Divorce – can not be granted on subsequent events of filing of criminal cases and it’s dismissal


CIVIL APPEAL NOS. 1912­1913 OF 2020
(Arising out of SLP (CIVIL) Nos.2704­2705 of 2019)
Mangayakarasi .…Appellant(s)
M. Yuvaraj …. Respondent(s)
A.S. Bopanna,J.

     Leave granted.     
  1. The appellant is before this Court assailing the
    judgment dated 20.07.2018 passed by the High Court of
    Judicature at Madras in CMSA Nos.23 & 24 of 2016. The
    appellant is the wife of the respondent. Since the rank of
    parties was different in the various proceedings as both
    the parties had initiated proceedings against each other,
    for the sake of convenience and clarity the appellant
    herein would be referred to as ‘wife’ and the respondent
    herein would be referred to as ‘husband’ wherever the
    context so admits.
    Page 1 of 18
  2. The husband initiated the petition under Section
    13 of the Hindu Marriage Act seeking dissolution of the
    marriage. The wife on the other hand initiated the
    petition under Section 9 of the Hindu Marriage Act
    seeking restitution of conjugal rights. The respective
    petitions registered as H.M.O.P No.13/2010 (old
    No.532/2007) and H.M.O.P No.27/2008 were clubbed
    and the learned Subordinate Judge, Pollachi by the
    judgment dated 26.11.2010 dismissed the petition filed
    by the husband and allowed the petition filed by the wife.
    The husband claiming to be aggrieved by the said
    judgment preferred the appeals in CMA No.90/2011 and
    71/2011 before the Additional District & Sessions Judge,
    Coimbatore, namely, the First Appellate Court. The First
    Appellate Court having considered the matter, dismissed
    the appeals filed by the husband. The husband,
    therefore, filed the Second Appeal under Section 100 of
    the Code of Civil Procedure before the High Court of
    Judicature at Madras in CMSA Nos.23 & 24 of 2016. The
    High Court has through the impugned judgment dated
    Page 2 of 18
    20.07.2018 allowed the appeals, set aside the order for
    restitution of conjugal rights and dissolved the marriage
    between the parties herein. It is in that light the
    appellant­wife is before this Court in these appeals.
  3. The undisputed position is that the marriage of the
    parties was solemnised on 08.04.2005 which in fact was
    after the parties had fallen in love with each other. As
    per the averments, the wife is elder to the husband by six
    to seven years. The parties also have a female child born
    on 03.01.2007. During the subsistence of the marriage
    certain differences cropped up between the parties. The
    husband alleged that the wife was of quarrelsome
    character and used filthy language in the presence of
    relatives and friends and also that she had gone to the
    college where the husband was employed and had used
    bad language in the presence of the students which had
    caused insult to him. The husband, therefore, claiming
    that he belongs to a respectable family and cannot
    tolerate such behaviour of the wife got issued a legal
    notice dated 07.12.2006 which was not responded to by
    Page 3 of 18
    the wife. The husband therefore filed a petition under
    Section 13 of Hindu Marriage Act in H.M.O.P No.65/2007
    seeking dissolution of marriage. The husband contends
    that the wife appeared before the Trial Court and on the
    assurances put forth by her of leading a normal married
    life the petition was not pressed further. The husband
    alleges that merely about five days thereafter the wife
    went to the college and abused him and also left the
    marital home on 12.04.2007. In that background on the
    very allegations which had been made in the first
    instance, the petition seeking dissolution of marriage in
    H.M.O.P No.13/2010 (old No.532/2007) was filed.
  4. The wife who appeared and filed objection
    statement disputed the allegations of the husband. The
    factual aspects with regard to the qualification of the
    husband at the time of the marriage and his employment
    were also disputed. It was contended by her that after
    marriage they resided together at Sathiyamangalam up to
    the year 2005 and thereafter at Saravanampatti till
    December, 2006. It was contended that the distance
    Page 4 of 18
    between the hometown of the parents of the husband and
    the said places referred to is more than 120 kms and
    travelling the said distance was difficult. Hence the
    allegation of insulting them is not true. Subsequently
    when the relationship between the husband and his
    parents were cordial and were living together, it is
    claimed that the wife had behaved well with the relatives
    and the visitors. Hence the allegation about her rude
    behaviour is disputed. In respect of the legal notice
    issued by the husband on 07.12.2006 it is contended
    that during the pregnancy, the husband told her that his
    parents are insisting on issuing the legal notice and the
    husband did not mean what had been indicated therein.
