the Mallur Police Station against the respondent and his sister and aged mother aged about 75years. The appellant failed to prove her case and the Family Court rightly granted divorce on the ground of cruelty and dissolved the marriage between the parties.

13. The case of the appellant/wife is that even prior to the marriage, the husband agreed to continue her job after the marriage, she never insisted her husband to shift the residence to Salem and she was not provided with proper food and shelter. She had due respect to the elders in the family and other members. The respondent/husband had extra martial affair with one Dhanalakshmi even 10years prior to the marriage and even after the marriage she herself noted the same and warned both the Dhanalakshmi and her husband and her husband continued the relationship with one Dhanalakshmi. At the time of marriage, the respondent family provided 72 sovereigns of gold as shreedhana, the husband has not disclosed what happened to the jewels and they started to demand dowry and driven her out from the house in the midnight, left with no other option filed the complaint, therefore, the complaint is not false. The Family Court failed to consider all the facts and wrongly shifted the burden on the appellant/wife and granted divorce. Hence, the order of the Family Court, Salem is liable to be set aside.

14. As already stated, the main ground taken by the respondent/husband for filing the petition for divorce is cruelty under
Section 13(1)
(i-a) of
Hindu Marriage Act
. Though he has raised so many allegations, the wear and tear between the spouse may not be a ground for divorce, but this Court cannot ignore the true allegations levelled by the husband against his wife. The wife suspected the character of the husband and also she went to the extent of saying that her husband is having illicit relationship with one Dhanalakshmi and she got a letter from the police station as if Dhanalakshmi has got extra marital relationship with the respondent/husband and she will not continue further. The wife has not examined the said Dhanalakshmi and also the persons who have stood as witnesses in the said letter. With regard to dowry harassment, the wife failed to examine the family members of the respondent and the investigating officer or any other persons or the person who is personally aware of the facts. The duty of the appellant is to prove the allegations levelled against the respondent. But the allegation levelled against the wife is admitted by her in the counter that she had suspected the character of the husband and also accepted that her husband is having extra martial relationship with one Dhanalakshmi, even after the marriage the wife noted and warned about the relationship and they continued to do so. Therefore, it is upon the wife to prove the allegation that the husband is having extra martial relationship with one Dhanalakshmi and continues even after the marriage.

15. Further, the appellant/wife used to be very suspicious about the activity of the respondent/husband while engaging women workers in the agricultural field and used to abuse the respondent connecting him with those women. If the respondent talks to any of his lady relatives, the wife picks up quarrel with them. In the counter filed by the wife before the Family Court stated that the respondent/husband was not looking after the farm of the brother, but looking for the girls who comes to the farm and further admitted that as a wife she has a right to check and hold her husband up in continuing his illegal connection with the farm servant by name Danalakshmi which he developed prior to the marriage. In the panchayat held between the parties, the said Dhanalakshmi admitted her illegal contacts with the respondent/husband and promised to go away from the respondent. On perusal of the Ex.R4 clearly shows that there was a panchayat Muchilika recorded between the respondent and the Dhanalakshmi before the village panchayatars on 10.02.2006 and six witnesses have attested the said panchayat. The husband has examined one Saravanan/PW2 who is one of the witnesses of the panchayat. The said Saravanan also denied the signature found in Ex.R4 given in muchilika. The appellant/wife to prove the allegation levelled against the husband failed to examine either the said one Dhanalakshmi or any of the witnesses or any one of the pachayatars to prove the settlement.

16. Further, during cross examination, the respondent/husband denied the extra martial affair with one Dhanalakshmi. The same is extracted hereunder :-

vd;Dila FLk;gk; tptrhaf; FLk;gk;. v';fSf;F 3/ 4 Vf;fh; epyk; cs;sJ. me;j njhl;lj;jpy; Mz;fs;/ bgz;fs; vd;W gy ngh; ntiy bra;thh;fs; vd;why; rhp. jdyl;Rkp vd;w bgz; v';fs; njhl;lj;jpy; ntiy bra;jhuh vd;why; vdf;F rhpahf bjhpahJ. nkw;go jdyl;Rkp Vw;fdnt jpUkzk; Mdth; vd;why; vdf;F bjhpahJ. vdf;Fk;/ vjp[h;kDjhuUf;Fk; jpUkzk; elg;gjw;F Kd;gpUe;nj vdf;Fk;. jdyl;Rkpf;Fk; fs;sj;bjhlh;g[ ,Ue;J te;jJ vd;why; jtW. mjid fz;oj;jhy; vjph;kDjhuiu vg;goahtJ btspapy; mDg;gptplntz;Lnk; vd;W ehd; jhd; mtiu Jd;g[Wj;jpndd; vd;why; rhpay;y.

