TITLE: Chandra Vs. Selvaraj.
Decided On: July 12, 2023
C.M.S.A(MD)No.15 of 2011
CORAM: Hon’ble Mr. Justice R.Vijayakumar.
Introduction:
The respondent herein had filed HMOP.No.35 of 2007 on the file of the Additional Subordinate Court, Karur seeking divorce on the ground of cruelty and desertion. The said petition was dismissed by the Trial Court. Challenging the same, the respondent herein had filed CMA(MD).No.2 of 2010 before the District Court, Karur. The First Appellate Judge after re-appreciation of oral and documentary evidence, has allowed the appeal and granted a decree for divorce. Challenging the same, the present Civil Miscellaneous Second Appeal has been filed by the appellant/wife. The appellant herein had got married to the respondent on 14.09.1987. Out of the said wedlock, a son was born to them who is now a major.
Facts:
In the present case, the respondent Husband had filed a petition seeking for divorce from his wife on the grounds of cruelty and desertion before the Additional Subordinate Count Karur. He had alleged that she was leading an adulterous life and even after several requests, had refused to abandon the illicit activities. He said he had purchased an immovable property in the name of his wife out of love and affection and constructed a building after obtaining a loan. He submitted that she, claiming rights over the property, filed a suit for injunction and as a counter blast, he filed a suit for declaration of title and permanent injunction. Though his suit was dismissed, on appeal, it was partly allowed. He also submitted that she had initiated proceedings seeking guardianship of their minor son. He further informed the court that though she had also lodged a complaint alleging that he had claimed dowry, the same was dismissed.
On the other hand, the wife had argued that the immovable property was purchased out of her earnings and the building was also put up using a loan obtained by her and thus her husband had no right over the property. She further contended that the allegations of adultery were completely false. She also claimed that her husband had contracted a second marriage and had been having an adulterous life since 2001 and had deserted her and their minor son without providing any maintenance.
The trial court held that there was no desertion and that filing a criminal case against the husband could not be seen as an incident of cruelty. The court thus dismissed the petition. When the husband filed an appeal, the First appellant court reiterated that the husband had not established his allegation of adultery. However, the court also observed that the attitude of the wife was to harass the husband by filing petitions one after the other. Ruling that though there was no specific cruelty, the court said the husband had suffered mental cruelty due to the complaints lodged against him.
Legal Analysis and Decision:
The high court noted that even after initiation of civil and criminal court proceedings, the wife never left the matrimonial home and it was in fact the husband who had left the matrimonial home and contracted a second marriage. The court also noted that there was no reason established to the effect that he was forced to leave the matrimonial home due to mental cruelty. The court said that the bone of contention between the parties was the property in which he and their son were residing. The court noted that when the appellant court partially decreed the suit to the effect that land belonged to him and building belonged to her, the wife challenged the decree but he had not challenged the same. Thus, the court observed that the husband had conceded the title of wife over the building which would mean that the initial injunction suit by the wife was not without any basis and only for causing mental cruelty.
The court also noted that though an initial criminal proceeding initiated by the wife for bigamy had ended in acquittal, the husband had not disputed the allegation anywhere in the counter or during cross examination. The court added that mere acquittal from the criminal proceedings, could not be taken to mean that the wife had committed mental cruelty, when she had otherwise made out a prima facie case. “Just because he was acquitted from the said criminal proceedings, the proceedings initiated by the wife cannot be branded as a mental cruelty especially when she had made out a prima facie case of the husband contracting a second marriage,” the court said. The court added that the First Appellant Court had erred by blaming the wife for not taking any measures for restitution of conjugal rights when the husband had left the matrimonial home and contracted second marriage. “When the husband had left the matrimonial home and he is residing away and there is an allegation of second marriage on the husband, the wife cannot be blamed for not taking steps to restore the conjugal rights: The First Appellate Court was not right in placing the blame upon the wife for not filing any application for restitution of conjugal rights after amiving at a finding that the husband has miserably failed to prove the allegation of adultery” the court observed.
Conclusion:
This Court is of the considered opinion that the divorce petition lacks pleadings with regard to the mental cruelty, desertion and the deposition of the husband relating to the said allegation do not support the case of the husband. The litigation initiated by the wife is only to protect her property rights and her custody of her son. When the Initiation of such proceedings is for the vindication of her rights, the said proceedings can never be considered to be a ground for mental cruelty. The court observed that the findings of the First Appellate Court that the attitude of the wife was to harass her husband by filing petitions, was not legally sustainable and without any basis. The court thus set aside the same and restored the judgment and decree of the trial court.
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JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.