    Within about 25 days thereafter the wife had delivered a
    female child and even in respect of the earlier petition in
    H.M.O.P No.65/2007 she was made to appear and
    submit about her readiness to live with him which she
    had done unsuspectingly. The said case was also stated
    to be instigated by his parents. In that light, the wife had
    Page 5 of 18
    denied the allegations and sought for dismissal of the
  5. In the petition filed by the wife under Section 9 of
    the Hindu Marriage Act seeking for restitution of conjugal
    rights she had referred to the manner in which the
    marriage has taken place and had indicated that they are
    living separately without valid reasons and, therefore,
    sought for the relief. The husband having appeared filed
    the objection statement referring to the parties belonging
    to different communities as also the age difference. The
    further averments made in the petition were denied. The
    husband also referred to the complaint filed by the wife
    before the Negamam Police Station in Crime
    No.401/2007 in which the husband was arrested by the
    police and was in judicial custody for seven days. In that
    light, it was contended that the marriage between the
    parties had broken down to a point of no return, hence
    sought for dismissal of the petition.
  6. The Trial Court framed the issues based on the
    rival contentions. The husband examined himself and the
    Page 6 of 18
    witnesses as PW1 to PW4 and exhibited the documents
    A1 to A5, while the wife examined herself and the
    witnesses as RW1 to RW3 and exhibited the documents
    as R1 to R3. The Trial Court after referring to the
    evidence tendered, has dismissed the petition. While
    doing so the Trial Court had referred in detail to the
    evidence that had been tendered and in that light insofar
    as the allegations, the Trial Court was of the opinion that
    the husband has not examined any witnesses to prove
    that after 15 months of the marriage the quarrel started
    between them and that he had to shift about seven
    houses due to quarrelling nature of the wife with the
    neighbours. It was further observed that from the
    witnesses who have been examined, the evidence do not
    relate to the allegation that the wife had abused the
    husband in front of the students and the co­workers. In
    that light, the Trial Court noticed that the allegation
    made by the husband as PW1 and the relatives who were
    examined as witnesses (PW2 and PW3) had alleged that
    the wife had lived a luxurious life at her parent’s house.
    Page 7 of 18
    In that light, the Trial Court taking into consideration the
    manner in which the marriage between the parties had
    taken place and also taking note that a female child was
    born from the wedlock on 03.01.2007 had formed the
    opinion that the petition seeking divorce had been filed at
    the instigation of the parents of the husband and there
    was no real cause for granting the divorce.
  7. The First Appellate Court while considering the
    appeals filed by the husband had taken note of the
    evidence which had been referred to before the Trial
    Court and in that light having reappreciated the matter
    had upheld the judgment of the Trial Court.
  8. In the Second Appeal filed before the High Court, it
    raised the following substantial questions of law for
    “1. Whether the courts below are correct
    and justified in failure to dissolve the
    marriage of the appellant and respondent
    on the ground of mental cruelty (when
    particularly the alleged complaint dated
    24.11.2007 for dowry harassment lodged
    by the respondent against the appellant
    and her in­laws and the consequent arrest
    Page 8 of 18
    by the police would unquestionably
    constitutes cruelty as postulated in section
    13(1)(ia) of the Hindu Marriage Act?
  9. Whether the judgments of the courts
    below in dismissing the petition for divorce
    overlooking the subsequent event
    regarding the lodging of false criminal
    complaint by the respondent­wife for
    dowry harassment against the appellant
    and her in­laws are sustainable in law?
  10. Whether the judgment of the courts
    below are correct and justified when
    particularly the criminal prosecution
    initiated in C.C.No.149 of 2008 on the file
    of the Judicial Magistrate No.2, Pollachi for
    dowry harassment is ended in Honorary
  11. Whether the judgment of the courts
    below are perverse?”