......

......

ehd; vjph;kDjhuUld; RKfkhf cwt[ ,y;iy vd;W g[fhh; bfhLj;jhh;. ehd; fd;dpyt[ vd;w Chpy; cs;s jdk; vd;w bgz;Qqld; jfhj cwt[ itj;Jf; bfhz;L kidtpia rhptu ftdpf;fftpy;iy vd;W g[fhh; bfhLj;jhh; vd;why; rhp. me;j g[fhhpd;nghpy; nghyPrhh; vd;id tprhhpj;jhh;fs;. jdyl;Rkpia tprhuiz bra;jhh;fsh vd;W vdf;F bjhpahJ. ,dpnky; rz;il rr;rut[ ,y;yhky; ,Uf;fr; brhy;yp nghyPrhh; mwpt[Wj;jpdhh;fs;. mt;thW vGjpf; bfhLj;Js;nshk;. vd; jhahh; bgah; fe;jhak;khs;. 22/05/2006y; vd; kPJk;. vd; mk;kh kw;Wk; jdyl;Rkp kPJk; vd; kidtp bfhz;lhyk;gl;o fhty; epiyaj;jpy; g[fhh; bfhLj;jhh; vd;why; rhp. mjpy; vd;id tprhuiz bra;jhh;fs;. jdyl;Rkp tprhuizapd;nghJ ,dpnky; vd;Dld; bjhlh;g[ itj;Jf; bfhs;skhl;nld; vd;W vGjpf; bfhLj;Js;shh; vd;why; bjhpahJ. mjd;gpwF nryk; khtl;l fhty;Jiw fz;fhzpg;ghshplk; ehd; vd; kidtp bgahpy; xU g[fhh; bfhLj;njd; vd;why; rhp. 23.06.2006y; nghyPrhhplk; eh';fs; ePjpkd;wj;jpd; K:ykhf jPh;t[ fz;L bfhs;tjhf vGjpf; bfhLj;Jtpl;L te;Jtpl;nlhk;.

17. The deposition of PW2 in his cross examination is extracted hereunder :-

ghg[ bt';fnlc&;* f;F tptrha epy';fs; cs;sJ/ mjpy; Mz;fs;. bgz;fis itj;J tptrha ntiy th';Fthh;fs; vd;why; rhp. kDjhuh; tPl;L njhl;lj;jpy; jdyl;Rkp vd;w bgz; ntiyf;F ,Ue;jhuh vd;why; bjhpahJ/ ePjpkd;wj;jpy; fhl;lg;gLtJ vd;Dila ifbaGj;jy;y/ vd;Dila jfg;gdhh; bgah; khhp/ ehd; 9tJ thh;L ky;Yhpy; trpf;fpnwd;/ kDjhuh; mtUila njhl;lj;jpy; ntiy bra;a[k; jdyl;Rkp vd;w bgz;Zld; jfhj cwt[ itj;jpUe;jhh; vd;whYk;. Mjid vjph;kDjhuh; jl;o nfl;ljhy;jhd; gpur;rid Vw;gl;lJ. mjid vjph;kDjhuh; bfhz;lhyk;gl;o fhty; epiyaj;jpy; g[fhh; bfhLj;jpUe;jhh; vd;why; vdf;F bjhpahJ/ me;j g[fhh; tprhuizapd;nghJ jdyl;Rkp ,dpnky; ghg[ bt';fnlc&; cld; gHfkhl;nld; vd;W vGjpf; bfhLj;jpUf;fpwhh; vd;whYk;. mjpy; rhl;rp ifbaGj;jpl;oUf;fpnwd; vd;whYk; rhpay;y/ jw;nghJ me;j ifbaGj;ij xg;g[f; bfhz;lhy; vd;Dila rhl;rpaj;jpw;F vjpuhfptpLk; vd;gjhy; mjid kWf;fpnwd; vd;why; rhpay;y/
......