  12. It is in that background, the High Court had
    arrived at the conclusion that the criminal case filed by
    the wife, which was proceeded in C.C. No.149/2008
    alleging that the husband had demanded dowry and in
    the said proceedings when the allegation is found to be
    false for want of evidence the same would be an act of
    inflicting mental cruelty as contemplated under
    Section13(1)(ia) of the Hindu Marriage Act and in that
    light had allowed the appeal.
    Page 9 of 18
  13. Heard Mr. S. Nandakumar, learned counsel for the
    appellant­wife, Mr. B. Ragunath, learned counsel for the
    respondent­husband and perused the appeals papers.
  14. In the light of the contentions put forth by the
    learned counsel, a perusal of the papers would disclose
    that the petition for dissolution of marriage instituted by
    the husband was on the allegation that the behaviour of
    the wife was intemperate as she was quarrelsome with
    the neighbours, friends and with the visitors. It was
    alleged that she had also gone over to the place of
    employment of the husband and demeaned him in the
    presence of the students and other co­workers. In
    respect of the said allegations, the Trial Court having
    taken note of the evidence tendered through PW1 to PW4
    had arrived at the conclusion that the said evidence was
    insufficient to prove the allegations which were made in
    the petition. A bare perusal of the judgment passed by
    the Trial Court would indicate that the evidence available
    on record has been referred to extensively and a
    conclusion has been reached. The First Appellate Court
    Page 10 of 18
    has also referred to the said evidence, reappreciated the
    same and has arrived at its conclusion. In such
    circumstance, in a proceeding of the present nature
    where the Trial Court has referred to the evidence and
    the First Appellate Court being the last Court for
    reappreciation of the evidence has undertaken the said
    exercise and had arrived at a concurrent decision on the
    matter, the position of law is well settled that neither the
    High Court in the limited scope available to it in a Second
    Appeal under Section 100 of the Civil Procedure Code is
    entitled to reappreciate the evidence nor this Court in the
    instant appeals is required to do so.
  15. It is in that view, we have not once again referred
    to the evidence which was tendered before the Trial Court
    which had accordingly been appreciated by the Trial
    Court. In such situation the High Court had the limited
    scope for interference based on the substantial question
    of law. The substantial questions of law framed by the
    High Court has been extracted and noted in the course of
    this judgment. At the outset, the very perusal of the
    Page 11 of 18
    questions framed would disclose that the questions
    raised does not qualify as substantial questions of law
    when the manner in which the parties had proceeded
    before the Trial Court is noticed. The questions framed in
    fact provides scope for re­appreciation of the evidence
    and not as substantial questions of law. As noticed, in
    the instant facts the husband filed a petition at the first
    instance, seeking dissolution of marriage in H.M.O.P
    No.65/2007 and the same was predicated on the
    allegation about the wife using filthy language in the
    presence of the relatives and friends and also using such
    language in the presence of the students of the husband.
    It is in that light, the husband alleged cruelty and sought
    for dissolution of marriage on that ground. It is no doubt
    true that the said petition which was initially filed was
    not pressed though the contentions of the parties in that
    regard is at variance, inasmuch as the husband
    contends that the petition was not pressed as the wife
    had assured of appropriate behaviour henceforth, while
    the wife contends that the said proceedings had been
    Page 12 of 18
    initiated at the instigation of his parents and had
    accordingly not been pressed thereafter.
  16. Be that as it may, though the subsequent petition
    was filed by the husband in H.M.O.P No.13/2010 which
    was originally numbered as H.M.O.P No.532/2007, the
    same was also filed on the same set of allegations.
    Further at that point in time the wife had also filed a
    petition under Section 9 of the Hindu Marriage Act. In
    that background, though subsequently in the
    proceedings before the Trial Court a reference is made to
    the criminal proceedings, as on the date when the cause
    of action had arisen for the husband who initiated the
    proceedings seeking dissolution of the marriage, the
    criminal case filed against him was not the basis whereby
    a ground was raised of causing mental cruelty by filing
    such criminal complaint. If that be the position, a
    situation which was not the basis for initiating the
    petition for dissolution of marriage and when that was
    also not an issue before the Trial Court so as to tender
    evidence and a decision be taken, the High Court was not
    Page 13 of 18
    justified in raising the same as a substantial question of
    law and arriving at its conclusion in that regard. A
    perusal of the judgment of the High Court indicates that
    there is no reference whatsoever with regard to the
    evidence based on which the dissolution of marriage had
    been sought, which had been declined by the Trial Court
    and the First Appellate Court and whether such
    consideration had raised any substantial question of law.
    But the entire consideration has been by placing reliance
    on the judgment which was rendered in the criminal
    proceedings and had granted the dissolution of the
    marriage. The tenor of the substantial questions of law
    as framed in the instant case and decision taken on that
    basis if approved, it would lead to a situation that in
    every case if a criminal case is filed by one of the parties
    to the marriage and the acquittal therein would have to
    be automatically treated as a ground for granting divorce
    which will be against the statutory provision.
  17. It cannot be in doubt that in an appropriate case
    the unsubstantiated allegation of dowry demand or such
    Page 14 of 18
    other allegation has been made and the husband and his
    family members are exposed to criminal litigation and
    ultimately if it is found that such allegation is
    unwarranted and without basis and if that act of the wife
    itself forms the basis for the husband to allege that
    mental cruelty has been inflicted on him, certainly, in
    such circumstance if a petition for dissolution of
    marriage is filed on that ground and evidence is tendered
    before the original court to allege mental cruelty it could
    well be appreciated for the purpose of dissolving the
    marriage on that ground. However, in the present facts
    as already indicated, the situation is not so. Though a
    criminal complaint had been lodged by the wife and
    husband has been acquitted in the said proceedings the
    basis on which the husband had approached the Trial
    Court is not of alleging mental cruelty in that regard but
    with regard to her intemperate behaviour regarding
    which both the courts below on appreciation of the
    evidence had arrived at the conclusion that the same was
    not proved. In that background, if the judgment of the
    Page 15 of 18
    High Court is taken into consideration, we are of the
    opinion that the High Court was not justified in its
  18. The learned counsel for the respondent however,
    contended that ever since the year 2007 the parties have
    been litigating and were living separately. In that
    situation it is contended that the marriage is irretrievably
    broken down and, therefore, the dissolution as granted
    by the High Court is to be sustained. The learned
    counsel has relied on the decisions in the case of Naveen
    Kohli vs. Neelu Kohli (2006) 4 SCC 558, in the case of
    Sanghamitra Ghosh vs. Kajal Kumar Ghosh (2007) 2
    SCC 220 and in the case of Samar Ghosh vs. Jaya
    Ghosh (2007) 4 SCC 511 to contend that in cases where
    there has been a long period of continuous separation
    and the marriage becomes a fiction it would be
    appropriate to dissolve such marriage. On the position of
    law enunciated it would not be necessary to advert in
    detail inasmuch as the decision to dissolve the marriage
    Page 16 of 18
    apart from the grounds available, will have to be taken on
    case to case basis and there cannot be a strait jacket
    formula. This Court can in any event exercise the power
    under Article 142 of the Constitution of India in
    appropriate cases. However, in the instant facts, having
    given our thoughtful consideration to that aspect we
    notice that the parties hail from a conservative
    background where divorce is considered a taboo and
    further they have a female child born on 03.01.2007 who
    is presently aged about 13 years. In a matter where the
    differences between the parties are not of such
    magnitude and is in the nature of the usual wear and
    tear of marital life, the future of the child and her marital
    prospects are also to be kept in view, and in such
    circumstance the dissolution of marriage merely because
    they have been litigating and they have been residing
    separately for quite some time would not be justified in
    the present facts, more particularly when the restitution
    of conjugal rights was also considered simultaneously.
    Page 17 of 18
  19. In that view, having arrived at the conclusion that
    the very nature of the substantial questions of law
    framed by the High Court is not justified and the
    conclusion reached is also not sustainable, the judgment
    of the High Court is liable to be set aside.
  20. In the result, the judgment dated 20.07.2018
    passed in CMSA Nos.23 & 24 of 2016 is set aside. The
    judgment dated 26.11.2010 passed in H.M.O.P
    Nos.13/2010 and H.M.O.P No.27/2008 and affirmed in
    CMA No.90/2011 and CMA No.71/2011 are restored.
    The Appeals are accordingly allowed with no order as to
  21. Pending applications if any, shall also stand
    disposed of.
    (A.S. BOPANNA)
    New Delhi,
    March 03, 2020
    Page 18 of 18