......

kDjhuUf;Fk;. MtuJ FLk;gj;jhUk; vjph;kDjhuhplk; tujl;rid nfl;L bfhLikg;gLj;jpajhy; jhd; vjph;kDjhuh; nghyPrpy; g[fhh; bfhLj;jhh; vd;why; ,y;iy/

18. Further the appellant/wife in her proof affidavit reiterated the allegations levelled against the husband in the counter, during the cross examination she admitted as follows :-

nryk; m!;jk;gl;o gFjpapy; vd;Dila mz;zd; jpKftpy; Kf;fpa gpuKfuhf ,Ue;jhh; vd;W brhd;dhy; cz;ikjhd;/ bfhz;lyhk;gl;o fhty;epiyaj;jpy; ehd; g[fhh; bfhLj;j rkaj;jpy; vd; mz;zd; ,Ue;j fl;rpjhd; MS';fl;rpahf ,Ue;jJ vd;W brhd;dhy; rhpjhd;/ vd; mz;zdpd; cjtpa[ld; jdyl;Rkp vd;w bgz;iz jahh; bra;J fhty;epiyaj;jpny itj;J kDjhuhplk; ,Ue;J vGjp th';fpapUf;fpnwhk; vd;W brhd;dhy; mJ cz;ikay;y/ mtnu xg;g[f; bfhz;L vGjpf; bfhLj;jpUf;fpwhh;/ ve;j fhty;epiyaj;jpYk; ahUk; xg;g[f; bfhz;L ifbahg;gkpl;ljpy;iy vd;whYk; fhty;epiyaj;jhhpd; mr;RWj;jYf;Fk;. Mjpfhuj;jpw;Fk; gae;J jhd; ifbahg;gkpl;L bfhLj;jhh; vd;whYk; cz;ikay;y/ md;iwa jpdk; ,e;j kDjhuiu kpul;o fhty;epiyaj;jpny itj;J fhty;Jiwapdhpd; cjtpa[[ld; gy;ntW Mtz';fspy; ifbahg;gk; bgw;W;f bfhz;nlhk; vd;W brhd;dhy; mJ cz;ikay;y/ eh';fs; Vw;ghL bra;ag;gl;l jdyl;Rkp vd;ghplk; bgwg;gl;l thf;FKyj;ij jhd; v';fSf;Fs; elf;Fk; ,e;j tHf;fpny ehd; JUg;g[ rPl;lhf gad;gLj;jp tUfpnwd; vd;W brhd;dhy; mJ cz;ikay;y/ nghyPrhh; tprhuizapny xg;g[f; bfhz;L vGjpf;bfhLj;jijjhd; ehd; jhf;fy; bra;jpUf;fpnwd;/
......

......

jdyl;Rkp vd;w bgz;Zld; vdJ fztUf;F bjhlh;g[ ,Ug;gjhf ehd; Twtij epU:gpf;f nkw;go jdyl;Rkpia tprhhpj;jpUf;fpnwdh vd;why; ,y;iy me;j mwpf;ifia kl;Lk;jhd; jhf;fy; bra;jpUf;fpnwd;/ me;j mwpf;if jahh; bra;j fhty;Jiw mjpfhhpfisa[k; ehd; rhl;rpahf tprhhpf;ftpy;iy/

19. The respondent/husband put forth that the wife has created documents as if one Dhanalakshmi has executed Ex.R4 in the presence of panchayatars and attesting witnesses. The said Dhanalakshmi or the panchayatars or the attesting witnesses or the scribe who written the document have not been examined by the appellant/wife. The main allegation of the wife is that she herself noted the illicit relationship between the Dhanalakshmi and her husband. The said dispute was settled before the Panchayatars and the Dhanalakshmi admitted herself in the muchilika and agreed that she will not contact or continue the relationship with the respondent/husband further. The appellant/wife failed to prove the Ex.R4 as the manner known to law. Under such circumstances, the allegation raised by the appellant/wife with regard to extra martial affair of her husband with other lady before the marriage is false and not proved by the wife. It is well settled that a false allegation levelled by one spouse against another spouse amounts to cruelty.

20. Yet another point is that wife made false allegation against the parent in law and sister in law in the year 2007, when the husband's sister visited her mother in the village, the appellant picked up quarrel with them and abused with filthy languages at about 11.00pm and went out of the matrimonial house and preferred police complaint with the help of her brother containing false allegations against the family members of the respondent had committed cruelty and the same was registered in Cr.No.679 of 2007 in the Mallur police station under
Sections, 498A
,
,
and
506(ii)
of IPC. The investigating officer after the enquiry submitted a final report referred as mistake of fact, the same was also recorded by the Magistrate. As against the said order the appellant/wife preferred appeal and the same was also dismissed stating that she has preferred false complaint against her husband and in laws. Ex.P1 to Ex.P4 have been admitted by the appellant/wife. It is duty of the appellant to prove the allegations levelled against the respondent is true and the same is not false.

21. It is contended on the side of the appellant that the trial Court has wrongly fixed the burden of proof against the wife, the order passed by the Family Court is not on good grounds, the said contention raised by the counsel for the appellant is not acceptable. As already held that the allegation levelled against the husband by the wife is false and the wife has not proved the same as genuine.

22. In order to prove the allegations levelled by wife against the husband are false and the complaint made by the wife against the husband and his family members are false, the appellant himself examined as PW1 and also marked Exs.P1 to P4 and examined one Saravanan as PW2 said to have been one of the witnesses to Ex.R4. But he has denied the signature found in Ex.R4 and also participated in the panchayat.

23.
In this regard, this Court had an occasion to go through the latest judgments of the Hon'ble Apex Court in the case of
Raj Talreja v. Kavita Talreja
reported in (2017) 4 MLJ 190 (SC) held that wife made reckless, defamatory and false accusations against her husband, his family members and colleagues, which had effect of lowering his reputation in eye of his peers and the said conduct of spouse levelling false accusations against other spouse would be act of cruelty. While deciding the issue, the Hon'ble Supreme Court has extracted the earlier decisions of the Hon'ble Supreme Court and the relevant portion of the same is extracted hereunder :-

9. This Court in para 16 of
K.Srinivas Rao v. D.A.Deepa
AIR 2013 SC 2176 : (2013) 5 SCC 226 : LNIND 2013 SC 386 : (2013) 3 MLJ 85 has held as follows :-

16. Thus, to the instances illustrative of mental cruelty noted in
Samar Ghosh v. Jaya Ghosh
, 2007 (4) SCC 511, we could add a few more.
Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.
In Ravi Kumar v. Julmidevi (2010) 4 SCC 476 : (2010) 7 MLJ 407, this Court while dealing with the definition of cruelty held as follows:

19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty.

20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial cases can be of infinite varietyit may be subtle or even brutal and may be by gestures and words. That possibly explains why Lord Denning in Sheldon v. Sheldon, (1966) 2 WLR 993 held that categories of cruelty in matrimonial cases are never closed.

10. Cruelty can never be defined with exactitude. What is cruelty will depend upon the facts and circumstances of each case. In the present case, from the facts narrated above, it is apparent that the wife made reckless, defamatory and false accusations against her husband, his family members and colleagues, which would definitely have the effect of lowering his reputation in the eyes of his peers. Mere filing of complaints is not cruelty, if there are justifiable reasons to file the complaints. Merely because no action is taken on the complaint or after trial the accused is acquitted may not be a ground to treat such accusations of the wife as cruelty within the meaning of the
Hindu Marriage Act
1955 (for short the Act). However, if it is found that the allegations are patently false, then there can be no manner of doubt that the said conduct of a spouse levelling false accusations against the other spouse would be an act of cruelty. In the present case, all the allegations were found to be false. Later, she filed another complaint alleging that her husband along with some other persons had trespassed into her house and assaulted her. The police found, on investigation, that not only was the complaint false but also the injuries were self inflicted by the wife. Thereafter, proceedings were launched against the wife under
Section 182
of IPC.

24. Yet another latest decision of the Hon'ble Apex Court in the case of
Narendra v. K.Meena
reported in 2017-2-LW-610, held that levelling of absolutely false allegations and that too, with regard to an extra marital life to be quite serious and that can surely be a cause for mental cruelty. The relevant portion of the judgment is extracted hereunder :-

12. With regard to the allegations about an extra-marital affair with maid named Kamla, the re-appreciation of the evidence by the High Court does not appear to be correct. There is sufficient evidence to the effect that there was no maid named Kamla working at the residence of the Appellant. Some averment with regard to some relative has been relied upon by the High Court to come to a conclusion that there was a lady named Kamla but the High Court has ignored the fact that the Respondent wife had levelled allegations with regard to an extra-marital affair of the Appellant with the maid and not with someone else. Even if there was some relative named Kamla, who might have visited the Appellant, there is nothing to substantiate the allegations levelled by the Respondent with regard to an extra-marital affair. True, it is very difficult to establish such allegations but at the same time, it is equally true that to suffer an allegation pertaining to ones character of having an extra-marital affair is quite torturous for any person  be it a husband or a wife. We have carefully gone through the evidence but we could not find any reliable evidence to show that the Appellant had an extra-marital affair with someone. Except for the baseless and reckless allegations, there is not even the slightest evidence that would suggest that there was something like an affair of the Appellant with the maid named by the Respondent. We consider levelling of absolutely false allegations and that too, with regard to an extra-marital life to be quite serious and that can surely be a cause for metal cruelty.

25. In this case, as discussed earlier the allegations levelled by the wife against the husband that he had extra marital affair with one Dhanalakshmi ten years prior to the marriage. The Ex.R4 produced by the wife before the Family Court shows that Dhanalakshmi had executed a muchilika before the panchayatars and the Dhanalakshmi admitted herself in the muchilika and agreed that she will not contact or continue the relationship with the respondent/husband further. The appellant failed to prove the genuineness of the Ex.R4 in the manner known to law. Hence, the allegation raised by the appellant against the respondents assumes to be false in nature. The decisions discussed above are squarely applicable to the facts of the present case on hand.

26. On perusal of the records, the FIR in Ex.P2 was given in the year 2007, which is six years after the marriage, if at all any dowry demand, the respondent and his family members should have demanded such dowry immediately after the marriage and not waited for a period of six years, wheres in this case, the appellant/wife has given the complaint against the husband and his family members for demanding dowry after a period of six years from the marriage in this regard. RW1 and RW2 alone have spoken about the demand for dowry and RW2 has deposed in her evidence she is not personally aware of it and she is not family member of the appellant. Further, the appellant has not examined either the family members i.e, either her brother or her mother. Even, she has not summoned the I.O. Who had investigated the case and filed the final report.

27. On bare perusal of the final report shows that the complaint against the respondent/husband and family members is false, the same can be seen from the final report submitted by the Investigating Officer shows that the mother in law is aged about 75years and she is unable to walk properly and suffering from diabetics, heart problem and other age old ailments. Therefore, the complaint was referred as mistake of fact and the same was also recorded by the Magistrate.

28. In view of the above discussions held above and also the recent decisions of the Hon'ble Supreme Court, we have come to the conclusion that the allegation levelled by the wife against the husband that he had extra marital affair is false and she had preferred false complaint against the husband and his family members on the ground of cruelty and dowry harassment. Therefore, we feel that the appellant/wife had committed cruelty against the husband, the Family Court also considered all the aspects and rightly came to the conclusion that the wife had made mental cruelty against the husband and granted divorce. Hence, we do not find any reason to interfere with the order passed by the Family Court and the same does not warrant any interference.

29. In the result, the civil miscellaneous appeal stands dismissed.

(R.P.S.J.,) (P.V.J.,)

13.10.2017

Index : Yes/No

Internet : Yes/No

tsh

To

The Family Court, Salem.

R.SUBBIAH, J.

and

P.VELMURUGAN, J.

tsh

CMA.No.987 of 2017

13.10.2017